GENERAL PRINCIPLES

Concept of Remedial Law Remedial law is also known as procedural or adjective law. It is that branch of law that prescribes the method of enforcing rights or obtaining redress for their invasion. Remedial Law is basically contained in the Rules of Court. Circulars of the Supreme Court implementing the Rules of Court like the Rules on Summary Procedure also contain remedial law. It is the rule of law which provides the procedure or the remedy for enforcement of rights and obligations through the courts of justice. The Sources of Remedial Law: 1. 2. 3. 4. Constitutional Provisions Civil Code Judiciary Acts Revised Rules of Court

Kinds of Remedial Law 1. Public Remedial Law: which affords a remedy in favor of the State against individuals (criminal procedure); in favor of the individual against the state (habeas corpus); and 2. Private Remedial Law: which affords a remedy in favor of an individual against another individual (civil procedure) Substantive Law vi-a-vis Remedial Law Substantive Law creates, defines, regulates, and extinguishes rights and obligations. Remedial Law which provides the procedure for the enforcement of rights and obligations. Substantive Law 1. Creates or extinguishes rights concerning life, liberty or property, or the powers of instrumentalities for the administration of public affairs 2. Creates, defines and regulates rights and duties regarding life, liberty or property which when violated gives rise to a cause of action defines and regulates rights. Remedial/Procedural Law 1. Refers to the adjective laws which prescribes rules and forms of procedure in order that courts may be able to administer justice; these tells us HOW to enforce these created rights. 2. Prescribes the methods of enforcing those rights and obligations created by substantive law by providing a procedural system for obtaining redress for the invasion of rights and violations of duties and by prescribing rules as to how suits are filed, tried and decided by the courts. 3. These are the body of rules by which rights are effectuated through the

3. These are to be administered by the Courts.

4. As applied to criminal law, it is that which declares what acts are crimes and prescribes the punishment for committing them. 5. Makes vested rights possible. 6. Prospective application. 7. Cannot be enacted by the Supreme Court.

successful application thereof. 4. It provides or regulates the steps by which one who commits a crime is to be punished. 5. No vested rights. 6. Retroactive: governs acts and transactions which took place. 7. SC is expressly empowered to promulgate procedural rules.

Rule-making Power of the Supreme Court In general, even without constitutional authority, a judicial tribunal has the inherent power to promulgate rules of procedure so that justice may be properly rendered. The 1987 Philippine Constitution contains a modified provision on the rulemaking power of the Supreme Court. Article VIII, Section 5 (5), provides that the Supreme Court shall have the following powers: (5) promulgates rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, xxx, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all the courts of the same grade, and shall not diminish, increase, or modify substantive rights. Limitations on the Rule-making Power of the Supreme Court 1. rules shall provide simplified and inexpensive procedure for the speedy disposition of cases; 2. rules shall be uniform for all courts of the same grade, and 3. rules shall not diminish, increase or modify substantive rights.

Cases where Rules of Court are Not Applicable? a) Land registration cases; b) Election cases; c) Naturalization cases; d) Insolvency proceedings; e) Other cases not provided in the rules except in a suppletory character and whenever practicable and convenient. Power of the Supreme Court to Amend and Suspend Procedural Rules Only the Supreme Court has the power to suspend the application of the rules of procedure. It was held that under special circumstances the court may suspend the application of the rules in order to enhance fair trials and expediting justice. If the application of the rules would tend to subvert and/or defeat instead of promote and enhance it, their suspension is justified. Power to Amend The Supreme Court has the power to amend, repeal, or even establish new rules for a more simplified and inexpensive process, and the speedy disposition of cases.

The constitutional power of the Supreme Court to promulgate rules of practice and procedure and to amend or repeal the same necessarily carries with it the power to overturn judicial precedents on points of remedial law through amendment of the Rules of Court. Power to Suspend It is an inherent power of the Supreme Court to suspend its own rules or to exempt a particular case from the operation of said rules whenever demanded by justice. The right to create rules necessarily carries with it the power to suspend the effectivity of its creation. The courts have the power to relax or suspend technical or procedural rules or to except a case from their operation when compelling reasons so warrant or when the purpose of justice requires it. What constitutes good and sufficient cause that would merit suspension of the rules is discretionary upon the courts. To relieve a litigant of an injustice commensurate with his failure to comply with the prescribed procedure and the mere invocation of substantial justice is not a magical incantation that will automatically compel the Court to suspend procedural rules. Reasons that would Warrant the Suspension of the Rules (a) the existence of special or compelling circumstances (b) merits of the case (c) cause not entirely attributable to the fault or negligence of the party favored by the suspension of rules (d) a lack of ay showing that the review sought is merely frivolous and dilatory (e) the other party will not be unjustly prejudiced thereby

Nature of Philippine Courts

Philippine courts are both courts of law and equity. Hence, both legal and equitable jurisdiction is dispensed with in the same tribunal. Meaning of a Court Court is the entity in the government organized for the proper administration of justice at the time and place prescribed by law. It is an entity in which a portion of the judicial power is vested. It is an organ of government belonging to the judicial department the function of which is the application of the laws to the controversies brought before it as well as the public administration of justice. It is a governmental body officially assembled under authority of law at the appropriate time and place for the administration of justice through which the State enforces its sovereign rights and powers. It is a board or tribunal which decides a litigation or contest. Court as Distinguished from a Judge Court is a tribunal officially assembled under authority of law possesses the elements of stability and permanency may be considered an office Judge an officer of such tribunal or a person appointed to the court may come and go anytime. a public officer

Classification of Philippine Courts Regular Courts

These refer to those courts authorized to engage in the general administration of justice. These courts derive their powers from the Philippine Constitution, which is the fundamental law of the land. 1) First Level (MTCs, MeTCs, MCTCs) a) criminal actions involving violations of city or municipal ordinances committed within their respective territorial jurisdiction and offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of fine and regardless of other imposable accessory or other penalties, and b) civil actions including ejectment, recovery of personal property with a value of not more than P300,000 outside MM or does not exceed P400,000 in MM; 2) Second Level (RTCs, Family Courts) a) Courts of general jurisdiction; among the civil actions assigned to them by law are those in which the subject of litigation is incapable of pecuniary estimation, or involving title to or possession of real property where the assessed value of the property exceeds P20,000 outside MM or exceeds P50,000 in MM, except actions for ejectment (forcible entry and unlawful detainer), or where the demand exclusive of interest, damages of whatever kind, attorneys fees, litigation expenses, and cost, or the value of the personal property or controversy exceeds P300,000 outside MM or exceeds P400,000 in MM. RTCs also exercise appellate jurisdiction, to review cases appealed from courts of the first level; 3) Third Level (Court of Appeals, Sandiganbayan) a) CA is an appellate court, reviewing cases appealed to it from the RTC, on questions of fact or mixed questions of fact and law. Appeals to it decided by the RTC in the exercise of original jurisdiction are a matter of right; appeals with respect to cases decided by the RTC in the exercise of its appellate jurisdiction are a matter of discretion. Occasionally, CA may act as a trial court, as in actions praying for the annulment of final and executor judgments of RTCs on the ground of extrinsic fraud subsequently discovered, against which no other remedies lies. b) Cases involving graft and corrupt practices act, and such other offenses committed by public officers and employees including those in GOCCs in relation to their office. It also has exclusive appellate jurisdiction over final judgments, resolutions, or orders of RTCs whether in the exercise of their own original or appellate jurisdiction over criminal and civil cases committed by public officers or employees including those in GOCCs in relation to their office. 4) Fourth Level (Supreme Court) At the apex of the courts lumped within this classification is the Philippine Supreme Court. Special Courts These refer to tribunals that have limited jurisdiction over certain types of cases or controversies. While special courts have judicial powers just like the regular courts, the scope of the controversies that special courts can hear are limited only to those that are specifically provided in the special law creating such special courts. Outside of the specific cases expressly mentioned in the provisions of the statute creating the special court, these courts have no authority to exercise any powers of adjudication. A distinct kind of special court that is recognized in the Philippines is the Sharia Court. While the Sharia Court has the powers of the regular courts, the subjects over whom it can wield its judicial powers are limited solely to Muslim Filipinos. Other than Muslim Filipinos, the Sharia Court has neither right nor authority to exercise powers of adjudication. Quasi-Courts or Quasi-Judicial Agencies Technically, judicial powers pertain to and are exercised only by courts. However, the Philippine system of government allows administrative agencies to exercise adjudicatory powers in certain types of controversies, particularly if the same would facilitate the attainment of the objectives for which the administrative agency had been created.

Unlike regular and special courts, quasi-courts do not possess judicial powers. Instead they possess and in fact, exercise what are termed as quasi-judicial powers. Even though they are not courts of justice, either the Constitution or the special statute empowers these agencies to exercise such quasi-judicial powers solely in aid of the administrative powers that they are administrative agency is allowed only for the empowered to exercise. Essentially, the exercise of judicial powers by the administrative agency is for the purpose of attaining its specific goals. If the exercise would not facilitate the attainment of the objectives of the Department, there is no basis for exercising quasi-judicial functions. 1) As to nature and extent of Jurisdiction: a) Courts of original jurisdiction those which take cognizance of a case in the first instance. b) Courts of appellate jurisdiction those which review cases from lower courts. c) Courts of general jurisdiction those which take cognizance of all causes, whether civil or criminal, of a particular nature. d) Courts of limited jurisdiction those which take cognizance of specified maters or cases only. 2) As to authority of creation: a) Constitutional courts those created by the Constitution. b) Statutory courts those created by statutes. 3) As to principles applied: a) Courts of law those which entertain action and suits at law and decide them according to the principles and forms of common law. b) Courts of equity those which entertain actions and decide them based on principles of justice and equity. 4) As to basis of authority a) Superior courts those with supervisory authority over other courts. b) Inferior courts those which are subordinate to other courts. 5) As to nature of cases tried: a) Civil courts those which try and decide cases between private persons. b) Criminal courts those which try and decide cases involving offenses committed against the State. * There used to be a Juvenile and Domestic Relations Court, one which is of equal rank with the then CFI (now Regional Trial Court), but these were abolished by BP Blg. 129, which integrated these into the Regional Trial Courts, now known as THE FAMILY COURTS as established by RA 8369. Original Jurisdiction A court is one with original jurisdiction when actions or proceedings are originally filed with it. MeTCs, MCTCs and MTCs are courts of original jurisdiction without appellate jurisdiction. RTC is likewise a court of original jurisdiction with respect to cases originally filed with it. CA is also a court of original jurisdiction with respect to cases filed Appellate Jurisdiction A court is one with appellate jurisdiction when it has the power of review over the decisions or orders of a lower court. RTC is an appellate court with respect to cases decided by MTCs within its territorial jurisdiction.

CA is primarily a court of appellate jurisdiction with competence to

before it involving review judgments of the issuance of writs of RTCs and specified certiorari, mandamus, quasi-judicial agencies. quo warranto, habeas corpus, and prohibition. CA is a court of original and exclusive jurisdiction over actions for annulment of judgments of RTCs. The SC is fundamentally a court of appellate jurisdiction but it may also be a court of original jurisdiction over cases affecting ambassadors, public ministers and consuls, and in cases involving petitions for certiorari, prohibition and mandamus * The Supreme Court en banc is not an appellate court to which decisions or resolutions of a division of the Supreme Court may be appealed. General Jurisdiction Those with competence to decide on their own jurisdiction and to take cognizance of all cases, civil and criminal, of a particular nature. Special Jurisdiction Those which have only a special jurisdiction for a particular purpose or are clothed with special powers for the performance of specified duties beyond which they have no authority of any kind.

A court may also be considered general if it has the competence to exercise jurisdiction over cases not falling within the jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions. It is in the context that the RTC is considered a court of general jurisdiction. Constitutional Courts Those which owe their creation and existence to the Constitution and, therefore, cannot be legislated out of existence or deprived by law of jurisdiction and powers unqualifiedly vested in them by the Constitution. Example of this court is the SC, which owes its creation from the Constitution itself. Only the SC is a Statutory Courts Those created, organized and with jurisdiction exclusively determined by law.

All courts except the SC are statutory courts. SB was not directly created by the Constitution but by law pursuant to a

Constitutional court.

constitutional mandate.

* Sandiganbayan is only a constitutionally mandated court since, although its existence is provided for in the Constitution, its creation was by statutory enactment. Courts of Law and Equity Court of Law It is a court which decides a case according to the existing laws. Court of Equity It is a court which adjudicates a controversy according to the common precepts of what is right and just without inquiring into the terms of the statute. Philippine Courts as Courts of Law and Equity The distinction obtaining in other jurisdictions criminal and probate courts, does not apply in equity; and Regional Trial Courts, to a limited the case involved, as a civil, criminal or probate between courts of law and courts of equity, and among civil, the Philippines wherein all courts are courts both of law and extent, the inferior courts, exercise jurisdiction, according to courts or courts of land registration.

Before BP 139 became operative, there were special courts, such as the JCRC, the Circuit/Criminal Courts and the Courts of Agrarian Relations, which were courts exercising only limited and special jurisdiction. Principle of Judicial Hierarchy 1) This is an ordained sequence of recourse to courts vested with concurrent jurisdiction, beginning from the lowest, on to the next highest, and ultimately to the highest. This hierarchy is determinative of the venue of appeals, and is likewise determinative of the proper forum for petitions for extraordinary writs. This is an established policy necessary to avoid inordinate demands upon the Courts time and attention which are better devoted to those matters within its exclusive jurisdiction, and to preclude the further clogging of the Courts docket. 2) A higher court will not entertain direct resort to it unless the redress cannot be obtained in the appropriate courts. The SC is a court of last resort. It cannot and should not be burdened with the task of deciding cases in the first instances. Its jurisdiction to issue extraordinary writs should be exercised only where absolutely necessary or where serious and important reasons exist. 3) Petitions for the issuance of extraordinary writs against first level courts should be filed with the RTC and those against the latter with the CA. a direct invocation of the SCs original jurisdiction to issue these writs should be allowed only where there are special and important reasons therefor, clearly and specifically set out in the petition. 4) The doctrine of hierarchy of courts may be disregarded if warranted by the nature and importance of the issues raised in the interest of speedy justice and to avoid future litigations, or in cases of national interest and of serious implications. Under the principle of liberal interpretations, for example, it may take cognizance of a petition for certiorari directly filed before it. Doctrine of Non-Interference or Doctrine of Judicial Stability 1) Courts of equal and coordinate jurisdi ction cannot interfere with each others orders. Thus, the RTC has no power to nullify or enjoin the enforcement of a writ of possession issued by another RTC. The principle also bars a court from reviewing or interfering with the judgment of a co-equal court over which it has no appellate jurisdiction or power of review. 2) This doctrine applies with equal force to administrative bodies. When the law provides for an appeal from the decision of an administrative body to the SC or CA, it means that such body is co-equal with the RTC in terms of rand and stature, and logically beyond the control of the latter.

JURISDICTION

The JURISDICTION is taken from the Latin term jus dicere or right to speak. It is the power and authority of a court to hear, try and decide a case. Complete jurisdiction necessarily includes not only the power to hear and determine a cause but also the power to enforce any judgment it may render thereon. It is conferred by substantive law or by other statutes. It is the right to act in a case. The question of jurisdiction is the first thing to be determined by the judge in every action brought before him. Where the court believes that it has no jurisdiction over the action, the only valid determination it can do is to have the case or action dismissed. Jurisdiction is the power with which courts are invested for administering justice, that is, for hearing and deciding cases. In order for the court to have authority to dispose of the case to have merits, it must acquire jurisdiction over the subject matter and the parties. Jurisdiction refers to the authority of a court to hear and decide a class of cases and is conferred by substantive law Jurisdiction refers to the power of a court to hear and decide a case may not be waived being based in law Over the parties 1) The manner by which the court acquires jurisdiction over the parties depends on whether the party is the plaintiff or the defendant 2) Jurisdiction over the plaintiff is acquired by his filing of the complaint or petition. By doing so, he submits himself to the jurisdiction of the court. 3) Jurisdiction over the person of the defendant is obtained either by a valid service of summons upon him or by his voluntary submission to the courts authority. 4) 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. How Jurisdiction over the Plaintiff is Acquired The plaintiff when he files his complaint with the Court. This applies even to a non-resident plaintiff when, by filing his complaint in a Philippine Court, he submits himself to the jurisdiction of said court. This presupposes payment of the docket fees. The plaintiff may be estopped from questioning the jurisdiction of the court over his person. Procedure is the means which puts the power or authority to hear and decide into action Venue refers to the place where an action is to be instituted and tried may be the subject of waiver being a matter of procedure

How Jurisdiction over the Defendant is Acquired Jurisdiction over the person of the defendant is required only in an action in personam; it is not a prerequisite in an action in rem and quasi in rem. In an action in personam, jurisdiction over the person is necessary for the court to validly try and decide the case, while 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 the latter has jurisdiction over the res. 1) His voluntary submission to the authority of the court either by his personal appearance or through his counsel.

2) By voluntary appearance of the defendant, without service of summons or despite a defective service of summons. The defendants voluntary appearance in the action shall be equivalent to service of summons. 3) Through the exercise of the coercive processes of the court by the proper service of summons upon the defendant. 4) Instances when appearance of defendant is not tantamount to voluntary submission to the jurisdiction of the court: (a) (b) (c) (d) (e) (f) when defendant files the necessary pleading; when defendant files motion for reconsideration of the judgment by default; when defendant files a petition to set aside the judgment of default; when the parties jointly submit a compromise agreement for approval of the court; when defendant files an answer to the contempt charge; when defendant files a petition for certiorari without questioning the court s jurisdiction over his person; (g) by his arrest. Over the Subject Matter 1) Jurisdiction over the Subject Matter refers to the power of a court or tribunal to hear and determine cases of the general class to which the proceeding in question belongs. This kind of jurisdiction being conferred by law cannot be the subject of any agreement. None of the parties to litigations can enlarge or diminish it or dictate when it shall attach or when it shall be removed. That power is vested in the legislature. 2) It is the power to deal with the general subject involved in the action, and means not simply jurisdiction of the particular case then occupying the attention of the court but jurisdiction of the class of cases to which the particular case belongs. It is the power or authority to hear and determine cases to which the proceeding is question belongs. 3) When a complaint is filed in court, the basic questions that ipso facto are to be immediately resolved by the court on its own: (a) What is the subject matter of their complaint filed before the court? (b) Does the court have jurisdiction over the said subject matter of the complaint before it? Answering these questions inevitably requires looking into the applicable laws conferring jurisdiction. Jurisdiction Exercise of Jurisdiction refers to the authority to exercise of this power or decide a case and not the authority decision rendered does not depend upon refers to the resolution of the regularity of the all other questions exercise of that power or arising in the case the rightfulness of the decision rendered Where there is jurisdiction over the subject matter, the decision on all other questions arising in the case is but an exercise of jurisdiction. The errors which the courts may commit in the exercise of jurisdiction are merely errors of judgment which are the proper subjects of an appeal. Error of Jurisdiction An error of jurisdiction is one where the act complained of was issued by the court without or in excess of jurisdiction. Error of Judgment An error of judgment is one which the court may commit in the exercise of its jurisdiction. As long as the court acts within

Errors of jurisdiction occur when the court exercises a jurisdiction not conferred upon it by law. It may also occur when the court or tribunal although with jurisdiction, acts in excess of its jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction. Errors of jurisdiction are Errors of judgment are correctible only by the correctible by appeal. extraordinary writ of certiorari. Any judgment rendered without jurisdiction is a total nullity and may be struck down at any time, even on appeal; the only exception is when the party raising the issue is barred by estoppel. When a court, tribunal, or officer has jurisdiction over the person and the subject matter of the dispute, the decision on all other questions arising in the case is an exercise of that jurisdiction. Consequently, all errors committed in the exercise of said jurisdiction are merely errors of judgment. Under prevailing procedural rules and jurisprudence, errors of judgment are not proper subjects of a special civil action for certiorari. How Jurisdiction is Conferred and Determined How Conferred

its jurisdiction, any alleged errors committed in the exercise of its discretion will amount to nothing more than mere errors of judgment. Errors of judgment include errors of procedure or mistakes in the courts findings.

1) Jurisdiction is a matter of substantive law, not a procedural law, because it is conferred by law which may be either the Constitution or a statute. This jurisdiction which is a matter of substantive law should be construed to refer only to jurisdiction over the subject matter. Jurisdiction over the parties, the issues and the res are matters of procedure. 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. 2) It is the duty of the court to consider the question of jurisdiction before it looks at other matters involved in the case. If the court finds that it has jurisdiction, 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. It cannot decline to exercise its jurisdiction. Failure to do so may be enforced by way of mandamus proceeding. Jurisdiction: 1) 2) 3) 4) 5) Cannot Cannot Cannot Cannot Cannot by, any 6) Cannot be conferred by the administrative policy of any court; be conferred by a courts unilateral assumption of jurisdiction; be conferred by an erroneous belief by the court that it has jurisdiction; also be conferred by the parties; be granted by agreement of the parties, acquired through, or waived, enlarged or diminished act or omission of the parties. Neither can it be conferred by acquiescence of the court; be conferred by the parties silence acquiescence or consent.

How Determined 1) Jurisdiction over the subject matter is determined by the allegations of the complaint regardless of whether or not the plaintiff is entitled to his claims asserted therein. It is the complaint that commences the action. It is determined by the allegations of the complaint and cannot be made to depend on the defenses of the defendant. 2) If by the averments of the complaint, the court has jurisdiction, it does not lose that jurisdiction just because the defendant makes a contrary allegation in his motion or answer or because the court believes the plaintiffs claims are ridiculous and therefore, untrue. If by the averments of the complaint, it has jurisdiction, then it has jurisdiction. 3) Whatever is filed by the defendant thereafter has nothing to do with the commencement of the action. The defenses in the answer or motion to dismiss are not to be considered for purposes of establishing jurisdiction over the subject matter. Law Determining the Jurisdiction of the Court over the Subject Matter The law in force at the time of the commencement of the action determines the jurisdiction of the court over the subject matter and not the law at the time the cause of action accrued. Doctrine of Primary Jurisdiction 1) It simply means that the regular courts cannot and will not determine a controversy involving a question, which is within the jurisdiction of an administrative tribunal, especially where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience or services of an administrative tribunal to determine technical and intricate matters of fact and where a uniformity of ruling is essential to comply with the purposes of the regulatory statute administered. 2) The objective is to guide a court in determining whether it should refrain from exercising its jurisdiction until after an administrative agency has determined some question or some aspect of some question arising in the proceeding before the court. 3) The doctrine applies where a claim is originally cognizable in courts, and comes into play whenever enforcement of claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body. 4) In such case the judicial process is suspended (not dismissed) pending referral of such issues to the administrative body for its view. Doctrine of Adherence of Jurisdiction or Continuity of Jurisdiction 1) Once a court has acquired jurisdiction, that jurisdiction continues until the court has done all that it can do in the exercise of that jurisdiction. This principle also means that once jurisdiction has attached, it cannot be ousted by subsequent happenings or events, although of a character which would have prevented jurisdiction from attaching in the first instance. The court, once jurisdiction has been acquired, retains that jurisdiction until it finally disposes of the case. 2) Even the finality of the judgment does not totally deprive the court of jurisdiction over the case. What the court loses is 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. 3) 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 statute is clearly intended to apply to actions pending even before its enactment. Objections to Jurisdiction over the Subject Matter 1) 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. 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. 2) Jurisdiction over the subject matter may be raised at any stage of the proceedings, even for the first time on appeal. When the court dismisses the complaint for lack of jurisdiction over the subject matter, it is common reason that the court cannot remand the case to another court with the proper jurisdiction. Its only power is to dismiss and not to make any other order. 3) 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. 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 an answer, raise the lack of jurisdiction as an affirmative defense because this defense is not barred under the omnibus motion rule. 4) 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. If no motion to dismiss is filed, the defense of lack of jurisdiction may be raised as an affirmative defense in the answer. 5) 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. 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 themselves. 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. Effect of estoppel on Objections to Jurisdiction 1) The active participation of a party in a case is tantamount to recognition of that courts jurisdiction and will bar a party from impugning the courts jurisdiction. Jurisprudence however, did not intend this statement to lay down the general rule. i. The Sibonghanoy applies only to exceptional circumstances. The general rule remains: a courts lack of jurisdiction may be raised at any stage of the proceedings even on appeal.

2) The doctrine of estoppels by laches in relation to objections to jurisdiction first appeared in the landmark case of Tijam vs. Sibonghanoy, 23 SCRA 29, where the SC barred a belated objection to jurisdiction that was raised only after an adverse decision was rendered by the court against the party raising the issue of jurisdiction and after seeking affirmative relief from the court and after participating in all stages of the proceedings. This doctrine is based upon grounds of public policy and is principally a question of the inequity or unfairness of permitting a right or claim to be enforced or asserted. 3) The SC frowns upon the undesirable practice of submitting ones case for decision, and then accepting the judgment only if favorable, but attacking it for lack of jurisdiction if it is not. 4) Estoppel does not apply to confer jurisdiction to a tribunal that has none over a cause of action. The failure of the parties to challenge the jurisdiction of the court, tribunal, agency or board does not prevent the Supreme Court from addressing the issue, especially so when the courts lack of jurisdiction is apparent on the face of the complaint. Issues of jurisdiction are not subject to the whims of the parties. However, when the party participate in the proceeding and only raises the question of lack of jurisdiction after an unfavorable judgment has been issued against him, he may be barred by the principle of estoppel to question the lack of jurisdiction of the court that rendered the decision.

Nota Bene: The ruling in Tijam on the matter of jurisdiction is however, the exception rather than the rule as subsequently confirmed in Calimlim vs. Ramirez (118 SCRA 399) and Pangilinan vs. CA (321 SCRA 51).

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 first time in a motion to dismiss filed by the Surety almost fifteen (15) years after the questioned ruling had been rendered. As several stages the proceedings, in the court a quo as well as in the Court of Appeals, the Surety invoked the jurisdiction of 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 CA that it finally woke up to raise the question of jurisdiction.

Over the Issues 1) It is the power of the court to try and decide issues raised in the pleadings of the parties. 2) 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. Where there is no disputed point, there is no issue. 3) Generally, jurisdiction over the issues is conferred and determined by the pleadings of the parties. The pleadings present the issues to be tried and determine whether or not the issues are of fact or law. 4) 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 stipulations of facts and documents or enter into agreement simplifying the issues of the case. 5) It 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. Over the Res or Property in Litigation This kind of jurisdiction comes into play only in situations where jurisdiction over the person of the defendant cannot be acquired because he is a non-resident, cannot be found in the Philippines, or cannot be served with summons. These actions refer to quasi in rem actions. Jurisdiction over the res, or property of the defendant or thing in contest is obtained by the actual or constructive seizure of the property by placing the same in custodia legis. 1) Jurisdiction over the res refers to the courts jurisdiction over the thing or the property which is the subject of the action. Jurisdiction over the res may be acquired by the court by placing the property of thing under its custody (custodia legis). Example: attachment of property. 2) It may also be acquired by the court through statutory authority conferring upon it the power to deal with the property or thing within the courts territorial jurisdiction. Example: suits involving the status of the parties or suits involving the property in the Philippines of non-resident defendants. 3) Jurisdiction over the res is acquired by the seizure of the thing under legal process whereby it is brought into actual custody of law, or it may result from the institution of a legal proceeding wherein the power of the court over the thing is recognized and made effective.

Jurisdiction of Courts
Inherent Powers of Courts 1) Preserve and enforce order in its immediate presence; 2) Enforce order in proceedings before it, or before a person or persons empowered to conduct a judicial investigation under its authority; 3) Compel obedience to its judgments, orders and processes, and to the lawful orders of a judge out of court, in a case pending before it;

4) Control the conduct of its ministerial officers, and of all other persons in any manner connected with a case before it and in every manner appertaining thereto; 5) Compel attendance of persons to testify in a case pending therein; 6) Administer or cause to be administered oaths in a case pending therein, and in all other cases where it may be necessary in the exercise of its powers; 7) 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. Supreme Court Composed of a Chief Justice and 14 Associate Justices. It may sit en banc or in divisions of 3, 5 or 7 members (Art. VIII, Sec. 4[1], 1987 Constitution). Currently, it sits in 3 divisions of 5 members each. Source of Jurisdiction: Constitution 1) The jurisdiction of the SC is defined by the Constitution itself. Under Article VIII, Sec. 2, Congress shall have the power to define, prescribe and apportion the jurisdiction of the various courts but may not deprive the SC of its jurisdiction as provided in the Constitution. 2) Under Article VI, Sec. 30, Congress may increase the appellate jurisdiction of the SC but with its advice and concurrence. 3) Under the definition of judicial power in the Constitution, the courts of justice are authorized: (a) To settle actual controversies involving rights which are legally demandable and enforceable; and (b) To determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. (Art VIII, Sec 1, 2nd par.). The first part refers to the traditional concept of judicial power under the previous Constitution; the second part, which may be referred to as expanded jurisdiction or extraordinary jurisdiction as termed in Robles v HRET, 181 SCRA 789 (1990), has broadened the judicial power to enable the courts of justice to review what before was forbidden territory, the political question doctrine. Jurisdiction 1) Exclusive original jurisdiction in petitions for certiorari, prohibition and mandamus against the CA, COMELEC, COA, CTA, Sandiganbayan, NLRC 2) Concurrent original jurisdiction (a) With Court of Appeals in petitions for certiorari, prohibition and mandamus against the RTC, CSC, Central Board of Assessment Appeals, Quasi-judicial agencies, and Writ of Kalikasan, all subject to the doctrine of hierarchy of courts. (b) With the CA and RTC in petitions for certiorari, prohibition and mandamus against lower courts and bodies and in petitions for quo warranto, and writs of habeas corpus, all subject to the doctrine of hierarchy of courts. (c) With CA, RTC and Sandiganbayan for petitions for writs of amparo and habeas data (d) Concurrent original jurisdiction with the RTC in cases affecting ambassadors, public ministers and consuls. 3) Appellate jurisdiction by way of petition for review on certiorari (appeal by certiorari under Rule 45) against CA, Sandiganbayan, RTC: (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 cases in which only an error or question of law is involved. 4) Exceptions in which factual issues may be resolved by the Supreme Court: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) When the findings are grounded entirely on speculation, surmises or conjectures; When the inference made is manifestly mistaken, absurd or impossible; When there is grave abuse of discretion; When the judgment is based on misapprehension of facts; When the findings of facts are conflicting; When in making its findings the CA went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; When the findings are contrary to the trial court; When the findings are conclusions without citation of specific evidence on which they are based; When the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondent; When the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; ad When the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, could justify a different conclusion.

5) Exclusive Jurisdiction to review, revise, reverse modify or affirm on appeal, as the law or the rules of court may provide, final judgments or decrees of all inferior courts, such as: (a) Criminal cases involving offenses for which the penalty of death, or life imprisonment and those involving other offenses which, although not punished by such penalty, arise out of the same occurrence or which may have been committed by the accused on the same occasion, as that giving rise to the more serious offense, regardless of whether the accused are charged as principals, accomplices or accessories, or whether they have been tried jointly or separately; (b) Cases involving petitions for naturalization or denaturalization (under existing laws and circulars, decisions of RTC in said cases are now appealable to the CA); (c) Decisions of the COA elevated on certiorari by private persons or entity; (d) Cases where jurisdiction of any inferior court is in issue; (e) Other cases in which only errors or question of law are involved. 6) Power to decide on constitutional issues, if the following requisites are present: (a) That there be an actual controversy; (b) The question of constitutionality must be raised by the proper party; (a proper party is one who may be affected by such constitutional question. ) (c) That the constitutional question must be raised at the earliest opportunity; (d) That the determination of the constitutional question must be necessary to the determination of the case itself. Court of Appeals 1) Exclusive original jurisdiction in actions for the annulment of the judgments of the RTC. 2) Concurrent original jurisdiction (a) With SC to issue writs of certiorari, prohibition and mandamus against the RTC, CSC, CBAA, other quasi-judicial agencies mentioned in Rule 43, and the NLRC, and writ of kalikasan. (b) With the SC and RTC to issue writs of certiorari, prohibition and mandamus against lower courts and bodies and writs of quo warranto, habeas corpus, whether or not in aid of its appellate jurisdiction, and writ of continuing mandamus on environmental cases. (c) With SC, RTC and Sandiganbayan for petitions for writs of amparo and habeas data 3) Exclusive appellate jurisdiction (a) by way of ordinary appeal from the RTC and the Family Courts.

(b) by way of petition for review from the RTC rendered by the RTC in the exercise of its appellate jurisdiction. (c) by way of petition for review from the decisions, resolutions, orders or awards of the CSC, CBAA and other bodies mentioned in Rule 43 and of the Office of the Ombudsman in administrative disciplinary cases. (d) over decisions of MTCs in cadastral or land registration cases pursuant to its delegated jurisdiction; this is because decisions of MTCs in these cases are appealable in the same manner as decisions of RTCs. Note that under RA No. 9282, the judgments and final orders of the CTA 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. Court of Tax Appeals
(under RA 9282 and Rule 5, AM 05-11-07-CTA)

1) Exclusive original or appellate jurisdiction to review by appeal (a) Decisions of CIR in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties in relation thereto, or other matters arising under the NIRC or other laws administered by BIR; (b) Inaction by CIR in cases involving disputed assessments, refunds of IR taxes, fees or other charges, penalties in relation thereto, or other matters arising under the NIRC or other laws administered by BIR, where the NIRC or other applicable law provides a specific period of action, in which case the inaction shall be deemed an implied denial; (c) Decisions, orders or resolutions of the RTCs in local taxes originally decided or resolved by them in the exercise of their original or appellate jurisdiction; (d) Decisions of the Commissioner of Customs (1) in cases involving liability for customs duties, fees or other charges, seizure, detention or release of property affected, fines, forfeitures or other penalties in relation thereto, or (2) other matters arising under the Customs law or other laws, part of laws or special laws administered by BOC; (e) Decisions of the Central Board of Assessment Appeals in the exercise of its appellate jurisdiction over cases involving the assessment and taxation of real property originally decided by the provincial or city board of assessment appeals; (f) Decision of the secretary of Finance on customs cases elevated to him automatically for review from decisions of the Commissioner of Customs which are adverse to the government under Sec. 2315 of the Tariff and Customs Code; (g) Decisions of Secretary of Trade and Industry in the case of non-agricultural product, commodity or article, and the Secretary of Agriculture in the case of agricultural product, commodity or article, involving dumping duties and counterveiling duties under Secs. 301 and 302, respectively, of the Tariff and Customs Code, and safeguard measures under RA 8800, where either party may appeal the decision to impose or not to impose said duties. 2) Exclusive original jurisdiction (a) Over all criminal cases arising from violation of the NIRC of the TCC and other laws, part of laws, or special laws administered by the BIR or the BOC where the principal amount of taxes and fees, exclusive of charges and penalties claimed is less that P1M or where there is no specified amount claimed (the offenses or penalties shall be tried by the regular courts and the jurisdiction of the CTA shall be appellate); (b) In tax collection cases involving final and executory assessments for taxes, fees, charges and penalties where the principal amount of taxes and fees, exclusive of charges and penalties claimed is less than P1M tried by the proper MTC, MeTC and RTC. 3) Exclusive appellate jurisdiction (a) In criminal offenses (1) over appeals from the judgment, resolutions or orders of the RTC in tax cases originally decided by them, in their respective territorial jurisdiction, and (2) over petitions for review of the judgments, resolutions or orders of the RTC in the exercise of their appellate jurisdiction over tax cases originally decided by the MeTCs, MTCs, and MCTCs in their respective jurisdiction;

(b) In tax collection cases (1) over appeals from the judgments, resolutions or orders of the RTC in tax collection cases originally decided by them in their respective territorial jurisdiction; and (2) over petitions for review of the judgments, resolutions or orders of the RTC in the exercise of their appellate jurisdiction over tax collection cases originally decided by the MeTCs, MTCs and MCTCs in their respective jurisdiction. Sandiganbayan 1) Original jurisdiction in all cases involving (a) Violations of RA 3019 (Anti-Graft and Corrupt Practices Act) (b) Violations of RA 1379 (Anti-Ill-Gotten Wealth Act) (c) Bribery (Chapter II, Sec. 2, Title VII, Book II, RPC) where one or more of the principal accused are occupying the following positions in the government, whether in permanent, acting or interim capacity at the time of the commission of the offense i. ii. iii. iv. v. Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989 (RA 6758) Members of Congress and officials thereof classified as G-27 and up under RA 6758 Members of the Judiciary without prejudice to the provisions of the Constitution Chairmen and Members of the Constitutional Commissions without prejudice to the provisions of the Constitution All other national and local officials classified as Grade 27 and higher under RA 6758

(d) Other offenses or felonies committed by the public officials and employees mentioned in Sec. 4(a) of RA 7975 as amended by RA 8249 in relation to their office (e) Civil and criminal cases filed pursuant to and in connection with EO Nos. 1, 2, 14-A (Sec. 4, RA 8249) 2) Concurrent original jurisdiction with SC, CA and RTC for petitions for Writs of Habeas Data and Amparo * It is a court created pursuant to the Constitution but is not considered a constitutional court. It is a trial court having the same level as that of the Court of Appeals and its decisions, whether rendered in the exercise of its original or appellate jurisdiction, are directly appealable to the Supreme Court. Regional Trial Courts 1) Exclusive original jurisdiction (a) matters incapable of pecuniary estimation, such as rescission of contract (b) title to, possession of, or interest in, real property with assessed value exceeding P20,000 (outside Metro Manila), or exceeds P50,000 in Metro Manila (c) probate proceedings where the gross value of the estate exceeds P300,000 outside MM or exceeds P400,000 in MM (d) admiralty or maritime cases where the demand or claim exceeds P300,000 outside MM or exceeds P400,000 in MM (e) other actions involving property valued at more than P300,000 outside MM or more than P400,000 in MM (f) criminal cases not within the exclusive jurisdiction of the Sandiganbayan 2) Original exclusive jurisdiction over cases not falling within the jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions 3) Original and exclusive jurisdiction to hear and decide intra-corporate controversies: (a) Cases involving devises or schemes employed by or any acts, 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 SEC

(b) Controversies arising out of intra-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 (d) Petitions of corporations, partnerships or associations to be declared in the state of suspension of payments in cases where the corporation, partnership of 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 of association has no sufficient assets to cover its liabilities, but is under the management of a Rehabilitation Receiver or Management Committee. 4) Concurrent and original jurisdiction (a) with the Supreme Court in actions affecting ambassadors, other public ministers and consuls (b) with the SC and CA in petitions for certiorari, prohibition and mandamus against lower courts and bodies in petitions for quo warranto, habeas corpus, and writ of continuing mandamus on environmental cases (c) with the SC, CA and Sandigabayan in petitions for Writs of Habeas Data and Amparo 5) Appellate jurisdiction over cases decided by lower courts in their respective territorial jurisdictions 6) Special jurisdiction over JDRC, agrarian and urban land reform cases not within the exclusive jurisdiction of quasi-judicial agencies when so designated by the SC. Family Courts 1) Petitions for guardianship, custody of children and habeas corpus involving children; 2) Petitions for adoption for 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 EO 209, otherwise known as the Family Code of the Philippines; 6) 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 PD 603, E) 56 (series of 1986) and other related laws; 7) Petitions for the constitution of the family home (Sec. 5, RA 8369); 8) Cases against minors cognizable under the Dangerous Drugs Act, as amended; 9) Violations of RA 7610, otherwise known as the Special Protection of Children Against Child Abuse , Exploitation and Discrimination Act, as amended by RA 7658 10) Cases against violence against: (a) Women which are acts of gender-based violence that result, or are likely to result in physical, sexual or psychological harm or suffering to women; and other forms of physical abuse such as battering or threats and coercion which violate a womans personhood, integrity and freedom of movement; and (b) Children which include the commission of all forms of abuse, neglect, cruelty, exploitation, violence, and discrimination and all other conditions prejudicial to their development. Note: In areas where there are no Family Courts, the above-enumerated cases shall be adjudicated by the Regional Trial Court (Sec. 17, RA 8369). Metropolitan Trial Courts/Municipal Trial Courts 1) Criminal cases (a) Exclusive original jurisdiction

i. ii.

Summary proceedings for violations of city or municipal ordinances committed within their respective territorial jurisdiction, including traffic laws offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of the kind, nature, value or amount thereof; provided however, that in offenses involving damage to property through criminal negligence, they shall have exclusive original jurisdiction thereof (Sec. 2, RA 7691).

2) Civil actions (a) Exclusive original jurisdiction i. 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 the demand does not exceed P200,000 outside MM or does not exceed P400,000 in MM, exclusive of interest, damages of whatever kind, attorneys fees, litigation expenses, and costs. 2. Summary proceedings of forcible entry and unlawful detainer, violation of rental law 3. title to, or possession of, real property, or any interest therein where the assessed value of the property or interest therein does not exceed P20,000 outside MM or does not exceed P50,000 in MM (3) Special jurisdiction over petition for writ of habeas corpus and application for bail if the RTC Judge in area is not available (4) Delegated jurisdiction to hear and decide cadastral and land registration cases where there is no controversy provided the value of the lad to be ascertained by the claimant does not exceed P100,000

ii. iii. iv. v.

Shariah Courts Equivalent to the Regional Trial Courts in rank are the Shari'a District Courts which were established in certain specified provinces in Mindanao where the Code of Muslim Personal Laws of the Philippines is being enforced. There are five Shari'a District Courts and fifty one Shari'a Circuit Courts in existence. A Shari'a District Court is of limited jurisdiction. It was created under Presidential Decree No. 1083. Cases falling within the exclusive jurisdiction of the Shari'a District Courts primarily pertain to family rights and duties as well as contractual relations of Filipino Muslims in the Mindanao. It has exclusive original jurisdiction over the following: 1) All cases involving custody, guardianship, legitimacy, paternity and filiation arising under Presidential Decree No. 1083; 2) All cases involving disposition, distribution and settlement of the estate of a deceased Muslim, probate of wills, issuance of letters of administration or appointment of administrators or executors regardless of the nature or the aggregate value of the property; 3) Petitions for declaration of absence and death and for cancellation and correction of entries in the Muslim Registries mentioned in Title VI, Book Two of Presidential Decree No. 1083; 4) All actions arising from customary contracts in which the parties are Muslims, if they have not specified which law shall govern their relations; 5) All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and all auxiliary writs and processes in aid of its appellate jurisdiction; It has concurrent original jurisdiction over the following: 1) Petitions by Muslims for the constitution of the family home, change of name and commitment of insane person to any asylum;

2) All other personal and real actions not mentioned in paragraph 1(d) wherein the parties involved are Muslims except those for forcible entry and unlawful detainer which shall fall under the exclusive original jurisdiction of the Municipal Circuit Courts; and 3) All special civil actions for interpleader or declaratory relief where the parties are Muslims or the property involved belongs exclusively to a Muslim. The Shari'a District Court has appellate jurisdiction over all cases tried in the Shari'a Circuit Courts within their territorial jurisdiction. It shall decide every case on the basis of the evidence and the records transmitted as well as such memoranda, briefs or oral arguments as the parties may submit. The decisions of the Shari'a District Courts, whether on appeal from the Shari'a Circuit Courts or not, shall be final. The Supreme Court shall, however, continue to exercise original and appellate jurisdiction over certain issues as provided by the Constitution.

OVER SMALL CLAIMS; CASES COVERED BY THE RULES ON SUMMARY PROCEDURE AND BARANGAY CONCILIATION
Cases covered by Rules on Summary Procedure (Sec. 1, RSP) 1) Civil Cases (a) All cases of forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered. Where attorneys fees are awarded, the sa me shall not exceed P20,000; (b) All other cases, except probate proceedings where the total amount of the plaintiffs claim does not exceed P100,000 (outside MM) or P200,000 (in MM), exclusive of interest and costs. 2) Criminal Cases (a) Violations of traffic law, rules and regulations; (b) Violation of the rental law; (c) All other criminal cases where the penalty prescribed is imprisonment not exceeding six (6) months, or fine not exceedint P1,000, or both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom, provided, that in offenses involving damage to property through criminal negligence, RSP shall govern where the imposable fine does not exceed P10,000. 3) SRP does not apply to a civil case where the plaintiffs cause of action is pleaded in the same complaint with another cause of action subject to the ordinary procedure; nor to a criminal case where the offense charged is necessarily related to another criminal case subject to the ordinary procedure. Cases Covered by the Rules on Barangay Conciliation 1) The Lupon of each barangay shall have the authority to bring together the parties actually residing in the same municipality or city for amicable settlement of all disputes except: (a) Where one party is the government or any subdivision or instrumentality thereof (b) Where one party is a public officer or employee, and the dispute relates to the performance of his official functions (c) Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding P5,000 (d) Offenses where there is no private offended party (e) Where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon (f) Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon

(g) Such other classes of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice (h) Any complaint by or against corporations, partnerships, or juridical entities. The reason is that only individuals shall be parties to barangay conciliation proceedings either as complainants or respondents (i) Disputes where urgent legal action is necessary to prevent injustice from being committed or further continued, specifically: i. ii. iii. iv. A criminal case where the accused is under police custody or detention A petition for habeas corpus by a person illegally detained or deprived of his liberty or one acting in his behalf Actions coupled with provisional remedies, such as preliminary injunction, attachment, replevin and support pendente lite Where the action may be barred by statute of limitations

(j) Labor disputes or controversies arising from employer-employee relationship (k) Where the dispute arises from the CARL (l) Actions to annul judgment upon a compromise which can be directly filed in court. Totality 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 claims of action, irrespective of whether the causes of action arose out of the same or different transactions (Sec. 33[1], BP 129).

CIVIL PROCEDURE
A. Actions
Ordinary Civil Actions 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. An ordinary suit in a court of justice by which prosecutes another (1) to enforce or protect a right; and (2) to prevent or redress wrong. 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. (Rule 1, Sec. 5.) Special Civil Actions Special Proceedings are remedies by which a party seeks to establish a status, a right or a particular fact. Criminal Actions A criminal action is one by which the State prosecutes a person for an act or omission punishable by law. Civil Actions vs. Special Proceedings 1) A civil action is adversarial as it involves two parties, namely the plaintiff and the defendant whereas special proceedings are not necessarily adversarial as it may involve only one party who is the petitioner. 2) A civil action is a formal demand of a right by one against another while special proceedings are but petitions for a declaration of a status, a right, or a particular fact. Thus where a party seeks to recover a property from another, his remedy is to file an action. But, where his purpose is to seek the appointment of a guardian for an insane person, his remedy is a special proceeding to establish the fact or status of insanity calling for guardianship. So, also, a petition for liquidation of an insolvent corporation is a special proceeding because what the petition seeks its merely a declaration by the

trial court of the corporations insolvency so that its creditors may be able to file their claims in the settlement of the corporations debts and obligations. (Pacific Banking Corporation Employees Organization, et al. v. CA, et al., G.R. no. 109373, March 20, 1995.) Personal and Real Actions A personal action is an action where the plaintiff seeks the recovery of personal property, the enforcement or rescission of a contract or the recovery of damages. A real action is an action affecting title to, or for the recovery of possession of, real property or any interest therein, or for partition or condemnation of, or foreclosure of a mortgage, on real property. Actions in rem, in personam and quasi in rem An action in rem is an action against who might be minded to make an objection of any sort against the right sought to be established. The judgment render in such cause of act action binds the whole world. It is an action against the thing itself. An action in personam is an action to establish a claim against a particular person on the basis of his personal liability, and the judgment that may be rendered will bind him personally. An action quasi in rem is an action against an individual although the purpose of the suit is to subject his interest in a particular property to the obligation burdening the property. The judgment rendered in action quasi in rem is conclusive only between the parties.

B. Cause of Actions
A cause of action is the act or omission by which a party violates the rights of another (sec. 2, Rule 2, Rules of Court) Elements of Cause of Action: 1) A right in favor of the plaintiff by whatever means and under whatever law it arises or is created; 2) He An obligation on the part of the named defendant to respect or 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 an action for recovery of damages or other appropriate relief. 4) Compliance with condition precedent, i.e., prior referral of the case to the Barangay under Sections 339 to 422 of RA 7160 otherwise known as the Local Government Code of 1991 (formerly under PD 1580) or exhaustion of administrative remedies, These are not jurisdictional but their non-compliance only amounts to lack of cause of action. 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 someones rights (Philippine National Construction Corporatio n vs CA) How to Determine a Cause of Action A cause of action is determined by the facts alleged in the complaint. The only issue to be resolved in such case is: Admitting such alleged facts to be true, may the court render a valid judgment in accordance with the prayer in the complaint? (Oposa vs Factoran, 224 SCRA 792) In the determination of whether or not the complaint states the cause of action, the annexes attached to the complaint may be considered, they being parts of the complaint. (Fil-Estate vs CA, 265 SCRa 614). Right of Action vs Cause of Action Right of action is the remedial right or right to relief granted by law to a party to institute an action against a person who has committed a delict or wrong against him. Cause of Action 1. It is the cause, Right of Action This is the remedy, or

Failure to state a cause of action The mere existence of cause of action is not sufficient for a complaint to prosper. Even if in reality the plaintiff has cause of action against the defendant, the complaint may be dismissed if the complaint or pleading asserting the claim states no cause of action (Sec. 1[g], Rule 16). This means that a cause of action must unmistakably 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. Test of the sufficiency of a cause of action The test of the sufficiency of the facts alleged in the complaint constituting a cause of action is whether or not admitting the facts alleged, the court could render a valid verdict in accordance with the prayer of the complaint (Misamis Oriental II Cooperative, Inc. vs David, 468 SCRA 63). Splitting a single cause of action and its effects It is the process of dividing a claim or demand into two or more parts and bringing suit for each of these parts.

the reason why an action can be brought. 2. This is the formal statement of alleged facts. 3. This depends on substantive law for the existence and on procedural law for the effectivity and resulting processes. 4. The operative facts which give rise to right of action

means afforded, consequent effect.

or

The rule is that a party may not institute more than one suit for simple cause of action.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. In other words, the ground for dismissal is either lis pendens or res judicata. What determines singleness of cause of action? In action ex delicto, the singleness of cause of action lies in the singleness of the delict or wrong violating the right of another person. If, however, only one injury results from several wrongful acts, only one cause of action arises. (Joseph vs Bautista, et. al., G.R. NO. L-41423, February 23, 1989). In action ex contractu, the rule is: 1) For a single and divisible contract, only one cause of action arises from a single breach or several breaches; 2) For a contract providing for several obligations, each obligation not performed gives rise to a single cause of action. But if upon the filing of the complaint several obligations have already matured, all of them shall be considered as integrated into a single cause of action. (I Moran, Comments on the Rules of Court, 19 [1952].) Remedy against Splitting a Single Cause of Action: The defendant may file: 1) A Motion to dismiss on the ground of: (a) Lis pendens, if the first complaint is still pending (Rule 16, Sec.1[e]); or (b) Res Judicata, if the fist complaint is terminated by final judgment. 2) An Answer alleging either of the above-cited grounds as affirmative defense. If the defendant fails to raise these grounds on time, he is deemed to have waived them. The splitting must be questioned in the trial court; it cannot be raised for the first time on appeal. (Strong vs Repide, 22PHIL19)

5. There may be one cause of action, but several rights of action

This is the right that is given, the right to litigate because of the occurrence of the alleged facts. This depends only on the substantive law of everything; -The right to bring an action merely signifies the existence of cause of action; There is compliance with conditions precedent. This may be taken away by the running of the statute of limitations through estoppels, or other circumstances which do not effect the cause of action. These may accrue at different times from the same cause of action

Joinder and misjoinder of causes of action Joinder of cause of action is the assertion of as many causes of action as a party may have against another in one pleading alone (Sec. 5, Rule 2, Rules of Court). It is the process of uniting 2 or more demands or rights of action in one action (1 C>J.S., Actions 61) Requisites of a valid Joinder of Causes of Action: 1) The party joining the causes of action shall comply with the rules on joinder of parties; 2) The joinder shall not include special civil action or actions governed by special rules; 3) Where the causes of action are between the same parties but pertain to different venues or jurisdiction, the joinder may be allowed in the RTC provided that one of the causes of action falls within the jurisdiction of said court and the venue lies therein; and *Real and personal actions may be joined in the RTC which has jurisdiction over one of the causes of the action and venue lies therein. 4) Where the claims in all causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction. *This incorporate the TOTALITY RULE In Flores vs Philipps, 144 SCRA 377 (1986), the Supreme Court ruled that where two or more plaintiffs sue one defendant in a single complaint or one plaintiff sues several defendant in a single complaint based on several causes of action for or against each, respectively the totality rule applies only where:(a) the causes of action arose from the same transaction or series of transactions; and (b) there is common question of fact or law among them as provided in Section ^ of Rule 3 of the Rules of Court. In such case, the total amount of the claims determines jurisdiction. The application of the totality rule is subject to the requirements for the joinder of causes of action under Section 5 of Rule 2 and permissive joinder of parties under Section 6 of Rule 3 of the Rules of Court. Misjoinder of causes of action is not a ground for dismissal of an action. A misjoined cause of action may be severed or proceeded with separately.

C. Parties to Civil Action

Real Parties in interest; Indispensable parties; Representatives as parties; Necessary parties; Indigent Parties; Alternative Defendants Who May Be Parties (Section 1) 1) Plaintiff- the claiming party, the counter-claimant or the third(fourth, etc.)-party plaintiff. 2) Defendant- the original defending party, the defendant in a counterclaim (plaintiff), the crossdefendant (defendant in a cros-claim), or the third (fourth, etc.)-party defendant Who May Be Party Plaintiff or Party Defendant Natural Persons 1) Must be of legal age and with capacity to act 2) Husband and wife shall sue and be sued jointly, except as provided by law (sec. 4) Effect of non-joinder of a spouse: 1) If not joined either as plaintiff or as defendant, the complaint may be dismissed under Rule 17, Section 3 of the Rules of Court for failure to comply with the Rules; or the court may order the plaintiff to amend the complaint by joining his or her spouse as plaintiff or the spouses as defendants, and if he/she does not comply, the complaint may be dismissed under Rule 17, Section 3 of the Rules of Court for failure to comply with any order of the court for no justifiable reason.

2) Minor or incompetent (Sec. 5)- x x with the assistance of his father, mother, guardian, or if he has none, a guardian ad litem. (a) Non-resident- May a non-resident and who can not be found in the Philippines sue and be sued in Philippine Courts? He may sue. (Dilweg vs Philipps, 12 SCRA 243). By filing his complaint in a Philippine Court, a nonresident alien submits voluntarily to its jurisdiction, and said court acquires such jurisdiction even if, as a matter of fact, the alien has never been able to enter the Philippines. (Sharruz vs Bubla, 12 SCRA 79) He may be sued in the Philippines only if the suit involves the personal status of the plaintiff or the properties of the defendant found in the Philippines where the court may acquire the jurisdiction over the res but not in any other kind of action since Philippine courts cannot acquire jurisdiction over his person.

Juridical Persons (Article 44, Civil Code) 1) State and its Political Subdivisions 2) Other corporations, institutions, and entities for public interest and purpose, created by law 3) Corporations, partnerships, and associations for private interest or purpose to which the law grants a juridical personality. Isolated Transaction Rule authorizes a foreign corporation conducting an isolated business, not regular, to sue upon the isolated business, though it has no license to transact business in the Philippines. Real Party in Interest 1) Real Party in interest is one who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. (Sec. 2) (a) Interest means material interest in issue and to be affected by the judgment. (b) in the name of , not necessarily by, the real party in interest. 2) Who are the real parties in interest? (a) (b) (c) (d) The principal, in an agency, unless the agent acted on his own name; The corporation, in a corporation, not the board of directors; The Corporation Sole, like the Bishop, in the case of a church; The assignee, transferee or vendee in a case of assignment, transfer or sale made before the commencement of the action; if after, the assignor, transferor or vendor as original party may remain the real party in interest, unless the court on motion directs the person to whom the interest is transferred to be substituted or joined with the original party (Rule 3, Sec. 19), but even if there is no substitution or joinder, any judgment rendered against the assignor, transferor or vendor is binding on the assignee, transferee or vendee. The adverse judgment is binding on the successor-in-interest by title subsequent to the commencement of the action. If the judgment is in favor of the assignor, transferor or vendor, then he holds the fruits in trust for the assignee, transferee or vendee. (Hemanos vs Gutierrez, 53 PHIL 154 (1929).

Representatives as Parties (Sec. 3, Rule 3) 1) A representative party- one who is allowed by law to prosecute or defend an action for the beneficiary. (a) Under the new Rule, the beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest. (b) Who are the representatives: i. ii. Trustee of an express trust An express trust is created either by will, by a written contract or through court proceedings; Guardian

The guardian must be a regular guardian iii. iv. v. Executor or Administrator The executor of the estate of the deceased is one appointed in a will duly probated and allowed, and who is adjudged as competent, who files a bond and who is issued a letter testamentary. The administarator of the estate of the deceased is one appointed by the court because no executor has been named in the will or because the executor is disqualified or has refused. He is issued a letter of administration.

1) Party authorized by law or these Rules (The Rules of Court). These are: (a) (b) (c) (d) Assignee in insolvency; Receiver; Lessee v. Intruder; Creditor may bring an action pertaining to the thing pledged to recover from or defend it against a third person; (e) Pledgee to collect and receive credit due which has been pledged; (f) Anyone of co-owners may bring ejectment suit; (g) Third parties who are beneficiaries in an agreement or stipulations between others may bring action to enforce their rights thereunder. 2) 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. Indispensable Parties (Section 7, Rule 3) 1) Indispensable party is a party in interest without whom no final determination can be of an action; hence, he shall be joined either as a plaintiff or defendant. 2) Without the presence of an indispensable parties to a suit or proceedings, a judgment of the court can not attain real finality. (Servicewide Specialists, Inc. vs CA 251 SCRA 70). Ex. All co-owners in action for partition; possessor of land in action for recovery of possession thereof Necessary Party (Section 8, Rule 3) A necessary party is one who is not indispensable but who ought to be joined as party if complete relief is to be accorded as to those already parties, or for a complete determination or settlement of the claims subject of the action. Ex. A co-debtor in a joint obligation; subsequent mortgagees/lien holders in judicial foreclosure of mortgage Non-joinder of necessary parties to be pleaded (Section 9). Court may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained. Unjustifiable failure to comply with the inclusion order shall be deemed a waiver of the claim against such party. Non-inclusion of necessary party: 1) Does not prevent the court from proceeding in the action; and 2) The judgment rendered therein is without prejudice to the rights of such necessary party. Compulsory and Permissive Joinder of Parties Requisites of permissive joinder of parties: 1) The right to relief arises out of the same transaction or series of transactions;

2) There is a question of law or fact common to all the plaintiffs or to all of the defendants. Joinder of parties is compulsory or mandatory if parties to be joined in an action are indispensable parties. But class suit is an exception to the rule on compulsory joinder of indispensable parties. In a class suit, all those who belong to the class are indispensable parties, but not all of them need to be joined. Effects of Misjoinder and Non-Joinder 1) Not a ground for dismissal of an action; 2) Parties may be dropped or added by the court order; 3) Any claim against a party may be severed and proceeded with separately. Class Suits (Section 12, Rule 3) A class suit is a case:(1) where the subject matter of the controversy is one of the common or general interest to many persons and (2) the parties are so numerous that it is impracticable to join all as parties. The parties suing actually are sufficiently numerous and representative of the entire class and the parties suing have an actual interest in the controversy. All those who belong to class are indispensable parties, but not all of them need to be joined. Requisites of class suit: 1) The subject matter of the controversy is one of common or general interest to many persons; 2) The parties affected are so numerous that it is impracticable to join all as parties; 3) The parties brining or defending the class suit are found by the court to be sufficiently numerous and representative as to fully protect the interest of all concerned. Alternative Defendant 1) 2) 3) 4) Alternative cause of action Alternative reliefs Unknown defendant Entity without juridical personality as defendant

Indigent Party (Section 21, Rule 3) Indigent is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family. It is sufficient that they are indigent and that they have no sufficient means to prosecute or defend the action. (Acar vs Rosal, 19SCRA 625) If indigent wins, the legal fees (which he did not pay) shall be lien on any judgment if he wins, unless provided otherwise by the court. Death of Party: Duty of Counsel 1) In the case of a party to a case and the action is not extinguished, the deceased party shall be substituted by the heirs. 2) It is the duty of his attorney to inform the court within 30 days after such death and to give the names and addresses of his legal representatives. 3) The former lawyer has no authority to continue representing the deceased because upon such death, the attorney-client relationship is terminated. 4) The court cannot compel the lawyer to continue with the trial after the lawyer has notified the court of such death. Otherwise, the entire proceeding is null and void; the court would have no jurisdiction over the estate, the heirs and the executor and administrator. (Lawas vs CA, 146SCRA173).

5) So the general rule is: lawyer-client relationship is terminated upon the death of the client. The lawyers authority to appear for the client automatically ceases. Exceptions: a) When there is a contract for the lawyers service up to the final judgment; b) When the lawyers fees are on contingent basis; c) When the lawyers appearance is coupled with interest. (Reg oso vs CA, 211SCRA348). 6) Death of a Party (Section 16,20) a) If plaintiff dies during the pendency of the case, including on appeal: i. Action survives and continues Except: a. If the action is purely personal to him, such as the action for support or legal separation which is extinguished with his death. ii. Deceased plaintiff shall be substituted by legal representatives.

b) If defendant dies, the effect of his depends upon the nature of the pending action, viz: i. When the action is on contractual money claim 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 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 (Section 20). a. This new rule renders obsolete the doctrine in Paredes vs MOya (61SCRA526) and subsequent similar cases that the death of the defendant before final judgment in the trial in a pending action for money shall cause the dismissal of the case. b. Since the action survives, the deceased defendant shall be substituted by his legal representatives. c. Since the final judgment is enforceable in the manner provided in these Rules for prosecuting claims against the estate of the deceased person, Rule 86, Section 5 and Rule 87, Sec. 1 Rules of Court would apply; in such case, thje judgment creditor should file his claims, based on the money judgment, in the estate proceedings, for the settlement of the estate of the deceased defendant, d. If there is yet no estate proceedings, the plaintiff may initiate the same and file his claim therein. e. If the defendant dies after entry of final judgment and a writ of execution has been issued but the sheriff has not yet levied any of the properties of the deceased defendant, the sheriff shall not proceed with levy; instead, plaintiff should file a money claim in the estate proceedings for the settlement of the estate of the deceased defendant, using the money judgment as proof of the basis of the claim. (Rule 86, Sec. 5) f. If there is yet no estate proceeding, plaintiff may initiate the same and file his claim therein. g. If defendant dies after entry of final judgment and levy on his property, then the judgment shall be enforced by a writ of execution (Rule 39, Section 7(c) by proceeding with the sale of the levied property of the deceased defendant. ii. If the action against defendant is for recovery of real or personal property or to enforce a lien on real or personal property, like acting to foreclose a real estate or chattel mortgage, the action survives and shall continue. The deceased must be substituted by his heirs or legal representatives.

When the judgment against the defendant becomes final and executor, said judgment can be enforced or executed against the executor or administrator of the estate of the deceased of the defendant.

iii.

If the action against the defendant is for recovery of damages for injury to person or property and the defendant dies during pendency of the case, the action survives and shall continue. The heirs orb legal representatives of the defendant must be substituted.

If the judgment is against the defendant and has become final and executory, said judgment is actually for money so that it could be enforced against the executor or administrator. (Rule 87, Sec.1). The remedy of the plaintiff is to file the judgment as money claim in the estate proceedings for the settlement of the estate of the deceased, using the judgment as proof of the basis of such claim, and if there is yet no such estate proceeding, plaintiff may initiate it and file his claim therein. If he dies after entry of the final judgment against him and after levy was made on his property, the judgment shall be enforced by proceeding with the sale of his levied property. (Rule 39, Sec. 7(c))

7) Death of Separation of a party who is a public officer (Section 17) 8) Incompetency or Incapacity (Section 18) 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.

9) Transfer or Interest (Section 19) In case of transfer or 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.

D. Venue

Venue is the place where the action is to be commenced or instituted and tried. It relates to the place of trial and geographical location on which the action or proceeding should be brought. (Philippine Banking Corp. vs Tensuan, supra). Venue 1. Place where the action is to be instituted and tried; 2. May be waived; Jurisdiction Power of court to try and decide a case; Jurisdiction over the subject matter or nature of the action is conferred by law and, therefore, can not be waived; Substantive; Cannot be the subject of an agreement of the parties.

3. Procedural; 4. May be changed by a written agreement of the parties. Venue of real actions

Venue of real actions shall be where the property is located, or a portion thereof is situated (Section 1, RULE 4) Action for annulment of extrajudicial foreclosure sale of real property is a real action, the prime objective being to record said real property sold and is necessarily an action affecting title to the real property. Venue of said action (in the absence of trstrictive agreement to bthe contrary) is the place where the property or part thereof lies. (Fortune Motors vs CA, 178 SCRA 565).

Venue of personal actions

1) Against a resident defendant- where plaintiff resides or where defendant resides, at the election of the plaintiff; 2) Against a non-resident defendant- Where plaintiff resides or where the defendant may be found, at the election of the plaintiff. Resides in the rules on venue of personal actions means the place of abode, whether permanent or temporary, of the plaintiff or defendant, as distinguished from domicile which denotes a fixed permanent residence. In short, actual residence, not domicile or legal residence.

Venue of actions in rem or quasi in rem against non-resident 1) In actions affecting personal status of the plaintiff, the venue is the place where the residence of the plaintiff; 2) In actions affecting any property of the non-resident defendant located in the Philippines, the venue is the place where the property or any portion thereof is situated or found. When the Rules on Venue Do not Apply 1) Where the specific rule or law provides otherwise; a) Venue in specific cases: If defendant is a government official, venue is the place where he holds office. (Salud vs Executive Secretary, 28 SCRA 281) Venue of civil action for damages in case of written defamations (libel): if offended party is a public officer, venue is where he holds office or where the libelous article is printed and first published. (Sec. 1 of RA 4363) In probate proceedings, venue is the place of the last residence of the decedent or where his property or part thereof is situated if he was a non-resident of the Philippines. (Rule 73, Section 1, Rules of Court)

2) Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof. (Sec. 4(b)). Effects of Stipulations on Venue 1) By written agreement of the parties, the venue of an action may be changed or transferred from the place fixed by the rule to another. 2) Form of agreement on venue- in writing made before the filing of the action. Venue stipulation, in order to bind the parties, must have been intelligently and deliberately intended by them to exclude their case from the reglementary rules on venue. (Moles vs IAC, 169 SCRA 777).

Nature of the written agreement on venue: Mandatory- when there are restrictive or qualifying words in the agreement indicating that venue can not be laid in any place other than that agreed upon by the parties, as when the agreement is couched by the word shall. Permissive- when there are no qualifying or restrictive words in the agreement indicating that venue can not be laid in any place other than that agreed upon by the parties, as when the agreement is couched by the word may. Unenforceable- when the agreement on venue is against public policy If venue is improper, the defendant may raise such question through: 1) Motion to dismiss filed within the time for but before the filing of the answer (Rule 16, Sec.1);

2) In the answer as an affirmative defense, and thereafter the defendant may move for preliminary hearing thereon as if a motion to dismiss has been filed. (Rule 16, Sec. 6)

PLEADINGS
Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. (Sec . 1) The following are the pleadings allowed: (Sec. 2) a) b) c) d) e) f) g) Complaint Counterclaim the pleadings which assert the claim Cross-claim of a party Third (Fourth, etc.)-party complaint Complaint-in-intervention Answer the pleading which alleges the defenses to the pleading asserting a claim Reply the pleading which responds to the answer

1. Kinds of Pleadings A. COMPLAINT the pleading alleging the plaintiffs cause or causes of action. 1. The complaint is the first pleading of a party filed in court. 2. It is the pleading of the plaintiff which must be in writing. 3. Its filing in the court, together with the payment of docket fee, commences the action. 4. Its filing in the court makes out a lis pendens, even if the defendant has not yet been served with summons. 5. Its filing in court is the operative act whereby the court acquires jurisdiction over the person of the plaintiff. 6. Its filing in court abates prescription of the action subject matter of the complaint. 7. The allegations of the complaint, not those of the answer, determine the jurisdiction of the court over the subject matter of the case. a. The law on jurisdiction at the time of filing the complaint governs. b. Lack of jurisdiction over the subject matter of the complaint may be questioned by the defendant by: 1) Filing motion to dismiss on ground of lack of jurisdiction under Rule 16, Section 1 (b); 2) Filing answer to include the defense of lack of jurisdiction under Rule 16, Section 6; 3) Availing of the extraordinary remedies of Certiorari and/or prohibition in proper cases. 8. The complaint must state a cause of action by allegation of ultimate facts upon which the party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts. xxx (Rule 8, Sec. 1) a. Remedies against a complaint which does not state a cause of action: 1) Motion to dismiss on said ground (Rule 16, Sec. 1 [g]); 2) Answer to include said ground as affirmative defense (Rule 16, Sec. 6); 3) At the trial, object to plaintiffs evidence which tends to prove a cause of action not alleged in the complaint: (a) If no objection from the defendant and the plaintiff succeeds in proving it, the defect is cured by evidence; (aa) Amendment to conform to evidence, but not mandatory (Rule 10, Sec. 5) 9. The complaint must specify the reliefs sought (in the prayer), but it may add a general prayer for such further or other relief as may be deemed just or equitable (Rule 7, Sec. 2 [c]). 10. The complaint shall be dated (Rule 7, Sec 2 [d]), signed by the party or his counsel, stating in either case his address which should NOT be a post office box (Rule 7, Sec. 3). 11. The complaint must be filed within the prescriptive period of filing the action. a. See laws on prescription of actions otherwise known as Statute of Limitations in the Civil Code and other applicable laws. 12. If the cause of action in the complaint is based on as actionable document, plead it properly as required (Rule 8, Sec 7).

a. Actionable document is one which is really the basis of claim/action or defense. Example: Promissory note, deed of sale, written contract But, letters written by the parties to each other regarding the actionable document are not so. They are merely evidentiary of the existence of said document. b. How to plead actionable document as basis of the action (Rule 8, Sec . 7): 1) Set forth the substance of said document in the complaint; AND 2) Attach the original document or a copy thereof to the complaint as an exhibit (which shall be considered as part of the complaint); OR said copy may with like effect, be set forth in the complaint. In other words, copy the document verbatim in the complaint. c. Remedies in case of failure of the plaintiff to comply with the manner of pleading actionable document: 1) Motion to dismiss (Rule 17, Sec. 3) on the ground that the plaintiff failed to comply with these Rules, meaning, the Rules of Court; or 2) Motion for an order to require the plaintiff to comply with the Rules and if he is ordered and does not comply, file a motion to dismiss his complaint for failure to comply with any order of the court. d. If complied with, defendant must specifically deny under oath in his answer, if he has to, the genuineness and due execution of the actionable document; otherwise, he is deemed to have admitted that said document is genuine and duly executed: Except: 1) If the defendant does not appear to be a party thereof; Example: Party dies, heirs substituted no need for them to deny under oath; 2) Even if a party but his request for inspection of the original instrument is refused by plaintiff; 3) When the instrument is NOT the basis of the action but merely evidentiary of the claim (or defense); 4) When plaintiff waives the benefit of implied admission by presenting evidence of genuineness and due execution; 5) When defendant proves forgery of the document and plaintiff does not object. e. Defenses cut-off from defendant who fails to specifically deny under oath the genuineness and due execution of actionable document pleaded in the complaint: 1) Those that are related to and inconsistent with due execution and genuineness, like (a) Forgery; or (b) Unauthorized signature f. Defenses not affected or cut-off by defendants failure to deny under o ath the actionable document of the complaint: 1) Prescription 2) Estoppel 3) Fraud (not forgery) 4) Mistake 5) Lack of consideration 6) Compromise 7) Payment 8) Use of Force or Intimidation 9) Insanity 10) Minority, etc. Reason: They have nothing to do with the genuineness and due execution of the instrument. 13. The complaint must be sufficient. a. Test of sufficiency of complaint upon admission of proof of the facts alleged in the complaint, may a judgment be properly rendered against the defendant? If so, the complaint is sufficient. b. Guidelines to satisfy the Test of Sufficiency of complaint: To satisfy both formal and substantial demands for sufficiency, the following guidelines are suggested in the preparation of a complaint: 1) The facts showing the capacity of the plaintiff and the defendant must be averred. (Rule 8, Sec. 4). 2) The allegations of the complaint must be in methodical and in logical form and should be concise and direct statements of the ultimate facts constituting the claim or cause of action. (Rule 8, Sec. 1).

3) If the complaint contains two or more causes of action, each must be set forth separately and prefaced first cause of action, second cause of action and so on for the others. The allegations in one cause of action, however, may be incorporated in the other by reference. (Rule 7, Sec. 2 [b]). 4) The allegations must be divided into paragraphs so numbered as to be readily identified and as far as possible, each paragraph must contain a single set of circumstance. (Rule 7, Sec. 2[a]). 5) When an action is based on a written instrument the substance thereof must be set forth in the body of the complaint and the original or a copy of the same should be attached to the complaint as an annex, or said copy may, with like effect be set forth in the complaint. (Rule 8, Sec. 7). 6) If the nature of the cause of action is such that the performance of a condition precedent is necessary for the accrual of the cause of action, a general averment of the happening or performance of all conditions precedent (Rule 8, Sec. 3) or the legal excuse for its non-performance should be alleged in the complaint. 7) Averments of the circumstances constituting fraud or mistake must be alleged with particularity, but malice, intent, knowledge or other conditions of the mind of a person may be averred generally. (Rule 8, Sec. 5). 8) The complaint, under all circumstances, must state the facts truthfully in a direct and positive manner, not hypothetically and contingently. 9) The prayer for relief must be consistent with the allegations of the cause of action asserted in the complaint. To make the relief sought comprehensive, it must include such other reliefs as the court may deem just and equitable in the premises so that it may justify extension of a relief not otherwise specifically prayed for. (Schenker v. Gemperle, 5 SCRA 1042). Relief in equity is allowed because Philippine courts are courts of both law and equity. (see BALGOS, Handbook on the Law on Pleadings, 1983 Edition, pp. 32-33) 14. Certification Against Forum Shopping (Rule 7, Sec. 5) a. The Certification to prevent forum shopping or multiple filing of complaint or other initiatory pleadings must be under oath. b. Effect of failure to comply with the requirement: 1) not curable by amendment of said pleading; 2) shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. c. Effect of submission of false certification or non-compliance with the undertakings therein: 1) indirect contempt; 2) administrative and criminal actions. d. Effect of willful and deliberate forum shopping: 1) summary dismissal of pleading with prejudice; 2) direct contempt; 3) administrative sanction. e. The certification must be by the party himself, not by his counsel, unless the latter is authorized by a power of attorney executed by the client for him to do so. B. ANSWER a pleading in which a defending party sets forth his defenses. (Sec. 4) 1. It is the second pleading filed by a party in court. 2. It is the pleading of the defendant which must be in writing. 3. It must comply with the substantive and procedural requirements under Rules 7 and 8, like the complaint. 4. It must be filed with the court where the complaint is filed. 5. A copy of the answer must be served to plaintiff or his counsel. 6. If the defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and concisely stated. (Rule 8, Sec. 1). o Functions of the Answer to define the issues and to show why plaintiff is not entitled to judgment. This is accomplished where the defendant sets forth the NEGATIVE and AFFIRMATIVE defenses. Two kinds of defenses which may be set forth in the answer:

1) Negative Defenses specific denial of the material facts alleged in the pleading of the claimant essential to his cause. (Sec. 5[a]). a) Three (3) modes of specific denial under the Rules: 1. 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. This kind of denial is known as absolute denial. (Rule 8, Sec. 10). Example: contract of sale not true, actually a mortgage. 2. 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. This kind of denial is known as partial denial. (id). 3. 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 specific denial. This type of specific denial is known as denial by disavowal of knowledge. (id). Danger: If within defendants knowledge and he denies for lack of knowledge, it is a denial in bad faith and amounts to admission. It must, therefore, be availed of with sincerity and good faith. b) Insufficient denials or denials amounting to admissions: 1. General denial. 2. Denial in the form of negative pregnant a denial which at the same time involves as affirmative implication favorable to the opposing party, and is thus an admission of an averment to which it is directed. It is a literal denial pregnant with admission. 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. Matters not deemed admitted by the failure to make a specific denial: a) The amount of unliquidated damages (Sec. 11, Rule 8) 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, Rule 8) c) Non-material averments or allegations are not deemed admitted because only material allegations have to be denied. (Sec 11, Rule 8). 2) Affirmative Defenses allegation of new matters which, while hypothetically admitting the material allegations in the pleading of the claimant, would nonetheless PREVENT or BAR recovery by him (Sec. 5[b]). a) Affirmative defenses are in the nature of confession and avoidance. They may be: (1) fraud, (2) statute of limitations, (3) release, (4) payment, (5) illegality, (6) statute of frauds, (7) estoppel, (8) former recovery, (9) discharge in bankruptcy, and (10) any other matter of confession and avoidance. b) How pleaded? By way of confession and avoidance. Illustration: A sues B for sum of money. His complaint states: B borrowed from me P50, 000.00 to be paid on Nov. 25, 2000, now long overdue and unpaid. Bs answer: Confession Avoidance (a) While I admit said loan (b) While I admit said loan (c) While I admit said loan the action has prescribed; or the same was paid; or the same was condoned or

released. c) How will affirmative defense affect the plaintiff? Plaintiff may deny or controvert it by filing a reply; if not, the same is deemed controverted (Rule 6, Sec. 10), except in the following which should be denied under oath by way of reply, otherwise they are deemed admitted: 1. When the defendant pleads USURY as a defense (Rule 8, Sec. 11); (no longer applies as the Usury Law has been inexistent per SC decisions). 2. When the defense is based on actionable document. (Rule 8, Sec. 8). o Plaintiffs Remedy against a Defective Answer 1) Motion for judgment on the pleading where the answer fails to tender an issue or otherwise admits the material allegations of the adverse partys pleading (Rule 34), as where:

a) There is a general denial; b) The specific denial is defective, i.e., denial for lack of knowledge but made in bad faith; c) The denial is in the form of negative pregnant; d) There is express admission. 2) Motion for Summary Judgment (Rule 35) where the answer on its face tenders an issue but plaintiff can prove, by use of affidavit or admission or deposition that there is no genuine issue as to any material fact; in other words, such issue (as it appears in the answer) is SHAM or FALSE. But, defendants answer may be corrected by amendment. o Answer, generally, must be in formal form. But in Cayetano v. Ceguerra, 13 SCRA 73, 30 January 1965, it was held that A letter stating defenses addressed to the Clerk of Court is considered sufficient; and the defendant cannot be declared in default. Motion to dismiss is not an answer. But in Epang v. Ortin, 17 May 1955, if the motion to dismiss raises issues which go into the merit of the case, it can be considered as an answer and the defendant cannot be declared in default.

C. COUNTERCLAIMS any claim which a defending party may have against an opposing party. (Sec. 6). Counterclaim may be asserted against an original counter-claimant. (Sec. 9). This is known as countercounterclaim. Kinds of Counterclaim: 1. Compulsory (Sec. 7) 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 partys claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. a) It must be within the jurisdiction of the court both to the amount and nature thereof; (i) Except that in original action before the RTC, the counterclaim may be considered compulsory regardless of the amount. b) A compulsory counterclaim is barred if not set up. (Rule 9, Sec. 2) c) A party who desires to plead a compulsory counterclaim should not file a motion to dismiss. If he files a motion to dismiss and the complaint is dismissed there will be no chance to invoke the counterclaim. d) Example of Compulsory Counterclaim: A sued B for consolidation of title for failure of B to repurchase the titled property on time. B counterclaims for reformation of the Deed of Sale with repurchase claiming it only to be a mortgage. 2. Permissive on which does not arise out of the opposing partys claim or necessarily connected with the transaction or occurrence constituting the subject matter of the opposing partys claim. Not barred even if not pleaded in the answer; it may be filed as an independent action by the defendant as plaintiff, against the plaintiff as defendant. o A counterclaim must be answered within ten (10) days from service. Prevailing doctrine is to the effect that compulsory counterclaim need not be answered. o Tests to determine whether a counterclaim is compulsory or not: a) Are the issues of fact or law raised by the claim and the counterclaim largely the same? b) Would res judicata bar a subsequent suit on defendants claims, absent the compulsory counterclaim rule? c) Will substantially the same evidence support or refute plaintiffs claim as well as the defendants counterclaim? d) Is there any logical relation between the claim and the counterclaim, such that the conduct of separate trials of the respective claims of the parties would entail a substantial duplication of effort and time by the parties and the court? (Sandejas v. Ignacio, GR No. 155033, 19 December 2007) 3. EFFECT on the COUNTERCLAIM when the COMPLAINT is DISMISSED a) Sec. 6, Rule 16 contemplated a situation wherein the defendant does not file a motion to dismiss. Instead, he files an answer and utilizes certain grounds for a motion to

dismiss as affirmative defenses. Included in the answer is a counterclaim. He then asks for a preliminary hearing on the affirmative defenses set up, a request granted by the court. During the hearing on the affirmative defenses, the court decides to dismiss the complaint. If the complaint is dismissed, the counterclaim, compulsory or permissive is not dismissed. Sec. 6, Rule 16 is explicit: 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. b) Under Sec. 2, Rule 17, the plaintiff himself files a motion to dismiss his complaint after the defendant has pleaded his answer with a counterclaim. The motion is granted by the court. 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. c) Under sec. 3, Rule 17, the complaint is dismissed through the plaintiffs fault and at a time when a counterclaim has already been set up. Like the first two situations, the dismissal is without prejudice to the right of the defendant to prosecute his counterclaim in the same or separate action. D. CROSS-CLAIM 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. Such crossclaim 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 cross-claimant. (Sec. 8). 1. A cross-claim may be filed against an original cross-claimant. (Sec. 9). This is known as counter-cross-claim. 2. A cross-claim is always compulsory because it arises out of the transaction or occurrence sued upon in plaintiffs complaint, or defendants counterclaim; if not, it is not proper and must not be allowed. 3. A cross-claim not set up is barred. (Rule 9, Sec. 2). 4. Cross-claim must be answered within 10 days from service (Rule 11, Sec. 4); otherwise, there will be default. 5. Cross-claim distinguished from Counterclaim a. against a co-party a. against an opposing party b. must arise out of or is connected with the transaction or occurrence sued upon in plaintiffs complaint or defendants counterclaim; hence, it is always compulsory. b. may not arise from such transaction or occurrence, as in permissive counterclaim.

E. THIRD (FOURTH, ETC.)-PARTY COMPLAINT is a claim that a defending party may, with leave of court, file against a person not party to an action, called third (fourth, etc.)-party defendant, for: a) Contribution, b) Indemnity, in respect of his c) Subrogation, or opponents claim d) Any other relief 1. Leave of court is necessary. Is compliance with Rule 7, Sec. 5 re forum shopping required? It is submitted that it is required because it is an initiatory pleading as to the third -party defendant. 2. Summons to new party (third, fourth, etc.)-party defendant is needed for the court to obtain jurisdiction over his person, since he is not an original party. 3. A third (fourth, etc.)-party defendant may allege in his answer his: a) Defenses; b) Counterclaims or cross-claims; c) Including such defenses that the third (fourth, etc.)-party plaintiff may have against the original plaintiffs claim; d) In proper cases, he may also assert a counterclaim against the original plaintiff in respect of the latters claim against the third-party plaintiff. (Rule 6, Sec. 13)

4. Where a complaint is dismissed, the third party complaint filed by the defendant is also dismissed. But if the plaintiff appeals the dismissal, the defendant-third party plaintiff must also appeal so he could get an affirmative relief. F. COMPLAINT-IN-INTERVENTION 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 intervenes is one who is not originally impleaded in the action (First Phil. Holdings Corp v. Sandiganbayan, 253 SCRA 30; Rule 19, Rules of Court).

o Requisites for Intervention 1. 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. 2. The movant must show in his motion that he has a (1) legal interest in (a) the matter in litigation, (b) the success of either of the parties in the action, or (c) against both parties; 3. 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, Rule 19); and 4. That the intervention must not unduly delay or prejudice the adjudication of the rights of the original parties and that the intervenors rights may not be fully protected in a separate proceeding (Mabayo Farms, Inc. v. CA, GR No. 140058, 1 August 2002; Acenas II v. CA, 247 SCRA 773). o 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-inintervention. If the pleadings seek to unite with the defending party in resisting a claim against the latter, he shall file an answer-in-intervention (Sec 3, Rule 19); 2. The motion and the pleading shall be served upon the original parties; 3. 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 courts (Sec 4, Rule 19). o The motion to intervene may be filed at any time before rendition of judgment by the trial court. (Sec 2, Rule 189) Hence, intervention after trial and decision can no longer be permitted. (Yau v. Manila Banking Corp, GR No. 126731, 11 July 2002)

G. REPLY 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. (Sec. 10). 1. A reply is a pleading of the plaintiff. 2. Generally OPTIONAL. Failure to reply, the new matters in the answer are deemed controverted. But COMPULSORY where it is necessary to deny under oath the following: a) defense in the answer based on actionable document (Rule 8, Sec. 8); b) allegation of usury in a complaint to recover usurious interest. (Rule 8, Sec. 11). 3. Reply is not proper when the plaintiff admitted, expressly or impliedly, the new matter, as when he files a motion for judgment on the pleading. 2. Pleadings allowed in small claim cases (1) 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 5, A.M. No. 08-8-7-SC)

Pleadings allowed in cases covered by the rules on summary procedure a. Complaint; b. Compulsory counterclaim; c. Cross-claim pleaded in the answer; and d. Answers thereto. (Sec 9, IV, Rules on Summary Procedure) 3. Parts of a Pleading a) Caption the caption contains the following: 1. Name of the court 2. Title of the action name of parties and their respective participation in the case 3. Docket number, if assigned. (Sec 1, Rule 7) b) The Body the body of the pleading sets forth its designation, allegations of the partys claims or defenses, the relief prayed for, and the date of the pleading. (Sec2, Rule 7) 1. Paragraphs (Sec 2 [a]) 2. Headings (Sec 2 [b]) 3. Reliefs (Sec 2 [c]) 4. Date of the Pleading (Sec 2 [d]) c) Signature and address 1. Every pleading must be signed by the party or his counsel; - unsigned pleading has no legal effect 2. Indicating his address which should NOT be a post office box. (Sec 3, Rule 7) d) Verification General Rule: Pleadings need not be under oath, verified or accompanied by affidavit. Exception: When otherwise specifically required by law or rule. The following pleadings must be verified: 1. Petition to take deposition before action; (Rule 24, Sec 1) 2. Petition for Relief from Judgment; (Rule 33, Sec 3) 3. Appeal by Certiorari from CA to SC; (Rule 45, Sec 1) 4. Application for Preliminary Injunction or Temporary Restraining Order; (Rule 58, Sec 4) 5. Application for Appointment of a Receiver; (Rule 59, Sec 1) 6. Petition for Certiorari, Prohibition, or Mandamus; (Rule 65) 7. All pleadings of forcible entry and unlawful detainer; (Rule 70, Sec 1) 8. Petition for Appointment of General Guardian; (Rule 93, Sec 2) 9. Petition of Guardian for leave to sell or encumber property of estate; (Rule 95, Sec 1) 10. Petition to declare competency of ward; (Rule 97, Sec 1) 11. Application for Writ of Habeas Corpus; (Rule 102, Sec 3) 12. Petition for Change of name; (Rule 103, Sec 2) 13. Petition for Voluntary dissolution of corporation; (Rule 104, Sec 1) 14. Petition to Correct entries in civil registry; (Rule 108, Sec 1) 15. Pleadings in summary procedure. Sec 3, B, Revised Rules on Summary Procedure) o How a pleading is verified a pleading is verified by an affidavit. This affidavit declares that (a) the affiant has read the pleading, and (b) that the allegations therein are true and correct of his personal knowledge or based on authentic records (Sec 4, Rule 7) While not required to be verified in the manner and form prescribed in Sec 4, Rule 7, the following must be under oath: a. Denial of genuineness and due execution of actionable document; (Rule 8, Sec 8) b. Denial of allegations of usury; (Rule 8, Sec 11) c. Motion to set aside order of default; (Rule 9, Sec 3[b]) d. Answer to written interrogatories; (Rule 25, Sec 2) e. Answer to request for admission, (Rule 26, Sec 2) Supporting Affidavit (or Affidavit of Merit) is required in the following: a. Motion for summary judgment or opposition thereto; (Rule 35, Secs. 1, 2, 3 and 5) b. Motion for new trial on the ground of fraud, accident, mistake or excusable negligence (FAME), or opposition thereto; (Rule 37, Sec 2) c. Motion for new trial based on newly discovered evidence; (Rule 37, Sec 2) d. Affidavit of third-party claim on levied property; (Rule 39, Sec 16) e. Proof required of redemptioner; (Rule 39, Sec 30) f. Complaint with prayer for preliminary attachment; (Rule 57, Sec 3)

g. Affidavit of third party claim on attached property; (Rule 57, Sec 14) h. Motion to dissolve preliminary injunction on ground of irreparable damage to movant while the adverse party can be fully compensated; (Rule 58, Sec 6) i. Complaint for replevin; (Rule 60, Sec 2) j. Claim against the estate of decedent. (Rule 86, Sec 9) e) Certification against forum shopping 1. Required only for complaint or initiatory pleading. 2. The certification may be in the complaint or in a sworn statement annexed thereto and simultaneously filed therewith. 3. The certification shall contain the following undertakings: a. That he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such action or claim is pending therein; b. If there is such other pending action or claim, a complete statement of the present status thereof; and c. If he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. Sec 5, Rule 7) 4. Effect of lack of certification requirement or failure to comply therewith: a. Failure to comply is not curable by mere amendment of complaint; b. Dismissal of case is without prejudice, unless otherwise provided. 5. Effect of submission of false certification or non-compliance with the undertakings: a. Indirect contempt of court b. Administrative or criminal action 6. Effect of willful and deliberate forum shopping: a. Summary dismissal (of case) with prejudice b. Direct contempt c. Administrative sanction 7. How to determine existence of 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 v. Concepcion, GR No. 153785, 3 August 2006) 8. Forum shopping exists when the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in another. Litis pendentia requires the concurrence of the following requisites: (1) identity of parties, or at least such parties as those representing the same interests in both actions; (2) identity of rights asserted and reliefs prayed for, the reliefs being founded on the same facts; and (3) identity with respect to the two preceding particulars in the two cases such that any judgment that may be rendered in the pending case, regardless of which party is successful would amount to res adjudicate in the other case. (Lim v. Vianzon, GR. No. 137187, 3 August 2006) Requirements of a corporation executing the verification/certification of non-forum shopping - 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 a 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 Corp v. CA, 388 SCRA 85). Effect of the signature of counsel in a pleading the signature of a counsel in a pleading constitutes a certificate by him that: (1) he has read the pleading, (2) that to the best of his knowledge, information and belief there is good ground to support it, and (3) that it is not interposed for delay (Sec 3, Rule 7) 4.Allegations in a Pleading 1) What to allege in pleadings a. Ultimate facts (Sec 1, Rule 8) f)

they are those which directly form the basis of the RIGHT SOUGHT TO BE ENFORCED, or the DEFENSE RELIED UPON (Alizua v. Johnson, 21 Phil 308) o they are the VERY FACTS without which, for example, the cause of action stated in a complaint would be insufficient. The details or particulars of evidence do not, of course, have to be stated (De los Santos v Sheriff of Manila, 64 Phil 193) o if ultimate facts are not stated or alleged, THE CAUSE OF ACTION WOULD BE INSUFFICIENT (De los Santos v Sheriff of Manila, 64 Phil 193) - if a defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and concisely stated. (Sec 1, last par.) o b. alternative causes of action or defenses (Sec 2, Rule 8) example: (1) alternative cause of action breach of contract of carriage or tort (La Mallorca Bus Co. v. CA, 100 Phil 1048 [1957]) (2) alternative defense payment; even if not paid, action has prescribed. c. conditions precedent (Sec 3, Rule 8) example: exhaustion of administrative remedies d. Capacity (Sec 4, Rule 8) 2) Manner of Making Allegations a. (1) Fraud, mistake, condition of mind (Sec 5, Rule 8) When fraud or mistake is alleged without particularity, the other party can move for a Bill of Particulars. If not complied with, the complaint of plaintiff may be dismissed (Santos v. Liwag, 101 SCRA 327 [1980]) or the answer of the defendant may be stricken off the records and he will be declared in default. (2) Malice, intent, knowledge (Sec 6, Rule 8) May be alleged generally, subject to proof during trial. (3) Judgment (Sec 6, Rule 8) (4) Official document or act (Sec 9, Rule 8) b. Pleading an actionable document (Sec 7, Rule 8) how to plead: Allege the substance of the document in the pleading AND attach the original or copy thereof as exhibit OR copy the contents verbatim. How to contest genuineness of actionable document (Sec 8, Rule 8): deny under oath its genuineness and due execution. Genuineness signature not falsified, no substantial alteration to the document. Due execution signed by one with authority c. Specific denials (Sec 10, Rule 8) (1) how to make specific denial: i. Deny specific material allegation and set forth the substance of the matters relied upon to support the denial; ii. If only a part is denied, specify which is true and deny the remainder; iii. If denial is due to lack of knowledge or information as to the truth of a material averment, state it so, and this shall have the effect of denial. (2) allegations not specifically denied deemed (Sec 11, Rule 8) Except: amount of unliquidated damages which must always be proved. Allegations of usury in a complaint to recover usurious interest are admitted if not denied under oath. d. Striking out of pleading or matter contained therein (Sec 12, Rule 8) 1. Upon motion when to move i. to strike out a complaint anytime before answer ii. to strike out an answer anytime before reply iii. to strike out a reply within 20 days after service thereof; OR 2. Upon courts own initiative anytime. 3. What to stike i. Pleading which is sham or false, redundant, immaterial, impertinent or scandalous; or ii. Matters contained in the pleading which are sham or false, redundant, immaterial, impertinent or scandalous; or e. Matters that need not be alleged in the pleading: 1. Evidentiary or probative facts

2. Those presumed by law 3. Facts of judicial notice 4. Inferences, arguments and conclusions of law derived or inferred from the stated ultimate facts. (Ortiz v. Garcia, 15 Phil 192) f. Test of sufficiency of the pleading In a complaint, for example, if, from the facts alleged, a valid judgment may be rendered for the plaintiff, the complaint is prima facie sufficient. 5. Effect of Failure to Plead a. Failure to plead defenses and objections (Sec 1, Rule 9) (1) Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, the court shall dismiss the same when it appears from the pleading or evidence on record that: a) The court has no jurisdiction over the subject matter; b) There is another action pending between the same parties for the same cause; c) The action is barred by prior judgment or by statute of limitations. (2) Defense of prescription In civil cases, the defense of prescription is waived if not pleaded in a motion to dismiss or answer, but there are cases which held that if prescription is clear from the allegation in the complaint or the evidence presented by the plaintiff, the court can dismiss the action, motu proprio, on the ground that the prescription was not waived. (Ferrer v. Ericta, 84 SRCA 705 [1978]); Garcia v. Mathis, 100 SCRA 250 [1980]). b. Failure to plead a compulsory counterclaim and cross-claim (Sec 2, Rule 9) - barred if not set up 6. Default 1. Who may be declared in default? The defending party. Who is a defending party? a. The original defending party (defendant in the complaint); b. The defendant in the counterclaim; c. The cross-defendant; d. The third (fourth, etc)-party defendant. 2. Ground of Order of Default: Failure of the defending party to answer within the time allowed therefore. (see Rule 11) a. A motion for extension to file answer is defective if it does not contain any notice of date and place of hearing. (Meralco v. La Compana Food Products, Inc. 63 SCAD 395, 247 SCRA 77 [1995]). b. No default for failure of the defendant to appear at pre-trial despite due notice; his failure shall be cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof. (Rule 18, Sec 5) 3. Procedure a. Filing by claiming party of a motion to declare the defending party in default with notice to the defending party. 1) Court cannot declare motu proprio a defendant in default (Via Crucis v. Estenzo, 5 SCRA 560 [1962]); 2) Default applies also where no answer is made to counterclaim, cross-claim, or third-party complaint within the period provided in the rules; 3) The defending party must be served with notice of the motion declaring him in default. This abandons the doctrine that defendant who fails to file an answer within the time provided by the Rules of Court is already in default and is no longer entitled to notice of the motion to declare him in default. (Meralco v. La Compana Food Products, Inc. 63 SCAD 395, 247 SCRA 77 [1995]). b. Hearing of motion at which defending partys failure to answer must be shown; c. Issuance by the court of Order of Default; d. Rendition of judgment by default 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. 1) This new rule abandons the doctrine that the plaintiff must present evidence because default does not mean that the defendant admitted the allegations in the complaint. (Pascua v. Florendo, 136 SCRA 208 [1985])

2) The judgment cannot exceed the amount or be different in kind from that prayed for nor award unliquidated damages. (Sec 3 [d], Rule 9) 3) Defendant in default is entitled to notice of motion for execution pending appeal. 4) (Garcia v. CA, 209 SCRA 732 [1992]). 4. Order of Default distinguished from Judgment by Default issued by the court, on motion of issued by the court after the defending plaintiff, for failure of defending party to party has been declared in default, or after file responsive pleading seasonably the evidence of the claimant has been received ex parte if required by the court to present such evidence

5. EffEffect of order of Default (Sec 3[a], Rule 9) A party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial.

6. Right of a party in Default A party in default is entitled to the following: a) Notice of the motion to declare him in default (Sec 3, Rule 9); b) Notice of subsequent proceedings (Sec 3[a], Rule 9); c) Notice of the order declaring him in default (Sec 3[b], Rule 9); d) Set aside order of default (id); e) Service of final orders and judgment because this is the basis of his right to appeal; f) To appeal from the judgment by default. 7. Relief from the Order of Default (Sec 3[b], Rule 9); a) If order of default was proper: i. Motion to Set Aside Order of Default due to fraud, accident, mistake or excusable negligence (FAME) (1) With affidavit re FAME and may be combined (2) With affidavit of merit in one affidavit ii. Certiorari against the Order denying the Motion to Set Aside Order of Default under Rule 65, if denial is with grave abuse of discretion amounting to lack or excess of jurisdiction. b) If order of default was not proper: i. Motion to set aside order of default, citing improper declaration of default; or ii. Certiorari under Rule 65 against the Order of Default or against the Order denying the Motion to Set Aside the Order of Default if the Order was issued without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or in excess of jurisdiction. 8. Remedy from Judgment by Default If there is already a Judgment by default: a) File motion for new trial on the ground of FAME of motion for reconsideration on the grounds of award of excessive damages, insufficiency of evidence to justify the decision, or that the decision is against the law (Rule 37, Sec 1); or b) Appeal from the judgment by default (Rules 40 & 41) and in the appeal, assign as an error the denial of the motion to set aside the order of default; c) Petition for relief from judgment under Rule 38, if no appeal was taken from the judgment by default without fault of defaulted party; d) Certiorari as a special civil action under Rule 65 also against the judgment by default if it is void for lack of jurisdiction. i. Certiorari is a more speedy and efficacious remedy to have the judgment by default be set aside as a nullity where a party has been illegally declared in default. (Gerales v. CA, 218 SCRA 638 [1993]) ii. But, under ordinary circumstances, the proper remedy of a party wrongfully declared in default is either to appeal from the judgment by default or to file a petition for relief from judgment, and NOT certiorari. (Pacete v. Carriaga, 49 SCAD 673, 231 SCRA 321 [1994]). A default judgment is an adjudication on the merit and is, thus, appealable. Since appeal is the proper remedy, the extraordinary writ of Certiorari will not lie. (Jao & Co. v. CA, 66 SCAD 676, 251 SCRA 391 [1995]). e) Action for annulment of judgment by default (Rule 47)

i. ii.

If based on extrinsic fraud, within four (4) years from its discovery; If based on lack of jurisdiction, before it is barred by laches or estoppels.

9. Effect of partial default (Sec 3[c], Rule 9) 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 upon the evidence presented. For the court to try the case against all defendants upon the answer of some, the following requisites must concur: a. The pleading asserting a claim states a common cause of action against several defending parties (i.e., suit against solidary debtors); and b. Some of the defending parties answer and the others fail to do so; c. The answer interposes a common defense (i.e., payment by any of the solidary debtors). If defense is personal to the one who answered, it does not benefit those who did not answer (i.e., minority, incapacity, or forgery of his signature). 10. Default in counterclaim, cross-claim and third (fourth, etc.)-party complaint There is default in counterclaim, cross-claim and third (fourth, etc.)-party complaint since all these need to be answered. (Rule 11, Secs 4 & 5) 11. Extent of relief to be awarded [in the judgment by default] (Sec 3[d], Rule 9) 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. Question: Can the court do both in multiple causes of action alleged in the complaint, i.e., grant relief in one or more causes of action and hear plaintiffs evidence on the other causes of action? In the latter case, can the court award unliquidated damages alleged in the complaint and proved by the plaintiff s evidence despite Sec 3 [d] that the judgment in default shall not award unliquidated damages? A negative view can bring about unpleasant, if not disastrous, effect upon the plaintiff where the defendant in a suit purely or principally for unliquidated damages may simply allow himself in default and avoid award of such unliquidated damages against him. 12. No default in the following actions (Sec 3 [e], Rule 9) a. Annulment of marriage; b. Declaration of nullity of marriage; c. Legal separation. 13. No default also in Special Civil Action of Certiorari, Prohibition, Mandamus where comment, instead of answer, is required. (Rule 65, Secs 6 & 8). 7. Filing and Service of Pleadings I. Payment of docket fees 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 (Proton Pilipinas Corp v. Banque National de Paris, 460 SCRA 260) II. Filing versus service of pleadings Filing ... to the clerk of court Service ... upon the party or his counsel if he has appeared by counsel, unless service upon the party himself is ordered by the court. (Sec 2, Rule 13) III. Periods of filing of pleadings A. Answer to the complaint 1. Within fifteen (15) days after service of summons, unless a different period is fixed by the court (Sec 1, Rule 11) 2. In case the defendant is a foreign private juridical entity (Sec 2, Rule 11): a. If it has a resident agent within 15 days after service of summons to him; b. If it has NO resident agent, but it has an agent or an officer in the Philippines within 15 days after service of summons to said agent or officer. c. If it has no resident agent nor agent nor officer in which case service of summons is to be made on the proper government office [Central Bank in case of foreign private banks, Insurance Commissioner in case of foreign insurance private companies, Secretary of Trade and Industry in case of other foreign private companies] which will then send a copy by registered mail to the home office of the foreign private corporation within 30 days after receipt of summons by home office of the foreign private entity.

B.

C. D.

E. F.

G. It shall be

3. 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. (Rule 14, Sec 15) Answer to amended complaint (Sec 3, Rule 11) 1. If amended as a matter of right (before service of answer) within 15 days after being served with copy thereof; 2. If amended not as a matter of right (after service of answer to the original complaint): a. Within 10 days from notice of the order admitting the same; b. An answer earlier filed (before the amendment) may serve as answer to the amended complaint if no new answer is filed. Answer to counterclaim or cross-claim (Sec 4, Rule 11) within 10 days from service of the claim Answer to third (Fourth, etc)-party complaint (Sec 5, Rule 11) 1. Same period for an answer to the complaint (see above), the third party defendant being not yet under the jurisdiction of the court. 2. When a new party defendant is brought for complete relief, he must also be served with summons. Then he has the same period to answer as those fixed for answer to the complaint. Reply (Sec 6, Rule 11) 1. Within 10 days from service of the pleading responded to. The rule says may be filed, hence, reply is optional. Answer to supplemental complaint (Sec 7, Rule 11) 1. Within 10 days from notice of the order admitting the same, UNLESS a different period is fixed by the court. 2. If no new or supplemental answer is filed the answer to the complaint shall serve as answer to the supplemental complaint. Existing counterclaim or cross-claim (Sec 7, Rule 11) contained in the answer:

1. Otherwise, barred. (Rule 9, Sec2) 2. But, if not set up trough oversight, inadvertence, or excusable neglect, or when justice requires, it may, by leave of court, be set up by amendment before judgment (Sec 10, Rule 11). H. Counterclaim or cross-claim arising after answer (Sec 9, Rule 11) 1. May, with the permission of the court, be presented by supplemental pleading before judgment. I. Motion to extend period to plead (Sec 11, Rule 11) 1. The time to plead set by the rules cannot be shortened but it can be extended by the court on timely motion of a party on good ground. 2. Motion to extend period to plead must be made in writing in accordance with Rule 15 on Motions and before the lapse of the period. After the lapse of said period, the court can receive the motion only on its discretion. 3. In Amante v. Sunga, 64 SCRA 192 (1975), Motion to Extend is considered non-litigious motion, and so it can be granted ex parte. However, in Meralco v. La Compana Food Products, 63 SCAD 395, 247 SCRA 77, it was held that the motion for extension of time to file answer is a pro forma motion because it did not contain a notice of hearing. 4. The court may, upon such terms as may be just, allow an answer or other pleadings to be filed after the time fixed by the Rules. a. An order which allows the filing of a late answer is interlocutory and, therefore, unappealable. (De Ocampo v. Republic, 9 SCRA 440 [1963]) IV. Manner of filing (Sec 3, Rule 13) 1. By presenting the original copies thereof, plainly indicated as such personally to the clerk of court; or 2. By sending them by registered mail. Modes of service 1. Personal service (Sec 6, Rule 13) a. By delivering personally a copy to the party or his counsel (actual personal service) (1) Service to the party is allowed only if he is not represented by counsel, unless service upon the party himself is ordered by the court (PNB v. CA, 62 SCAD 783, 264 SCRA 305) b. By leaving a copy in his office with his clerk or with a person having charge thereof.

V.

(2) If no person is found in his office or if his office is not known, or he has no office, then by leaving the copy between 8 a.m. and 6 p.m. at the partys or counsels residence, if known, with a person of sufficient age and discretion then residing therein. (constructive personal service) 2. Service by mail (Sec 7, Rule 13) By registered mail, or by ordinary mail if no registry service exists in the locality of either the sender or the addressee. 3. Substituted service (Sec 8, Rule 13) By delivering the copy to the Clerk of Court with sufficient proof of failure of both personal service and service by mail. 4. Service of judgments , final orders, or resolutions (Sec9, Rule 13) a. By personal service (actual or constructive) b. By registered mail [not by ordinary mail] because these orders/judgments are appealable and so the date of receipt (evidenced by the registry return card or the acknowledgment of receipt in the postal registry book) must be ascertained. c. By publication, only when the party was also summoned by publication (under Rule 14, Secs 14 & 15) and he did not appear. 5. Priorities in modes of service and filing (Sec 11, Rule 13) 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. 6. When service is deemed complete/ Proof of filing and service (Secs 10, 12, 13, Rule 13) 1. Personal service a. Completeness upon actual receipt b. Proof of filing: i. its existence in the records of the case; ii. if not in the record, by the written or stamped acknowledgment of its filing by the clerk of court on copy of the same. c. Proof of service: i. written admission of the party served; or ii. the official return of the server; or iii. affidavit of the party serving, containing a full statement of date, place and manner of service. 2. Ordinary mail a. Completeness upon the expiration of ten (10) days after mailing, unless the court otherwise provides. b. Proof of filing no filing by ordinary mail (Sec 3, Rule 13) c. Proof of service affidavit of the person mailing of facts showing compliance of Sec 7, Rule 13, i.e., by depositing the copy in the post office, in a sealed envelope plainly addressed to the party or his counsel at his office, if known, with postage fully prepaid, and with instruction to the postmaster to return the mail to the sender after ten (10) days if undelivered. 3. Registered mail a. Completeness: i. Upon actual receipt by the addressee (evidenced by the registry return receipt); or ii. After five (5) days from receipt of first notice of the postmaster (if no actual receipt because he did not claim his mail despite his receipt of the notice of the postmaster) whichever date is earlier. b. Proof of filing: i. Its existence in the records of the case; ii. If not in the record, by the registry and by 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 prepaid, and with instruction to the postmaster to return the mail to the sender after ten (10) days if undelivered. c. Proof of service: affidavit of the person mailing and the registry receipt issued by the mailing officer. 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. 4. Substituted service a. Completeness upon delivery of the copy, with proof of failure of both personal service and service by mail, to the Clerk of Court; b. Proof of filing no filing by substituted service; c. Proof of service written acknowledgment of the Clerk of Court of the copy delivered to him. 7. Notice of lis pendens (Sec 14, Rule 11) Recording of a notice of pendency of an action affecting the title or right of possession of real property in the Registry of Deeds of the province or city where the property is situated. 8. Amendment (Rule 10) a. Amendments in general 1) How? a) Sec 1 . . . by adding or striking out an allegation, etc.; b) Sec 7 . . . new copy of entire pleading shall be filed. 2) When? a) Sec 2 . . . once as a matter of right before responsive pleading; b) Sec 3 . . . substantial amendment by leave of court after responsive pleading; c) Sec 4 . . . formal amendment may be summarily made at any stage if no prejudice is caused to the adverse party; d) Sec 5 . . . to conform to or authorize presentation of evidence b. Amendment as a matter of right (Sec 2, Rule 10) 1. To amend a complaint,plaintiff can do so before responsive pleading is served; 2. To amend an answer, defendant can do so before answer to his counterclaim is served by plaintiff if there is counterclaim; or before reply has been served by plaintiff if answer contains no counterclaim; 3. To amend a reply, plaintiff can do so within 10 days after it is served to defendant; 4. To effect simply a formal amendment, at any stage of the action. c. Amendment by leave of court (Sec 3, Rule 10) 1. Substantial amendment (after a responsive pleading) may be made only upon leave of court, upon motion filed in court, and after notice to the adverse party, and opportunity to be heard, a) But such leave may be refused if the motion to amend was made with intent to delay. b) The provision in the old rule that leave of court may be refused if it appears to the court that the cause of action or defense is substantially altered is not carried over the new Rule. d. Formal amendments (Sec 4, Rule 10) 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. e. Amendment to conform to or authorize presentation of evidence 1. First part of the section refers to amendment to conform to evidence when issues not raised by the pleadings are tried with express or implied consent of the parties. 2. Second part of the section refers to the amendment to authorize presentation of evidence if evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings.

f.

Difference between amended pleadings and Supplemental pleadings Amended pleadings Supplemental pleadings 1. As to subject matter: Facts already existing on the date of the Facts that occurred since the date of the original pleading sought to be amended but pleading sought to be supplemented. were not pleaded due to inadvertence. 2. As to right:

Can be a matter of right as when made once before responsive pleading. 3. As to form: The party must file a new copy of the entire pleading incorporating the amendments, which shall be indicated by appropriate marks. 4. As to effect: The original pleading is replaced/superseded by the amended pleading.

Always by leave of court. Party need not file a new copy of the entire pleading since the supplemental pleading would be an entirely new pleading. The original pleading stands. The supplemental pleading is added to and forms part of the original pleading.

g. Effect of amended pleading An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader; and claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived. F. Summons

1. Nature and purpose of Summons in relation to actions in personam, in rem and quasi rem

Summons is the writ by which the defendant is notified of the action brought against him (CanoGutierrez v. Gutierrez, 341 SCRA 670; Guanzon v. Arrazanda, 510 SCRA 309) The issuance of summons is not discretionary on the part of the court or the clerk of court but is a mandatory requirement. The provisions of Sec 1, Rule 14 direct 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. In an action in personam, the purpose of summons is not only to notify the defendant of the action against him but also to acquire jurisdiction over his person (Umandap v. Sabio, Jr., 339 SCRA 243) 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 acquires jurisdiction over the person of the defendant (Habaa v. Vamenta, 33 SCRA 569) 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 v. CA, 429 SCRA 98; Biaco v. Philippine Countryside Rural Bank, 515 SCRA 106; PCI Bank v. Alejandro, 533 SCRA 738)

2. Voluntary Appearance

The court acquires jurisdiction over the persons of:

a. The plaintiff when he files his complaint with the Court. This applies even to a non-resident plaintiff when, by filing his complaint in a Philippine Court, he submits himself to the jurisdiction of said court.

b. The defendant:

In Civil Procedure: i. ii. Upon valid service of summons upon him; or By his voluntary appearance in court, Rule 14, Sec. 20 of the 1997 Rules of Court provides:

Sec. 20. Voluntary appearance. The defendants 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 voluntary appearance .

Jurisdiction over the person of the defendant is required only in an action in personam (Asiavest Limited vs. Court of Appeals, 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. Court of Appeals, 425 SCRA 98).

In Criminal Procedure: i. ii. By the voluntary appearance or surrender of the accused; and By his arrest. (Choc vs. Vera, 64 Phil. 1066).

Equivalent of Service

Voluntary appearance of defendant (Sec 20, Rule 14)

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.

This new provision renders obsolete previous ruling to the contrary.

3. Personal Service (Service in person on defendant [Sec 6, Rule 14]):

(1) By handing a copy to the defendant in person, or

(2) If he refuses to receive and sign for it, by tendering it to him.

4. Substituted Service (Sec 7, Rule 14)

If, for justifiable causes, the defendant cannot be served (by personal service) within a reasonable time, service may be effected:

(1) By leaving copies of the summons at the defendants residence with some person of suitable age and discretion then residing therein; Three (3) requisites must concur for a valid serv ice of summons to the person therein: 1. He must be a resident therein; Thus, a house guest cannot receive summons. 2. He must be of suitable age; Thus, a child of tender age cannot receive summons. 3. He must have discretion.

(2) By leaving copies at the defendants office or regular place of business with some competent person in charge thereof. 1. In Litonjua v. CA, 80 SCRA 246 (1977), it was held that substituted service should be availed of only when the defendant cannot be served promptly in person. There must be showing that efforts were made to serve summons personally upon the defendant.

5. Constructive Service [by publication] (Sec 14 & 15, Rule 14)

a. Service upon a defendant where his identity is unknown or where his 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.

The rule does not distinguish whether the action is in personam, in rem or quasi in rem. The tenor of the rule authorizes summons by publication whatever the action may be as long as the identity of the defendant is unknown or his whereabouts are

unknown. (Santos v. PNOC Exploration Corporation, GR No. 170943, 23 September 2008)

b. Service upon residents temporarily outside the Philippines (Sec 16, Rule 14)

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.

This means that whether the action is in rem, quasi in rem or in personam, service may be made upon the resident defendant but temporarily out of the Philippines by:

a) Personal service outside the Philippines as under Sec 6; or b) Publication with registered mail; or c) Any other manner the court may deem sufficient.

How about substituted service?

In Montalban v. Maximo, 22 SCRA 1070, the Supreme Court validated a summons served (by substituted service) in the residence of the defendant who was temporarily absent from the Philippines. The action is one for damages. This case should be differentiated from BPI v. Guster, 47 Phil 594, where the defendant wife was no longer considered temporarily absent as she had been living in Paris, and the Supreme Court held as not valid the substituted service of summons thru her husband.

6. Extra territorial service, when allowed (Sec 15, Rule 15)

When the defendant does not reside and not found in the Philippines and the action:

a. Affects the personal status of the plaintiff; or b. 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 c. In which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein (property in the Philippines); or d. The property of the defendant has been attached within the Philippines,

service may, by leave of court, be effected: a. Out of the Philippines by personal service as under sec 6, Rule 14; or b. By publication in a newspaper of general circulation in such places and for such time as the court may order, in which case: (1) 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 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 from notice, within which the defendant must answer.

The personal service using the procedure in Sec 6 of Rule 14 will not have the effect of acquiring jurisdiction over the nonresident defendant even if summons and the copy of the complaint are personally received by him in the country where he may be found. This is because of the rule that a nonresident 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 Espaol-Filipino v. Palanca, 37 Phil 921; Perkins v. 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 Ltd v. CA, 296 SCRA 539). Compliance with due process is actually the underlying purpose of all modes of extraterritorial service.

7. Service upon prisoners and minors

a. Service upon prisoners (Sec 9, Rule 14)

If the defendant is a prisoner, service upon said prisoner shall be effected upon him by the officer managing the jail or institution where said prisoner is confined. For this purpose, the jail manager is deemed deputized as a special sheriff.

b. Service upon minors and incompetents (Sec 10, Rule 14)

Upon minor

(1) On him personally; and (2) On his guardian or, if none, upon his guardian ad litem; or (3) On his father or mother.

Upon insane or incompetent

(1) On him personally and (2) His legal guardian or, if none, upon his guardian ad litem

8. Proof of Service (Secs 18 & 19)

a. Personal service, the return of the server; b. Publication, the affidavit of publication by the printer, and the affidavit showing that a copy of the summons and Order for publication were sent by registered mail to the last known address of the defendant.

G. Motions

1. Motions in General

a. Definition of a motion A motion is an application for relief other than by pleading (Sec. 1, Rule 15, Rules of Court).

b. Motion versus Pleadings A motion is different from a pleading. Although these two follow the same format and they both are documents asking for something from the court, a motion is about a specific issue while a pleading deals with lots of issues.

c. Contents and form of motions

1. Form All motions must be in writing. Excepted from this written requirement are those motions (a) made in open court, and (b) motions made in the course of a hearing or trial (Sec. 2, Rule 15, Rules of Court).

The Rules applicable to pleadings shall apply to written motions so far as concerns caption, designation, signature, and other matters of form.

The rules that apply to pleadings shall also apply to written motions so far as concerns caption, designation, signature and other matters of form (Sec. 10, Rule 15, Rules of Court).

2. Contents Motions are to contain the following:

1. A statement of the relief sought to be obtained; 2. The grounds upon which the motion is bases; and

The supporting affidavits and other papers. (only applies when so mandated by the Rules or when necessary to prove facts stated in the motion (Sec. 3, Rule 15 Rules of Court).

d. Notice of Hearing and hearing of motions

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. It must, therefore, be accompanied by:

i. ii.

Notice of hearing; and Proof of Service

1. 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 (Sec. 5); Otherwise, it is a mere scrap of paper and it does not interrupt the time to answer in much the same way as a pro forma motion for reconsideration which does not interrupt the period for finality of the decision. (Cledera vs. Sarmiento, 39 SCRA 552 [1971]; Firme vs. Reyes, 92 SCRA 713 [1979]); The exception of non-litigated motion: Motion to Resolve a pending incident. 2. How about a Motion for Extension of Time to File Answer?

In Meralco vs. La Campana Food Product, Inc., 63 SCAD 395, 247 SCRA 77 (1995), the Supreme Court held that a motion which does not meet the requirements of Section 4 and 5 of Rule 15 is considered a worthless

piece of paper which the Clerk of Court has no authority ty act upon. The motion in said case is a Motion for Extension of Time to File Answer. 3. As to proof of service, see Rule 13.

If the adverse party had no chance to be notified, the motion and subsequent order are not valid. (Andrada vs. CA, 60 SCRA 379 [1974]).

Where the motion is directed to the Clerk of Court, not to the parties and merely states that the same is submitted for resolution of the court upon receipt hereof, said motion is fatally defective. (Del Castillo vs. Aguinaldo, 212 SCRA 169 [1992]).

With the non-compliance of the 3-day notice rule, the trial court gravely abused its discretion in proceeding to hear and grant defendants motion to dismiss. (Ruiz vs. CA, 220 SCRA 490 [1993]).

e. Omnibus Motion rule

It is a motion attacking a pleading, order, judgment or proceeding.

The rule is a procedural principle which requires that every motion that attacks a pleading, judgment, order or proceeding shall include all grounds then available, and all objections not so included shall be deemed waived (Sec. 8, Rule 15, Rules of Court). Since the rule is subject to the provisions of Sec. 1 of Rule 9, the objections mentioned therein are not deemed waived even if not included in the motion.

These objections are: a. That the court has no jurisdiction over the subject matter; b. That there us another action pending between the same parties for the same cause (litis pendencia); c. That the action is barred by a prior judgment (res judicata) d. That the action is barred by the statute of limitations or prescription (Sec. 1, 2nd sentence, Rule 9, Rules of Court).

f. Litigated and ex parte motions

As a rule, every written motion shall be set for hearing by the applicant (Sec. 4, Rule 15, Rules of Court). This provision therefore, establishes the general rule that every written motion is deemed a litigated motion, i.e., one which requires the parties to be heard before a ruling on the motion is made by the court.

An ex parte motion, on the contrary, is one which does not require that the parties be heard and which the court may act upon without prejudicing the rights of the other party. This kind of motion is not covered by the hearing requirement of the Rules (Sec. 2, Rule 15, Rules of Court).

g. Pro-forma motions

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.

A motion for reconsideration is deemed a pro forma motion if the same does not specify the findings or conclusions in the judgment which are not supported by the evidence or contrary to law, making express reference to the pertinent evidence or legal provisions. it is settled that although a motion for reconsideration may merely reiterate issues already passed upon by the court that by itself does not make it pro forma and is immaterial because what is essential is compliance with the requisites of the Rules.

2. Motion for Bill of Particulars

a. Purpose and when applied for

1. Purpose

The purpose of the motion is to seek an order from the 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, Rule 12, Rules of Court), not 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 pretrial 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.

Although under the Rules, the defendant is required to answer the complaint within fifteen (15) days from service of summons (Sec. 1, Rule 11, Rules of Court), the defendant need not file his answer to the complaint within the required period if there are matters in the complaint, which are vague or ambiguous or not averred with sufficient definiteness. Instead, he may file a Motion for Bill of Particulars (Rule 12, Rules of Court).

2. When to file

A motion for bill of particulars is to be filed before, not after the responding to a pleading (Sec. 1, Rule 12, Rules of Court). The period to file the motion refers to the period for the filing the responsive pleading in Rule 11. Thus, where the motion for bill of particulars is directed to a complaint, the motion should be filed within fifteen (15) days after service of summons. If the motion is directed to a counterclaim, then the same must be filed within ten (10) days from service of the counterclaim which is the period provided for by Sec. 4 of Rule 11 to answer a counterclaim.

In case of a reply to which no responsive pleading is provided for by the Rules, the motion for bill of particulars must be filed within ten (10) days of the service of said reply (Sec. 1, Rule 12, Rules of Court).

b. Actions of Court

Upon receipt of the motion which the clerk of court must immediately bring it 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.

If the motion for bill of particulars is granted, the court shall order the pleader to submit a bill of particulars to the pleading to which the motion is directed. The compliance shall be effected within ten (10) days from notice of the order, or within the period fixed by the court (Sec. 3, Rule 12, Rules of Court). In complying with the order, the pleader may file the bill of particulars either in a separate pleading or in the form of an amended pleading.

The bill of particulars submitted becomes part of the pleading for which it is intended (Sec. 6, Rule 12, Rules of Court).

c. Compliance with the order and effect of non compliance

If the order is not obeyed or if there is an insufficient compliance of the order, the court has the following options:

a. to order the striking out of the pleading; b. to order the striking out of the portions of the pleading to which the order was directed, or c. to make such other order it may deem just (Sec. 4, Rule 14, Rules of Court).

d. Effect on the period to file a responsive pleading

A motion for bill of particulars is not a pleading hence, not a responsive pleading. Whether or not his motion is granted, the movant may file his responsive pleading. When he files a motion for bill of particulars, the period to file a responsive pleading is stayed or interrupted. After service of the bill of particulars upon him or after notice of the denial of his motion, he may file his responsive pleading within the period to which he is entitled to at the time the motion for bill of particulars is filed. If he has eleven (11) days to file his pleading at the time the motion for bill of particulars is filed, then he has the same number of days to file his responsive pleading from the service upon him of the bill of particulars. If the motion is denied, the he has the same number of days within which to file his pleading counted from his receipt of the notice of the order denying his motion. (Sec. 5, Rule 12, Rules of Court).

If the movant has less than five (5) days to file his responsive pleading after service of the bill of particulars or after notice of the denial of his motion, he nevertheless has five (5) days within which to file his responsive pleading (Sec. 5, Rule 12, Rules of Court).

3. Motion to Dismiss

a. Grounds

Under Sec. 1 of Rule 16 of the Rules of Court, a motion to dismiss may be filed on any of the following grounds:

(a) that the court has no jurisdiction over the person of the defending party; (b) that the court has no jurisdiction over the subject matter of the claim; (c) that the venue is improperly laid; (d) that the plaintiff has no legal capacity to sue; (e) that there is another action pending between the same parties and for the same cause; (f) that the cause of action is barred by a prior judgment or by the statute of limitations; (g) that the pleading asserting the claim states no cause of action; (h) that the claim or demand set forth in the plaintiffs 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; and (j) that a condition precedent for filing the claim has not been complied with.

b. Resolution of the Motion

1. Hearing of a motion a. arguments on question of law b. evidence on question of fact

In the resolution of a motion to dismiss, the truth of the facts alleged in the complaint are theoretically admitted, but this admission is merely hypothetical and only for the purpose of resolving the motion, and in case of denial of the motion, the movant is NOT deprived of the right to submit its own case and to present evidence. (Home Savings Bank vs. CA, 55 SCAD 858, 237 SCRA 360 [1994]).

2. Resolution of Motion After hearing, court may: a. Dismiss the action; or b. Deny the motion; or c. Order amendment of pleading. (i) court can NOT defer resolution of motion for the reason that he ground relied upon is not indubitable.

c. Remedies of the plaintiff when the complaint is dismissed

If the motion is granted, the complaint is dismissed. Since the dismissal is final and not interlocutory in character, the plaintiff has several options.

1. Depending upon the ground for the dismissal of the action, the plaintiff may simply refilethe complaint. For instance, if the ground for dismissal was anchored on improper venue, the plaintiff may file the action in the proper venue. 2. He may appeal from the order of dismissal where the ground relied upon is one which bars the refilling of the complaint like res judicata, prescription, extinguishment of the obligation or violation of the statute of frauds (Sec. 5, Rule 16, Rules of Court). Since the complaint cannot be refilled, 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 dismissal is not precluded.

d. Remedies of the defendant when the motion is denied

1.

If the motion to dismiss 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 (Sec. 4, Rule 16, Rules of Court).

As a rule, the filing of an answer, going through the usual 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 prescribes by existing rules. The order of denial, being interlocutory is not appealable by express provision of Sec. 1(b), Rule 41.

2. 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 would therefore be certiorari, prohibition or mandamus. Thus 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. 3. Jurisprudence declares: An order denying a motion to dismiss in 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. (Douglas Lu Ym vs. Gertrudes Nabua, 451 SCRA 298).

e. effect of dismissal of complaint on certain grounds

1. An order denying a motion to dismiss shall bar the refiling of the same action or claim if the dismissal shall bar the refiling of the same action or claim if the dismissal is based on any of the following grounds (Sec. 5 Rule 16, Rules of Court): (a) The cause of action is barred by a prior judgment (Sec. 1 [f], Rule 16, Rules of Court) (b) The cause of action is barred by the statute of limitations (Sec. 1 [f], Rule 16, Rules of Court) (c) The claim or demand has been paid, waived, abandoned or otherwise extinguishes (Sec. 1[h], Rule 16, Rules of Court); and (d) The claim on which the action is founded is unenforceable under the provisions of the statute of frauds (Sec. 1 [i], Rule 16, Rules of Court).

f. When grounds pleaded as affirmative defenses

If no motion to dismiss has been filed, plead any of the grounds as affirmative defenses in the answer.

Dismissal under this section shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer.

g. bar by dismissal

Where the defendant is barred from refiling the action, the remedy under the circumstances is to file an appeal because by the clear language of Sec. 5, Rule 16 the dismissal is subject to the right of appeal.

h. Distinguished from demurrer to evidence under Rule 33

Rule 16 (Motion to Dismiss) 1. As to time Before filing the answer;

Rule 33 (Demurrer to Evidence) After plaintiff has rested his case and closed his evidence; One ground only, i.e., that on the basis of the evidence presented, the plaintiff is not entitled to relief; If denied, defendant present evidence; may

2. As to grounds

10 grounds stated in Rule 16, Sec. 1;

3. As to effect

If denied, defendant answers, or else he will be declared in default; If granted, plaintiff may appeal or if subsequent case is not barred, he may refile the case.

If granted, and plaintiff appeals and the Order of dismissal is reversed, defendant loses his right to present evidence.

H. Dismissal of actions

1. Dismissal upon notice by plaintiff; Two-dismissal Rule (Sec. 1) 1. A matter of right, by mere notice, before service of answer or motion for summary judgment; a. But the notice of dismissal requires an order of the court confirming the dismissal.

2. Unless stated in the notice, the dismissal is without prejudice (of refiling), EXCEPT: a. Under the two-dismissal rule, when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim. 3. The Two-dismissal Rule Two dismissals of the same claim before a competent court will bar a subsequent action (3 rd action) on the same claim or included therein.

2. Dismissal upon motion by plaintiff; effect on existing counterclaim (Sec. 2)

1. After service of answer or motion for summary judgment, dismissal is by motion to dismiss filed by plaintiff and with approval by the court. 2. If granted, dismissal is without prejudice unless otherwise specified in the order. 3. A dismissal after service of answer of motion for summary judgment does not carry with it dismissal of a compulsory counterclaim which the defendant may opt to prosecute. 4. A class suit shall not be dismisses or compromised without the approval of the court.

3. Dismissal due to the fault of plaintiff

1. At whose instance? a. Upon motion of the defendant; or b. Upon courts own motion. c. 2. Grounds: a. Failure of the plaintiff to appear on the date of the presentation of his evidence in chief on the complaint. i. Also failure of the plaintiff to appear at the pre-trial (Insular Venneer vs. Plan, 73 SCRA 1 [1976]; Rule 18, Sec. 5). b. Failure of the plaintiff to prosecute his action for an unreasonable length of time. Examples i. Plaintiffs failure to have the case set for pre-trial and/or trial after the issues are joined. ii. Plaintiffs failure to present his evidence. c. Failure of the Plaintiff to comply with the Rules of Court Example: Failure of plaintiff to comply with the Discovery of Rules (Rules 24-29)

d. Failure of the plaintiff to comply with any order of the court. Example: Failure to file a Bill of Particulars when ordered by the court.

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 plaintiff by notice as in Section 1 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.

I. Pre-Trial

1. Concept of pre-trial

2. Nature and purpose

a. Nature

A pre-trial mandatory in any action and when a party fails to appear he may be non-suited or considered as in default. (Phil. Pryce Assurance Corp. Vs. CA, 48 SCAD 366, 230 SCRA 164 (1994).

Under the new rule, a similar failure of the defendant shall be cause to allow plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof; no need to declare the defendant in default.

b. purpose the court shall consider

1. The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution; 2. The simplification of issues; 3. The necessity or desirability of amendments to the pleadings; 4. The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; 5. The limitation of the number of witnesses;

6. The advisability of a preliminary reference of issues to a commissioner; 7. 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; 8. The advisability or necessity of suspending the proceedings; and 9. Such other matters as may aid in the prompt disposition of the action.

3. Notice of Pre-trial

The Notice of Pre-Trial 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.

1. The previous rule that notice of the pre-trial must be served separately upon the party affected thereby and his counsel on record (Golden Flame Sawmill vs. CA, 60 SCAD 336, 243 SCRA 272 [1995]) is now modified by the new rules which adopts the doctrine in Taroma vs. Sayo, 67 SCRA 508 [1975], that notice to the lawyer alone is enough, provided he is directed to serve the notice to the client, and to warn him that he or a special agent must be present during the pretrial, otherwise, he may be non-suited (if plaintiff) or declared as in default (if defendant). (Taroma vs. Sayo, 67 SCRA 508 [1975]). 2. The rule now charges the counsel with the duty of notifying the part represented by him.

4. Appearance of parties; effect of failure to appear

a. Appearance of parties

It is the duty of the parties and their counsel to appear at the pre-trial, unless the party constitutes a representative fully authorized in writing to (1) enter into an amicable settlement, (2) to submit to alternative modes of dispute resolution, and (3) to enter into stipulations or admissions of facts and of documents.

1. Amicable settlement (Sec. 1 [a]) cannot be made by the lawyer without a special power of attorney from his client giving him the authority. (Section 23, Rule 138, Rules of Court). 2. If the party is a corporation, the special agency must be made by Resolution of the Board of Directors.

b. Effect of failure to appear

It is the duty of the parties and their counsel to appear at the pre-trial, unless the party constitutes a representative fully authorized in writing to (1) enter into an amicable settlement, (2) to submit to alternative modes of dispute resolution, and (3) to enter into stipulations or admissions of facts and of documents.

1.

Amicable settlement (Sec. 1 [a]) cannot be made by the lawyer without a special power of attorney from his client giving him the authority. (Section 23, Rule 138, Rules of Court). If the party is a corporation, the special agency must be made by Resolution of the Board of Directors.

2.

5. Pre-trial brief; effect of failure to appear

1. to be filed at least three (3) days before the date of pre-trial which shall contain the following: 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.

The failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial (Sec. 6, Rule 18, Rules of Court). Hence, if it is the plaintiff who fails to file a pre-trial brief, such failure shall cause for dismissal of the action. If it is the defendant who fails to do so, such failure shall be cause to allow the plaintiff to present his evidence ex parte.

The dismissal of a complaint for failure to file a pre-trial brief is discretionary on the part of the trial court (Ramos vs. Sps. Lavendia, GR No. 176706, October 8, 2008).

6. Distinction between pre-trial in civil case and pre-trial in criminal case

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, Rule 18, rules of Court). The pre-trial in a criminal case is ordered by the court and no

motion to set the case for pre-trial is required from either the prosecution of the defense (Sec. 1, Rule 118, Rules of Court). 2. The motion to set the case for pre-trial in a civil case is made after the last pleading has been served and filed (Sec. 1, Rule 18, Rules of Court). In a criminal case, the pre-trial is ordered by the court after arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused. (Sec. 1, Rule 118, Rules of Court). 3. The pre-trial in a civil case considers the possibility of an amicable settlement as an important objective (Sec. 2[a], Rule 118, Rules of Court). The pre-trial in a criminal case does not include the considering of the possibility of amicable settlement of criminal liability as one of its purposes (Sec. 1, Rule 118, Rules of Court). 4. In a civil case, the agreements and admissions made in pretrial are not required to be signed by both the parties and their counsels. Under the Rules of Court, they are instead to be contained in the record of pre-trial and the pre-trial order (Sec. 7, Rule 18, Rules of Court). However, AM No. 03-1-09-SC dated 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 pretrial conference shall be reduced in writing and signed by both the accused and counsel, otherwise, they cannot be used against the accused (Sec. 2 Rule 118, Rules of Court). 5. The sanctions for non-appearance in a pretrial are imposed upon the plaintiff and the defendant in a civil case (Sec. 4, Rule 18, rules of Court). The sanctions in a criminal case are imposed upon the counsel for the accused or the prosecutor (Sec. 3, Rule 118, Rules of Court). 6. A pre-trial brief is specifically required to be submitted in a civil case (Sec. 6, Rule 18, Rules of Court). A pretrial brief is not specifically required in a criminal case.

7. Alternative Dispute Resolution

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).

J. Intervention

1. Requisites for intervention

1. 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.

2. The movant must show in his motion that he has a (1) legal interest in (a) the matter in litigation, (b) the success of either of the parties in the action, or (c) against both parties; 3. 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, Rule 19); and 4. That the intervention must not unduly delay or prejudice the adjudication of the rights of the original parties and that the intervenors rights may not be fully protected in a s eparate proceeding (Mabayo Farms, Inc. v. CA, GR No. 140058, 1 August 2002; Acenas II v. CA, 247 SCRA 773).

2. Time to intervene

x x x at any time before the 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.

1. After judgment by the trial court, it is too late to intervene. So, intervenor is not an indispensable party. Indispensible party can be joined at anytime even on appeal. 2. After decision or levy on execution, it is much too late to intervene. Hence, a third party claimant of property levied on execution cannot intervene. (Bayer Phil. Vs. Agana, 63 SCRA 355 [1975]). His remedy is separate action to vindicate his right. (Rule 39, Sec. 16).

3. Remedy for the denial of Motion to intervene

K. Subpoena

1. Subpoena duces tecum

A process directed to a person requiring him to bring with him books, documents, or other things under his control at a scheduled hearing.

2. Subpoena ad testificandum

A process directed to a person, requiring him to attend and to testify at a hearing or trial of an action, or at any investigation conducted by a competent authority, or for the taking of his deposition.

3. Service of subpoena

1. 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. 2. Under Section 38(2) of BP 129, a subpoena issued by inferior court (MTC) may be served throughout the Philippines, even without certification from the RTC judges. 3. Only a judicial officer and a quasi-judicial officer specifically authorized by law can exercise the power of contempt in relation to subpoena. Other quasi-judicial officers must apply in court to enforce the subpoena issued (Nazareno vs. Barnes, 136 SCRA 57 [1985]).

4. Compelling attendance of witnesses; Contempt

Indirect Contempt

A person guilty of any of the following acts may be punished for indirect contempt:

1. Xxx 2. Disobedience of or resistance to lawful writ, process, order or judgment of a court, including the act of the person who, after being dispossessed or ejected from any real property b y the judgment or process of any court of competent jurisdiction, enters or attempts or includes another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturb the possession given to the person adjudged to be entitled thereto;

a. For disobedience or resistance to lawful order to be I

ndirect contempt:

1) It must appear that such order disobeyed was in fact made by the court; 2) The act forbidden or required to be done must be clearly and precisely defined to leave no doubt as to what is forbidden or required to be done; 3) The order disobeyed or resisted must be lawful; 4) Disobedience must be willful (Ferrer v. Rodriguez, 5 SCRA 854).

5. Quashing subpoena

1. Duces tecum, if it is: a. Unreasonably oppressive (as when no specific description, in violation of the prohibition against a fishing expedition); or b. The relevancy of the books, documents or things does not appear; or c. No advance of reasonable cost of production thereof; or d. Witness fees and kilometrage allowed by the rules where not tendered when the subpoena was served. 2. Ad testificandum if witness is not bound thereby or if the witness fees and kilometrage allowed by the Rules were not tendered when the subpoena was served. 3. Deposition if no proof of service to take deposition.

L. Modes of Discovery

1. Depositions pending action; Depositions before action or pending appeal

a. Meaning of Deposition

Deposition is the testimony of a witness taken upon oral examination or written interrogatories, not in open court, but in pursuance of a commission to take testimony issued by a court, or under a general law or court rule on the subject, and reduced to writing and duly authenticated, and intended to be used in preparation and upon the trial of a civil or criminal prosecution.

b. Uses; Scope of examination

1. Use

1. To impeach the testimony of the deponent as witness; 2. If the deponent is the adverse party, the deposition can be used for any purpose; 3. Deponent, whether a party or not, is no longer available to testify.

2. Scope of examination

Deponent may be examined regarding any matter, not privileged, which is relevant to subject matter of the pending action, including: existence, description, nature, custody, conditions, and location of any books, documents or other tangible things, and identity and location of persons having knowledge of relevant facts

c. When may objections to admissibility be made

Objection may be made at the trial or hearing to receive 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. (Section 6) And is also at trial or hearing when any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party. (Section 9)

d. When may taking of deposition be terminated or its scope limited

Unless otherwise ordered by the court as provided by Sec 16 or 18 of this Rule, the deponent may be examined regarding ANY MATTER:

Not privileged Relevant to the subject of the pending action, whether relating to claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents or tangible things and the identity and location of persons having knowledge of relevant facts (Section 2)

Not restricted by protective order or motion to limit examination

2. Written interrogations to adverse parties

a. Consequences of refusal to answer

Case may be dismissed or judgment by default may be given

b. Effect of failure to serve written interrogations

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 testimony in open court, or to give a deposition pending appeal.

3. Request for admission

a. Implied admission by adverse party

The motion for extension of time to answer the request for admission should be served on the adverse party but need not to be set for hearing.

Objections on the ground of irrelevance or impropriety of the matter requested shall be promptly submitted the court for resolution.

b. Consequences of failure to answer request for admission

Each of the matters of which an admission is requested is deemed admitted. If facts are admitted or deemed admitted, party may move for summary judgment

c. Effect of admission

An admission under this section is for the purpose of the pending action only and cannot be used in other proceedings.

d. Effect of failure to file and serve request for admission

Unless otherwise allowed by the court of 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.

4. Production or inspection of documents or things

By motion of any party showing good cause and upon notice to all other parties at any time before answer is filed.

5. Physical and mental examination of persons

Only in an action in which the mental or physical condition of a party is in controversy by motion only for good cause shown and upon notice to the party to be examined.

6. Consequences of refusal to comply with the modes of discovery

Rule 23

If a party fails to appear before the officer or to serve answer to written interrogatories, the court on motion may (1) strike out all or anuy part of any pleading of that party; or (2) dismiss the action or proceedings or any part thereof, or enter a judgment by default against that party, and (3) in its discretion order him to pay reasonable expenses incurred by the other including attorneys fees (Sec.5)

If a party or other deponent appears, but refuses to answer, the proponent may apply for a court order to compel an answer (Sec.1 )

If, despite the court order to answer, he still refuses to answer, the refusal may be considered contempt of that court (Sec. 2) or the court may make such order as are just under Sec. 3.

Rule 25

If a party faild to serve his answer to the interrogatories, the court on motion may

(1) Strike out all or any part of any of the pleading of that party, or (2) dismiss the action or proceedings or any part thereof, or enter a judgment by default against that party, (3) or in its discretion, order him to pay reasonable expenses incurred by the other, including attorneys fees (Sec. 5)

If he refuses to answer any interrogatory, he can not be compelled without going to court and praying for an order to compel him to answer (Sec. 1)

If, despite the court order, he refuses to serve his answer, his refusal may be considered in contempt of the court (Sec. 2) or the court may make such order as are just under Sec.3.

Rule 26

If the adverse party makes a wrongful denial of the genuineness of documents or truth of any matter of fact, the other party who proves the genuineness of such document or the truth of any such matter of fact, may apply to the court for an order requiring the other party to pay him reasonable expenses incurred in making such proof, including attorneys fees. (Rule 29, Sec.4)

Rule 27

If a party refuses to produce or permit inspection despite a court order, the court may make such order in regard to the refusal as are just under Rule 29, Sec 3.

M. Trial

1. Adjournments and postponements

2. Requisites of motion to postpone trial

a. for absence of evidence

There must be an affidavit showing: (a) the materiality or relevancy of such evidence; and (b) 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. (Rule 30, Sec. 3)

b. for illness of party or counsel

It must appear upon affidavit that (a) the presence of such party or counsel at the trial is indispensable; and (b) the character of his illness is such as to render his non-attendance excusable (Rule 30, Sec.4)

3. Agreed statement of facts

Judgment may be rendered based on stipulation of facts. If agreement is only on some facts, trial shall be held as to the others.

EXCEPTIONS: a) legal separation; b)annulment of marriage; and c) declaration of nullity of marriage

4. Order of trial, reversal of order

The trial shall be limited to the issues stated in the Pre-trial order and shall proceed as follows:

a. Plaintiff shall adduce evidence in support of his complaint b. Defendant shall adduce evidence in support of: 1. His defense 2. His counterclaim 3. His cross-claim 4. His third-party complaint c. Third-party defendant shall adduce evidence in support of: 1. His defense 2. His counterclaim 3. His cross-claim 4. His fourth-party complaint d. Fourth-party and so fifth, 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.

g. Oral argument or submission of memoranda.

5. Consolidation or severance of hearing or trial

Consolidation is proper: a) When actions involving a common question of law or fact; and b) The actions are pending before the (same) court.

The court may order: a) A joint hearing or trial of any and all matters or issue in the actions; or b) Consolidation of all actions; or c) Such order concerning proceedings therein as may tend to avoid unnecessary costs or delay.

6. Delegation of reception of evidence

GENERAL RULE: Judge shall personally receive evidence of the parties

EXCEPTIONS: In 1) default; or 2) Ex parte hearing; and 3) 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.

7. Trial by commissioners

a. Reference by consent or ordered on motion

1. When there is reference to a commission by consent of the parties Issued to be tried; any one or all issues in the case 2. When there is reference on motion of one party or upon courts own motion Issued to be tried:

-issue of fact, requiring examination of long account; or -when taking of an account is necessary -when a question of fact arises upon a motion

b. Powers of the commissioner

Subject to the restrictions contained in the court order appointing him, the COMMISSIONER:

1. Can regulate the proceedings before him; 2. Can issue subpoena and subpoena duces tecum; 3. Can swear witnesses; and 4. Generally, he may rule on admissibility of evidence and rule on objections.

c. Commissioners report; notice to parties and hearing on the report (Sec 9, 10, 11 of Rule 32)

N. Demurrer to evidence

1. Ground

It is a judgment rendered by the court dismissing a case upon motion of the defendant, made after plaintiff has rested his case, on the ground that upon the facts presented by the plaintiff and the law on the matter, plaintiff has not shown any right to relief.

2. Effect of denial

If motion for demurrer is denied, defendant can present his evidence as a matter of right even if he did not obtain leave of court or reserve his right to do so.

3. Effect of grant

If the motion for demurrer is granted, the court will render judgment on demurrer to evidence by dismissing the case. The judgment is appealable; if plaintiff appeals and the judgment on the demurrer is reversed on

appeal, the appellate court will decide the case for the plaintiff based on his evidence and, in such a case, the defendant will have already lost his right to present his evidence.

4. Waiver of right to present evidence

By filing a motion to dismiss on demurrer to evidence, the defendant does not waive his right to present his evidence in the event of denial thereof. But if the motion is granted, but on appeal the order o dismissal is reversed he shall be deemed to have waived the right to present evidence. (Rule 33, Sec.1)

5. Demurrer to evidence in a civil case versus demurrer to evidence in a criminal case

CivilCase 1. No need for leave of court for defendant to file demurrer to evidence 2. If court finds plaintiffs evidence insufficient, it will grant the demurrer by dismissing the complaint. The judgment of dismissal is appealable by plaintiff. If plaintiff appeals and the judgment on demurrer is reversed by the appellate court, it will decide the case on the basis of plaintiffs evidence with the consequence that defendant already loses his right to present evidence. 3. If court denies demurrer, defendant will present his evidence

CriminalCase Leave of Court is necessary so accused could present his evidence if his demurrer is denied If court finds prosecutions evidence insufficient, it will grant the demurrer by rendering judgment acquitting the accused. The judgment of acquittal is not appealable.

If court denies demurrer, one of two things can happen: a) If demurrer was with express leave of court, accused may present evidence. b) If demurrer was without express leave of court, accused can no longer present evidence and submits the case for decision based on prosecutions evidence.

O. Judgments and Final Orders

1. Judgment without trial

Ordinarily, a judgment is rendered only after trial.

EXCEPTIONS: a) Judgment on pleadings; b) Summary Judgment; c) Judgment based on compromise; d) Judgment based on stipulation of facts; e) Judgment upon confession; f) Order of dismissal which is considered adjudication of the case upon the merits, as when the case is dismissed on non-suit under Sec.3, Rule 17.

2. Contents of a judgment

3. Judgment on the pleadings

GROUNDS: Answer fails to tender an issue because of: a.) General denial of the material allegation of the complaint; b.) Insufficient denial of the material allegations of the complaint; or Answer admits material allegations of the complaint

PROCEDURES: a. Motion by plaintiff: No supporting papers are required because everything is based on the pleadings. If denied, case will proceed to pre-trial and trial. b. Judgment on the Pleading

By moving for judgment on the pleading, plaintiff waives his claim for unliquidated damages must be alleged and proved. c. Appeal from Judgment On pure question of law, hence the appeal is by Certiorari to the Supreme Court under Rule 45.

4. Summary judgments

One granted by the court for the prompt disposition of the civil actions wherein it clearly appears that there exist no genuine issue or controversy as to any material fact.

a. for the claimant

He must wit for the answer to be filed and served, and thus for the issue to be joined, before he ca move for summary judgment.

b. for the defendant

He can move for summary judgment at anytime, that is, anytime after the filing and service of the complaint even before he answers.

c. when the case not fully adjudicated

Court will ascertain what material facts are controverted and what are not, then issue order to that effect and direct further proceedings in the action as are just. Upon the trial, the facts specified as not controverted shall be deemed established, and those controverted shall be tried.

d. affidavits and attachments

5. Judgment on the pleadings versus summary judgments

Judgment on the Pleadings

Summary Judgment

1. There is no genuine issue because the answer fails to tender an issue or otherwise admits the material allegations in the complaint; 2. Judgment on the pleadings is based exclusively on the pleadings (meaning, the complaint and the answer) ;

There is an apparent issue but it is sham, fictitious, or false as shown by affidavits, depositions, or admissions;

Judgment is based not only the pleadings but also on affidavits, depositions, and admissions of the parties showing that, except as to the amount of damages, there is no genuine issue; There may or may not be answer; The defendant or plaintiff may move for summary judgment; At least 10 days before the date of hearing;

3. There must be an answer; 4. Only the plaintiff may move for judgment on pleadings; 5. It is required to be served on the adverse party at least 3 days before the date of hearing;

6. Rendition of judgments and final orders

Ordinarily, a judgment is rendered only after trial.

EXCEPTIONS: a) Judgment on pleadings; b) Summary Judgment; c) Judgment based on compromise; d) Judgment based on stipulation of facts; e) Judgment upon confession; f) Order of dismissal which is considered adjudication of the case upon the merits, as when the case is dismissed on non-suit under Sec.3, Rule 17.

7. Entry of judgment and final order

The date of finality of the judgment or final order shall be deemed to be the date of its entry. Judgment becomes final if no appeal or motion for new trial or reconsideration has been filed within the time provided in the Rules.

A judgment from which a party can no longer appeal is already final even if this judgment has not yet been entered in the book of entries of judgment.

The Clerk of Court shall forthwith enter the judgment or final order in the book of entries of judgment. The date of finality of the judgment or final order shall be deemed to be the date of its entry. (Rule 36, Sec. 2)

P. Post Judgment Remedies

1.1) Motion for new trial

a. grounds

1. FAME, which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights (Sec 1[a], Rule 47).

a. Fraud must be extrinsic and collateral. The facts constituting it must be alleged with particularity. The allegation must be under oath. Extrinsic fraud means that the fraud must be committed outside the trial of the case, the effect of which was to deprive the party of his day in court. Examples: i. Plaintiff induces defendant not to file his answer because anyway they will settle the case, and true enough, the defendant did not file his answer and was declared in default, then judgment by default was rendered against him. A party defrauds the adverse party into not filing/presenting his evidence on the pretext that he would drop the case, but proceeded with the case until judgment is rendered against the latter. A party bribes the lawyer of the other party in consideration of him not putting up a good fight.

ii.

iii.

b. Accident refers to actual surprise incident that prevents one from appearing at the trial.

c. Mistake must be a mistake of facts and not of law. It must be alleged with particularity.

Example: a party thought that the hearing is on November 17, but was actually November 7.

d. Excusable negligence as when the lawyer fails to get the notice of hearing on time.

2. Newly Discovered Evidence, which the movant could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result. (Sec 1[b], Rule 37)

b. When to file

1. If filed with the trial court, within the period for taking an appeal. 2. If filed with the CA, at anytime after the appeal from the lower court has been

c. denial of motion; effect

1. If the motion is denied, the filing of said motion only interrupts the period of appeal (Rule 41, Sec 3, last par) which resumes to run from notice of the order of denial;

a. But a pro forma motion for new trial shall not toll the reglementary period of appeal (Rule 41, Sec 2, last par);

b. A motion is considered pro forma where:

1. It is based on the same ground already raised in a previous motion already denied or the same arguments and discussions; 2. The new ground was available and could have been alleged in the first motion which was denied; 3. It is based on the ground of FAME but does not specify the facts constituting FAME, or is not accompanied by affidavit of merit.

2. When a motion for new trial on the ground of FAME is denied, the aggrieved party (movant) can no longer avail of a Petition for Relief from Judgment [under Rule 38] as held in Francisco v. Puno, 108 SCRA 427.

d. Grant of the motion; effect

1. If the motion is granted, the original judgment or final order is vacated, and the action shall stand for trial de novo (Sec 6, Rule 37);

2. If the motion is granted and new trial is held, a new period of appeal is granted from the new judgment rendered after new trial;

e. remedy when motion is denied, fresh 15-day period rule

if the court denies the motion, the movant may:

1. File a second motion for new trial based on a ground not existing or available when the first motion was filed (Sec 5, Rule 37); or 2. Appeal from the judgment or final order and assign as one of the errors the denial of the motion for new trial. The order denying the motion for new trial is not appealable.

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 reasons and grounds as the fresh period rule governing a denial of a motion for reconsideration (Neypes v. CA. GR No. 141524).

1.2) Motion for reconsideration

a. grounds

1. Damages awarded are excessive; 2. The evidence is insufficient to justify the decision or final order; 3. The decision is contrary to law. (Sec 1, Rule 37)

It is not sufficient to mention the ground relied upon. It is necessary for the motion for reconsideration to 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 (Sec 2, Rule 39). Non-compliance with this requirement would reduce the motion to a mere pro forma motion. Under the explicit provisions of the rule (Sec 2, Rule 37), a pro forma motion for reconsideration shall not toll the reglementary period of appeal.

b. when to file

1. Within the period for taking an appeal. (Sec 1, Rule 37) 2. No motion for extension of time to file a motion for reconsideration shall be allowed. (Sec 2, Rule 40; Sec 3, Rule 41) 3. The period for appeal is within fifteen (15) days after notice to the appellant of the judgment or final order appealed from (Sec 2, Rule 40; Sec 3, Rule 41; Sec 2, Rule 45) 4. 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 (Sec 3, Rule 41) 5. A record on appeal shall be required only in special proceedings and other cases of multiple or separate appeals (Sec 3, Rule 40). The 15-day period begins to run upon receipt of notice of the decision or final order appealed from.

c. Denial of motion effect

If the motion is denied, the filing thereof only interrupted the period of appeal (Rule 41, Sec 3, last par.) which resumes to run from notice of the order of denial;

But a pro forma motion for reconsideration shall not toll the reglamentary period of appeal.

d. Grant of motion; effect

If the motion is granted, the original judgment is amended accordingly. The amended judgment is subject to a new period of appeal;

e. remedy when motion is denied, fresh 15day period rule

x x x appeal from the judgment or final order sought to be reconsidered. The order denying the motion is not appealable. (Sec 9, Rule 37) 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 reconsideration within which to file a notice of appeal. This new period becomes significant if either a motion for reconsideration or a motion for new trial has been filed but was denied or dismissed. This fresh period rule applies not only to Rule 41 governing appeals from the RTC but also to Rule 40 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 the case and, in the process, minimize any error of judgment (Neypes v. CA. GR No. 141524).

2. Appeals in general

a. Judgments and final orders subject to 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.

b. Matters not appealable

No appeal shall be taken from:

(An order denying a motion for new trial or reconsideration; this is no longer part of the enumeration as of December 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; (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.

c. Remedy against judgment orders which are not appealable

In those instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65 (Sec 1, Rule 41). However, as of December 27, 2007, an aggrieved party may no longer assail an order denying a motion for new trial or 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, Rule 37)

d. Modes of appeal

1. Ordinary appeal

1. Subject of Appeal a. appeal from judgment or final order of MTC, to the RTC b. appeal from a judgment or final order of the RTC in the exercise of its original jurisdiction, to the CA

2. When to Appeal a. General Rule if by notice of appeal, within fifteen (15) days from notice of the judgment or final order appealed from (Rule 41, Sec 2; Rule 42, Sec 3). b. Exception where the record on appeal is required, within thirty (30) days after notice of the judgment or order appealed from. The period shall be interrupted by a timely motion for new trial or reconsideration.

3. How to Appeal

1) By filing a notice of appeal with the court which rendered the judgment or final order appealed from:

(a) Contents of the Notice of Appeal:

It shall indicate: (1) the parties to the appeal, (2) the judgment or final order or part thereof appealed from, (3) specify the court to which the appeal is being taken, and shall (4) state the material date showing the timeliness of the appeal (Rule 40, Sec 3; Rule 41, Secs 2 & 5).

(d) Copy of the notice shall be served on the adverse party.

2) When the record on appeal is required, by filing a notice of appeal and record on appeal, with copies thereof served on the adverse party.

(a) When record an appeal is required:

In appeals in Special Proceedings in accordance with Rule 109. These are:

i. Allowance and disallowance of a will. ii. Determination of lawful heirs of a deceased person or other disposition/distribution of shares in the estate. iii. Allowance or disallowance in whole or in part, of any claim presented on behalf of the estate in off-set of any claim against it. iv. Settlement of accounts of executor, administrator, trustee or guardian. v. Final determination in the lower court of the rights of parties appealing in proceedings relating to the settlement of the estate of a deceased person. vi. Final judgment or order rendered in the case.

In other cases wherein multiple appeals are allowed. Among these are: 1. In expropriation case where a final order sustaining the right to expropriate may be appealed by the aggrieved party, which shall not, however, prevent the court from determining the just compensation to be fixed. (Sec 4, Rule 67) 2. In an action for partition, the order of the court for partition may be appealed, without prejudice to the actual partition taking place. Once actual partition has taken place and the court either approves or disapproves the actual partition, that final order of approval or denial may also be appealed. (Sec 2, Rule 69) 3. In action for recovery of property with accounting where the judgment for recovery alone may be appealed and the appeal will not prevent the court from continuing with the accounting and rendering judgment on said accounting. Hence, there can be another appeal from such judgment on accounting. (Miranda v. CA, 71 SCRA 295)

NOTE: In multiple appeals, a record on appeal is necessary because the original records have to remain with the trial court for continuation of proceedings on the other various matters. Hence, the need for a record on appeal in appealing a specific final order of the court.

Record on appeal reproduction of all pleadings, motions, evidence, orders, decisions in the trial court from which the appeal is taken.

(e) Form and contents of record on appeal (Rule 41, Sec 6)

4. Questions that may be raised on appeal Both questions of fact or law or mix fact and law.

5. Procedure in ordinary appeal

1. From MTC to RTC (Rule 40, Secs 3, 5, 6, 7, 8, 9): a. Filing of notice of appeal with the MTC which rendered the judgment appealed from and serving a copy thereof upon the adverse party. i. and filing of record on appeal if required with copy served to the adverse party.

b. Payment of appellate court docket fee and other lawful fees to the Clerk of Court which rendered the judgment. c. Approval of record on appeal by the trial court. d. Transmittal of the original record or record on appeal and proof of payment of the appellant of docket and other lawful fees. e. Procedure in the RTC: i. ii. Issuance of notice by the RTC to the parties of receipt of the records; Submission of memorandum by appellant within fifteen (15) days from such notice, copy furnished to the adverse party; 1. Failure to file a memorandum shall be a ground for dismissal of the appeal. (Rule 40, Sec 7[b]). iii. Filing of memorandum by appellee within fifteen (15) days from receipt of the appellants memorandum. (a) appellees memorandum is optional. f. Decision of the RTC based on the entire records and memoranda filed.

g. If the appeal is from the order of dismissal of the MTC without trial on the ground of lack of jurisdiction over the subject matter and the order is affirmed by the RTC, the latter, if it has jurisdiction thereover, shall try the case on the merits as if the case was originally filed with it. (Rule 40, Sec 8) Q: May the court try the case on the merit without the defendants answer? When does the defendant file his answer? If the MTC tried the case without jurisdiction over the subject matter, the RTC on appeal shall not dismiss the case if it has jurisdiction thereof, but shall decide the case, without prejudice to the admission of amended pleadings and additional evidence in the interest of justice. (Rule 40, Sec 8, last par.)

2. From RTC to CA (Rule 41, Secs 2, 4, 5, 6, 7, 10, 12; Rule 44, Secs 4, 7, 8, 9): a. Filing of notice of appeal with the RTC which rendered the judgment appealed from and serving a copy upon the adverse party; i. And filing of record on appeal if required with copy served on the adverse party.

b. Payment of the appellate court docket and other lawful fees to the Clerk of Court of the court which rendered the judgment appealed from; i. Failure to pay the docket and other lawful fees is a ground for the dismissal of the appeal by the CA.

c. Approval of record on appeal by the trial court. d. Transmittal of the original record or record on appeal to the CA within thirty (30) days after perfection of all the appeals. e. Procedure in the CA: i. ii. Docketing of case with notice to the parties; In appeal by record on appeal, appellant shall file with the CA seven (7) clearly legible copies of the approved record on appeal, with proof of service of two (2) copies thereof upon the appellee; Filing within forty-five (45) days from receipt of notice from the court of appellants brief (legibly typewritten, mimeographed or printed brief), with proof of service of two (2) copies thereof upon the appellee; iv. Contents of appellants brief (Rule 44, Sec 13)

iii.

Filing by appellee within forty-five (45) days from receipt of appellants brief of his appellees brief (7 copies of legibly typewritten, mimeographed or printed brief), with proof of service of two (2) copies thereof upon the appellant; Filing of appellants reply brief within twenty (20) days from receipt of the appellees brief; Decision of the CA.

v.

vi.

2. Petition for review

1. Applicable Rules 1. Rule 42 Petition for review from the RTC to the CA 2. Rule 43 Appeals from the CTA and Quasi-judicial agencies to the CA

2. What may be appealed by petition for review 1. Decision of the RTC rendered in the exercise of its appellate jurisdiction (Sec 22 of BP 129; Sec 1, Rule 42). 2. Judgments or final orders of the CTA and awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasijudicial functions.

3. Questions that may be raised Questions of fact or law or both [mixed questions of fact and law] (Sec 2[c], Rule 42 and Sec 10, Rule 43)

4. When to appeal Within fifteen (15) days from notice of the decision sought to be reviewed [or from the date of its last publication, if publication is required by law for its effectivity] or of the denial of petitioners motion for new trial or reconsideration filed in due time after judgment [or duly filed in accordance with the governing law of the court or agency a quo]. (Sec 1, Rule 42 and Sec 4, Rule 43)

5. Procedure under Rule 42 1. Filing of verified petition for review with the CA and payment of the corresponding docket fee and other lawful fees and depositing P500.00 for costs, furnishing the RTC and the adverse party with a copy of the petition. a. Forms and contents of petition (Sec 2) b. Effect of failure to comply with requirements (Sec 3). 2. Action (of the CA) on the petition (Sec 4) a. Dismiss the petition if patently without merit; or 1) grounds for dismissal of appeal (Rule 50, Sec 1); 2) dismissal of improper appeal to the CA (Rule 50, Sec 2); b. Require respondent to file comment on the petition within ten (10) days from notice; or 1) contents of comment (Sec 5). c. Give due course to the petition after comment if it finds the petition prima facie meritorious; 1) oral argument or submission of the memorandum by the parties (Sec 9). 3. Submission of the case for decision (Sec 9).

4. Decision of the CA.

6. Decision under Rule 43 1. Filing of verified petition for review with the CA and payment of the corresponding docket fee and other lawful fees and depositing P500.00 for costs, with proof of service of a copy thereof on the adverse party and on the court or agency a quo; a. Contents of the petition (Sec 6); b. Effect of failure to comply with requirements (Sec 7); 2. Action (of the CA) on the petition (Sec 8): a. Dismiss the petition if patently without merit, or b. Require respondent to file comment on the petition within ten (10) days from notice; (1) contents of comment (Sec 9) c. Give due course to the petition after comment if it finds the petition prima facie meritorious; (1) oral argument or submission of memorandum by the parties (Sec 13). 3. Submission of the case for decision (Sec 13); 4. Decision of the CA.

3. Petition for review on certiorari

1. What may be appealed

1. Judgments or final orders or resolution of the following courts only on question of law: a. RTC b. Sandiganbayan c. CA d. CTA en banc (Sec 11, RA 9282; Sec 1, Rule 45 as amended by A.M. No. 07-7-12SC) e. Petition for writ of Amparo to the SC (A.M. No. 07-9-12-SC, the Rules on Writ of Amparo [Sec 19] effective October 24, 2007) f. Petition for writ of Habeas Data appeal may raise questions of fact or law or both (A.M. No. 08-1-16-SC, Rule on the Writ of Habeas Data [Sec 19], effective February 2, 2008).

2. Exceptions: As a general rule, findings of fact of the CA are binding upon the SC. But there are exceptions, they are: a. When the conclusion is a finding grounded entirely on speculation, surmises or conjectures; b. When the inference made is manifestly mistaken, absurd or impossible; c. Where there is grave abuse of discretion in the appreciation of facts; d. When the judgment is based on misapprehension of facts; e. When the findings of fact are conflicting; f. When the CA, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee;

g. When the findings of the CA are contrary to those of the trial court; h. When the findings of fact 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 petitioners main and reply briefs are not disputed by the respondent; and When the findings of fact of the CA is premised on the supposed absence of evidence and is contradicted by the evidence on record (Boston Bank of the Philippines v. Manalo, GR No. 158149, February 9, 2006; EJR Crafts Corporation v. CA, GR No. 154101, March 10, 2006; BPI v. Sarmiento, GR No. 146021, March 10, 2006; Ontimare, Jr. v. Sps. Elep, GR No. 159224, January 20, 2006; Safeguard Security Agency, Unc. V. Tangco, GR No. 165732, December 14, 2006; Sandejas v. Ignacio, GR No. 155033, December 19, 2007; Montecillo v. Pama, GR No. 158557, February 4, 2008; Delta Sales v. Pre-Stress Intl, GR No. 176768, January 12, 2009)

j.

k. In an appeal from a judgment or final order of the court in a petition for writ of amparo or habeas data, questions of fact may be raised (A.M. No. 07-9-12-SC, the Rules on Writ of Amparo [Sec 19] effective October 24, 2007) l. In an appeal from a judgment or final order of the court in a petition for a writ of habeas data (A.M. No. 08-1-16-SC, Rule on the Writ of Habeas Data, effective, February 2, 2008).

3. The mode of appeal prescribed under Rule 45 shall be applicable to both civil and criminal cases, except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment (Sec 9, Rule 45).

2. When to appeal 1. The appeal which shall be in the form of a verified petition shall be filed within fifteen (15) days from notice of the judgment, final order or resolution appealed from, or within

fifteen (15) days from notice of the denial of the petitioners motion for new trial or motion for reconsideration filed in due time (Sec 2, Rule 45). 2. The Supreme Court may, for justifiable reasons, grant an extension of thirty (30) days only within which to file the petition provided (a) there is a motion for extension of time duly filed and served; (b) there is full payment of the docket and other lawful fees and the deposit for costs; and (c) the motion is filed and served and the payment is made before the expiration of the reglementary period (Sec 2, Rule 45)

3. How to appeal 1. Filing of verified petition for review on certiorari to the SC and full payment of the corresponding docket and other lawful fees and deposition of P500.00 for costs. a. Proof of service of a copy of the petition on the lower court concerned and on the adverse party. b. Contents of the petition. 2. Action (of the SC) on the petition: a. Dismiss the petition for failure to comply with requirements (1) grounds for dismissal of appeal (Rule 56, Sec 5) (2) disposition of improper appeal (Rule 56, Sec 6); or b. Deny the petition if without merit c. Review of the petition based on sound judicial discretion and only when there are special and important reasons therefor, such as: (1) when the court a quo has decided a question of substance, not theretofore determined by the Supreme Court, or has decided it in a way probably not in accord with law or with the applecable decisions of the Supreme Court; or (2) when the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the power of supervision. (Sec 6, Rule 45) d. Give due course to the petition based on the petition and pleadings, briefs, memoranda or documents submitted e. Decision of the SC on the merit after petition is given due course and submitted for decision.

e. Issues to be raised on appeal

1. It is already well-settled in this jurisdiction that a party may not change his theory of the case on appeal. Such a rule has been expressly adopted in Rule 44, Sec 15 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.

2. 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 and the parties, is not only irregular but also extrajudicial and invalid. The rule rests on the fundamental tenets of fair play. (CIR v. Migrant Pagbilao Corporation, GR No. 159593, October 12, 2006)

f. period of appeal

1. The appeal which shall be in the form of a verified petition shall be filed within fifteen (15) days from notice of the judgment, final order or resolution appealed from, or within fifteen (15) days from notice of the denial of the petitioners motion for new trial or motion for reconsideration filed in due time (Sec 2, Rule 45). 2. The Supreme Court may, for justifiable reasons, grant an extension of thirty (30) days only within which to file the petition provided (a) there is a motion for extension of time duly filed and served; (b) there is full payment of the docket and other lawful fees and the deposit for costs; and (c) the motion is filed and served and the payment is made before the expiration of the reglementary period (Sec 2, Rule 45)

g. perfection of appeal

a. A partys appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time. A partys 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 4, Rule 40 in relation to Sec 9, Rule 41) b. 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 courts permission that he be allowed to pose an appeal (Crisologo v. Daray, A.M. No. RTJ -07-2036, August 30, 2006).

h. appeal from judgments or final orders of the MTC

1. Where to appeal from a judgment or final order of a municipal court

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. (Sec 1, Rule 40)

2. When to appeal a. An appeal may be taken within fifteen (15) days after notice to the appellant of the judgment or final order appealed from (Sec 2, Rule 40). b. 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 (Sec 2, Rule 40). c. A record on appeal shall be required only in special proceedings and in cases of multiple or separate appeals (Sec 3, Rule 40)

3. How to appeal a. The appeal is taken by (a) filing a notice of appeal with the court that rendered the judgment or final order appealed from and by (b) serving a copy of the notice to the adverse party (Sec 3, Rule 40). b. Within the period for taking an appeal, the appellant shall pay to the clerk of 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 (Sec 5, Rule 40) c. Within fifteen (15) days from the perfection of the appeal, the clerk of court of the lower court shall transmit the original record or the record on appeal, together with transcripts and exhibits, which he shall certify as complete, to the proper Regional Trial Court (Sec 6, Rule 40)

4. Perfection of Appeal b. A partys appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time. A partys 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 4, Rule 40 in relation to Sec 9, Rule 41) c. 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 courts permission that he be allowed to pose an appeal (Crisologo v. Daray, A.M. No. RTJ-07-2036, August 30, 2006).

5. Duty of the Clerk of Court

Upon receipt of the complete record or the record on appeal, the clerk of court of the RTC shall notify the parties of such fact (Sec 7[a], Rule 40). Within fifteen (15) days from such notice, it shall be the duty of the appellant to submit a memorandum, copy of which shall be furnished the appellee. For the appellant, the filing of a memorandum is vital to his appeal. Failure to so file shall be a ground for the dismissal of the appeal. The memorandum shall briefly discuss the errors imputed to the lower court. The appellee may, if his so desires, file his memorandum within fifteen (15) days from receipt of the appellants memorandum (Sec 7[b], Rule 40).

6. When case is deemed submitted for decision

The case shall be considered submitted for decision upon the filing of the memorandum of the appellee, or the expiration of the period to do so. The RTC 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 (Sec 7[c], Rule 40).

7. Appeal from an order dismissing a case for lack of jurisdiction

A case may be dismissed in the MTC without a trial on the merits. This occurs when a motion to dismiss is filed and granted in accordance with Rule 16. If an appeal is taken from the dismissal by the lower court, the RTC may affirm or reverse it. If the order of dismissal is reversed, the case shall be remanded to the lower court for further proceedings. If the order is affirmed, then it is a declaration of the merits of the dismissal.

However, if the dismissal is made on the ground of lack of jurisdiction over the subject matter, and the RTC affirms the dismissal, the action of the latter court shall not be confined to a mere affirmation of the dismissal. Instead, the rule obligates the RTC to try the case on the merits as if the case was originally filed with it.

The same rule prevails if the case was tried on the merits in the lower court without jurisdiction over the subject matter and was subsequently dismissed on such ground. On appeal, the RTC, if it has original jurisdiction shall not dismiss the case, but shall decide the case in the same manner as a case dismissed by the lower court without trial on the merits. The RTC may allow amendment of the pleadings and may receive additional evidence in he interest of justice (Sec 8, Rule 40).

i. Appeal from judgments or final orders of the RTC

1. Three Modes of appeal from the decision of the RTC: a. An ordinary appeal or appeal by virtue of error, where judgment was rendered by the court in the exercise of its original jurisdiction. This is governed by Rule

41 and is taken to the CA on questions of fact or mixed questions of fact and law. b. Petition for review, where judgment was rendered by the court in the exercise of its appellate jurisdiction. This is governed by Rule 42 and is taken to the CA on questions of fact, questions of law or mixed questions of fact and law. c. Petition for review on certiorari or appeal by certiorari to the SC. This mode is brought to the SC from the decision of the RTC in the exercise of its original jurisdiction and only questions of law (Sec 2, Rule 41; Five Star Marketing Corp v. Booc, 535 SCRA 28; Quezon City v. ABS CBN broadcasting Corp, GR No. 166408, October 6, 2008).

2. Application of Rule 41 in Ordinary Appeal Rule 41 applies to appeals from the judgment or final order of the RTC in the exercise of its original jurisdiction (Sec 2[a], Rule 41). This appeal is called ordinary appeal.

On the other hand, if a litigant loses in the MTC and on appeal loses in the RTC, the mode of appeal to the CA is by way of Rule 42. This is because the decision of the RTC is in exercise of its appellate jurisdiction.

3. When to 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 (Sec 3, Rule 41).

4. How to appeal a. The appeal to the CA in cases decided by the RTC in the exercise of its original jurisdiction shall be taken by (a) filing a notice of appeal with the court which rendered the judgment or final order appealed from, and (b) serving a copy thereof upon the adverse party. A record on appeal shall be required in special proceedings and other cases of multiple or separate appeals when so required by law or the rules (Sec 2[a], Rule 41). Where both parties are appellants, they may file a joint record on appeal (Sec 8, Rule 41) b. Within the period for taking an appeal, the appellant shall pay to the clerk of court which rendered the judgment or final order appealed from, the full amount of the appellate court docket fee (Sec 4, Rule 41) c. Within thirty (30) days after perfection of all the appeals, the clerk of court shall verify the correctness and completeness of the records and if incomplete, to take such measures to complete such records, certify to the correctness of the records, to transmit the same to the appellate court, and to furnish the parties with copies of his letter of transmittal of the records to the appellate court (Sec 10, Rule 41)

d. Upon receiving the original record on appeal and the accompanying documents transmitted by the lower court, as well as the proof of payment of the docket and other lawful fees, the clerk of court of the CA shall docket the case and notify the parties (Sec 4, Rule 44). e. Within forty-five (45) days from receipt of the notice of the clerk of court, the appellant shall file a brief with proof of service upon the appellee. Within forty-five days from receipt of the appellants brief, the appellee shall file his own brief with proof of service to the appellant. Within twenty (20) days from receipt of the appellees brief, the appellant may file a re ply brief answering points in the appellees brief not covered in his main brief. Extension of time for the filing of briefs will not be allowed, except for good and sufficient cause and only if the motion for extension is filed before the expiration of the time sought to be extended. In petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus cases, briefs are not filed. Instead, the paties shall file their respective memoranda within a non-extendible period of thirty (30) days from receipt of the notice that all the evidence are already attached to the record.

5. Questions that may be raised on appeal The appellant may include in his assignment of errors any question of law or fact that has been raised in the court below and is within the issues framed by the parties (Sec 15, Rule 44).

6. Residual jurisdiction This term refers to the authority of the trial court to 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 Sec 2, Rule 39, and allow withdrawal of the appeal provided these are done prior to the transmittal of the original record or the record on appeal even if the appeals have already been perfected or despite the approval of the record on appeal (Sec 9, Rule 41) or in case of a petition for review under Rule 42 before the CA gives due course to the petition (Sec 8, Rule 42)

j. Appeal from judgments or final orders of the CA

k. Appeal from judgments or final orders of the CTA

1. Under Sec 11 of RA 9282, March 30, 2004, no civil proceeding involving matters arising under the NIRC, the Tariff and Customs Code of the LGC shall be maintained, except as herein provided, until and unless an appeal has been previously filed in accordance with the Court of Tax Appeals and disposed of in accordance with the provisions of this Act.

A party adversely affected by a resolution of a Division of the CTA on a motion for reconsideration or new trial, may file a petition for review with the CTA en banc.

2. Sec 11 of the same Act further provides that a party adversely affected by a decision or ruling of the CTA en bane may file with the SC a verified petition for review on certiorari pursuant to Rule 45.

l. Review of final judgments or final orders of the COA

A judgment, resolution or final order of the COA may be brought by the aggrieved party to the SC on certiorari under Rule 65 (Sec 2, Rule 64) by filing a petition within thirty (30) days from notice (Sec 3, Rule 64).

m. Review of final judgments or final orders of the COMELEC

A judgment, resolution or final order of the COMELEC may be brought by the aggrieved party to the SC on certiorari under Rule 65 (Sec 2, Rule 64) by filing a petition within thirty (30) days from notice (Sec 3, Rule 64).

n. Review of final judgments or final orders of the CSC

A judgment, resolution or final order of the CSC may be taken to the CA under Rule 43 (Secs 1, 3, Rule 43)

o. Review of final judgments or final orders of the Ombudsman

1. The Ca has jurisdiction over orders, directives and decisions of the Office of the Ombudsman in administrative disciplinary cases only. It cannot, therefore, review orders, directives or decisions of the Office of the Ombudsman in criminal or non-administrative cases (Golangco v. Fung, Office of the Ombudsman, GR Nos. 147640-147762, October 12, 2006).

2. In criminal cases, the ruling of the Ombudsman shall be elevated to the SC by way of Rule 65.

p. Review of final judgments or final orders of the NLRC

1. The remedy of a party aggrieved by the decision of the NLRC is to promptly move for the reconsideration of the decision and if denied to timely file a special civil action of certiorari under Rule 65 within sixty (60) days from notice of the decision. In observance of the doctrine of hierarchy of courts, the petition for certiorari should be filed in the CA (St. Martin Funeral Homes v. NLRC, GR NO. 130866, September 16, 1998)

2. Because of St. Martin, all special civil actions arising out of any decision or final resolution or order of the NLRC filed with the SC after June 1, 1999 shall be dismissed instead of referring the action to the CA (A.M. No. 99-2-01-SC).

q. Review of final judgments or final orders of quasi judicial bodies

Appeals from judgments and final orders of quasi-judicial bodies/agencies enumerated in Rule 43 are now required to be brought the CA (Carpio v. Sulu Resource Dev. Corp., 387 SCRA 128).

3. Relief from judgments, orders and other proceedings

a. Grounds for availing of the remedy

Petition from relief maybe filed from:

1. A judgment or final order entered, or any other proceeding taken against a party in any court through FAME (Sec. 1) or 2. A judgment or final order rendered when party, by FAME, has been prevented by taking an appeal. (Sec. 2)

b. Time to file petition

1. Within sixty (60) days after petitioner learns of the judgment, final order or other proceeding to be set aside, and not or more than six (6) months after that such judgment or final order was entered or such proceeding as taken. a) ENTRY is the recording of the judgment or final order in the book of entries of the judgment. b) Ordinarily, a judgment is entered on the date it becomes final and executory which is fifteen(15) days from the date the parties receive the noticed of judgment and no appeal has been taken.

c) The date of finality of the judgment shall be deemed to be the date of its entry. (Rule 36, Sec .2). 2. The two periods must concur; the sixty day period must be necessarily before the end of six month period. The sixty day period of the flexible (PHHC v. Tionco, 12 SCRA 471 [1964]) such that a few day after the sixty day period is not fatal to the petition, provided that the petition was filed within the six month period which is inflexible. (Palomares v. Jimenez, 90 Phil. 733 [1952]; Funtila vs. CA, 93 SCRA 25 [1979]). 3. A party may resort to relief from judgment when: a) A judgment I final or executory (no ore appeal); if not yet final and executor, the remedy is motion for new trial or appeal. b) The party has no adequate remedy at law. The adequate remedy may be appeal, or centiorari when the judgment is void because the court has no jurisdiction.

c. Contents of petition

Verified petition filed in court supported by:

1. Affidavit alleging FAME, and 2. Affidavit of merit facts constituting petitioners good and substantial cause of action or defense, as the case may be.

4. Annulment of judgments or final orders and resolutions

a. Grounds for annulment

The grounds for annulment of a judgment are (a) extrinsic fraud; and (b) lack of jurisdiction (Sec 2, Rule 47)

Extrinsic fraud exists when there is 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 v. CA, 465 SCRA 495)

Lack of jurisdiction is 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 v. G Holdings, GR. No. 141241, November 22, 2005).

b. Period to file action

If based on extrinsic fraud, the action must be filed within four (4) years from its discovery. If based on lack of jurisdiction, the action must be brought before the action is barred by laches or estoppels (Sec 2, Sec 4, Rule 47)

c. Effects of judgments of annulment

1. A judgment of annulment based on lack of jurisdiction shall have the effect of setting aside the questioned judgment or final order and rendering the same null and void but the judgment of annulment is without prejudice to the refilling of the original action in the proper court (Sec 7, Rule 47). The prescriptive period for the refilling of the original action shall be deemed suspended from the filing of such original action until the finality of the judgment of annulment. This prescriptive period shall not however, be suspended where the extrinsic fraud is attributable to the plaintiff in the original action (Sec 8, Rule 47) 2. Where the judgment or final order is set aside and annulled on the ground of extrinsic fraud, the court, upon motion, may order the trial court to try the case as if a motion for new trial was granted (Sec 7, Rule 47) 3. Aside from the setting aside of the judgment or final order and other effects, the judgment of annulment may include the award of damages, attorneys fees and other relief (Sec 9, Rule 47).

5. Collateral attack of judgments

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 v. CA, 196 SCRA 705)

Q. Execution, Satisfaction and Effect of Judgments 1. Difference between finality of judgment for purposes of appeal; for purposes of execution There are two concepts of finality of a final order or judgment, one, it is considered final, with respect to the enforceability of the judgment or order and final with respect to the appealability of the judgment or order. From the point of view of enforceability, a final order or a final judgment is one which can already be enforced because the period for an appeal has expired and no appeal was interposed. From the point of view of appealability, this simply means whether or not the order is appeallable or not.In the case of interlocutory order, after its issuance, there is still something to be done with respect to the merits of the case. So, the order does not put an end to a case. The order is not appeallable. An order

denying the motion to dismiss is an interlocutory order, hence not appeallable. But an order granting a motion to dismiss is final hence appeallable. (Note: Rule 39 speaks of the finality of a final judgment or final order from the POINT OF VIEW OF ENFORCEABILITY) 2. When execution shall issue Execution is a remedy provided by law for the enforcement of a final judgment. Once a decision becomes final and executory, it is removed from the power of jurisdiction of the court which rendered it to further amend, much less revoke. (Republic vs. Reyes 155 SCRA 313 (1987) Decisions which have long become final and executory cannot be annulled by courts. (United CMC vs. Labor Arbiter, 149 SCRA 424(1987) a. Execution as a matter of right b. Discretionary execution 3. How a judgment is executed a. Execution by motion or by independent action Final judgment or order may be enforced in either of two ways:- by the filing of a motion for the issuance of a writ of execution within FIVE (5) YEARS from the entry of judgment; or by an independent action (revival of judgment) after the lapse of the five (5) years period provided the action has not prescribed. b. Issuance and contents of a writ of execution c. Execution of judgments for money d. Execution of judgments for specific acts e. Execution of special judgments f. Effect of levy on third persons 4. Properties exempt from execution EXECUTION (Sec 13, Rule 39) Section 13 OF Rule 39 liberalized the statutory exemptions from execution by: 1. Increasing the exemption from 2 to 3 horses, cows and carabaos; 2. Increasing the limit for household furnitures from P1, 000.00 to P100, 000.00; 3. Extending the provisions for the family from 3 to 4 months; 4. Increasing the exemptions for professional libraries from P3, 000.00 to P300, 000.00; 5. Increasing the exemption for fishing boat from P1, 000.00 to P100, 000.00; 6. The salaries, wages or earnings of the judgment debtor for his personal services for four (4) months instead of just one (1) month preceding the levy; 7. The removal of any upper limit on all benefits or proceeds from a life insurance policy; 8. The rule prescribes a maximum amount of exemption in certain cases. The value beyond the exempt amount can be levied upon; and

9. The duty of the sheriff is to make a levy. It is up to the judgment obligor to claim exemption. If he does not, he waives the exemption. The sheriff has no authority to make the exemption. 5. Proceedings where property is claimed by third persons a. in relation to third party claim in attachment and replevin LEVY IS NECESSARY BEFORE PROPERTY OF JUDGMENT OBLIGOR IS SOLD ON EXECUTION (Sec 9[b], Rule 39) Levy is the act of segregating from the rest of the judgment obligors properties certain properties to answer for the judgment. Levy is the act of execution itself. Once validly made, it is a lien in favor of the judgment oblige, superior to rights of third persons which arose after the levy. THIRD-PARTY CLAIM (Sec 16, Rule 39) A claim of third persons against the title to, or right of possession of, the levied property. 1. How made: By affidavit showing his title to or right of possession of the levied property, served upon the officer making the levy with copy furnished to the judgment obligee. This he must do while the sheriff has possession of the property or before the sale at public auction. The moment the third-party claim is filed, the officer is no longer bound to keep holding the property levied (for there is danger that he will be made personally liable for damages just in case). To make the officer continue holding the levied property, the judgment obligee should file a bond approved by the court to protect the officer from damages. 2. Who acts on the third-party claim? a. Although filed with the officer, it is considered filed with the court which issued the writ of execution. The court either approves or disapproves the third-party claim. If disapproved, the remedy of the third-party claimant is to: (1) File separate action to determine title or right of possession of, the levied property; (2) File a complaint for damages against the bond filed by the judgment creditor within one hundred twenty (120) days from the date of the filing of the bond. b. Only one who has title or right of possession of the levied property is the proper thirdparty claimant. A mortgagee of the property levied upon is not a proper third-party claimant. He has no title to, nor right of possession of, the mortgaged property. 6. Rules on Redemption A. REDEMPTION (Secs 27 & 28, Rule 39) 1. Right of Redemption: a. Personal property none; sale is absolute. b. Real property there is right of redemption. 2. Who may redeem: only the following:

a. The judgment obligor, or his successor-in-interest, in whole or any part of the property; or b. A redemptioner who is a creditor having a: (1) Lien by attachment on the property sold subsequent to the lien under which the property was sold; (2) Lien by judgment on the property sold subsequent to the lien under which the property was sold; (3) Lien by mortgage on the property sold subsequent to the lien under which the property was sold. 3. Time and Manner of, and amounts payable on, successive redemption, etc. a. For the judgment debtor (or his successor-in-interest), if exercising redemption ahead of a mere redemptioner within one (1) year from the date of the registration of the (sheriffs) certificate of sale (with the Register of Deeds): (1) By paying the purchaser the amount of his purchase plus 1% per month interest and amount of any assessments and taxes paid with like interest; and (2) If judgment debtor redeems NO further redemption by any redemptioner. b. For a redemptioner exercising redemption ahead of the judgment debtor (or his successor-in-interest) within one (1) year from the date of registration of the certificate of sale: (1) By paying the purchaser the amount of his purchase plus 1% per month interest and the amount of any assessments and taxes paid with like interest; (2) 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; (3) The judgment debtor may redeem from the redemptioner provider it is done within one (1) tear from the date of registration of the sale; in such case, there is NO further redemption. c. If a redemptioner redeems from another redemptioner within sixty (60) days after the last redemption: (i) Upon payment of the sum paid on the last redemption with 2% thereon in addition, and the amount of any assessments or taxes paid by the last redemptioner with interest thereon and, in addition, the amount of any lien held by said last redemptioner prior to his own, with interest. There is no limit as to the number of redemption from redemptioner by another redemptioner , even if done beyond the one (1)-year period after the registration of the sale, so long as the redemption between the redemptioners is made within sixty (60) days from last redemption.

(ii)

4.

If real property is sold at public auction, the purchaser is not entitled to possession during the redemption period, but the court may issue an injunction against the judgment obligor to avoid waste of the property in the possession of the judgment obligor upon motion of the purchaser or the judgment obligee. (Sec 31, Rule 39)

B. DEED AND POSSESSION AFTER EXPIRATION OF REDEMPTION PERIOD (Sec 33, Rule 39) After the redemption period has expired, and no redemption is made, the purchaser shall be entitled to conveyance and possession of the property and substituted to and acquire all the rights, title, interest and claim of the judgment obligor to the property at the time of the levy. The possession of the property shall be given to him by the same officer. C. ENTRY OF SATISFACTION OF JUDGMENT BY CLERK OFCOURT (Sec 44, Rule 39) Once the judgment is fully satisfied, a satisfaction of judgment shall be executed by the Clerk of Court in the court docket, and in the execution book. 7. Examination of Judgment Obligor When Judgment is unsatisfied 8. Examination of Obligor of Judgment Obligor 9. Effect of Judgment or Final Orders D. EFFECT OF JUDGMENTS AND FINAL ORDERS (Sec 47, Rule 39) These provisions embody the same rule that once a judgment has become final and executor, the issues therein should be laid to rest. There are two (2) main rules or aspects of Res Judicata: a. Paragraph (b) is referred to as bar by former judgment or res judicata where in the first and second case there is identity of parties, of subject matter and of cause of action and the judgment on the merit in the first case constitutes a bar to the second case. b. Paragraph (c) is known as conclusiveness of judgment. this concept refers to a situation where the judgment in the prior action operates as estoppel only as to the matters actually determined or necessarily included therein. Otherwise stated, conclusiveness of judgment precludes relitigation of a particular fact or issue in another action between the same parties on a different claim or cause of action (Ybanez v. CA, 253 SCRA 540, 550). Simply put, where the second action between the parties is upon a different claim or demand, the judgment in the first case operates as an estoppel only with regard to those issues directly controverted, upon the determination of which the judgment is rendered.

10. Enforcement and Effect of Foreign Judgments or Final Orders R. Provisional Remedies 1. Nature of provisional remedies The term provisional means temporary, preliminary or tentative (Tan vs. Adre, 450 SCRA 145). Provisional remedies are temporary, auxiliary, and ancillary remedies available to a litigant for the protection and preservation of his rights while the main action is pending. They are writs and processes which are not main actions and they presuppose the existence of a principal action. 2. Jurisdiction over provisional remedies The court which grants or issues a provisional remedy is the court which has jurisdiction over the main action. Even an inferior court may grant a provisional remedy in an action pending within and within its jurisdiction.

3. Preliminary Attachment It is a provisional remedy issued upon order of the court where an action is pending to be levied upon the property of the defendant so the property may be held by the sheriff as security for the satisfaction of whatever judgment may be rendered in the case (Davao Light and Power, Inc. vs. Court of Appeals, 204 SCRA 343). a. Grounds for issuance of writ of attachment b. Requisites Requisites 1. One of the grounds in Section 1 of Rule 57 exists, stated in an affidavit of the applicant; 2. No other sufficient security for the claim 3. Bond 4. Levy on attachment shall be preceded, or contemporaneously accompanied, by service of summons together with a copy of the application for attachment, the applicants affidavit and bond, and the order and writ of attachment, on the defendant within the Philippines c. Issuance and contents of order of attachment; affidavit and bond d. Rule on prior or contemporaneous service of summons e. Manner of attaching real and personal property; when property attached is claimed by third person f. Discharge of attachment and the counter-bond g. Satisfaction of judgment out of property attached 4. Preliminary Injunction Preliminary injunction is an ancillary or preventive remedy where the court requires a person, a party or even a court or tribunal either to refrain (prohibitory) from or to perform (mandatory) particular acts during the pendency of an action. It is merely a temporary remedy subject to the final disposition of the principal action. a. Definitions and Differences: Preliminary Injunction and Temporary Restraining Order b. Requisites 1. Verified application showing facts entitling the applicant to the relief demanded 2. Bond unless exempted by the court 3. Prior or contemporaneous service of summons, etc. upon the adverse party in the Philippines. c. Kinds of Injunction d. When writ may be issued At any stage of the action prior to the judgment or final order. e. Grounds for issuance of preliminary injunction f. Grounds for objection to, or for the dissolution of injunction or restraining order g. Duration of TRO

h. In relation to RA 8975, Ban on issuance of TRO or Writ of Injunction in cases involving government infrastructure projects i. Rule on prior or contemporaneous service of summons in relation to attachment 5. Receivership a. Cases when receiver may be appointed The purpose of Receivership as a provisional remedy is to protect and preserve the rights of the parties during the pendency of the main action, during the pendency of the appeal or as an aid in the execution of a judgment when the writ of execution has been returned unsatisfied. b. Requisites 1. Verified application with prior hearing 2. Bond c. Requirements before issuance of an Order d. General powers of a receiver 1. To bring and defend, actions in his own name in his capacity as receiver; 2. To keep and take possession of the property subject of the controversy 3. To receive rents 4. To collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver 5. To compound for and o compromise the same 6. To make transfers 7. To pay outstanding debts; to divide the money and the property that shall remain among the persons legally entitled to receive the same 8. Generally, to do such acts respecting the property as the court may authorize. e. Two (2) kinds of bonds f. Termination of receivership 6. Replevin a. When may writ be issued Replevin may be a main action or a provisional remedy. As a a principal action its ultimate goal is to recover personal property capable of manual delivery wrongfully detained by a person. Used in this sense, it is a suit in itself. b. Requisites 1. Affidavit of applicant of his ownership of the subject property and its actual market value 2. Bond double the value of the property

c. Affidavit and bond; Redelivery Bond d. Sheriffs duty in the implementation of the writ; when property is claimed by third party When the court approves the application, the court shall issue an order and the corresponding writ of replevin describing the property alleged to be wrongfully detained. This order shall require the sheriff to take the property into his custody. Upon receipt of the court order, the sheriff must (a) serve a copy of the order on the adverse party, together with a copy of the application, affidavit and bond; and (b) take custody of the property. After the sheriff has taken custody of the property, he must keep it in a secure place. Within 5 days from the taking of the property, the sheriff shall wait for the move of the adverse party. If the latter does not object to the sufficiency of the bond after said period or performs acts to effect the return to him of the property take by the sheriff, the property shall be delivered to the applicant. S. Special Civil Actions 1. Nature of special civil actions Special Civil Actions are suits governed by special civil procedure. A civil action is of two types, namely (a) ordinary civil actions, and (b) special civil actions (Sec. 3(a), Rule 1, Rules of Court) Since a civil action in general is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress a wrong, a special civil action is generally brought for the same purpose. Although both types of actions are governed by the rules for ordinary civil actions, the fact that an action is subject to special rules other than those applicable to ordinary civil action is what makes a civil action special. 2. Ordinary civil actions versus special civil actions 3. Jurisdiction and venue 4. Interpleader Interpleader is a special civil action whereby a person who has property in his possession or an obligation to perform either wholly or partially but who claims no interest in the subject, or whose interest is not disputed by others, goes to court and asks that conflicting claimants to the property or obligation be required to litigate among themselves in order to determine finally who is entitled to the same (Sec. 1, Rule 62) Interpleader is an exception to the rule that a case should be filed by one who has a cause of action. The plaintiff in an interpleader claims no right to cause of action. Subject Matter: 1) Real Property; 2) Personal Property; 3) Performance of an obligation. (Wack wack Golf & Country Club vs Won, 70 SCRA 165) a. Requisites for interpleader

When conflicting claims upon the same subject matter are made against a person who claims no interest whatsoever in the subject matter or an interest which in whole or in part is not disputed by the claimants. The remedy is afforded to protect a person n not against double liability but against double vexation in respect of one liability. (Wack Wack, supra) Motion to dismiss an interpleader is available (Sec 4) Also available in interpleader are declaration of default, allowance of counterclaim, cross-claims, and pre-trial (Sec. 5 and 6) If the would-be plaintiff in interpleader is sued ahead, he should file his answer with a counterclaim for interpleader; if not, interpleader is barred (Wack Wack, supra) b. When to file Jurisdiction: MTC- If subject matter is a property or money of P300,000 or less, or P400,000 or less in Metro Manila. RTC-if beyond MTCs jurisdiction There is an option that the action of interpleader falls solely within the RTC since the action is one incapable of pecuniary estimation; the issue is not the amount but who has the right over the subject matter. PROCEDURE 1. Filing of complaint in interpleader 2. Order a) Upon the filing of complaint, the court issues an order requiring conflicting claimants to interplead with one another (Sec 2) b) If the interest of justice so require, the court may direct in such order that the subject matter be paid or delivered in the court. 3. Summons shall be served upon each of conflicting claimants, together with copy of the complaint and order requiring them to interplead. (Sec 3) 4. Motion to Dismiss Within the time to answer, each claimant may file a motion to dismiss on the ground of impropriety of the interpleader or on ground under Rule 16, Sec 4. 5. Answer and other Pleadings Each claimant shall file his answer, setting forth his respective claim, within 15 days from service of summons upon him, serving copy of his answer upon each of the conflicting claimants. The period to answer is tolled by a motion to dismiss, and if denied, the movant may answer within the remaining period but not less than 5 days from notice of denial. (Sec. 4) Effect of failure to plead: Any claimant who fails to plead within the proper period may, on motion be declared in default and thereafter the court may enter judgment barring him from any claim in respect to the subject matter. (Sec. 5) 6. The parties may file counterclaims, cross-claims, third-party complaints and respective pleadings thereto. (Sec. 5)

7. Determination of case After the pleadings of the conflicting claimants, and after pre-trial, the court shall proceed to determine their respective rights and adjudicate their several claims. (Sec 6) 8. Costs and considered lien on the subject matter, unless the court orders otherwise. (Sec 7) INTERPLEADER IS PROPER AGAINST CONFLICTING CLAIMANTS ONLY BEFORE ANY OF THE CLAIMANTS SUES THE PERSON WHO HAS POSSESSION OF THE SUBJECT MATTER

5. Declaratory Reliefs and Similar Remedies Declaratory relief is a Special civil action brought in the appropriate Regional Trial Court by which the person, (a) interplead under a: DEED; WILL; CONTRACT; Or OTHER WRITTEN INSTRUMENT (b) or whose rights are offered by a : STATUTE; EXECUTIVE ORDER OR REGULATION OR ORDINANCE; OR ANY GOVERNMENT REGULATION, May, (c) before breach or violation thereof, (d) for the court, (1) to determine any question of construction or validity arising under the instrument or statute and (2) for declarations of his rights or duties thereunder (Sec 1) Only parties to the contract or instrument can file action for declaratory relief. (Tadeo vs Prov. Fiscal of Pangasinan, 4SCRA235) The enumeration is exclusive nad no other matter may be subject of an action for declaratory relief. (Lerum vs Cruz, 87 PHIL 652)

a. Who may file the action All parties who have or claim any interest which would be affected by the declaration should be made parties to the declaratory action (sec 2) (a) Where the action involves validity of a statute, executive order or regulation or any governmental regulation, the Solicitor General shall be notified. (Sec 3)

(b) Where the action involves validity of a local government ordinance, the corresponding prosecutor or attorney of the local governmental unit involved shall be notified. If such ordinance is alleged to be unconstitutional, the Solicitor General shall also be notified. (Sec 4) (c) Declaratory Relief may be denied when other parties who would be necessarily affected by the judgment are not represented in the proceedings ( Chua vs Lim, 13 SCRA 254)

b. Requisites of action for declaratory relief 1. Existence of a justiciable controversy (because the terms of the documents or the validity of the statute is doubtful or requires judicial construction); 2. The controversy must be between persons whose interests are adverse; 3. The party seeking declaratory relief must have legal interest in the controversy; 4. The issue involved must be ripe for judicial determination (Tolentino vs Board of Accountancy, 90 PHIL 83)

c. When court may refuse to make judicial declaration 1. When the decision would not terminate the uncertainty or controversy which gave rise to the action; or 2. In any case where the declaration or construction is not necessary and proper under the circumstances. (Sec 5) (Hoskyns vs National City Bank, 85 PHIL 83)

d. Conversion to ordinary action If before the final termination of the case, a breach or violation of an instrument or statute x x should be take place, the action may thereupon be converted into an ordinary action (Sec 6)

e. Proceedings considered as similar remedies A. Reformation of an instrument B. Consolidation of ownership C. Quieting of title to real property

6. Review of Judgments and Final Orders or Resolution of the COMELEC and COA

a. Application of Rule 65 under Rule 64

It is by special civil action of certiorari under Rule 65 to be brought by the aggrieved party to the Supreme Court within 30 days (not 60 days) from notice of the judgment or final order or resolution sought to be reviewed. (Rule 64, Secs 1 and 2) The period is interrupted by motion for reconsideration filed, if allowed under the rules of the Commission concerned; If the motion for reconsiderationis denied, the aggrieved party has the remaining period to file the petition, but not less than 5 days in any event, reckoned from notice of denial. Only judgment or final order or resolution of the COMELEC en banc may be brought to the Supreme Court on petition for certiorari under Rule 65. (Ambil, Jr. v. COMELEC, etc., et al., G.R. No.143398, October 25, 2000) ORDER TO COMMENT (Sec 6) Within 10 days from notice, if the petition is sufficient in form and substance EFFECT OF FILING OF PETITION (Sec 8) Shall not stay execution of the judgment, etc., unless ordered by the Supreme Court SUBMISSION FOR DECISION Upon the filing of the comment on the petition, unless set for oral arguments, or the parties are required to submit memoranda, the case shall be deemed submitted for decision.

b. Distinction in the application of Rule 65 to judgments of the COMELEC and COA and the application of Rule 65 to other tribunals, persons and officers

7. Certiorari, Prohibition and Mandamus (Section 1 to 9) A. CERTIORARI 1. CONSTITUTIONAL PRIVISIONS AND JUDICIAL POWER a) Article VIII, Sec. 1 par. 2, 1987 Constitution Judicial power includes the duty of the courts of justice x x to determine whether or not there has been a grave abuse of discretion amounting to lack of excess of jurisdiction on the part of another branch or instrumentality of the government. b) Id., Sec. 5 (1) The Supreme court shall exercise original jurisdiction over x x x petitions for certiorari, prohibition, mandamus, quo warranto, and hebeas corpus (a) The certiorari refers to certiorari as a special civil action under Rule 65. (2) Review, revise, modify, or affirm an appeal or certiorari, x x final judgments and order of lower court x x. (a) The certiorari refers to certiorari as a special civil action under Rule 45.

2. DISTINCTION BETWEEN CERTIORARI UNDER RULE 45 AS A MODE AND CERTIORARI UNDER RULE 65 AS A SPECIAL CIVIL ACTION: Rule 45 1) As a forum: Rule 65

SC only;

RTC, CA, SB, SC;

2) As a period of filing:

15 days from notice of judgment;

60 days from notice of judgment, etc., except certiorari against the COMELEC and COA which is 30 days;

3) As a parties: Petitioneraggrieve party Same as in lower courts: Petitioner (Appellant) Respondent (Appellee); Respondentlower court/judge and the party interested to sustain the judgment or order sought to be set aside;

4) As to basis: Error of jurisdiction (Lack or excess of jurisdiction or grave abuse of discretion amounting to lack of excess of jurisdiction);

Error of law;

5) As to whom summons or order is served:

Also no summons required; but there is order to comment with copy of petition;

No summons required. Appeal is just a continuation of the original action. But there is order to comment;

6) As to issuance of Writ of Preliminary Injunction: Maybe issue to preserve right of parties during

No ordinarily required the appeal stays the execution;

pendency of proceedings;

7) As to action that may be taken on the judgment:

Correct error of laws; affirm, modify, reverse, revise, amend, the judgment appealed from;

Annual or modify the act and all proceedings flowing from it;

8) As to motion of reconsideration:

Not a requisite for filing the petition.

Ordinarily a requisite for filing the petition.

3.

CERTIORARI (as a Special Civil Action)

It is special civil action: (a) Direct against any (1) (2) (3) Tribunal Board, or Officer

EXERCISING JUDICIAL OR QUASI-JUDICIAL FUNCTIONS

(b)

Which is alleged in a VERIFIED PETITION

(c)

To have acted, (1) (2) (3) Without jurisdiction, or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction

(d)

And there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law,

(e) For the purpose of annulling or modifying the proceedings and granting such incidental reliefs as the law and justice may require (Sec. 1). (i) A tribunal board or officer is said to possess judicial functions when it has the power and authority to pronounce judgment on the controversy, construing and applying the laws to the end. (Ruperto v. Torres, Feb. 25 1957). 4. GROUNDS FOR THE GRANT OF CERTIORARI The tribunal, board or officer (exercising judicial or quasi-judicial functions) has acted:

(a) (b) (c)

Without jurisdiction, or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction

(a) A tribunal board or officer is said to have acted without jurisdiction when it has no jurisdiction from the beginning. In other words there is an absolute want of jurisdiction. (Alafiz v. Nable, 72 Phil 278)

Example:

An inferior court takes cognizance of an action for legal separation

(b) A tribunal board or officer is said to have acted in excess of jurisdiction if it has transcended or acted beyond the limits of its authority, or acted without any statutory authority. (Alafriz v. Nable, supra)

Example: Decision ordered amount paid without interest. Order of execution include payment of interest.(Villamayor v. Luciano, 88 SCRA 156).

Action for support with RTC with granted support pendete like ex parte even if defendant disputed the status of the plaintiff. RTC exceeded its jurisdiction.

(c) A tribunal, board or officer is said to have acted with grave abuse of discretion when it exercised its power in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion or a virtual refusal to perform the duty enjoined or to act in contemplation of law. (Solidum v. Hernandez, 7 SCRA 320).

Example: The act of the court in declaring a defendant in default for his failure t appear at the pre-trial improperly set, as the same was set even before the last pleading has been filed. The court acted with grave

abuse of discretion. (Pioneer ins. v. Hontanosas, 78 SCRA 447; Peggy v. Tapucar 88 SCRA 785; Dimayacyac v. CA, 93 SCRA 265).

5. JURISPRUDENCE

a) Failure to state in the petition for certiorari that the court has acted without or in excess of jurisdiction or with grave abuse of jurisdiction is fatal to the petition. These are jurisdictional matters which must be alleged. (DMarks v. Buendia, et al., CA -GR 45793-R, July 31 1970).

(i) But these allegations need to be expressly and directly made in the petition. So long as they can be deduced from averred facts from which these conclusions can be drawn, the petition is sufficient. (Samson v. Yatco, 1 SCRA 1145).

(aa) But where there is no allegation, nor facts upon which it could be deduced that the court acted without jurisdiction, or in excess of jurisdiction, or with grave abuse of discretion, the petition for certiorari suffers from a fatal defect because that requirement is jurisdictional. (DMarks v. Buendia, supra).

b) As a general rule, where a decision could have been appealed due time but no appeal was made, the special civil action of certiorari would not lie. (Santos v. Cerdenola, 5 SCRA 823).

c) Certiorari may not be availed of as a substitute for appeal, especially where the decision could have been appealed in due time and no appeal was made, certiorari would not lie. (Santos vs. Cerdenola, supra). But in the following cases, certiorari can be availed of as a substitute for appeal or notwithstanding availability of appeal:

(i) Where the failure to appeal within the prescribed period was due to accident and excusable negligence on the part of the apellants counsel. (Pendon v. Cabatuando, 25 SCRA 184).

(ii) Certiorari will lie even after the time to appeal has elapsed as where the court acted without jurisdiction (making the decision void) or where the court clearly exceeded its jurisdiction. (City of Manila v. Macadaeg, 3 SCRA 484).

(iii) Certiorari is proper even where appeal is available when appeal is a mere technicality and which may accomplish nothing substantial (Rubio v. Mariano, 52 SCRA 338), or where appeal is inadequate or ineffectual. (Romero v. CA, 40 SCRA 172).

d) When a court has jurisdiction over the subject matter, and a motion to quash was denied, the court acted with jurisdiction in denying such motion to quash. Appeal in due time from the judgment is the remedy, not certiorari, since the court acted with jurisdiction. Wait for the decision, and if it is against the accused, appeal from that decision and assign as error the action of the court in denying the motion to quash. (Ramos v. Pamaran, 60 SCRA 327). (i) But even if the court has jurisdiction, if in denying the motion to quash, it acted with grave abuse of discretion amounting to lack or excess of jurisdiction, certiorari will lie.

6.

DISTINCTIONS BETWEEN ERROR OF JURISDICTION AND ERROR OF JUDGMENT

When a court has no jurisdiction on a subject matter, and proceeded and rendered a decision, it committed an error of jurisdiction; the decision is null and void even if it is correct. The remedy is certiorari, not appeal. But when a court has jurisdiction on a subject matter, and proceeded and rendered a decision, but the decision is not correct, it committed an error of judgment; the decision is valid even if it is wrong. The remedy is appeal, not certiorari. (a) Error of judgment is one which the court may commit in the exercise of jurisdiction which it has; it is reviewable by appeal; (b) Error of jurisdiction renders an order or judgment void; it is correctible by certiorari.

(i) Where the issue or question involved affects the wisdom or soundness of the trial courts decision, and not the jurisdiction of the court to ren der said decision, or its validity, the same is beyond certiorari. (Phil. Surety v. Jacala, L-2766, May 25, 1960). When the court has jurisdiction and the order or decision was made with jurisdiction, however irregular or erroneous they may be, the order or decision cannot be corrected by certiorari. Remedy is appeal. (Cochingyan v. Cloribel, 76 SCRA 361). 7. WHAT IS MEANT BY A PLAIN, SPEEDY AND ADEQUATE REMEDY (OTHER THAN APPEAL)?

It is a remedy equally beneficial, speedy and sufficient; a remedy which will promptly relieve the petitioner from the injurious effects of the judgment or acts of the inferior court or tribunal. An example of such remedy is a motion for reconsideration. (Mayol v. Blanco, 61 Phil. 547). By a motion for reconsideration, the court which rendered the questioned order or decision is given the opportunity to re-examine the legal aspect of the case; the court might yet reconsider the same by modifying or altering or even setting aside the questioned order or decision.

8.

CONDITION TO BE MET BEFORE CERTIORARI WILL BE INVOKED AS A REMEDY:

File the motion for reconsideration first, to afford the judge the opportunity to correct his error, which is the plain, speedy and adequate remedy in the ordinary course of law. (a) But certiorari may be initiated without necessity of first filing a motion for reconsideration as held in Cochingyan v. Cloribel, 76 SCRA 361: (i) Where the question of jurisdiction has been squarely raised, argued before, submitted to, and met and decided by the court. (also in Klaveness, etc. v. Palmos, 51 SCAD 311, 232 SCRA 448, 452); (ii) (iii) Where the questioned order is a patent nullity; Where there is clear deprivation of petitioners fundamental rights to due process.

9. THE PRIVATE OFFENDED PARTY MAY FILE, IN HIS OWN NAME, AND ON JURISDICTIONAL GROUND, A SPECIAL CIVIL ACTION QUESTIONING THE DECISION OR ACTION OF THE TRIAL COURT IN DISMISSING A CRIMINAL CASE. (Dela Rosa v. CA, 68 SCAD 271, 253 SCRA 499, citing People v. Santiago, 175 SCRA 143, 152-153).

B. PROHIBITION 1. PROHIBITION DEFINED Prohibition is a special civil action;

(a)

directed against any ---

(1) (2) (3) (4) (5)

tribunal Corporation Board Officer, or Person

WHETHER EXERCISING JUDICIAL, QUASI-JUDICIAL OR MINISTERIAL FUNCTIONS (b) (c) which is alleged in a verified petition --to be acting or about to act --(1) (2) (3) (d) without jurisdiction, or

in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there being no appeal or any other plain, speed adequate remedy in the ordinary course of law;

(e) praying that judgment be rendered commanding the respondents to desist from further proceedings in the action or matter specified therein. (Sec. 2). 2. THE REQUIREMENTS AND MEANING OF ACTING:

a) without jurisdiction, b) in excess of jurisdiction, c) with grave abuse of discretion,

which are explained above under Certiorari, supra, have the same application and meaning in prohibition.

Allegations of acting without jurisdiction, in excess of jurisdiction or with grave abuse of discretion which are jurisdictional matters too be alleged (or deduced) as to be applied to certiorari, also apply to prohibition.

The provision relating to existence of appeal , or any other plain speedy and adequate remedy to bar certiorari, as well as when these will not bar certiorari even if present, also applies to prohibition.

3. DISHTINGUISH CERTIORARI FROM PROHIBITION Certiorari a) Purpose: Prohibition

To annual proceedings;

To prohibit or stop proceedings;

b) Status of Acts:

Act already consummated;

Acts about to be done;

c) Nature:

Corrective---it consummated

operates

on

acts

already

Preventive---its function is to restrain the doing of acts about to be done.

4. DISTINGUISH JURISDICTION FROM INJUNCTION

a) Prohibition is directed from the court, Injunction is directed to the parties litigants. b) Injunction recognizes the jurisdiction of the court where the case is pending; Prohibition strikes at the very jurisdiction of the court.

C. MANDAMUS

1. MANDAMUS DEFINED Mandamus is a very special civil action

(a)

directed against any --(1) (2) (3) (4) (5) (b) (c) Tribunal Corporation Board Officer or Person which is alleged in verified petition to have unlawfully ---

(1) from:

Neglected the performance of an act which the law specially enjoins (ministerial) as a duty resulting

(i) (ii) (iii) (2)

an office, trust, or station,

Or excluded another from the use and enjoyment of a right or officeto which such other is entitled. (d) there being no other plain, speedy, and adequate remedy in the ordinary course of law

(e) for the purpose of having the court command the respondent (immediately or at some other specified time) --(1) to do the act required to be done to protect the rights of the petitioner, of the respondent

(2) and to pay damages sustained by the petitioner by the reason of wrongful acts (Sec. 3). 2. TWO (2) ASPECTS (GROUND) OF MANDAMUS a) x x x Unlawfully neglects the performance of a ministerial act

(i) Mandamus is available only to compel the performance of the ministerial duty (Prov. Of Pangasinan v. Reparations Commission, 80 SCRA 376). (aa) Ministerial if no discretion is left to the office on whom the duty is imposed.

(ii) But, if the discretionary duties were tainted with clear and grave abuse of discretion , mandamus will lie (Talavera-Luna v. Nable, 67 Phil 340) b) x x unlawfully includes another from the use of enjoyment of a right or office to whom such other was entiitled.

(i) In an action to compel reinstatement, when will the action be mandamus, and when will it be quo warranto?

(aa) If the person excluding another from the office does no claim the office himself, the action is mandamus; (bb) But if the person excluding another from an office is also claiming that warranto. office , the action is quo

D. COMMON COMMENTS

1. SIMILARITIES IN CERTIORARI, PROHIBITION AND MANDAMUS

1. All need verification; 2. All require that there be no plain, speedy and adequate remedy in the ordinary course of law; 3. In all of them, the court may grant preliminary injunction to preserve the right of the parties during the pendency of said actions (Sec. 7, Rule 65). 2. DISTINGUISH THE THREE Certiorari 1. Directed against the entity or person exercising judicial or quasi-judicial function. Prohibition Directed against the entity or person exercising judicial, quasi-judicial or ministerial function. Mandamus Directed against the entity or person exercising ministerial function.

2. Entity or person is alleged to have acted:

Entity or person is alleged to have acted:

Entity or person is alleged to have unlawfully:

a) Without jurisdiction or b) In excess jurisdiction of

Without jurisdiction or In excess of jurisdiction

a) Neglected a ministerial duty; or b) Excluded another from a right or office.

c) With grave abuse of discretion amounting to lack of excess of

With grave abuse of discretion amounting to lack of excess of jurisdiction.

jurisdiction.

Purpose is for respondent to:

3. Purpose is to annul or nullify a proceeding.

Purpose is to have respondent desist from further proceeding.

a) Do the act required and b) To pay damages.

4. This remedy is corrective -- to correct usurpation of jurisdiction.

This remedy is preventive and negative --- to restrain or prevent usurpation of jurisdiction.

This remedy id affirmative or positive (if the performance of a duty is ordered) or it is negative (if a person is ordered to desist from excluding another from a right or office ).

3.

RESPONDENTS IN CERTIORARI, PROHIBITION AND MANDAMUS 1. The judge, entity or person concerned; and 2. The person interested in sustaining the proceeding in court (if the petition relates to an act or omission of a judge or court).

4.

WHERE TO FILE PETITION FOR CERTIORARI, PROHIBITION AND MNDAMUS 1. In the Supreme Court; 2. In the Court of Appeals 3. In the Sandiganbayan if in aid of its jurisdiction; 4. In the RTC if it relates to an act or omission of a lower court or of a corporation, board, officer or person within its territorial area.

5. WHEN TO FILE PETITION

Not later than sixty (60) days from notice of the judgment, order or resolution sought to be assailed.

6. PROCEDURE TO BE FOLLOWED AFTER FILING OF PETITIONS FOR CERTIORARI, PROHIBITIONS AND MANDAMUS (Sections 6, 7, 8 and 9)

1. Court orders respondents to comment within ten (10) days, if it finds the petition sufficient inform and substance; or dismiss the petition if it finds the same to be patently without merit. (Sec. 6);

2. Court, after giving due course to the petition, if prima Facie meritorious, orders the parties to submit memorandum; 3. Court may make orders expediting proceeding; it may grant injunctive relief (Sec. 7) 4. Court will render judgment granting relief prayed for or to which the petitioner is entitled (Sec. 8); 5. Certified copy of judgment to be serve upon the parties (Sec. 9); 6. Execution may issue for award of damages and costs (Sec. 9); 7. Disobedience to the judgment may be punished as in contempt (Sec. 9).

a. Definitions and distinctions

b. Requisites

c. When petition for certiorari, prohibition and mandamus is proper

d. Injunctive relief

e. Certiorari distinguished from Appeal by Certiorari; Prohibition and Mandamus distinguished from Injunction; when and where to file petition

f. Exceptions to filing of motion for reconsideration before filing petition

g. Reliefs petitioner is entitled to

h. Actions/Omissions of MTC/RTC in election cases

i. Where to file petition

j. Effects of filing of an unmeritorious petition

8. Quo Warranto RULE 66 QUO WARRANTO (Sections 1 to 12)

A. QUO WARRANTO DEFINED

Quo warranto is a special civil action to determine the rights to the use of the exercise of an office or a franchise, and to oust the holder from its enjoyment if his claim is not well founded, or if he has forfeited hid right to enjoy the privilege. (Castro v. Del Rosario, 19 SCRA 196). B. DISTINGUISH FROM OTHER REMEDIES

Quo Warranto

Mandamus

1. There is usurpation of public office by another; usurper assumes the office.

There is an ousting from office by another; the ouster does not assume the office.

2. The right to office of the occupant is not clear so this right becomes the subject of the action.

The right or legal duty is clear, so the purpose o the action is to enforce this right.

Quo Warranto

Election Contest

1. As to basis:

The occupant of the office is disqualified from holding the office because of ineligibility or disloyalty to the Republic.

The person holding the office is not entitled thereto because the irregularity in the conduct of election.

2. As to effect:

If petitioner succeeds, the respondent will be

ousted, but the petitioner will not assume the office.

If the protestant succeeds, he will assume the office if he had obtained a plurality of the valid votes.

Quo Warranto proceedings in elective and appointive office:

1. As to issue: Elective Appointive --- Eligibility of the respondent. --- Legality of the appointment.

2. As to Effect Elective --- The occupant declared ineligible or disloyal will be unseated, but the petitioner will not be declared the rightful occupant to the office. Appointive --- The court will oust the person illegally appointed, and order the seating of legally appointed and entitled to the office. the person

C. COMMENCEMENT OF ACTION (3 ways) 1. By the Solicitor General or Public Prosecutor, when directed by the president of the Philippines, or when upon compliant or otherwise, he has good reason to believe in the merit of the case (Sec. 2);

2. By the Solicitor General or Public Prosecutor, with the permission of the court in which the action is to be commenced, upon request of another person (Sc. 3);

a. The person requesting does not claim the office and not convince the prosecutor of the merit of the case, so the persecutor asks the courts permission to file the case and requires from the said person an indemnity for expenses and costs. 3. By individual claiming to be entitled to a public office or position usurped or unlawfully held or exercise by another (Sec . 5);

a. The individual plaintiff must have a real interest in the outcome of the case, i.e., his right to the office or position has been usurped from him. b. A legal director of a corporation whose position is usurped may file QW with the SEC.

D. AGAINST WHOM (Sec . 1) 1. A person who usurps, intrudes into, or unlawfully holds or exercise a public office, position or franchise;

2. A public officer who does or suffers an act which by the provision of the law, constitute a ground for the forfeiture of his office; or 3. An association which acts as a corporation within the Philippines without being legally incorporated without lawful authority to so act.

E. QUO WARRANTO AGAINST INDIVIDUAL 1. Grounds (Sec. 1[a] and [b]) 2. Jurisdiction and Venue (Sec. 7) a. Supreme Court, b. Court of Appeals, c. RTC exercising jurisdiction over the territorial area where the respondent resides; (i) But when commenced by the Solicitor General, it may be brought in the RTC in Manila or in CA or SC. 3. Parties and contents of petition against usurpation (Sec. 6) 4. Judgment where usurpation found (Sec. 9): a. Respondent is ousted/excluded from the public office, position or franchise; b. Petitioner recovers his costs; c. Judgment on the respective rights in and to the public office, position or franchise of all the parties. 5. Rights of persons adjudged entitled to public office (Sec. 10): a. After taking oath of office and bond, he takes upon himself the execution of the office and demands of the respondents all the books and papers in their custody and control appertaining to the office. b. He may bring action against the respondents to recover damages sustained by reason of the usurpation. 6. Limitations (Sec. 11) a. One (1) year to commence action against a public officer or employee for his ouster after cause of such ouster or the right of petitioner to hold such office or position arose; b. One (1) year after entry of the judgment establishing the petitioners right to the office to commence action for damages in accordance with section 10.

F. QUO WARRANTO AGAINST ASSOCIATION

1. Grounds (Sec. 1[c]) 2. Jurisdiction and Venue

a. Supreme Court b. Court of Appeals c. RTC exercising jurisdiction over the territorial area where the respondent resides; 1) But when commenced by the Solicitor General, it may be brought in the RTC of Manila on in CA or SC; (aa) May it be brought to the SEC under PD 902-A? Yes, I against a corporation.

a. Distinguish from Quo Warranto in the Omnibus Election Code

b. When government commence an action against individuals

c. When individual may commence an action

d. Judgment in Quo Warranto action

e. Rights of a person adjudged entitled to public office

9. Expropriation RULE 67 EXPROPRIATION (Sections 1 to 14)

A. JURISDICTION AND VENUE 1. Jurisdiction: RTC --- action is incapable of pecuniary estimation 2. Venue: a. If against real property (real action) --- location of property; b. If against personal property (personal action) --- residence of plaintiff or defendant at the election of the plaintiff.

B. PARTIES 1. Plaintiff --- Government or entity authorized by law. 2. Defendant --- owner or claimant of the subject property.

C. PROCEDURE 1. Verified compliant (Sec. 1) stating: a. Right and purpose of expropriation; b. Description of subject property; c. As defendants, all persons owning or occupying the subject property, showing their separate interests. 2. Entry of plaintiff upon depositing value (Sec. 2): a. After due notice to the defendant; b. Deposit amount of equivalent to ht assessed value of the property if real, or amount fixed by court if personal, with authorized government depository; c. Court orders sheriff to place plaintiff possession of the property involved. 3. Defenses and Objections (Sec. 3) a. If none, defendant files and serves as a notice of appearance and a manifestation to that effect; thereafter, he shall be entitled to notice all proceedings; b. If there is, defendant files his answer within the time stated in the summons stating the extent of his interest and all objections and defenses to the taking of hi property; 1) Prohibited pleadings: counterclaim, cross-claim, or third party compliant; 2) All defenses and objections not alleged are waived. But, at the trial of the issue of just compensation, whether defendant was answered or not, he may present evidence as to the amount of compensation to be paid for his property, and he may share in distribution of the award. So, there is no default.

4. Order of Expropriation (Sec. 4) a. If objections and defenses are overruled, or when no party appears to defend, the court issues order of expropriation declaring that plaintiff has a lawful right to take the property sought to be expropriated, for public use or purpose describe in the complaint. 1) Order is appealable, but the appeal shall not prevent the court from determining the just compensation to be paid. 5. Ascertainment of Compensation (Secs. 5, 6, 7, 8)

a. Court appoints three (3) Commissioners to ascertain and report to the court just compensation; b. Reception of evidence on just compensation (Sec. 6); Formula: actual value plus consequential damages to the property not taken less consequential benefits to be derived by the owner from the public user or purpose of the property taken operation of the franchise or business of the expropriator. 1) The just compensation is determined as of the date of taking or filing of the compliant, whichever came first (Sec. 4, 1st par.). c. In EPZA v. Dulay, 149S SCRA 305, the SC declared several PDs fixing just compensation as unconstitutional and says that the court has the power to determine just compensation and appoint commissioners for the purpose. d. Report by Commissioners and judgment thereon (Sec. 7); 1) Report is submitted to the court with notice to the parties within 60 days from their appointment; 2) Objection by the parties to the report within 10 days from receipt thereof. 6. Judgment fixing compensation (Sec. 8) a. A judgment secures to the plaintiff the property essential to the exercise of his right o expropriation, and to the defendant the just compensation for the property so taken. b. There are two (2) final orders/judgment in expropriation: 1) Order of expropriation; and 2) Judgment fixing just compensation. So, it is a case of multiple appeals where record on appeal is required (Mun. of Bian v. Garcia 180 SCRA 576). 7. Entry not delayed by appeal; effect of appeal a. Entry of plaintiff upon the property shall not be delayed by appeal from the judgment; b. If judgment in reserve against the plaintiff, appellate court orders the RTC to enforce restoration and damages to the defendant. 8. Recording of judgment (Sec. 13) a. Certified copy of the judgment shall be recorded I the Registry of Deeds of the place where the subject property is situated which shall vest in the plaintiff the title thereto.

a. Matters to allege in complaint for expropriation

b. Two stages in every action for expropriation

c. When plaintiff can immediately enter into possession of the real property, in relation to RA 8974

d. New system of immediate payment of initial just compensation

e. Defenses and objections

f. Order of Expropriation

g. Ascertainment of just compensation

h. Appointment of Commissioners; Commissioners report; Court action upon commissioners report

i. Rights of plaintiff upon judgment and payment

j. Effect of recording of judgment

10. Foreclosure of Real Estate Mortgage

RULE 68 FORECLOSURE OF REAL ESTATE MORTGAGE (Sections 1 to 8) A. COMPLAINT (Sec. 1) It shall set forth the following: a. Date and due execution of the mortgage; its assignment, if any; b. Name and residence of the mortgagor and the mortgagee; c. Description of the mortgaged property; d. Statement of the date of the note or order documentary evidence of the obligation secured by the mortgage; e. Amount claimed to be unpaid thereon;

f.

Names and residence of all persons having or claiming interest in the property subordinate in right to that of the holder of the mortgage, all of whom shall be made defendants in the action.

B. ANSWER AND SUBSEQUENT PROCEEDING a. Summons b. Answer c. Pre-trial d. trial C. JUDGMENT ON FORECLOSURE FOR PAYMENT OD SALE (Sec. 2) Judgment is for the sum found due and orders that the same be paid within a period not less than 90 days nor more than 120 days from entry of judgment, and that in default of such payment the property shall be sold at public auction to satisfy the judgment. D. SALE OF MORTGAGED PROPERTY; EFFECT (Sec. 3) a. In default of payment of the judgment debt, the court, on motion, shall order he property sold under Rule 39 and other regulation governing sale of real estate under execution; b. Sale at public auction pursuant to notice of sale posted and published dif required; c. Sheriffs certificate of sale to the highest bidder; 1) Equity of redemption before confirmation of sale. No right of redemption except when provided by laws as when the mortgagee creditor is a bank. d. Order of confirmation of sale upon motion; 1) Confirmation of the sale divests the rights in the property of all the parties to the action and vests their right in the purchaser , subject to such rights of redemption as may be allowed by law. 2) The order of confirmation of sale is appealable (ocampo v. Dimalanta, 20 SCRA 1136). 3) Upon finality of the order of confirmation or upon the expiration of the period of redemption when allowed by law, the purchaser or the last redemptioner shall be entitled to the possession of the property. He may secure a writ of possession, upon motion, from the court which ordered the foreclosure. E. DEFICIENCY JUDGMENT (Sec. 6) In case of deficiency the court, upon motion, shall render judgment against the defendant for any such balance x x x upon which execution may issue. F. FINAL ACT (Sec. 7) a. Registration with the proper Registry of Deeds of the sheriffs sale and order of confirmation of sale; 1) If no right of redemption exist, the certificate of title of the mortgagor is cancelled and new one is issued in the name of the purchaser. see rules on ordinary action since Rule 68 is silent on this point.

2) If the right of redemption exist, the certificate of title id not cancelled but the certificate of sake and the order of confirmation of sale shall be registered with a brief memorandum thereof made by the registrar of deeds upon the certificate of title. (a) If redeemed, the deed of redemption shall be registered and a brief of memorandum thereof shall be made by the registrar of deeds on the title. (b) If not redeemed, the final deed of sale executed by the sheriff in favor of the purchaser shall be registered with the registry of deeds, where upon the certificate of title in the name of the mortgagor is cancelled and a new one is issued in the name of the purchaser. G. THESE ARE THREE (3) ORDERS IN JUDICIAL FORCLOSURE WHICH ARE APPEALABLE, TO WIT: a. Judgment on Foreclosure; b. Order of confirmation of sale; c. Deficiency judgment. But they are not a case of multiple appeals because the judgment on the foreclosure must first become final before there can be sale of the mortgaged property at the public auction and order of confirmation a deficiency judgment is obtained, not during the pendency of each, unlike in the case of expropriation the appeal from the order of expropriation does not prevent the court from determining just compensation to be paid.

a. Judgment on foreclosure for payment or sale b. Sale of mortgaged property; effect c. Disposition of proceeds of sale d. Deficiency judgment (1) Instances when court cannot render deficiency judgment e. Judicial foreclosure versus extrajudicial foreclosure f. Equity of redemption versus right of redemption

11. Partition

RULE 69 PARTITION (Section 1 to 13) A. COMPLAINT IN PARTITION OF REAL PROPRTY (Sec. 1) a. Parties: 1) Plaintiff --- the person having the right to compel partition; 2) Defendants --- all other persons interested in the property

b. All co-owners are indispensable parties c. Complaint must set forth: 1) Nature and extent of plaintiffs title; 2) Adequate description of real estate; and 3) Joining as defendants all other persons interested in the property. B. ANSWER AND SUBSEQUENT PROCEEDING a. Answer after summons b. Per-trial c. Trial C. ORDER OF PARTITION AND PARTITION BY AGREEMENT (Sec. 2) a. After trial and the court finds for the plaintiff, it shall order partition among all the parties in interest; (i) The final order decreeing partition and accounting aggrieved thereby. may be appealed by any party

Actual partition b. If parties are agreeable, they make the partition agreement and submit to the court for confirmation which shall be recorded with the Registry of Deeds of the place where the property is situated. c. If parties are unable to agree upon partition: (i) Court appoints three (3) commissioners to make the partition: (a) (b) They view and examine the real estate; They hear the parties preference in the portion of property to be set apart. D. JUDGMENT OF PARTITION a) Judgment of partition is rendered based on the commissioners report (Sec. 7) b) Judgment of accounting for rent and profit (Sec. 8). E. APPEALS Actions for partition admits multiple appeal at each of their stages, to wit: a. Order of Partition b. Judgment of Accounting c. Judgment of Partition. Hence, record on appeal is required.

F. PARTITION OF PERSONAL PROPERTY (Sec. 13) a. Some rule applicable to partition of real property applies to partition of personal property.

a. Who may file complaint; who should be made defendants b. Matters to allege in the complaint for partition c. Two (2) stages in every action for partition d. Order of partition and partition by agreement e. Partition by commissioners; Appointment of commissioners, Commissioners report; Court action upon commissioners report f. Judgment and its effects g. Partition of personal property h. Prescription of action 12. Forcible Entry and Unlawful Detainer RULE 70 FORCIBLE ENTRY AND UNLAWFUL DETAINER (Sections 1 to 21) A. PRELIMINARY There are three (3) kinds of real actions (involving real property): a. Action Reinvindicatoria --- An ordinary action to recover the real property where ownership or title is involved. b. Accion Publiciana --- An ordinary action to recover the real right of possession or possession de jure. (i) In these two (2) cases, the MTC has jurisdiction if the assessed value of the subject land does not exceed 20,000.00 or 50,000.00 I Metro Manila; if it exceeds, the RTC has jurisdiction. c. Forcible entry and Unlawful Detainer --- A special civil action to recover mere physical possession or possession de facto. This is the special civil action treated under Rule 70 forcible entry and unlawful detainer. (i) FEUD is within the exclusive original jurisdiction of the MTC. B. FORCIBLE ENTRY DEFINED a. Forcible entry consist in depriving a person of possession of land or building, for a period NOT EXCEEDING ONE (1) year, by (1) force or (2) intimidation, or (3) stealth, or (4) threats, or (5)strategy (FISTS). b. Elements of forcible entry ---

1) Plaintiff in actual possession; 2) Deprive of such possession; 3) By force, or intimidation, or stealth, or threats, or strategy; 4) He files the action to recover with one (1) year from date of deprivation of possession. c. The action will not be forcible entry, but Accion Pulbiciana if: 1) Plaintiff wa not in possession at the time defendant entered; 2) Defendant entered by some other means and not thru force, intimidation, stealth, threats and strategy; 3) Plaintiff does not file the action within one (1) year from the deprivation of possession by FISTS. C. UNLAWFUL DETAINER DEFINED Unlawful detainer consists in the unlawful withholding by a person from another, for not more than one year (from the last demand to vacate, or from the termination of the period of the lease) of the possession of any land or building, after the termination of the right to hold possession by virtue of a contract, express or implied (Tenerio v. Gamboa, 81 Phil. 55). D. DISTINGUISH FORCIBLE ENTRY FROM UNLAWFUL DETAINER Forcible Entry Unlawful Detainer

1. Possession unlawful from very beginning.

1. Possession was lawfully acquired and became unlawful only because of the termination of the right to hold possession (Medel v. Militante, 41 Phil. 526)

2. Formal demand to vacate is not necessary before the filing of the action.

2. A formal demand to vacate is required before the action is filed, if the ground for rejecting is failure to pay rents or failure to comply with the conditions of the lease. Note: But if the ground for ejecting is expiration of the period of lease, formal demand is not necessary before ejectment suit is recommenced; the lease contract itself is the demand.

E. DISTINGUISH FORCIBLE ENTRY OR UNLAWFUL DETAINER FROM ACCION PUBLICIANA

Forcible Entry or Unlawful Detainer

Accion Publiciana

1. Special Civil Action; 2. Governed Procedure; by rule Summary

1. Ordinary Civil Action; 2. Governed by procedure; ordinary rules or

3. Recovery of physical possession;

3. Recovery of right of possession (possession de jure); 4. Jurisdiction

4. Jurisdiction --- MTC; 5. To be filed within one (1) year from date of (a) unlawful deprivation (in forcible entry) or (b) from date of unlawful withholding (in unlawful detainer;

5. May be filed at any time before ownership or other real rights to the real property involve are lots by acquisitive prescription (Art. 1141, Civil Code);

Note: If not filed within said one (1) year it must be filed as accion publiciana.

6. Judgment against defendant is immediately executor (even if decision is not yet final compellable by mandamus, unless duly stated (Sec. 19, Rule 70).

6. Judgment against defendant if not yet final, is not immediately executor, but may be immediately executed (even if not yet final) at courts discretion for good reasons, under Sec. 3, Rule 39, Rules of Court.

F. WHO MAY BRING THE ACTION OF FORCIBLE ENTRY Any person who has deprived of possession of land or building by force, or intimidation, or stealth, or threats, or strategy. 1. He must be a person in actual possession of the property when defendant entered and deprived him of possession. If at the time defendant entered, plaintiff was not in possession, h could not have been deprive of his possession. Then his action should not be forcible entry, but an accion publiciana to recover possessions. 2. To file an action of forcible entry, formal demand for defendant to vacate is not a requirement in order that the action may be filed. 3. The forcible entry action must be filed within one (1) year from the date of forcible entry; otherwise the action will be accion publiciana. G. WHO MAY BRING THE ACTION FOR FORCIBLE ENTRY

a. Any 1) Landlord, 2) Vendor, 3) Vendee, 4) Or other person (co-owner). Against whom the possession of any land or building is unlawfully withheld, After the expiration or termination of the right to hold possession by virtue of any contract, express or implied. b. The legal representative of: 1) Such landlord, 2) Such vendor, 3) Such vendee, 4) Such other person (co-owner). H. WHO SHALL BE MADE DEFENDANT a. In forcible entry --- the person or persons in possession at the time the commencement of the action (Co Tiac v. Natividad, 80 Phil. 127). b. In unlawful detainer --- the person or persons in possession at the time of commencement of the action (Co Tiac v. Natividad, supra). Even the owner of house or lot may be defendant. Ownership is not involve (Masalo v. Cesar, 39 Phil. 230)

I.

ESSENTIAL ALLEGATIONS OF A COMPLAINT FOR FORCIBLE ENTRY 1) Prior physical possession of the land or building by the plaintiff; and 2) Unlawful deprivation of possession by the defendant (Maddammu v. Mun. Court of Manila, 74 Phil. 230).

J. ESSENTIAL ALLEGATIONS OF A COMPLAINT FOR UNLAWFUL DETAINER In unlawful detainer, a simple allegation in the complaint that the defendant is unlawfully withholding possession from the plaintiff is sufficient, for the words unlawfully withholding imply possession to the part of the defendant, which was lawful at the beginning, expired later as a right, and which is being withheld by the defendant (Co Tiamco v. Diaz, 75 Phil. 672). K. ISSUES INVOLVED IN EITHER FORCIBLE ENTRY OR ILLEGAL DETAINER The main issue is possession de facto, independently of any claim of ownership or possession de jure that either party may set forth in his pleading. (Medirn v. Villanueva, 37 Phil. 752). The action is for the restitution of such possession, together with damages and costs. (Sec. 1, last sentence; Sec. 18). L. PROCEDURE

a. Verified complaint. b. Summons with order that the case is governed by procedure (Sec. 5). c. Verified answer within 10 days from service of summon (Sec. 8). 1) If no answer, court may render judgment based on the complaint. d. Preliminary conference (Sec. 8). 1) If plaintiff does not appear, complaint maybe dismissed; 2) If defendant does not appear, judgment will be rendered on the complaint. e. Submission of affidavits and position paper (Sec. 10). 1) No trial type hearing. Case will be decided based on the pleadings, affidavits and position papers of the parties. f. Judgment (Sec. 17).

g. Immediate execution of judgment, unless stayed (Sec. 19). 1) Immediate execution against defendant is stayed by: a) Perfection of defendants appeal; b) Defendant posting a supersedeas bond; and c) Defendant depositing with the appellate court the amount of monthly rent fixed and due. h. Appeal (Sec. 19). 1) Judgment of RTC on appeal against the defendant is immediately executor (Sec. 21).

13.

a. All actions is FUED are governed by summary procedure incorporated in the Rule (Sec. 3). b. Lessor is proceed against lessee only after demand to pay or comply with the conditions of the lease and to vacate is made upo n the lessee, x x x and the lessee fails to comply therewith after fifteen (15) days in the case of land or five (5) days in the case of buildings. c. Preliminary injunction may be granted in cases of FEUD (Sec. 15). d. When the defendant raise The defense 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 (Sec. 16). e. Judgment in FEUD conclusive only in actions involving title to or possession of the land or building (Sec. 18).\ f. RTC judgment is FEUD cases is immediately executor (Sec. 21).

a. Definitions and Distinction b. Distinguished from accion publiciana and accion reinvindicatoria

c. How to determine jurisdiction in accion publiciana and accion reinvindicatoria d. Who may institute the action and when; against whom the action may be maintained e. Pleadings allowed f. Action on the complaint g. When demand is necessary h. Preliminary injunction and preliminary mandatory injunction i. Resolving defense of ownership j. How to stay the immediate execution of judgment k. Summary procedure, prohibited pleadings

13. Contempt RULE 71 CONTEMPT (Sections 1 to 12) A. CONTEMPT DEFINED Contempt is a disregard of, or disobedience to, the rules or orders of legislative or judicial body, or an interruption of its proceedings by disorderly behavior or insolent language, in its presence or so near thereto as to disturb the proceedings or to impair the respect due to such a body (17 C.J.S. 4). B. NATURE OF THE POWER TO PUNISH FOR CONTEMPT AND REASON THEREFOR Power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order and to the enforcement of judgments, orders and mandates of the courts; and consequently , to the due administration of justice. The reason behind this power is that respect of the courts guarantees stability of their institution. Without such guarantee, said courts would be resting on a very shaky foundation (Cornejo v. Tan, 85 Phil. 772). C. CLASSES OF CONTEMPT (a) As to the manner of commission, contempt is either: 1. Direct when the contemptuous act is done before a judge (Sec. 1); or 2. Indirect when the contemptuous act is not done before a judge. (b) As to nature, contempt is either: 1. Criminal contempt a conduct directed against authority and dignity of the court or judge acting judicially, as in unlawfully assailing or discrediting the authority or dignity of the court or judge, or in doing a duly forbidden act. The purpose is for the court for the better administration of justice. 2. Civil contempt a failure to do something ordered done by the court in a civil case, for the benefit of the party (Perkins v. Dir. Of Prisons, 58 Phil. 271).

Examples: (i) When, despite receipt of a The defense of ownership subpoena, a witness does not appear in court, the contempt is indirect and criminal; (ii) When, despite an injunction barring entry into As property, B is indirect and civil. D. DIRECT CONTEMPT PUNISHED SUMMARILY (Sec. 1) a) The following constitutes direct contempt: 1) Misbehavior in presence of or so near court, as to obstruct or interrupt the proceedings before the same; 2) Disrespect toward the court or judge; 3) Offensive personalities toward others; 4) Refusal to be sworn or to answer as a witness; 5) Refusal to subscribe to an affidavit or disposition when lawfully required to do so (Sec. 1, Rule 71). b) Guilty party may be summarily adjudged in direct contempt: (i) no need of written charge or hearing. c) Punishment: 1) direct contempt against RTC or a court of equivalent or higher rank a fine not exceeding P2,000.00 or imprisonment not exceeding ten (10) days, or both; 2) direct contempt against a lower court a fine not exceeding P200.00 or imprisonment not exceeding one (1) day, or both (Sec. 1). d) Remedy of a person adjudged in direct contempt: 1) Certiorari or prohibition (Sec. 2), if the decision of direct contempt is made without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. e) Is failure of counsel to appear in court for trial direct contempt?

ANSWER NO, it is not misbehavior in the presence of or so near a court or judge as to interrupt the administration of justice. It may constitute indirect contempt, punishable only after written charge and hearing, as disobedience of or resistance to a lawful writ, process, order, etc., of a court x x x. (People v. Gagui, 2 SCRA 752). E. INDIRECT CONTEMPT; HOW PUNISHED (Sec. 3) a) After a charge in writing is filed, and an opportunity is given to the respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt: 1. Misbehavior of an officer of a court in the performance of official duties or in his official transaction;

2. Disobedience of or resistance to lawful writ, process, order or judgment of a court, including the act of the person who, after being dispossessed or ejected from any real property b y the judgment or process of any court of competent jurisdiction, enters or attempts or includes another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturb the possession given to the person adjudged to be entitled thereto; (a) For disobedience or resistance to lawful order to be indirect contempt: 5) It must appear that such order disobeyed was in fact made by the court; 6) The act forbidden or required to be done must be clearly and precisely defined to leave no doubt as to what is forbidden or required to be done; 7) The order disobeyed or resisted must be lawful; 8) Disobedience must be willful (Ferrer v. Rodriguez, 5 SCRA 854). 3. Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt; (a) But, it is not contempt of court for a judgment debtor to disobey the writ of execution (Lipata v. Tutaan, 124 SCRA 877). 4. Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice; 5. Assuming to be an attorney or an officer of a court, and acting as such without authority; 6. Failure to obey a subpoena duly served; 7. The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him. F. PROCEDURE FOR INDIRECT CONTEMPT 1. How proceedings commenced (Sec. 4): a) By the court, moto proprio, against which the contempt was committed by an order or any other formal charge requiring the respondent to show cause why he should not be punished for contempt; or b) In all other cases, by a verified petition which supporting particulars, etc., and upon full compliance with the requirements for filing initiatory pleadings for civil actions in the court concerned. 2. Where charge to be filed (Sec. 5). a) If committed against RTC or a court of equivalent or higher rank, or against an officer appointed by it, the charge may be filed with such court; b) If committed against the lower court, the charge may be filed: (i) With the RTC of the place where the lower courts sits; or (ii) In such lower court subject to appeal the RTC. 3. Hearing (Sec. 6):

a) Respondent may be released on bond pending hearing; b) Courts investigate the charge and considers such comment, testimony or defense as a respondent may make or offer. 4. Punishment for indirect contempt (Sec. 7): a) I adjudged guilty of contempt committed against an RTC or a court of equivalent or higher rank --- by a fine not exceeding 30,000.00 or imprisonment not exceeding six (6) months or both. b) If adjudged guilty of contempt committed against a lower court --- by a fine of not exceeding 5,000.00 or imprisonment not exceeding one (1) month, or both. c) If contempt consist in violation of a writ of injunction, TRO or status quo order, he may be ordered to make complete restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved. d) If contempt resist in refusal or omission to do an act which is yet in the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it. 5. Review of judgment or final orders in indirect contempt (Sec. 11): a) Appeal to a proper court as in the criminal cases; b) Bond to stay execution of judgment. 6. Contempt against quasi-judicial entities (Sec. 12): a) File with the RTC of the place wherein the contempt has been committed; b) Unless otherwise provided by law, these Rules apply principally or suppletorily to such rules adopted by such entities pursuant to authority granted them by law to punish for contempt. 7. Can be respondent appeal from a judgment finding him guilty to indirect contempt? Yes, to the proper court as in criminal cases, but the appeal will not suspend execution unless the respondent files a bond (Sec. 11). 8. In case of criminal contempt, if the respondent id acquitted, may the adverse party appeal? No, the proceeding being penal in character (Villanueva v. Lim, 69 Phil. 654)

a. Kinds of contempt b. Purpose and nature of each c. Remedy against direct contempt; penalty d. Remedy against indirect contempt; penalty e. How contempt proceedings are commenced f. Acts deemed punishable as indirect contempt

g. When imprisonment shall be imposed h. Contempt against quasi-judicial bodies

VI.

CRIMINAL PROCEDURE A. GENERAL MATTERS B. PROSECUTION OF OFFENSES (Rule 110, Rules of Court) Criminal actions how instituted Criminal actions shall be instituted as follows: a) For offenses where preliminary investigation is required, by filing the complaint with the proper officer b) For all other offenses by filing directly with the MTC and MCTC, or the complaint with the office of the prosecutor. NOTE: In Manila and other chartered cities, it shall be filed with the office of the prosecutor unless otherwise provided in their charter. Crimes that cannot be prosecuted de officio(SACAL) a) Seduction b) Adultery c) Concubinage d) Abduction e) Acts of Lasciviousness Control of prosecution All criminal actions commenced shall be under the direction and control of the prosecutor. In case of heavy work load or lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution or the Regional State Prosecution to prosecute the case subject to the approval of the Court. Sufficiency of the complaint or Information It is sufficient if it states: Name of the accused Designation of the offense given by the Statute The acts or omissions complained of as constituting the offense The name of the offended party The approximate date of the commission of the offense; and The place where the offense was committed

Designation of the offense The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense and specify its qualifying and aggravating circumstances. Cause of the Accusation

The acts or omissions constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used by the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged. Duplicity of the Offense A complaint or information must charge only one offense, except when the law prescribes a single punishment for various offenses When two or more offenses are charged in a single complaint or information but the accused fails to object to it before trial, the court may convict him of as many offenses as are charged and proved, and impose on him the penalty for each offense, setting out the findings of facts and law in each offense. (SEC. 3, Rule 120) Amendment or Substitution of Complaint or Information A complaint may be amended, in form and in substance, without leave of court, at any time before the accused enters his plea. After the plea a formal amendment may only be made with leave of court. Amendments made before plea that requires leave of court are those which: Downgrades the nature of the offense charged in, or Excludes any accused from the complaint of information Venue of Criminal Actions a) The criminal action shall be instituted and tried in the court of the municipality or territory where the offense was committed or where any of its essential ingredients occurred. b) Where the offense is committed in a train, aircraft, or other public or private vehicle in the course of its trip, it shall be tried in the court of any municipality or territory where said train, aircraft, or vehicle passed during its trip, including the place of departure and arrival. c) Where the offense was committed on board a vessel in the course of its trip, it shall be tried in the court of the first port of entry, or any municipality or territory where the vessel passed during such voyage, subject to the generally accepted principles of international law. d) Crimes punishable under Art. 2 of the RPC shall be cognizable by the court where the criminal action is first filed. Intervention of offended party Where the civil action for recovery of the civil liability is instituted in the criminal action, the offended party may intervene by counsel in the prosecution of the offense.

C. PROSECUTION OF CIVIL ACTION (Rule 111, Rules of Court) Implied institution of the civil action with the criminal action Recovery of the civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party: Waives the civil action Reserves the right to institute it separately; or Institutes a civil action prior to the filing of the criminal action

NOTE: the criminal action for violation of BP 22 shall be deemed to include the civil action. No reservation to file such civil action separately shall be allowed. When civil action may proceed independently In cases provided for in Art. 32, 33, 34 and 2176 of the Civil Code, the independent civil action may be brought by the offended party. Effect of the death of the accused or convict on the civil liability Death after arraignment The death of the accused during the pendency of the criminal action shall extinguish the civil liability arising from delict. However the independent civil action arising from other sources of obligation may be continued against the estate or legal representative of the accused. Death before arraignment The case shall be dismissed without prejudice to any civil action the offended party may file against the estate of the deceased.

Prejudicial Question Prejudicial questions are questions posed in a civil action the resolution of which is a logical antecedent to the issue involved in a criminal action which is cognizable or pertains to another tribunal. The prejudicial question must be determinative of the case. ELEMENTS a) A civil action is previously filed b) Subsequently a criminal action is filed c) That the issues involved in the civil action are similar or intimately related with the issues raised in the criminal action d) The guilt or innocence of the accused would be determined in the civil action e) The resolution of issues will determine whether the criminal action will proceed.

Filing fees of civil actions deemed instituted with the criminal action Where the amount of damages, other than actual, is specified in the complaint the corresponding filing fees shall be paid by the offended party upon the filing thereof in court. Where the amount of damages is not specified the filing fees thereof shall constitute a first lien on the judgment awarding such damages.

D. PRELIMINARY INVESTIGATION (Rule112, Rules of Court) Nature of the right The right to a preliminary investigation is a substantive right and not a mere formal one. The denial thereof would be violative of the right of a person to due process (Villaflor vs. Gozon, Jan 16, 2001).

Purpose To determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial. Preliminary Investigation is required by law if the penalty of the offense is at least four years (4), two (2) months and one (1) day without regard to fine.

Reasons for Preliminary Investigation a) To secure the innocent from hasty, malicious and oppressive prosecution; b) To prevent an innocent party from being exposed from the vagaries of public trial and therefore subject to inconvenience; and c) A part of the guarantees of freedom and fair play. Who conducts Preliminary Investigation Under A.M No. 05-8-26-SC effective October 3, 2005 only the ff. may conduct PI a) Provincial or City Prosecutors and their assistants; b) National and Regional State prosecutors; c) Other officers as may be authorized by law Resolution of investigating prosecutor Within 10 days from the termination of the investigation, the investigating prosecutor shall determine whether or not there is sufficient ground to hold the respondent for trial. If the investigating prosecutor finds cause to hold the respondent for trial he shall prepare the resolution and information. Otherwise, he shall recommend the dismissal of the complaint. The information shall contain a certification by the investigating officer under oath in which he shall certify the following: a) That he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses, b) That there is reasonable ground to believe that a crime has been committed, c) That the accused is probably guilty thereof, d) That the accused was informed of the complaint and of the evidence submitted against him, and e) That he was given an opportunity to submit controverting evidence. Within five days from his resolution, he shall forward the records of the case to the provincial or city prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days from receipt thereof and shall immediately inform the parties of such action.

Rule when the recommendation for dismissal is disapproved

Where the investigating prosecutor, recommends the dismissal of the complaint but his recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists, the latter, may by himself, file the information against the respondent, or direct another assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation (Sec.4, Rule 112, Rules of Court). Rule when resolution is reversed or modified by the Secretary of Justice If upon petition by a proper party or motu propio, the Secretary of Justice reverses or modifies the resolution of the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss, or move for dismissal of the complaint or information with notice to the parties (Sec.4, Rule 112, Rules of Court). When warrant of arrest may issue If the complaint or Information is filed with the MTC or MCTC involving an offense punishable by imprisonment of less than four years, two months, and one day. If within 10 days from the filing of the complaint or information the judge finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested, and hold him for trial. However, if the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of arrest. (Sec.8(b), Rule 112, Rules of Court).

Cases not requiring a preliminary investigation a) If filed with the prosecutor- If the complaint is filed directly with the prosecutor involving an offense punishable by imprisonment of less than four (4) years, two (2) months, and one (1) day. b) If filed with the MTC- for offenses punishable by imprisonment of less than four (4) years, two (2) months, and one (1) day. Remedy of the accused if there is no preliminary investigation Before the complaint or information is filed , the person arrested may ask for a preliminary investigation in accordance with Rule 112, Rules of Court, but he must sign a waiver of the provisions of Art. 125 of the RPC, as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen (15) days from its inception After the filing of the complaint in court without preliminary investigation, the accused may, within five (5) days from the time he learns of such filing, ask for a preliminary investigation with the same right to adduce evidence in his defense (Sec. 6, par.3, Rule112, Rules of Court). Inquest

E. ARREST (Rule 113, Rules of Court) How made

An arrest is made by an actual restraint of a person to be arrested, or by his submission to the custody of the person making the arrest. No violence or unnecessary force shall be used in making the arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention (Sec.2 Rule 113, Rules of Court). Lawful warrantless arrest General Rule: as regards arrests, searches and seizures is that a warrant is needed in order to validly effect the same. The Constitutional prohibition against unreasonable searches and seizures refers to those effected without a validly issued warrant. Hence, a warrantless arrest is an exception.

Instances where a warrantless arrest may be made: Sec.5 Rule 113 a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. (In flagrante delicto) b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts and circumstances that the person to be arrested has committed it (Hot Pursuit); and c) When the person to be arrested is a prisoner who has escaped from a penal establishment or a place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

The flagrante delicto exception: Two requisites for the application of the exception a) The person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime, and b) Such overt act is done in the presence or within the view of the arresting officer (144 SCRA 1, pp v. Laguio, March 16, 2007). Method of arrest a) By officer with warrant (Sec.7, Rule 113) When making an arrest by virtue of a warrant, the officer shall inform the person to be arrested of the cause of the arrest, and the fact a warrant has been issued for his arrest, except when he flees or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest. The officer need not have the warrant in his possession at the time of the arrest but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable. b) By officer without warrant (Sec. 8, Rule 113) When making an arrest without a warrant, the officer shall inform the person to be arrested of his authority and cause the arrest, unless the latter is either engaged in the commission of the offense, is pursued immediately after its commission, has

escaped, flees, or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest.

c) By a private person (Sec. 9, Rule 113) When making an arrest, a private person shall inform the person to be arrested of the intention to arrest him and the cause of the arrest, unless the latter is either engaged in the commission of the offense, is pursued immediately after its commission, has escaped, flees, or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest. Requisites of a valid warrant of arrest 1) There is an application for the issuance of a warrant of arrests 2) Determination of probable cause is done personally by the judge 3) Written under oath or affirmation 4) The determination is done by asking searching questions and answers. Determination of probable cause for the issuance of warrant of arrest

Probable cause of a Fiscal Determines whether there is reasonable ground to believe that the accused is guilty and should be held for trial Executive function F. BAIL (Rule 114, Rules of Court) Nature When a matter of right

Probable cause of a judge Determines if a warrant should be issued to place the accused in immediate custody so as not to frustrate the ends of justice Judicial function

All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule: a. Before or after conviction by the MeTC, MTC or MCTC ; and b. Before conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment. Exception When a matter of discretion Upon conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment, admission to bail is discretionary Hearing of an application for bail in capital offenses No person charged with a capital offense, or an offense punishable by reclusion perpetua, or life imprisonment shall be admitted to bail when evidence of guilt is strong regardless of the stage of the criminal prosecution (Sec. 7, Rule 114). At the hearing of an application for bail filed by a person who is in custody of for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment, the prosecution has the burden of showing that evidence of guilt is strong.The evidence presented

during the bail hearing shall be considered automatically reproduced at the trial (Sec. 8, Rule 114). Guidelines in fixing the amount of bail The judge who issued the warrant or granted the application shall fix a reasonable amount of bail considering primarily, but not limited to the following factors: a) Financial ability of the accused to give bail b) Nature and circumstances of the offenses c) Penalty for the offense charged d) Character and reputation of the accused e) Age and health of the accused f) Weight and evidence against the accused g) Probability of the accused appearing at the trial h) Forfeiture of other bail i) The fact that the accused was a fugitive from justice when arrested; and j) Pendency of other cases where the accused is on bail. Excessive bail shall not be required. Bail when not required a) No bail shall be required when the law or Rules so provide. b) When a person has been in custody for a period equal to or more than the possible maximum imprisonment prescribed for the offense charged, he shall be releases immediately. Increase or reduction of bail After the accused is admitted to bail, the court may, upon good cause, either increase or reduce its amount. When increased, the accused may be committed to custody if he does not give bail in the increased amount within a reasonable period. (Sec. 20, Rule 114) Reduced bail or recognizance A person in custody for a period equal principal penalty prescribed for the offense Indeterminate Sentence Law or any modifying reduced bail or on his own recognizance, at the 114) Forfeiture and cancellation of bail Forfeiture of Bail When the presence of the accused is required by the court or these Rules, and if the accused fails to appear in person as required, his bail shall be declared forfeited (Sec. 21, Rule 114) Cancellation of Bail Upon application of the bondsmen, with due notice to the prosecutor, the bail may be cancelled upon: a) Surrender of the accused; or b) Proof of his death. The bail shall be deemed automatically cancelled upon: to or more than the minimum of the charged, without application of the circumstance, shall be released on a discretion of the court. (Sec. 16, Rule

a) Acquittal of the accused b) Dismissal of the case, or c) Execution of the judgment of conviction

Application not a bar to objections in illegal arrests, and lack of preliminary investigation It is not a bar provided that he raises such objections before entering his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial of the case. (Sec. 26, Rule 115) Hold Departure Order and Bureau of Immigration Watchlist

G. RIGHTS OF THE ACCUSED (Rule 115, Rules of Court) Rights of the accused at trial (Sec. 1, Rule 115) The accused shall be entitled to the following rights: a) To presumed innocent until the contrary is proved beyond reasonable doubt b) To be informed of the nature and cause of accusation against him c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of judgment. d) To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination. His silence shall not in any way prejudice him. e) To be exempt from being compelled to be a witness against himself. f) To confront and cross-examine the witnesses against him at trial. g) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf. h) To have speedy, impartial and public trial. i) To appeal in all cases allowed in the manner prescribed by law.

Rights of persons under Custodial Investigation a) Right to be informed of his right to remain silent; b) He has the right to talk to an attorney before being questioned and to have his counsel present when being questioned; c) Miranda rights d) Right against torture, force, violence, threat, intimidation, or any other means which vitiate the free will of the person under custodial investigation. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. e) Rights against self incrimination

H. ARRAIGNMENT AND PLEA Arraignment and Plea, how made a) The accused must be arraigned before the court where the complaint or information was filed. The arraignment shall be made by the judge or the clerk by: Furnishing the accused with a copy of the complaint or information

 Reading the same in the language or dialect known to him, and Asking him whether he pleads guilty or not guilty. b) The accused must be present at the arraignment and must personally enter his plea. Both arraignment and plea shall be recorded but failure to do so shall not affect the validity of the proceedings. c) When the accused refuses to plead or makes a conditional plea, a plea of not guilty shall be entered for him. d) When the accused pleads guilty but presents exculpatory evidence, his plea shall be deemed withdrawn and a plea of not guilty shall be entered for him. e) When the accused is under preventive detention, his case shall be raffled and its records transmitted to the judge to whom the case was raffled within three (3) days from the filing of the complaint or information. The accused shall be arraigned within ten (10) days from the date of raffle. f) The private offended party shall be required to appear at the arraignment for purposes of: a. Plea bargaining b. Determination of civil liability, and c. Other matters requiring his presence g) Unless a shorter period is provided by special law or Supreme Court circular, the arraignment shall be held within thirty (30) days from the date the court acquires jurisdiction over the person of the accused. When should plea of not guilty be entered for the accused a) b) c) d) When the accused so pleaded; When he refuses to plead; When, after pleading guilty, he sets up matters of defense; or lawful justification When he enters a conditional plea of guilty; a conditional plea of guilty or one entered subject to the condition that a certain penalty be imposed upon the accused is equivalent to a plea of not guilty and would therefore require a full blown trial before judgment could be rendered. (Pp. vs. Madronaga, November 11, 2000) e) Where after a plea of guilty he introduces evidence of exculpatory circumstances f) When the plea is indefinite or ambigious When may accused enter a plea of guilty to a lesser offense At arraignment, the accused, with the consent of the offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but before trial the accused may still be allowed to plead guilty to said lower offense after withdrawing his plea of not guilty. (Sec. 2, Rule 116) Accused plead guilty to capital offense, what the court should do The court shall: a) Conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea to be based on a free and informed judgment b) Shall require the prosecution to prove his guilt and the precise degree of culpability. c) To ask the accused if he so desires to present evidence in his behalf and allow him to do so if he so desires A mere warning on the part of the court that the accused faces the supreme penalty of death is not considered as substantial compliance with the rules. Searching Inquiry Improvident plea

An improvident plea of guilt cannot be the bases of a valid judgment. However a plea of guilty to a capital offense made after the prosecution rested its case and has presented evidence sufficient to sustain a conviction, the plea of guilty even if found improvident cannot be ground to set aside the judgment of conviction. (Pp. vs. Arizapa, March 15, 2000). An improvident plea may be withdrawn before the judgment of conviction becomes final. Also the withdrawal must be a categorical declaration that he is withdrawing his plea of guilty and substituting it with a plea of not guilty. (404 SCRA 211). Grounds for suspension of arraignment (Sec. 11) Upon the motion of the proper party, the arraignment shall be suspended in the following causes: a) The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and plead intelligently thereto. b) There exists a prejudicial question. c) A petition for review of the resolution of the prosecutor is pending either at the DOJ, or the Office of the President.

I. MOTION TO QUASH (Rule 117, Rules of Court) Grounds (Sec. 3, Rule 117) The accused may move to quash the complaint or information on any of the following grounds: That the facts charged do not constitute an offense; That the court trying the case has no jurisdiction over the offense charged; That the court trying the case has no jurisdiction over the person of the accused; That the officer who filed the information has no authority to do so; That it does not conform, substantially to the prescribed form; That more than one offense is charged except when a single punishment for various offenses is prescribed by law; g) That the criminal action or liability has been extinguished h) That it contains averments which, if true, would constitute a legal excuse or justification; and i) That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent. Motion to quash vs. demurrer to evidence Motion to Quash Is a special pleading filed by the defendant before entering a plea Filed at any time before entering his plea Leave of court is not required If the motion is granted it would preclude further proceedings Double jeopardy does not set in Demurrer to evidence Is a motion to dismiss filed by the defendant after the plaintiff had rested its case on the ground of insufficiency of evidence Filed after the prosecution has rested its case It may be filed with or without leave of court It has the effect of an acquittal of the accused Double jeopardy sets in a) b) c) d) e) f)

Effects of sustaining the motion to quash

If the motion to quash is sustained, the court may order that another complaint or information be filed. If the order is made, the accused, if in custody, shall not be discharged unless admitted to bail. If no order is made or if having been made, no new information is filed within the time specified in the order or within such further time as the court may allow for good cause, the accused, if in custody shall be discharged unless he is also in custody for another charge. Exception to the rule that sustaining the motion is not a bar to another prosecution An order sustaining a motion to quash is not a bar to another prosecution for the same offense unless the motion was based on the grounds specified in section 3(g) extinguishment of criminal action or liability and (i) double jeopardy of this Rule. Double jeopardy The elements of double jeopardy: a) The accused has been convicted or acquitted or the case against him dismissed or terminated without his express consent; b) The court has jurisdiction; c) There is valid complaint or information; d) There was a plea to the charge upon arraignment; e) The accused is charged anew for an offense constituting an attempt or a frustration of the previous offense charged or for an offense that necessarily includes or is necessarily included in the former charge. Provisional Dismissal When a case is provisionally dismissed, the case may later on be revived. A provisional dismissal of a case may be made provide the following requisites concur: a) The prosecution, with the express consent of the accused moves for a provisional dismissal of the case; or both the accused and the prosecution move for the provisional dismissal; b) The offended party is notified c) The court issues an order granting the motion and dismissing the case provisionally; and the public prosecutor is served with a copy of the order of provisional dismissal. (Pp. vs. Lacson, 400 SCRA 267). Time Line Rule This rule makes a distinction first, between offenses punishable by imprisonment of not more than six (6) years and second, those offenses punishable by more than six (6) years. In the first, the failure to revive the case after the lapse of one (1) year from the date of the issuance of the order of dismissal shall operate to make the provisional dismissal permanent. In the second, the time limit is two (2) years (Sec. 8, Rule 117).

J. PRE-TRIAL (Rule 11b, Rules of Court) Matters to be considered during pre-trial A pre-trial conference shall consider the following: a) Plea bargaining; b) Stipulation of facts;

c) Marking for identification of evidence of the parties; d) Waiver of objections to admissibility of evidence; e) Modification of the order of trial if the accused admits the charge but interposes a lawful defense; and f) Such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case.

What the court should do when the prosecution and the offended party agree to the plea offered by the accused

Pre-trial agreement All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the counsel; otherwise, they cannot be used against the accused (Sec. 2, Rule 118). Non-appearance during pre-trial If the counsel for the accused or the prosecutor does not appear at pre-trial conference and does not offer an acceptable excuse for his lack of cooperation the court may impose proper sanctions or penalties. (Sec. 3, Rule 118). Pre-trial order After the pre-trial conference, the court shall issue an order reciting the actions the: a) Actions taken, b) The facts stipulated and evidence marked. Referral of some cases to the Court of Annexed Mediation and Justice Dispute Resolution K. TRIAL (Rule 119, Rules of Court) Instances when presence of the accused is required by law Requisite before trial can be suspended on account of the absence of the witness Trial in Absentia Remedy when the accused is not brought to trial within the prescribed period The information may be dismissed on motion of the accused on the ground of denial of his right to speedy trial. Failure of the accused to move for dismissal prior to trial shall constitute a waiver of the right to dismiss under this section (Sec. 9, Rule 119). Requisite for discharge of the accused to become a state witness a) That there is absolute necessity for the testimony of the accused whose discharge is requested; b) There is no other direct evidence available for the proper prosecution of the offense committed except for the testimony of said accused; c) The testimony of said accused can be substantially corroborated in its material points;

d) Said accused does not appear to be the most guilty; and e) Said accused has not at any time been convicted of any offense involving moral turpitude. Effects of Discharge of accused as state witness Discharge of the accused operates as acquittal and shall be a bar to future prosecution for the same offense, unless the accused fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis for his discharge. Demurrer to evidence Defined: Is a motion to dismiss filed by the defendant after the plaintiff had rested his case on the ground of insufficiency of evidence. When entertained: After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence either: 1) On its own initiative after giving the prosecution the opportunity to be heard; or 2) Upon a demurrer to evidence filed by the accused with or without leave of court. Form of motion for leave to file demurrer to evidence: The motion for leave shall specify the grounds thereof. The order denying the motion for leave to file demurrer or the demurrer to evidence itself shall not be reviewed by appeal or by certiorari before the judgment is rendered in the main case. Effect of sustaining a demurrer to evidence: An order sustaining the demurrer to evidence is considered as judgment on the merits and is equivalent to an acquittal of the accused. L. JUDGMENT (Rule 120, Rules of Court) Requisites of a judgment

Contents of a Judgment If the judgment is of conviction, it shall state: 1) The legal qualification of the offense constituted by the acts committed by the accused and the mitigating or aggravating circumstances which attended its commission. 2) The participation of the accused in the offense, whether as a principal, accomplice, or accessory; 3) The penalty imposed upon the accused; and 4) The civil liability or damages caused by his wrongful act or omission to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate civil action has been reserved or waived. If the judgment is of acquittal, it shall state whether the evidence of the prosecution absolutely failed to prove his guilt of the accused or merely failed to prove his guilt beyond reasonable doubt. In either case, the judgment shall determine if the act or omission from which the civil liability might arise did not exist.

Promulgation of judgment The judgment is promulgated by reading it in the presence of the accused and any judge of the court in which it was rendered. However if the conviction is for a light offense, the judgment may be promulgated in the presence of his counsel or representative. If the accused is detained or confined in another city or municipality The judgment may be promulgated by the executive judge of the RTC having jurisdiction over the place of confinement upon request of the court which rendered the judgment. The court promulgating the decision shall have the right to receive the notice of appeal and to approve the bail bond pending appeal. Instances of promulgation of judgment in absentia 1) If the accused was tried in absentia because he jumped bail; or 2) escaped from prison In case the accused fails to appear at the scheduled date of promulgation of judgment despite notice, the promulgation shall be made by recording the judgment in the criminal docket and serving him a copy thereof at his last known address or thru his counsel.

When does judgment become final (four instances) a) b) c) d) When When When When the the the the period for appeal has expired, no appeal having been perfected; sentence has been totally or partially served; accused expressly waived in writing his right to appeal; accused applied for probation.

M. NEW TRIAL OR RECONSIDERATION (Rule 121, Rules of Court) Grounds for new trial 1) That errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during trial; 2) That new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably change the judgment. Grounds for Reconsideration 1) Errors of law 2) Errors of fact in judgment Requisites before a new trial may be granted on ground of newly discovered evidence a) The evidence was discovered after the trial; b) It is such that it could not have been discovered before the trial even if the accused exerted reasonable diligence; c) It is material and not merely collateral, cumulative, corroborative or impeaching; d) It is of such weight that, if admitted, would probably change the judgment; e) It goes into the merits of the case and not rest on a mere technicality Effects of granting a new trial or reconsideration The effects are the following:

a) When the new trial is granted on the ground of errors of law or irregularities committed during the trial, all the proceedings and evidence affected thereby shall be set aside and taken anew. b) The court may, in the interest of justice allow the introduction of additional evidence c) When a new trial is granted on the ground of newly discovered evidence, the evidence already adduced shall stand and the newly-discovered and such other evidence as the court may allow, to be introduced shall be taken and considered together with the evidence already in the record. Application of Neypes doctrine in criminal cases N. APPEAL (Rule 122, Rules of Court) Effect of an appeal In general, the appeal of a decision throws the whole case open for review and the appellate court may impose a penalty and indemnity entirely different form or in addition to that contained in the decision of the trial court. Where to appeal Appeal may be taken as follows: a) To the RTC in cases decided by the MeTC, MTC in cities, MTC, or MCTC; b) To the CA or Supreme Court in proper cases provided for by law, in cases decided by the RTC, and c) To the Supreme Court in cases decided by the Court of Appeals Effect of appeal by any of several accused a) An appeal taken by one or more of several accused shall not affect those who did not appeal, except insofar as the judgment of the appellate court is favorable and applicable to the latter. b) The appeal of the offended party from the civil aspect shall not affect the criminal aspect of the judgment appealed from. c) Upon perfection of the appeal, the execution of the judgment or final order appealed from shall be stayed as to the appealing party. Grounds for dismissal of appeal O. SEARCH AND SEIZURE (Rule 126, Rules of Court) Nature of search warrant Is a process issued by the court in the exercise of its ancillary jurisdiction and not a criminal action which it may entertain pursuant to its original jurisdiction (331 SCRA 697). Search warrant vs. Warrant of Arrest Application for search warrant where filed An application for search warrant shall be filed with any of the following: a) Any court within whose territorial jurisdiction a crime was committed b) For compelling reasons stated in the application, any court within the judicial region where the crime was committed, if the place of commission of the crime is known, or any court within the judicial region where the warrant shall be enforced; c) If the criminal action has already been filed, the application shall be filed only in the court where the criminal action is pending.

Probable cause Has been defined as such facts and circumstances antecedent to the issuance of a warrant that in themselves are sufficient to induce a cautious man to rely on them and act in pursuance thereof Justice Escolin spoke of probable cause for a search as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. Personal examination by judge of the applicant and the witnesses Art.2 sec. III, 1987 C0nstitution provides that: No search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce In Soliven vs. Macasiar (167 SCRA 393) it was held that the judge shall: a) Personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and on the basis thereof, issue a warrant of arrest, or b) If on the basis thereof he finds no probable cause, he may disregard the fiscals report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause The addition of the word personally after the word determined in the Constitution does not necessarily mean that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause of the issuance of warrants. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause for the issuance of a warrant of arrest. Sound policy dictates this procedure; otherwise judges would be unduly laden with the investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.

Particularity of the place to be searched and the things to be seized A description of the place to be searched is sufficient if the officer with the warrant can with reasonable effort, ascertain and the place intended. (Pp vs. Ve loso, 48 Phil. 169) Where by the nature of the things to be seized their description must be rather general, it is not required that a technical description be given Personal property to be seized a) Property subject of the offense b) Property stolen or embezzled and other proceeds or fruits of the offense c) Property used or intended to be used as the means of committing an offense.

Exceptions to the search warrant requirement a) Search incidental to a lawful arrest b) Consented search Mere silence or lack of objection on the part of the person searched does not amount to permission for the conduct of the search. A peaceful submission to a search or seizure is not a consent or invitation thereto but merely a demonstration of regard for the supremacy of law. (Pp. vs. Aruta, 288 SCRA 626) c) Search of moving vehicle d) Check points; body checks in airports e) Plain view situation Requisites of plain view doctrine 1) The law enforcement officer in search of the evidence has a prior justification for an intrusion or he is in a position from which he can view a particular area 2) The discovery of the evidence in fair view is inadvertent; and 3) It is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure. f) Stop and frisk situation

Also known as the Terry Search, it is the kind of search made by a police officer who stops a citizen on the street, interrogate him and search him for weapons. The rationale is in the interest of effective crime prevention and detection and thus allowing police officers to approach a person, in appropriate behavior even though there is insufficient probable cause to make an actual arrest. g) Enforcement of custom laws Remedies from unlawful search and seizure ON THE PART OF THE RESPONDENT/ACCUSED: a) He may file a Motion to Quash Search Warrant based on non-compliance with the requirements under Rule 126 of the Rules of Court to the court which issued the same; b) He may also file a Motion for Suppression of Evidence with the court where the case was filed after the implementation of the Search Warrant.

P. PROVISIONAL REMEDIES (Rule 127, Rules of Court) Nature Kinds of provisional remedies 1) Preliminary attachment 2) Preliminary Injunction Is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts. 3) Receivership 4) Replevin

5) Support pendente lite

I.

Revised Rules on Summary Procedure

A. CASES COVERED BY THE RULE

Q. A.

What are the cases that are governed by the Rules on Summary Procedure? The cases covered are the following: CIVIL CASES:

(1) All cases of forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered. Where atty. fees are awarded the same shall not exceed twenty thousand pesos (P20, 000). (2) All other cases, except probate proceedings, where the total amount of the plaintiffs claim does not exceed One hundred thousand pesos (P100, 000) or Two hundred thousand pesos (P200, 000. 00), exclusive of interests and costs.

CRIMINAL CASES: (1) (2) (3) Violations of traffic laws, rules and regulations Violations of rental laws Violations of municipal or city ordinances

(4) All other criminal cases where the penalty prescribed by law for the offense charged is imprisonment not exceeding 6 months or a fine not exceeding one thousand pesos (P1,000) or both, irrespective of other imposable penalties, accessory or otherwise or of the civil liability arising there from. Provided, however, that in offenses involving damage to property through criminal negligence, this Rule shall govern where the imposable fine does not exceed ten thousand pesos (P10,000). (5) Violation of BP 22.

B. EFFECT OF FAILURE TO ANSWER

Q. Can the court declare a defendant for failure to file an answer, in default if the case is governed by the Rules on Summary Procedure? A. Where no answer is filed, the court may not declare defendant in default because a motion to declare defendant in default is a prohibited pleading. (Lesaca vs. CA 21 Oct 1991)

Q. X filed an ejectment suit against Y who filed an answer. Y filed a motion to dismiss in the guise of a position paper. X objected on the ground that such motion is a prohibited motion under the Rule on Summary Procedure. Rule on the objection. A. Objection not meritorious. While this is indeed a prohibited motion (Sec 19[a] of Revised Rules on Summary Procedure), it should be noted that the motion was filed after an answer had already been submitted within the reglementary period. In essence, therefore, it is not pleading prohibited by the Rule on Summary Procedure. What the rule prohibits is a Motion to Dismiss which would stop the running of the period to file an Answer and cause undue delay. Q. A. What are the prohibited pleadings and motions under the Revised Rule on Summary Procedure? They are the following:

(1) Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of jurisdiction over the subject matter or failure to comply with referral to Lupon for conciliation. (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12) Motion for a bill of particulars Motion for new trial or for reconsideration of a judgment or for reopening of trial Petition for relief of judgment Motion for extension of time to file pleadings, affidavits or any other papers. Memoranda Petition for certiorari, mandamus or prohibition against any interlocutory order issued by the court Motion to declare the defendant in default Dilatory motion for postponement Reply Third-party complaints Interventions.

Q. In a case for unlawful detainer under the Revised Rules on Summary Procedure, the MTC rendered a decision in favor of A, the lessor, ordering B, the lessee, to vacate As apartment and to pay the back rentals. B appealed to the RTC which affirmed MTCs decision. A anticipating another appeal by B, filed a motion for execution pending appeal pursuant Sec 21of the Revised Rule on Summary Procedure. B likewise within the reglementary period filed a petition for review of the RTCs decision with the CA. (1) May the RTC grant As motion for execution pending appeal after B filed his petition for review with the CA? Explain. (2) May B validly oppose the motion for execution pending appeal on the ground that the motion is not based on the good reasons for which an execution pending appeal may be issued under Sec 2 Rule 39 of the Rules of court. A. (1) Yes because the decision of the RTC is immediately executory despite the appeal (Sec 21 Revised Rules of Summary Procedure)

(2)

No because Sec 2 of Rule 39 is not applicable to this case which falls under Summary Procedure.

Q. For failure of the tenant, Marivic, to pay rentals, Letty, the court-appointed administrator of the estate of Santos Lindawan decides to file an action against Marivic for the recovery of possession of the leased premises located in Plaridel, Bulacan and for the payment of the accrued rentals in the total amount of P100,000. If the case is filed with the Municipal Trial Court, is it covered by the Revised Rule of Summary Procedure? A. Yes it is covered by the Revised Rule on Summary Procedure because Sec 1 A [1] provides that All cases of forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered. This is a clear case of unlawful detainer and the accrued rentals of P100,000 is immaterial to the application of the Revised Rule on Summary Procedure. Q. Distinguish action from cause of action. (1999 Bar Exam)

A. An action is one by which a party sues another for the enforcement or protection of a right or the prevention or redness of a wrong. (Sec. 3 Rule 1 1997 Rules of Civil Procedure.) A cause of action is the act or omission by which a party violates a right of another. ( Sec 2 Rule 2 of 1997 Rules. An action must be based on a cause of action. (Sec. 1 Rule 2 of 1997 Rules)

Q. A sued B to recover P500,000 based from a promissory note due and payable on 5 Dec. 1995. The compliant was filed on 30 Nov. 1998 and summons was served on B on 7 Dec. 1998. B interposes a motion to dismiss on the ground that the compliant states no cause of action. If you were the judge, how would you rule on the motion? (1999 Bar Exams) A. If I were the judge, I would grant the motion on the ground that the compliant states no cause of action. When the complaint was filed, the promissory note was not yet due and demandable and hence the compliant was filed prematurely. This defect was not cured by the service of the summons on the defendant after the date when the promissory note became due and payable.

Q. 1) 2) 3) 4) 5) A.

Distinguish: An action IN REM from an action QUASI IN REM. An action QUASI IN REM from an action IN PERSONAM. An action IN PERSONAM from personal action. An action IN REM from real action. A personal action from a local action. (1994 Bar )

1) An action IN REM is an action against all who might be minded to make an objection of any sort against the right sought to be established. While an action QUASI IN REM is an action against an individual although the purpose of the suit is to subject his interest in a particular property to the obligation or lien burdening the property. The judgment rendered in actions IN REM binds the whole world, while the judgment rendered in actions QUASI IN REM is conclusive only between the parties.

2) An action QUASI IN REM, as stated is an action against a person over a particular property or claims relating thereto, while an action in PERSONAM is an action to establish a claim against a person with a judgment that binds him personally. 3) An action in PERSONAM, as stated, is an action against a person on the basis of his personal liability while a personal action is an action where the plaintiff seeks the recovery of personal property, the enforcement or the resolution of a contract or the recovery of damages. 4) An action IN REM is an action against all who might be minded to make an objection of any sort against the right sought to be established, while 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 a mortgage on real property. 5) A personal action is an action where the plaintiff seeks the recovery of personal property, the enforcement or resolution of a contract or the recovery of damages, while a local action is that which must be brought in a particular place. Plaintiff in a personal action may file it in the place where he resides or where the defendant resides while in a local action, plaintiff has no choice except to file the action in the place where the property is located.

Q.

Distinguish civil actions from special proceedings. (1998 Bar Exam)

A. A civil action is one by which a party sues another for the enforcement or protection of the right or the prevention or redress of a wrong, (Sec 3(a) Rule 1, 1997 Rules of Civil Procedure), while a special proceeding is a remedy by which a party seeks to establish a status, a right or a particular fact. (Sec 3(c) Rule 1)

Q. Ruby filed a collection of sum of money case against Grany on April 18, 2003, which the later contested when she filed her answer during the reglementary period. Ruby filed an amended compliant impleading Mildred as additional defendant upon a motion properly filed on May 23, 2003. When is the civil action deemed commence?. A. As to Grany, the original defendant, the civil action is deemed commenced on April 18, 2003. But with regard to Mildred, the additional defendant, it is deemed commenced on May 23, 2003. A civil action is commenced by the filing of the original compliant on court. If the 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. (Sec 5 Rule 1, 1997 Rules of Civil Procedure)

Q.

How shall the Rules of Court be construed (1998 Bar Exams)

A. The Rules of Court should be liberally construed in order to promote their objective of securing a just, speedy, and inexpensive disposition of every action and proceeding. (Sec 6, Rule 1 1997 Rules of Civil Procedure) However, strict observance of the rules is an imperative necessity when they are considered indispensable to the prevention of needless delays and to an orderly and speedy dispatch of judicial business (Alvero vs. Judge dela Rosa, 76 Phil 428 and other cases)

Q.

What are the kinds of actions for the recovery of possession of real property ? Explain each.

A.

The kinds of actions are the following:

(1) The summary action for forcible entry and unlawful detainer forcible entry is a summary action to recover material or physical possession of real property when the person who originally held it was deprived of possession by force, intimidation, strategy, threat or stealth. An action for unlawful detainer, on the other hand may be filed when possession by a land lord, vendor, vendee or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of contract, express or implied. Both actions may be filed with the municipal trial court within one year after unlawful deprivation or withholding of possession. (2) Accion publiciana is the plenary action to recover the right of possession when dispossession has lasted for more than one year or when dispossession was affected by means other than those mentioned under Rule 70 of the Rules of Court. Q. Define Cause of Action and give its essential elements.

A. A cause of action is defined as an act or omission of one party in violation of the legal right or rights of another. Its essential elements are: (1) legal right of the plaintiff: (2) correlative obligation of the defendant and (3) an act or omission of the defendant on violation of said legal right. There must be damage or prejudice otherwise, no right of action arises in favor of plaintiff.

Q. Butch purchased a lot from Cosme for P1.5M. he gave a down payment of P500,000, signed a promissory note payable for 30 days after date, and as security for the settlement of the obligation, mortgaged the same lot to Cosme. When the note fell due and Butch failed to pay Cosme commended suit to recover from Butch the balance of P1M. After securing a favorable judgment on his claim, Cosme brought another action against Butch before the same court to foreclose the mortgage. Butch now files a motion to dismiss the second action on the ground of bar by prior judgment. Rule on the motion. (1999 Bar Exams) A. The motion to dismiss should be granted. When Cosme commenced suit to collect on the promissory note, he waived his right to foreclose the mortgage. He split his cause of action which he cannot validly do.

Q. What is the rule against splitting a cause of action and its effect on the respective rights of the parties for failure to comply with the same? (1999 and 1998 Bar Exams) A. The rule against splitting a cause of action and its effect are that 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 dismissal of the other, the ground for dismissal is either lis pendens (if the actions are still pending) or res judicata (if the judgment in one case has already become final. (Sec 4 Rule 2 of 1997 Rules.

Q. Marife secured two loans from Nimfa, one for P500,000 and the other for P1,000,000 payable on different dates. Both have fallen due. Is Nimfa obliged file only one compliant against Marife for the recovery of both loans. Explain. (1999 Bar Exams) A. No. Joinder is only permissive since the loans are separate loans which may be governed by different terms and conditions. The two loans give rise to two separate causes of action and maybe the basis of two separate complaints.

Q.

What is the rule on joinder of causes of action? ( 1999 Bar Exams)

A. The rule on joinder of causes of action is that 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, provided that: (1) the rule on joinder of parties is complied with (2) the joinder should not include special civil actions or actions governed by special rules (3) where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder maybe 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 (4) 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. (Sec. 5 Rule 2 1997 Rules)

Q.

May a complaint be dismissed on the ground of misjoinder of causes of action?

A. No. Misjoinder of causes of action is not a ground for dismissal of an action. Misjoined causes of action may, on motion of a party or on the initiative of the court, be severed and proceeded with separately. (Sec. 6 Rule 2 1997 Rules)

Q.

Distinguish joinder of causes of action from joinder of parties. (1996 Bar Exams)

A. Joinder of causes of action maybe made in the same complaint by one party against another, the totality of the demand determines jurisdiction of the court. But in cases of joinder of causes of action by or against several parties, the right to relief must arise out of the same transaction or series of transactions and there must be a common question of fact or law. If these requisites are present, the totality of the demand determines the jurisdiction of the court.

Q. The complaint filed before the RTC of Candon City states two (2) causes of action, one for rescission of contract and the other for the recovery of P100,000 both of which arose out of the same transaction. Is the joinder of the two causes of action proper? Explain. (1996 Bar Exams.) A. Yes, since the first cause of action for rescission of contract falls within the jurisdiction of the RTC of Candon City, because the subject is incapable of pecuniary estimation and the second cause of action for recovery of P100.000 is within the jurisdiction of a lower court and arose out of the same transaction, both may be joined in the complaint filed with the RTC.

Q.

Who may be parties to a civil action?

A. Parties to a civil action are the plaintiff and defendant. Persons having an interest in the subject of the action and in obtaining the relief demanded maybe plaintiffs. Persons claiming an interest in controversy adverse to the plaintiffs maybe defendants. Parties should be (1) natural persons, (2) juridical persons (3) entities authorized by law to be parties such as labor organizations and entities without legal personality when sued as defendants. (Sec. 1 Rule 3 1997 Rules)

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. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest. (Sec 2 Rule 3 of 1997 Rules)

Q. Mr. Garcia, an attorney-in-fact of Mr. Ringor prosecuted a case in favor of the latter without including Mr. Ringor. The defendant Mr. Galang filed a motion to dismiss on the ground that the complaint states no cause of action. Rule on the motion. A. Motion should be granted. The attorney in fact is not a real party in interest hence cannot prosecute the case only in his name. The complaint should include Mr. Ringor as real party in interest. Where 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. (Sec. 2 and 3 Rule 3 1997 Rules)

Q. A.

When is permissive joinder of parties proper? Permissive joinder of parties is proper when the following requisites are present:

(1) The persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transaction or series of transactions is alleged to exist, whether jointly or severally or in the alternative, may join as plaintiffs or be joined as defendants in one complaint ; and (2) There is a question of law or fact common to all such plaintiff or to all such defendants in the action. (Sec. 6 Rule 3 1997 Rules)

Q. Balbin Subdivisions Inc. developed, subdivided and conveyed to lot buyers parcels of land in a subdivision owned by it. Mr. Pre claiming as owner of the whole subdivision filed a case against Balbin Subdivision Inc. for recovery of real properties. Will the action prosper? A. No the action will not prosper. In an action for recovery of parcels of land, which had already been subdivided and conveyed to lot buyers, the latter are indispensable parties and their having been not impleaded as defendants renders the judgment and all proceedings therein held null and void for want of authority on the part of the court to act not only as to the absent parties but also as to the present. (Metropolitan Waterworks & Sewerage System vs. LA 297 s 287) Sec. 7, Rule 3 of 1997 Rules provides that parties in interest without whom no final determination can be had of an action shall be joined either as plaintiffs or defendants. Failure to include indespensable parties is a ground for dismissal of action.

Q.

Who is a necessary party?

A. 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.

Q.

Distinguish indispensable and necessary parties.

A. A proper party or necessary party is one which ought to be a party if complete relief is to be accorded as between those already parties. An indispensable party is a party who must be made a party either as

plaintiff or defendant if final determination can be had of an action. In other words, a necessary party need not be joined as party litigant and the court can still adjudicate the controversy as between the parties already in court. On the other hand, an indispensable party must be joined under all circumstances to enable the court to resolve the dispute; otherwise the case must be dismissed.

Q.

Give the effect of the non-joinder of a necessary party. (1998 Bar Exams)

A. The effect of the non-joinder of a necessary party may be stated as follows: the court may order the inclusion of an omitted necessary party if jurisdiction over his person may be obtained. The failure to comply with the order for his inclusion without justifiable cause is a waiver of the claim against such party. The court may proceed with the action but the judgment rendered shall be without prejudice to the rights of such necessary party. (Sec. 9 Rule 3 1997 Rules of Civil Procedure)

Q.

What is the rule in cases of unwilling plaintiff?

A. An unwilling plaintiff who is a real or indispensable party should be impleaded as defendant and the reason therefore stated in the complaint. (Sec. 10 Rule 3 1997 Rules)

Q.

Is misjoinder and non-joinder of parties a ground for dismissal of an action?

A. 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 forms as are just. Any claim against a misjoined party may be severed and proceeded with separately. (Sec. 11 Rule 3 1997 Rules)

Q. A. (1)

What are the requisites of a class suit? The following are the requisites of a class suit: The subject matter in controversy is of common or general interest to many persons

(2) There is only one right or cause of action pertaining or belonging in common to many persons, not separately or severally to distinguish the individuals (3) The parties are so numerous that it would be impracticable to bring them before the court.

Q. Francisca filed a complaint for the recovery of ownership of land against Santos who was represented by his counsel Romeo. In the course of trial Santos died. However Romeo failed to notify the court of Santoss death. The court proceeded to hear the case and rendered judgment against Santos. After judgment became final, a writ of execution was issued agains t Cosme, who being Santos sole heir, acquired the property. (1) If you were counsel of C, what course of action would you take?

(2) Did the failure of Romeo to inform the court of Santoss death constitute direct contempt? (1998 Bar Exams) A:

(1) As counsel of Cosme, I would move to set aside the writ of execution and the judgment for lack of jurisdiction and lack of due process in the same court because the judgment is void. If X had notified the court of Bs death, the court would have ordered t he substitution of the deceased by Cosme, the sole heir of Santos. (Sec. 16 Rule 3 of 1997 Rules of Civil Procedure) The court acquired no jurisdiction over Cosme upon whom the trial and the judgment are not binding. I could also file an action to annul the judgment for lack of jurisdiction because Cosme, as the successor of Santos was deprived of due process and should have been heard before judgment. (2) No. It is not direct contempt under Sec. 1 Rule 71 but it is indirect contempt within the purview of Sec. 3 of Rule 71. The lawyer can also be the subject of disciplinary action. (Sec. 16 Rule 3 1997 Rules of Civil Procedure.)

Q.

What is the duty of the counsel if his client dies during the pendency of a case?

A. 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 may subject him to disciplinary action. (Sec. 16 Rule 3 1997 Rules)

Q.

What is the rule in cases of transfer of interests?

A. In case of any transfer of interest, the action maybe continued by or against the original party, unless the court upon motion directs the person whom the interest is transferred to be substituted in the action or joined with the original party.(Sec. 19 Rule 3 1997 Rules)

Q. When A (buyer) failed to pay the remaining balance of the contract price after it became due and demandable, B (seller) sued him for collection before the RTC. After both parties submitted their respective evidence, A perished in a plane accident. Consequently, his heirs brought an action for the settlement of his estate and moved for the dismissal of the collection suit. (1) (2) (3) A. (1) No, because the action will not be dismissed but shall instead be allowed to continue until entry of final judgment. (2) No, if A died while the case was already on appeal in the court of Appeals, the case will continue because there is no entry yet of final judgment. (3) The effect is the same. The action will not be dismissed but will be allowed to continue until entry of final judgment. (Sec. 20 Rule 3 1997 Rules) Will you grant the motion? Explain. Will your answer be the same if A died while the case is already on appeal to the CA? Explain. In the same case, what is the effect if B died before the RTC has rendered judgment? ( Bar Exams)

Q.

What is the rule to be observed in case of death of the obligor if there are claims against him?

A. If it is a money claim arising from contract, express or implied the following rule should be observed: (1) If the obligor dies before an action could be filed against him, the obligee will have to file a money claim with the probate court: (2) If the action has already been instituted against the obligor, and he dies before entry of final judgment in the court in which the action is pending at the time of such death, the action shall not be dismissed but shall instead be allowed to continue until entry of final judgment.

Martinez vs. Pp. May 31, 2000

The plaintiff can then file it as a money claim based on judgment in the probate court. If it is a claim that does not arise from contract, such as a claim for damages for injury to person or property: (1) if the obligor dies before an action could be filed against him an ordinary action may be filed against his executor or administrator (2) if the obligor dies after an action has already been instituted against him, the action will continue until final judgment. The judgment may be executed against his executor or administrator.

Q.

What is the rule in the case of indigent party or pauper litigants?

A. A party may be authorized to litigate his action, claim or damages 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. 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. (Sec. 21 Rule 3 1997 Rules of Civil Procedure) A motion to litigate as an indigent can be made even before the appellate court either for the prosecution of appeals, in petitions for review or in special civil actions. (Martinez vs. Pp. May 31, 2000.)

Q.

When is Solicitor Generals appearance required by the Rules?

A. 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.

Q. Joyce a resident of Pangasinan sued Jeff, a resident of San Fernando City, La Union in the RTC of Quezon City for the collection of a debt of P1M. Jeff did not file a motion to dismiss for improper venue but raised it as an affirmative defense in his answer. Rule on the affirmative defense of improper venue. A. There is improper venue. The case for sum of money which was filed in Quezon City, is a personal action. It must be filed in the residence of either the plaintiff, which is Pangasinan, or of the defendant which is San Fernando City, at the election of plaintiff (Sec. 2 Rule 4 of 1997 Rules of Civil Procedure). The fact that it was not raised in a motion to dismiss does not matter because the rule that if improper venue is not raised

in a motion to dismiss it is deemed waived was removed from the 1997 Rules of Civil Procedure. The new rules provided that if no motion to dismiss has been filed, any of the grounds for dismissal may be pleaded as an affirmative defense in the answer. (Sec. 6 Rule 16 of 1997 Rules)

Q. Jessa, a resident of Angeles City, borrowed P300,000 from Kimjer, a resident of Pasay City. In the loan agreement, the parties stipulated that the parties agree to sue and be sued in the City of Manila. (1) City? In case of non-payment of the loan, can Kimjer file his complaint to collect the loan from Jessa in Angeles

(2) Suppose the parties did not stipulate in the loan agreement as to venue, where can Kimjer file his complaint against Jessa? (3) Supposed the parties stipulated in their loan agreement that venue for all suits arising from this contract shall be the courts of Quezon City, can Kimjer file her complain against Jessa in Pasay City? (1997 Bar Exams)

A: (1) Yes because the stipulation in the loan agreement that the parties agree to sue and be sued in the City of Manila does not make Manila the exclusive venue thereof (Sec. 4 Rule 4). Hence, Kimjer can file her complaint in Angeles City where the resides (Sec. 2 Rule 4 of 1997 Rules). (2) If the parties did not stipulate on the venue, Kimjer can file complaint either in Angeles City where Jessa resides or Pasay City where she resides. (3) NO. If the parties stipulated that the venue shall be in the courts in Q.C. Kimjer cannot file her complaint in Pasay City because of the word shall makes Quezon City the exclusive venue thereof.

Q. Josie, a resident of Laoag City file a case for recovery of ownership of a parcel of land with an assessed value of P200,000 located at Vigan City against Crisel, a resident of La Union. Where the case shall be filed? A. The case should be filed with the RTC of Vigan City because the action is a real action. Sec. 1 Rule 4 provides that Actions affecting title to or possessi on 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 MTC of the municipality or city wherein the real property involved, or a portion thereof is situated.

Q.

Where is the venue of personal actions?

A. All other actions may be commenced and tried where the plaintiff or any of the principal plaintiff resides, or where the defendant or any of the principal defendants resides or in the case of non-resident defendant where he may be found, at the election of the plaintiff.

Q. David married Fely on June 18,1995 at Candon City, Ilocos Sur. In April 1997 Fely went to the United States and never returned to the Philippines. They have no communication since then. David filed an annulment case against Fely at the RTC of Candon City where he resides. Is the action properly filed?

A. Yes. Sec. 3 Rule 4 provides that 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.

Q.

What is venue?

A. Venue of action is the place where the action is to be tried, whether real or personal. Venue relates to place of trial, not to jurisdiction, touches more on the convenience of the parties rather than the substance of the case.

Q.

Distinguish venue from jurisdiction.

A. Venue refers to the place where the action is to be instituted, jurisdiction refers to the authority of the court to try and decide the case. Venue may be waived; jurisdiction (as to subject matter cannot be waived. Venue may be the subject of a written agreement between the parties; jurisdiction cannot be the subject of the written agreement between parties. Q. What are pleadings?

A. Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. (Sec. Rule 6 of 1997 Rules)

Q.

What is a complaint?

A. A complaint is the pleading containing the plaintiffs cause or causes of action. The names and residences of the plaintiff and defendant must be stated in the complaint. (Sec. 3 rule 6 of 1997 Rules of Civil Procedure) The complaint should inform the defendant of all the material facts on which the plaintiff relies to support his demand, it should state the theory or cause of action which forms the bases of the plaintiffs claim of liability.

Q.

What is an answer?

A. An answer is a pleading which a defendant files against the complaint and raises defenses to defeat the claim against him; he may also; in the answer, raise counter claims against the plaintiff.

Q. A.

What are the kinds of defenses? Explain each. 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.

Q.

What should the defendant do in cases where an action is based on an actionable document?

A. The claim or defense should be denied specifically under oath, otherwise the genuineness and due execution of a written instrument copied in or attached to a pleading are deemed admitted. Q. Maui filed an action against Tracy for recovery of possession of a piece of land. Tracy in her answer specifically denied Mauis claim and interposed as a counter claim the amount of Php 150,000. 00 arising from another transaction, consisting of the price of the car he sold and delivered to Maui and which the latter failed to pay. Is Tracys counter claim allowed under the rules? Explain. (1996 BAR Exa ms) A. Tracys counter claim is a permissive counter claim in as much as it arises out of another transaction that is the subject matter of its complaint. It is allowed if it is within the jurisdiction of the court.

Alternative Answer: The question does not state in what court Maui filed the action. If the assessed value of the property does not exceed Php 20,000. 00 the action may be filed in the MTC in which case the counter claim of Php 150,000. 00 may be allowed in as much as it is within its jurisdiction.

Q. Aya sues Lea for recovery of a tract of land. Lea seeks in turn to be reimbursed the value of improvements she has introduced in the same land and the payment of damages she has sustained. Should Lea file a separate action against Aya for that purpose? (1996 BAR Exams) A. No. Leahs claim cannot be made in a separate action. It is a compulsory counter claim in the suit filed by Aya against Lea for the recovery of the land. A compulsory counter claim 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 partys claim and does not require for its adjudication the presence of third parties of whom the court can not acquire jurisdiction. If Leas claim is not set up in the suit filed by Aya, the claim is barred. (Sec.7 Rule 6 1997 Rules of Civil Procedure)

Q. A.

Is a motion to dismiss with counter claim sanctioned by the rules of Court? (1992 BAR Exams) No, because a counter claim is contained in an answer and not in a motion to dismiss.

What the defendant should do is to plead the ground of his motion to dismiss as an affirmative defense in his answer together with his counter claim.

Q.

What is a counter claim?

A. A counter claim is any claim which a defending party may have against an opposing party. (Sec. 6 Rule 6 1997 Rules)

Q. A.

Give the requisites of compulsory counter claim? The following are the requisites of a counter claim.

(1) It arises out of, or is necessary connected with the transaction or occurrence that is the subject matter of the opposing partys claim.

(2) It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. (3) It must be cognizable by the regular courts of justice.

(4) It must be within the jurisdiction of the court both as to amount and the nature thereof, except that in an original action before the RTC, the counter claim is considered compulsory regardless of the amount thereof; (5) It must already be existing at the time the defending party files his answer. (Sec. 7 Rule 6 of the 1997 Rules of Civil Procedure)

Q. B and C borrowed P400, 000.00 from A. The promissory note was executed by B and C in a joint and several capacity. B who received the money from A, gave C P200, 000.00. C in turn loaned P100, 000.00 out of the P200, 000.00 he received, to D. 1.) In an action filed by A against B and C with the RTC, can B file a cross-claim against C for the amount of P200, 000.00? 2.) Can C file a third party complaint against D for the amount of P100, 000.00? (1997 Bar Exams) A. 1.) Yes, B can file a cross-claim against C for the amount of P200,000 given to C. A cross-claim is a claim filed 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 counter claim 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 the claim asserted in the action against the cross-claimant. (Sec. 8 Rule 6 1997 Rules) 2.) Yes, C can file a third party complaint against D because the loan of P100,000 was taken out of the P200,000 received from B and hence the loan seeks contribution in respect to his opponents claim. (Sec. 11 Rule 6 of 1997 Rules)

Q. A assembles an owner-type jeep for B who in turn rents it to X. Due to faulty brakes, X figures in a vehicular accident causing him severe injuries. X files an action for damages against A and B. May B file a thirdparty complaint against A for indemnity? Explain. (1996 Bar Exams) A. No, because what B should file is a cross-claim against his co-defendant A. third-party complaint is not available because both A and B are made defendants in the case.

Q.

What is a reply?

A. 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. (Sec. 10 Rule 6 1997 Rules)

Q. A, after he files his complaint wants to allege claims arising out of new matters, how will A plead such new matters?

A. A should set forth the new matters in an amended or supplemental complaint. (Sec. 10 Rule 6 of 1997 Rules)

Q.

What is the effect if there is no reply filed?

A. If a party does not file a reply, all matters alleged in the answer are deemed controverted. (Sec. 10 Rule 6 1997 Rules)

Q.

What is a third-party complaint?

A. A third-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-party defendant for contribution, indemnity, subrogation or any other relief, in respect to his opponents claim. (Sec. 12 Rule 6 1997 Rules)

Q. A.

When may a third-party complaint be disallowed? In the following cases, a third-party complaint may be disallowed:

(1) When the resolution of the main case would be delayed as when the third-party defendant cannot be located. (2) (3) When there are extraneous matters that would be raised When the main action is for declaratory relief.

Q. Cesar Antonio Surla and wife Evangeline filed a complaint for damages against Santo Tomas University Hospital alleging that their son suffered damages when he fell from the hospitals incubator. The hospital filed an answer alleging counter claims of unpaid hospital bills and professional fees of the doctors as well as moral and exemplary damages against plaintiffs without a certificate of non-forum shopping. State the effects of failure to submit a non-forum shopping certificate. Explain. A. It depends. A certificate of non-forum shopping is not necessary with respect to the counter claim for moral and exemplary damages because the same is not an initiatory pleading. Such certificate is necessary only when the pleading is initiatory. The reason for the rule is that, the counter claim is merely auxiliary to the proceedings. The counter claim for the unpaid hospital bills however, is an initiatory pleading as it serves as an independent claim. The same did not arise out of the same transaction or occurrence that is the subject matter of plaintiffs complaint which is the alleged negligence of hospital employees. The hospitals claim arose out of contract. (Santo Thomas University Hospital vs. Surla; 294 SCRA 382)

Q. BA Savings Bank filed a petition for certiorari with the CA with a certificate of non-forum-shopping signed by its lawyer. It was dismissed by the CA on that ground. It filed a motion for reconsideration attaching thereto a corporate secretarys certificate authorizing its lawyer to represent it in the action and to sign, execute and deliver a certificate of non-forum shopping. The motion was denied on the ground that the rule requires that it is the petitioner, not the counsel, who must sign the certificate. Is the ruling correct? Why?

A. No, the certificate of non-forum-shopping may be signed for and in behalf of a corporation, specifically by a lawyer who has personal knowledge of the facts required to be disclosed in such document. Corporations perform physical actions only through properly delegated individuals like its officers or agents. In case of natural persons, the rule requires the parties themselves to sign the certificate of non-forum-shopping. However, such does not apply to corporations. There is no circumvention if the certificate was signed by the corporations authorized counsel, who had personal knowledge of the matters required by the rule. (BA Savings Bank vs. Sia 336 SCRA 484)

Q.

What is the effect of an unsigned pleading? Is the rule absolute? Why?

A. 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 (Sec. 3 Rule 7 of 1997 Rules). This is because the requirement as to the signature of a lawyer is mere formal requirement which can be cured.

Q.

What is the effect of an unverified pleading?

A. It shall be treated as an unsigned pleading. In fact this is also the effect if the verification contains a verification based on information and belief or upon knowledge, information and belief. The rule is so because the Rules require that a pleading is verified by an affidavit that the pleading and the allegations therein are true and correct of his personal knowledge or based on authentic records. (Sec. 4 Rule 1997 Rules)

Q.

What is forum-shopping? What are the sanctions imposed for its violation? (1996 Bar Exams)

A. Forum-shopping is the filing of multiple petitions, complaints or other initiatory pleadings involving the same issues in the SC, CA or other tribunals or agencies, for the purpose of securing a favorable judgment with the result that said courts, tribunals or agencies have to resolve the same issues. Any violation thereof shall be a cause for the dismissal of the complaint, petition, application or other initiatory pleading, upon motion and after hearing. However, any clearly, willful and deliberate forum shopping by any party and his counsel through the filing of multiple complaints or other initiatory pleadings to obtain favorable action shall be a ground for summary dismissal thereof and shall constitute direct contempt of court. Furthermore, the submission of false certification or non-compliance with the undertaking therein, shall constitute indirect contempt of court, without prejudice to disciplinary proceedings against the counsel and filing of a criminal action against the guilty party. (Sec. 5 Rule 7 1997 Rules) Q. What is the significance of a counsels signature in a pleading? (1996 Bar Exams)

A. The signature of counsel constitutes a certificate by him 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 that it is not interposed for delay. (Sec. 5 Rule 7 of 1997 Rules)

Q.

Who must execute the certification against forum shopping?

A. The certification against forum shopping must be executed by the party and not his counsel. Where there are several plaintiffs or petitioners, the certification against forum shopping must be signed by all of them.

Q. The complaint alleged that the defendant acted in bad faith, arbitrarily, wrongfully, and in violation of law. However it did not contain any averment of facts constituting plaintiffs cause of action. Does the complaint state a cause of action? Explain (1996 Bar Exams) A. No, because it does not state the ultimate facts constituting the plaintiffs cause of action. The allegations that the defendant acted in bad faith, arbitrarily, illegally, wrongfully and in violation of law are mere conclusions of fact or conclusions of law. Alternative Answer: Yes, if the complaint alleges ultimate facts and states that the acts were done in bad faith, arbitrarily, illegally, wrongfully and violation of law. The rule allows malice, intent, knowledge or other condition of mind to be averred generally. (Sec. 5 Rule 8 of 1997 Rules)

Q. A.

How may a party plead an actionable document? The following are the ways of pleading on actionable document:

(1) by setting forth the substance of such document in the pleading and attaching the original or copy of said document thereto as annex or (2) by setting forth said document verbatim in the pleading (Sec. 7 Rule 8 1997 Rules)

Q. Dalaodao Restaurant entered into a contract with Mr. Butch for the latter to deliver vegetables to the former. Mr. Butch contacted Malag Vegetables Products in order to get the needed vegetables. However due to low produce of vegetables, Mr. Butch wasnt able to deliver the ordered vege tables. Due to damages suffered, Dalaodao Restaurant sued Mr. Butch and Malag Veg. Products and used the contract as basis of the claim. What should the defendants do in order to resist the claim? A. Sec. 8 Rule 8 of the 1997 Rules of Civil Procedure provides that Whenever an action or defense is based upon a written instrument or document, copied in or attached to the corresponding pleading, 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 is refused. Mr. Butch should specifically deny under oath the genuineness and due execution of the contract but such requirement does not apply to Malag Vegetable Product because it was not a party to the contract.

Q.

When may a party be declared in default? (1999 Bar Exams)

A. A party may be declared in default when he fails to answer within the time allowed therefore and upon motion of the claiming party with notice to the defending party, and proof of such failure to answer. (Sec. 3, Rule 9 of the 1997 Rules)

Q.

What is the effect of an Order of Default? (1999 Bar Exams)

A. The effect of an Order of Default is that the court may 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. The party in default cannot take part in the trial but shall be entitled to notice of subsequent proceedings (Sec. 3[A] Rule 9 of 1997 Rules)

Q. For failure to seasonable file his answer despite due notice, A was declared in default in a case instituted against him by B. The following day, As mistress who is working as a clerk in the sala of the judge before whom his case is pleading, informed him of the declaration of default. On the same day, A presented a motion under oath to set aside the order of default on the ground that his failure to answer was due to fraud and he has a meritorious defense. Thereafter he went abroad. After his return a week later, with the case still undecided, he received the order declaring him in default. The motion to set aside default was opposed by B on the ground that it was filed before A received notice of his having been declared in default, citing the rule that the motion to set aside may be made at anytime after notice but before judgment. Rule on the motion to set aside order of default. A. Assuming that the motion to set aside complies with the other requirements of the rule, it should be granted. Although such a motion may be made after notice but before judgment (Sec. 3 [B] Rule 9) with more reason it may be filed after discovery even before receipt of the order of default.

Q. (1) (2) (3)

What are the available remedies of a party declared in default? Before the rendition of judgment? After judgment but before finality? After finality of judgment? (1998 Bar Exams)

A.

The available remedies of a party declared in default are as follows:

(1) Before the rendition of judgment (a) he may file a motion under oath to set aside the order of default on the grounds of fraud, accident, mistake, excusable negligence and that he has meritorious defense (Sec. 3 [b] Rule 9 1997 Rules) and if it is denied, he may move to reconsider, and if reconsideration is denied, he may file the special civil action of certiorari for grave abuse of discretion tantamount to lack or excess of the lower courts jurisdiction. (Sec. 1, Rule 65 Rules of Court) or (b) he may file a petition for certiorari if he has been illegally declared in default e.g. before the expiration of the time to answer. (2) After judgment but before its finality, he may file a motion for new trial on the grounds of fraud, accident, mistake, excusable negligence or a motion for reconsideration on the ground of excessive damages, insufficient evidence or the decision or final order being contrary to law (Sec. 2 Rule 37 1997 Rule of Civil Procedure). If the motion is denied, appeal is available under Rule 40 or 41 whichever is applicable. (3) After finality of judgment, there are three ways to assail the judgment, which are: (a) a petition for relief from judgment under Rule 38 on the grounds of fraud, accident, mistake, excusable negligence; (b) annulment of judgment under Rule 47 for extrinsic fraud or lack of jurisdiction; or (c) certiorari under Rule 65 if the judgment is void on its face or by the judicial record.

Q. Mr. X filed a compliant against Mr. Y in the RTC. Before an answer is served he amended his complaint without leave of court. Can he validly do that?

A. Yes, a party may amend his pleading once as a matter of right at anytime before a responsive pleading is served or, in the case of a reply, at any time within ten (10) days after it is served. (Sec. 2 Rule 10 1997 Rules). The amendment is a matter of right since no answer was filed and served yet hence Mr. X may do the amendment without leave of court.

Q. A. (1)

How may pleadings be amended? Pleading be amended either by: adding or striking out an allegation or the name of any party;

(2) correcting a mistake in the name of a party or a mistake or inadequate allegation or description in any other respect.

Q. Angel filed a compliant against Beverly, who filed a Motion to Dismiss. May Angel amend her complaint as a matter of right? A. Yes, because no answer or a responsive pleading was filed. A motion to dismiss is not a responsive pleading.

Q. In the problem above, what if Beverly filed an answer and no reply was filed yet, may Beverly amend her answer? A. Yes, Beverly has the right to amend her answer before a reply. No responsive pleading has been filed to the answer.

Q.

When is amendment a matter of privilege?

A. Substantial amendment is a matter of privilege after the case is set for hearing and hence, needs leave of court. This is true even if the amendment does not substantially alter the cause of action or defense. (Sec. 3 Rule 10 1997 Rules)

Q. A. (1) (2)

When may leave of court to amend the complaint be refused? Leave of court to amend the pleading may be refused if: the motion is made to delay the action, the cause of action or defense is substantially altered.

Q.

What are the kinds of amendment?

Distinguish. A. The kinds of amendments are (1) formal amendments and (2) substantial amendments.

Formal amendments are those which affect the form of the pleading such as clerical or typographical errors, not the substantial rights of the parties. Whereas substantial amendments are those that strike at the very essence of the partys claim or defense and are consequently prejudicial to the other p arty.

Q. The plaintiff filed an amended complaint in a civil case. Will the amendment be barred if after the filing of the complaint and before the filing of the amendment, the period of prescription concerning the cause of action as to which the amendment was, had expired? Explain. A. Yes, the rule permits a party to amend his compliant to incorporate a cause of action already in existence at the filing of the original pleading. In the case at bar, after the plaintiff filed his complaint, the cause of action subject matter of the amended complaint was already barred by prescription. A cause of action already barred by prescription can no longer be ventilated in a court of law.

Q. Aubrey filed a case against Malou. At the trial, Malou presented evidence changing his defense without prior amendment of his pleadings. Discuss the validity of the same. A. Malou can do it even without amending his answer. It may be pointed out that under Sec.5 Rule 10 of 1997 Rules of Civil Procedure, such amendment of the pleadings as may be necessary to cause them to conform to evidence and to raise these issues may be made upon motion of any party at any time, even if after judgment; but failure to amend does not affect the result of the trial of these issues.

Q. A. (1) (2) (3) (4) (5)

Give the limitations on the right to amend pleadings. The limitations in amending pleadings are the following: it cannot change substantially the cause of action or defense or theory it cannot alter a final judgment on a substantial matter it cannot confer jurisdiction it cannot cure a premature or non-existing cause of action it cannot be used to delay proceedings.

Q.

What are amended and supplemental pleadings?

A. An amended pleading is one which incorporates facts, circumstances or occurrences that constitute the cause or causes of action or defenses already in existence at the filing of the original pleading and which were not included either because the same were merely overlooked or then not known. A supplemental pleading refers to one that incorporates new facts, occurrences, circumstances that constitute a new cause of action or defense which only happen after the filing of the original pleading.

Q. Ana filed a complaint for sum of money against Bea in the amount of P500,000 stating that of the P1M obligation of the defendant, Bea had already paid P500,000. Later on Ana filed an amended complaint stating that Bea has not paid her obligations. State the effects of the filing of the amended complaint.

A. Sec. 8 Rule 10 of the 1997 Rules of Civil Procedure provides that An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader; and claim or defenses alleged therein not incorporated in the amended pleading shall be deemed waived. The amended pleading is an admission by Ana that Bea had paid P500,000 which Bea can use as evidence against Ana.

Q.

Distinguish amended pleading from supplemental pleading

A. A supplemental pleading does not extinguish the existence of the original pleading, while an amended pleading takes the place of the original pleading. A supplemental pleading exists side by side with the original, it does not replace that which it supplements; it does not supersede the original pleading and the issues joined under the original pleading remain as issues to be tried in the action. A supplemental pleading supplies the deficiencies in aid of an original pleading, not to entirely substitute the latter. (Sps Caoili vs. CA 14 1999)

Q.

Within what period should an answer be filed?

A. The defendant shall file his answer to the complaint within fifteen (15) days after service of summons, unless a different period is fixed by the court. (Sec. 1 Rule 11 of 1997 Rules) 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 is to be filed within thirty (30) days after receipt of summons by such entity. (Sec. 2 Rule 11 Rules)

Q.

Within what period may an answer to an amended complaint be filed?

A. Where the plaintiff files an amended complaint as a matter of right, the defendant shall answer the same within fifteen (15) 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. (Sec. 3 Rule 11 1997 Rules)

Q. Ara filed a sum of money case against Tracy. Ara amended her complaint with leave of court which was granted. Tracy failed to file an answer to the amended complaint. May she be declared in default? A. No, although the defendant is given 10 days to answer, Sec. 3 Rule 11 of 1997 Rules of Civil Procedure provides that An answer earlier filed may serve as the answer to the amended complaint if no new answer is filed. Tracy had already filed an answer hence cannot be declared in default.

Q.

Is extension of time to plead allowable?

A. Yes upon motion and such terms as may be just, the court may extend the time to plead, (Sec. 11 Rule11 1997 Rules), provided that the motion for extension of time to plead is filed before the lapse of the period; otherwise, there is nothing more to extend.

Q.

What is the period to answer a counter claim or cross-claim? What is the purpose?

A. A counter claim or cross claim should be answered within 10 days from service. (Sec. 4 Rule 11 of 1997 Rules). Counter claim or cross-claim is never considered as defense but as a counter-action or crossaction. There can be default except if the counter claim is compulsory.

Q.

What is the period to reply? Is it mandatory?

A. A reply may be filed within 10 days from service of the pleading responded to. (Sec. 6 Rule 11 1997 Rules) It is optional because if there is no reply the party is deemed to have controverted all the new matters called in the answer except when the answer is based on an actionable document.

Q. Defendant failed to file an answer within the prescriptive period, what must he do if he was not yet declared in default? A. A motion for leave to admit answer should be filed and the answer should be attached to it.

Q. Defendant failed to answer a supplemental complaint, may he be declared in default? What is the period to answer supplemental complaint? A. Sec. 7 of Rule 11 of 1997 Rules provides that A supplemental complaint may be answered within 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.

Q.

How may a counter claim or cross-claim which a party failed to allege be pleaded?

A. When a pleader fails to set up a counter claim or a cross-claim through oversight, inadvertence or excusable neglect, or when justice requires, he may, by leave of court set up the counter claim or cross-claim by amendment before judgment (Sec. 10 Rule 11 0f 1997 Rules of Civil Procedure)

Q. Maui sued Rica to recover P300, 000.00 representing unpaid obligation of defendant for office equipment purchased from plaintiff. Considering that Rica cannot determine exactly how come she still had such obligation, what procedural step must she take to protect her interest? A. Rica must file a motion for a bill of particulars within ten (10) days after service of summons and a copy of the complaint to her, for a more definite statement regarding the particulars of this P300, 000.00 obligation.

Q.

What is the concept of a bill of particulars?

A. A bill of particulars is a detailed explanation respecting any matter which is not averred with sufficient definiteness or particularity in the complaint so as to enable a party to properly prepare his responsive pleading or to prepare for trial. The bill of particulars is filed by the plaintiff pursuant to an order of the court issued upon granting a motion for a bill of particulars filed by the defendant before the latter files his answer. In this motion the defendant prays for a more definite statement of matters which are not averred with sufficient definiteness in the complaint.

Q.

What is the effect of the filing of a bill of particulars?

A. A seasonable motion for a bill of particulars interrupts the period within which to answer. After service of the bill of particulars or of a more definite pleading, or after notice of denial of his motion, the moving party shall have the same time to serve his responsive pleading, if any is permitted by the rules, as that to which he was entitled at the time of serving his motion, but no less than five (5) days in any event. (Sec. 5 Rule 12 1997 Rules)

Q.

What should a party do if a motion for bill of particulars is granted?

A. Sec. 3 Rule 12 of 1997 Rules of Civil Procedure provides that if the motion for bill of particulars is granted, in whole or in part, the compliance therewith must be effected with ten (10) days from notice of the order, unless a different period is fixed by the court. Q. What is the effect of non-compliance with the order to file bill of particulars?

A. If the order to file a bill of particulars 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. (Sec. 4 Rule 12 1997 Rules)

Q.

How should the bill of particulars be filed?

A. It may be filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party. (Sec. 3 Rule 12 of 1997 Rules)

C. PRELIMINARY CONFERENCE AND APPEARANCES OF THE PARTIES

Q.

What action shall the court take upon the filing of a civil or criminal action?

A. Upon the filing of a civil or criminal action, the court shall issue an order declaring whether or not the case shall be governed by this Rule. A patently erroneous determination to avoid the application of the Rule on Summary procedure is a ground for disciplinary action. Q. What pleadings are allowed under the rules on summary procedure?

A. The only pleadings allowed to be filed are the complaints, compulsory counterclaims and cross-claims pleaded on the answer, and the answers thereto. All pleadings shall be verified.

Q. Suppose the court has determined that the case falls under the rule on summary procedure, can it dismiss the case outright on any ground apparent there from for the dismissal of a civil action? A. Yes. Sec.4 of the Revised Rule on Summary Procedure provides that after the court determines that the case falls under summary procedure, it may from an examination of the allegations therein and such evidence as may be attached thereto, dismiss the case outright on any of the grounds apparent there from for the dismissal of a civil action. If no ground for dismissal is found it shall forthwith issue summons which shall state that the summary procedure under this Rule applies? Q. A complaint for forcible entry was filed by Miss SG against Mr. X and Mr. Y before the MTCC of B.C. Mr X and Mr Y filed with the MTCC of Baguio City an urgent motion for extension of time to file an answer which was denied on the ground that it was a prohibited pleading under the rule on summary procedure. More than 10 days from receipt of summons petitioner submitted an urgent motion praying for the admission of their answer, which was attached thereto. Rule on the motion. A. I will deny the motion. The Rule on Summary Procedure, in particular, was promulgated for the purpose of achieving an expeditious and inexpensive determination of cases. For this reason, the rule frowns upon delays and prohibits altogether the filing of motions for extension of time. Consistent with this reasoning is Sec 6 of the Rule which allows the trial court to render judgment, even motu proprio, upon the failure of a defendant to file an answer within the reglementary period. The filing of an answer within the reglementary period is mandatory and non extendible. The word shall underscores the mandatory character of the Rule. Giving the provisions, a directory application would subvert the nature of the rule on Summary Procedure and defeat its objective of expediting the adjudication of suits. To admit a late answer is to put premium on dilatory manners.

Q.

What are the reglementary periods within which answers must be filed?

A. Within ten (10) days from service of summons, the defendant shall file his answer to the complaint and serve a copy thereof on the plaintiff. The answers to counterclaims or cross-claims shall be filed and served within 10 days from service of the answers in which they are pleaded. (Sec 5) Q. May defenses be waived under the Rule on Summary Procedure?

A. Yes. Affirmative and negative defenses are deemed waived if not pleaded in the answer; except lack of jurisdiction over the subject matter. ***Cross-claims and compulsory counterclaims are deemed barred if not pleaded. Q. A. What are the effects of non- appearance of parties during preliminary conference. Preliminary conference shall be held not later than 30 days after the filing of the last answer. ***If plaintiff fails to appear, the case can be dismissed. ***If defendant appears while plaintiff did not, the defendant shall be entitled to judgment on his counterclaim. All cross-claims shall be dismissed. (Sec 7) ***If sole defendant fails to appear, the plaintiff shall be entitled to judgment as may be warranted by the allegations in the complaint and evidence. In Lesaca vs. CA 21 Oct 1992, it was held that failure of defendant to appear at the preliminary conference is not a ground for judgment by default.

***The rule does not apply if there are two or more defendants who were sued under a common cause and have a common defense. Q. What is the duty of the court, in criminal cases covered by Rule on Summary Procedure if the case is commenced by complaint? Or by information? A. On the basis of the complaint and the affidavits and other evidence accompanying the same, the court may dismiss the case outright for being patently without basis or merit and order the release of the accused if in custody. When the case is commenced by information, or is not dismissed pursuant to the next preceding paragraph, the court shall issue an order which together with copies of the affidavits and other evidence submitted by the prosecution, shall require the accused to submit his counter-affidavit and the affidavits of his witnesses as well as any evidence in his behalf serving copies thereof on the complainant or prosecutor not later than 10 days from receipt of such order. The prosecution may file reply affidavits within ten (10) days after receipt of the counter affidavits of the defense.

Q. him?

In pre-trial of criminal cases, there are admissions made by the accused. Are they admissible against

A. It depends. In pre-trial conference, no admission of the accused can be used against him unless put to writing and signed by the accused and his counsel. A refusal or failure to stipulate shall not prejudice the accused.

Q.

When may the court order the arrest of the accused?

A. The court shall not order the arrest of the accused except for failure to appear whenever required. Release of the person arrested shall either be on bail or recognizance by a responsible citizen acceptable to the court.

Q. In an ejectment case which was covered by the Rule on Summary Procedure, defendant lost in the MTC. He appealed to the RTC which affirmed the decision. Defendant filed a motionfor reconsideration which was objected by the plaintiff on the ground that motion for reconsideration is a prohibited motion under the Rules on Summary Procedure. Rule on the motion. A. Motion for reconsideration is allowed. The Rule on Summary Procedure applies only in cases filed before the MTC pursuant to Sec 26 of BP 129. Summary procedures have no application to cases before the RTC. Hence, when the respondents appealed the decision of the MTC to the RTC, the applicable rules are those of the latter court. Hence a motion for reconsideration of the decision of the RTC is available. (Jakihaka vs. Aquino 12 Jan 1990)

II.

KATARUNGANG PAMBARANGAY Q. What is the object of Katarungang Pambarangay Law? (1999 Bar Examination)

A. The object of the Katarungang Pambarangay Law is to effect an amicable settlement of disputes among family and barangay members at the barangay level without judicial recourse and consequently help relieve the courts of docket congestion. Compliance therewith is a condition precedent to the filing of a complaint or information in court or before the Prosecutors office and its absence is a ground for dismissal of the complaint for pre maturity or absence of cause of action. A. CASES COVERED

Q.

What are the cases over which the Barangay Lupon may take cognizance of? Exceptions?

A. The Barangay Lupon shall have authority to bring together the parties actually residing in the same municipality or city for amicable settlement of all disputes except: (1) When one party is the government or any subdivision or instrumentality thereof;

(2) Where one party is a public officer or employee, and the dispute relates to the performance of his official functions. (3) Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding Five Thousand Pesos(P5,000). (4) Offenses where there is no private offended party.

(5) Where the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon. (6) Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon . (7) Such classes of disputes which the President may determine in the interest of justice or upon the recommendation of the Sec. Of Justice. (8) Any complaint by or against corporations, partnerships or juridical entities. The reason is that only individuals shall be parties to barangay conciliation proceedings. (9) Labor disputes or controversies arising from employer-employee relationship.

(10) Actions to annul judgments upon a compromise which can be filed directly in court. (Sec.408 RA 7160)

B. SUBJECT MATTER FOR AMICABLE SETTLEMENT

Q. A collection for sum of money case (P400,000) was filed by Mr. X against Mr. Y, both residents of Baguio City, at the RTC of Baguio City. Mr. Y filed a motion to dismiss alleging that since they are residents of the same city, the case should be first resolved by the Barangay Lupon, hence the case is prematurely filed and

should be dismiss for lack of cause of action. Mr. X objected to the motion contending that the case is beyond the Barangay Lupons jurisdiction. Only those cases cognizable by the First l evel courtst should go to the Barangay Lupon for conciliation as to do otherwise will divest the RTC of its jurisdiction. Is Mr. Xs contention meritorious? A. No. Mr. Xs contention is not meritorious because the lupon of each barangay shall have authority to bring together the parties actually residing in the same municipality or city for amicable settlement of ALL disputes. Even if the case is within the RTCs jurisdiction, compliance still to the provision of Sec 4 08 of RA 7160, is a condition precedent for filing an action as long as the parties are residents of the same municipality or city.

C. VENUE

Q. A.

What are the rules of venue under the Katarungang Pambarangay Law? They are as follows:

(1.) Disputes between persons actually residing in the same barangay shall be brought for amicable settlement before the Lupon of the said barangay. (2.) Those involving actual residents of different barangays where the respondent or any of the respondents actually resides, at the election of the complainant. (3.) All disputes involving real property or any interest shall be brought in the barangay where the real property or the larger portion thereof is situated. (4.) Those arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study shall be brought in the barangay where such workplace or institution is located. (See 409 Local Government Code 1991)

D. WHEN PARTIES MAY DIRECTLY GO TO COURT Q. In a case, two parties are residents of the same municipality but others are residents of different municipalities. Is there a need for prior barangay conciliation? Why? A. No more. In Candido vs. Macapagal, 221 S 328, it was said that the fact that petitioner Candido and respondent Contreras are residents of the same municipality will not justify compulsory conciliation under PD 7160, it appears that other respondents are residents of different municipalities. Petitioners can file the case directly in court without resorting to barangay conciliation.

E. EXECUTION

Q.

When may objections to venue be raised?

A. Objections to venue shall be raised in the mediation proceedings before the punong barangay; otherwise, the same shall be deemed waived. Any legal question which may confront the punong barangay in resolving objections to venue herein referred to may be submitted to the Secretary of Justice or his duly designated representative whose ruling thereon shall be binding.

Q. Alice filed a complaint for damages against her next-door neighbor Rosa for P100,000 with prayer for preliminary attachment. She alleged that Rosa intrigued against her honor by spreading unsavory rumors about her among their co-workers at the Phoenix knitwear factory located at Valenzuela. After pre-trial the court muto proprio referred the case for amicable settlement between the parties to the Lupon Tagapamayapa of Brgy. 2 Zone 3 in Valenzuela where the factory is located. Rosa questioned the order contending that the court had no authority to do so as both parties had already gone through pre-trial where amicable settlement was foreclosed and the parties were already going to trial. (1) Comment on Rosas contention. Explain.

(2) Rosa also opposed the referral to the Lupon Tagapamayapa of Brgy. 2 Zone 3 claiming that the venue was wrong as the proper Lupon was that of Brgy. 1 Zone 5 where she and Alice reside. Is Rosas contention valid? Explain. (3) Suppose that the Lupon of Brgy 2 Zone 3 is successful in forgoing an amicable settlement between Alice and Rosa, is the compromise immediately executory? Explain. (4) A. (1) Rosa is not correct. The Local Government Code of 1991 provides that in non-criminal cases not falling within the authority of the Lupon, the court may at any time before the trial refer the case to the Lupon concerned for amicable settlement. (Sec 408 RA 7160) (2) No, because the law also provides that the venue of disputes arising at the workplace of the contending parties shall be brought in the barangay where such workplace is located. (Sec 409[d], RA 7160). (3) No, because any compromise settlement shall be submitted to the court which referred the case for approval. Sec. 416, RA 7160). (4) Upon approval thereof, it shall have the force and effect of a judgment of the court and shall be enforced in accordance with Sec 6 Rule 39, execution by motion or by independent action. How, when, and by whom shall the compromise agreement be enforced? Explain. (1995 Bar Exams)

F. REPUDIATION

Q. AB filed a complaint for unlawful detainer against AS before the MTC, Baguio City without referring it first to the barangay Lupon for conciliation. A motion to dismiss was filed on the ground of failure to comply with the requirements of conciliation alleging that bothparties are residents of Baguio City, although the complaint stated that defendant has a postal office address in Baguio City. If you were the judge, rule on the objection. A. I will deny the motion. As ruled by the SC in the case of Boleyley vs. Villanueva 14 Sept. 1999, there is no need to comply with the conciliation requirement under the Katarungan Pambarangay Law in the absence of showing in the complaint that the parties reside in the same ci ty or municipality. Plaintiffs complaint should have alleged defendants actual residence, not his postal address. The allegation of defendants actual residence would have been ideal to determine the venue. In procedural law, however, specifically for the purposes of venue, the residence of a person is his personal, actual or physical habitation or his actual residence or place of abode, which may not necessarily be his legal residence or domicile. The complaint clearly implies that the parties do not reside in the same city or municipality because the postal office address is not included in the term residence.

Q. What is the effect of the conciliation proceeding on the prescriptive period for offenses and cause of action? A. While the dispute is under mediation, conciliation or arbitration, the prescriptive periods for offenses and causes of action under existing laws shall be interrupted upon filing of the complaint with the punong barangay. The prescriptive periods shall resume upon receipt by the complainant of the certification of repudiation or of the certification to file action issued by the lupon or pangkat secretary. But such interruption shall not exceed 60 days from the filing of the complaint with the punong barangay.

Q. Petitioner Diu filed a complaint against private respondent Pagba before the Barangay Chairman of Naval, Biliran. The Brgy. Chairman set the case for hearing but private respondent failed to appear. When the case was set again for hearing, the parties appeared but they failed to reach an amicable settlement. Accordingly, the barangay chairman issued a certification to File Action. Petitioners then filed their complaint before the MTC of Naval. Private respondent moved to dismiss the complain on the ground that no Pangkat was convened to settle the dispute. Rule on the motion. A. The motion should be denied for lack of merit. The SC held in the case of Diu vs. CA 19 Dec. 1995, while no pangkat was constituted it is not denied that the parties met at the office of the barangay chairman for possible settlement. The efforts of the barangay chairman, however, proved futile as no agreement was reached. Although no pangkat was formed, we believe that there was substantial compliance with the law. It is noteworthy that under Sec 412 of the Local Government Code, the confrontation before the lupon chairman or the pangkat is sufficient compliance with the precondition for filing the case in court.

Q. A compromise agreement between A and B was entered into in the municipal court in an ejectment suit. An action to annul the judgment was filed in the RTC which action was being sought to be dismissed for failure of the plaintiff to resort to barangay conciliation. Is the contention correct? Why? A. No. It cannot be dismissed on the ground of pre maturity or failure to resort to barangay conciliation because a compromise is immediately executory and beyond the Authority of Barangay. An administrative body like the lupon cannot overturn the judgment of a court. (Sanchez vs. Tupas, 158 SCRA 459).

Q. For failure of the tenant, X to pay rentals, A the court- appointed administrator of the estate of Henry Datu, decides to file an action against the former for the recovery of possession of the leased premises located in Davao City and for the payment of accrued rentals in the total amount of P25,000. Is prior referral to the Lupon necessary? (1991 Bar Exams) A. No, because the law applies only to disputes between natural persons and does not apply to juridical person such as the estate of a deceased.

III.

RULE OF PROCEDURE FOR SMALL CLAIMS CASES ( AM No. 08-8-7-SC) A. SCOPE AND APPLICABILITY OF THE RULE

It covers cases at the MTC where the value of the claim does not exceed P100,000.00, exclusive of interest and costs. It applies 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. These claims or demands may be: 1. For money owed under any of the following contracts: Lease, Loan, Services, Sale, or Mortgage. 2. For damages arising from: Fault or negligence, Quasi-contract, or Contract 3. 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.

Am I required to pay filing fees? Unless allowed to litigate as an indigent, you have to pay the regular filing fees. In any case, even when declared an indigent, you MUST pay the P1,000.00 fee for service of summons and processes in civil cases. How to I apply as an indigent litigant? The proper motion must be filed. If the motion is denied, you have 5 days within which to pay the docket fees, otherwise the case will be dismissed.

B. COMMENCEMENT OF SMALL CLAIMS ACTIONS; RESPONSE What is the general flow of the procedure? 1. Commencement. A small claims action is commenced by filing with the court an accomplished and verified Statement of Claim in duplicate, accompanied by a Certification of Non-forum Shopping, and 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. When requested, the Clerk of Court or other court personnel shall provide assistance regarding the availability of forms and other information about the coverage, requirements as well as procedure for small claims cases. 2. Examination by the court. The court 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. If no ground for dismissal is found, the court shall issue: (a) Summons on the day of receipt of the Statement of Claim, directing the defendant to submit a verified Response; and (b) Notice 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. 3. Response. The defendant shall file with the court and serve on the plaintiff a duly accomplished and verified Response (affidavits of witnesses and other evidence in its support) within a non-extendible period of 10 days from receipt of summons. In case of faulure to file a Response, 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. 4. Hearing. The parties or their duly-appointed representatives shall appear at the designated date of hearing. Failure of the plaintiff to appear shall be cause for the dismissal of the claim without prejudice and the award of permissive counterclaims in favor of the defendant who is present. Failure of the defendant to appear has the same effect as the failure to file a Response. 5. Judicial Dispute Resolution (JDR). At the hearing, the judge shall conduct JDR through mediation, conciliation, early neutral evaluation, or any other mode of JDR. If JDR fails and the parties agree in writing 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 1 day. Absent such agreement, the

case shall, on the same day, be referred to the pairing judge for hearing and decision within 5 working days from referral. 6. Decision. After the hearing, the court shall render its decision on the same day. The decision shall be final and unappealable.

C. PROHIBITED PLEADINGS AND MOTIONS SEC. 14. Prohibited Pleadings and Motions. The following pleadings, motions, or petitions shall not be allowed in the cases covered by this Rule: (a) (b) (c) (d) (e) (f) Motion Motion Motion to dismiss the complaint for trial, or for except a reconsideration for of time to file of a on the bill judgment, or ground of of for lack of jurisdiction; particulars; reopening of trial;

Motion for new

Petition for extension

relief pleadings,

from affidavits, or any

judgment; other paper;

Memoranda;

(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; (h) (i) (j) (k) (l) Interventions. D. APPEARANCES 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 latters consent. 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. Third-party complaints; Motion Dilatory to declare motions the defendant for in default; postponement; Reply; and

Failure of the defendant to appear shall have the same effect as 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. E. HEARING; DUTY OF THE JUDGE 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.

F. FINALITY OF JUDGMENTS 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.

SEC. 24. Execution. If the decision is rendered in favor of the plaintiff, execution shall issue upon motion IV. RULE OF PROCEDURE FOR ENVIRONMENTAL CASES (AM No. 09-6-8-SC) A. SCOPE AND APPLICABILITY OF THE RULE These Rules shall govern the procedure in civil, criminal and special civil actions before the Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts involving enforcement or violations of environmental and other related laws, rules and regulations such as but not limited to the following: (a) Act No. 3572, Prohibition Against Cutting of Tindalo, Akli, and Molave Trees; (b) P.D. No. 705, Revised Forestry Code; (c) P.D. No. 856, Sanitation Code; (d) P.D. No. 979, Marine Pollution Decree; (e) P.D. No. 1067, Water Code; (f) P.D. No. 1151, Philippine Environmental Policy of 1977; (g) P.D. No. 1433, Plant Quarantine Law of 1978; (h) P.D. No. 1586, Establishing an Environmental Impact Statement System Including Other Environmental Management Related Measures and for Other Purposes; (i) R.A. No. 3571, Prohibition Against the Cutting, Destroying or Injuring of Planted or Growing Trees, Flowering Plants and Shrubs or Plants of Scenic Value along Public Roads, in Plazas, Parks, School Premises or in any Other Public Ground;

(j) R.A. No. 4850, Laguna Lake Development Authority Act; (k) R.A. No. 6969, Toxic Substances and Hazardous Waste Act; (l) R.A. No. 7076, Peoples Small-Scale Mining Act; (m) R.A. No. 7586, National Integrated Protected Areas System Act including all laws, decrees, orders, proclamations and issuances establishing protected areas; (n) R.A. No. 7611, Strategic Environmental Plan for Palawan Act; (o) R.A. No. 7942, Philippine Mining Act; (p) R.A. No. 8371, Indigenous Peoples Rights Act; (q) R.A. No. 8550, Philippine Fisheries Code; (r) R.A. No. 8749, Clean Air Act; (s) R.A. No. 9003, Ecological Solid Waste Management Act; (t) R.A. No. 9072, National Caves and Cave Resource Management Act; (u) R.A. No. 9147, Wildlife Conservation and Protection Act; (v) R.A. No. 9175, Chainsaw Act; (w) R.A. No. 9275, Clean Water Act; (x) R.A. No. 9483, Oil Spill Compensation Act of 2007; and (y) Provisions in C.A. No. 141, The Public Land Act; R.A. No. 6657, Comprehensive Agrarian Reform Law of 1988; R.A. No. 7160, Local Government Code of 1991; R.A. No. 7161, Tax Laws Incorporated in the Revised Forestry Code and Other Environmental Laws (Amending the NIRC); R.A. No. 7308, Seed Industry Development Act of 1992; R.A. No. 7900, High-Value Crops Development Act; R.A. No. 8048, Coconut Preservation Act; R.A. No. 8435, Agriculture and Fisheries Modernization Act of 1997; R.A. No. 9522, The Philippine Archipelagic Baselines Law; R.A. No. 9593, Renewable Energy Act of 2008; R.A. No. 9637, Philippine Biofuels Act; and other existing laws that relate to the conservation, development, preservation, protection and utilization of the environment and natural resources. B. CIVIL PROCEDURE 1. PROHIBITION AGAINST TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION Section 10. Prohibition against temporary restraining order (TRO) and preliminary injunction. - Except the Supreme Court, no court can issue a TRO or writ of preliminary injunction against lawful actions of government agencies that enforce environmental laws or prevent violations thereof. 2. PRE-TRIAL CONFERENCE; CONSENT DECREE RULE PRE-TRIAL 3

Section 1. Notice of pre-trial. - Within two (2) days from the filing of the answer to the counterclaim or crossclaim, if any, the branch clerk of court shall issue a notice of the pre-trial to be held not later than one (1) month from the filing of the last pleading.

The court shall schedule the pre-trial and set as many pre-trial conferences as may be necessary within a period of two (2) months counted from the date of the first pre-trial conference. Section 2. Pre-trial brief. - At least three (3) days before the pretrial, the parties shall submit pre-trial briefs containing the following: (a) A statement of their willingness to enter into an amicable settlement indicating the desired terms thereof or to submit the case to any of the alternative modes of dispute resolution; (b) A summary of admitted facts and proposed stipulation of facts;

(c) The legal and factual issues to be tried or resolved. For each factual issue, the parties shall state all evidence to support their positions thereon. For each legal issue, parties shall state the applicable law and jurisprudence supporting their respective positions thereon; (d) The documents or exhibits to be presented, including depositions, answers to interrogatories and answers to written request for admission by adverse party, stating the purpose thereof; (e) A manifestation of their having availed of discovery procedures or their intention to avail themselves of referral to a commissioner or panel of experts; (f) (g) The number and names of the witnesses and the substance the of their affidavits; and

Clarificatory

questions

from

parties;

(h) List of cases arising out of the same facts pending before other courts or administrative agencies. Failure to comply with the required contents of a pre-trial brief may be a ground for contempt. Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. Section 3. Referral to mediation. - At the start of the pre-trial conference, the court shall inquire from the parties if they have settled the dispute; otherwise, the court shall immediately refer the parties or their counsel, if authorized by their clients, to the Philippine Mediation Center (PMC) unit for purposes of mediation. If not available, the court shall refer the case to the clerk of court or legal researcher for mediation. Mediation must be conducted within a non-extendible period of thirty (30) days from receipt of notice of referral to mediation. The mediation report must be submitted within ten (10) days from the expiration of the 30-day period. Section 4. Preliminary conference. - If mediation fails, the court will schedule the continuance of the pre-trial. Before the scheduled date of continuance, the court may refer the case to the branch clerk of court for a preliminary conference for the following purposes: (a) To assist the parties in reaching a settlement;

(b) To mark the documents or exhibits to be presented by the parties and copies thereof to be attached to the records after comparison with the originals; (c) To ascertain from the parties the undisputed facts and admissions on the genuineness and due execution of the documents marked as exhibits; (d) To require the parties to submit the depositions taken under Rule 23 of the Rules of Court, the answers to

written interrogatories under Rule 25, and the answers to request for admissions by the adverse party under Rule 26; (e) To require the production of documents or things requested by a party under Rule 27 and the results of the physical and mental examination of persons under Rule 28; (f) To consider such other matters as may aid in its prompt disposition;

(g) To record the proceedings in the "Minutes of Preliminary Conference" to be signed by both parties or their counsels; (h) To mark the affidavits of witnesses which shall be in question and answer form and shall constitute the direct examination of the witnesses; and (i) To attach the minutes together with the marked exhibits before the pre-trial proper.

The parties or their counsel must submit to the branch clerk of court the names, addresses and contact numbers of the affiants. During the preliminary conference, the branch clerk of court shall also require the parties to submit the depositions taken under Rule 23 of the Rules of Court, the answers to written interrogatories under Rule 25 and the answers to request for admissions by the adverse party under Rule 26. The branch clerk of court may also require the production of documents or things requested by a party under Rule 27 and the results of the physical and mental examination of persons under Rule 28. Section 5. Pre-trial conference; consent decree. - The judge shall put the parties and their counsels under oath, and they shall remain under oath in all pre-trial conferences. The judge shall exert best efforts to persuade the parties to arrive at a settlement of the dispute. The judge may issue a consent decree approving the agreement between the parties in accordance with law, morals, public order and public policy to protect the right of the people to a balanced and healthful ecology. Evidence not presented during the pre-trial, except newly-discovered evidence, shall be deemed waived. Section 6. Failure to settle. If there is no full settlement, the judge shall:

(a) Adopt the minutes of the preliminary conference as part of the pre-trial proceedings and confirm the markings of exhibits or substituted photocopies and admissions on the genuineness and due execution of documents; (b) Determine if there are cases arising out of the same facts pending before other courts and order its consolidation if warranted; (c) (d) (e) Determine if the if pleadings are in order issues adding and are or if not, order the and dropping amendments resolve of if necessary; same; parties;

Determine Consider

interlocutory the

involved

the

(f) Scrutinize every single allegation of the complaint, answer and other pleadings and attachments thereto, and the contents of documents and all other evidence identified and pre-marked during pre-trial in determining further admissions;

(g) Obtain admissions based on the affidavits of witnesses and evidence attached to the pleadings or submitted during pre-trial; (h) Define and simplify the factual and legal issues arising from the pleadings and evidence. Uncontroverted issues and frivolous claims or defenses should be eliminated; (i) Discuss the propriety of rendering a summary judgment or a judgment based on the pleadings, evidence and admissions made during pre-trial; (j) Observe the Most Important Witness Rule in limiting the number of witnesses, determining the facts to be proved by each witness and fixing the approximate number of hours per witness; (k) Encourage referral of the case to a trial by commissioner under Rule 32 of the Rules of Court or to a mediator or arbitrator under any of the alternative modes of dispute resolution governed by the Special Rules of Court on Alternative Dispute Resolution; (l) Determine the necessity of engaging the services of a qualified expert as a friend of the court (amicus curiae); and (m) Ask parties to agree on the specific trial dates for continuous trial, comply with the one-day examination of witness rule, adhere to the case flow chart determined by the court which shall contain the different stages of the proceedings up to the promulgation of the decision and use the time frame for each stage in setting the trial dates. Section 7. Effect of failure to appear at pre-trial. - The court shall not dismiss the complaint, except upon repeated and unjustified failure of the plaintiff to appear. The dismissal shall be without prejudice, and the court may proceed with the counterclaim. If the defendant fails to appear at the pre-trial, the court shall receive evidence ex parte.

Section 8. Minutes of pre-trial. - The minutes of each pre-trial conference shall contain matters taken up therein, more particularly admissions of facts and exhibits, and shall be signed by the parties and their counsel. Section 9. Pre-trial order. - Within ten (10) days after the termination of the pre-trial, the court shall issue a pre-trial order setting forth the actions taken during the pre-trial conference, the facts stipulated, the admissions made, the evidence marked, the number of witnesses to be presented and the schedule of trial. Said order shall bind the parties, limit the trial to matters not disposed of and control the course of action during the trial. Section 10. Efforts to settle. - The court shall endeavor to make the parties agree to compromise or settle in accordance with law at any stage of the proceedings before rendition of judgment. 3. PROHIBITED PLEADINGS AND MOTIONS Section 2. Prohibited pleadings or motions. The following pleadings or motions shall not be allowed: (a) (b) Motion Motion for to a dismiss bill the of complaint; particulars;

(c) Motion for extension of time to file pleadings, except to file answer, the extension not to exceed fifteen (15) days;

(d)

Motion

to

declare

the

defendant

in

default;

(e) Reply and rejoinder; and

(f)

Third

party

complaint.

4. TEMPORARY ENVIRONMENTAL PROTECTION ORDER (TEPO) Section 8. Issuance of Temporary Environmental Protection Order (TEPO). - If it appears from the verified complaint with a prayer for the issuance of an Environmental Protection Order (EPO) that the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of the multiple-sala court before raffle or the presiding judge of a single-sala court as the case may be, may issue ex parte a TEPO effective for only seventy-two (72) hours from date of the receipt of the TEPO by the party or person enjoined. Within said period, the court where the case is assigned, shall conduct a summary hearing to determine whether the TEPO may be extended until the termination of the case. The court where the case is assigned, shall periodically monitor the existence of acts that are the subject matter of the TEPO even if issued by the executive judge, and may lift the same at any time as circumstances may warrant. The applicant shall be exempted from the posting of a bond for the issuance of a TEPO.

Section 9. Action on motion for dissolution of TEPO. - The grounds for motion to dissolve a TEPO shall be supported by affidavits of the party or person enjoined which the applicant may oppose, also by affidavits. The TEPO may be dissolved if it appears after hearing that its issuance or continuance would cause irreparable damage to the party or person enjoined while the applicant may be fully compensated for such damages as he may suffer and subject to the posting of a sufficient bond by the party or person enjoined. 5. JUDGMENT AND EXECUTION; RELIEFS IN A CITIZENS SUIT RULE JUDGMENT 5 EXECUTION

AND

Section 1. Reliefs in a citizen suit. - If warranted, the court may grant to the plaintiff proper reliefs which shall include the protection, preservation or rehabilitation of the environment and the payment of attorneys fees, costs of suit and other litigation expenses. It may also require the violator to submit a program of rehabilitation or restoration of the environment, the costs of which shall be borne by the violator, or to contribute to a special trust fund for that purpose subject to the control of the court.

6. PERMANENT ENVIRONMENTAL PROTECTION ORDER; WRIT OF CONTINUING MANDAMUS Section 3. Permanent EPO; writ of continuing mandamus. - In the judgment, the court may convert the TEPO to a permanent EPO or issue a writ of continuing mandamus directing the performance of acts which shall be effective until the judgment is fully satisfied. The court may, by itself or through the appropriate government agency, monitor the execution of the judgment and require the party concerned to submit written reports on a quarterly basis or sooner as may be necessary, detailing the progress of the execution and satisfaction of the judgment. The other party may, at its option, submit its comments or observations on the execution of the judgment.

7. STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION RULE STRATEGIC 6 PARTICIPATION

LAWSUIT

AGAINST

PUBLIC

Section 1. Strategic lawsuit against public participation (SLAPP). - A legal action filed to harass, vex, exert undue pressure or stifle any legal recourse that any person, institution or the government has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights shall be treated as a SLAPP and shall be governed by these Rules. Section 2. SLAPP as a defense; how alleged. - In a SLAPP filed against a person involved in the enforcement of environmental laws, protection of the environment, or assertion of environmental rights, the defendant may file an answer interposing as a defense that the case is a SLAPP and shall be supported by documents, affidavits, papers and other evidence; and, by way of counterclaim, pray for damages, attorneys fees and costs of suit. The court shall direct the plaintiff or adverse party to file an opposition showing the suit is not a SLAPP, attaching evidence in support thereof, within a non-extendible period of five (5) days from receipt of notice that an answer has been filed. The defense of a SLAPP shall be set for hearing by the court after issuance of the order to file an opposition within fifteen (15) days from filing of the comment or the lapse of the period. Section 3. Summary hearing. - The hearing on the defense of a SLAPP shall be summary in nature. The parties must submit all available evidence in support of their respective positions. The party seeking the dismissal of the case must prove by substantial evidence that his act for the enforcement of environmental law is a legitimate action for the protection, preservation and rehabilitation of the environment. The party filing the action assailed as a SLAPP shall prove by preponderance of evidence that the action is not a SLAPP and is a valid claim. Section 4. Resolution of the defense of a SLAPP. - The affirmative defense of a SLAPP shall be resolved within thirty (30) days after the summary hearing. If the court dismisses the action, the court may award damages, attorneys fees and costs of suit under a counterclaim if such has been filed. The dismissal shall be with prejudice. If the court rejects the defense of a SLAPP, the evidence adduced during the summary hearing shall be treated as evidence of the parties on the merits of the case. The action shall proceed in accordance with the Rules of Court. C. Special Proceedings 1. WRIT OF KALIKASAN RULE WRIT 7 KALIKASAN

OF

Section 1. Nature of the writ. - The writ is a remedy available to a natural or juridical person, entity authorized by law, peoples organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. Section 2. Contents of the petition. The verified petition shall contain the following:

(a)

The

personal

circumstances

of

the

petitioner;

(b) The name and personal circumstances of the respondent or if the name and personal circumstances are unknown and uncertain, the respondent may be described by an assumed appellation; (c) The environmental law, rule or regulation violated or threatened to be violated, the act or omission complained of, and the environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. (d) All relevant and material evidence consisting of the affidavits of witnesses, documentary evidence, scientific or other expert studies, and if possible, object evidence; (e) The certification of petitioner under oath that: (1) petitioner has not commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency, and no such other action or claim is pending therein; (2) if there is such other pending action or claim, a complete statement of its present status; (3) if petitioner should learn that the same or similar action or claim has been filed or is pending, petitioner shall report to the court that fact within five (5) days therefrom; and (f) The reliefs prayed for which may include a prayer for the issuance of a TEPO.

Section 3. Where to file. - The petition shall be filed with the Supreme Court or with any of the stations of the Court of Appeals. Section fees. Section 5. Issuance of the writ. - Within three (3) days from the date of filing of the petition, if the petition is sufficient in form and substance, the court shall give an order: (a) issuing the writ; and (b) requiring the respondent to file a verified return as provided in Section 8 of this Rule. The clerk of court shall forthwith issue the writ under the seal of the court including the issuance of a cease and desist order and other temporary reliefs effective until further order. Section 6. How the writ is served. - The writ shall be served upon the respondent by a court officer or any person deputized by the court, who shall retain a copy on which to make a return of service. In case the writ cannot be served personally, the rule on substituted service shall apply. Section 7. Penalty for refusing to issue or serve the writ. - A clerk of court who unduly delays or refuses to issue the writ after its allowance or a court officer or deputized person who unduly delays or refuses to serve the same shall be punished by the court for contempt without prejudice to other civil, criminal or administrative actions. Section 8. Return of respondent; contents. - Within a non-extendible period of ten (10) days after service of the writ, the respondent shall file a verified return which shall contain all defenses to show that respondent did not violate or threaten to violate, or allow the violation of any environmental law, rule or regulation or commit any act resulting to environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. All defenses not raised in the return shall be deemed waived. 4. No docket fees. The petitioner shall be exempt from the payment of docket

The return shall include affidavits of witnesses, documentary evidence, scientific or other expert studies, and if possible, object evidence, in support of the defense of the respondent.

A general denial of allegations in the petition shall be considered as an admission thereof.

2. PROHIBITED PLEADINGS AND MOTIONS Section 9. Prohibited pleadings and motions. - The following pleadings and motions are prohibited: (a) (b) (c) (d) (e) (f) (g) (h) Motion to declare respondent in default. 3. DISCOVERY MEASURES Section 12. Discovery Measures. - A party may file a verified motion for the following reliefs: (a) Ocular Inspection; order The motion must show that an ocular inspection order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces. It shall state in detail the place or places to be inspected. It shall be supported by affidavits of witnesses having personal knowledge of the violation or threatened violation of environmental law. After hearing, the court may order any person in possession or control of a designated land or other property to permit entry for the purpose of inspecting or photographing the property or any relevant object or operation thereon. Motion Motion for Motion for Counterclaim Third-party Reply; a Motion extension of to time for bill or of to file dismiss; return; postponement; particulars; cross-claim; complaint; and

The order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties. (b) Production or inspection of documents or things; order The motion must show that a production order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces. After hearing, the court may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant.

The production order shall specify the person or persons authorized to make the production and the date, time, place and manner of making the inspection or production and may prescribe other conditions to protect the constitutional rights of all parties. 4. WRIT OF CONTINUING MANDAMUS RULE WRIT 8 MANDAMUS

OF

CONTINUING

Section 1. Petition for continuing mandamus. - When any agency or instrumentality of the government or officer thereof unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station in connection with the enforcement or violation of an environmental law rule or regulation or a right therein, or unlawfully excludes another from the use or enjoyment of such right and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty, attaching thereto supporting evidence, specifying that the petition concerns an environmental law, rule or regulation, and praying that judgment be rendered commanding the respondent to do an act or series of acts until the judgment is fully satisfied, and to pay damages sustained by the petitioner by reason of the malicious neglect to perform the duties of the respondent, under the law, rules or regulations. The petition shall also contain a sworn certification of non-forum shopping. Section 2. Where to file the petition. - The petition shall be filed with the Regional Trial Court exercising jurisdiction over the territory where the actionable neglect or omission occurred or with the Court of Appeals or the Supreme Court. Section 3. No docket fees. - The petitioner shall be exempt from the payment of docket fees. Section 4. Order to comment. - If the petition is sufficient in form and substance, the court shall issue the writ and require the respondent to comment on the petition within ten (10) days from receipt of a copy thereof. Such order shall be served on the respondents in such manner as the court may direct, together with a copy of the petition and any annexes thereto. Section 5. Expediting proceedings; TEPO. - The court in which the petition is filed may issue such orders to expedite the proceedings, and it may also grant a TEPO for the preservation of the rights of the parties pending such proceedings. Section 6. Proceedings after comment is filed. - After the comment is filed or the time for the filing thereof has expired, the court may hear the case which shall be summary in nature or require the parties to submit memoranda. The petition shall be resolved without delay within sixty (60) days from the date of the submission of the petition for resolution. Section 7. Judgment. - If warranted, the court shall grant the privilege of the writ of continuing mandamus requiring respondent to perform an act or series of acts until the judgment is fully satisfied and to grant such other reliefs as may be warranted resulting from the wrongful or illegal acts of the respondent. The court shall require the respondent to submit periodic reports detailing the progress and execution of the judgment, and the court may, by itself or through a commissioner or the appropriate government agency, evaluate and monitor compliance. The petitioner may submit its comments or observations on the execution of the judgment. Section 8. Return of the writ. - The periodic reports submitted by the respondent detailing compliance with the judgment shall be contained in partial returns of the writ. Upon full satisfaction of the judgment, a final return of the writ shall be made to the court by the respondent.

If the court finds that the judgment has been fully implemented, the satisfaction of judgment shall be entered in the court docket. D. CRIMINAL PROCEDURE 1. WHO MAY FILE?

RULE PROSECUTION

OF

9 OFFENSES

Section 1. Who may file. - Any offended party, peace officer or any public officer charged with the enforcement of an environmental law may file a complaint before the proper officer in accordance with the Rules of Court.

2. INSTITUTION OF CRIMINAL AND CIVIL ACTION

RULE PROSECUTION

OF

CIVIL

10 ACTIONS

Section 1. Institution of criminal and civil actions. - When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged, shall be deemed instituted with the criminal action unless the complainant waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action. Unless the civil action has been instituted prior to the criminal action, the reservation of the right to institute separately the civil action shall be made during arraignment. In case civil liability is imposed or damages are awarded, the filing and other legal fees shall be imposed on said award in accordance with Rule 141 of the Rules of Court, and the fees shall constitute a first lien on the judgment award. The damages awarded in cases where there is no private offended party, less the filing fees, shall accrue to the funds of the agency charged with the implementation of the environmental law violated. The award shall be used for the restoration and rehabilitation of the environment adversely affected.

3. ARREST WITHOUT WARRANT, WHEN VALID?

RULE ARREST

11

Section 1. Arrest without warrant; when lawful. - A peace officer or an individual deputized by the proper government agency may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing or is attempting to commit an offense; or (b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it. Individuals deputized by

the proper government agency who are enforcing environmental laws shall enjoy the presumption of regularity under Section 3(m), Rule 131 of the Rules of Court when effecting arrests for violations of environmental laws. Section 2. Warrant of arrest. - All warrants of arrest issued by the court shall be accompanied by a certified true copy of the information filed with the issuing court.

4. PROCEDURE IN THE CUSTODY AND DISPOSITION OF SEIZED ITEMS

RULE CUSTODY AND PARAPHERNALIA,

DISPOSITION OF CONVEYANCES

SEIZED AND

ITEMS,

12 EQUIPMENT, INSTRUMENTS

Section 1. Custody and disposition of seized items. - The custody and disposition of seized items shall be in accordance with the applicable laws or rules promulgated by the concerned government agency. Section 2. Procedure. - In the absence of applicable laws or rules promulgated by the concerned government agency, the following procedure shall be observed: (a) The apprehending officer having initial custody and control of the seized items, equipment, paraphernalia, conveyances and instruments shall physically inventory and whenever practicable, photograph the same in the presence of the person from whom such items were seized. (b) Thereafter, the apprehending officer shall submit to the issuing court the return of the search warrant within five (5) days from date of seizure or in case of warrantless arrest, submit within five (5) days from date of seizure, the inventory report, compliance report, photographs, representative samples and other pertinent documents to the public prosecutor for appropriate action. (c) Upon motion by any interested party, the court may direct the auction sale of seized items, equipment, paraphernalia, tools or instruments of the crime. The court shall, after hearing, fix the minimum bid price based on the recommendation of the concerned government agency. The sheriff shall conduct the auction. (d) The auction sale shall be with notice to the accused, the person from whom the items were seized, or the owner thereof and the concerned government agency. (e) The notice of auction shall be posted in three conspicuous places in the city or municipality where the items, equipment, paraphernalia, tools or instruments of the crime were seized. (f) The proceeds shall be held in trust and deposited with the government depository bank for disposition according to the judgment.

5. BAIL

RULE BAIL

14

Section 1. Bail, where filed. - Bail in the amount fixed may be filed with the court where the case is pending, or in the absence or unavailability of the judge thereof, with any regional trial judge, metropolitan trial judge, municipal trial judge or municipal circuit trial judge in the province, city or municipality. If the accused is

arrested in a province, city or municipality other than where the case is pending, bail may also be filed with any Regional Trial Court of said place, or if no judge thereof is available, with any metropolitan trial judge, municipal trial judge or municipal circuit trial judge therein. If the court grants bail, the court may issue a hold-departure order in appropriate cases. Section 2. Duties of the court. - Before granting the application for bail, the judge must read the information in a language known to and understood by the accused and require the accused to sign a written undertaking, as follows: (a) To appear before the court that issued the warrant of arrest for arraignment purposes on the date scheduled, and if the accused fails to appear without justification on the date of arraignment, accused waives the reading of the information and authorizes the court to enter a plea of not guilty on behalf of the accused and to set the case for trial; (b) To appear whenever required by the court where the case is pending; and

(c) To waive the right of the accused to be present at the trial, and upon failure of the accused to appear without justification and despite due notice, the trial may proceed in absentia.

6. ARRAINGMENT AND PLEA RULE ARRAIGNMENT 15 PLEA

AND

Section 1. Arraignment. - The court shall set the arraignment of the accused within fifteen (15) days from the time it acquires jurisdiction over the accused, with notice to the public prosecutor and offended party or concerned government agency that it will entertain plea-bargaining on the date of the arraignment. Section 2. Plea-bargaining. - On the scheduled date of arraignment, the court shall consider plea-bargaining arrangements. Where the prosecution and offended party or concerned government agency agree to the plea offered by the accused, the court shall: (a) (b) (c) Issue Proceed Render to and an order receive promulgate which on of contains the civil the aspect including plea-bargaining of the the civil case, liability arrived if for any; at; and

evidence judgment

conviction,

damages.

7. PRE-TRIAL

RULE PRE-TRIAL

16

Section 1. Setting of pre-trial conference. - After the arraignment, the court shall set the pre-trial conference within thirty (30) days. It may refer the case to the branch clerk of court, if warranted, for a preliminary conference to be set at least three (3) days prior to the pre-trial. Section 2. Preliminary conference. - The preliminary conference shall be for the following purposes: (a) To assist the parties in reaching a settlement of the civil aspect of the case;

(b) (c) To

To attach

mark copies

the thereof

documents to the

to records

be after

presented comparison with

as the

exhibits; originals;

(d) To ascertain from the parties the undisputed facts and admissions on the genuineness and due execution of documents marked as exhibits; (e) To consider such other matters as may aid in the prompt disposition of the case;

(f) To record the proceedings during the preliminary conference in the Minutes of Preliminary Conference to be signed by the parties and counsel; (g) To mark the affidavits of witnesses which shall be in question and answer form and shall constitute the direct examination of the witnesses; and (h) To attach the Minutes and marked exhibits to the case record before the pre-trial proper. The parties or their counsel must submit to the branch clerk of court the names, addresses and contact numbers of the affiants. Section (a) 3. Place Pre-trial the duty of the judge. and During their the pre-trial, counsels the court shall: oath;

parties

under

(b) Adopt the minutes of the preliminary conference as part of the pre-trial proceedings, confirm markings of exhibits or substituted photocopies and admissions on the genuineness and due execution of documents, and list object and testimonial evidence; (c) Scrutinize the information and the statements in the affidavits and other documents which form part of the record of the preliminary investigation together with other documents identified and marked as exhibits to determine further admissions of facts as to: i. ii. iii. (d) Define The courts territorial jurisdiction of Amount factual and relative expert of legal to the offense(s) charged; and damages; issues;

Qualification

witnesses;

(e) Ask parties to agree on the specific trial dates and adhere to the flow chart determined by the court which shall contain the time frames for the different stages of the proceeding up to promulgation of decision; (f) Require the parties to submit to the branch clerk of court the names, addresses and contact numbers of witnesses that need to be summoned by subpoena; and (g) Consider modification of order of trial if the accused admits the charge but interposes a lawful defense. Section 4. Manner of questioning. - All questions or statements must be directed to the court. Section 5. Agreements or admissions. - All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and counsel; otherwise, they cannot be used against the accused. The agreements covering the matters referred to in Section 1, Rule 118 of the Rules

of

Court

shall

be

approved

by

the

court.

Section 6. Record of proceedings. - All proceedings during the pre-trial shall be recorded, the transcripts prepared and the minutes signed by the parties or their counsels. Section 7. Pre-trial order. - The court shall issue a pre-trial order within ten (10) days after the termination of the pre-trial, setting forth the actions taken during the pre-trial conference, the facts stipulated, the admissions made, evidence marked, the number of witnesses to be presented and the schedule of trial. The order shall bind the parties and control the course of action during the trial.

8. SUBSIDIARY LIABILITIES

RULE SUBSIDIARY

18 LIABILITY

Section 1. Subsidiary liability. - In case of conviction of the accused and subsidiary liability is allowed by law, the court may, by motion of the person entitled to recover under judgment, enforce such subsidiary liability against a person or corporation subsidiary liable under Article 102 and Article 103 of the Revised Penal Code.

PART V EVIDENCE

RULE 20

PRECAUTIONARY PRINCIPLE

Section 1. Applicability. - When there is a lack of full scientific certainty in establishing a causal link between human activity and environmental effect, the court shall apply the precautionary principle in resolving the case before it.

The constitutional right of the people to a balanced and healthful ecology shall be given the benefit of the doubt.

Section 2. Standards for application. - In applying the precautionary principle, the following factors, among others, may be considered: (1) threats to human life or health; (2) inequity to present or future generations; or (3) prejudice to the environment without legal consideration of the environmental rights of those affected.

RULE 21

DOCUMENTARY EVIDENCE

Section 1. Photographic, video and similar evidence. - Photographs, videos and similar evidence of events, acts, transactions of wildlife, wildlife by-products or derivatives, forest products or mineral resources subject of a case shall be admissible when authenticated by the person who took the same, by some other person present when said evidence was taken, or by any other person competent to testify on the accuracy thereof.

Section 2. Entries in official records. - Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated.