Dean Jara - RemRev

Dean Jara Lecture Notes in Remedial Law 2013
Plea of guilty in civil cases, specific denial is not applied, if pleaded, the court cannot compel the
defendant to explain why plea of guilt was given.
Denial without specificity in civil cases, it is tantamount to admission of allegations in the pleadings, and
thus could lead to a judgment on the pleadings. This is not allowed in criminal cases.
Quantum of evidence guilt should be proof beyond reasonable doubt in criminal cases, while only
preponderance of evidence is required in civil cases.
Jurisdiction of courts in civil actions, laws governing:
1. Constitution
2. Judiciary Act of 1848 (RA 296)
3. BP 129 and its amendments
4. Law creating the family court (1997)
5. Law creating the Sandiganbayan
General Law on jurisdiction: BP 129 and its amendments.
Note: The cases formerly taken in cognizance by the abolished Juvenile and Domestic Relations Court came
under the jurisdiction of the RTC under BP 129, which is in the concept of exclusive original jurisdiction. Then
came the special law creating the Family Court, which provides that the said court has exclusive original
jurisdiction over cases involving marriage, adoption, cases involving minors, habeas corpus involving minors,
and other civil or criminal cases involving minors.
BP 129 vs. special law on jurisdiction the special law generally prevails. (General law shall give way to
special law, except if the special law specifically provides otherwise or that the law allows parties to stipulate
pertaining to the matter of jurisdiction.)
Jurisdiction is a matter of substantive law.
This is not necessarily true. (Dean Jara) Substantive law deals with jurisdiction over the subject matter
and/or jurisdiction over the nature of the action. This is the aspect of jurisdiction governed by BP 129
and the other substantive laws on jurisdiction.
Other aspects of jurisdiction governed by procedural law:
Jurisdiction over the person of the litigants governed by the RoC
Jurisdiction over the property involved governed by the RoC
Jurisdiction over the issues of the case governed by the RoC
Thus, jurisdiction as part of substantive law is limited to a court to decide the case insofar as the subject
matter of the case or the nature of the action. Jurisdiction over the litigants, the issues of the case and
property involved are governed mostly by procedural law, mostly under the Rules of Court.
BP 129 does not mention anything about the SC. It begins with the CA downwards, up to the MTC and the
Sharia Courts. Supreme Court exercises its authority from the Constitution. In the Constitution, the SC
exercises original jurisdiction and appellate jurisdiction. But the Constitution does not say that original
jurisdiction of the SC is exclusive, nor about the appellate jurisdiction being exclusive. The basis
for this is in the old Judiciary Act of 1948 where SC jurisdiction is delineated in a very thorough
manner, providing exclusive original and appellate jurisdiction of the SC. Note that BP 129 did
not repeal the old judiciary act and hence it is still in force. What BP 129 did repeal are provisions of
Judiciary Act of 1948 that are inconsistent with BP 129. The best argument to support this statement is Sec. 9
in BP 129.
Sec. 9 BP 129 last sub provides for the jurisdiction of the CA.
3. Exclusive appellate jurisdiction over all final judgments, resolutions, orders or awards of
Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commission,
including the Securities and Exchange Commission, the Social Security Commission, the
Employees Compensation Commission and the Civil Service Commission, Except those
falling within the appellate jurisdiction of the Supreme Court in accordance with
the Constitution, the Labor Code of the Philippines under Presidential Decree No.
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442, as amended, the provisions of this Act, and of subparagraph (1) of the third
paragraph and subparagraph 4 of the fourth paragraph of Section 17 of the
Judiciary Act of 1948.
The Constitution provides for a limited number of cases over which the SC can exercise original jurisdiction
and limited number of cases over which it can exercise appellate jurisdiction. These are not exclusive.
Art. VIII Sec. 5
Section 5. The Supreme Court shall have the following powers:
(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and
consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas
corpus.
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of
Court may provide, final judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty
imposed in relation thereto.
(c) All cases in which the jurisdiction of any lower court is in issue.
(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.
(e) All cases in which only an error or question of law is involved.
(3) Assign temporarily judges of lower courts to other stations as public interest may require.
Such temporary assignment shall not exceed six months without the consent of the judge
concerned.
(4) Order a change of venue or place of trial to avoid a miscarriage of justice.
(5) Promulgate rules concerning the protection and enforcement of constitutional rights,
pleading, practice, and procedure in all courts, the admission to the practice of law, the
integrated bar, and legal assistance to the under-privileged. Such rules shall provide a
simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for
all courts of the same grade, and shall not diminish, increase, or modify substantive rights.
Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless
disapproved by the Supreme Court.
(6) Appoint all officials and employees of the Judiciary in accordance with the Civil Service
Law.
The Constitution provides that the SC has original jurisdiction over cases involving ambassadors,
other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus. Reading the 1987 Constitution with BP 129, we will find out that
the same authority is given by BP 129 to other courts.
SCs Exclusive original jurisdiction:
Petitions for certiorari, prohibition or mandamus against CA, COMELEC, CoA and Sandiganbayan
Concurrent Jurisdiction: (Subject to Doctrine of Hierarchy of Courts and direct recourse only in cases when
redress desired cannot be obtained in the lower courts or when it serves the broader interest of justice)
With RTC:
Cases affecting ambassadors, other public ministers and Consuls
With CA:
Petitions for certiorari, prohibition or mandamus against RTC
Petitions for Writ of Kalikasan
With RTC and CA:
Petition for habeas corpus
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Petition for quo warranto

Petitions for certiorari, prohibition or mandamus against MTC and other bodies
With RTC, CA and Sandiganbayan:
Petition for Writ of Amparo
Petition for Writ of Habeas Data
Appellate Jurisdiction:
By way of Certiorari under Rule 45 against CA, Sandiganbayan, RTC (pure questions of law only), CTA en banc
and cases on the constitutionality and validity of a law or treaty, international agreement or executive
agreement, presidential decree, proclamation order, instruction, ordinance or regulation, legality of a tax,
impost, assessment, toll or penalty, jurisdiction of a lower court.
BP 129 provides that CA exercises original jurisdiction over certiorari, prohibition, mandamus, quo warranto
and habeas corpus.
BP 129 vests jurisdiction to the RTC to exercises original jurisdiction over certiorari, prohibition, mandamus,
quo warranto and habeas corpus.
In effect, there are 3 courts in the judiciary which exercise jurisdictions over certiorari, prohibition,
mandamus, quo warranto and habeas corpus: SC, CA and RTC. Thus, theoretically, if one has been wronged
due to grave abuse of discretion amounting to lack of jurisdiction, petition for mandamus can be filed with the
SC immediately, based on the 1987 Constitution and BP 129.
However, Certiorari, Prohibition and Mandamus have been greatly limited by certain procedural
rules. The limitation is known as hierarchy of courts. (See Rule 65) Thus, while theoretically a petition
can be filed directly to the SC, one should follow the procedure under the principle of hierarchy of courts. In
Rule 65, it is expressly provided that petitions for Certiorari, Prohibition and Mandamus (and even Quo
Warranto. Dean Jara) should be filed directly only with two courts, a RTC or the CA. On analysis, Sec. 4 Rule
65 is a severe limitation on the right of an aggrieved party to avail of Certiorari, Prohibition and
Mandamus as provided for in the Constitution.
Rule 65, Sec. 4. Where petition filed.
The petition may be filed not later than sixty (60) days from notice of the judgment, order or resolution
sought to be assailed in the Supreme Court or, if it relates to the acts or omissions of a lower court or
of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over
the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals
whether or not the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in
aid of its jurisdiction. If it involves the acts or omissions of a quasi-judicial agency, and unless
otherwise provided by law or these Rules, the petition shall be filed in and cognizable only by the Court of
Appeals.
Among the basic principles of the enactment of BP 129 was to do away with the concept of concurrent
jurisdiction. BP 129 has not been able to do away entirely with concurrent jurisdiction. BP 129 does not use
the term concurrent in vesting jurisdiction upon courts. The law classifies jurisdiction into original jurisdiction;
appellate jurisdiction; exclusive original jurisdiction, and exclusive appellate jurisdiction; unlike that under the
old Judiciary Act of 1948 where the law expressly contained provisions that conferred concurrent jurisdiction
over different cases upon different courts, which resulted in confusion. Generally, BP 129 has been able to do
away with the concept of concurrence of jurisdiction, except with respect to certiorari, prohibition,
mandamus, quo warranto and habeas corpus. Since the Constitution and BP 129 allocate original jurisdiction
upon 3 courts, then it is safe to conclude that these 3 courts exercise original and concurrent jurisdiction over
these petitions.
BP 129 WITH RESPECT TO THE COURT OF APPEALS:
Exclusive Original Jurisdiction only cases of annulment of judgment of an RTC.
Appellate Jurisdiction:
Ordinary appeal from RTC and Family Courts
Petition for review from RTC in exercise of its appellate jurisdiction
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Petition for review from decisions, resolutions, orders or awards from CSC, Ombudsman in administrative
cases and other quasi-judicial agencies in exercise of its quasi-judicial functions as mentioned in Sec. 1 Rule
43.
Concurrent Jurisdiction: With SC:
Petitions for certiorari, prohibition or mandamus against the RTC
Petitions for Writ of Kalikasan
Petition for Mandamus against NLRC (But St. Martin Funeral Homes vs. CA says petition should be filed in CA
instead of SC)
Concurrent Jurisdiction with RTC and SC:
Petition for habeas corpus
Petition for Quo warranto
Petitions for certiorari, prohibition or mandamus against the MTC and other bodies
Concurrent Jurisdiction with RTC and Sandiganbayan:
Petition for writ of Amparo
Petition for habeas data
The SC, despite being the supreme court of the land, is not a court of general jurisdiction, it exercises only
limited original jurisdiction as provided for under the Constitution. It is generally not a trier of facts. The same
is true in the CA. In Sec. 9 BP 129, the CAs authority is very limited.
CA has exclusive original jurisdiction over Annulment of Judgment of an RTC under Rule 47. Does
it mean that the CA can annul a judgment rendered by an MTC?
Since the CA is a court of limited jurisdiction, it is allowed to annul judgment only judgments from the RTC. It
cannot annul decisions of an MTC.
Would it mean that the judgment of an MTC is immune from annulment of its judgment?
Yes. The decision of an RTC can be annulled by the CA. But the decision of an MTC is immune from annulment
by the CA. But, the decision of an MTC can be annulled by an RTC. It is not so provided in BP 129 that an RTC
can annul a judgment of an MTC, but it is provided for under Section 10 of Rule 47 on Annulment of Judgment
in the Rules. Thus, jurisdiction is vested in the RTC under the Rules for it to be able to annul judgments
rendered by an MTC.
Can we then challenge the jurisdiction of RTC as BP 129, a special law, should take precedence
over a substantive law, as BP 129 does not expressly give the RTC the authority to annul
judgment of an MTC? Why?
We cannot. This is because, under BP 129 there is an allocation to the RTC of jurisdiction to entertain and
decide all kinds of actions which are not especially given to other courts. This is the provision why an RTC can
annul judgments of the MTC as well as the reason why the RTC is considered as the real court of general
jurisdiction in our justice system. Since no substantive law has allocated to other courts the jurisdiction to
annul judgments of an MTC, it follows now that the RTC is the proper court to decide on the matter as
provided under BP 129 for an RTC to entertain and decide all kinds of actions not especially given to other
courts.
Islamic Da'wah Case BP 129
The SC traced the history of annulment of judgment as an action. SC mentioned that before BP 129, the SC
had recognized the regularity and propriety of filing a petition to annul an MTC judgment in the RTC.
Can an RTC entertain and decide on cases of annulment of judgments of another RTC prior to BP
129? Why?
Before BP 129, SC held yes, because the RTC is a court of general jurisdiction. This is the reason why in BP
129, Congress deemed it necessary to incorporate a provision giving exclusive authority to the CA to annul a
judgment rendered by the RTC to do away with the anomalous situation where an RTC is able to annul
judgments rendered by another RTC, as there was no specific substantive law prior to BP 129 which allocated
to other courts the authority to annul judgments of the RTC.
A person need not be a party to the judgment sought to be annulled. What is essential is that he can prove
his allegation that the judgment was obtained by the use of fraud and collusion and he would be adversely
affected thereby (Islamic Dawah Council v. CA, G.R. No. 80892, Sept. 29, 1989).
Can the SC annul the judgment of the CA?
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No. The Constitution and BP 129 does not provide authority for the SC to annul judgments rendered by the
CA. There is no substantive law or special law authorizing SC to annul judgments rendered by the CA.
It does not mean that the decisions of the CA are immune from annulment. The SC could still exercise its
equity jurisdiction, most likely under Rule 65, in order to annul a judgment of the CA, based on the same
grounds given under Rule 47, extrinsic fraud and lack of jurisdiction.
Fraud is regarded as extrinsic where it prevents a party from having a trial or from preventing a party from
having a trial or from presenting his entire case to the court, or where it operates upon matters pertaining not
to the judgment itself but to the manner in which it is procured (Alaban v. CA, GR no. 156021, September 23,
2005).
Extrinsic fraud or collateral fraud not a valid ground if it was availed of, or could have been availed of in
a motion for new trial or petition for relief.
Lack of jurisdiction as a ground for annulment of judgment refers to either lack of jurisdiction over the
person of the defending party or over the subject matter of the claim.
Lack of jurisdiction over the subject matter and over the person May be barred by estoppels by
laches, which is that failure to do something which should be done or to claim or enforce a right at a
proper time or a neglect to do something which one should do or to seek or enforce a right at a
proper time. (1998 Bar Question)
What is annulment of judgment?
A: It is a remedy in law independent of the case where the judgment sought to be annulled was rendered.
The purpose of such action is to have the final and executor judgment set aside so that there will be renewal
of litigation.
Note: A co-equal court cannot annul the final judgment of a similar court. CA has exclusive
jurisdiction over actions for annulment of judgments of RTC. An action to annul a judgment or final
order of MTC shall be filed in the RTC having jurisdiction in the former and it shall be treated as an
ordinary civil action. (Secs. 1 &10, Rule 47).
Q: When may it be availed of?
A: The remedy of annulment of judgment may be availed of when the ordinary remedies of new trial, appeal,
petition for relief or other appropriate remedies are no longer available through no fault of the petitioner (Sec.
1, Rule 47).
Q: Who may avail this remedy?
A: A person need not be a party to the judgment sought to be annulled. What is essential is that he can prove
his allegation that the judgment was obtained by the use of fraud and collusion and he would be adversely
affected thereby (Islamic Dawah Council v. CA, G.R. No. 80892, Sept. 29, 1989).
The extraordinary action to annul a final judgment is restricted to the grounds provided by law to prevent it
from being used by a losing party to make a mockery of a duly promulgated decision that has long become
final and executory.
Q: Where should the petition be filed?
A:
Judgments of RTC
Filed with the CA
Basis It has exclusive original jurisdiction over said
action under Sec. 9 (2), BP 129
CA may dismiss the case outright; it has the
discretion on whether or not to entertain the
petition.
Judgments of MTC
Filed with the RTC
Basis RTC as a court of general jurisdiction under
Sec. 19 (6), BP 129
RTC has no such discretion. It is required to consider
it as an ordinary civil action.
If a judgment of an MTC can be the subject of annulment by CA or RTC as the case may be, can
we also seek annulment of the decisions by a quasi-judicial or administrative body?
Under BP 129, annulment of judgment, as procedurally explained in Rule 47, does not extend to the quasijudicial or administrative body, unless such provision was allowed by the charter of such administrative or
quasi-judicial body.
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Rule 47 refers to an action filed by a petitioner to annul a judgment rendered by an RTC in a civil
case. This is what literally BP 129 provided where CA is given the authority to annul decisions
made by an RTC in a civil action. Therefore, if the action is not a civil action or rendered by a
quasi-judicial or administrative body, we cannot use Rule 47. (possible Bar Q area)
Since Rule 47 says that the annulment contemplated in BP 129 refers to a judgment in a civil
action, does it mean to say that the judgment of an RTC acting as a criminal court cannot be
subject to annulment of judgment by the CA under Rule 47?
No. If the judgment of the RTC is a judgment in a criminal case, we cannot use Rule 47 as it is specifically
stated in the said rule that annulment of judgment is availing only to civil cases decided by the RTC. Rule 47
is not a remedy to annul decisions or judgments rendered by the RTC as a criminal court. A decision of an
RTC in a criminal case can be annulled by filing a case for habeas corpus. Petition for habeas corpus
is the equivalent in criminal cases of petition for annulment of judgments in civil cases.
An RTC could act as a civil and criminal court. It exercises original actions over both actions. RTC decisions in
civil actions could be the subject of annulment by CA under rule 47, but Rule 47 does not apply if the decision
is one rendered from criminal cases. The remedy in order to annul a judgment in criminal cases is by filing a
petition for habeas corpus. BP 129 is very clear under Rule 47. What can be annulled under Rule 47 are
judgments in civil cases only.
Is there a difference between Rule 47 (petition for annulment of judgment rendered by an RTC in
a civil case) and petition for habeas corpus?
There are substantial differences. Annulment under Rule 47 is a direct attack of a final and executory
judgment, the only purpose of which is to nullify and set aside a court decision in a civil case. But in a
criminal case where the decision of the RTC may not be valid due to lack of jurisdiction or extrinsic fraud, the
remedy is petition for habeas corpus, which is an indirect attack on the judgment of an RTC in the criminal
case. When a habeas corpus petition is filed in order to nullify a decision on a criminal case, the principal
relief which the petitioner seeks is to declare the petitioner has been deprived of his liberty unlawfully. It is
not principally to set aside the judgment rendered by the RTC in a criminal case.
The remedy of petition for habeas corpus in criminal case are more advantageous than that of an annulment
of judgment in civil cases. This is because an annulment of judgment in civil cases is a direct attack against
the judgment in the civil case, while in the criminal cases, the detainee can challenge the validity of the
judgment of conviction, although he is not attacking directly the validity of the said judgment of conviction.
He is attacking the validity of the deprivation of his liberty.
What is a collateral attack on judgment?
A: It is made 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 such judgment has no jurisdiction(Co vs. Court of
Appeals, 196 SCRA 705).
Note that Rule 47 is inserted in between the rules governing appeals. The procedure for appeal starts with
Rule 40 up to 56. Annulment of judgment has nothing to do with appeals as it is a civil action. Annulment of
judgment is an original action that can be filed in the RTC and CA. And, in Rule 47, when particularly applied
to a petition for annulment commenced before the CA, you will notice that some of the features of a special
civil action are carried by a petition to annul the judgment filed with the CA. For instance, if a petition to annul
a judgment of an RTC in a civil case is filed in the CA, the CA has the authority to outrightly dismiss the
petition for lack of merit. This is similar to Rule 65, where the petition for certiorari, prohibition or mandamus
can be outrightly dismissed if it is not meritorious on its face.
What if the decision in the RTC was already final and executory, can the petition to annul
judgment filed in the CA stop the execution of the said judgment?
No. The petition will not stop the prevailing party from moving for the execution of the final and executory
judgment in the civil case, notwithstanding the commencement of the petition to have the judgment in the
civil case annulled. The only remedies available to a petitioner for annulment of judgment of an RTC in the CA
is to apply for the provisional remedy of PI or TRO to stop the RTC from proceeding with the execution of the
said judgment.
Under Rule 47 in relation to BP 129 in the case of annulment of judgments of an RTC filed in the
CA, is it correct that only the litigants thereto can file the petition to annul a judgment in a civil
case?
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No. As held in the case of Islamic Da'wah vs. CA, the petition for annulment of judgment in BP 129 and Rule
47 does not prohibit a stranger from filing a petition to annul judgment. He can do so, so long as he can show
he will be prejudiced by the judgment sought to be annulled.
Requirements:
1. All other Remedies of motion for new trial, petition for relief, appeal and other remedies are no longer
available or to do so will not redound to his benefit.
2. Through no fault of petitioner, remedies were unavailing
3. Petitioner is a stranger to the case (Islamic Dawah case)
In Islamic Dawah, in allowing a stranger to file annul a judgment, then he need not seek other
remedies since the stranger to a case cannot possibly avail of remedies that are available only to
a litigant in a case.
While CA has authority to outrightly dismiss annulment of judgment, RTC cannot. Insofar as RTC is concerned,
petition to annulment of a judgment by an MTC should be treated as any normal civil case.
In Rule 47, if the judgment is annulled, it is declared void by the court. It is unenforceable, or if already
enforced, CA can order restitution if that is still possible.
Rule 47 in relation to BP 129 and Rule 132:
There are no grounds for annulment mentioned in BP 129.
Rule 47 Sec. 2. Grounds for annulment.
The annulment may be based only on the grounds of extrinsic fraud and lack of jurisdiction.
Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in
a motion for new trial or petition for relief.
Judicial record must be discredited. Judgment of the court must be discredited by
such impeachment. In BP 129, there are no grounds for annulment mentioned at
all. They are mentioned in Rule 47 and Rule 132.
Rule 132 Sec. 29 . How judicial record impeached. Any judicial record may be
impeached by evidence of: (a) want of jurisdiction in the court or judicial officer, (b)
collusion between the parties, or (c) fraud in the party offering the record, in
respect to the proceedings.
3 grounds under Rule 132 to impeach judgment:
1. lack of jurisdiction
2. extrinsic fraud
3. collusion
Grounds under Rule 47to impeach judgment:
1. absence of jurisdiction over the subject matter
2. absence of jurisdiction over the person of the accused
3. Extrinsic fraud (this encompasses collusion as found under Rule 132)
Thus, there is no conflict between Rule 132 and Rule 47.
JURISDICTION OF THE RTC
Factors determining jurisdiction:
1. Whether or not action is capable of pecuniary estimation
2. whether or not the action is a real action
3. if the amount is known, whether the amount is within the ambit of the jurisdictional amount
Incapable of pecuniary estimation not all actions incapable of pecuniary estimation are
cognizable by RTC
Note: Ex.
Under BP 129, these actions are not exclusively cognizable by an RTC:
1. Annulment of judgment rendered by RTC not capable of pecuniary estimation, cognizable only
by the CA
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2.
3.
Annulment of arbitral award by barangay court acting as arbitral body cognizable by MTC, as
provided by LGC, although incapable of pecuniary estimation.
Certiorari, prohibition and mandamus not exclusively cognizable by RTC, although incapable of
pecuniary estimation.
JURISDICTIN IN REAL ACTIONS TITLE TO OR POSSESSION OF PROPERTY

This area is qualified by BP 129 as amended as it has expanded the jurisdiction of MTCs.
What are the possessory actions on real property?
A:
Accion Interdictal
Accion Publiciana
Summary action for the recovery A
plenary
action
for
the
of physical possession where recovery of the real right of
the dispossession has not possession
when
the
lasted for more than 1 year.
dispossession has lasted for
more than 1 year.
All cases of forcible entry and RTC has jurisdiction if the
unlawful detainer irrespective value of the property exceeds
of the amount of damages or P20,000 or P50,000 in Metro
unpaid rentals sought to be Manila.
recovered should be brought MTC has jurisdiction if the
to the MTC.
value of the property does
not
exceed
the
above
amounts.
Accion Reinvindicatoria
An action for the recovery of
ownership, which necessarily
includes
the
recovery
of
possession.
RTC has jurisdiction if the
value of the property exceeds
P20,000 or P50,000 in Metro
Manila.
MTC has jurisdiction if the
value of the property does
not
exceed
the
above
amounts.
Accion reinvindicatoria and accion publiciana RTC exercising original jurisdiction if property is worth
above 20k/50k, as the case may be.
Is it possible a real action is at the same time one incapable of pecuniary estimation?
Yes. A good example of a real action that is incapable of pecuniary estimation is foreclosure of real estate
mortgage. It is not capable of pecuniary estimation as the determinative issue here is the right of
the mortgagee to foreclose, not the value of the property.
What do we do in determining jurisdiction of an action is a real action but is incapable of
pecuniary estimation? What factor will be determinative to determine jurisdiction of the court?
SC held that if the action carries the feature of real action and one incapable of pecuniary estimation, then
the determinative factor is the feature of incapable of pecuniary estimation. Thus, RTC has exclusive
jurisdiction of foreclosure actions, even if the assessed value of the property involved is less than the
jurisdictional amount of the RTC. As long as the action is foreclosure of mortgage, the RTC has jurisdiction.
The feature of foreclosure of mortgage as a real action will only be important in determining the venue, not
the jurisdiction.
A similar action which applies the same principle is expropriation. Expropriation of a piece of land is one
involving real action, but it does not take into account the assessed value of the land in determining
jurisdiction. Thus, it is real action, although incapable of pecuniary estimation, as the right to expropriate is
the main issue, not the value of the land involved.
JURISDICTION IN MONEY CLAIMS
When it comes to personal actions, under BP 129, the determining factor will be the amount sought to be
recovered if it is a claim for money, or if it is recovery of personal property, it is the value of the personal
property as alleged in the complaint.
The determining factor for jurisdiction in a pure collection suit is the principal sought to be recovered,
exclusive of charges interest, attorneys fees, damages etc. If the amount sought to be recovered by the
plaintiff is 1M, it may be cognizable by the RTC if it represents the aggregate amount of the claim, the
principal amount being within the jurisdictional value of the MTC. If the principal is only 200k and the rest are
charges, damages, interest, etc., then the MTC has jurisdiction over the case.
What if the plaintiff seeks only recovery of damages inclusive of actual, moral, nominal, etc.?
Ex. Plaintiff sought 100K actual, 500K moral and 500k exemplary damages. How do we determine
jurisdiction here?
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Complaints purely for damages = the aggregate (total) amount of damages will determine jurisdiction, not
the specific amounts claimed. Thus, in the example, the RTC has jurisdiction. Even if the complaint specified
the amount of damages for each aspect, the aggregate amount shall determine the jurisdiction.
JURISDICTION OVER RECOVERY OF PERSONAL PROPERTY
BP 129 as amended takes into account the assessed value only in the case of real properties. Personal
property values have no bearing in jurisdiction. The value as stated in the complaint shall be
determinative (whether the figure is true or not).
Ex. Plaintiff sought recovery (replevin) of the car, claiming that is worth 800k (even if it is not
true).If defendant challenges the value, stating the car is 30 years old, and willing to submit
evidence to show true value, will the court entertain the defendants motion?
No. The court shall rely only on the allegations in the complaint. Once the court acquires jurisdiction, it cannot
be ousted; the court proceeds with the case until finally adjudicated.
What if it is found during trial that the car is actually worth far less than the value claimed? Will
the court remand the case to the lower court?
No. It will continue to hear until final judgment. There will be adherence of jurisdiction of the court
over the case. The court will continue trying the case until it is finally adjudicated.
The only way to oust jurisdiction in this regard is if Congress files a law abandoning the principle
of adherence of jurisdiction over a particular case. Dean Jara
With respect to MTCs, notwithstanding the expanded jurisdiction thereof, practically all cases decided by the
RTC pertaining to personal property can also be decided by the MTC, depending only on the value of the
property involved.
Ex. Estate proceedings, accion reinvindicatoria, accion publiciana
Note: MTC is still a court of limited jurisdiction despite the expanded jurisdiction under BP 129 as amended. It
can try only the cases given to it under substantive law. The provision in BP 129 making the RTCs courts of
general jurisdiction is not given to MTCs. BP 129 stated explicitly that the RTC shall have exclusive original
jurisdiction over all actions that are not specially assigned to any other court. This is not contained in the
allocation of jurisdiction of MTCs.
Vesting of authority to MTCs Sec. 33, the Totality test, is used in determining jurisdiction
Totality test is a proviso for ascertainment of jurisdiction, more encompassing than that provided
in the Rules.
Difference in Totality Test in the Rules vs. Totality Test in BP 129:
RoC totality test in Rule 2 concerns causes of action for money, as to the amount. The totality
of the money claims shall be determinative of jurisdiction of courts.
BP 129 the totality test refers to of all claims or causes of actions in a complaint, whether they
refer to the same or different parties or arising out of the same or differing transactions . This is
more encompassing in scope.
BP 129 has contained therein the provision on delegation of jurisdiction to the MTC and also the
special jurisdiction of the MTC.
The MTC, in its delegated jurisdiction, acts as if it were an RTC.
Ex. MTC acts as if it was a cadastral court (usually done by RTC). If the land registration or cadastral case is
contested, the assessed value of the contested property is determinative of jurisdiction. If uncontested, MTC
acts as a cadastral as if it were an RTC, there being no limitation as to jurisdiction. But BP 129 clearly states
that if MTC acts as a cadastral court the MTCs decisions on cadastral cases shall be appealable in the CA, not
to the RTC (hierarchy of courts is not followed).
Habeas Corpus proceedings can be heard in the MTC, but only in situations where petition was filed
in the RTC, but no judges are available in the RTC, so the petition is transferred to an MTC
wherein a judge is available. The MTC gains jurisdiction as habeas corpus cases are urgent. In fact, habeas
corpus cases are always given special preference by the courts; and thus, if no RTC judges are available to
hear the petition, the clerk of court in the RTC must transfer the case to the MTC, and MTC must hear the
petition promptly. BP 129 does not authorize the filing of the habeas corpus case directly in the
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MTC. Petition for habeas corpus filed in the MTC can be challenged on jurisdictional grounds because BP 129
does not vest unto an MTC an authority to entertain a petition for habeas corpus. It is only under
circumstances where there are no RTC judges available to entertain a petition for habeas corpus when an MTC
judge can now analyze and study the propriety the issuing of the writ of habeas corpus.
SPECIAL JURISDICTION OF MTCS.
Take note that the trial court still has residual jurisdiction to act on certain matters even if the case is already
on appeal. See
Rules 41 RoC. It is not correct to assume that if a case has been decided by the trial court. After an appeal is
perfected, the case is now under the jurisdiction of the appellate court. Do not assume that the case is
entirely divested from the jurisdiction of the trial court, even if there is a perfected appeal. The trial court
continues to exercise jurisdiction over certain matters for a limited period of time in its residual jurisdiction.
After the expiration of that period, absolute jurisdiction will now be exercised by the appellate court.
In Primary Jurisdiction, this involves quasi-judicial bodies. What happens in primary jurisdiction is that
Congress enacts a law which vests jurisdiction unto a quasi-judicial body to try and decide cases which are
cognizable by regular courts under BP 129. The reason why Congress enacts these laws is that Congress feels
that the quasi-judicial body is better equipped to decide disputes of litigants in certain cases than the regular
courts.
Ex. HLURB has exclusive original jurisdiction to adjudicate disputes between subdivision buyer/s vs.
subdivision developers. In cases of breach of contract under the NCC on matters pertaining to the jurisdiction
of quasi-judicial bodies, the trial court cannot take cognizance of these matters, although BP 129 gives
jurisdiction to regular courts over such matters, given the fact that there is a substantive law vesting
jurisdiction to the HLURB to decide on such disputes. This is because it is presumed that the HLURB is better
equipped than a regular court to decide on such cases due to its expertise.
What if the subdivision developer filed in the MTC a complaint for ejectment of a subdivision
buyer who allegedly violated the terms of the contract? The subdivision developer sought to
recover the property from the buyer, among other prayers. The subdivision buyer challenged that
MTC has no jurisdiction over the case, and that it is HLURB which is the proper body to take
cognizance of the complaint. Does HLURB have jurisdiction over the ejectment case?
SC held that the primary jurisdiction of the HLURB does not extend to complaints of ejectment filed by one
party against the other. In the case of primary jurisdiction vested by substantive law to quasi-judicial bodies,
the authority of the quasi-judicial body is interpreted strictly. Ejectment could really be a dispute between
developer and buyer, but since the complaint was for recovery of physical possession of the property (or even
accion publiciana), SC held that regular courts should take cognizance.
Note: Complaint for ejectment by subdivision developer vs. subdivision buyer was actually a suit for recovery
of possession of property.
Residual Jurisdiction found in appeal cases (Rules 41 and 42); jurisdiction enjoyed by the trial court to act
on certain matters for a very limited period, even if the case is on appeal.
Constitutional limits provided in the Constitution limiting SCs authority in promulgating rules:
1. uniformity in all courts of the same grade
2. speedy and inexpensive determination of the case
3. does not modify, increase or decrease substantive rights
Any rule on procedure violating any one of the limitations given in the Constitution, the rule can be properly
challenged as to its validity and applicability.
A litigant challenged a rule on criminal procedure (Rule 115 Rights of the Accused). Litigant
stated that Rule 115 is not procedural, and modified substantive rights as espoused in the
Constitution, and should be deleted in the RoC.
SC denied the petition. SC said that while the authority of the SC is to promulgate rules on proceedings,
practice and procedure, and that substantive rights should not be covered by the provisions of the Rules, SC
said that it is practically impossible for rules of procedure to be devised without incorporating certain
provisions that are dealing substantive law. The standard is that we take the Rules as a whole, and determine
whether it is procedural in character. If the answer is yes, and there are certain provisions speaking about
substantive rights, that should not be a justification of deleting these provisions in the RoC.
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Also, SC noted that the NCC, a substantive law, contains procedural articles concerning court processes such
as those concerning unlawful detainer and forcible entry, but NCC still remain a substantive law.
The civil code provisions shall not be affected by the procedural provision in the Rules concerning the filing of
claims (Recovery of creditor of the whole debt from surviving solidary debtors). According to the Rules, the
Rules of Court should be interpreted liberally. But the interpretation is one not in favor of the plaintiff or
defendant. The meaning of liberal interpretation is to promote the ends of justice, to carry out the duty of the
SC under the limitations given under the Constitution.
PLEADINGS
COMPLAINT
General Rule: A civil action is always commenced with the filing of a complaint. This is the general
rule. Some cases are commenced by a petition, most notably in special civil actions. The filing of a complaint
has given rise to the action that when the case is filed, the court acquires jurisdiction over the action. The
court will then have to gain jurisdiction over the person of the defendant. Service of summons will gain
jurisdiction over the defendant. A recent decision of the SC held that if the person filing the case is not
authorized to file the case, then the court does not acquire jurisdiction over the person of the plaintiff, and
will not acquire even the jurisdiction to decide the case. The court can examine whether or not the person
who filed the case is authorized. If not so authorized, the court will not acquire jurisdiction over the person of
the accused and it will not acquire the authority to decide the case. The court will be absolutely without
jurisdiction to try and decide the case.
Amendment of the Complaint
In Complaints properly filed by the plaintiff, the plaintiff can amend the complaint as a matter of right under
Rule 10, provided an answer has not yet been filed. (Amendment as a matter of right). If amendment is to
implead a new defendant, the court will accept such amended complaint as it is a matter of right. As to the
new defendant, the period to file an answer will relate to the filing of the original complaint (Relating Back
Doctrine).
But, if a new cause of action is introduced along with the new defendant, it is not an amendment, as a new
cause of action is being included.
The classification of actions
Civil Actions
Criminal Actions
Special Civil Actions
Special proceedings
In the definition of a civil actions it is very clear that we do not necessarily follow the definition of a cause of
action as defined in Rule 2. A cause of action is a violation of a right belonging to the plaintiff by a defendant.
For a cause of action to accrue, the plaintiff must allege he has a right, and then allege that the defendant
had violated that right.
Elements:
Plaintiff must allege he has a right.
Plaintiff must allege the defendant has violated for that right.
The implication of given by the definition of a cause of action is that the right holder must wait for a violation
of his right before he can have a cause of action against such person who violated his right and have a reason
to go to court. That cause of action should always be related to the definition of a civil action found in Section
3(a) Rule 1.
A civil action is one by which a party sues another for the enforcement or protection of a right, or
the prevention or redress of a wrong.
Rule 2 SEC. 2. Cause of action, defined.A cause of action is the act or omission by which a
party violates a right of another.
Civil action does not require prior violation of a right before right holder can proceed to court. A
plaintiff need not have his right actually violated before a case can be filed. Even a threat to
violate a right gives rise to a cause of action.
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The Rules of Procedure becomes more complicated if there are several rights that are violated by
one and the same wrongful act. If there is just one wrongful act and there are several rights
violated, how will the causes of action accrue?
The standard given by the SC: In order to determine whether several causes of actions will arise, if
there is one wrongful act and there are several rights that are violated, is to determine whether these
rights belong to the same person or to different persons.
Common Standard: Determine whether these rights belong to the same person or to different
persons.
Several rights of one person violated by one and the same act = 1 cause of action = 1 complaint.
Several rights of several persons violated by one and the same act = several causes of action = separate
complaints.
If a person drives his car negligently, and causes damage or wrecks 3 cars, how many causes of
action accrue against him using the standard given by the court?
Using the standard, determine whether the three cars belong to one person only or the cars belong to three
different persons. If the 3 cars belong to only one person, only one cause of action will accrue. The owner of
the cars can only file one case against the negligent driver. Otherwise, that will be splitting of causes of
action. The owner had only one right that was violated by the negligent driver. But if these 3 cars belong to 3
different owners, there are 3 separate causes of action. Because there are 3 causes of action that arise, they
can file separate complaints, and they dont have to be joined. Conceivably, one owner can file his case in the
RTC if he claims the damages suffered by him amounted to more than 500k. Another owner can file his case
in the MTC if he claims that his car incurred damages amounting to 200k. The filing of these complaints by 3
different owners will depend on the amount of damages each will respectively claim in their respective
complaints. The fact that there are 3 different causes of action does not mean that they should go to the
same court in order to recover the damages suffered by them.
In the first example where the 3 damaged cars were owned by one owner, there is only one cause of action.
The owner of the 3 cars can only file one complaint for recovery of damages. Can he properly and rightfully
go to court right away?
No. If we rely solely on substantive law alone, it would seemingly be yes. But if we apply other procedural
principles, the owner may be precluded from filing a complaint right away. The owner has to first satisfy
certain conditions precedent before cause of action could accrue. If these conditions precedent are not
satisfied, the filing of the complaint shall be premature and shall cause the dismissal of his complaint.
Conditions precedent given under procedural rules and substantive law are as follows:
1. prior barangay conciliation
2. arbitration clause
3. certification on non-forum shopping
4. exhaustion of administrative remedies
5. earnest efforts towards a compromise
Even if a right has been violated and a cause of action indeed accrued, if the action is covered under the
circular on prior barangay conciliation, the trial court can dismiss or not entertain the case and order the
parties to undergo barangay conciliation first.
Arbitration clause invariably provides that in case of breach of contract, the parties must first undergo
arbitration before a complaint can be filed by the innocent party.
Rule 7 Certification on Non-Forum Shopping
The complaint/initiatory pleading must have Certification on Non-Forum Shopping. The effect of a
complaint/initiatory pleading without Certification on Non-Forum Shopping is that the court acquires
jurisdiction over the case, but the court can order the dismissal of the case for non-observance of
Certification on Non-Forum Shopping as a condition precedent.
Effects of complaint filed without certification of non-forum shopping:
1. court obtains jurisdiction of the case
2. court can dismiss the case for noncompliance of condition precedent
Exhaustion of administrative procedures is another condition precedent to the accrual of a cause of
action.
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In the NCC, in disputes between members of the same family, it must be shown that earnest efforts to
reconcile or compromise have been attempted but was unsuccessful.
Thus, the definition of a cause of action under the Rules is now qualified by certain conditions precedent
before the injured party can go to court. He must see to it that these conditions precedent, if applicable, must
first be observed. The risk of not doing so is that the court, although competent and may have jurisdiction
over the case, may refuse to file the case and issue an order directing the plaintiff to undergo or comply with
these conditions precedent.
If the conditions precedent have been met, the general rule that we follow is for every cause of action, the
plaintiff/right holder can file one complaint.
Splitting a cause of action abhorred by the court.
Ex. Creditor filed separate actions for recovery of the principal and the interest earned by the principal. Even
if there are 2 different courts where these complaints are filed, there is still splitting cause of actions.
Rule 2 SEC. 4. Splitting a single cause of action; effect of.If two or more suits are
instituted on the basis of the same cause of action, the filing of one or a judgment
upon the merits in any one is available as a ground for the dismissal of the others.
Rule 7 SEC. 5. Certification against forum shopping. The plaintiff or principal party
shall certify under oath in the complaint or other initiatory pleading asserting a claim for
relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that
he has not theretofore commenced any action or filed any claim involving the same issues in
any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other
action or claim is pending therein; (b) if there is such other pending action or claim, a
complete statement of the 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.
Failure to comply with the foregoing requirements shall not be curable by mere
amendment of the complaint or other initiatory pleading but shall be cause for the
dismissal of the case without prejudice, unless otherwise provided, upon motion
and after hearing. The submission, of a false certification or non-compliance with any of the
undertakings therein shall constitute indirect contempt of court, without prejudice to the
corresponding administrative and criminal actions. If the acts of the party or his counsel
clearly constitute willful and deliberate forum shopping, the same shall be ground for
summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for
administrative sanctions.
Sanctions for splitting causes of action:
1. filing of one could be used to dismiss the other due to litis pendencia
2. if one of the case has been decided, the other case can be dismissed due to res judicata
3. if there are 2 concurrent cases, the cases can be dismissed on ground of forum shopping.
It is now settled that if the party is guilty of splitting his cause of action, he is also guilty of
forum shopping. There is no need to elaborate as to whether there is forum shopping as long as
it can be shown that there is splitting causes of action.
Why does the Rules prohibit splitting?
It is because, the effect of splitting a cause of action could be harmful to our courts. If splitting is allowed, and
one case each will be filed for example in the RTC and MTC, there is the possibility that one court will decide
differently from the other and would result in the courts looking funny, even if the same facts, the same
parties and the same pieces of evidence were presented therein. The rule on splitting is designed more for
protecting the integrity of our courts. The likelihood that different courts will render conflicting decisions
involving the same issue, the same parties and the same pieces of evidence and thus destroy the credibility
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Consequences of splitting:
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Suppose the plaintiff filed 2 complaints arising from the same cause of action, but the defendant
ignores this. Defendant did not act on the fact. Can the court motu propio dismiss the cases?
Yes. Res judicata and litis pendencia are both non-waivable offenses under Rule 9. Even if the defendant did
not waive these, the court motu propio can order dismissal of these cases once these becomes clear during
trial. But if the ground for dismissal is litis pendencia, only one of the cases will be dismissed. If the
ground for dismissal is res judicata, all cases filed will be dismissed.
In litis pendencia, movant cannot move for dismissal of all cases, only one can be dismissed.
Rule 9SECTION 1. Defenses and objections not pleaded.Defenses and objections not
pleaded either in a motion to dismiss or in the answer are deemed waived. However, when
it appears from the pleadings or the evidence on record that the court has no
jurisdiction over the subject matter, that there is another action pending between
the same parties for the same cause, or that the action is barred by a prior
judgment or by statute of limitations, the court shall dismiss the claim.
(Note: If you are counsel for the defendant, if cases are filed in 2 different courts [RTC and MTC], move for the
dismissal of the case in the RTC, as the amount involved in the MTC is smaller. Hence, if the amount involved
in total should have been 2.2M, and the amount involved in the MTC is only 200k, only 200k will be extent of
liability that your client will have in case of judgment against him.)
Can we have the defendant have the remedy of dismissal of both cases filed in RTC and MTC?
Yes, on the ground of forum shopping. If a plaintiff is guilty of forum shopping, the court shall order the
dismissal of all cases. But the qualification is that the dismissal is without prejudice, not an adjudication on
the merits. Exception to the dismissal being without prejudice is that if the forum shopping was DELIBERATE,
then dismissal is with prejudice.
SUMMARY:
If the wish of the defendant is the dismissal of all cases, move for dismissal under Rule 7 on the
ground of forum shopping. Anyway, if the party is guilty of splitting of a cause of action, he
violates the rule on forum shopping.
But if one of the cases has been decided, the ground of dismissal should be res judicata, as long
as the decision in that previous case has become FINAL AND EXECUTORY.
Litis pendencia and res judicata are NON-WAIVABLE defenses. Courts can motu propio dismiss
the case on these grounds under Rule 9.
On Cases of Collection of Payments Payable on Installments

Larena vs. Villanueva old case but still applicable
Each installment = different maturity dates.
The rule of thumb is that for each installment that becomes due and unpaid, one cause of action
arises for that particular installment.
If the installment becomes due and unpaid, the creditor has one cause of action against the
debtor for recovery of money. But his cause of action against the debtor is only for the recovery
of the installment that was overdue.
Can the creditor insist on recovery of the entire amount instead of installments?
Generally, no. Each installment must be due so that right of recovery can be had.
Exception: The contract has an acceleration clause. It is a clause in contracts payable in
installments where parties stipulate that in case of default in the payment of a certain number of
installments (or even just one), the entire obligation becomes due.
So if there was an acceleration clause in the contract wherein the whole obligation becomes due after default
of the first installment, the creditor will have one cause of action only to recover the entire amount. Suppose
the creditor indeed filed one case only, and later a judgment was decided in his favor and the has become
final, and later the second installment has become due, he cannot file another case for the recovery of the
second installment by virtue of the acceleration clause. Only one cause of action shall arise.
But without an acceleration clause, the rule of thumb is each installment that is unpaid shall give rise to a
different cause of action when they become due and unpaid. There will be as many cases as there are
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installments filed by the creditor against the same debtor, but each case corresponding to a different
installment.
The qualification given in Larena is that if two installments are already due, then they should be the subject of
one complaint. If the other installments are not yet due, they cannot yet be subject to a complaint.
RULE ON ANTICIPATORY BREACH
Blossom vs. Manila Gas (Rule on Anticipatory Breach)
Even if the obligations are not yet due according to the contract, but the debtor has expressed
formally his desire not to pay, then that is an anticipatory breach of contract from which creditor
can file a case against the debtor to collect the entire obligation. This anticipatory breach should
be formally pleaded in the complaint.
SWAGMAN RULE
If such anticipatory breach was not pleaded in the complaint filed, and defendant failed to file an
answer, the court will set the case for pre-trial. By the time the pre-trial was conducted, the first
installment had become due. The trial was scheduled, but by that time, the whole obligation
became due and unpaid. Can the court properly decide the case in favor of the plaintiff?
No.
Swagman Hotel vs. CA
If a plaintiff files a complaint in court although he has no cause of action at all, and the claim of
the plaintiff matures at the time the case is tried, the court still does not have any authority to
decide the case. This is because at the time of the filing of the complaint, the plaintiff did not
have a cause of action.
Can we not apply Rule 10 (Amendment to conform to evidence)?
SC held that we dont apply amendment to conform to evidence, if in the first place the plaintiff does
not have a cause of action at the time of the filing of the complaint. It is essential under the Swagman Rule
that a complaint should be filed after the cause of action has accrued. If there is no cause of
action that has accrued and a complaint is filed, the court will have no authority to decide the
case, even if that obligation matures and becomes defaulted during the trial of the case. We apply
Rule 10 only if there is a cause of action at the time of the filing of the complaint.
Swagman Hotel vs. CA
Facts: Sometime in 1996 and 1997, Swagman through Atty. Infante and Hegerty, its president
and vice-president, respectively, obtained from Christian loans evidenced by three promissory
notes dated 7 August 1996, 14 March 1997, and 14 July 1997. Each of the promissory notes is
in the amount of US$50,000 payable after three years from its date with an interest of 15%
per annum payable every three months. In a letter dated 16 December 1998, Christian
informed the petitioner corporation that he was terminating the loans and demanded from
the latter payment of said loans.
On 2 February 1999, Christian filed with the RTC a complaint for a sum of money and
damages against the petitioner corporation, Hegerty, and Atty. Infante.
The petitioner corporation, together with its president and vice-president, filed an Answer
raising as defenses lack of cause of action. According to them, Christian had no cause of
action because the three promissory notes were not yet due and demandable.
The trial court ruled that under Section 5 of Rule 10 of the 1997 Rules of Civil Procedure, a
complaint which states no cause of action may be cured by evidence presented without
objection. Thus, even if the plaintiff had no cause of action at the time he filed the instant
complaint, as defendants obligation are not yet due and demandable then, he may
nevertheless recover on the first two promissory notes in view of the introduction of evidence
showing that the obligations covered by the two promissory notes are now due and
demandable. When the instant case was filed on February 2, 1999, none of the promissory
notes was due and demandable, but , the first and the second promissory notes have already
matured during the course of the proceeding. Hence, payment is already due.
This finding was affirmed in toto by the CA.
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Issue: Whether or not a complaint that lacks a cause of action at the time it was filed be
cured by the accrual of a cause of action during the pendency of the case.
Held: No. Cause of action, as defined in Section 2, Rule 2 of the 1997 Rules of Civil Procedure,
is the act or omission by which a party violates the right of another. Its essential elements are
as follows:
1. A right in favor of the plaintiff by whatever means and under whatever law
it arises or is created;
2. An obligation on the part of the named defendant to respect or not to
violate such right; and
3. 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.
It is, thus, only upon the occurrence of the last element that a cause of action arises, giving
the plaintiff the right to maintain an action in court for recovery of damages or other
appropriate relief.
Such interpretation by the trial court and CA of Section 5, Rule 10 of the 1997 Rules of Civil
Procedure is erroneous. The curing effect under Section 5 is applicable only if a cause of
action in fact exists at the time the complaint is filed, but the complaint is defective for failure
to allege the essential facts. Amendments of pleadings are allowed under Rule 10 of the 1997
Rules of Civil Procedure in order that the actual merits of a case may be determined in the
most expeditious and inexpensive manner without regard to technicalities, and that all other
matters included in the case may be determined in a single proceeding, thereby avoiding
multiplicity of suits.
SWAGMAN RULE: At the time of the filing of the complaint, the plaintiff must have a cause of
action. He must be able to show that his right was violated by the time the complaint was filed.
Otherwise, he cannot make use of amendment to conform to evidence.
SPLITTING VS JOINDER OF CAUSES OF ACTIONS

Splitting is prohibited, joinder is encouraged by the Rules.
The Rules encourages a plaintiff to incorporate as many causes of action he may have against the same
defendant, although his causes of action are totally unrelated to one another. This is allowed so long as the
parties remain the same.
A plaintiff can file a complaint against a defendant for accion reinvindicatoria, for recovery of money arising
from the loan, recovery of damages arising from a quasi-delict committed by the defendant, although arising
out of different transactions. There is nothing wrong if the plaintiff sets up three different causes of action in a
complaint that arose of different transactions.
The limitations to joinder of causes of action:
1. Jurisdiction
2. Venue
3. Joinder of parties
According to Rule 2, there could be joinder causes of actions which is valid as long as the plaintiff
SEC. 5. Joinder of causes of action.A party may in one pleading assert, in the
alternative or otherwise, as many causes of action as he may have against an opposing party,
subject to the following conditions:
(a) The party joining the causes of action shall comply with the rules on
joinder of parties;
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(b) The joinder shall not include special civil actions or actions governed by
special rules;
(c) Where the causes of action are between the same parties but pertain to
different venues or jurisdictions, the joinder may be allowed in the Regional
Trial Court provided one of the causes of action falls within the jurisdiction of
said court and the venue lies therein; and
(d) Where the claims in all the causes of action are principally for recovery of
money, the aggregate amount claimed shall be the test of jurisdiction.
If the plaintiff files a complaint against the defendant for accion reinvindicatoria, and the assessed value of
the property is 1k only, and the second cause of action is the recovery of money, obviously the actions are
misjoined. This is because accion reinvindicatoria, the property being only 1k, is cognizable only by the MTC.
SC decided a case where one of the parties contended joinder when there was actually
misjoinder of causes of action. The complaint filed by the plaintiff against the defendant, the first
cause of action was for partition, and second cause of action was for rescission of a donation.
Both causes of action were cognizable by the RTC.
If we rely solely on Sec. 5 Rule 2, is there misjoinder of actions? Why?
Yes. This is because a complaint for Partition is a special civil action while rescission is an ordinary civil action.
They are governed by different procedures, and thus there is misjoinder of causes of action under Rule 2 Sec.
5(b).
On the same facts above, the defendant did not notice the misjoinder and did nothing, whereas
the court did nothing also. The judge most likely waited for the defendant to move to split the
misjoinder causes. But since nothing was done by defendant, the judge proceeded to try the two
misjoined cases.
Under the rules, can a court, motu propio, order the severance of one of the misjoined causes of
action?
Yes. The court can do so. Under the Rules, there is no need for a motion from the defendant if the court finds
out that causes of action are misjoined . It can motu propio order the severance of cases. This is done for the
benefit of the court, because if the court will wait for the defendant to make a motion, to raise the misjoinder
of causes, the court will find himself confused with the procedure he will follow. This is because partition will
involve a different procedure from ordinary civil actions. In fact, under our Rules now, partition is a multistage proceedings. Rescission is an ordinary civil actions.
The court went ahead and tried the case, until a decision was finally issued by the court. Only
then did the defendant raised, on appeal to the SC, the misjoinder of causes of action.
If nobody objected, the court may proceed in the disposition of the case. If the court decided on the case, the
decision will still be valid. SC made a qualification that these misjoined causes should be within the
jurisdiction of the trial court under BP 129. In other words, this rule on misjoined causes could be a ground for
severance of these causes. But it if it is not raised timely, and the court decided on the case, the courts
decision is valid as long as the trial court has jurisdiction over the misjoined causes.
Does the RTC have jurisdiction over a complaint for Partition? Does the RTC have jurisdiction over
rescission of a donation?
Note that a case for partition is one incapable of pecuniary estimation. So even if there are misjoined causes
in one complaint, but this misjoinder is not raised before the trial court, the parties are deemed to have
waived this issue of misjoinder of causes of action, the judgment rendered by the court is valid and the same
can be executed if it is duly entered.
If the court does not motu propio order the severance, the defendant cannot blame the court for it. It is the
burden of the defendant to raise this as an issue before the trial court.
As long as one of the misjoined causes falls within the jurisdiction of the trial court, there is nothing wrong if
the trial court will eventually decide the case although there is misjoined causes of action.
Can a complaint be filed where these two causes of action are set up, first, petition for certiorari,
and then, as a second cause, petition for habeas corpus?
Yes, the petition is allowed, by way of exception, according to SC.
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A complaint was filed in the MTC. The first cause of action was for accion reinvindicatoria, the
assessed value of the land was 1k. The other cause of action unlawful detainer of a condominium
unit, with value of back rentals being 2M. Can an MTC have jurisdiction over the action?
Yes. The value of the land in the accion reinvindicatoria where the assessed value was only 1K. The recovery
of possession by a MTC will be by a summary proceeding, regardless of the back rentals sought to be
recovered..
Are the causes properly joined?
No. There is still misjoinder, although both causes are cognizable by an MTC. This is because accion
reinvindicatoria, although cognizable by the MTC, shall be governed by ordinary proceedings while unlawful
detainer will be governed by summary procedure. We cannot join causes of action which are governed by
different Rules of Procedure, although they may fall within the jurisdiction of that same court.
New case
Baylon Case. Even if there is misjoinder, if it is not raised as an issue, and the court has decided
upon the case, the decision rendered thereafter is still valid so long as the court has jurisdiction
over all causes of action that are misjoined in the same complaint.
Limitations to the prerogative
Unlike joinder of parties, there is a rule against misjoinder of causes of action, in the same way there is a rule
on misjoinder of parties. There is no rule on non-joinder of causes of action, while there is non-joinder and
misjoinder of parties. The reason why there is no rule on non-joinder of causes is because it is permissive, it is
always at the option of the plaintiff. The plaintiff can join as many causes of action as he may have. The court
cannot force him to do so. But there is a rule against MISJOINDER of parties.
Misjoinder of causes occurs when the joinder of two or more causes violates the rules. Ex. Joinder of special
and ordinary causes of action in one complaint, it is prohibited for being in violation of the rule that actions
covered by different rules of procedure cannot be joined, although both may be cognizable by the same
court.
But the latest jurisprudence of the court is to the effect that even if causes are misjoined, if that
issue is not raised on appeal, the CA and SC will ignore the violation of the rule on misjoinder.
Judgment will not be disturbed, so long as the court deciding has jurisdiction on all causes that
have been misjoined.
Limitations:
1. Sec. 6, Rule 3, Permissive Joinder of Parties
- It envisions a situation where there are 2 or more plaintiffs, 2 or more defendants, or both, where there is a
series of transactions, with common questions of fact concerning the same parties.
Rule 3 SEC. 6. Permissive joinder of parties.All persons in whom or against whom any right to relief in
respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly,
severally, or in the alternative, may except as otherwise provided in these Rules, join as plaintiffs or be
joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or
to all such defendants may arise in the action; but the court may make such orders as may be just to prevent
any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in
which he may have no interest.
The owner of a land discovered that his property has been occupied forcibly by 11 informal
settlers and they retained physical possession thereof. The informal settlers had constructed
houses therein. The owner wanted to recover the possession thereof. Should the owner file 11
cases of forcible entry or just one against the 11, or one complaint wherein there is a joinder of
parties?
SC said that the owner has the option of choosing any one of these remedies. Plaintiff can file 11 separate
complaints impleading only one defendant in each complaint. If plaintiff chooses to file just one action, in that
complaint, he must allege 11 causes of action (First Cause of Action, etc.). The last recourse will involve
joinder of parties.
Why?
Sec. 6 Rule 3 is permissive in character. (use of the word may)
2. Compulsory joinder of indispensible parties party must be joined so that final adjudication of the
issue can be had.
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- even if the court tries a case without impleading an indispensible party, such non-joinder will render the
proceedings void. The decision is void and will never be entered, and thus cannot be made final and
executory.
Indispensible partyparties in interest without whom no final determination can be had.
Rule 3, SEC. 7. Compulsory joinder of indispensable parties.Parties in interest
without whom no final determination can be had of an action shall be joined either s plaintiffs
or defendants.
If there are 2 parties to the contract of sale, one vendor and one vendee. If in case there is a violation of the
contract of sale, the vendor and vendee are of course indispensible parties.
Necessary partythe joinder of such party is not compulsory.
Rule 3 SEC. 8. Necessary party.A necessary party is one who is not indispensable
but who ought to be joined as a party if complete relief is to be accorded as to
those already parties, or for a complete determination or settlement of the claim
subject of the action.
What is the sanction if the complaint is filed without impleading indispensible party?
It is not per se a ground for dismissal as very clearly stated in Section 11, Rule 3; but if the defendant uses
another ground used, specifically failure to state a cause of action, then the complaint will be dismissed.
Rule 3 SEC. 11. Misjoinder and non-joinder of parties.Neither misjoinder nor
non-joinder of parties is ground for dismissal of an action. Parties may be dropped or
added by order of the court on motion of any party or on its own initiative at any stage of the
action and on such terms as are just. Any claim against a misjoined party may be severed
and proceeded with separately.
SC held differently in several cases:
It held that failure to state a cause of action is evident when an indispensable party is not
impleaded. A cause of action envisions the existence of a right violated and a wrongdoer who did such
violation. The proceedings taken by the court are considered void in terms of those who were not impleaded,
being indispensable parties. Even if the court decided the case, the judgment therein will be
unenforceable since such decision will be subject to question by those parties not impleaded.
There were also decisions stating otherwise. SC stated than non-joinder/misjoinder is not a ground for
dismissal. If a motion to dismiss is filed, SC stated that the court should order amendment of the
complaint instead of dismissing it. In Rule 16 on alternatives of a court on ruling a motion to
dismiss, SC says a trial court has 3 options: deny, dismiss or to order amendment of the
complaint. Thus, trial court can order denial of a motion to dismiss by ordering amendment.
4 alternatives to resolve misjoinder/non-joinder of indispensable parties:
1. Grant motion
2. Deny motion
3. Order amendment to the pleading
4. Refer the matter to arbitration or prior barangay conciliation
Hence, if a defendant moves for the dismissal of the case of non-joinder of indispensible parties,
the court can order amendment of that complaint to implead the indispensible party. Plaintiff
also has a choice; he can either ignore or comply with the order. If he complied, the defect is
cured.
But if plaintiff disobeys the order directing him to implead an indispensible party, can the court
do something about it?
SC held that the case can be dismissed under Rule 17. If the dismissal was ordered by the court due to
disobedience of a lawful order, it shall be a dismissal with prejudice, an adjudication upon the merits.
Adopt the 2nd set. Order amendment. If amendment order is not complied with, court will order dismissal
under Rule 17, unless the court orders otherwise.
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What is the difference of a dismissal under Rule 16 and Rule 17?

If a complaint is dismissed under Rule 16 due to failure to state a cause of action from failure to implead,
dismissal is without prejudice.
If dismissal is by reason of Rule 17, for failure to obey lawful orders of the court, it is a dismissal with
prejudice unless the court orders otherwise.
NECESSARY AND INDISPENSABLE PARTIES
How do we distinguish whether a party is necessary or indispensable?
The rule to guide us in this fact is the NCC on liability of debtors.
In the case of debtor/creditor relations where there are 2 debtors to the same debt:
Plaintiff should evaluate liability, whether debtors liabilities are solidary or joint. In the NCC, in absence of
any other stipulations/factors, when there are two debtors of the same indebtedness, the assumption will be
that they are joint creditors. If there are stipulations referring to the debt as solidary, then they are solidary
debtors. The provisions of the NCC will be the guide in this situation.
If we apply the provisions of the NCC, and the creditor filed a case to recover the entire debt, and
debtor A and B are joint debtors, do we consider both debtors to be indispensible parties?
Yes. If the purpose of the creditor is to recover the entire obligation, then both debtors should be impleaded in
the complaint.
Can the creditor file a case against only debtor A?
Yes, applying the provisions of the NCC, the creditor can go after A, but recovery can be had only to the
extent of the amount owed by A. In this example, debtor A is an indispensible party.
How about debtor B, is he a necessary party?
Yes. His presence in the case against debtor A is not indispensible. The court may require B be impleaded to
complete the determination the subject matter.
There is another presumption in the NCC that if there is no indication as to the extent of the debt of two joint
debtors the presumption will be that both shall share equal obligations to the creditor. Hence, if the creditor
loaned Debtors A and B 1M, there being no other stipulation, it is presumed that Debtors A and B are joint
debtors with individual liabilities of 500K each.
Indispensable Parties
Parties in interest without whom no final
determination can be
had of an action shall be joined either as plaintiffs or
defendants. (Sec.7, Rule 3)
Must be joined under any and all conditions because
the court cannot proceed without him (Riano, Civil
Procedure: A Restatement for the Bar, p. 224, 2009
ed.)
No valid judgment if they are not joined
Note: In the absence of an indispensable party
renders all subsequent actions of the court null and
void for want of authority to act, not only as to the
absent parties but even as to those present (Riano,
Civil Procedure: A Restatement for the Bar, p. 221,
2009 ed.)
Necessary Parties
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. (Sec.8, Rule 3)
Note: Should be joined whenever possible, the
action can proceed even in their absence because
his interest is separable from that of indispensable
party (Ibid p.224)
The case may be determined in court but the
judgment therein will not resolve the entire
controversy if a necessary party is not joined
Note: Whenever in any pleading in which a claim is
asserted a necessary party is not joined, the pleader
shall set forth his name, if known, and shall state
why he is omitted. Should the court find the reason
for the omission unmeritorious, it may order the
inclusion of the omitted necessary party if
jurisdiction over his person may be obtained. The
failure to comply with the order for his inclusion,
without justifiable cause, shall be deemed a waiver
of the claim against such party.
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The non-joinder of an indispensable or a necessary party is not by itself ipso facto a ground for the
dismissal of the action. The court should order the joinder of such party and non-compliance with the said
order would be a ground for the dismissal of the action (Feria, Civil Procedure Annotated, Vol. I, p. 239,
2001 ed.)
Note: Parties may be dropped or added by order of the court on motion of any party or on its own initiative
at any stage of the action and on such terms as are just. Any claim against a misjoined party may be
severed and proceeded with separately. (Sec. 11, Rule 3)
The presence of a necessary party is not determinant to the resolution of the action, but can be impleaded if
only to satisfy completely the issue.
The duty of the plaintiff is only to tell the court that he has left out a necessary party, he is not compelled to
include such party. The court will have to determine if it is essential for the court to order requiring that
necessary party to be impleaded.
If plaintiff ignored the court order to implead the necessary party, is Rule 17 applicable?
No, Rule 3 should apply, which provides for the sanction if plaintiff refuses to obey an order to implead
necessary party. The case will continue. But, the plaintiff would be deemed to have waived any right of action
against necessary party. If later on, the plaintiff decides to file a complaint against such necessary party, the
complaint will not prosper, as the necessary party can claim that the right to file a claim against him has
been paid, waived, abandoned or otherwise extinguished under Rule 16.
THE RULE ON ASSIGNMENT/TRANSFER OF INTEREST (RULE 3, LAST SECTION)
Ex.
There is a creditor who lent 1M to the debtor. The debtor defaults in payment. But before the creditor filed a
complaint, the creditor felt the need for money. He assigned his claim to another for a certain value. Such
person now stands in the shoes of the creditor, and may file a claim against the debtor. The creditor sold his
rights to X for 700K.
Can the assignor/original creditor, file a claim for 1M against creditor?
No, he is no longer a real party in interest, as he has assigned his rights to another.
What if assignee files a complaint against debtor?
Assignee is the proper party to file a complaint against debtor, so the case will prosper.
How much can assignee recover?
He is entitled to recover 1M. The assignee steps into the shoes of the creditor who sold his right to the
assignor for 1M.
What if the original creditor has not assigned his credit for 1M. He files a case against debtor.
While the case was pending in the RTC, the plaintiff/creditor assigned his claim. The assignment
was in pendente lite, for 700K. Will the assignee be considered as indispensable party?
No. Under Rule 3, assignee pendente lite is not considered an indispensable party and the court may ignore
such party.
The creditor assigned his rights to assignee. The assignor pendente lite/creditor stipulated that
the case should be dismissed in consideration for the payment of the 700k. Is this allowed?
Yes. This is allowed under Art. 1634 NCC.
Husband and wife should sue or be sued jointly.
SC Held that the law contemplated in the exemption is the Family Code or NCC as the case may be. This is
pertinent on the rule of partnership and co-ownership in case of husband and wife. It is impertinent to compel
a husband to implead the wife as co-plaintiff.
In case of co-owner, a partner can file a complaint without impleading the co-owners. The same would be
applicable to husband and wife. The wife may file a case without impleading her husband.
There is a caveat: If the husband as a co-owner files a complaint against another, he should indicate in
the complaint that he is filing such case as co-owner. But if he claims sole ownership, he should
implead the wife. The law authorizes either spouse alone to file a complaint. The spouse left behind is not
considered a necessary party as a complete determination of the case could be had even with just one
spouse as a party.
Exceptions: (See Art. 113 NCC)
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Husband and wife are judicially declared legally separated from each other, the other party must be
impleaded.
If the husband and wife are separated in fact for at least one year.
(See also Arts. 25 to 35 NCC)
CLASS SUIT
There is a common interest among persons so numerous that it would be impracticable to bring them all to
court. It is not required that all be presented in court, but only enough to represent the rest of those who are
party to the same suit.
Ex. Oposa vs. Factoran is now enshrined in the Writ of Kalikasan via the Citizens Suit on behalf of persons yet
unborn. This is effectively a class suit.
Do we consider the class as indispensable or necessary parties?
SC held that all in the class involved in the litigation are considered indispensable parties.
Should they all be identified?
SC held that there is no need. Only a representative number can be impleaded as they represent all of the
class. Determination made on such representative class is tantamount to determination for all of the
members of the class.
Why did SC hold that all such members of the class are deemed indispensable?
SC stated that the last sentence of Sec. 12 Rule 3 states that Any party in interest shall have the right to
intervene to protect his individual interest. A member of a class in a class suit has a right to intervene.
Note:
Intervention a matter that is subject to the discretion (allow or disallow) of the trial court. Exception,
court cannot deny intervention of a member of the class in a class suit.
Deceased Litigant
SEC. 16. Death of party; duty of counsel.Whenever a party to a pending action dies, and
the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court
within thirty (30) days after such death of the fact thereof, and to give the name and address
of his legal representative or representatives. Failure of counsel to comply with this duty shall
be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the deceased, without
requiring the appointment of an executor or administrator and the court may appoint a
guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives to appear and be
substituted within a period of thirty (30) days from notice.
If no legal representative is named by the counsel for the deceased party or if the one so
named shall fail to appear within the specified period, the court may order the opposing
party, within a specified time, to procure the appointment of an executor or administrator for
the estate of the deceased and the latter shall immediately appear for and on behalf of the
deceased. The court charges in procuring such appointment, if defrayed by the opposing
party, may be recovered as costs.
A contract of agency is present when a lawyer is engaged by his client, an agency which exists until the client
dies. The lawyer has to inform the court about the death of his client. The court may then cause substitution
of the representatives of the estate of the deceased.
Rules on death of the plaintiff in marriage-related cases :
Dismissal death occurred before entry of judgment
Substitution of parties death occurred after entry of judgment
Plaintiff dies the court would require the lawyer to submit the names of the heirs in order to act as
substitute plaintiff.
Refusal of all heirs to act as substitute parties, court can require the defendant to seek the appointment of an
administrator or executor of the estate (in the settlement court for probate of a will or intestacy).
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Settlement court either RTC or MTC depending on the value of the estate.
If the executor or administrator has been chosen, he will be tasked to represent the estate until final
judgment.
If there is an appeal on the decision of the trial court, the executor/administrator shall represent the estate.
Their representative capacity ends upon final entry of judgment.
Death of a debtor will not extinguish an obligation, there being transfer of the interest from debtor to his
estate. There will have to be proper substitution of parties.
If there is a decision against debtor that was final and executory, can the substituted party ask
for motion for writ of execution for satisfaction of the deceaseds claim?
No. It cannot be subject to execution under Rule 39. Creditor must file a claim, attaching the said judgment as
evidence of a valid claim.
Rule 4 VENUE OF ACTIONS
One court that can disregard rules on venue SC
All other courts cannot disregard the rules on venue.
Trial courts can incorporate in their decision an advisory to the defeated party to appeal the matter to the SC.
Venue can be subject to stipulation of parties.
Elements:
1. Stipulation has the feature of exclusivity
2. Written, and
3. It must have been entered into before the commencement of the action
Caveat: If the stipulation will cause undue inconvenience to parties, then such stipulation can be dispensed
with by parties.
In a real action, the venue, in absence of any stipulation designating a specific venue, is the place where the
property or a part thereof is located.
Mixed action action is both real and personal the venue in absence of stipulation is the same as that of
the rule in personal actions. (Whether Action in-rem real; Quasi in rem or In personam personal)
Analyze the actions whether they are real or personal. For purposes of venue, we follow its classification as a
real action.
Accion reinvindicatoria and publiciana recovery of title or ownership a real action that at the same time an
in personam action.
Settlement of estate involving personal properties of the deceased personal action
Sweet Lines case(on venue)
The place where the principal office was located would cause undue inconvenience for the complainants,
hence the agreement stipulating that cases should be filed in Cebu is void. Rule 4 is designed for the
convenience of complaining parties, not for the benefit of defendants.
The rule on venue does not apply to CA, CTA and SC. It is only applicable to trial courts and other lower
courts.
Procedure before Barangay Courts
Prior barangay conciliation a condition precedent to accrual of cause of action.
2 requisites:
1. the parties must be natural persons
2. they reside in the same city or municipality
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As long as these 2 requisites are present, prior barangay conciliation is a MUST regardless of the nature of
the action; if claim is for collection of money, regardless of the amount involved.
If case is filed directly in court in violation of the LGC, will the court acquire jurisdiction?
Yes, under BP 129.
What are the remedies of defendant and the court if prior barangay conciliation was not done?
~Defendant can file a motion for dismissal for lack of cause of action.
~Court can compel plaintiff to submit to barangay conciliation while being held in suspension.
~Court can hold case in abeyance until conciliation was had or had failed. (Court will dismiss the case, and
await result of the barangay conciliation.)
Note: Barangay Court is not part of the judiciary, but part of the executive. Inherently, barangay courts are
not allowed to adjudicate, only to mediate, to conciliate, and convince parties to arrive into a compromise
agreement and settle amicably. They act as an arbitration court; that is, if parties have mutually agreed in
writing to constitute the barangay court as an arbitration court for their dispute.
The barangay courts follow procedurally the same rules as that of court cases.
The pleadings could be verbal, although the barangay court usually asks for pleadings to be written. They
also require payment of minimal docket fees, regardless of the amount of claim.
If the complainant fails to appear repeatedly during the conferences called by the Barangay Court, the
Barangay Court can order the dismissal of the complaint, and that dismissal is with prejudice. The
complainant loses his right to recover against the respondent.
Rule of venue is different from Rule 4 RoC. The venue is the residence of the respondent. If the complainant
and respondent resides in different barangay, the complaint should be filed in the barangay where the
respondent resides.
This applies to civil actions, as well as special civil actions in appropriate cases.
Ex. Complaint for interpleader
Complaint for forcible entry and unlawful detainer, although these are special civil actions
This does not apply to:
~Rule 65 cases, nor in petition for relief cases.
~Cases that involve public officers or LGUs.
~Certiorari, Prohibition, Mandamus usually involves exercise of public duties (especially of a judge)
~It does not apply to expropriation or quo warranto.
If they are unable to settle, the barangay court issues a certification that no compromise was entered into.
This enables the plaintiff to file a case in court. But if a compromise agreement was filed, that agreement will
be considered a final and executory judgment, subject to repudiation by any party within 10 days from
execution of the agreement. Grounds are any of the vices of consent. If there is repudiation, the barangay
court will issue certification allowing plaintiff to file the case in court.
If parties agreed in writing that a barangay court shall be the arbitration court, this can be repudiated within 5
days from filing said agreement.
The Barangay Court, as an arbitration court, can make arbitral awards. A party can cause annulment of said
award based on vices of consent. No other ground need be presented (such as lack of jurisdiction, etc.)
There is no need for the barangay court to ask for confirmation of the compromise agreement. After the lapse
of the 10-day period, it becomes final and executory. It can become subject to execution by the barangay
court. If the terms of the agreement are not complied with, the barangay court can execute the judgment,
provided such judgment should be executed within six months from signing of compromise agreement.
Execution of the barangay court.
While it can make a levy on execution, it is limited to personal properties belonging to respondents. It cannot
levy on real properties owned by respondents. It can also sell these levied personal properties at public
auction to satisfy the compromise agreement. If there is no satisfaction of the claim, the remedy is for the
judgment creditor to file a case of collection in the MTC to satisfy the compromise agreement.
Montaez vs. Miguel enforcement of compromise agreement by barangay courts (2012)
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The
case
substantially
has
the
following
facts:
The claim of the creditor was 500k. Both parties submitted the matter for conciliation in the barangay court.
The claim of 500k was reduced substantially in the proceedings, 250k paid in installments. The debtor failed
to comply. The agreement was not repudiated. The creditor filed a complaint in the regular court for recovery
of the 500k. CA held that the only recourse of the creditor was to enforce the compromise agreement as
provided in LGC and the implementing circulars, the creditor having lost the right to claim the 500k.
SC HELD that the barangay court approved compromise agreement being final and executory, if the debtor
fails to comply, the failure to comply is considered as a repudiation of that compromise agreement. SC cited
Art. 2041 of the NCC which states that when a party fails to comply with the compromise agreement, the
agreement is rescinded by operation of law, and thus the creditor is entitled to recover the original claim in
the courts of justice.
There is no need to file rescission of the compromise agreement in this instance. The effect is that the
creditor who has agreed to the compromise agreement will be reverted to his original position as a creditor
claiming the amount in his original claim before the compromise agreement.
Mere refusal or failure to comply with compromise agreement is tantamount to repudiation of
the compromise agreement.
Note: Judgment based upon a compromise is immediately executory. A party can sought execution thereof
immediately. Failure to comply can lead to rescission of that compromise agreement.
SUMMARY PROCEEDINGS
It refers to the summary procedure followed by lower courts in unlawful detainer, forcible entry and money
claims up to 200k, exclusive of interest, etc.
Note:
Small claims proceedings involve claims up to 100k.
There are cases which follow summary procedure that is cognizable by RTC. However, these cases involve
family-related cases. They are not civil actions involving summary procedures under the rules.
Summary proceedings prohibit filing of certain pleadings and motions.
The only Pleadings allowed:
Complaint
Answer
Compulsory Counterclaim/crossclaim
Motion to dismiss under Rule 16 is prohibited, unless the ground is absence of jurisdiction over
the subject matter and absence of prior barangay conciliation (failure to follow condition
precedent).Although prohibited, what is prohibited is a motion to dismiss filed by the defendant.
Summary Dismissal is allowed given, by the court itself, no motion being given.
The court itself will examine the contents of the complaint. If the court finds the case should be dismissed
under Rule 16, it can do so motu propio, without a correlative motion to dismiss filed by the defendant.
Ordinarily, under ordinary procedures, a court cannot simply dismiss the case without a correlative motion to
dismiss.
The defendant is given time to file a responsive pleading for a shorter period than in ordinary procedure.
Period is non-extendible (10 days). If defendant ignores the period, but files a motion for extension of 5 days
to file an answer, the court can ignore it, considering it as if it was not filed. If such a motion was filed, and
there was failure of the defendant to file an answer within 10 days, plaintiff can move for judgment on the
pleadings.
If the defendant is prohibited from filing a motion to dismiss, but the defendant, after evaluating
the complaint that the case should be dismissed based on any ground in Rule 16, can he still
make use of these grounds to cause dismissal eventually?
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Yes. The defendant should follow Rule 16 by making use of the grounds as an affirmative defense in his
answer, and later on raise these issues.
Motion to declare defendant in default a prohibited pleading in summary procedure.
If defendant failed to answer on time, the plaintiff can move for judgment on the pleadings.
In ordinary proceedings, a motion to declare defendant in default must be initiated by plaintiff before the
court can declare defendant in default. Unless such motion is made, the court can do nothing.
The reason why the rules on summary proceedings does not allow the court to declare defendant in default, it
is because the rules under Rule 9 cannot be allowed in summary proceedings. It will be tantamount to
allowing a defendant in default to ask for lifting the order of default, defeating the purpose of the rule on
summary proceedings.
Motion for new trial, motion for reconsideration and petition for relief from judgment are prohibited in
summary proceedings. This does not mean the defendant has no remedy after judgment. The only remedy
available for a defendant is to appeal the judgment. Annulment of judgment under Rule 47 can also be had
under these proceedings. But, before he can avail of Rule 47, the rules are strict insofar as the requirements
for annulment of judgment are concerned. Such must be complied with before it can be availed.
Preliminary conference identical to pre-trial in ordinary proceedings. Submission of affidavits and position
papers, no presentation of evidence.
A trial is not absolutely prohibited in summary proceedings, as certain criminal cases are governed by
summary proceedings. A trial has to be conducted. The court cannot deprive defendant/accused from crossexamining the witnesses.
Why did not the SC adopt a common summary procedure for civil and criminal cases? Why
disallow trial in civil cases under summary proceedings?
This is because SC cannot violate the rights of an accused in a criminal case. The same right is not availing to
a defendant in a civil case under summary procedures.
Small Claims Proceedings
It contains prohibition against counsels appearing in court.
The scheme in Small Claims proceedings is that they are not required to prepare their own pleadings. In
Metro Manila, the MTC assigned to entertain these claims have ready forms for complaints or answer to be
filed in court. Minimal docket fee is paid.
Joinder of causes of action is allowed, so long as the aggregate should not go beyond 100k exclusive of
interest, damages, etc.
Prohibited pleadings and motions : similar to summary proceedings.
Judicial dispute resolution MTC encourage parties as much as possible to enter into a compromise
agreement.
Small claims procedure has nothing to do with criminal cases, only civil collection cases.
In small claims procedure, the judgment is immediately final and executory, no appeal available.
Motion for new trial, motion for reconsideration and petition for relief from judgment are not available. The
only remedy available to an aggrieved party is under Rule 65, Certiorari. Thus, there is no appeal, plain,
speedy or adequate remedy available.
Does it mean that the aggrieved party in small claims procedure is treated more kindly than in
summary procedure?
No. The availability of Rule 65 in Small Claims procedure is not really a benefit. A petition under Rule 65
does not stop the respondent court from carrying out its decision.
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Unlike in an appeal, usually, execution is not allowed, except in forcible entry and unlawful detainer. In case of
unlawful detainer, payment of supersideas bond and the payment of current rate of rentals can stop
enforcement of the summary proceedings judgment.
The only way Rule 65 can prevent immediate execution in small claims is that the court taking
cognizance of Rule 65 will issue a TRO or writ of preliminary injunction upon application of
appellant. There is a need to post an injunction bond to avail of the TRO or writ of preliminary
injunction.
Back to pleadings.
PLEADINGS AND CONTENTS OF PLEADINGS
Rule 6 and Rule 10 (Take them as one set, as they refer to the same thing, pleadings and content of
pleadings)
Pleadings should always be in writing.
The rules now allow a parties/litigants to make use of 9 pleadings, but numerous motions.
Classes of pleadings:
1. Claim pleading (7 kinds)
2. Responsive pleading (2 kinds)
Claim Pleadings:
1. Complaint
2. Counter-claim
3. Cross-claim
4. Third-party complaint
5. Amended pleading
6. Supplemental pleading
7. Petition
Responsive Pleading:
1. Answer
2. Reply
Defendant may make use of certain claim pleadings under appropriate circumstances. Ex. Answer with
counterclaim and cross-claim.
RULE 7 CERTIFICATION OF NON-FORUM SHOPPING
Classification of pleadings under Rule 7:
1. Initiatory Pleadings there should be a certification on non-forum shopping, the violation thereof could lead
to adverse consequences such as dismissal with or without prejudice; the court imposes docket fees, violation
thereof will render the case to be that which does not fall under the courts jurisdiction; payment of docket
fees required.
2. Non-initiatory Pleadings needs no certification of non-forum shopping; no docket fees required.
The classification under Rule 7 is made for the purpose of determining whether such pleading will require the
inclusion of a certification of non-forum shopping.
General Rule: If an initiatory pleading is filed in court without the payment of the requisite
docket fees, the court does not acquire jurisdiction over the initiatory pleading. Payment of
docket fees carries with it the authority of the court to entertain the complaint.
With respect to a compulsory counterclaim, courts do not consider it an initiatory pleading,
which will necessitate the payment of docket fees.
In 2010, SC decided that if the defendant files an answer with permissive counterclaims, and fails to
pay docket fees, the court has neglected to collect docket fees thereto, and the court tries the case
resulting in its dismissal and granting the permissive counterclaim (the defendant won), the decision
(even if already entered) over the permissive counter-claim is void due to lack of jurisdiction, there
being no showing that the court acquired jurisdiction over the counter-claim. The defendant has the
duty to remind the clerk of court that docket fees should be collected against the defendant so as to enable
the execution of a decision in favor of the defendant.
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COMPLAINT
Ultimate facts In ordinary civil cases, ultimate facts should be alleged in the complaint. But plaintiff is
not sanctioned in case evidentiary facts are included therein, wherein the plaintiff also presents
evidence he intends to present in court.
In several circulars, in certain proceedings, a complaint need not state just ultimate facts. In a
complaint filed under summary proceedings, plaintiff is encouraged to include in his complaint evidentiary
facts and to attach his evidence in the document. In Kalikasan proceedings, the plaintiff is required to attach
to his complaints all the evidence that are in the possession of the plaintiff (documentary, testamentary or
object). In Kalikasan cases, the defendant should include his evidence in the answer, aside from specific
denials.
Take Note: Even Rule 6 does not prohibit alleging evidentiary facts along with ultimate facts. Rule
6 does not impose sanctions if evidentiary facts are included in the pleadings. But the inclusion
in the complaint of ultimate facts alone is sufficient.
The ultimate facts are those that constitute the cause of action, an allegation that the plaintiff
has a right, an allegation that the defendant has violated that right, or an allegation of
compliance with conditions precedent that gave rise to accrual of the cause of action.
Insofar as the answer is concerned, it is the pleading in response to a complaint. It may contain positive or
negative defenses or both along with evidentiary facts. The defendant, however, cannot move for the court to
order the plaintiff to present evidentiary facts in his complaint as the statement of the ultimate facts alone in
the complaint are sufficient.
Problems arise when an answer interposes a negative defense.
Negative Defense
In civil cases, a negative defense is always an important part of the answer. (Specific denial)
What is the standard to follow that a denial is specific?
It is found in Sec. 10 Rule 8 (Relate Rule 6 with this).
3 modes where a specific denial can be had:
1. Total denial of the allegations in the complaint with accompanying statements in which he will have to
rely his defenses on
2. Part denial and part admission
3. Just a statement by defendant that he has no knowledge or information about the truth of the
allegation and therefore defendant specifically denies the allegation
Theoretically, the defendant can make use of any mode of denial right away.
The court has in several cases discouraged the 3rd mode of specific denial, and imposed some sanctions if a
defendant insists in using the 3rd mode as the only mode contained in his answer. SC has given sanctions in
several cases. SC held that if the defendant had no knowledge or information on the matter, defendant
should explain why. Failure to do so, such denial will not be considered a specific denial. A general denial
will be treated as a judicial admission to the allegations contained in the complaint. Thus, a
judgment on the pleadings can be had upon motion of the plaintiff.
Another form of denial frowned upon by jurisprudence are the following: I specifically deny paragraph_
because I had not dealt with the plaintiff or I specifically deny paragraph _ of the complaint. They are
considered as negative pregnant. They are specific denials that contain no ground relied upon in
support of the denial, and thus are considered as general denial. The remedy of the defendant is to
amend the answer as a matter of right as provided in Rule 10.
Rule 10 Amendment as a matter of right
Done before a responsive pleading is filed or before expiration of the period to file such responsive pleadings.
Note: A general denial is allowed in Habeas Corpus cases, but expressly prohibited in Writ of Amparo and
Habeas Data cases.
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Counter-claim
It is a claim made by a defendant against a plaintiff.
Permissive vs. Compulsory counterclaim.
Study Compulsory Counterclaim as discussed in the Rules.
Compulsory Counterclaim
One which arises out of or is necessarily connected with
the transaction or occurrence that is the subject matter of
the opposing partys claim (Sec.7, Rule 6)
Permissive Counterclaim
It does not arise out of nor is it necessarily connected with
the subject matter of the opposing partys claim
It does not require for its adjudication the presence of third

parties of whom the court cannot acquire jurisdiction
It may require for its adjudication the presence of third

parties over whom the court cannot acquire jurisdiction
Barred if not set up in the action (Sec. 2, Rule 9)
Not barred even if not set up in the action
Need not be answered; No default

Not an initiatory pleading.
Must be answered,: Otherwise, default

Initiatory pleading. (Riano, Civil Procedure: A Restatement
for the Bar, p. 336, 2009 ed.)
Must be accompanied by a certification against forum
shopping and whenever required by law, also a certificate
to file action by the Lupong Tagapamayapa (Santo Tomas
University v. Surla, G.R. No. 129718, Aug. 17, 1998) (2007
Bar Question).
Need not be accompanied by a certification against forum

shopping and certificate to file action by the Lupong
Tagapamayapa.
The court has jurisdiction to entertain both as to the

amount and nature (Sec. 7, Rule 6; Ibid p.331)
Must be within the jurisdiction of the court where the case

is pending and cognizable by regular courts of justice
otherwise, defendant will have to file it in separate
proceeding which requires payment of docket fee
Compulsory Counterclaim filed in the RTC vs. that filed in the MTC
A compulsory counterclaim filed in RTC cannot be a compulsory counterclaim filed in the MTC.
Ex. Counterclaim filed in the RTC states that the case filed was unjust and defendant claimed legal expenses
amounting to 200k. This is considered to be a compulsory counterclaim in the RTC even if such amount is
below the threshold for claims in the RTC. We cannot challenge the RTCs jurisdiction by the amounts claimed
in the counterclaim.
If the counter claim filed in the MTC by defendant was claiming 500k in moral damages. Under the rules, this
is no longer a compulsory counterclaim, and treated as a permissive counterclaim. The MTC can order
dismissal of the counterclaim, as the counterclaim is outside the jurisdiction of the MTC.
If the amount to be recovered is beyond the jurisdictional amount of the MTC, the compulsory counterclaim is
converted to a permissive counterclaim. If the amount to be recovered is below the jurisdictional amount of
the RTC, the counterclaim is still treated as a compulsory counterclaim.
Reply
The filing of a reply is generally not necessary. It is in fact next to useless.
Note: If a party does not file such reply. All the new matters that were alleged in the answer are deemed
controverted (Sec. 10, Rule 6) (not deemed admitted).
The matters not answered in the reply are deemed controverted (not admitted). In a complaint, if the
allegations therein are not specifically denied or were not dealt with in the answer, they are deemed
admitted. If the defendant does not specifically deny or does not set up proper affirmative defenses in the
answer, the defendant is sanctioned by law. This will lead the court to conclude that the defendant has
admitted all allegations in the complaint, and thus will lead to a judgment on the pleadings.
But if the defendant filed an answer properly crafted, introducing a new matter. The new matter
asserts a positive defense of extinguishment, for example, which is a ground for a motion to
dismiss. The plaintiff does not file a reply. Is the plaintiff deemed to have admitted the new
matter?
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No. The new matter alleged in the answer is deemed controverted even without a reply. Plaintiff need not
submit a reply as the law itself that the new allegation or matter is deemed controverted to be subjected to
trial in the court.
Under Rule 16, the defendant can now ask for a preliminary hearing to determine whether there was
extinguishment or not. But for purposes of a reply, there is no need for the plaintiff to controvert the new
matters. The second sentence of the definition of a reply is the most important. All matters alleged in the
answer are deemed controverted, and a reply need not be filed.
EXCEPTIONS:
1. Where the answer alleges the defense of usury in which case a reply under oath should be made.
Otherwise, the allegation of usurious interest shall be deemed admitted. (NO LONGER APPLICABLE)
2. Where the defense in the answer is based on an actionable document, a reply under oath pursuant to Sec.
8 of Rule 8 must be made. Otherwise, the genuineness and due execution of the document shall be deemed
admitted.
Under our present rules, allegations of usury MUST be contained in a complaint or similar
pleadings. The law is not specific, but given the liberal interpretation of the rules, it leads to the
conclusion that as long as the allegations of usury are contained in a complaint or similar
pleading like counter-claim or cross-claim, there is a need for specific denial. The responsive
pleading would be an answer, not a reply. If the allegation of usury is contained in a counterclaim/crossclaim, the responsive pleading is an answer to the counterclaim/cross-claim. If the allegation of usury is
contained in an answer, there is no need to specifically deny in the reply.
The only exception applicable is when the answer is founded on an actionable document. The law
says that when the defense is founded on an actionable document, the plaintiff, if he wants to
make a denial of the actionable document, must do so specifically and under oath. Otherwise,
the genuineness and due execution of that actionable document will be deemed admitted (a
judicial admission).
What is an actionable document?
A: Referred to as the document relied upon by either the plaintiff and the defendant. (Araneta, Inc. vs. Lyric
Factor Exchange, Inc. 58 Phil 736) E.g. A promissory note in an action for collection of a sum of money.
(Riano, Civil Procedure: A Restatement for the Bar, p. 101, 2009 ed.)
Note: This manner of pleading a document applies only to an actionable document, i.e., one which is the
basis of an action or a defense. Hence, if a document does not have the character of an actionable document,
it need not be pleaded strictly in the manner prescribed by the rules (Ibid p.102)
How are actionable documents pleaded?
A: By setting forth:
1. The substance of such document in the pleading and attaching said document thereto as an exhibit
2. Include the contents of the document verbatim in the pleading (Sec. 7, Rule 8).
Note: A variance in the substance of the document set forth in the pleading and the document annexed
thereto does not warrant the dismissal of the action (Convets, Inc. v. National Development Co., G.R. No. L10232, Feb. 28, 1958). However, the contents of the document annexed are controlling.
For example, the defendant alleges payment in his answer supported by a receipt issued by the plaintiff,
acknowledging full liquidation of the indemnity. Under law, if the claim or demand is based on an actionable
document, it is imperative upon the impleader to allege on the pleading the actionable document.
Can the plaintiff simply file an affidavit in opposing the actionable document?
The only way that a plaintiff can make a specific denial under oath against the actionable document alleged
in an answer is by way of a reply. This is because, this is the only pleading that is available that responds to
an answer. If the plaintiff makes a reply setting up a specific denial, he should also see to it that the specific
denial is under oath. If he did not do so, the genuineness and due execution of the actionable document is
deemed admitted.
Take note of the exceptions in the Rules as to non-availability of the judicial admission of the
genuineness and due execution of an actionable document if there is no specific denial under
oath. There are 2 exceptions:
1. When the adverse party does not admit being a party to that document, or
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2. Even if such party is a party to the document, there being an order issued by the court for the
inspection of the original document, the said party does not comply with that order.
The mode of impleading an actionable document was held by the SC to be mandatory . If the
party impleading such did not follow the modes provided in the Rules for impleading of an
actionable document, the party will not be allowed to present proof of his cause of action or
defense as the case may be, as the attachment of the actionable document or adding of the
contents of that actionable document in the allegations of the pleadings will adversely affect the
other party.
Third/Fourth Party Complaint, Etc.
There can potentially be no end to the number of parties in the complaint as long as the allegations in the
pleadings have something to do with the claim of the plaintiff in his complaint. If you would notice among the
pleadings, it is only the third/fourth party complaint, etc. that would require leave of court. The third/fourth
party complaint, etc. must allege that the third/fourth party defendant is liable to the said third/fourth party
plaintiff, by reason of contribution, subrogation or any other relief in relation to the subject matter of the
claim in the complaint. The third/fourth party complaint is always connected to the subject matter of the
complaint.
If a complaint for instance is for the recovery of an unpaid loan, a third party complaint cannot contain a
claim for the recovery of ownership of a piece of land. The subject of the third party complaint should always
be related to the subject of the complaint.
Why do we need leave of court in order to file a third party complaint?
This is because a third party complaint will forcibly bring into the action a stranger to the case. The third
party defendant is a stranger to the case. This is why the rules require that the court should be given
discretion whether to allow or not to allow the third party complaint to see if there is a need to bring a
stranger to the case or even if there may be a need, the claim is unrelated to the subject to the case. If the
court denies the motion for admission of a third party complaint, the remedy of the defendant is to file a
separate complaint against the third party defendant.
It is in third party complaints that will best illustrate the meaning of ancillary jurisdiction of a trial court.
Q: What is a third (fourth, etc.) party complaint?
A: A third (fourth, etc.) party complaint is a claim that a defending party may, with leave of court, file against
a person not a party to the action, called the third (fourth, etc.) party defendant, for contribution, indemnity,
subrogation or any other relief, in respect of his opponent's claim. (Sec.11, Rule 6)
Q: Distinguish a third-party complaint from the rules on bringing in new parties.
A: A third-party complaint is proper when not one of the third-party defendants therein is a party to the main
action. Whereas in bringing in new parties, if one or more of the defendants in a counterclaim or cross-claim
is already a party to the action, then the other necessary parties may be brought in under the rules on
bringing in new parties
Q: Why is leave of court necessary in third (fourth, etc.) -party complaint?
A: To obviate delay in the resolution of the complaint such as when the third-party defendant cannot be
located; or unnecessary issues may be introduced; or the introduction of a new and separate controversy.
(Herrera, Vol. I, p. 705, 2007 ed.)
Q: What are the tests to determine whether the third-party complaint is in respect of plaintiffs
claim?
A:
1. Whether it arises out of the same transaction on which the plaintiffs claim is based, or, although arising
out of another or different transaction, is connected with the plaintiffs claim;
2. Whether the third-party defendant would be liable to the plaintiff or to the defendant for all or part of the
plaintiffs claim against the original defendant; and
3. Whether the third-party defendant may assert any defenses which the third-party plaintiff has or may have
to the plaintiffs claim.
Note: Where the trial court has jurisdiction over the main case, it also has jurisdiction over the third party
complaint, regardless of the amount involved as a third-party complaint is merely auxiliary to and is a
continuation of the main action (Republic v. Central Surety & Insurance Co., G.R. No. L-27802, Oct. 26, 1968).
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A third party complaint is not proper in an action for declaratory relief. (Commissioner of Customs v. Cloribel,
G.R. No. L-21036, June 30, 1977).
Note: The court is vested with the discretion to allow or disallow a party to an action to implead an additional
party. Thus, a defendant has no vested right to file a third party complaint (China Banking Corporation vs.
Padilla, G.R no. 143490, Feb. 2, 2007; Riano, p. 342, 2009 ed.).
Q: Abby obtained a favorable judgment against UNICAP for a sum of money. For failure to get full
payment, Abby went after UNICAPs debtor Ben. Ben is a policy holder of Insular. The courts
sheriff then served a notice of garnishment to Insular over several account receivables due to
Ben. Insular refused to comply with the order alleging adverse claims over the garnished
amounts. The trial court ordered Insular to release to Abby the said account receivables of Ben
under the policies. Insular then filed a petition for certiorari with the CA alleging that the trial
judge gravely abused his discretion when he issued the garnishment order despite its adverse
claim on the garnished amounts. The CA gave due course to the petition and annulled the order
of the trial court. Is the Court of Appeals correct?
A: No. Neither an appeal nor a petition for certiorari is the proper remedy from the denial of a third-party
claim. Since the third-party claimant is not one of the parties to the action, he could not, strictly speaking,
appeal from the order denying its claim, but should file a separate reinvindicatory action against the
execution creditor or a complaint for damages against the bond filed by the judgment creditor in favor of the
sheriff. The rights of a third-party claimant should be decided in a separate action to be instituted by the third
person (Solidum v. CA, G.R. No. 161647, June 22, 2006).
Q: What is Doctrine of Ancillary Jurisdiction?
A: It involves the inherent or implied powers of the court to determine issues incidental to the exercise of its
primary jurisdiction.
Note: Under its ancillary jurisdiction, a court may determine all questions relative to the matters
brought before it, regulate the manner in which a trial shall be conducted, determine the hours
at which the witnesses and lawyers may be heard, and grant an injunction, attachment or
garnishment.
Let us say that the subject of the complaint is the recovery of 1M unpaid loan. The competent
court is an RTC. The defendant asks the court for permission to file an answer with a third party
complaint. In the third party complaint, the defendant asserts that Juan de la Cruz is bound to
pay defendant the sum of 200K by reason of contribution, indemnity, subrogation or any other
relief. With respect to the complaint, there is no question as to jurisdiction as the competent
court is really an RTC. It is with respect to the third party complaint where a jurisdictional issue
is present. The third party complaint is effectively a complaint filed by the defendant against a
stranger to the case, and the amount sought to be recovered is 200k, which is an amount not
within the jurisdiction of the RTC. Can the court, upon motion by the third party defendant, order
the dismissal of that third party complaint on the ground of lack of jurisdiction over the subject
matter of the case?
No. We apply rule of ancillary jurisdiction of a trial court. If the trial court has jurisdiction over the principal
complaint filed by the plaintiff against the defendant, the same court will exercise ancillary jurisdiction over
all collateral pleadings, incidental pleadings that are related to the complaint. Thus, the third party complaint
to recover 200k is still cognizable by the same court.
Is it correct to say that third party complaint or fourth party complaint would be the only
pleadings which will enable a litigant to bring in a stranger to the case? Can a litigant bring in a
stranger without a third or fourth party complaint?
No. The Rule does not say that it is the only means/pleading available to bring in a stranger to the case.
Can the defendant compel a stranger to be a party to the case by filing a counterclaim or crossclaim?
The law authorizes the defendant to bring in a stranger by filing a permissive or compulsory counter-claim.
The law authorizes the defendant to bring in a stranger to the case through the filing of a cross-claim.
Although the Rules defines a cross-claim as a claim by a defendant against his co-defendant, the Rules does
not say that in filing a cross-claim against a co-defendant that a third person can be impleaded in the crossclaim.
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In the definition of a counterclaim, the defendant could set up the counterclaim against the plaintiff or against
any party or person who is not yet a party to the case, as long as the court can acquire jurisdiction over the
person of the said person.
Why do we allow a defendant to bring in a stranger to the case by not using a third-party
complaint but by cross-claim or counterclaim, especially when such is compulsory?
Because there is another provision in the Rules which say that if there is a compulsory counterclaim or crossclaim not set up in the answer, that compulsory counterclaim or cross-claim are barred. If there is a need to
implead a stranger, he should be allowed to implead a stranger, although not via a third party complaint.
Sec. 11 Rule 6 provides a cross-claim or counterclaim could be the basis for the court to bring in a stranger to
the case for the complete determination of the issues.
FORMS OF A PLEADING
A pleading must always be signed. An unsigned pleading will be treated as a sham pleading. You cannot
submit an unsigned pleading. The court motu propio can order the striking out of the pleading.
Who will sign the pleading?
The litigant can sign the pleading. Or, his counsel can sign for him. Either or both can sign the pleading.
Are there pleadings that are inadmissible by the court if the only signature is that of the
lawyers?
By way of exception, yes, in case of marriage annulment cases, according to the SC Circular, the complaint
and the answer must be signed also by the party himself. If signed only by the lawyer alone, the court will not
accept the pleading.
But generally, the signature of the counsel is enough for a pleading to be accepted by the court.
Q: What is the effect of lawyers signature?
A: The signature of counsel constitutes:
1. A certificate by him that he has read the pleadings;
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)
VERIFICATION
Q: Is verification necessary in pleadings?
A: No, except when otherwise specifically required by law or rule, pleadings need not be under oath, verified
or accompanied by affidavit. (Sec. 4, Rule 7)
Q: What is the significance of verification?
A: it is intended to secure an assurance that the allegations in a pleading are true and correct and not the
product of the imagination or a matter of speculation, and that the pleading is filed in good faith. The absence
of a proper verification is cause to treat the pleading as unsigned and dismissible (Chua vs. Torres, 468 SCRA
358; Riano, Civil Procedure: A Restatement for the Bar, p. 60, 2009 ed.)
Q: What are the pleadings that should be verified?
A: The following should be verified:
1.
Petition for relief
from
7. Application for appointment of
judgment
receiver
2. Petition for review from the
8.
Application
for
support
RTCs to the CA
pendente lite
3. Petition for review from the
9. Petition for certiorari against
CTA and quasi-judicial agencies
the judgments, final orders or
to the CA
resolutions
of
constitutional
4. Appeal by certiorari from the
commissions
CA to the SC
10.
Petition
for
certiorari,
5. Petition for annulment of
prohibition,
mandamus,
quo
judgments or final orders and
warranto
resolutions
11. Complaint for expropriation
6. Complaint for injunction
12. Complaint for forcible entry

or unlawful detainer
13. Petition for indirect contempt
14. Petition for appointment of
general guardian
15. Petition for leave to sell or
encumber property of an estate
by a guardian
16. Petition for the declaration of
competency of a ward
17. Petition for habeas corpus
18. Petition for change of name
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19. Petition for voluntary judicial

dissolution of a corporation;
(1996 Bar Question)
Q: What are the effects of
lack of verification?
A:
1. A pleading required to be
verified but lacks the proper
verification shall be treated as
an unsigned pleading (Sec. 4
as amended by A.M. 00-2-10,
May 1, 2000). Hence, it produces
no legal effect (Sec. 3, Rule 7)
2. It does not necessarily
render
the
pleading
defective. It is only a formal and
not a jurisdictional requirement.
The requirement is a condition
affecting only the form of the
pleading
(Benguet
Corp.
v.
Cordillera Caraballo Mission, Inc.,
G.R. No. 155343, Sept. 2, 2005)
and non-compliance therewith
does not necessarily render it
fatally defective (Sarmiento v.
Zaranta, G.R. No. 167471, Feb. 5,
2007)
3. The absence of verification
may
be
corrected
by
requiring an oath. The rule is in
keeping with the principle that
rules
of
procedure
are
established to secure substantial
justice
and
that
technical
requirements may be dispensed
with
in
meritorious
cases
(Pampanga Sugar Development
Co., Inc. v. NLRC, G.R. No.
112650, May 29, 1997)
If the law requires a pleading
to be verified, but the
pleading is not verified or
there
is
insufficient
verification, the absence or
insufficiency would mean that
the pleading is effectively an
unsigned pleading. Therefore
it produces no legal effect.
With respect to verification, the
general rule is we do not require
that pleadings should be verified.
It is only in instances where
the law requires verification
that the pleading should be
verified. Also, take note that
Rule 7 is very emphatic as to how
to verify a pleading.
20. Petition for correction or

cancellation of entries in Civil
Registry.
Q:
How
are
pleadings
verified?
A: It is verified by an affidavit.
This affidavit declares that the:
1. Affiant has read the pleading;
and
2. Allegations therein are true
and correct of his personal
knowledge or based on authentic
records (Sec. 4, Rule 7)
If the verification is not according
to the tone given in the Rules,
that will be an inadequate or
insufficient
verification.
And
under Rule 7, the absence or
inadequacy of the verification
shall result in an effectively
unsigned pleading.
But the SC keeps on ignoring the
Rules on verification. Although it
would appear in Rule 7 that
absence of verification could be a
fatal defect, the SC keeps on
ruling that the absence of
verification is only a formal
defect. If you come across a
question concerning the need to
verify a pleading or determining
the adequacy of a verification in
a pleading, and you are asked
what is the effect, based on
rulings by the SC, in instances
required by law for submission of
a pleading with an inadequate
verification is only a formal
defect.
A complaint, a permissive
counterclaim, cross-claim, a
third/fourth party complaint,
all of these being initiatory
pleadings,
must
have
a
certification
of
non-forum
shopping. Does it mean to
say that Verification of a
pleading is now the general
rule, given that in Rule 7,
initiatory
pleadings
must
carry
with
them
a
certification
of
non-forum
shopping?
No. Certification of Non-forum
shopping
is
different
from
verification of a pleading.
Verification of a pleading refers
to the allegations in the
pleading. The verification states
that one has read the pleading

and that it is correct based on his
personal knowledge or based on
authentic records. The contents
of certification of non-forum
shopping
does not have
anything to do with the
contents of an initiatory
pleading, as it simply certifies
that no similar case had been
filed in any other court,
tribunal or body, and to
notify the court right away if
one should come to know of
such fact.
In the case of a Certification of
Non-Forum Shopping, the SC
appears to have adapted the rule
of substantial compliance as to
the
requirements
of
the
certifications contents. Take note
that the Rules say that all
principal plaintiffs should sign the
certification.
Otherwise,
the
certification will be ineffective.
This defect is not curable by
amendment under Rule 7.
There was a recent case wherein
the complaint had 5 principal
plaintiffs and only two of them
signed.
The
defendant
challenged the authority of the
court receive the case as the
certification was ineffective. The
court refused to dismiss the case.
The court said that it will go
ahead with the case but will drop
the claims where the non-signing
plaintiffs are concerned. In effect,
the court said the signature of
the
two
plaintiffs
will
of
substantial compliance with the
requirement.
As to the issue of a lawyer
signing the certification of nonforum shopping, the general rule
being that a party himself must
sign, if the lawyer sign for the
plaintiff, the lawyer must be able
to show his authority to do so via
a special power of attorney
authorizing him to sign in the
stead of his client.
REQUIREMENTS
CORPORATION
THE
OF
A
EXECUTING
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VERIFICATION/CERTIFICATION
OF NON-FORUM SHOPPING
Q: What is the rule when the
plaintiff is a juridical person?
A: The certification against forum
shopping where the plaintiff is a
juridical entity like a corporation,
may be executed by properly
authorized person. This person
may be a 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, such may be signed
by
the
authorized
lawyer
(National Steel Corporation vs.
CA, 388 SCRA 85; Riano, Civil
Procedure: A Restatement for the
Bar, p. 70, 2009 ed.)
Q: Corporation XYZ is the
petitioner in a civil case.
Alexander,
president
of
corporation XYZ, signed the
certification against forum
shopping in behalf of said
corporation
without
presenting
any
proof
of
authority
from
the
corporation.
Is
the
certification against forum
shopping valid? If not, how
may it be cured?
A: No. When the petitioner in a
case is a corporation, the
certification
against
forum
shopping should be signed by its
duly
authorized
director
or
representative. The authorized
director or representative of the
corporation should be vested
with authority by a valid board
resolution. A proof of said
authority must be attached with
the certification (PAL v. FASAP,
G.R. No. 143088, Jan. 24, 2006).
Non-waivable
defenses
civil procedure
Res judicata
Prescription
in
Note: A previous decision or

judgment will bar the filing of
another case similar or tackling
the same issues, having the
same parties, and the same or
related reliefs. In a civil case, it is
called res judicata, while in a
RULE 9 (Effect of Failure to

Plead) and Omnibus Motion
Rule
Basic Principles contained in
Rule 9:
1. Omnibus Motion Rule all
objections
that
are
not
included are deemed waived
if not set up in the motion to
dismiss.
2. Because of the rules in
joinder of causes and joinder
of parties, there could be
several causes actions that
can
be
alleged
in
the
complaint either joined or in
the alternative; there could
be several defenses set up in
the answer, also either jointly
or in the alternative. Rule 3
in relation to Rule 9 also says
that since there could be
alternative
causes
or
defenses, we can also have
joined
and/or
alternative
defendants.
Omnibus
Motion
Rule
a
defense is waived if not set
in defenses in the pleadings.
Q: What is the Omnibus
Motion Rule?
A:
GR: All available grounds for
objection in attacking a pleading,
order, judgment, or proceeding
should be invoked at one time;
otherwise, they shall be deemed
waived (Sec. 8, Rule 15).
XPN: The court may
dismiss the case motu
propio based on:
1. Lack of jurisdiction
over the subject matter;
2. Litis pendencia;
3. Res judicata; and
4. Barred by statute of
limitations (Sec. 1, Rule
9)
Lack of jurisdiction over the
subject matter
Litis pendencia
Non-waivable
defenses
in
criminal procedure
criminal case, it is called double
jeopardy.
In the case of criminal cases,
there is the defense that the
information does not charge an
offense. In civil cases, this is
equivalent to Rule 16, failure to
Can there be a judgment in

the alternative?
Yes. Note: Under Rule 60
(Replevin), in its Section 9,
alternative judgment may be
had for either the delivery of
the personal property or the
value thereof in case delivery
cannot be had or made, plus
damages the party may be
able to prove and costs.
Nothing is mentioned in the rules
about
the
propriety
of
a
complaint with plaintiffs named
in the alternative, as plaintiffs are
named jointly. But if we follow
the general rule that pleadings
should be liberally interpreted to
provide for a fast, speedy and
inexpensive determination of the
case, the SC might allow a
complaint where the plaintiffs are
named in the alternative, which
is followed in the federal rules of
procedure in the US where
plaintiffs can be named in the
alternative, causes of action, as
well as defenses alleged in the
alternative. Unfortunately, one of
the rules not incorporated in our
Rules was that of plaintiffs
named in the alternative. By
express provision in the rules, we
have defendants named in the
alternative, causes and defenses
alleged in the alternative. We can
even have judgments in the
alternative form.
With respect to the non-waivable
defenses given in Rule 9, it
sounds better to compare the
non-waivable defenses in civil
actions
and
non-waivable
defenses in criminal cases.
Double jeopardy
Prescription
of
the
penalty
imposed
Lack of jurisdiction over the
subject matter
state a cause of action. In civil
cases, if the complaint does not
properly allege a cause of action
and the complaint was not
amended at all, where the
defendant does not file a motion
to dismiss, the case went to trial,
and the plaintiff showed in the
Law
Review
trial that he indeed has cause of

action, the complaint is deemed
amended.
This
is
called
amendment to pleadings to
conform to evidence.
Thus, in civil cases, the failure to
state a cause of action or to
improperly
allege
such
is
waivable, the remedy being an
amendment
to
conform
to
evidence. The court may order
such amendment be made.
PRINCIPLE OF AMENDMENT
OF PLEADINGS TO CONFORM
TO EVIDENCE
Amendment to pleadings may
be made to conform to
presented evidence.
When may amendment be
made to conform to or
authorize
presentation
of
evidence?
A:
1. When issues not raised by the
pleadings are tried with the
express or implied consent of the
parties.
Note: Failure to
amend does not affect the result
of the trial of said issue.
2. Amendment may also be
made 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, if
the presentation of the merits of
the action and the ends of
substantial
justice
will
be
subserved thereby (Sec. 5, Rule
10).
The information submitted by
the prosecutor did not really
allege
a
crime
was
committed.
But
the
prosecutor was able to show
in court by the evidence
presented that indeed a
crime was committed. Can
amendment of pleadings to
conform
to
evidence
be
allowed in this case?
No, it cannot be allowed. It will
violate the constitutional right of
the accused to be informed of
the charges against him. We can
apply amendment of pleadings to
conform to evidence in a criminal
case so long as the constitutional

right of the defendant is not
violated.
DEFAULT
Q: When is a declaration of
default proper?
A: If the defending party fails to
answer within the time allowed
therefor, the court shall upon
motion of the claiming party with
notice to the defending party,
and proof of such failure, declare
the defending party in default
(Sec. 3, Rule 9, Rules of Court).
(Riano, p. 507, 2005 ed.)
Q: In what situations where
declaration of default is
proper?
A: It is proper in 3 situations:
1. Defendant did not file any
answer or responsive pleading
despite
valid
service
of
summons;
2. Defendant filed an answer or
responsive pleading but beyond
the reglementary period; and
3. Defendant filed an answer to
the court but failed to serve the
plaintiff a copy as required by the
Rules.
EFFECT OF AN ORDER OF
DEFAULT
Q: What are the effects of an
order of default?
A:
1. The party declared in default
loses his standing in court. The
loss of such standing prevents
him from taking part in the trial
[Sec. 3(a), Rule 9];
2. While the defendant can no
longer take part in the trial, he is
nevertheless entitled to notices
of subsequent proceedings [Sec.
3 (a), Rule 9]. It is submitted that
he may participate in the trial,
not as a party but as a witness;
and
3. A declaration of default is not
an admission of the truth or the
validity of the plaintiffs claims
(Monarch Insurance v. CA, G.R.
No. 92735, June 8, 2000).
RELIEF FROM AN ORDER OF
DEFAULT
Q: What are the reliefs from
an order of default?
A:
1. After notice of order and

before judgment The defendant
must file a verified motion to set
aside the order of default upon
proper showing that:
a. His failure to answer
was
due
to
fraud,
accident,
mistake
or
excusable
negligence;
and
b.
That
he
has
a
meritorious
defense.
[Sec. 3(b), Rule 9] (2000
& 1999 Bar Question)
2. After judgment and before
judgment becomes final and
executory He may file a motion
for new trial under Rule 37. He
may also appeal from the
judgment as being contrary to
the evidence or the law (Talsan
Enterprises, Inc. v. Baliwag
Transit, Inc., G.R. No. 169919,
Sept. 11, 2009)
3. After the judgment becomes
final and executory he may file
a
petition
for
relief
from
judgment
under
Rule
38
(Balangcad v. Justices of the CA,
G.R. No. 83888, Feb. 12, 1992)
(2006, 1998 Bar Question)
4. Where the defendant has
however,
been
wrongly
or
improvidently declared in default,
the court can be considered to
have acted with grave abuse of
discretion amounting to lack or
excess of jurisdiction and when
the lack of jurisdiction is patent
in the face of the judgment or
from the judicial records, he may
avail of the special civil action of
certiorari
under
Rule
65
(Balangcad v. Justices of the CA,
G.R. No. 83888, Feb. 12, 1992)
EFFECT
OF
A
PARTIAL
DEFAULT
Q: What is the effect of
partial default?
A:
GR: The court will try the case
against all defendants upon the
answer of some.
XPN: Where the defense is
personal
to
the
one
who
answered, in which case, it will
not benefit those who did not
answer e.g. forgery. (1995 Bar
Question)
Law
Review
EXTENT OF RELIEF
Q: What is the extent of
relief?
A: The judgment shall not
exceed the amount or be
different in kind from that prayed
for
nor
award
unliquidated
damages [Sec. 3(d), Rule 9].
However, if the court orders
submission
of
evidence,
unliquidated damages may be
awarded based on such.
ACTIONS WHERE DEFAULT
ARE NOT ALLOWED
Q: When is default not
allowed?
A:
1. Actions for annulment;
2. Declaration of nullity of
marriage and legal separation
[Sec. 3(e), Rule 9]; and
3. In special civil actions of
certiorari,
prohibition
and
mandamus
where
comment
instead of an answer is required
to be filed.
There are several instances
where declaration of default is
prohibited like mortgage, the
rules on summary procedures,
Writ of Amparo, Writ of Habeas
Data, and marriage related
cases. It is not correct to say that
it is absolute in civil actions that
if a defendant does not file his
responsive pleading, he can be
declared in default. What is clear
is the general rule: If a complaint
is filed, summons is served upon
the defendant, but defendant
does file an answer within the
reglementary
period,
the
defendant can be declared to be
in default upon motion of the
plaintiff.
The court cannot motu propio
declare the defendant in default.
Motion must be made by the
plaintiff before declaration of
default can be had. Failure to file
the motion for declaration of
default by the plaintiff can result
to the complaint being dismissed
for failure to prosecute for an
unreasonable length of time
under Rule 17. It is a dismissal
with prejudice.
Suppose
Plaintiff
files
a
motion for declaration of
defendant in default, but the
motion was for that of an exparte
motion
to
declare
defendant in default. The
reasoning is that since the
defendant had not bothered
to file an answer, there is no
use of serving notice to the
defendant. This is for the
plaintiff
to
prevent
the
defendant from entertaining
the idea that he must file an
answer to prevent being
declared
in
default.
Is
plaintiff correct?
No. Rule 9 is very clear that a
copy of the motion to declare
defendant in default should be
served upon the defendant. If
such copy is not served upon the
defendant, that motion will not
be acted upon by the court.
What if the defendant filed
an answer after receiving a
copy of the motion to declare
him in default, can the court
still declare him in default?
Yes, if the court follows strictly
Rule 9. But, as a matter of policy,
an answer filed out of time will
not result in the defendant in
being declared in default. SC
held repeatedly that as much as
possible the technical aspects of
default should not be applied
strictly
in
the
interest
of
furtherance of justice. Even if the
period to answer has already
expired, but an answer is filed
out of time, the courts will still
admit that answer and deny the
motion to declare the defendant
in default. The reason why SC
adopted this policy is because at
present,
under
Rule
9,
if
defendant is declared in default,
the court can right away render a
judgment in default against
defendant without conducting a
trial. Under Rule 9, the court is
given 2 choices: to render a
judgment of default based on the
complaint (judgment on the
pleadings), or to order the
complainant to present evidence
ex-parte in support of his
allegations. At least in the
second option, there can be
presentation of evidence, unlike
in the first option where only the
pleadings will be the basis of the

judgment. And if there is a trial
ex-parte on default ordered by
the court, the defendant will not
be allowed to participate in the
proceedings, unless he is able to
secure an order to lift the default.
Rule 9 is very explicit in stating
that the award in default
judgments cannot be greater
than that prayed for in the
complaint, even if there is an
ex-parte
presentation
of
evidence
showing
evidence
thereto. This limiting of award is
only allowed in default cases
where plaintiff is allowed to
present evidence ex-parte.
Default Under Rule 18 PreTrial
Plaintiff does not appear during
pre-trial or failed to submit pretrial brief = dismissal of the
complaint.
Defendant does not appear
during
pre-trial
or
nonsubmission of pre-trial brief on
time = ex parte presentation of
evidence by plaintiff and court
can render judgment based
thereon.
Comparison between Rule 9

and Rule 18 Default
Rule 9
In Rule 9, defendant shall be declared in de
not filing an answer.
The court cannot grant a relief more than that

in the complaint.
In Rule 9, the defendant in default has not

answer at all. The court is considered to ha
taking pity on a defendant who had surrendere
During ex parte presentation

during pre-trial, the plaintiff
was able to prove damages of
2M. However, the complaint
alleges only 1M. The court
awarded 2M. Is the court
correct? Why?
Yes, the court is correct. This is
because the defendant has failed
Law
Review
to comply with a court order to

either appear in pre-trial or to
submit a pre-trial brief, and thus
the court can sanction defendant
at default. Also, since the court
allows the plaintiff, as provided
under Rule 18, to present
evidence to prove his allegations,
what the plaintiff was able to
prove shall be the basis of the
courts judgment.
PARTIAL DEFAULT
Partial default one of several
defendants,
sued
under
a
common cause of action, is
declared in default, while the
others can still participate in the
case.
Default is founded on
premise that the defendant
been served with summons
chose not to response within
reglementary period.
the
has
but
the
Can there be a judgment in

default against the nonanswering defendants?
No, the court cannot do that. In
case of several defendants, of
which some have filed an
answer, the most that the court
can do is to declare the nonanswering defendants in default.
The court cannot declare the
answering defendants in default
as there is no reason to do that.
Insofar as the non-answering
defendant is concerned, they
shall be declared in default but
there could be a separate
judgment that will be rendered.
Can the answering defendant
call the defendants in default
as witnesses?
Yes. Defendants declared in
default
can
be
witnesses,
although he will not be allowed
to participate as a litigant.
If the court finds for the
answering defendant, will
that decision also affect the
defendants
declared
in
default?
Yes. Whatever happens to the
case, the defendants in default
shall be subject to the decisions
rendered. Thus, if the answering
defendant wins, the decision
shall also be in favor of the
defendants in default. This is one

situation where a defaulting
defendant can prevail in the
case. The reason is that the nonanswering defendants are sued
under a common cause of action
with answering defendants.
In one case, the creditor who
sued 2 defendants where one
had answered and other
failed
to
answer,
and
subsequently ordered by the
court to be declared in
default, his counsel most
likely told him about this
principle in default. The
plaintiff
moved
for
the
dismissal of the complaint
against
the
answering
defendant. The answering
defendant did not object to
the
dismissal.
The
case
caption was then changed to
plaintiff versus the defendant
in default. Can the court now
ask
for
presentation
of
evidence ex-parte?
SC held that it is not necessary.
Even if the answering defendant
has been dropped from the case
upon the initiative of the plaintiff,
what the trial should examine is
whether or not the answering
defendant is an indispensable
party to the case. If answering
defendant is an indispensable
party, then the court should
require the inclusion of such
party. What the court should do is
to order the plaintiff to amend his
pleadings
and
include
the
indispensable party. Failure to do
so will be dismissal of the
complaint with prejudice under
Rule 17. This is because if
answering
defendant
is
an
indispensable party but he is not
around, the proceedings of the
court could be void, it would be
useless for the court to try the
case. And under the new
doctrines enunciated by the SC,
if an indispensable party has not
been included or has been
dropped from the case, the court
should compel the indispensable
party to be impleaded via an
amendment to the complaint.
Failure of plaintiff to do so will
allow the court to dismiss the
case with prejudice under Rule
17 for refusal to obey a lawful

court order.
Since it is disadvantageous
for
a
non-answering
defendant to be declared in
default,
what
are
the
remedies given by law to the
defaulting defendant?
To file a motion to lift the order of
default at any time before
judgment, the motion, filed with
an affidavit of merit along with
his proposed answer, alleging the
reasons of why he defaulted and
alleging that he has a good
defense
as
stated
in
the
proposed answer.
If the motion to lift the order of
default
is
denied,
it
is
inappealable,
being
an
interlocutory decision.
Denial to lift order of default
Rule 65 can be had, but appellant
must show that the court acted
with lack or in excess of
jurisdiction
If the court has already rendered
judgment
by
default
(after
motion to life order of default has
been denied), defendant can
appeal. A judgment by default is
an adjudication on the merits,
hence appealable, Rule 65 is
automatically non-available as a
rule.
If court lifted order of default, the
defendant should file the answer
as soon as possible. The court, as
a matter of public policy, should
allow the defendant who had
been in default to file his answer.
The court should not deprive
defendant the right to present his
side before the court.
RULE 10
AMENDED AND
SUPPLEMENTAL PLEADINGS
Plaintiff filed a case for
accion reinvindicatoria. The
assessed
value
of
the
property
determined
jurisdiction. It was filed in the
RTC.
No
allegation
was
included as to the value of
the property. Can RTC dismiss
the case?
Yes. If the court is unable to
determine that it has jurisdiction
Law
Review
over the case, as in this instant,

it may dismiss the case for lack
of jurisdiction over the subject
matter of the case.
Plaintiff failed to make the
necessary
jurisdictional
averment. Having discovered
it, he amended the complaint
and submitted it prior to an
answer made. Is the plaintiff
correct?
Yes. The amendment was an
amendment as a matter of right.
The plaintiff has the right amend
his complaint once before a
responsive pleading is filed, even
to the extent of amending the
averment to confer jurisdiction.
Thus, the plaintiff is correct to
amend his pleading to include
the jurisdictional averment.
This is applicable for example in
unlawful detainer, wherein the
plaintiff failed to allege in his
complaint that a final demand
had been made. Plaintiff may
amend his complaint as a matter
of right to include the said
allegation.
The plaintiff made a change
in the cause of action in the
complaint,
and
the
amendment was as a matter
of right. Is this allowed?
What if an answer was
already filed?
If amendment is a matter of
right, the plaintiff can change his
pleadings cause of action.
If amendment is not a matter of
right, the plaintiff must be
authorized by the court (given
leave) to amend the pleading to
include another cause of action
or change a cause of action.
All pleadings can be amended
as a matter of right or with
prior leave of court.
Philippine Ports Authority vs.
Gothong 2008 (Change from a
complaint
for
specific
performance
to
one
for
injunction.)
If amendment is a matter of
right, the plaintiff can change his
pleadings cause of action.
If amendment is not a matter of

right, the plaintiff must be
authorized by the court (given
leave) to amend the pleading to
include another cause of action
or change a cause of action.
Change in the cause of action in
the complaint is a matter of
discretion upon the court once an
answer had already been filed.
As long as the amendment gives
the parties the opportunity to tell
the court what is the true dispute
between the parties, and as long
as it does not involve prejudice
to substantial justice. Hence, if
the complaint was amended not
as a matter of right, the
defendant can also amend his
answer, if needed, to properly
respond
to
the
amended
complaint. In the Gothong Case,
the SC encouraged trial courts to
liberally the Rule on amendment
of pleadings, whether as a
matter of right or as a matter of
discretion.
Defendant
can
change
his
denials in his answer from
general to specific by filing an
amended answer as a matter of
right. 2nd, 3rd etc. amendment
must be with leave of court.
Amendment as a matter of
right can only be availed of
once, and it can be availed of
only before an answer has
been filed.
Can we amend pleadings if
the case has already been
decided and is on appeal
either in the CA or SC?
Yes. Amendments can be done if
it is only formal in nature. But if
the amendment is substantial,
appellate courts will hesitate as
such amendment will injure the
rights of parties who had not
appealed. What can be brought
on appeal are issues that have
been raised from the trial court.
AMENDMENT TO CONFORM
TO EVIDENCE UNDER RULE 10
AMENDMENTS TO CONFORM TO
OR AUTHORIZE PRESENTATION
OF EVIDENCE
Q: When may amendment be

made to conform to or
authorize
presentation
of
evidence?
A:
1. When issues not raised by the
pleadings are tried with the
express or implied consent of the
parties.
Note: Failure to amend
does not affect the result of the
trial of said issue.
2. Amendment may also be
made 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, if
the presentation of the merits of
the action and the ends of
substantial
justice
will
be
subserved thereby (Sec. 5, Rule
10).
If the evidence presented by the
plaintiff is not material to the
allegations in his complaint, and
there is an objection by the
defendant, that objection should
be
sustained.
But
if
the
presentation of evidence that is
not material to the complaint is
not objected to, the court can
motu propio tell the plaintiff not
to continue the presentation of
that evidence. For instance, the
case if for accion reinvindicatoria,
where the issue is title to or
possession of the real property.
During the trial, the plaintiff
presented evidence that the
defendant owed him 3M, but not
any evidence pertaining to the
right of possession of the real
property. If you are the lawyer of
the defendant in this case, you
will have to object that the
evidence
presented
is
not
material to the allegations of the
case for recovery of ownership
and possession of real property. If
there is an objection raised by
the defendant, the court will
sustain
that
objection,
the
plaintiff will not be allowed to
present his evidence concerning
the 3M liability. But if the
defendant did not object, the
court cannot refuse to admit the
evidence. The court cannot
refuse to admit any evidence not
objected to by the other side.
Law
Review
When the time comes for the

court to decide on the case,
can court will simply award
the plaintiff 3M, although the
plaintiff has not alleged this
fact at all in his complaint?
Yes. The reason is that rule in
amendment
to
conform
to
evidence under Rule 10. There is
no need for the plaintiff to
formally amend his pleadings, it
takes place by operation of law in
order to conform with the
evidenced submitted by the
plaintiff.
Q: Distinguish an amended
pleading
from
a
supplemental pleading.
A:
Amended
Supplement
Pleading
al Pleading
Refer to the Refers to facts
facts existing occurring
at the time of after the filing
filing
of of the original
original
pleading.
pleading
Supersedes
Merely
the
original, supplements
causes
of the
original
action may be pleading.
changed
May
be Always
with
amended
leave of court
without leave
of
court
before
a
responsive
pleading
is
filed.
Amendment
There is no
must
be such
appropriately
requirement
marked.
in
supplemental
pleadings
(Herrera, Vol.
I,
p.
854,
2007 ed.)
EFFECT
OF
AMENDED
PLEADING
Q: What is the effect of an
amended pleading?
A:
An
amended
pleading
supersedes
the
pleading
it
amends. However, admissions in
the superseded pleading can still
be received in evidence against
the pleader. Claims or defenses

alleged
therein
but
not
incorporated or reiterated in the
amended pleading are deemed
waived (Sec. 8, Rule 10).
An amended pleading takes
the place of the original
pleading.
Will
the
court
discard the original pleading?
No, the court will retain the
pleading
for
court
record
purposes. Admissions made in
superseded
pleadings
are
considered
extra-judicial
admissions.
They
can
be
rebutted.
Admissions made in the original
pleadings are still admissions,
but cannot be considered as
judicial admissions. They are
mere extra-judicial admission by
the person making it.
A judicial admission is always
conclusive. It cannot be subject
to rebuttal by evidence.
PERIOD TO FILE PLEADINGS
In the periods for filing of
pleadings,
there
is
nothing
mentioned as to the period as to
when a complaint should be filed.
Nothing is fixed in the rules. The
reason is that the filing of the
complaint is solely dependent
upon the whim of the plaintiff. If
SC does so fix such period, it will
be
invading
the
turf
of
substantive law. If there is a
period fixed as to when that
complaint should be filed, it is
determined by substantive law so
long as the complaint is filed
within the period of prescription.
Prescription is a matter of
substantive law. With respect to
counterclaim, cross-claim or third
party complaint, there is a period
fixed in the Rules. Of particular is
the period for filing a cross-claim
and a compulsory counter-claim.
They must be filed within the
period as that for the filing of an
answer.
Why?
Because even if the cross-claim,
counter-claim
or
third-party
complaint are claim pleadings,
the rules do not allow the
defending party to file an answer
separately from a counterclaim,

cross-claim or a third-party
complaint. Such pleading must
be included in his answer. Thus a
defendant must file an answer
with a counterclaim, cross-claim
or
a
third-party
complaint.
Otherwise, defendant may file a
motion for leave to file an
amended answer with crossclaim, counterclaim, etc. With
respect
to
a
third-party
complaint, defendant would have
to first file a motion for leave to
file a third-party complaint along
with
the
amended
answer,
attaching the amended answer
to the motion.
Because of this rule, the filing of
a
compulsory
counterclaim
should be the same as that
provided for the filing of an
answer (15-30-60, as the case
may be). If there is an answer
filed, but the defendant feels he
should file a counterclaim, he will
have to file a motion for leave to
file an amended answer with
counterclaim (with a copy of the
amended answer attached).
BILL OF PARTICULARS
Motion for leave to file bill of
particulars there is inadequacy
of the allegations contained in
the complaint.
As a rule, Rule 16, as to a bill of
particulars, the inadequacy of
the allegations in a complaint is
not a ground for the filing of a
motion to dismiss the complaint.
Can there be an instance
when a trial court may
dismiss a case on ground of
inadequacy or vagueness in
the
allegations
in
the
complaint?
Yes, by way of exception. The
only instance when a defendant
may file motion to dismiss due to
vagueness or inadequacy of the
allegations in the complaint,
instead of filing motion for bill of
particulars, is when the RTC is
sitting as a commercial court.
In this case, where there is
indefiniteness or vagueness in
the allegations of the complaint,
defendant may file a motion to
dismiss. This is because, in
Law
Review
commercial courts, a motion for

bill of particulars is forbidden as
outlined in the circular for
commercial courts.
In ordinary civil cases, motion for
bill of particulars is available to
both sides. They should be in the
form of a motion.
While a motion for bill of
particulars should comply with
the requisites of a motion, so as
not to be deemed as a useless
piece of paper, when the motion
is submitted to the court, the
court can act upon the motion
right away, without waiting for
the hearing set for the motion,
either granting or denying such
motion.
By its very nature, a motion for a
bill of particulars should be filed
by a defendant before submitting
an answer, or in case of a
plaintiff, a reply. It is useless if a
defendant files a motion for bill
of particulars after he has
already filed his answer. It is
understood that if a defendant
has filed an answer, it would
mean that he has understood
fully the allegations stated in the
complaint.
What is a bill of particulars
and when can it be availed
of?
A: Before responding to a
pleading, a party may move for a
definite statement or for a
bill of particulars of any
matter which is not averred
with sufficient definiteness or
particularity to enable him
properly
to
prepare
his
responsive pleading. If the
pleading is a reply, the motion
must be filed within 10 days
from service thereof(Sec. 1,
Rule12). (2003 Bar Question)
Note: Its purpose is to aid in the
preparation of a responsive
pleading. An action cannot be
dismissed on the ground that the
complaint is vague or definite.
(Galeon v. Galeon, G.R. No. L30380, Feb. 28, 1973).
If denied, the movant should file
the required pleading in the
remaining period, which should
not be more or less than 5 days.
But if the motion is granted, in

case of a defendant, the court
will order the submission of an
amended complaint or a bill of
particulars, which will form part
of the allegations contained in
the complaint.
If the plaintiff does not obey
the order of the court to
submit a bill of particulars,
what is the remedy of the
defendant?
The remedy is either to strike out
the parts of the pleading that are
vague. Or, the more practical
move, the defendant move to
strike out the entire pleading,
wherein the case is dismissed.
The remedy if pleading still
remains vague after bill was
approved and particulars were
provided for:
1. Striking out parts still vague
2. Striking out the entire pleading
(if it is a complaint, the case is
dismissed. If it is the answer
stricken, motion for declaration
of defendant in default.)
If the defendant disobeyed the
court order to amend his answer
or to supply bill of particulars, the
situation will be as if the
defendant has not filed an
answer at all. The next recourse
of the plaintiff is to file a motion
to declare the defendant in
default. This is one instance
where the defendant can be
declared in default even though
he had filed an answer on time.
Therefore, if the defendant did
not amend his answer or file a
bill of particulars, the court can
order the striking out of the
answer and thereafter, upon
motion, the defendant can be
declared in default. This Rule is
found under Rule 29 (Refusal To
Comply
With
Modes
of
Discovery).
SUBSTITUTE
SERVICE
OF
PLEADINGS AND MOTIONS
VS. SUBSTITUTE SERVICE OF
SUMMONS
Filing
and
service
of
pleadings, motions and other
papers in the court:
Substitute
service
of
pleadings, motions and other
papers:
Motion/pleading/other
papers cannot be served in
person or by registered mail.
Movant should submit the motion
and the pleadings with the clerk
of court with proof that personal
and mail service failed. Upon
receipt of court, substituted
service is now completed.
Substitute
service
of
summons: This is resorted to
when there is failure on the part
of sheriff to serve summons in
person upon the defendant after
several attempts and despite
diligent efforts. Sheriff then can
serve the summons at the
resident of the defendant upon a
person of sufficient age of
discretion, or instead of the
residence, at his place of
business, upon a competent
person in charge. The reason for
resorting to such substituted
service must be explained.
If a movant files a motion against
an adverse party, but chooses a
mode of service other than
personal service, he must explain
the reason why. Recently this has
been relaxed by the court,
depending on the nature of the
case or depending on the nature
of the motion to be served or the
pleading filed in the court.
But in case of a motion to
dismiss, the courts are very
strict, personal service is a must.
If it was served by mail, the court
requires submission of proof of
actual delivery/receipt by mail
(the registry return card). If such
proof is not presented, the court
will not act on the motion to
dismiss for failure to observe the
requirements concerning service
of this important motion.
SUMMONS
Q: What is the nature of
summons?
A: It is the writ by which the
defendant is notified of the
action brought against him
(Gomez vs. Court of Appeals,
G.R. No. 127692, March 10,
Law
Review
2004). An important part of that

notice is a direction to the
defendant that he must answer
the complaint within a specified
period, and that unless he so
answers,
plaintiff
will
take
judgment by default and may be
granted the relief applied for
(Sec. 2, Rule 14). (Riano, p. 411 ,
2005 ed.)
Q: What are the purposes of
summons?
A:
1. Actions in personam
a. To acquire jurisdiction
over the person of the
defendant; and
b. To give notice to the
defendant that an action
has been commenced
against him (Umandap v.
Sabio,
Jr.,
G.R.
No.
140244, Aug. 29, 2000)
2. Actions in rem and quasi in
rem not to acquire jurisdiction
over the defendant but mainly to
satisfy
the
constitutional
requirement of due process
(Gomez v. CA, G.R. No. 127692,
Mar. 10, 2004).
What
is
the
effect
of
voluntary appearance before
the court? Explain.
A:
GR: The defendants voluntary
appearance shall be equivalent
to service of summons and the
consequent submission of ones
person to the jurisdiction of the
court (Sec. 20, Rule 14).
Note:
Voluntary
appearance
cures the defect in the service of
summons.
XPN: Special appearance in
court to challenge its jurisdiction
over the person of the defendant
and the inclusion in a motion to
dismiss of other grounds shall
not be deemed a voluntary
appearance (Sec. 20, Rule 14; La
Naval Drug Corp. v. CA, G.R. No.
103200, Aug. 31, 1994).
Sec. 20, Rule 14, RoC
Instances when appearance
of
defendant
is
not
tantamount
to
voluntary
submission to the jurisdiction

of the court:
(a) when defendant files the
necessary pleading;
(b) when defendant files a
motion for reconsideration of the
judgment by default;
(c) when defendant files a
petition
to
set
aside
the
judgment of default;
(d) when the parties jointly
submit a compromise agreement
for approval of the court;
(e) when defendant files an
answer to the contempt charge;
(f) when defendant files a
petition for certiorari without
questioning
the
courts
jurisdiction over his person.
A: This service always requires

permission of the court.
PERSONAL SERVICE
Q: When is personal service
of summons proper?
A: Only if the suit is one strictly
in personam. The service of
summons must be made by
service
in
person
on
the
defendant. This is effected by
handing a copy of the summons
to the defendant in person, or if
he refuses to receive it, by
tendering the copy of the
summons to him (Sec. 6, Rule
14). (Riano, p. 423 , 2005 ed.)
Certiorari,
prohibition
and
mandamus are special civil
actions. They are distinct from
the case from which that order or
decision has originated. But in
Rule 65, the Rules do not allow
the certiorari court or prohibition
court to issue summons to the
defendant.
What
Rule
65
authorizes is to issue a notice to
defendant/respondent requiring
him to submit a comment before
the court. That comment will
enable the court to acquire
jurisdiction over the person of
the respondent.
SUBSTITUTED SERVICE
Q:
When
is
substituted
service of summons proper?
A:
In our jurisdiction, for
substituted service of summons
to be valid, it is necessary to
establish the following:
1. The impossibility of service of
summons in person within a
reasonable time;
2. The efforts exerted to locate
the person to be served; and
3. Service upon a person of
sufficient age and discretion in
the same place as the defendant
or some competent person in
charge of his office or regular
place of business (Sabio, Jr., 339
SCRA 243 [2000]; Hamilton vs.
Levy,
G.R.
No.
139283,
November 15, 2000). (Riano, p.
427 , 2005 ed.)
CONSTRUCTIVE SERVICE (BY
PUBLICATION)
Q: Is leave of court required
in constructive service of
summons?
Summons is the writ available to

a trial court to enable the court
to acquire jurisdiction over the
person
of
the
defendant.
Although not the only writ
available for the court to acquire
the defendant, it is the usual writ
used. The court can acquire
jurisdiction over a defendant by
compulsion, even though it has
not issued a summons. An
example is in the case of a
special civil action under Rule 65,
certiorari,
prohibition
and
mandamus.
There is even that mode of

acquisition where the court need
not do anything, wherein a party
makes a voluntary appearance in
court.
Service of Summons upon a
unregistered/unlicensed
foreign corporation with no
resident
agent
that
transacted in RP:
In a 2011 Circular, summons
upon
a
foreign
private
corporation can be served in four
ways, with leave of court:
1. Personal service of summons
upon
a
foreign
private
corporation not doing business in
RP, with assistance of DFA and
the court of the country where
the foreign corporations main
office is located;
2. Publication of the summons in
the country where the foreign
corporation has its office
Law
Review
3. By facsimile message or by
any electronic device authorized
by the trial court
4. A combination of any one of
the three as authorized by the
court.
With respect to domestic private
corporations,
service
of
summons must be effected as
stated in the Villarosa vs.
Benito case. It must be served
upon the officers of the
corporation
stated
specifically
in
the
RoC
(President, Managing Partner,
GM,
Treasurer,
Corporate
Secretary or in-house counsel
of the corporation).In the
Villarosa case, the branch
manager was the one served
with summons, which is not
among those officers listed in
the Rules. Thus, the trial
court
did
not
acquire
jurisdiction
over
the
corporation. This is still the
rule observed.
EB Villarosa & Partner Co.
Ltd. Vs. Benito
It should be
noted that even
prior
to
the
effectivity of the
1997 Rules of
Civil Procedure,
strict compliance
with the rules has
been
enjoined. In the
case
of
Delta
Motor
Sales
Corporation
vs.
Mangosing, the
Court held:
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Service
of
summons
upon
persons
other
than
those
mentioned
in
Section
13 of
Rule 14 (old rule)
has been held as
improper. Even
under the old
rule,
service
upon a general
manager of a
firms
branch
office has been
held as improper
as
summons
should have been
served at the
firms
principal
office. In
First
Integrated
Bonding & Ins.
Co.,
Inc.
vs.
Dizon, it was held
that the service
of summons on
the
general
manager of the
insurance firms
Cebu branch was
improper; default
order could have
been
obviated
had
the
summons
been
served at the
firms
principal
office.
And in the
case
of
Solar
Team
Entertainment,
Inc.
vs.
Hon.
Helen
Bautista
Ricafort,
et
al. the
Court
succinctly
clarified that, for
the guidance of
the Bench and
Bar,
strictest
compliance with
Section
11 of
Rule 13 of the
1997 Rules of
Civil
Procedure
(on Priorities in
modes of service
and
filing)
is
mandated
and
the Court cannot
rule
otherwise,
lest
we
allow
Law
Review
circumvention of
the innovation by
the 1997 Rules in
order to obviate
delay
in
the
administration of
justice.
Accordingly
, we rule that
the service of
summons upon
the
branch
manager
of
petitioner at its
branch office at
Cagayan
de
Oro, instead of
upon
the
general
manager at its
principal office
at Davao City is
improper. Cons
equently,
the
trial court did
not
acquire
jurisdiction
over the person
of
the
petitioner.
The
fact
that defendant
filed a belated
motion
to
dismiss did not
operate
to
confer
jurisdiction
upon
its
person. There is
no question that
the defendants
voluntary
appearance
in
the
action
is
equivalent
to
service
of
summons. Before
, the rule was
that a party may
challenge
the
jurisdiction of the
court over his
person
by
making a special
appearance
through a motion
to dismiss and if
in
the
same
motion,
the
movant
raised
other grounds or
invoked
affirmative relief
which necessarily
involves
the
exercise of the
jurisdiction of the
court, the party is
deemed to have
submitted
himself to the
jurisdiction of the
court. This
doctrine
has
been abandoned
in the case of La
Naval
Drug
Corporation
vs.
Court of Appeals,
et
al., which
became the basis
of the adoption of
a new provision
in
the
former
Section 23, which
is now Section 20
of Rule 14 of the
1997
Rules. Section
20
now
provides
that
the inclusion
in a motion to
dismiss
of
other grounds
aside from lack
of jurisdiction
over the person
of
the
defendant shall
not be deemed
a
voluntary
appearance.
The
emplacement of
this rule clearly
underscores the
purpose
to
enforce
strict
enforcement
of
the
rules
on
summons. Acco
rdingly,
the
filing
of
a
motion
to
dismiss,
whether or not
belatedly filed
by
the
defendant, his
authorized
agent
or
attorney,
precisely
objecting
to
the jurisdiction
of
the court
over the person
of
the
defendant can
by no means be
deemed
a
submission to
the jurisdiction
of
the
court. There
being no proper
service
of
summons,
the
trial court cannot
take cognizance
of a case for lack
of
jurisdiction
over the person
of
the
defendant. Any
proceeding
undertaken
by
the trial court will
consequently be
null and void.
Service of summons in case

of a partnership:
What the rules require is that
summons must be made upon
a GM or managing partner as
the case may be.
If there are 4 partners in the
partnership, service upon any
of the partners will be a valid
service
of
summons.
All
partners under the NCC are
considered
as
managing
partners. Since all partners
under the NCC are presumed
to be managing partners,
service upon anyone will be a
valid service of summons.
It is in the acquisition of
jurisdiction
over
natural
persons that there is conflict
in jurisprudence.
2006 case
Defendant owed money to a
corporation. Defendant lived
in a gated subdivision. The
sheriff was not allowed inside
the subdivision. What the
sheriff did was to leave a
Law
Review
copy
of
the
summons,
together with the complaint,
with the guards. Is there
valid service of summons?
To be literal, no, there was no
valid substituted service of
summons. If the summons and
the complaint were left only with
the security guard, it did not
comply with leaving at the place
of residence of the defendant
with some person of suitable age
and discretion then residing
therein. The guards do not
actually reside in the place of
residence of the defendant.
The SC stated that the meaning
of sufficient age and discretion
does not mean that the person to
be served could be a minor. This
person means that this person
should mean a person at least
18 years of age with a
relationship
involving
confidence
with
the
defendant. So, if the service of
summons was given to a person
who was only a visitor of the
defendant, that will not comply
with this requirement.
In this 2006 case, the SC became
very liberal. Although it was clear
sheriff did not satisfy the
requirements of a valid service of
summons, the SC ruled that the
trial court did acquire jurisdiction
over the person of the defendant.
However, in 2009, the SC
decided a case involving the
validity of a substituted service
of summons not in accordance
with the Rules. If substitute
service of summons is not in
accordance with Sec. 7 of Rule
14, the service is invalid, the
court
does
not
acquire
jurisdiction over the defendant.
Any proceedings taken by the
court are invalidated.
Concentrate on Sec. 14, 15
and 16 Rule 14
SEC.
14.
Service
upon
defendant
whose identity
or whereabouts
are unknown.
In
any
action
where
the
defendant
is
designated as an
unknown owner,
or the like, or
whenever
his
whereabouts are
unknown
and
cannot
be
ascertained
by
diligent inquiry,
service may, by
leave of court, be
effected
upon
him
by
publication in a
newspaper
of
general
circulation and in
such places and
for such time as
the court may
order. (16a)
SEC.
15.
Extraterritorial
service.When
the
defendant
does not reside
and is not found
in the Philippines,
and the action
affects
the
personal
status
of the plaintiff or
relates to, or the
subject of which
is,
property
within
the
Philippines,
in
which
the
defendant has or
claims a lien or
interest, actual or
contingent; or in
which the relief
demanded
consists, wholly
or in part, in
excluding
the
defendant
from
any
interest
therein, or the
property of the
defendant
has
been
attached
within
the
Philippines,
service may, by
leave of court, be
effected out of
the Philippines by
personal service
as under section
6;
or
by
publication in a
newspaper
of
general
circulation
in
such places and
for such time as
the court may
order, in which
case a copy of
the
summons
and order of the
court shall be
sent
by
registered mail to
the last known
address of the
defendant, or in
any
other
manner the court
may
deem
sufficient.
Any
order
granting
such leave shall
specify
a
reasonable time,
which shall not
be less than sixty
(60) days after
notice,
within
which
the
defendant must
answer. (17a)
SEC.
16.
Residents
temporarily out
of
the
Philippines.
When any action
is
commenced
against
a
defendant
who
ordinarily resides
within
the
Philippines,
but
who
is
temporarily
out
of
it,
service
may, by leave of
court, be also
effected out of
the
Philippines,
as
under
the
preceding
section.
Former Procedure
Citizens Surety vs. Herrera
(Service of summons for an
Action in personam publication
Law
Review
of summons with preliminary

attachment of properties)
Sheriff stated that the summons
could not be served personally or
by substituted service. The
plaintiff filed an ex parte motion
to
issue
a
summons
by
publication. The court granted it.
Plaintiff caused the publication of
the summons. After 60 days,
there
was
no
responsive
pleading. Plaintiff filed a motion
to declare defendant in default.
During the hearing of the motion,
plaintiff presented the court the
order authorizing publication and
affidavit of the publisher. Plaintiff
expected the court to grant his
motion. The court did not, but
instead asked the plaintiff to
explain why the complaint should
not be dismissed. The court
stated that publication did not
enable the court to acquire
jurisdiction of the court. The
requirement left out was a
constitutional requirement of due
process, that the action was
converted from one in personam
to that one in rem or quasi-in
rem. This could be done, after
causing the publication of the
service of summons, by applying
with the court for an order for
preliminary
attachment
of
defendants personal properties
in order to acquire jurisdiction
over the person over the
defendant.
This conclusion by the plaintiff,
aside from Rule 14 Sec. 15, this
is supported by Rule 57 Sec. 1.
Rule
57
SECTION
1.
Grounds upon
which
attachment
may issue.At
the
commencement
of the action or
at
any
time
before entry of
judgment,
a
plaintiff or any
proper
party
may have the
property of the
adverse party
attached
as
security for the
satisfaction of
any
judgment
that may be
recovered
in
the
following
cases:
o
t
h
e
r
t
h
a
n
m
o
r
al
a
n
d
e
x
e
m
pl
a
r
y,
o
n
a
c
a
u
s
e
o
f
a
ct
io
n
a
ri
si
n
g
fr
o
m
l
a
w
,
c
o
n
tr
a
ct
,
q
u
a
si
c
(
a
)
In
a
n
a
ct
io
n
f
o
r
t
h
e
r
e
c
o
v
e
r
y
o
f
a
s
p
e
ci
fi
e
d
a
m
o
u
n
t
o
f
m
o
n
e
y
o
r
d
a
m
a
g
e
s,
Law
Review
o
n
tr
a
ct
,
d
el
ic
t
o
r
q
u
a
si
d
el
ic
t
a
g
ai
n
st
a
p
a
rt
y
w
h
o
is
a
b
o
u
t
t
o
d
e
p
a
rt
fr
o
m
t
h
e
P
hi
li
p
pi
n
e
s
w
it
h
in
t
e
n
t
t
o
d
e
fr
a
u
d
hi
s
cr
e
di
t
o
rs
;
u
d
ul
e
n
tl
y
m
is
a
p
pl
ie
d
o
r
c
o
n
v
e
rt
e
d
t
o
hi
s
o
w
n
u
s
e
b
y
a
p
u
bl
ic
o
f
fi
c
e
r,
o
r
a
n
o
f
fi
c
e
r
o
f
a
c
o
r
(
b
)
In
a
n
a
ct
io
n
f
o
r
m
o
n
e
y
o
r
p
r
o
p
e
rt
y
e
m
b
e
z
zl
e
d
o
r
fr
a
Law
Review
p
o
r
a
ti
o
n,
o
r
a
n
a
tt
o
r
n
e
y,
f
a
ct
o
r,
b
r
o
k
e
r,
a
g
e
n
t,
o
r
cl
e
r
k,
in
t
h
e
c
o
u
rs
e
o
f
hi
s
e
m
pl
o
y
m
e
n
t
a
s
s
u
c
h,
o
r
b
y
a
n
y
o
t
h
e
r
p
e
rs
o
n
in
a
fi
d
u
ci
a
r
y
c
a
p
a
ci
t
y,
o
r
f
o
r
a
w
ill
f
ul
vi
ol
a
ti
o
n
o
f
d
u
t
y;
In
a
n
a
ct
io
n
t
o
r
e
c
o
v
e
r
t
h
e
p
o
s
s
e
s
si
o
n
o
f
p
r
o
p
e
rt
y
u
nj
u
st
ly
o
r
fr
a
u
d
ul
e
n
tl
y
t
a
k
e
n,
d
e
t
ai
n
(c
)
Law
Review
e
d
o
r
c
o
n
v
e
rt
e
d,
w
h
e
n
t
h
e
p
r
o
p
e
rt
y,
o
r
a
n
y
p
a
rt
t
h
e
r
e
o
f,
h
a
s
b
e
e
n
c
o
n
c
e
al
e
d,
r
e
m
o
v
e
d,
o
r
di
s
p
o
s
e
d
o
f
t
o
p
r
e
v
e
n
t
it
s
b
ei
n
g
f
o
u
n
d
o
r
t
a
k
e
n
b
y
t
h
e
a
p
pl
ic
a
n
t
o
r
a
n
a
u
t
h
o
ri
z
e
d
p
e
rs
o
n
;
(
d
)
In
a
n
a
ct
io
n
a
g
ai
n
st
a
p
a
rt
y
w
h
o
h
a
s
b
e
e
n
g
ui
lt
y
o
f
a
fr
a
u
d
in
c
o
n
tr
a
ct
in
g
t
h
e
d
e
b
Law
Review
t
o
r
in
c
u
rr
in
g
t
h
e
o
bl
ig
a
ti
o
n
u
p
o
n
w
hi
c
h
t
h
e
a
ct
io
n
is
b
r
o
u
g
h
t,
o
r
in
t
h
e
p
e
rf
o
r
m
a
n
c
e
t
h
e
r
e
o
f;
t
t
o
d
o
s
o,
w
it
h
in
t
e
n
t
t
o
d
e
fr
a
u
d
hi
s
cr
e
di
t
o
rs
;
o
r
(
e
)
In
a
n
a
ct
io
n
a
g
ai
n
st
a
p
a
rt
y
w
h
o
h
a
s
r
e
m
o
v
e
d
o
r
di
s
p
o
s
e
d
o
f
hi
s
p
r
o
p
e
rt
y,
o
r
is
a
b
o
u
(f
)
I
n
a
n
a
c
ti
o
n
a
g
a
i
n
s
t
a
p
a
r
t
y
w
h
o
d
Law
Review
o
e
s
n
o
t
r
e
si
d
e
a
n
d
is
n
o
t
f
o
u
n
d
i
n
t
h
e
P
h
il
i
p
p
i
n
e
s
,
o
r
o
n
w
h
o
m
s
u
m
m
o
n
s
m
a
y
b
e
s
e
r
v
e
d
b
y
p
u
b
li
c
a
ti
o
n
.
(
1
a
)
The court interpreted these
provisions to mean that if there is
publication of the summons,
there should be a proceeding
accompanying
preliminary
attachment over the personal
properties of the defendant.
Otherwise, the court will be
unable to acquire jurisdiction
If we are not able to convert the
action in personam to that in
rem, the court will not be able to
acquire jurisdiction over the
person of the defendant, and
therefore, the court will not have
authority at all to entertain the
case.
Note: If the court still did not
still acquire jurisdiction over
the defendant despite the
attachment of the personal
properties of the defendant,
then
the
case
will
be
archived. There can be no
dismissal of the case. No
prescription will run, since
the complaint is archived.
Citizens Surety
vs.
Herrera
Digest :
Facts:
Citizens
Surety
and Insurance Co
(Citizens) alleged
that
at
the
request
of
Santiago
Dacanay,
it
issued 2 surety
bonds
to
guarantee
payment of P5K
promissory notes
in favor Gregorio
Fajardo
and
Manufacturers
Bank & Trust Co
respectively.
As
security,
the
Santiago
and
Josefina Dacanay
executed
an
Indemnity
Agreement
to
jointly indemnify
Citizens
for
losses, costs and
expenses
(with
12%
annual
interest) and a
REM
over
a
parcel of land in
Baguio.
The
Dacanays failed
to
pay
the
promissory notes
compelling
Citizens to pay.
The
Dacanays
failed
to
reimburse
Citizens however,
forcing the latter
to
cause
the
extra-judicial
foreclosure of the
mortgage and file
a case to recover
the
unsatisfied
balance.
At
petitioners
request,
the
respondent Judge
caused summons
to be made by
publication in the
Philippines
Herald.
But
despite
such
publication
and
deposit of copy
with the Manila
post office, the
defendant did not
appear within 60
Law
Review
days from the

last publication.
Plaintiff
sought
the defendants to
be declared in
default, but the
Judge eventually
dismissed
the
case, the suit
being
in
personam
and
the
defendants
not
having
appeared.
Issue:
W/N
summons
made
by
publication
is
sufficient for the
court to acquire
jurisdiction
jurisdiction
over
said
defendants.
The
proper
recourse
for
the creditor is
to
locate
properties, real
or personal, of
the
resident
defendant
debtor
with
unknown
address
and
cause them to
be attached, in
which case, the
attachment
converts
the
action into a
proceeding
in
rem or quasi in
rem and the
summons
by
publication
may be valid.
Held:
No. In an action
strictly
in
personam,
personal
service
of
summons,
within
the
forum,
is
essential to the
acquisition
of
jurisdiction
over the person
of
the
defendant, who
does
not
voluntarily
submit himself to
the authority of
the
court.
In
other
words, summon
s
by
publication
cannot
consistently
with the due
process clause
in the Bill of
Rights confer
upon the court
Given the skill

of debtors to
conceal
their
properties
however,
the
decision of the
respondent
Judge
should
be set aside
and
held
pending in the
archives
until
petitioner
tracks
down
the
whereabouts of
the
defendants
person
or
properties.
In 2008, Santos vs. PNOC was

decided, which changed the
principles
held
under
Citizens Surety vs. Herrera.
Santos vs. PNOC
Defendant
in an Action in personam can be
subject to courts jurisdiction
(2008)
The defendant did not file an
answer within the reglementary
period. The lawyer of the plaintiff
did not move for publication of
summons, but filed only a motion
to allow him to present evidence
ex parte. The judge rendered a
decision in favor of the plaintiff.
When defendant learned of the
decision,
he
moved
for
reconsideration
thereof.
The
Court then gained jurisdiction
over the person of the defendant
mad a voluntary appearance
when the defendant filed his
motion for reconsideration.
Santos vs. PNOC Digest
Facts:
PNOC
Exploration
Corporation,
respondent, filed
a complaint for a
sum of money
against petitioner
Pedro Santos Jr.
in the RTC of
Pasig.
The
amount sought to
be collected was
the
petitioners
unpaid
balance
of the car loan
advanced to him
by
respondent
when he was still
a member of its
board
of
directors.
Personal service
of summons were
made
to
petitioner
but
failed
because
the latter cannot
be located in his
last
known
address despite
earnest efforts to
do
so.
Subsequently, on
respondents
motion, the trial
court
allowed
service
of
Law
Review
summons
by
publication.
Respondent
caused
the
publication of the
summons
in
Remate,
a
newspaper
of
general
circulation in the
Philippines.
Thereafter,
respondent
submitted
the
affidavit
of
publication
and
the affidavit of
service
of
respondents
employee to the
effect that he
sent a copy of
the summons by
registered mail to
petitioners last
known address.
Petitioner
still
failed to answer
within
the
prescribed period
despite
the
publication
of
summons.
Hence,
respondent filed
a motion for the
reception of its
evidence
ex
parte. Trial court
granted
said
motion
and
proceeded
with
the
ex
parte
presentation and
formal offer of its
evidence.
Petitioner filed an
Omnibus Motion
for
Reconsideration
and
to
Admit
Attached Answer,
alleging that the
affidavit
of
service
submitted
by
respondent failed
to comply with
Section 19, Rule
14 of the Rules of
Court as it was
not executed by
the clerk of court.
Trial court denied
the said motion
and held that the
rules
did
not
require
such
execution
with
the clerk of court.
It also denied the
motion to admit
petitioners
answer because
the same was
filed way beyond
the reglementary
period.
Petitioner
appeals to the CA
via a petition for
certiorari
but
failed and even
sustained
the
trial
courts
decision
and
ordered
the
former to pay the
amount
plus
legal interest and
cost
of
suit.
Hence,
this
petition.
Issues:
(1) Whether or
not there is lack
of
jurisdiction
over
the
petitioner due to
improper service
of summons.
(2) Whether or
not the rule on
service
by
publication under
Section 14, Rule
14 of the Rules of
Court
applies
only to actions in
rem, not actions
in personam.
(3) Whether or
not the affidavit
of service of the
copy
of
the
summons should
have
been
prepared by the
clerk of court and
not respondents
messenger.
Held:
(1) Section 14,
Rule
14
provides
that
in any action
where
the
defendant
is
designated as
an
unknown
owner or the
like or when 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
times as the
court
may
order.
Since
petitioner could
not be personally
served
with
summons despite
diligent efforts to
locate
his
whereabouts,
respondent
sought and was
granted leave of
court to effect
the service of
summons
upon
him
by
publication in a
newspaper
of
general
circulation. Thus,
petitioner
was
proper
served
with summons by
publication
and
that
there
is
jurisdiction over
his person.
(2)
The
in
rem/in
personam
distinction was
Law
Review
significant
under the old
rule because it
was silent as to
the
kind
of
action to which
the rule was
applicable but
this has been
changed,
it
now applies to
any action. The
present
rule
expressly states
that it applies 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. Hence,
the
petitioners
contention
that
the
complaint
filed against him
is not covered by
the
said
rule
because
the
action
for
recovery of sum
of money is an
action
in
personam is not
applicable
anymore.
(3) The service
of summons by
publication
is
complemented
by service of
summons
by
registered mail
to defendants
last
known
address.
This
complementary
service
is
evidenced
by
an
affidavit
showing
the
deposit of a
copy
of
the
summons and
order
for
publication
in
the post office,
postage
for
prepaid,
directed to the
defendant
by
registered mail
to
his
last
known
address. The
rules, however,
do not require
that
the
affidavit
of
complementary
service
be
executed
by
the
clerk
of
court.
While
the trial court
ordinarily does
the mailing of
copies of its
orders
and
processes, the
duty to make
the
complementary
service
by
registered mail
is imposed on
the party who
resorts
to
service
by
publication.
Since 2008, the lawyers have
made use of Santos vs. PNOC as
the authority to convince a trial
court that there is no need for a
publication of summons for the
issuance of a writ of preliminary
attachment before the court
could acquire jurisdiction over
the person of the defendant.
In 2010, SC resolved another
case, Palma vs. Galvez. In the
case of Palma vs. Galvez, the SC
held that we should literally
apply what the Rules provides,
particularly Section 16 of Rule
14. If you read Section 16, the
defendant is a resident of RP
temporarily out of RP. In relation
to Section 14, if the whereabouts
of the defendant is unknown,
there could be publication of
summons, and that would enable
the court to acquire jurisdiction
Palma vs. Galvez (When the

whereabouts of defendant is
unknown, there is no need
for publication of summons.)
Reiterates Santos vs. PNOC
there is no need , under
Sections 14 to 16 in Rule 14,
for the conversion of an
action in personam to that in
rem before a court could
person of the defendant.
Now
on
the
merits, the issue
for resolution is
whether
there
was
a
valid
service
of
summons
on
private
respondent.
In
civil
cases, the trial
court
acquires
jurisdiction over
the person of the
defendant either
by the service of
summons or by
the
latters
voluntary
appearance and
submission to the
authority of the
former. Private
respondent was a
Filipino resident
who
was
temporarily
out
of
the Philippines at
the time of the
service
of
summons; thus,
service
of
summons on her
is governed by
Section 16, Rule
14 of the Rules of
Court,
which
provides:
S
e
c.
Law
Review
1
6.
R
e
si
d
e
n
t
s
t
e
m
p
o
r
a
ri
l
y
o
u
t
o
f
t
h
e
P
h
ili
p
p
i
n
e
s.
W
h
e
n
a
n
a
ct
io
n
is
c
o
m
m
e
n
c
e
d
a
g
ai
n
st
a
d
e
f
e
n
d
a
n
t
w
h
o
o
r
di
n
a
ri
ly
r
e
si
d
e
s
w
it
hi
n
t
h
e
P
hi
li
p
pi
n
e
s,
b
u
t
w
h
o
is
t
e
m
p
o
r
a
ri
ly
o
u
t
o
f
it
,
s
e
r
vi
c
e
m
a
y,
b
y
le
a
v
e
o
f
c
o
u
rt
,
b
e
a
ls
o
e
ff
e
ct
e
d
o
u
t
o
f
t
h
e
P
hi
li
p
pi
n
e
s,
a
s
u
n
d
e
r
t
h
e
p
r
e
Law
Review
c
e
di
n
g
s
e
ct
io
n.
(
E
m
p
h
a
si
s
s
u
p
pl
ie
d
)
The
preceding section
referred to in the
above provision
is Section 15,
which speaks of
extraterritorial
service, thus:
S
E
C
.
1
5.
E
x
tr
a
t
e
rr
it
o
ri
a
l
s
e
r
v
ic
e.
W
h
e
n
t
h
e
d
e
f
e
n
d
a
n
t
d
o
e
s
n
o
t
r
e
si
d
e
a
n
d
is
n
o
t
f
o
u
n
d
in
t
h
e
P
hi
li
p
pi
n
e
s,
a
n
d
t
h
e
a
ct
io
n
a
ff
e
ct
s
t
h
e
p
e
rs
o
n
al
st
a
t
u
s
o
f
t
h
e
pl
ai
n
ti
ff
o
r
r
el
a
t
e
s
t
o,
o
r
t
h
e
s
u
bj
e
ct
o
f
w
hi
c
h
is
,
p
r
o
p
e
rt
y
w
it
hi
Law
Review
n
t
h
e
P
hi
li
p
pi
n
e
s,
in
w
hi
c
h
t
h
e
d
e
f
e
n
d
a
n
t
h
a
s
o
r
cl
ai
m
s
a
li
e
n
o
r
in
t
e
r
e
st
,
a
ct
u
al
o
r
c
o
n
ti
n
g
e
n
t,
o
r
in
w
hi
c
h
t
h
e
r
el
ie
f
d
e
m
a
n
d
e
d
c
o
n
si
st
s,
w
h
ol
ly
o
r
in
p
a
rt
,
in
e
x
cl
u
di
n
g
t
h
e
d
e
f
e
n
d
a
n
t
fr
o
m
a
n
y
in
t
e
r
e
st
t
h
e
r
ei
n,
o
r
t
h
e
p
r
o
p
e
rt
y
o
f
t
h
e
d
e
f
e
n
d
a
n
t
h
a
s
b
e
e
n
a
tt
a
c
h
e
d
w
it
hi
n
t
h
Law
Review
e
P
hi
li
p
pi
n
e
s,
s
e
r
vi
c
e
m
a
y,
b
y
le
a
v
e
o
f
c
o
u
rt
,
b
e
e
ff
e
ct
e
d
o
u
t
o
f
t
h
e
P
hi
li
p
pi
n
e
s
b
y
p
e
rs
o
n
al
s
e
r
vi
c
e
a
s
u
n
d
e
r
s
e
ct
io
n
6
;
o
r
b
y
p
u
bl
ic
a
ti
o
n
in
a
n
e
w
s
p
a
p
e
r
o
f
g
e
n
e
r
al
ci
rc
ul
a
ti
o
n
in
s
u
c
h
pl
a
c
e
s
a
n
d
f
o
r
s
u
c
h
ti
m
e
a
s
t
h
e
c
o
u
rt
m
a
y
o
r
d
e
r,
in
w
hi
c
h
c
a
s
e
a
c
o
p
y
o
f
t
h
e
s
u
m
m
o
n
s
a
n
Law
Review
d
o
r
d
e
r
o
f
t
h
e
c
o
u
rt
s
h
al
l
b
e
s
e
n
t
b
y
r
e
gi
st
e
r
e
d
m
ai
l
t
o
t
h
e
la
st
k
n
o
w
n
a
d
d
r
e
s
s
o
f
t
h
e
d
e
f
e
n
d
a
n
t,
o
r
in
a
n
y
o
t
h
e
r
m
a
n
n
e
r
t
h
e
c
o
u
rt
m
a
y
d
e
e
m
s
u
f
fi
ci
e
n
t.
s
u
c
h
le
a
v
e
s
h
al
l
s
p
e
ci
fy
a
r
e
a
s
o
n
a
bl
e
ti
m
e,
w
hi
c
h
s
h
al
l
n
o
t
b
e
le
s
s
t
h
a
n
si
x
t
y
(
6
0
)
d
a
y
s
af
A
n
y
o
r
d
e
r
g
r
a
n
ti
n
g
Law
Review
t
e
r
n
o
ti
c
e,
w
it
hi
n
w
hi
c
h
t
h
e
d
e
f
e
n
d
a
n
t
m
u
st
a
n
s
w
er
.
The RTC
found that since
private
respondent was
abroad at the
time
of
the
service
of
summons,
she
was a resident
who
was
temporarily
out
of the country;
thus, service of
summons may be
made only by
publication.
We
not agree.
do
In Mont
efalcon
v.
Vasquez, we
said
that
because
Section
16
of Rule
14
uses the words
may
and
also, it is not
mandatory.
Other methods
of service of
summons
allowed under
the Rules may
also be availed
of
by
the
serving officer
on
a
defendantresident who is
temporarily out
of
the Philippines.
Thus,
if
a
resident
defendant
is
temporarily out
of the country,
any
of
the
following
modes
of
service may be
resorted to: (1)
substituted
service
set
forth in section
7 ( formerly
Section 8), Rule
14; (2)
personal
service outside
the
country,
with leave of
court;
(3)
service
by
publication,
also with leave
of court; or (4)
in any other
manner
the
court
may
deem
sufficient.
personam agai
nst residents of
the Philippines
temporarily
absent
therefrom
is
the
normal
method
of
service
of
summons that
will
confer
jurisdiction on
the court over
such
defendant. In
the same case,
we expounded on
the rationale in
providing
for
substituted
service as the
normal mode of
service
for
residents
temporarily
out
of the Philippines.
x
x
x
A
m
a
n
t
e
m
p
o
r
a
ri
ly
a
b
s
e
n
t
fr
o
m
t
hi
s
c
o
u
n
tr
y
le
a
In Montal
ban
v.
Maximo, we held
that substituted
service
of
summons
under
the
present Section
7, Rule 14 of
the Rules of
Court
in
a
suit in
Law
Review
v
e
s
a
d
e
fi
ni
t
e
pl
a
c
e
o
f
r
e
si
d
e
n
c
e,
a
d
w
el
li
n
g
w
h
e
r
e
h
e
li
v
e
s,
a
lo
c
al
b
a
s
e,
s
o
t
o
s
p
e
a
k,
t
o
w
hi
c
h
a
n
y
in
q
ui
r
y
a
b
o
u
t
hi
m
m
p
o
r
a
ri
l
y
a
b
s
e
n
t
s
h
i
m
s
e
lf
,
h
e
l
e
a
v
e
s
h
is
a
ff
a
ir
s
i
n
t
h
e
h
a
n
d
s
o
f
o
n
e
w
h
o
m
a
y
b
e
r
e
a
m
a
y
b
e
di
r
e
ct
e
d
a
n
d
w
h
e
r
e
h
e
is
b
o
u
n
d
t
o
r
e
t
u
r
n.
W
h
e
r
e
o
n
e
t
e
Law
Review
s
o
n
a
b
l
y
e
x
p
e
c
t
e
d
t
o
a
c
t
i
n
h
is
p
l
a
c
e
a
n
d
s
t
e
a
d
;
t
o
d
o
a
ll
t
h
a
t
is
n
e
c
e
s
s
a
r
y
t
o
p
r
o
t
e
c
t
h
is
i
n
t
e
r
e
s
t
s
;
a
n
d
t
o
c
o
m
m
u
n
ic
a
t
e
w
it
h
h
i
m
f
r
o
m
t
i
m
e
t
o
ti
m
e
a
n
y
i
n
ci
d
e
n
t
o
f
i
m
p
o
r
t
a
n
c
e
t
h
a
t
m
a
y
a
ff
e
c
t
h
i
m
o
r
h
is
b
u
si
n
e
s
s
o
r
h
is
a
ff
a
ir
s.
It
is
u
s
u
al
f
o
r
s
u
c
h
a
m
a
n
t
Law
Review
o
le
a
v
e
a
t
hi
s
h
o
m
e
o
r
w
it
h
hi
s
b
u
si
n
e
s
s
a
s
s
o
ci
a
t
e
s
in
f
o
r
m
a
ti
o
n
a
s
t
o
w
h
e
r
e
h
e
m
a
y
b
e
c
o
n
t
a
ct
e
d
in
t
h
e
e
v
e
n
t
a
q
u
e
st
io
n
t
h
a
t
a
ff
e
ct
s
hi
m
c
r
o
p
s
u
p.
If
h
e
d
o
e
s
n
o
t
d
o
w
h
a
t
is
e
x
p
e
ct
e
d
o
f
hi
m
,
a
n
d
a
c
a
s
e
c
o
m
e
s
u
p
in
c
o
u
rt
a
g
ai
n
st
hi
m
,
h
e
c
a
n
n
o
t
ju
st
r
ai
s
e
hi
s
v
oi
c
e
a
n
d
s
a
y
t
h
a
Law
Review
t
h
e
is
n
o
t
s
u
bj
e
ct
t
o
t
h
e
p
r
o
c
e
s
s
e
s
o
f
o
u
r
c
o
u
rt
s.
H
e
c
a
n
n
o
t
st
o
p
a
s
ui
t
fr
o
m
b
ei
n
g
fil
e
d
a
g
ai
n
st
hi
m
u
p
o
n
a
cl
ai
m
t
h
a
t
h
e
c
a
n
n
o
t
b
e
s
u
m
m
o
n
e
d
a
t
hi
s
d
w
el
li
n
g
h
o
u
s
e
o
r
r
e
si
d
e
n
c
e
o
r
hi
s
o
f
fi
c
e
o
r
r
e
g
ul
a
r
pl
a
c
e
o
f
b
u
si
n
e
s
s.
N
o
t
t
h
a
t
h
e
c
a
n
n
o
t
b
e
r
e
a
c
h
e
d
w
it
hi
n
a
r
e
a
s
o
Law
Review
n
a
bl
e
ti
m
e
t
o
e
n
a
bl
e
hi
m
t
o
c
o
n
t
e
st
a
s
ui
t
a
g
ai
n
st
hi
m
.
T
h
e
r
e
a
r
e
n
o
w
a
d
v
a
n
c
e
d
f
a
ci
lit
ie
s
o
f
c
o
m
m
u
ni
c
a
ti
o
n.
L
o
n
g
di
st
a
n
c
e
t
el
e
p
h
o
n
e
c
al
ls
a
n
d
c
a
bl
e
g
r
a
m
s
m
a
k
e
it
e
a
s
y
f
o
r
o
n
e
h
e
le
ft
b
e
hi
n
d
t
o
c
o
m
m
u
ni
c
a
t
e
w
it
h
hi
m
.
Consideri
ng that private
respondent was
temporarily
out
of the country,
the
summons
and
complaint
may be validly
served on her
through
substituted
service
under
Section 7, Rule
14 of the Rules of
Court
which
reads:
S
E
C
.
7
.
S
u
b
s
ti
t
u
t
e
d
s
e
r
v
ic
e.
Law
Review

I
f,
f
o
r
ju
st
ifi
a
bl
e
c
a
u
s
e
s,
t
h
e
d
e
f
e
n
d
a
n
t
c
a
n
n
o
t
b
e
s
e
r
v
e
d
w
it
hi
n
a
r
e
a
s
o
n
a
bl
e
ti
m
e
a
s
p
r
o
vi
d
e
d
in
t
h
e
p
r
e
c
e
di
n
g
s
e
ct
io
n,
s
e
r
vi
c
e
m
a
y
b
e
e
ff
e
ct
e
d
(
a
)
b
y
le
a
vi
n
g
c
o
pi
e
s
o
f
t
h
e
s
u
m
m
o
n
s
a
t
t
h
e
d
e
f
e
n
d
a
n
t
s
r
e
si
d
e
n
c
e
w
it
h
s
o
m
e
p
e
rs
o
n
o
f
s
ui
t
a
bl
e
a
g
e
a
n
d
di
s
cr
e
ti
o
n
t
h
Law
Review
e
n
r
e
si
di
n
g
t
h
e
r
ei
n,
o
r
(
b
)
b
y
le
a
vi
n
g
t
h
e
c
o
pi
e
s
a
t
d
e
f
e
n
d
a
n
t
s
o
f
fi
c
e
o
r
r
e
g
ul
a
r
pl
a
c
e
o
f
b
u
si
n
e
s
s
w
it
h
s
o
m
e
c
o
m
p
e
t
e
n
t
p
e
rs
o
n
in
c
h
a
r
g
e
t
h
e
r
e
of
.
We
have
held
that
a
dwelling, house
or
residence
refers to the
place
where
the
person
named in the
summons
is
living at the
time when the
service
is
made,
even
though he may
be temporarily
out
of
the
country at the
time. It is, thus,
the service of the

summons
intended for the
defendant
that
must be left with
the person of
suitable age and
discretion
residing in the
house
of
the
defendant. Com
pliance with the
rules
regarding
the service of
summons is as
important as the
issue
of
due
process as that of
jurisdiction.
Section 7
also designates
the
persons
with
whom
copies of the
process may be
left. The rule
presupposes
that
such
a
relation
of
confidence
exists between
the person with
whom the copy
is left and the
defendant and,
therefore,
assumes
that
such
person
will deliver the
process
to
defendant or in
some way give
him
notice
thereof.
In this case,
the
Sheriff's
Return
stated
that
private
respondent was
out
of
the
country; thus, the
service
of
summons
was
made
at
her
residence
with
her
husband,
Alfredo P. Agudo,
acknowledging
receipt
thereof.
Alfredo
was
presumably
of
Law
Review
suitable age and

discretion,
who
was residing in
that place and,
therefore,
was
competent
to
receive
the
summons
on
private
respondent's
behalf.
Notably,
private
respondent
makes no issue
as to the fact
that the place
where
the
summons was
served was her
residence,
though she was
temporarily out
of the country
at that time,
and
that
Alfredo is her
husband.
In
fact,
in
the
notice
of
appearance
and motion for
extension
of
time
to
file
answer
submitted
by
private
respondent's
counsel,
he
confirmed the
Sheriff's Return
by stating that
private
respondent
was out of the
country
and
that his service
was
engaged
by
respondent's
husband. In
his motion for
another
extension
of
time
to
file
answer, private
respondent's
counsel stated
that a draft of
the answer had
already
been
prepared,
which would be
submitted
to
private
respondent,
who
was
in
Ireland for her
clarification
and/or
verification
before
the
Philippine
Consulate
there. These
statements
establish
the
fact
that
private
respondent had
knowledge
of
the case filed
against
her,
and that her
husband
had
told her about
the
case
as
Alfredo
even
engaged
the
services of her
counsel.
In addition,
we agree with
petitioner
that
the
RTC
had indeed
acquired
jurisdiction
over the person
of
private
respondent
when
the
latter's counsel
entered
his
appearance on
private
respondent's
behalf, without
qualification
and
without
questioning the
propriety of the
service
of
summons, and
even filed two
Motions
for
Extension
of
Time
to
File
Answer.
In
effect, private
respondent,
through
counsel,
had
already
invoked
the
RTCs
jurisdiction
over
her
person
by
praying
that
the motions for
extension
of
time
to
file
answer
be
granted.
We
have held that
the
filing
of
motions
seeking
affirmative
relief, such as,
to
admit
answer,
for
additional time
to file answer,
for
reconsideration
of
a
default
judgment, and
to lift order of
default
with
motion
for
reconsideration
,
are
considered
voluntary
submission to
the jurisdiction
of
the
court. When
private
respondent
earlier
invoked
the jurisdiction of
the RTC to secure
affirmative relief
in her motions for
additional time to
file answer, she
voluntarily
submitted
to
the jurisdiction
of the RTC and
is
thereby
estopped from
asserting
otherwise.
Considering
the foregoing, we
find that the RTC
committed
a
grave abuse of
discretion
amounting
to
excess
of
jurisdiction
in
Law
Review
issuing
its
assailed Orders.
NOTE:
It would seem that the
principle adhered to for a
long time since Citizens
Surety vs. Herrera is no
longer
binding
upon
plaintiffs. They can ignore
the requirement of prior
attachment
of
personal
properties of the defendant
before
availing
of
a
publication of summons to
enable a court to acquire
jurisdiction over the person
of the defendant. Read over
Sections 14, 15 and 16,
correlating them with the
cases of Palma vs. Sanchez.
There is really no need for an
action in personam to be
converted to an action in rem
or quasi in rem, via a writ of
preliminary attachment, in
order for a court to be able to
What is the advantage of
using
these
principle
in
Citizens Surety vs. Herrera?
(Actions in rem that is in
personam at the same time)
The advantage is that if the
plaintiff
first
moves
for
preliminary
attachment
over
properties of the defendant and
then later ask the court for
publication of summons, when
compared to just the plaintiff
asking
for
publication
of
summons without asking for
preliminary attachment, is that
there is a security enjoyed by the
plaintiff when the property of the
defendant is attached through a
writ preliminary attachment. If
you read Rule 57, that is
precisely
the
purpose
of
preliminary attachment over the
property of the defendant, to
provide security to the applicant
to whatever judgment rendered
in favor of the plaintiff.
But the present tendency of
the court is not to apply
anymore the principle in
Citizens Surety vs. Herrera
insofar as publication of
summons is concerned. There

is
no
more
need
for
converting
an
action
in
personam to an action in rem
or quasi-in rem.
If
there
is
a
preliminary
attachment
of
a
property
belonging to the defendant, the
act of actual attachment of the
property is the act which
converts the case from in
personam to that of in rem or
quasi-in rem. This is because the
property is now within the
jurisdiction of the trial court.
MOTIONS
Q: What is a motion?
A: It is an application for relief
other than by a pleading. (Sec. 1,
Rule 15)
Q: What shall the notice of
hearing specify?
A: It shall specify the time and
date of the hearing which shall
not be later than ten (10) days
after the filing of the motion and
it shall be addressed to the
parties concerned (Sec. 5, Rule
15).
Note: Failure to comply with the
mandatory requirements of the
rule regarding notice of hearing
is pro forma and presents no
question
which
merits
the
attention of the court (Bacelonia
v. CA, G.R. No. 143440, Feb. 11,
2003).
Q: What is the rule on
hearing of motions?
A:
GR: Every written motion shall
be set for hearing by the
applicant.
XPN: Motions which the court
may act upon without prejudicing
the rights of the adverse party
(Sec. 4, Rule 15).
General Rule: If not made in
open court, it must be reduced
into writing. It must satisfy all the
requirements
in
the
Rules
concerning motions.
Requirements
motion:
of
written
1. service upon the adverse

party
2. must be set for hearing
Notice of Hearing is usually
addressed by lawyers to the
branch clerk of court. This is an
error. The notice of hearing MUST
be addressed to the adverse
party or the counsel thereof.
Remember that the SC has
emphasized that a motion that
does not comply with the
requirements set down in the
Rules shall be treated as a scrap
of paper.
OMNIBUS MOTION RULE
Omnibus Motion Rule all
objections
that
are
not
included are deemed waived
if not set up in the motion to
dismiss.
Correlate with:
Non-waivable
defenses:
Res
judicata; Prescription; Lack of
jurisdiction over the subject
matter and Litis pendencia
In any civil proceeding, if there is
an objection to any claim
contained in the motion or in
another pleading, and these
objections are not set up in a
motion or in another pleading,
these objections are deemed
waived, except for non-waivable
defenses.
MOTION TO DISMISS
Motion to dismiss is prohibited in
certain proceedings, as set down
by the Rules or based on
circulars issued by the SC.
Summary Procedure and some
special proceedings prohibit the
filing of a motion to dismiss. But
in regular procedure, a motion to
dismiss is allowed in civil cases.
Motion to Dismiss under Rule 16
should be filed as a matter of
general
practice
before
an
answer
can
be
filed
by
defendant.
Can the defendant properly
file an answer and a motion
to dismiss at the same time?
Under Rule 16, it is allowed
that the grounds for a motion
to dismiss to be simply
incorporated in the answer.
Law
Review
Under Rule 16, if the defendant

does submit his responsive
pleading right away, he can
incorporate in his answer the
grounds in Rule as affirmative
defenses. If a defendant files his
answer with affirmative defenses
enumerated under Rule 16 as
grounds to dismiss, he being
allowed to do that, once the
answer is filed with the court, the
defendant can ask to court to
conduct a preliminary hearing on
his affirmative defenses. The
court can grant it as if the
defendant has filed previously a
motion to dismiss.
If the defenses are those that are
non-waivable
grounds
for
dismissal, it is possible for the
defendant to file motions to
dismiss one after another without
violation of the Omnibus Motion
Rule.
Currently, there are now 4

options for the court to resolve a
motion to dismiss. The fourth
option is by virtue of the law on
alternative disputes resolution.
4 options of the court:
1. grant
2. deny
3. order the amendment
of the pleadings
4. refer the matter to
conciliation or mediation
or arbitration, as the case
may be, and suspend
further hearings
Because of the application of

these non-waivable defenses, it
is conceivable and it is proper for
the defendant to successively file
motions to dismiss containing
these non-waivable defenses. A
motion to dismiss founded on a
waivable defense shall preclude
the filing of another motion to
dismiss based on other grounds
under Rule 16, except those nonwaivable defenses. There will be
waiver of the other grounds
because of the Omnibus Motion
Rule, but not those defenses
which are non-waivable.
Is
there
any
procedural
advantage if the defendant
simply files an answer setting
up as affirmative defenses
those enumerated in Rule 16?
Yes there is. If the defendant files
an
answer
with
affirmative
defenses based on grounds
under
Rule
16,
and
after
preliminary
hearing
of
the
affirmative defenses, the court
orders the dismissal of the case,
the defendant will be given an
opportunity to recover his claim
for damages based on any
counterclaims (compulsory or
permissive) or whatever relief he
may have sought in his answer
(answer
with
affirmative
defenses,
permissive
and
compulsory counterclaims, and
other relief). You will note that in
Rule 16, the dismissal will not
affect any counterclaim or crossclaim
or
any
other
claim
submitted by the defendant in
his
answer.
The
defendant
cannot file a Motion to Dismiss
with a counterclaim or crossclaim
or
any
other
claim
submitted by the defendant
before the court. A motion to
dismiss is not a pleading. It is
only in an answer where we can
have a cross-claim against a codefendant
or
counterclaim
against the plaintiff.
In the resolution of a motion to

dismiss, Rule 16 gives to the
court three choices: grant the
motion, deny the motion, or
order an amendment to the
pleading.
In a motion to dismiss, we can

use of any grounds under Rule
16. But if the motion is found on
a ground that is waivable, the
other grounds not cited are
deemed waived, with exception
Theoretically:
If the first motion to dismiss
based on prescription is denied,
the defendant is allowed to file a
second motion to dismiss based
on litis pendencia. If that is again
denied, the defendant files his
3rd motion dismiss founded on
lack of jurisdiction over the
person of the defendant. If it is
again denied, the defendant can
file a motion to dismiss based on
res judicata.
to those non-waivable grounds.

Thus, if the defendant filed a
motion to dismiss solely on the
ground of lack of jurisdiction over
the person of the defendant,
which is a waivable defense, and
the motion was denied, the
defendant is precluded from
filing a motion to dismiss based
on the ground of improper venue.
What will be allowed would be
the
succeeding
motions
to
dismiss are grounded on nonwaivable defenses.
With
respect
to
lack
of
matter or over the nature of the
case, this ground is dealt with in
Tijam vs. Sibonghanoy.
TIJAM
vs.
SIBONGHANOY
Digest
January 08, 1963
5 days after the
surety
received
notice
of
the
decision, it filed a
motion asking for
extension of time
within which to
file a motion for
reconsideration.
Appellees action
was filed in the
Court
of
First
Instance of Cebu,
July 19, 1948 for
the recovery of
1,908.00 Pesos.
RA 296, Judiciary
Act
1948
Section
88 of
which
placed
within
the
jurisdiction
of
MTC
all
civil
actions where the
value
of
the
subject matter or
the amount of
demand does not
go beyond 2,000
Pesos, exclusive
of interest and
costs that the
Court
of
First
Instance of Cebu
Law
Review
has
Jurisdiction.
no
The Court is in
Opinion
that
Surety is now
barred by laches
from invoking the
plea at this late
hour
for
the
purpose
of
annulling
everything done
heretofore in the
case
with
its
active
participation.
Definition
Laches:
of
Failure of neglect,
for
an
unreasonable
and unexplained
length of time, to
do that which, by
exercising
due
diligence, could
or should have
been earlier, it is
negligence
or
commission
to
assert a right
within
a
reasonable time,
warranting
a
presumption that
the party entitle
to assert it has
abandoned it or
declines to assert
it.
Tijam vs. Sibonghanoy
In this case, the trial court did
not have jurisdiction over the
subject matter of the case, but
the defendant kept silent about
the
issue
of
absence
of
jurisdiction, and allowed the case
to proceed up to the CA. Upon
receipt of the adverse decision in
the CA, the appellee challenged
the validity of the decision of the
RTC and the CA, stating that the
court had lacked jurisdiction from
the start. SC held that there
was estoppel by laches. The
case has been pending for 15
years up to the appeal, the
defendant appearing in the
case for all those years. SC
said
that
although
the
decision may be challenged
by lack of jurisdiction over
the subject matter even for
the first time on appeal, the
defendant
is
guilty
of
estoppel by laches, by his
negligence to raise this issue
as promptly as possible. He
can no longer challenge the
decision of the court.
In Rule 9, there is no
exception at all to nonwaivable defenses, including
subject matter.
In Rule 47 (Annulment of
Judgment),
the
Tijam
Doctrine was incorporated
therein. Lack of jurisdiction
over the subject matter is
excepted by estoppel by
laches as a defense.
Rule 47 SEC. 3.
Period for filing
action.If based
on
extrinsic
fraud, the action
must
be
filed
within four (4)
years from its
discovery; and if
based on lack of
jurisdiction,
before
it
is
barred
by
laches
or
estoppel.
This is an application of the Tijam
Doctrine in our present Rules. So,
we still have laches or estoppel
as a defense against the nonwaivable defense of lack of
matter.
In other cases, the SC also used
another kind of estoppel in order
to bar the party from raising the
issue of jurisdiction, although the
trial court REALLY DID NOT HAVE
matter.
Soliven
vs.
Fast
Forms
2004(Estoppel in pais is a good
defense although there is lack of
jurisdiction
matter)
over
the
subject
The aggregate sum to be

recovered was 800k. A complaint
for collection of money was filed
in the RTC. The amount to be
actually collected was less than
the jurisdictional amount of the
RTC based on BP 129 (exclude
interest, damages, cost and
Attorneys fees). There was an
answer by defendant with a
counterclaim. The court, unaware
it lacked jurisdiction over the
case, as nobody brought it up.
The court rendered a judgment in
favor of the plaintiff. The counsel
for the defendant found that the
court had no jurisdiction. The
defendant
filed
motion
for
reconsideration and raised lack
of
jurisdiction,
praying
for
dismissal of the case. RTC denied
the motion, as the defendant was
in estoppel to challenge the
courts jurisdiction just because
an adverse result was had. It
reached the SC. SC held that the
defendant cannot challenge any
more the jurisdiction of the court.
SC stated that there is estoppel
in pais, the act of the defendant
in actively participating in the
case and seeking affirmative
relief via a counterclaim renders
defendant in estoppel to contest
the jurisdiction of the RTC,
although the court may not really
have jurisdiction over the subject
matter.
Facts:
Marie
Antoinette
R.
Soliven,
petitioner, filed a
complaint
for
sum of money
with
damages
against
FastForms
Philippines, Inc.,
respondent. The
complaint alleges
that respondent,
through
its
president
Dr.
Eduardo Escobar,
obtained a loan
from petitioner in
the amount of
PhP 170,000.00
payable within a
Law
Review
period
of
21
days, with an
interest of 3%.
On the same day,
respondent
issued a postdated check in
favor
of
petitioner in the
amount of PhP
175,000.00.
About
three
weeks
later,
respondent,
through
Dr.
Escobar, advised
petitioner not to
deposit
the
postdated check
as the account
from where it
was drawn has
insufficient funds.
Instead,
respondent
proposed
to
petitioner
that
the
PhP
175,000.00
be
rolled-over,
with a monthly
interest of 5%
which petitioner
agreed.
Subsequently,
respondent
issued
several
checks in the
total
of
PhP
76,250.00
in
favor
of
petitioner
as
payment
for
interests
corresponding to
the months of
June,
August,
September,
October
and
December. Later,
despite
petitioners
repeated
demands,
respondent
refused to pay its
principal
obligation
and
interests due.
Respondent,
in
its answer with
counterclaim,
denied that it
obtained a loan
from petitioner,
and that it did
not authorize its
then
president,
Dr.
Eduardo
Escobar,
to
secure any loan
from petitioner or
issue
various
checks
as
payment
for
interests.
After trial on the
merits, the court
a quo rendered a
decision in favor
of petitioner.
Respondent then
filed a motion for
reconsideration
questioning
for
the first time the
trial
courts
jurisdiction.
It
alleged that since
the amount of
petitioners
principal demand
(PhP 195,155.00)
does not exceed
PhP 200,000.00,
the
complaint
should have been
filed
with
the
MTC pursuant to
R.A. 7691.
Issue:
Whether
the trial court has
jurisdiction over
the case
Held: YES. While
it is true that
jurisdiction
may be raised
at any time,
this
rule
presupposes
that
estoppel
has
not
supervened.
The Court has
constantly
upheld
the
doctrine
that
while
jurisdiction
may
be
assailed at any
stage,
a
litigants
participation in
all stages of
the case before
the trial court,
including
the
invocation
of
its authority in
asking
for
affirmative
relief,
bars
such
party
from
challenging the
courts
jurisdiction.
A
party
cannot
invoke
the
jurisdiction of a
court to secure
affirmative relief
against
his
opponent
and
after obtaining or
failing to obtain
such
relief,
repudiate
or
question
that
same jurisdiction.
The
Court
frowns
upon
the undesirable
practice of a
party
participating in
the
proceedings
and submitting
his
case
for
decision
and
then accepting
judgment, only
if
favorable,
and attacking it
for
lack
of
jurisdiction,
when adverse.
Is the Soliven case applicable
to criminal cases?
No.
Figueroa vs. People 2009
The accused was arraigned for
reckless imprudence resulting to
homicide. This was filed in the
RTC
instead
of
MTC.
The
prosecutor was not aware of the
RTCs lack of jurisdiction. The
counsel of the accused also
assumed the same. Nobody
Law
Review
raised the issue of jurisdiction in

the RTC, so the case went on.
Trial was had, where both parties
presented
their
respective
evidence. The accused was found
guilty. On appeal, the accused
interposed the defense of lack of
jurisdiction. The solicitor general
cited Soliven vs. Fast Forms as
defense.
Active
participation
means that the litigant is in
estoppel from challenging the
validity of the proceedings. The
CA agreed with the solicitor
general.
SC held that the judgment is
void as estoppel in pais is
inapplicable in a criminal
case. Lack of jurisdiction in a
criminal case can be cited as
a defense even on appeal.
The rights of the accused
being at stake, estoppel in
pais is inapplicable.
When
is
a
litigant
estopped
by
laches
from
assailing
the
jurisdiction of a
tribunal? This is
the
paramount
issue raised in
this petition for
review
of
the
February
28,
2001 Decision of
the
Court
of
Appeals (CA) in
CA-G.R. CR No.
22697.
*******
On July 8, 1994,
an
information
for
reckless
imprudence
resulting
in
homicide
was
filed against the
petitioner before
the Regional Trial
Court (RTC) of
Bulacan, Branch
18. The case was
docketed
as
Criminal Case No.
2235-M-94. Trial
on the merits
ensued and on
August 19, 1998,
the trial court

convicted
the
petitioner
as
charged. In his
appeal before the
CA, the petitioner
questioned,
among
others,
for the first time,
the trial courts
jurisdiction.
The
appellate
court, however,
in the challenged
decision,
considered
the
petitioner to have
actively
participated
in
the trial and to
have
belatedly
attacked
the
jurisdiction of the
RTC; thus, he was
already estopped
by laches from
asserting the trial
courts lack of
jurisdiction.
Finding no other
ground to reverse
the trial courts
decision, the CA
affirmed
the
petitioners
conviction
but
modified
the
penalty imposed
and the damages
awarded.
**********
The
ruling
in
People
v.
Regalario
that
was based on the
landmark
doctrine
enunciated
in
Tijam
v.
Sibonghanoy on
the matter of
jurisdiction
by
estoppel is the
exception rather
than the rule.
Estoppel
by
laches may be
invoked to bar
the
issue
of
lack
of
jurisdiction
only in cases in
which
the
factual
milieu
is analogous to
that
in
the
cited case. In
such
controversies,
laches
should
have
been
clearly present;
that is, lack of
jurisdiction
must
have
been raised so
belatedly as to
warrant
the
presumption
that the party
entitled
to
assert it had
abandoned or
declined
to
assert it.
In Sibonghanoy,
the defense of
lack
of
jurisdiction
was
raised for the
first time in a
motion to dismiss
filed
by
the
Surety almost 15
years after the
questioned ruling
had
been
rendered.
At
several stages of
the proceedings,
in the court a quo
as well as in the
Court of Appeals,
the
Surety
invoked
the
jurisdiction of the
said courts to
obtain affirmative
relief
and
submitted
its
case
for
final
adjudication
on
the merits. It was
only when the
adverse decision
was rendered by
the
Court
of
Appeals that it
finally woke up to
raise
the
question
of
jurisdiction.
Law
Review
Clearly,
the
factual settings
attendant
in
Sibonghanoy
are not present
in the case at
bar. Petitioner
Atty. Regalado,
after
the
receipt of the
Court
of
Appeals
resolution
finding
her
guilty
of
contempt,
promptly filed
a Motion for
Reconsideratio
n assailing the
said
courts
jurisdiction
based
on
procedural
infirmity
in
initiating
the
action.
Her
compliance
with
the
appellate
courts
directive
to
show
cause
why she should
not be cited for
contempt and
filing a single
piece
of
pleading
to
that
effect
could not be
considered as
an
active
participation in
the
judicial
proceedings so
as to take the
case within the
milieu
of
Sibonghanoy.
Rather, it is the
natural fear to
disobey
the
mandate of the
court
that
could lead to
dire
consequences
that
impelled
her to comply.
The Court, thus, wavered

on when to apply the
exceptional circumstance
in Sibonghanoy and on
when to apply the general
rule enunciated as early
as in De La Santa and
expounded at length in
Calimlim. The general rule
should, however, be, as it
has always been, that the
issue of jurisdiction may
be raised at any stage of
the proceedings, even on
appeal, and is not lost by
waiver or by estoppel.
Estoppel by laches, to
bar a litigant from
asserting the courts
absence or lack of
jurisdiction,
only
supervenes
in
exceptional
cases
similar to the factual
milieu
of
Tijam
v.
Sibonghanoy.
Indeed,
the fact that a person
attempts
to
invoke
unauthorized
jurisdiction of a court
does not estop him
from
thereafter
challenging
its
jurisdiction over the
subject matter, since
such jurisdiction must
arise by law and not by
mere consent of the
parties.
This
is
especially true where
the person seeking to
invoke
unauthorized
jurisdiction of the court
does
not
thereby
secure any advantage
or the adverse party
does not suffer any
harm.
Applying
the
said
doctrine to the instant
case, the petitioner is
in no way estopped by
laches in assailing the
jurisdiction of the RTC,
considering
that
he
raised the lack thereof
in his appeal before the
appellate court. At that
time, no considerable
period had yet elapsed
for laches to attach.
True,
delay
alone,
though unreasonable,
will not sustain the
defense of "estoppel by
laches"
unless
it
further appears that
the party, knowing his
rights, has not sought
to enforce them until
the condition of the
party pleading laches
has
in
good
faith
become so
changed
that he cannot be
restored to his former
state, if the rights be
then enforced, due to
loss
of
evidence,
change
of
title,
intervention
of
equities,
and
other
causes. In applying the
principle of estoppel by
laches in the exceptional
case of Sibonghanoy, the
Court therein considered
the patent and revolting
inequity and unfairness of
having
the
judgment
creditors go up their
Calvary once more after
more or less 15 years. The
same, however, does not
obtain in the instant case.
We note at this point
that estoppel, being in
the
nature
of
a
forfeiture,
is
not
favored by law. It is to
be applied rarelyonly
from
necessity,
and
only in extraordinary
circumstances.
The
doctrine
must
be
applied with great care
and the equity must be
strong in its favor.
When misapplied, the
doctrine of estoppel
may
be
a
most
effective weapon for
the accomplishment of
injustice. Moreover, a
judgment
rendered
without
jurisdiction
over the subject matter
is void. Hence, the
Revised Rules of Court
provides for remedies
in attacking judgments
rendered by courts or
tribunals that have no
Law
Review
concerned cases. No
laches will even attach
when the judgment is
null and void for want
of jurisdiction. As we
have stated in Heirs of
Julian Dela Cruz and
Leonora Talaro v. Heirs of
Alberto Cruz,
It is axiomatic that the
jurisdiction of a tribunal,
including a quasi-judicial
officer
or
government
agency, over the nature
and subject matter of a
petition or complaint is
determined
by
the
material
allegations
therein and the character
of the relief prayed for,
irrespective of whether
the
petitioner
or
complainant is entitled to
any or all such reliefs.
Jurisdiction
over
the
nature and subject matter
of an action is conferred
by the Constitution and
the law, and not by the
consent or waiver of the
parties where the court
otherwise would have no
jurisdiction
over
the
nature or subject matter
of the action. Nor can it be
acquired
through,
or
waived by, any act or
omission of the parties.
Moreover,
estoppel
does
not
apply
to
confer jurisdiction to a
tribunal that has none
over
the
cause
of
action. x x x
Indeed, the jurisdiction
of the court or tribunal
is not affected by the
defenses or theories
set
up
by
the
defendant
or
respondent
in
his
answer or motion to
dismiss.
Jurisdiction
should be determined
by considering not only
the
status
or
the
relationship
of
the
parties but also the
nature of the issues or
questions that is the
subject
of
the
controversy. x x x x The
proceedings before a
court
or
tribunal
without
jurisdiction,
including its decision,
are
null
and
void,
hence, susceptible to
direct and collateral
attacks.
Note from Dean Jara:
If you are confronted with a
problem
on
lack
of
jurisdiction in a civil case,
apply Soliven case. If it is a
criminal
case,
adopt
Figueroa.
NAPOCOR vs. Province of
Quezon
2010 reiterated the
validity of Soliven in civil cases.
The
NPC
is
estopped from
questioning
the
CBAAs
jurisdiction
The
assailed CTA en
banc decision
brushed
aside
the
NPCs sin
perjuicio argume
nts by declaring
that:
The court
finds merit in
[NPCs]
claim
that the Order of
the
LBAA
of
the Province of Q
uezon is
a sin
perjuicio decision
. A
perusal
thereof shows
that
the
assailed Order
does
not
contain
findings
of
facts in support
of the dismissal
of the case. It
merely stated a
finding of merit in
the contention of
the Municipality o
f Pagbilao xxx.
,
on
before
However
appeal
the
CBAA,
[NPC]
assigned
several errors,
both
in
fact
and
in
law,
pertaining
to
the
LBAAs
decision. Thus,
petitioner
is
bound by the
appellate
jurisdiction of
the CBAA under
the principle of
equitable
estoppel. In
this
regard,
[NPC] is in no
position
to
question
the
appellate
jurisdiction of
the CBAA as it
is
the
same
party
which
sought
its
jurisdiction and
participated in
the
proceedings
therein. [Emph
asis supplied.]
We agree
that the NPC
can no longer
divest
the
CBAA of the
power
to
decide
the
appeal
after
invoking
and
submitting
itself
to
the
boards
jurisdiction. W
e
note
that
even the NPC
itself
found
nothing
objectionable
in
the
LBAAs sin
perjuicio decisi
on when it filed
its
appeal
before
the
CBAA; the NPC
did not cite this
ground as basis
for
its
appeal. What it
cited
were
Law
Review
grounds
that
went into the
merits of its case.
In fact, its appeal
contained
no
prayer for the
remand of the
case
to
the
LBAA.
A
basic
jurisdictional
rule, essentially
based
on
fairness, is that a
party
cannot
invoke
a
courts
jurisdiction to
secure
affirmative
relief and, after
failing
to
obtain
the
requested
relief,
repudiate
or
question
that
same
jurisdiction. Mo
reover, a remand
would
be
unnecessary, as
we
find
the
CBAAs and the
CTA en
bancs denial of
NPCs
claims
entirely in accord
with the law and
with
jurisprudence.
The defendant has a problem
when a court issues a service
of summons in violation of
Rule 14. The defendant must
file a Motion to Dismiss on
ground of lack of jurisdiction
over person of the defendant.
If he does file such motion,
FAILURE TO STATE A CAUSE
OF ACTION
SC in recent cases has
emphasize the difference of
lack of a cause of action and
failure to state a cause of
action:
Failure
to Lack
of
state cause cause
of
of action
action
Insufficiency
in
the
allegations of
the complaint
Failure
to
prove
or
establish
by
evidence
ones stated
cause
of
action
As a ground for dismissal
Raised in a Raised in a
motion
to demurrer
to
dismiss under evidence
Rule
16 under Rule 33
before
a after
the
responsive
plaintiff
has
pleading
is rested
his
filed
case
Determination
Determined
Resolved only
only from the on the basis
allegations of of
the
the pleading evidence he
and not from has presented
evidentiary
in support of
matters
his claim
Failure to state a cause of action
will be a ground to dismiss
because
of
immaturity.
It
assumes that the plaintiff really
has a cause of action, and the
fault will be due to the lawyer
who crafted the complaint.
If
there
is
an
accion
reinvindicatoria filed in the
RTC, but there is no stated
assessed
value
of
the
property involved, then the
defendant may file motion to
dismiss
for
lack
of
jurisdiction for failure to
state a cause of action. A
hearing
was
had.
The
plaintiffs attorney failed to
see what the motion was
about. The court will resolve
the motion purely on the
allegations in the complaint.
(There is no need to present
evidence in this case, as no
factual matter is in issue.)
The
court
granted
the
motion. The plaintiffs lawyer
received
the
order
of
dismissal, and then he finally
understood what was wrong
with his complaint. Can the
lawyer for the plaintiff amend
his complaint?
Yes. The plaintiff can still amend
his
complaint in order to
incorporate the allegation the
assessed value of the property.

This is because the order of
dismissal will not be entered
until after the lapse of 15
days, and the plaintiff can still
amend and rectify the error
committed by inserting the
assessed
value
of
the
property. He can do so as a
matter of right, because,
according to SC, a motion to
dismiss is not a responsive
pleading, and as long as the
amendment
is
the
first
amendment, under Rule 10, it
is an amendment is a matter
of right. The defendant will
have to file an answer to the
amended complaint.
Note:
In a hearing of a motion to
dismiss grounded to lack of
matter, the court will not allow
presentation of evidence by the
defendant. The reason is because
subject matter is a purely legal
question and the only evidence
to be taken into account is the
complaint itself, applying the
principle that the court acquires
jurisdiction, under BP 129, based
on the allegations contained in
the complaint. In the hearing of a
motion, the court will allow
presentation of evidence ONLY if
the question that will be raised is
a factual issue like the obligation
has been paid, waived or
otherwise extinguished. Thus, in
a motion to dismiss on the
the subject matter, the court will
resolve the motion based on the
complaint itself. The court can
easily resolve the said motion
based on the allegations in the
pleading itself.
Based on the above problem,
if the dismissal became final
and executory, what can the
plaintiff do?
Under Sec. 5 Rule 16, the rule
makes a distinction of an Order
of Dismissal under Rule 16 under
letters f, h and i (in addition to
laches under the NCC) compared
to other grounds, the dismissal is
subject to the right of appeal.
Law
Review
The remedy of the plaintiff is to

appeal the order of dismissal.
If the case was dismissed on
grounds not on letters f, h and I,
it means that we should not treat
Rule 16 alone, but consult other
Rules to arrive at the correct
remedy. We consult Sec. 1 under
Rule 41. The dismissal is
without prejudice. Therefore,
the dismissal should not be
appealed.
Rule 16, SECTION 1.
Grounds.Within
the
time for but before filing
the
answer
to
the
complaint or pleading
asserting a claim, a
motion to dismiss may
be made on any of the
following grounds:
(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
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 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.
SEC. 5. Effect of
dismissal.Subject
to the right of appeal,
an order granting a
motion to dismiss
based on paragraphs
(f), (h) and (i) of
section 1 hereof shall
bar the refiling of the
same action or claim.
Grounds recognized
under the law that
will render dismissal
with prejudice under
Sec. 5, Rule 16:
Rule 16, f. Res
judicata/statute of
limitations
Rule 16, h. paid,
waived,
abandoned,
or
otherwise
extinguished
Rule
16,
i.
unenforceable
under statute of
frauds
(NCC)
laches
(Should be included
here. Dean Jara)
In analyzing Rule 16, 17,
18 and 33, we should
always read these Rules
in relation with Section 1
of Rule 41.
Rule 41, SECTION
1.
Subject
of
appeal.An
appeal may be
taken from a
judgment
or
final order that
completely
disposes of the
case, or of a
particular
matter therein
when declared
by these Rules
to
be
appealable.
No appeal may
be taken from:
(a)
An order
denying a motion
for new trial or
reconsideration;
(b)
An
order
denying
a
petition for relief
or any similar
motion
seeking
relief
from
judgment;
(c)
An
interlocutory
order;
(d)
An
order
disallowing
or
dismissing
an
appeal;
(e)
An
order
denying a motion
to set aside a
judgment
by
consent,
confession
or
compromise
on
the ground of
fraud, mistake or
duress, or any
other
ground
vitiating consent.
(f) An order of
execution;
(g) A judgment or
final order for or
against one or
more of several
parties
or
in
separate claims,
counterclaims,
cross-claims and
third-party
complaints, while
the main case is
pending, unless
the court allows
an
appeal
therefrom; and
(h)
An
order
dismissing
an
action
without
prejudice.
(i) Laches and
any
other
means
recognized
under the NCC
(Dean Jara)
In all the above
instances where
the judgment or
final order is not
appealable, the
aggrieved party
may
file
an
appropriate
special
civil
Law
Review
action under Rule

65.
Why is it necessary to
relate a motion to
dismiss under Rule 16
with Rule 41, which is
a rule on appeal?
If you read Section 1 of
Rule 41, there is an
enumeration of orders
where no appeal can be
had, although they are
final in character.
In the enumeration under Section
1 of Rule 41, the last item is
closely related to Rule 16, that it
is
a
dismissal
is
without
prejudice. In Rule 16, what the
Rule tells us is that under items f,
h and i of Sec. 5 Rule 16 are
subject to appeal. That means
the dismissal is with prejudice as
the remedy thereof is to appeal.
But when the dismissal on other
grounds other than items f, h and
i under Sec. 5 Rule 16, they are
without prejudice. And Section
1(h)Rule 41 tells the plaintiff that
one of the recourses available to
him when the dismissal is
without prejudice. Appeal is not a
remedy available to him.
The court issued an order of
dismissal. What should the
plaintiff do?
The remedy available to the
plaintiff is found under Sec. 1 of
rule 41 in order to challenge the
order of dismissal that are still
appealable based on Sections 1
and 5 of Rule 16 (those not under
items f, h and i). Since an order
of dismissal is not appealable,
then the plaintiff must file an
appropriate petition under Rule
65. The plaintiff may file a
petition
for
certiorari
or
prohibition with the CA or SC as
the case may be.
Why do we allow the plaintiff
to file a petition under Rule
65 challenging the dismissal
of his complaint for lack of
jurisdiction,
although
the
order
of
dismissal
has
already been entered after
the lapse of 15 day period?
Because under Rule 65, the
period for filing the petition
under this rule is 60 days, not 15

days. So if the 15-day period for
entry of judgment has lapsed,
the plaintiff has 45 days more to
file a petition under Rule 65.
But because the dismissal is
without prejudice, the plaintiff
can forget about going to a
higher court. Because if the
dismissal of his complaint was
without prejudice, he has another
alternative: he can just file a new
complaint in the same court
involving the same party with the
complaint
impleading
the
necessary allegations.
If we compare this dismissal
under Rule 16 based on lack of
jurisdiction on the ground of f, h
and i, we can understand why
they are not appealable. The
order of dismissal based on these
items will be a judgment on the
merits. If the claim of the plaintiff
alleged in the complaint has
really
been
paid,
waived,
abandoned
or
otherwise
extinguished as provided in the
NCC, then it would seem that he
really has no claim at all with the
defendant,
and
thus
the
complaint is dismissed with
prejudice. If the allegation of the
defendant is that the claim has
been paid, waived, abandoned or
otherwise
extinguished,
that
motion presents a factual issue.
During the hearing of that
motion, the defendant will be
given an opportunity to prove
that the claim has really been
paid, waived, abandoned or
otherwise
extinguished.
The
hearing will be as if the court was
actually trying the case, the
defendant being allowed to
present witnesses, or present
evidence of his allegation that
the claim has been paid, waived,
abandoned
or
otherwise
extinguished based on grounds
recognized under substantive
law(enumerated in the NCC).
In fact, the court said that the
results
enumerated
under
Section 16 is not exclusive. We
should include laches. Under the
NCC, laches could extinguish an
obligation.
Remember that procedurally, in a

hearing on a motion to dismiss
based on a question of law to a
motion to dismiss founded on
factual issue. If founded on a
legal issue, the court will not
allow presentation of evidence.
The court will simply read the
allegations in the complaint. If
the issue is factual, the court will
be forced to conduct a hearing
for presentation of evidence
therein.
Let
us
say
that
the
defendants
motion
is
founded on letter h. During
the hearing, the defendant
presents evidence. Then, the
motion was submitted for
resolution. The court denies
the motion. What is the next
move for the defendant if the
motion is denied?
The defendant should file an
answer during the remaining
period to file, which should not
be less than 5 days from the
receipt of the order of denial.
The
defendant
files
an
answer. Can he incorporate
the ground in the motion to
dismiss that was denied as
an affirmative defense?
Yes, the defendant is allowed to
do that. Under our rules, if there
are objections or grounds not
raised in the PLEADINGS, these
grounds are deemed waived.
Can the defendant, after
filing his answer with his
affirmative defense move for
a preliminary hearing on his
affirmative defense?
No, the court will not allow such
a hearing anymore as there had
been a prior hearing for the same
issue in the prior motion to
dismiss that was denied. Thus,
although a defendant is allowed
to use his ground under Rule 16
in a motion to dismiss that was
denied as an affirmative defense,
he is not allowed to have another
preliminary hearing as the said
defenses had been already
subject to a hearing when the
said defenses were contained as
a ground for dismissal in the prior
motion that was denied.
Law
Review
So, during the trial of the case,

the defendant may be able to
present to the court additional
evidence in order to prove such
ground under Rule 16 that he has
relied upon.
A dismissal under Rule 33

(judgment
on
demurrer
to
evidence) is a dismissal with
prejudice
as
this
is
an
adjudication on the merits, and
the remedy is to file an appeal
from the order of dismissal.
RULE 41 SEC. 1 IN RELATION

TO RULE 16 (DISMISSAL WITH
OR WITHOUT PREJUDICE)
Determine
whether
his
dismissal is appropriate for
remedy under Rule 65 or an
appeal.
But if the dismissal is without

prejudice, the plaintiff has not
much to worry. He can forget
about Rule 41. He can file a
second complaint, but he must
make sure it is properly crafted.
If the plaintiff files a second
complaint, but it was again
dismissed,
there
is
the
probability under Rule 17 Section
1 that it will be a dismissal with
prejudice
under
the
twodismissal
rule.
Thus,
if
a
complaint has been dismissed
twice, the second dismissal may
operate as an adjudication of the
merits.
Any dismissal by a court is a final

order. But what matters is to find
out if the dismissal is with or
without prejudice so as to
ascertain the remedy available.
In dismissals under Rule 16, if the
grounds are letter f, h or i, then
the dismissal is with prejudice.
The remedy of the plaintiff is to
appeal from the judgment.
Supposing the plaintiff commits
an error in ascertaining the
dismissal, the dismissal actually
being that with prejudice, and
plaintiff opts for Rule 65. The
judgment became final after 15
days. 40 days after the judgment
for dismissal was made, he files a
petition
for
certiorari.
The
petition for certiorari will be
dismissed as the proper remedy
was to appeal. At this time, he
cannot appeal anymore as the
time to appeal was 15 days from
receipt of the order of dismissal,
it has long expired, and the
judgment has been entered and
had become final. Also, he
cannot file another complaint, as
the dismissal is with prejudice.
If a dismissal is found under Rule
17, we follow the same principle.
Rule 17 also states about a
dismissal
with
and
without
prejudice. We follow the principle
of dismissal under Rule 41 in
relation to Rule 16.
A dismissal under Rule 18 (failure
to attend pre-trial or to file pretrial
brief,
tantamount
to
disobedience of court orders) is
with prejudice, and thus plaintiff
must appeal.
Rule 17 SECTION 1.
Dismissal upon notice
by
plaintiff.A
complaint
may
be
dismissed
by
the
plaintiff by filing a notice
of dismissal at any time
before service of the
answer or of a motion
for summary judgment.
Upon such notice being
filed, the court shall
issue
an
order
confirming
the
dismissal.
Unless
otherwise stated in
the
notice,
the
dismissal is without
prejudice,
except
that
a
notice
operates
as
an
adjudication upon the
merits when filed by
a plaintiff who has
once dismissed in a
competent court an
action based on or
including the same
claim.
Does it mean that a second
dismissal
is
ALWAYS
a
dismissal with prejudice?
No. The second dismissal will still
be without prejudice as provided
for in Rule 17, unless there is a
statement of such dismissal
being with prejudice in the

notice of dismissal.
Dismissal under Rule 17,
Sections 1, 2 and 3.
Indispensable party has not
been impleaded = Dismissal
for failure to state a cause of
action.
The theory behind is that a
complaint must implead an
indispensable party at all times
so as the court can have a final
determination of the case. This
will be resolved by the court
under Rule 16, but availing of
other modes of curing the defect
aside from dismissing the case.
In the resolution of a motion to
dismiss, Rule 16 gives to the
court three choices: grant the
motion, deny the motion, or
order an amendment to the
pleading.
If an indispensable party has not
been impleaded, the court may
simply order the plaintiff to
amend his complaint to include
the indispensable party. The
plaintiff can then just file an
amended complaint, and then
the case can proceed until the
final determination of the case.
If the court ordered the
amendment of the complaint
to include the indispensible
party, the plaintiff failed to
do so, can the court dismiss
the case?
Yes, the court may do so under
Rule 17, and the dismissal is with
prejudice, under Section 3 of Rule
17, for failure to obey a lawful
order of the court. The remedy is
to appeal.
Generally, the court is given
discretion to state whether a
dismissal is with or without
prejudice. But if the dismissal is
not qualified at all, Section 3 of
Rule 17 is very clear, that
dismissal is with prejudice.
Therefore, the remedy is to
appeal not to file a petition under
Rule 65.
Note: Grounds for dismissal
under Section 3 of Rule 17:
1. the plaintiff fails to appear on
the date of the presentation of
Law
Review
his evidence in chief on the

complaint,
2. failure to prosecute his action
for an unreasonable length of
time,
3. failure to comply with these
Rules,
4. failure to comply with any
order of the court
Sections 1, 2 and 3 of Rule 17
provides grounds for dismissal,
and these sections also provides
for the consequences of the
grounds of dismissal.
Section 1 Rule 17 provides for a
plaintiff to dismiss his own
complaint.
Rule 17 SECTION 1.
Dismissal
upon
notice by plaintiff.
A complaint may
be dismissed by the
plaintiff by filing a
notice of dismissal at
any
time
before
service of the answer
or of a motion for
summary judgment.
Upon such notice
being filed, the court
shall issue an order
confirming
the
dismissal.
Unless
otherwise stated in
the
notice,
the
dismissal is without
prejudice,
except
that
a
notice
operates
as
an
adjudication upon the
merits when filed by
a plaintiff who has
once dismissed in a
competent court an
action based on or
including the same
claim.
If Plaintiff files complaint
today. Plaintiff changed his
mind and moved to dismiss
the case. The summons had
not been sent. What if the
plaintiff dismissed his own
complaint via a motion?
The court will have the discretion
whether to grant or deny the
motion.
The plaintiff should not dismiss
his case via a motion. The means
for a plaintiff to dismiss his case
is provided for under Section 1,

Rule 17.
What if a notice of dismissal
was given instead?
The
court
is
left
without
discretion as to what to do with
the complaint but to dismiss it.
Filing of a timely notice of
dismissal will result in the
dismissal of the case. The
dismissal is without prejudice,
unless plaintiff tells the court that
the notice of dismissal is to be
considered an adjudication on
the merits.
The case had been dismissed
by the court because of the
plaintiffs notice of dismissal.
What if plaintiff changed his
mind after the order of
dismissal? What can he do?
He needs to wait 15 days after
the order of dismissal and ask for
revival of the case. No new
complaint need be filed, and no
docket fees need be paid again.
Supposing
the
defendant
filed motion to dismiss, and
subsequently
the
plaintiff
filed notice of dismissal. How
can this be resolved?
SC held that the court should
confirm the notice of dismissal by
the plaintiff. The plaintiffs notice
of dismissal prevails over the
motion to dismiss filed by
defendant.
TWO-DISMISSAL RULE
Plaintiff files a collection case
for 500k against defendant.
Defendant visits the plaintiff
and asked the plaintiff for the
dismissal
of
the
case,
promising payment. Plaintiff
acquiesced and files notice of
dismissal. Court dismisses
the case. The defendant
failed to pay. Can the plaintiff
file another case against
defendant?
Yes, as the case was dismissed
without prejudice.
The
defendant
again
approached plaintiff, asking
again for time. Plaintiff again
agrees, and files another
notice of dismissal. It is again
dismissed. What will be the
effect?
The dismissal is with prejudice

this time. If plaintiff files a case
for the same defendant for the
same cause as the defendant
again failed to pay, the case will
be dismissed as the second
dismissal is one with prejudice,
and res judicata will lie.
What if the defendant files
motion to dismiss, but failed
to allege res judicata, can the
court proceed to dismiss?
Yes, the court can do so, even if
the defendant failed to allege it.
It is a non-waivable ground of
dismissal, and anytime the court
discovers such fact, it will dismiss
the case.
Can the court say in its
decision of dismissal that the
second dismissal is without
prejudice?
No. The court cannot say the
second dismissal is without
prejudice as the law itself
dictates that such dismissal is
with prejudice, and the court will
have no discretion as to such
dismissal being with or without
prejudice. As long as it is the
second dismissal of the same
case, it will always be with
prejudice due to res judicata.
When can second dismissal is
without
prejudice
under
Section 1 Rule 17?
There can be two situations
where
dismissal
under
Section 1 Rule 17 is without
prejudice?
1.If the first case was filed in a
court which lacked jurisdiction
thereto, then the 2nd one was
filed in the competent court and
there was a 2nd dismissal, the
2nd dismissal is not res judicata.
The two-dismissal rule will be
considered if the case had been
filed in a court competent to hear
it.
2. In Section 2 Rule 17, a plaintiff
may dismiss his complaint via a
motion to dismiss. Here, the
defendant had already filed an
answer. If the plaintiff seeks to
dismiss the complaint, he must
file a motion to dismiss his
complaint, copy furnished to the
defendant. The likelihood is that
the defendant will not object. If
Law
Review
the defendant does not object,

and the court dismisses the case
without prejudice, the plaintiff is
allowed to file another case
against the same defendant
based on the same cause.
The defendant, however, is given
under Section 2 a chance to
object. The defendant can insist
that the dismissal be one with
prejudice. This is allowed as the
dismissal is upon the initiative of
the plaintiff, and the defendant is
given the opportunity to object. If
you
were
the
defendants
counsel, advise the defendant to
object, and state that the
dismissal should be one with
prejudice. (I have no opposition
to the dismissal initiated by the
plaintiff, as long as the dismissal
is with prejudice.) If that is the
tenor of the dismissal, that is res
judicata. It will preclude the
plaintiff from filing another case
with the same claims against the
same defendant.
What if the defendant has a
compulsory counterclaim?
There can be a dismissal, but
defendant can ask that the court
should continue hearing on the
counterclaim set up by defendant
in his answer. In the alternative,
the defendant can ask the court
to
try
the
compulsory
counterclaim in a separate case.
This is one of the rare instances
wherein
a
compulsory
counterclaim
could
survive
without the principal action.
The general rule is that if the
complaint is dismissed, the
compulsory counterclaim is also
dismissed. But not in Section 2
Rule 17. The complaint could be
dismissed, but the compulsory
counterclaim could survive. In
fact
the
survival
of
the
compulsory counterclaim can
even be threshed out in a
separate
complaint,
wherein
there can be another complaint
filed by the former defendant
against the former plaintiff. But
this will be an independent
action.
The other alternative is that the
plaintiff can ask the court for the
dismissal of the complaint but

the court will continue to
exercise jurisdiction so that the
court will continue to try the
compulsory counterclaim.
Rule 17, Section 3, Grounds
of dismissal
~the plaintiff fails to appear on
the date of the presentation of
his evidence in chief on the
complaint,
~fails to prosecute his action for
an unreasonable length of time
(nolle prosequi),
~fails to comply with these Rules
~ fails to comply with any
order of the court,
not appear during trial, the

lawyer for the defendant may ask
for the dismissal under Section 3,
Rule 17 for failure of the plaintiff
to prosecute for an unreasonable
length of time or for failure of the
plaintiff to appear on the date of
the presentation of his evidence
in chief on the complaint. And
usually,
the
trial
court
accommodates the defendants
move because if a trial court
dismisses the case, that is one
case where the judge can
present that he has been
resolving speedily the cases that
are assigned to him.
Under this section, the initiative

for the dismissal of the case
comes from the defendant or the
court itself.
Last year, the SC came out with a

resolution
concerning
this
particular provision in relation to
Shimizu vs. Magsalin. Study this
case as it would be a good
problem in the bar.
How can the court order a

dismissal under Section 3 of
Rule 17 upon the ground that
the plaintiff failed to obey
the provisions of the Rules of
Court?
A good example can be had
under Rule 18 on Pre-Trial. In Rule
18, it is provided expressly that
after the last pleading is filed, it
is the duty of the plaintiff to set
his complaint for pre-trial. He
must file a motion to have the
complaint set for pre-trial. When
the plaintiff fails to set the
hearing for pre-trial for, let us
say, one year ago up to the
present, and there is a finding
that the plaintiff failed to do so,
the court can dismiss the case on
the ground that the plaintiff
failed to follow the provision set
upon in the Rules. This has been
affirmed by the SC. So, if it is the
duty of the plaintiff to set the
case for pre-trial, and he neglects
to do so for an unreasonable
length of time, there is every
reason for the court to make use
of Rule 17, to order the dismissal
of the case under Section 3
thereof. This is a dismissal with
prejudice unless the court makes
the necessary qualification that it
is a dismissal without prejudice.
In most courts (RTC or MTC), if
the court calls the case for trial
on the merits, and plaintiff does
Shimizu vs. Magsalin 2008

revolutionary
decision
concerning
dismissals
with
prejudice under Section 17
Order
of
dismissal
with
prejudice should comply with
Rule 36 and the Constitution.
Otherwise, it shall be open to
collateral and direct attack.
(A trial court should always
specify the reasons for a
complaints dismissal so that
on appeal, the reviewing
court can readily determine
the prima
facie justification
for the dismissal)
The Dismissal
Order is Void
The nullity of
the dismissal order
is patent on its face.
It simply states its
conclusion that the
case
should
be
dismissed
for non
prosequitur, a legal
conclusion, but does
not state the facts
on
which
this
conclusion is based.
Dismissals
of
actions for failure of
the
plaintiff
to
prosecute is authorized
under Section 3, Rule
Law
Review
17 of the Rules of
Court.
A
plain
examination
of
the December
16,
2003 dismissal order
shows that it is an
unqualified order and,
as such, is deemed to
be a dismissal with
prejudice. Dismissals
of
actions
(under
Section 3) which do not
expressly
state
whether they are with
or without prejudice
are held to be with
prejudice[.] As a
prejudicial
dismissal,
the December
16,
2003 dismissal order is
also deemed to be a
judgment on the merits
so that the petitioners
complaint in Civil Case
No.
02-488 can
no
longer be refiled on the
principle
of res
judicata. Procedurally,
when a complaint is
dismissed for failure to
prosecute
and
the
dismissal
is
unqualified,
the
dismissal has the effect
of an adjudication on
the merits.
As
an
adjudication on the
merits, it is imperative
that the dismissal order
conform with Section 1,
Rule 36 of the Rules of
Court on the writing of
valid judgments and
final orders. The rule
states:
RULE 36
Judgments,
Orders
and
Thereof
Final
Entry
Section
1. Rendition
of
judgments and final
orders. A judgment
or
final
order
determining the merits
of the case shall be in
writing personally and
directly prepared by
the
judge,
stating
clearly and distinctly

the facts and the law
on which it is based,
signed by him, and
filed with the clerk of
the court.
The Decembe
r
16, 2003 dismissal o
rder clearly violates
this
rule
for
its
failure to disclose
how
and why
the
petitioner failed to
prosecute
its
complaint.
Thus,
neither
the
petitioner
nor
the reviewing court
is able to know the
particular facts that
had prompted the
prejudicial
dismissal. Had
the
petitioner
perhaps
failed to appear at a
scheduled trial date?
Had it failed to take
appropriate actions for
the active prosecution
of its complaint for an
unreasonable length of
time? Had it failed to
comply with the rules
or any order of the trial
court? The December
16,
2003
dismissal order does
not say.
We have in the
past admonished trial
courts against issuing
dismissal orders similar
to that appealed in CAG.R. CV No. 83096. A
trial court should
always specify the
reasons
for
a
complaints
dismissal so that on
appeal,
the
reviewing court can
readily
determine
the prima
facie justification for
the
dismissal. A
decision that does not
clearly and distinctly
state the facts and the
law on which it is based
leaves the parties in
the
dark
and
is
especially prejudicial to
the losing party who is
unable to point the
assigned
error
in
seeking a review by a
higher tribunal.
We
thus
agree
with
the
petitioner that the
dismissal
of Civil
Case
No.
02488 constituted
a
denial
of
due
process. Elementary
due
process
demands that the
parties
to
a
litigation be given
information on how
the
case
was
decided, as well as
an explanation of
the factual and legal
reasons that led to
the conclusions of
the court. Where the
reasons are absent,
a decision (such as
the December 16,
2003 dismissal order
)
has absolutely
nothing to support it
and is thus a nullity.
For this same
reason, we are not
moved by respondent
FGU
Insurances
statement
that
the
disposition
of
the
present petition must
be limited to the issue
of whether the CA had
correctly dismissed the
appeal in CA-G.R. CV
No.
83096. This
statement implies that
we cannot properly
look into the validity of
the December
16,
2003 dismissal order in
this Rule 45 petition. A
void
decision,
however, is open to
collateral
attack.
While we note that
the
validity
of
the dismissal
order with
respect
to Section 1, Rule 36
of
the
Rules
of
Law
Review
Court was
never
raised
by
the
petitioner
as
an
issue
in
the
present petition,
the Supreme Court
is vested with ample
authority to review
an unassigned error
if
it
finds
that
consideration
and
resolution
are
indispensable
or
necessary in arriving
at a just decision in
an appeal. In this
case, the interests
of substantial justice
warrant the review
of an obviously void
dismissal order.
A
valid
judgment
must
contain factual findings, it
must have conclusions as to
the law available. If the court
simply
says
that
the
dismissal was for failure to
prosecute
for
an
unreasonable length of time,
that is not a factual finding
nor conclusion based on law,
it is just a conclusion of the
court. The SC said that for a trial
court to render a valid judgment,
the court should explain why
and how the court came to
the conclusion that the plaintiff
is guilty of nolle prosequi. The
court should give instances
pertaining to the records of the
case that enabled the court to
conclude that the plaintiff has
failed to prosecute for an
unreasonable length of time.
Without such explanation, even if
the judgment is entered, it can
be subjected to direct or
collateral attack.
If there is an adjudication upon
the merits, when the order is
simply an order of dismissal,
under Rule 17 or even under Rule
16, for the validity of that final
order of dismissal, there should
be an explanation of how and
why there is a dismissal of the
case, the dismissal being a final
adjudication of the case.
An order of dismissal with
prejudice under Rules 16, 17,
33 or even under any rule

allowing dismissal of the
action, the order of dismissal,
if it is going to be considered
an adjudication of the merits,
must
comply
with
the
requirements of Section 1,
Rule
36.
Non-compliance
thereto, the dismissal is an
void judgment which can be
subjected
to
direct
or
collateral attack.
RULE 18 PRE-TRIAL
Mandatory in all cases, even in
summary procedure, where it is
called a preliminary conference.
It is present even in small claims
procedure, where there is a
semblance of pre-trial in the
preliminary conference under the
Judicial Dispute Rule.
It is the duty of the plaintiff to
schedule his complaint for pretrial after the last pleading has
been filed. Failure to do so, the
case may be dismissed with
prejudice. But again, the order of
dismissal should order why and
how the court has arrived at the
conclusion that the plaintiff has
waived or not obeyed the RoC.
This rule on pre-trial has been
modified by the SC, applying the
rules
of
mediation
and
conciliation.
The Trial Court calls the parties to
pre-trial. The parties are told to
attend a mediation/conciliation
process
by
accredited
mediators/conciliators. The case
might be terminated while in this
process. The mediator/conciliator
usually issues notices to the
parties as to the schedule of the
mediation/conciliation
conference. If the plaintiff does
not
appear
for
mediation/conciliation,
he
repeatedly ignores such notices
sent as to the schedule of the
conference,
the
mediator/conciliator will submit a
report thereof to the trial court. It
can be a ground of dismissal with
prejudice,
according
to
SC
Circulars. If a court orders that
the parties should attend a
conference, such conference is
deemed part of the pre-trial

process. It is tantamount to the
plaintiff absenting himself from a
hearing in the trial, and thus a
violation of an order of the court.
Thus, such disobedience by the
plaintiff shall be a ground for
dismissal with prejudice.
If mediator/conciliator fails in the
attempt to settle, they will file a
report
and
recommend
proceeding to a pre-trial proper.
Parties will be ordered to submit
pre-trial brief and attend the pretrial conference.
There are now several layers that
the SC Circulars introduced that
will enable a trial court to enforce
the state policy in the NCC which
encourages the parties to settle
their case amicably, one of which
is
the
conference as part of the pre-trial
conference.
Basing on Rule 18, the
parties have a common duty
for purposes of pre-trial:
1. submission of a pre-trial brief
2. attend the pre-trial conference
If any one of them fails to submit
a pre-trial brief, there are serious
sanctions imposed. Even if they
have timely submitted their pretrial brief but if one party was
absent
in
the
pre-trial
conference, there are serious
consequences.
Sanctions
for
failure
to
attend pre-trial conference or
to file brief:
Plaintiff = dismissal of complaint
with prejudice;
Defendant = plaintiff is allowed
to present his evidence ex parte.
We do not observe anymore the
principle that if the defendant
was unable to attend the pre-trial
conference, or he fails to submit
a pre-trial brief on time, the court
can no longer issue an order
declaring
the
defendant
in
default. What the court will do is
order the plaintiff to present
evidence ex-parte. The decision
of the court will be based on such
evidence.
Law
Review
EX-PARTE PRESENTATION OF
EVIDENCE UNDER RULE 18
VS.
EX
PARTE
EVIDENCE
UNDER RULE 9
Ex Parte Evidence under Rule
18 Defendant has filed an
answer but fails to submit pretrial brief or did not attend pretrial conference, plaintiff can be
ordered to present evidence ex
parte, court will make an award
according with the evidence
presented
by
plaintiff
(application of amendment to
pleadings in order to conform
to evidence).
Ex Parte Evidence under Rule
9 Defendant is in default, ex
parte evidence can be presented,
and the court will only award
those reliefs prayed for in the
complaint.
Note: Amendment of pleading to
conform to evidence is not
applied
in
an
ex-parte
presentation of evidence under
Rule 9 when the defendant is in
default.
Rules applicable to pre-trial
conference in a civil vs.
criminal case = usual Bar Q
source
Effect of pre-trial in civil case and
criminal case about stipulations
of facts.
Civil case stipulations of
facts can be had; joint
stipulation of facts can be
had; in pre-trial conferences,
parties are encouraged to
agree on existence of certain
facts, making them part of
the records of the case;
Verbal stipulations of facts
can
be
allowed
and
considered
valid.
These
stipulations need not be
presented in evidence, as the
court will take judicial notice
of these stipulations, and will
be considered as judicial
admissions.
Criminal case stipulation of
facts should be reduced into
writing,
signed
by
the
counsel of the accused and
accused
himself,
and
approved in court. Otherwise,
it will be inadmissible in
court.
Pre-trial Order court are
required to issues such order
after the termination of the pretrial conference, stating therein
the matters to be taken up and
will
serve
to
control
the
proceedings in trial proper. The
court is required to specify the
issues that have not been
stipulated upon and what should
be the object of the trial
whenever the court finds it
necessary to conduct a trial. This
is an important document in a
civil case insofar as the triable
issues are concerned.
If we follow the decisions of the
SC, the issues that are specified
in a pre-trial order in a civil case,
since
they
control
the
proceedings
to
be
taken
thereafter by the court, the court
can even disregard the pleadings
submitted by the parties after
the pre-trial.
Facts:
The
complaint
was
for
collection of sums of money
amounting to 1M. During pretrial, the parties agree that
the real issue is to recover
possession and ownership
from defendant a piece of
land, instead of collection of
1M
as
stated
in
the
complaint. That is the issue
embodied in the pre-trial
order. Is the pre-trial order
valid?
Yes. Although it is in conflict with
pleadings, Rule 18 is very clear
that it is the pre-trial order that
will govern the proceedings, not
the pleadings.
Although we learn in Evidence
that the issues are those found in
the pleadings in a civil case, the
triable issues for the purposes of
a civil case are those found in the
pre-trial order. There is nothing
wrong in a civil case if we start
with a collection of money case
that is converted to a recovery of
property case in pre-trial, even
without amending the complaint.

This is because what governs the
course of the proceedings is the
triable issue that is specified in
the pre-trial order, as specified
under the last section of Rule 18.
Thus, in our last example, the
court will simply ignore the issue
as to the claim for a sum of
money, as the issue to be tried
will be the issue on the recovery
of possession and ownership of a
piece of land, the issue found in
the pre-trial order.
Why do we allow the trial
court to change the issues
without
changing
the
pleadings?
This is because, during the pretrial hearings, the parties are
present therein. And if they both
agreed to the change of issues in
open court, such as changing the
issues of the complaint from
collection for sums of money to
that of recovery of possession
and ownership of property, then
the court will be simply following
the desire of the litigants as to
what issue to be tried during the
trial.
This is allowed in civil cases only.
It is inapplicable in a criminal
case.
Let us say the court strictly
follows the pre-trial order, and
then reminds the parties that the
issue in the trial will be the
recovery by the plaintiff of
possession and ownership of the
property from the defendant. And
during the trial, the plaintiff was
able to show that he was indeed
entitled to recover, then there is
nothing wrong with that as the
evidence
is
relevant
and
material.
What if during the trial, the
plaintiff
also
presented
evidence that he is also
entitled to recover 1M along
with the property, will it be
allowed?
He cannot, if the defendant
objects. But, if the defendant
failed to object to such evidence,
the plaintiff will be able to
present evidence on an issue not
raised in the pre-trial order.
Law
Review
Why do we allow the plaintiff

to present evidence on an
issue not raised in the pretrial
order,
about
his
entitlement to recover from
the defendant the amount of
1M?
This is because of the rule of
amendment
to
conform
to
evidence. In a civil case, we can
jump from one issue to another
so long as parties agree. The
issue in the pre-trial order could
be different from that raised in
the pleadings, and even issue
tried during trial could be
different from that raised in the
pre-trial order. The parties are
given
much
flexibility
and
allowance in a civil case to
present evidence on any issue
they
so
desire.
The
only
limitation is that the other party
might
object
to
evidence
presented that is not related to
the issue found in the pre-trial
order, that the evidence is
irrelevant and immaterial. If
evidence is allowed, the court
shall issue judgment based on
evidence presented, based on
the rule of amendment to
conform to evidence.
ALTERNATIVE
DISPUTE
RESOLUTION
NCC Compromises and
Arbitration
NCC expresses the policy of the
state that the courts should
encourage litigants to settle
disputes amicably or to submit to
arbitration
if
they
cannot
voluntarily agree to settle the
dispute by themselves.
Domestic Arbitration Act RA
876
Law on ADR gave autonomy
to
contracting
parties
in
submitting their disputes to
alternative modes of dispute
resolution, including prerogative
to agree on the procedure to be
followed in case they enter into
any mode of ADR.
There are 3 recent cases
dealing
with
ADR.
The
principles formed in these 3
cases formed the circular on

arbitration.
Gonzales vs. RTC(2007
case)
Thus, the main issue
raised in the Petition
for
Certiorari
is
whether it was proper
for the RTC, in the
proceeding to compel
arbitration under R.A.
No. 876, to order the
parties to arbitrate
even
though
the
defendant therein has
raised the twin issues
of validity and nullity
of
the
Addendum
Contract
and,
consequently, of the
arbitration
clause
therein as well.
The
resolution of both ClimaxArimcos
Motion
for
Partial
Reconsideration
and/or Clarification in
G.R. No. 161957 and
Gonzaless Petition for
Certiorari in G.R. No.
167994 essentially turns
on whether the question
of
validity
of
the
Addendum
Contract
bears
upon
the
applicability
or
enforceability
of
the
arbitration
clause
contained therein.
The
two
pending
matters
shall thus be jointly
resolved.
***
We address the Rule
65 petition in G.R. No.
167994 first from the
remedial
law
perspective.
It
deserves
to
be
dismissed
on
procedural
grounds,
as it was filed in lieu
of appeal which is the
prescribed
remedy
and at that far beyond
the
reglementary
period. It is elementary
in remedial law that the
use of an erroneous
mode of appeal is cause
for dismissal of the
petition for certiorari and
it has been repeatedly
stressed that a petition

for certiorari is not a
substitute for a lost
appeal. As its nature, a
petition for certiorari lies
only where there is no
appeal, and no plain,
speedy and adequate
remedy in the ordinary
course of law. The
Arbitration
Law
specifically
provides
for
an
appeal
by
certiorari,
i.e.,
a
petition
for
review
under certiorari under
Court that raises pure
questions
of
law.
There is no merit to
Gonzaless argument
that the use of the
permissive
term
may in Sec. 29, R.A.
No. 876 in the filing of
appeals
does
not
prohibit nor discount
the filing of a petition
for certiorari under
Rule
65.
Proper
interpretation
of
the
aforesaid provision of law
shows that the term
may refers only to the
filing of an appeal, not to
the mode of review to be
employed.
Indeed, the
use of may merely
reiterates the principle
that the right to appeal is
not part of due process of
law but is a mere
statutory privilege to be
exercised only in the
manner
and
in
accordance with law.
***
The situation in B.F.
Corporation
is
not
availing in the present
petition.
The
disquisition
in
B.F.
Corporation led to the
conclusion that in order
that the question of
jurisdiction
may
be
resolved, the appellate
court had to deal first
with a question of law
which
could
be
addressed in a certiorari
proceeding.
In the
present
case,
Law
Review
Gonzaless
petition
raises a question of
law,
but
not
a
question
of
jurisdiction.
Judge
Pimentel
acted
in
accordance with the
procedure prescribed
in R.A. No. 876 when
he ordered Gonzales
to
proceed
with
arbitration
and
appointed
a
sole
arbitrator
after
making
the
determination
that
there was indeed an
arbitration
agreement.
It has
been held that as long
as a court acts within
its
jurisdiction
and
does
not
gravely
abuse its discretion in
the exercise thereof,
any supposed error
committed by it will
amount
to
nothing
more than an error of
judgment reviewable
by a timely appeal and
not assailable by a
special civil action of
certiorari. Even if we
overlook
the
employment of the
wrong remedy in the
broader interests of
justice, the petition
would nevertheless be
dismissed for failure
of Gonzalez to show
grave
abuse
of
discretion.
***
Thus, we held in Manila
Electric Co. v. Pasay
Transportation Co. that a
submission to arbitration
is a contract. A clause in
a contract providing that
all matters in dispute
between the parties shall
be referred to arbitration
is a contract, and in Del
Monte Corporation-USA v.
Court of Appeals that
[t]he
provision
to
submit to arbitration
any dispute arising
therefrom
and
the
relationship
of
the
parties is part of that
contract and is itself a

contract.
As a rule,
contracts
are
respected as the law
between
the
contracting
parties
and produce effect as
between them, their
assigns and heirs.
The special proceeding
under Sec. 6 of R.A. No.
876
recognizes
the
contractual
nature
of
arbitration clauses or
agreements. It provides:
SEC. 6. Hearing by court.
A party aggrieved by
the failure, neglect or
refusal of another to
perform
under
an
agreement in writing
providing
for
arbitration may petition
the court for an order
directing
that
such
arbitration proceed in the
manner provided for in
such agreement.
Five
days notice in writing of
the hearing of such
application
shall
be
served either personally
or by registered mail
upon the party in default.
The court shall hear the
parties, and upon being
satisfied
that
the
making
of
the
agreement
or
such
failure
to
comply
therewith is not in
issue, shall make an
order
directing
the
parties to proceed to
arbitration in accordance
with the terms of the
agreement.
If
the
making of the agreement
or default be in issue the
court shall proceed to
summarily
hear
such
issue. If the finding be
that no agreement in
writing providing for
arbitration was made,
or that there is no default
in
the
proceeding
thereunder,
the
proceeding
shall
be
dismissed. If the finding
be
that
a
written
provision
for
arbitration was made
and there is a default in
proceeding thereunder,
an order shall be made
summarily directing the
parties to proceed with
the
arbitration
in
accordance
with
the
terms thereof.
The court shall decide all
motions,
petitions
or
applications filed under
the provisions of this Act,
within ten days after
such motions, petitions,
or
applications
have
been
heard
by
it.
[Emphasis added.]
***
Implicit in the
summary nature of the
judicial proceedings is
the
separable
or
independent character of
the arbitration clause or
agreement. This
was
highlighted in the cases
of Manila Electric Co.
v. Pasay Trans.
Co. and Del
Monte
Corporation-USA v. Court
of Appeals.
The doctrine of
separability,
or
severability as other
writers
call
it, enunciates that an
arbitration agreement
is independent of the
main
contract. The
is to be treated as a
separate
agreement
and the arbitration
agreement does not
automatically
terminate when the
contract of which it is
part comes to an end.
The
separability
of
the
is
especially
significant
to
the
determination
of
whether the invalidity
of the main contract
also
nullifies
the
arbitration
Law
Review
clause. Indeed,
the
doctrine denotes that
the invalidity of the
main contract, also
referred to as the
container contract,
does not affect
the
validity
of
the
arbitration
agreement. Irrespecti
ve of the fact that the
main
contract
is
invalid, the arbitration
clause/agreement still
remains
valid
and
enforceable.
The
separability
of
the
arbitration clause is
confirmed in Art. 16(1)
of
the
UNCITRAL
Model Law and Art.
21(2) of the UNCITRAL
Arbitration Rules.
The separability doctrine
was dwelt upon at length
in the U.S. case of Prima
Paint Corp. v. Flood &
Conklin
Manufacturing
Co. In that case, Prima
Paint and Flood and
Conklin (F & C) entered
into
a
consulting
agreement whereby F &
C undertook to act as
consultant to Prima Paint
for six years, sold to
Prima Paint a list of its
customers and promised
not to sell paint to these
customers during the
same period. XXX
XXX The parties should
be
ordered
to
arbitration if, and only
if,
they
have
contracted to submit
to arbitration. Prima
Paint was not entitled
to
trial
on
the
question of whether
an
arbitration
agreement was made
because
its
allegations
of
fraudulent
inducement were not
directed
to
the
arbitration
clause
itself, but only to the
consulting agreement
which contained the
arbitration
agreement.
Prima
Paint
held
that
arbitration
clauses
are separable from
the contracts in which
they are embedded,
and that where no
claim is made that
fraud was directed to
the arbitration clause
itself,
a
broad
arbitration clause will
be held to encompass
arbitration
of
the
claim
that
the
contract
itself
was
induced by fraud.
The invalidity of the main

contract, also referred to as
the
container
contract,
does not affect the validity of
the
arbitration
agreement. Irrespective
of
the fact that the main
contract
is
invalid,
the
arbitration clause/agreement
still
remains
valid
and
enforceable.
There
is
reason,
therefore, to rule against
Gonzales
when
he
alleges
that
Judge
Pimentel
acted
with
grave abuse of discretion
in ordering the parties to
proceed with arbitration.
Gonzaless
argument
that
the
Addendum
Contract is null and void
and,
therefore
the
arbitration clause therein
is void as well, is not
tenable.
First, the
proceeding
in
a
petition for arbitration
under R.A. No. 876 is
limited only to the
resolution
of
the
question of whether
the
arbitration
agreement
exists.
Second,
the
separability
of
the
arbitration
clause
from the Addendum
Contract means that
validity or invalidity of
the
Addendum
Contract
will
not
affect
the
enforceability of the
agreement
to
arbitrate.
Thus,
Gonzaless petition for
certiorari should be
dismissed.
ABS-CBN
Broadcasting
Corporation (ABS-CBN), a
domestic
corporation,
entered into a licensing
agreement (Agreement)
with World Interactive
Network Systems (WINS)
Japan Co., Ltd. (WINS), a
foreign
corporation
licensed under the laws
of Japan.
Under the
Agreement,
ABS-CBN
granted
WINS
an
exclusive
license
to
distribute and sublicense
the television service
known as The Filipino
Channel (TFC) in Japan.
DOCTRINE OF SEPARABILITY
OR SEVERABILITY
2008 cases
ABS-CBN Broadcasting
Corporation v. World
Interactive
Network
Systems (WINS) Japan
Co., Ltd. (G.R. No.
169332)
11 February 2008
Arbitration
proceedings
were
commenced
by
WINS
after
ABS-CBN
threatened to terminate
the Agreement on the
ground
that
WINS
allegedly
inserted,
without authority, several
episodes
of
WINS
Weekly, a weekly 35minute community news
program for Filipinos in
Japan, into the TFC
programming.
The
arbitrator ruled in favor
of WINS, finding that
ABS-CBN had in fact
given its approval for the
airing of WINS Weekly
and that it threatened to
terminate the Agreement
merely as a strategy to
Law
Review
re-negotiate
fees.
for
higher
WINS filed a petition for

the confirmation of the
award
before
the
Philippine trial court.
ABS-CBN, on the other
hand, questioned the
arbitral award by filing
with the Court of Appeals
a petition for review
under Rule 43 of the
Rules of Court (a mode of
appeal to question errors
of fact and/or law) or, in
the alternative, a petition
for certiorari under Rule
65 (an original action
based on grave abuse of
discretion amounting to
lack
or
excess
of
jurisdiction).
The Court of Appeals
dismissed
ABS-CBNs
petition
for
lack
of
jurisdiction, holding that
it is the trial court which
has
jurisdiction
over
questions
relating
to
arbitration. The Court of
Appeals held that the
only instance it can
exercise jurisdiction over
an arbitral award is an
appeal from the trial
court's
decision
confirming, vacating or
modifying the arbitral
award.
On Appeal, the Supreme
Court affirmed the Court
of Appeals ruling but for
a different reason. On
the procedural issue, the
Supreme Court ruled that
ABS-CBN
cannot
simultaneously avail of
the alternative remedies
under Rule 43 and Rule
65.
On the issue of the
scope
of
judicial
review, the Supreme
Court disagreed with
the Court of Appeals
position
that
an
aggrieved
party
cannot seek recourse
against
an
arbitral
award directly with
the Court of Appeals.
According
to
the
Supreme
Court,
a
party aggrieved by an
arbitral
award
has
three (3) remedies, to
wit: (a) a petition in
the proper trial court
to issue an order to
vacate
the
award
under Republic Act
No. 876 (which applies
to
domestic
arbitration);
(b)
a
petition
for
review
with the Court of
Appeals under Rule 43
of the Rules of Court
on questions of fact,
of
law,
or
mixed
questions of fact and
law; and (c) a petition
for certiorari with the
Court
of
Appeals
under Rule 65 of the
Rules of Court if the
arbitrator
acted
without or in excess of
his jurisdiction or with
grave
abuse
of
discretion amounting
to lack or excess of
jurisdiction.
Section 24 of R.A. No.
876
The grounds to vacate
under Section 24 are:
(a) The
award
was
procured by corruption,
fraud, or other undue
means;
or
(b) That
there
was
evident
partiality
or
corruption
in
the
arbitrators or any of
them;
or
(c) That the arbitrators
were guilty of misconduct
in refusing to postpone
the
hearing
upon
sufficient cause shown,
or in refusing to hear
evidence pertinent and
material
to
the
controversy; that one or
more of the arbitrators
was disqualified to act as

such under section nine
hereof,
and
willfully
refrained from disclosing
such disqualifications or
of any other misbehavior
by which the rights of
any party have been
materially prejudiced; or
(d) That the arbitrators
exceeded their powers,
or
so
imperfectly
executed them, that a
mutual, final and definite
award upon the subject
matter
submitted
to
them was not made.
Rule 43
The Supreme Court noted
that Rule 43 of the Rules
of
Court
expressly
applies
to
awards,
judgments, final orders or
resolutions
of
quasijudicial
agencies,
including
voluntary
arbitrators authorized by
law.
Rule 65
As for the remedy under
Rule 65, the Supreme
Court stressed that it will
not hesitate to review a
voluntary
arbitrators
award where there is a
showing of grave abuse
of authority or discretion
amounting to lack or
excess of jurisdiction,
and there is no appeal,
nor any plain, speedy
remedy in the course of
law.
It should be noted that
the Philippine Alternative
Dispute Resolution Act of
2004
(ADR
Law)
adopted
and
incorporated
the
provisions
of
the
UNCITRAL Model Law on
International Commercial
Arbitration
(Model
Law),
which
limits
recourse
against
an
international
arbitral
award
only
to
the
grounds specified under
Law
Review
Section 34 of the Model

Law (e.g., incapacity of a
party to the arbitration
agreement
or
the
invalidity
of
the
arbitration
agreement
under
the
applicable
law). Neither the Model
Law, nor the New York
Convention
on
the
Recognition
and
Enforcement of Foreign
Arbitral Awards, to which
the Philippines acceded
in 1967, recognize the
setting
aside
of
international/foreign on
the broader grounds of
errors of law and/or fact
or
grave
abuse
of
discretion.
Notably, the ruling in
ABS-CBN treated the
case as a domestic
arbitration
even
though one of the
parties,
i.e.,
WINS,
was
a
Japanese
corporation
and
a
substantial portion of
the obligation, i.e.,
the distribution and
sublicensing of the
The
Filipino
Channel,
was
performed in Japan.
Perhaps this may be
explained by the fact
that the arbitral award
in
this
case
was
rendered prior to the
enactment of the ADR
Law. It was only under
the ADR Law that a
distinction was made
between
domestic
arbitration
and
international
arbitration. Under the
ADR Law, international
arbitration shall be
governed
by
the
Model
Law,
while
domestic
arbitration
shall be governed by
R.A. No, 876. The ADR
Law
adopts
the
definition
of
international
arbitration
under
Article 1(3) of the
Model Law. Domestic
arbitration,
on
the
other hand, defines
domestic
arbitration
as arbitration that is
not international.
Resolution, and for Other

Purposes,
promulgated
on April 2, 2004. Secs.
19 and 20 of Chapter 4 of
the Model Law are the
pertinent provisions:
Koreatec vs. Lerma

January2008
Korea Technologies Co.,
Ltd., v. Hon. Alberto A.
Lerma, et al. (G.R. No.
143581, 7 January 2008),
the Supreme Court held
that the ADR Law,
being
a
procedural
law, may be given
retroactive effective.
Hence, there appears to
be a conflict in this
respect between ABSCBN
and Korea
Technologies.
CHAPTER
4
INTERNATIONAL
COMMERCIAL
ARBITRATION
For domestic arbitration

proceedings, we have
particular agencies to
arbitrate disputes arising
from
contractual
relations.
In case a
foreign arbitral body
is
chosen
by
the
parties,
the
arbitration rules of
our
domestic
arbitration
bodies
would not be applied.
As signatory to the
Arbitration Rules of the
UNCITRAL Model Law on
Arbitration[41] of the
United
Nations
Commission
on
International Trade Law
(UNCITRAL) in the New
York Convention on June
21, 1985, the Philippines
committed itself to be
bound by the Model Law.
We
have
even
incorporated the Model
Law in Republic Act No.
(RA)
9285,
otherwise
known as the Alternative
Dispute Resolution Act of
2004 entitled An Act to
Institutionalize the Use of
an Alternative Dispute
Resolution System in the
Philippines
and
to
Establish the Office for
Alternative
Dispute
SEC. 19. Adoption of the

Model
Law
on
Arbitration.
International commercial
arbitration
shall
be
governed by the Model
Law
on
International
Commercial
Arbitration
(the
Model
Law)
adopted by the United
Nations Commission on
on June 21, 1985 (United
Nations
Document
A/40/17)
and
recommended
for
enactment
by
the
General
Assembly
in
Resolution
No.
40/72
approved on December
11, 1985, copy of which
is hereto attached as
Appendix A.
SEC. 20. Interpretation
of
Model
Law.In
interpreting the Model
Law, regard shall be had
to its international origin
and to the need for
uniformity
in
its
interpretation and resort
may be made to the
travaux
preparatories
and the report of the
Secretary General of the
United
Nations
Commission
on
dated March 25, 1985
entitled,
International
Commercial Arbitration:
Analytical
Commentary
on Draft Trade identified
by
reference
number
A/CN. 9/264.
While RA 9285 was
passed only in 2004, it
nonetheless applies in
Law
Review
the instant case since

it is a procedural law
which
has
a
retroactive
effect.
Likewise, KOGIES filed
its
application
for
arbitration before the
KCAB on July 1, 1998
and it is still pending
because no arbitral
award has yet been
rendered.
Thus, RA
9285 is applicable to
the
instant
case.
Well-settled is the rule
that procedural laws
are construed to be
applicable to actions
pending
and
undetermined at the
time of their passage,
and
are
deemed
retroactive
in
that
sense and to that
extent.
As a general
rule, the retroactive
application
of
procedural laws does
not
violate
any
personal
rights
because
no
vested
right has yet attached
nor arisen from them.
There are certain principles
to keep in mind concerning
arbitration proceedings:
1. Domestic arbitration or a
foreign arbitral body
Domestic arbitration
following RA 876
Foreign
arbitration/commercial
arbitration RA 9285, the
ADR Law
The parties submit to a
panel of/an arbitrator/s.
There is a need for an
arbitration clause.
Parties may agree later
on
to
submit
to
arbitration if there is no
arbitration clause in the
contract.
2. Container Contract - the
principal contract where we
incorporate an arbitration clause.
Some Principles to familiarize
in ADR:
~Principle of Separability
emphasizes that whenever there
is a container contract with an
arbitration clause, from a legal
viewpoint, the parties entered
into two different contracts.
~Principle
of
Judicial
Restraint
~Competence- Competence
Principle of Separability
Arbitration clause
is treated as an
agreement
independent of the
other terms of the
contract of which
it forms part. A
decision
that
the
contract is null and
void shall not entail
ipso
jure
the
invalidity
of
the
arbitration
clause.
(Uncitral Model Law,
Sec. 16(1); Special
ADR Rules 2.2)
If there is a judgment by a
court that the container
contract is unenforceable,
that will not affect the
arbitration clause as it is a
separate contract by itself.
This clause will still govern
the relationship of parties
concerning the filing of cases
in court or arbitration board
as the case may be.
If the arbitration clause is
still valid, and one of the
parties filed a case in court,
allegedly for the enforcement
of his right, then the court,
confronted
with
the
arbitration
clause/contract,
will have to either dismiss
the complaint or suspend the
proceedings and compel the
parties to go into arbitration.
Under the decisions of the 3
cases, the court also emphasize
that there could be a complaint
to declare the unenforceability of
or to declare void the arbitration
contract. It is an RTC that has
jurisdiction to do so. But even if
there is a pendency of such a
case to declare unenforceability
of or to declare void the
arbitration contract, it shall not

serve to prevent the parties from
proceeding to arbitration. In fact,
these cases came out with a
principle which the court called
the Principle of Anti-Suit
Injunction.
The Principle of Anti-Suit
Injunction means that the
court has no authority to
issue a writ of injunction to
prevent an arbitration from
proceeding or an arbitration
board to be constituted for
the purpose of enforcing the
arbitration clause.
Competence-Competence.
What is the CompetenceCompetence Principle?
Power of arbitral tribunal to
initially rule on the question
of its jurisdiction over a
dispute
including
any
objections with respect to the
existence or validity of the
arbitration agreement or any
condition precedent to the
filing
of
a
request
of
arbitration.
The Special ADR
Rules recognize the
principle
of
competencecompetence, which
means
that
the
arbitral
tribunal
may initially rule on
its own jurisdiction,
including
any
objections
with
respect
to
the
existence
or
validity
of
the
arbitration
agreement or any
condition precedent
to the filing of a
request
for
arbitration.
A.M.
No.
07-11-08-SC
Special Rules on
ADR
Restatement of the Rule:
Before the arbitral tribunal is
constituted,
the
regular
courts have jurisdiction to
determine
the
issue
of
competence of a tribunal.
Law
Review
The moment the arbitral

tribunal is constituted, the
arbitral
tribunal
has
jurisdiction.
There arises a policy of judicial
restraint, such that the finding
of
the
court
on
the
jurisdiction of the arbitral
tribunal is at best prima
facie.
Note:
There is a before Arbitration
Tribunal,
after
Arbitration
Tribunals finding, and after-after.
Competence-competence
means that the arbitral body

has the authority to rule on
the issue as to whether or
not it has jurisdiction over
the
case
and
the
enforceability and validity of
its
decisions. IT IS NOT
EXCLUSIVELY GIVEN TO A COURT.
There could be a situation that
an RTC will declare that the
arbitration
clause
is
unenforceable,
but
the
arbitration board declared such
clause enforceable, the decision
of the board will prevail.
The RTC may have the authority
to entertain a petition to declare
void
or
unenforceable
an
arbitration
clause.
But
the
decision of the RTC is merely
prima facie. We will rely the
findings later on of the arbitral
tribunal. This is the principle of
competence-competence. (Dean
Jara)
Does
the
prima
facie
finding of the court mean
that the arbitral tribunal can
still be formed?
Yes. If the court finds that the
arbitration agreement is null and
void, inoperative or incapable of
being performed, a party may
nevertheless
commence
arbitration and constitute the
arbitral tribunal.
So where does prima facie
finding of the court come in?
How is it prima facie?
This means that the same issue
may be passed upon by the
arbitral tribunal, which has the
effect
of
superseding
the
previous of the court. (This is the
AFTER ruling.)
What about the after-after
ruling?
The same issue may be passed
upon in an action to vacate or set
aside the arbitral award (Rule
3.11) In this case, it is no longer
a prima facie determination of
such issue or issues, but shall be
a FULL REVIEW of such issue or
issues with due regard, however,
to the standard of review for
arbitral awards.
But how may arbitration
commence if it the court has
made a prima facie finding
that
the
arbitration
agreement is found null and
void, inoperative or incapable
of being performed? Will the
other party who got the
favorable ruling of the court
participate / cooperate?
Get an appointment of arbitrator
sole
arbitrator,
ad-hoc,
institutional.
Principle of Judicial Restraint
there should be least
intervention by courts of
courts of justice insofar as
arbitration proceedings are
concerned. So, if there is an
ongoing arbitration, or even if
there is a pending case there is a
right to compel one of the parties
to submit to arbitration, the
court should not interfere in
the
constitution
of
the
arbitral board. The reasoning
behind is that when the parties
crafted the arbitration clause,
there is an implicit understanding
between the parties is that an
arbitral board, and not a court of
justice, should resolve their
dispute. The court deems this as
a valid contract as it is the policy
is to give autonomy to the
parties in choosing the manner
to adjudicate their disputes. They
do not need to go to a court of
justice. They can go to an
arbitration body, which is a faster
and practical means of settling
their disputes.
Rule
2.4.
Policy
implementing
competencecompetence principle.
The
arbitral
tribunal shall be
accorded the first
opportunity
or
competence to rule
on the issue of
whether or not it
has the competence
or jurisdiction to
decide a dispute
submitted to it for
decision, including
any objection with
respect
to
the
existence
or
validity
of
the
arbitration
agreement. When a
court is asked to
rule upon issue/s
affecting
the
competence
or
jurisdiction of an
arbitral tribunal in
a dispute brought
before
it,
either
before or after the
arbitral tribunal is
constituted,
the
court must exercise
judicial
restraint
and defer to the
competence
or
jurisdiction of the
arbitral tribunal by
allowing
the
arbitral tribunal the
first opportunity to
rule
upon
such
issues.
Where the court is
asked to make a
determination
of
whether
the
arbitration
agreement is null
and
void,
inoperative
or
incapable of being
performed,
under
this
policy
of
judicial
restraint,
the
court
must
make no more than
a
prima
facie
determination
of
that issue.
Law
Review
Unless the court,

pursuant to such
prima
facie
determination,
concludes that the
arbitration
agreement is null
and
void,
inoperative
or
incapable of being
performed,
the
court must suspend
the action before it
and
refer
the
parties
to
arbitration
pursuant
to
the
arbitration
agreement.
A.M. No. 07-11-08SC Special Rules on
ADR
Can an arbitral body or
arbitrator grant provisional
remedies?
The circular on arbitration as well
as jurisprudence states that yes,
arbitration board can be allowed
to grant provisional remedies or
interim relief. Art. 17 J of
UNCITRAL Model Law on ICA also
grants
courts
power
and
jurisdiction to issue interim
measures. Thus, a panel of
arbitrators can issue a writ of
preliminary injunction, a writ of
preliminary attachment, they can
appoint a receiver, and even can
issue a protection order so that
the property in dispute may be
preserved.
If a court of justice grants interim
relief or provisional relief that is
in conflict with the relief granted
by the arbitral body, it is the
relief granted by the arbitral
body that shall prevail. This
emanates from the principle of
Anti-Suit Injunction and Principle
of Judicial Restraint.
Principle of Anti-Suit
Injunction
~The remedial device
available in common law
systems to restrain a
party from instituting or
continuing
with
proceedings in a foreign
court.
~Refers
to
an
extraordinary procedure
where a court issues an
order to the effect that
proceedings in a second
jurisdiction should not
precede. It is necessary
to
prevent
an
irreparable miscarriage
of justice.
is
final
and
executory,
especially if confirmed by the
RTC.
The Complaint in the arbitration

board must contain the evidence
(attachments) and the legal brief,
an argument supporting the
partys stand as to why his claim
must be given weight and
granted. Defendant must file a
response of similar composition
to such complaint (with legal
brief). The legal brief is similar to
a memorandum (In ordinary civil
procedure, when there is an
appeal, then we require filing of a
brief in the court.).In short, this is
a short cut of the civil procedure.
Supposing the RTC vacates

award, setting it aside. Can
the
RTC
make
its
own
decision
concerning
the
merits of the decision?
Not possible. Although a court of
justice can vacate, modify or
correct an arbitral award, it has
no authority to render its own
judgment on the merits. The
domestic arbitration law and the
SC Circular said that if the court
decides to vacate the award, the
court does not have the
authority
to
change
the
conclusions of law of the
arbiter. The principle is a
court cannot render its own
decision on a case already
submitted
for
arbitration.
While it can vacate, modify or
correct the award, and it
does so, the court should
return the decision to the
arbitration panel for further
study, or the parties can opt
to have a new arbitration
panel constituted. The court
cannot impose its own judgment
on the merits of the case. The
court can review the case, and
modify, vacate or correct the
AWARD, but it cannot reverse the
findings of facts and conclusions
of the arbiter.
There is no summons issued by

the arbitration board, just a
notice for filing a response.
Service thereof can be had by
private courier.
Because of the requirement of
prior submission of evidence
together with the filing of
pleadings and legal brief, it is
easy to appreciate how the
arbitration board can easily grasp
what the issues are all about and
they can right away render an
arbitral award. But it can require
the submission of additional
evidence if needed. There is a
provision in the ADR rules which
states that the technical rules of
evidence
will
not
govern
proceedings therein.
Let us say that the winning party
wants the arbitral award to be
treated like a judgment of the
court, he simply files with the
RTC to confirm arbitral award. He
can do it at any time. If arbitral
award is confirmed by the RTC,
the arbitral award ceases to be
such and is now a judgment that
can be executed under Rule 39.
Violation thereof can cause
winning party to file motion for
execution
of
judgment.
In
arbitration, an arbitral award
The losing party can file a

petition with the same RTC which
has authority to confirm the
award for purpose of vacating,
correcting or modifying said
award.
Supposing the RTC affirms

the arbitral award, does the
losing party still have a
recourse?
The recourse of the losing party
is to appeal in the CA via Petition
for Review under Rule 43. The
justification for this remedy is
that in the enumeration of quasijudicial bodies whose decision
can be reviewed by the CA, it
includes the review of an award
made by arbitrators. From Rule
43, there can be an appeal to the
SC via a Petition for Review
under Rule 45.
Law
Review
There is a judicial review for

reviewing arbitration cases. But
the reviewing courts will have
limited authority concerning the
manner by which the judgment
could be held. The court cannot
change the factual findings of an
arbitral body. In case of a review
brought to the RTC, CA or SC
involving arbitral award, there
are few grounds mentioned. We
cannot raise Questions of law or
fact. We have to follow the
grounds mentioned in RA 876.
Grounds for justifying a court
of justice in issuing an order
to vacate the award:
1. arbitrator engages in corrupt
practices
2. arbitrator resolved issues not
brought before him
3.
arbitrator
exceeded
his
authority
4.
failure
to
disclose
his
relationship to one of the parties
within 6 degrees.
Note :These are not the usual
grounds of appeal in civil cases.
The courts should see to it that
causes should be founded on
these grounds for granting the
vacation of an award.
With respect to International
Commercial Arbitration, which
can be held in RP or outside. A
foreign arbitral award will be
treated
like
a
domestic
arbitral award, not a foreign
award. It is not considered a
judgment rendered in a court
of justice. Even if confirmed by
a foreign court, the prevailing
party must petition for the
recognition of the award in the
RTC. It can be enforced in RP by
filing in RTC for a petition of
recognition and enforcement of
the arbitral award. Its execution
will fall under RTC jurisdiction,
under Rule 39. The last section
of Rule 39 talks about the
judgment
rendered
by
the
foreign court.
Rule 39, SEC. 48. Effect
of foreign judgments or
final
orders.The
effect of a judgment or
final order of a tribunal
of a foreign country,
having jurisdiction to
render the judgment or
final
order,
is
as
follows:
Sec. 48, Rule 39. But we do not

apply Section 48, Rule 39 to a
foreign arbitral award, as it is not
a judgment rendered by a foreign
court.
(a) In case of a
judgment or final order
upon a specific thing,
the judgment or final
order
is
conclusive
upon the title of the
thing; and
(b) In case of a
against a person, the
is
presumptive
evidence of a right as
between the parties
and their successors in
interest
by
a
subsequent title.
Supreme Court has inserted in

the
rules
remedies
made
available to the parties in
ordinary cases. If a local court or
an arbitral body makes a finding
that the arbitration clause is valid
and binding, it is inappealable.
But if the arbitral body makes a
finding that the clause is invalid,
the decision is appealable to a
trial court. If there is a finding
that the arbitrator is qualified,
the motion for reconsideration,
appeal, or a petition under Rule
65 against such finding are all
prohibited. This is to emphasize
the policy of judicial restraint
insofar as arbitration proceedings
are concerned.
In either case, the

may be repelled by
evidence of a want of
jurisdiction, want of
notice to the party,
collusion,
fraud,
or
clear mistake of law or
fact.
The remedy of a winning party in
a case decided by a foreign
court,
for
the
enforcement
thereof in RP, is to file a petition
for the enforcement of the
foreign judgment. There is no
need to file a petition for
recognition
of
a
foreign
judgment. Our laws do not
recognize a foreign arbitral award
as a judgment of a foreign court,
it is just an arbitral award. Thus,
the prevailing party in an arbitral
award cannot make use of
Section 48 under Rule 39. He
must avail of another remedy
provided by the SC Circular,
which is a petition for recognition
and enforcement of foreign
arbitral award in the RTC.
The court can refuse to resolve a
petition for recognition and
enforcement of a foreign arbitral
award; unlike in the case of a
foreign judgment rendered by a
foreign court, where the decision
is conclusive upon our courts,
subject to the last paragraph of
If there is an appeal in the higher

court for a petition for review of
an arbitral award, the ADR law
also provides that the appellant
should file a bond equal to
the award given by the panel
of arbitrators; whereas in
ordinary appeal, there is no need
to file an appeal bond. In
ordinary court procedure, there is
no need to file an appeal bond as
it has been done away by BP 129
(requiring only the filing of the
mode of appeal and docket fees).
Read the SC Circular and the
cases.
Intervention
4 kinds of intervention expressly
recognized by the court:
1. Intervention upon courts
discretion
Rule 19 intervention upon
courts discretion; a stranger to a
case
voluntarily
introduces
himself as a party, but must seek
court permission to do so via
Motion for Intervention.
Motion for intervention should
show:
1. intervenor had direct interest,
or
2. he has a grievance against
both parties in the pending case,
or
Law
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3. he wants to side with one of

the parties, or
4. is situated in a very
unfortunate position wherein the
judgment of the court could
adversely affect his properties.
In this situation, intervention is
not a matter of right as he is
required to file a motion subject
to the courts decision. In the
resolution of the motion, the
court has the discretion to grant
or deny the motion. If the motion
is denied, the intervenor can file
a separate case against any one,
or both, parties. If his case is
already filed, he can seek to have
the cases consolidated, in the
instance that consolidation is
proper. If there is a consolidation,
then the intervenors desire is
also satisfied, as he can no
participate in the proceedings.
If motion is granted, intervenor is
required to file a pleading (either
a complaint- or an answer-in
intervention).
Complaint-in-intervention
filed if the intervenor either

wants
to
side
with
the
complainant or is filing a
complaint
against
both
complainant and defendant in
the main complaint.
Answer-in-intervention filed
if the intervenor wants to side
with the defendant.
The filing of these pleadings do
not preclude the intervenor from
availing of the other pleadings
allowed in a civil case (counterclaim, cross-claim, third-party
complaint, etc.).
Do we recognize a motion to
intervene as a matter of right
on the part of the intervenor,
wherein the intervenor can
insist or compel the court to
allow his intervention?
Yes, this is found in a class suit,
where any member of the class
has the right to intervene, and
can ask the court for the
authority to intervene. The court
has no option but to grant the
intervention.
2.
Court-mandated
intervention court itself
directly induces the party to
intervene in an existing or
pending litigation. (Rule 9, in
marriage-related cases)
In marriage related cases in Rule
9, if the defendant in a marriagerelated case does not answer,
the court has no authority to
declare
a
non-answering
defendant in default, but can
direct the prosecutor to intervene
in order to determine that there
is no collusion between parties.
3. Forced intervention a
person becomes an intervenor by
operation of law, Rule 57 and
Rule 39.
Rule 39 when the court issues
writ of execution and the
properties of the losing party
have been levied upon, and
sheriff also issues the ancillary
writ of garnishment. When the
properties of a judgment debtor
in the possession of a 3rd person
are subjected to a writ of
garnishment, that 3rd person
becomes a forced intervenor in
the proceedings. That person will
have to obey the orders of the
court issued in relation to the
execution, whether the 3rd
person likes it or not, he will be
forced to act as an intervenor to
the case.
Rule 57 Preliminary attachment
forced intervention; if there is a
writ of preliminary attachment
issued
by
the
court,
a
supplemental
writ
of
garnishment is issued, and the
writs were enforced by the sheriff
upon a 3rd person, that 3rd
person
becomes
a
forced
intervenor in the proceedings.
4.
Court-encouraged
intervention
Writ of Kalikasan cases it is
a
court-encouraged
intervention for NGOs and
other parties to intervene
whenever there is a petition
filed under Kalikasan laws..
The court cannot compel the
intervention of these bodies,
only to encourage them.
There are some cases whose

positions it appears to be in
conflict with one another in
reference to the intervention
under Rule 19.
Before the court grants a
motion for intervention, the
principal case was dismissed
with the motion unresolved.
What happens to the motion
for intervention?
It
will
render
the
motion
academic.
The
motion
presupposes the presence of a
principal action. Absent thereof,
there can be no intervention
allowed. Intervention is always
ancillary to a principal action.
Metrobank vs. CA (Dismissal
of the main action will not
render intervention moot and
academic)
A motion for intervention was
filed while the case was pending.
The
court
granted
the
intervention. After receipt of the
order allowing him to intervene,
the party filed a complaint-inintervention against all the
parties in the case. Intervenor
did not realize that the parties of
the case were settling. The
parties did arrive at an amicable
settlement. The parties sought
for the dismissal of the case,
which
was
allowed.
The
intervenor objected to idea of
having his petition dismissed.
The principal parties told the
court that it is axiomatic in
intervention
that
once
the
principal
action
has
been
terminated, the subsidiary action
is dismissed also.
SC Held that the intervention was
already allowed. The principle
that the contention of the parties
was applicable only in the
instance the motion to intervene
was not yet granted. In this case,
the court has already granted the
motion to intervene. The interest
of intervenor was not common
with the interest against the
other parties, having filed a
complaint-in-intervention against
both
parties.
Thus,
the
intervention should be allowed to
stand, the standing of which, the
intervention is considered a
Law
Review
separate
case
against
the
parties. Here, the intervention
survived.
The MetroBank case involves a
situation
where
in
the
intervention will survive the
dismissal of the main complaint.
But, for the intervention to
survive, the pleading to be filed
must
be
a
complaint-inintervention against both parties
to the case. This will not be
applicable if the intervention was
in the form of a complaint-inintervention where the intervenor
sides with the plaintiff or if the
intervention was via an answer in
intervention.
Although the rule provides a time
frame for an intervenor to be
allowed to intervene, the SC has
allowed intervention to take
place, even if there is already a
pending appeal before the CA.
The Rule is very clear that
intervention should be allowed
before judgment is rendered by
the trial court. After judgment is
rendered by the trial court,
intervention should be no longer
allowed. But, the SC recognized
the propriety of an intervention
even if the case was already
pending appeal in the CA or the
SC.
In the first instance where the
court will allow an intervention,
even on appeal, is when the
intervenor is an indispensible
party. If an intervenor attempts
to intervene if the case is already
on appeal, that will save the trial
court, CA and SC from another
procedural problem. We learned
that if the trial court renders a
decision in a case where an
indispensable
party
is
not
impleaded, that decision will
never be final and executory. So,
if on appeal, if the indispensable
party intervenes, then he should
be allowed to do so, because if
he is allowed, that will cure all
the procedural effects that will be
present in this particular case.
That will solve the problem of
whether or not there could be a
final determination of the case or
whether or not the decision can
be finally be executed under the

provisions of Rule 39.
Another situation that the SC
allowed
an
intervention
to
happen even if the case is
already is on appeal is when the
Republic
of
the
Philippines
intervenes in the case. If the
Republic of the Philippines, via
the Solicitor General, intervenes
in a case that is already on
appeal, the SC said that the
intervention of the Solicitor
General must be of national
importance, since the Solicitor
General intervenes only when
the case is of paramount interest
to the Republic of the Philippines.
MODES OF DISCOVERY
The modes of appeal that we
have in a civil procedure are also
available in a criminal case.
The SC in the WEBB CASE came
out with the principle that the
Modes of Discovery available in
civil cases are also available in
criminal
cases.
The
only
difference is that the use of the
mode of discovery should not
violate
or
derogate
the
constitutional
right
of
the
accused.
For instance, in a civil case, there
is nothing wrong if the plaintiff
takes the deposition of the
defendant, or the other way
around. But in a criminal case,
there is something wrong if the
prosecutor takes the deposition
of the accused. The prosecutor
cannot take the deposition of the
accused in a criminal case as this
is a violation of the constitutional
right of the accused. But
prosecutor
can
takes
the
deposition of a witness whom
the accused wants to present
in court, so long as the witness
is not the spouse of the accused
(due to marital privilege; the rule
on evidence precludes a spouse
being a witness against the other
spouse).
But in a civil case, there is
nothing irregular about either the
plaintiff or defendant being
subject to deposition. This is
even encouraged by the rules

found in civil procedure.
Do the rules compel litigants
to avail modes of discovery?
Refer to Rule 18 first on Pre-Trial
In Rule 18, the plaintiff is asked
to indicate if he desires to make
use modes of discovery or use
ADR. They are required to
manifest that to the court.
Let us say that Plaintiff asked
for leave to use modes of
discovery, but he failed to do
so. Can the court compel the
plaintiff to avail it?
No, the court cannot compel,
merely encourage the use of
modes of discovery.
Indirectly, the Rules to have
instances
where
the
law
indirectly compels litigant to use
modes of discovery. Otherwise he
will suffer some sanctions given
in the Rules.
Examples of these Rules would
be those under Rule 25 and Rule
26.
Admission or interrogatories to
parties. sanction under Rule 25
and 26
Whether
admissions
or
interrogatories to parties, there
are practically identical sanctions
imposed by the Rules.
In interrogatories to parties, the
last section of Rule 25 (Section 6)
provides that while a plaintiff can
compel the defendant to testify
during the trial of the case as a
witness for the plaintiff, and also,
the defendant can compel the
defendant to testify as a witness
during the trial, this cannot be
done unless the plaintiff or
defendant has previously served
upon the party concerned an
interrogatory. If the plaintiff
serves
a
subpoena
ad
testificandum to the defendant,
requiring
the
defendant
to
appear and testify in court on
behalf of the plaintiff, the
defendant can ask for that
subpoena to be quashed for
failure of the plaintiff to comply
with requirements contained in
Law
Review
Rule 25 Section 6. For the

plaintiff
can
compel
the
defendant to testify, the plaintiff
must have served a written
interrogatories
upon
the
defendant. If plaintiff cannot
show that he was able to serve
such written interrogatories, the
defendant can move for the
quashal of the subpoena, and
defendant cannot be compelled
to be a witness in the case.
Rule 25 SEC. 6.
Effect of failure to
serve
written
interrogatories.
Unless
thereafter
allowed by the court
for
good
cause
shown and to prevent
a failure of justice, a
party not served
with
written
interrogatories
may
not
be
compelled by the
adverse party to
give testimony in
open court, or to
give a deposition
pending appeal.
Admission last section of Rule
26
The same rule on Rule 25 Section
6 is practically the same for
admissions.
In
fact,
these
provisions of Sec. 5 Rule 26 and
Sec. 6 Rule 25 pertain to
competency of certain evidence.
If an evidence is relevant, the
general rule is that the evidence
should be admissible, unless it is
not
competent
under
the
provisions of our law or certain
rules. In Sec. 5 Rule 26 and Sec.
6 Rule 25, certain relevant
evidence may be rendered
INADMISSIBLE or INCOMPETENT
for failure of the party to follow
the requirements given in these
modes of discovery. Certain
matters may not be proven by a
party unless that party complied
with the requirements given
under Sec. 5 Rule 26 or Sec. 6
Rule 25. So the sanction that the
Rules imposes so the party will
be compelled to avail of the
modes of discovery is that the
evidence that the evidence
sought to be presented by the
proponent
could
become
inadmissible,
the
otherwise
relevant evidence will become
incompetent by reason of the
provisions of these Rules. That
will compel the party to avail of
the modes of discovery.
Rule 26 SEC. 5. Effect
of failure to file and
serve
request
for
admission.Unless
otherwise allowed by
the court for good
cause shown and to
prevent a failure of
justice, a party who
fails to file and
serve a request for
admission on the
adverse party of
material
and
relevant facts at
issue which are, or
ought to be, within
the
personal
knowledge of the
latter, shall not be
permitted
to
present
evidence
on such facts.
Other than these, there is
nothing in our Rules that requires
a party to avail of the modes of
discovery. Availment of a mode of
discovery, as a general rule, is
purely voluntary on the part of an
interested party.
Another
basic
principle
in
discovery measures is that after
an answer is filed by the
defendant, availment of the
modes of discovery does not
require permission of the court.
The plaintiff or defendant is given
the prerogative to avail of the
modes of discoveries like taking
of depositions or interrogatories
to parties or admissions to
parties. The other modes of
discovery will ALWAYS require
leave of court. Thus production
and inspection of documents or
things in court will always require
leave of court, as does physical
and mental examination of a
person. But in the case of
depositions
pending
trial,
interrogatories or admissions, we
do not need leave of court so
long as the defendant

already filed an answer.
has
DEPOSITION
BEFORE
AN
ACTION OR ON APPEAL.
Deposition before action
called
in
the
past
as
perpetration of testimonies.
Strictly, it is not a mode of
discovery, as modes of discovery
assumes that there is a pending
case in court. A deposition before
action does not require an action
to be pending, and is thus
treated as an independent action
by itself. This is availed of by
filing a Petition for Perpetration of
Testimony, as there is no action
filed yet.
Since this is an independent
proceeding, with what court
should we file the petition?
Petition to Perpetuate Testimony
RTC. If we follow BP 129, that
petition would be cognizable
under the RTC since it is an
independent action incapable of
pecuniary estimation. Regardless
of the contemplated action to
which we are going to file, a
Petition to Perpetuate Testimony
is always cognizable by an RTC.
If there is already a complaint
that is filed and an answer has
been filed by the defendant, the
court will allow the use of the
modes of discovery that will not
require leave of court, such as
the taking of a deposition. The
court has allowed the use of
these modes of discovery as a
fishing expedition. Practically
there is no limitation as to what
matters can be inquired into
insofar as availment of discovery
measures are concerned. It is not
required that the matters sought
be discovered are relevant right
away to the issues presented in
the case.
When the law says that the
statutes of discovery allow a
fishing expedition, it does not
mean to say that the statutes of
discovery are intended only to
gather evidence on behalf of the
interested party. He may want to
obtain
information
only
for
tactical advantage during the
Law
Review
course of the case. He does not

have to present evidence in court
information that is gathered by
him
via
these
modes
of
discovery.
But, even if the party is allowed
to gather information through the
modes of discovery what the law
limits is the use of evidence
gathered. So, if the plaintiff was
able to gather information, let us
say, from a witness who,
according to the pre-trial brief of
the defendant, would be principal
witness for the defendant, it does
not mean that the deposition
given by such witness will readily
be admissible in court in view of
the testimony of this defendants
witness. The fact that a party has
taken the deposition of a
potential witness does not mean
to say that this potential witness
will now be excused from going
to court to give his testimony.
The giving of deposition is
different
from
the
giving
testimony in open court. A party
may give his deposition, but it
does not mean that he is
excused from testifying in court.
In fact, the Rules require that if
the party has already given his
deposition, he is still required to
testify in court. His deposition will
not take the place of his the
testimony in court. This is
because the taking of his
deposition is only a discovery
measure. The deponent does not
appear before the trial court to
testify. He gives his deposition
not before a trial judge, but
before another person who is
simply authorized to administer
oaths.
For instance, if the case is
pending here in Manila, and
there is a potential witness
whose deposition is required
by the plaintiff, and this
witness is also a resident of
Manila,
can
the
plaintiff
require this potential witness
to give his deposition?
Yes.
After the potential witness
has given his deposition, and
later
on,
this
witness
receives
a
subpoena
requiring
him
to
give
testimony in open court, can

the potential witness file a
motion to quash subpoena as
he had given a deposition of
his testimony?
No, as the giving of a deposition
cannot take the place of giving
testimony in open court. The
deponent
can
always
be
compelled to give his testimony
in open court. Though his
testimony may be a repetition of
his deposition, it still does not
matter. He still has to give his
testimony in open court.
If
the
witness
has
given
testimony in open court, what is
the use of the deposition he had
previously given?
Deposition previously given can
be used to impeach the
witness or corroborate the
witness statements in the
testimony. This is the principle of
evidence called Laying The
Predicate.
Laying the Predicate: Refer to
statements, oral or documentary,
made by the witness sought to
be impeached on occasions other
than the trial in which he is
testifying
Q: What are the elements of
laying the predicate?
A:
1. The alleged statements
must be related to the witness
including the circumstances of
the times and places and the
persons
present.
If
the
statements are in writing they
must be shown to him;
2. He must be asked whether
he made such statements and
also to explain them if he
admits
making
those
statements (Riano, p. 327).
Q: When is the rule on
laying
the
predicate
inapplicable?
A: It is inapplicable if the prior
inconsistent
statement
appears in a deposition of the
adverse party, and not a mere
witness, that adverse party
who
testifies
may
be
impeached without laying the
predicate
as
such
prior
statements are in the nature
of admissions of said adverse

party. (Regalado, Vol. II, p.
852, 2008 ed.)
Q: What is the purpose of
laying the predicate?
A: The purpose of which is to
allow the witness to admit or
deny the prior statement and
afford him an opportunity to
explain
the
same.
Noncompliance
with
the
foundational elements for this
mode of impeachment will be
a ground for an objection
based
on
improper
impeachment. Over a timely
objection, extrinsic evidence
of
a
prior
inconsistent
statement
without
the
required foundation is not
admissible. (ibid)
Is
it
possible
the
deposition can be the
testimony of the witness?
Yes, if the witness is more
than 100 km from the court,
and the witness invokes his
viatory right, the deposition is
allowed to take the deposition
and the court can consider the
deposition the testimony of
the witness.
If a deposition has already
been given, is it possible that
his deposition will be treated
as his testimony in open
court?
That is also possible. If the
deponent, if called upon by the
court to testify, will invoke his
Viatory Right.
Where the witness resides more
than
one
hundred
(100)
kilometers from his residence to
the place where he is to testify
by the ordinary course of travel,
the witness may invoke that he
be not allowed to testify (Viatory
Right). The witness can ask the
court that he be excused from
giving his testimony in open
court. Even if the court issues a
subpoena, the witness may
ignore such subpoena. He cannot
be
cited
in
contempt
for
disobedience
thereof.
The
remedy of the court is to allow
the taking of the deposition, and
the court can then consider the
100 | R e m e d i a l
Law
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deposition
taken
as
his
testimony. In other words, the
fact that a deposition has already
been taken from a person does
not mean that the said person
will be excused thereafter from
going to court in order to be a
witness. That is possible only in
exceptional cases mentioned in
Rules, one of them being when
the witness invokes his Viatory
right. Or even if there is no
viatory
right,
if
the
witness/deponent is physically
incapable of going to court in
order to testify, the court can
consider
the
deposition
previously given as his testimony
in court.
TRIAL
Can a trial court decide a
case properly and validly if
the court does not conduct a
pre-trial or a trial for that
matter?
Yes.
Although
pre-trial
is
mandatory and though trial must
be had due to triable issues, the
court can just skip these stages
and
render
judgment.
Ex.
Judgment by default, judgment
on the pleadings.
trial. The plaintiff can move right

away for a judgment on the
pleadings.
Judgment
based
upon
a
compromise. Parties entered
into a compromise agreement
during pre-trial, the court concurs
the validity of the compromise
agreement, the court will render
a
judgment
based
upon
compromise.
If you will notice that in the
deliberation of the Rules on
certain
special
kinds
of
judgments, like judgment on the
pleadings, demurrer to evidence
or summary judgment, the core
element of these special kinds of
judgments is that if there is a
trial conducted by the court, it is
not a full blown trial.
Summary Judgment not a fullblown trial
Demurrer to Evidence not a
full-blown trial, only of the trial
contemplated under Rule 30.
Defendant does not present
evidence.
Supposedly the defendant filed

his answer, can we still do away
with the trial?
Yes, we follow the special kinds
of
judgments
whenever an
answer is filed as found under
the rules.
But in instances where there are

genuine triable issues, and the
parties cannot agreed to the
facts that should be given to the
court so it can decide the case
properly, the court will have to
conduct a trial. The parties are
then given the opportunity to
make use of evidentiary rules,
which is not required before trial.
There is no offer of evidence
during pre-trial. At most, if there
is evidence presented during pretrial, it is only for marking them
as exhibits. In a pre-trial brief,
the parties just identify the
documental evidence, the real
evidence
and
testimonial
evidence in the form of affidavits.
What the parties doe in pre-trial
is to mark these as exhibits.
Special judgments where an

answer is filed by defendant
There can be a judgment on
the pleadings if the answer
does not raise any issue at
all,
or
even
admits
the
allegations in the pleadings.
There need to be no pre-trial and
The trial of the case shall govern

the pre-trial order. Only the
issues specified in the pre-trial
order will be the order of trial.
But this Rule is not strict as the
Rules
allow
amendment
to
conform to evidence. If we follow
strictly the Rules and we do not
Judgment by default it is a
judgment on the merits, no trial
and pre-trial is conducted. Under
Rule 9, if the court declares
defendant in default since he did
not file an answer, one of the
options is to immediately render
a judgment without requiring
plaintiff to present his evidence
ex parte.
allow amendment to conform to

evidence, then the only issues
specified in the pre-trial order will
be tried.
If there are genuine triable
issues, can the court do away
with the trial?
Yes. The parties can help the
court avoid a trial if the parties
stipulates on facts that are in
dispute. If the parties submit to
the court complete stipulation of
facts, that the court need only
review the law applicable, then
the court can render a decision
on the case. The court need not
conduct a trial. Trial is only a trial
of factual issues. It cannot be a
trial of legal issues. This is
because the court is presumed to
know the law applicable to a
given state of facts. The trial
contemplated under Rule 30 is a
trial of facts in dispute. But if the
parties decide that these facts
are no longer disputed, and they
manifested to the court that they
agree fully to the existence of
these facts, then the trial may be
avoided. The next stage will just
be the rendition of judgment.
In civil procedure, although there
is a section in Rule 30 on written
stipulation on facts, the court
liberally
allows
verbal
stipulations. Example, during the
pre-trial conference, everything
stipulated upon may be done
verbally.But since the pre-trial
conference is part of the court
proceedings,
everything
is
recorded
by
the
court
stenographer. The stenographer
will transcribe the records and
what the court will readily decide
that there has been a stipulation
of facts between the parties.
The order of trial in Rule 30 is the
general rule. The order of trial
follows
the
sequence
of
argumentation of pleadings. The
affirmative side, the plaintiff, will
first present his side, and then
the negative side, the defendant,
will set forth his defenses. Once
the defendant is done presenting
his evidence, then the court may
allow parties to submit rebuttal
evidence or even sur-rebuttal
evidence. But the court does not
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allow the presentation of rebuttal

evidence
or
sur-rebuttal
evidence, the trial will end after
the defendant has rest his case.
Can the court terminate the
case after the defendant
rests?
Rule 30 gives an option to the
judge, to require the parties to
submit
their
respective
memoranda to help the court in
arriving at a decision.
Does
failure
to
submit
memoranda when required to
do so result in dismissal of
the case?
Yes, under Rule 17, for failure to
obey lawful court orders.
The order of trial can be
changed. If the court requires
defendant to present evidence
ahead, then the reversal of the
order is had. If the defendant had
set up the affirmative defense of,
for example payment, then the
order is reversed. Why is this
only issue to be decided by the
court? Should not the court first
decide on whether or not the
loan has really been extended by
the plaintiff to the defendant? In
our Rules, if the defendant sets
up only an affirmative defense,
that constitutes a hypothetical
admission to the allegations
contained in the complaint. That
is found in Rule 6. So if the
defendant
hypothetically,
for
purposes of trial, that the
defendant incurred a loan, then
there really is no need for the
plaintiff to prove the existence of
the loan. It is now the duty of the
defendant to show that the loan
had been paid, so the order of
trial is changed. Thus, the
defendant is allowed to present
his evidence first. Thereafter, the
plaintiff
does
not
find
it
necessary
to
file
rebuttal
evidence, the court will consider
the case as submitted for
decision.
Generally, when a trial is
conducted by the court, it is the
judge appointed in that sala that
should sit in the proceedings.
But, there are certain instances

under Rule 30 when the judge
may
excuse
himself
from
presiding the case. They are all
mentioned in the rules.
One is when the parties so agree,
when the parties appoints a
commissioner for presentation of
evidence. Another is, when the
branch clerk of court, upon
delegation of the judge, may sit
when the parties agree to an ex
parte presentation of evidence.
However, in these instances, it is
still the judge who will have to
write and sign the decision.
There are 2 rules concerned with
how a court in a civil case will
conduct a trial.
1. Rule on consolidation and
severance of cases
2. Trial by commissioner
Distinguish
consolidation
from severance.
A:
Consolidatio Severance
n
Involves
Contemplates
several
a
single
actions
action having
having
a a number of
common
claims,
question
of counterclaims
law or fact , cross-claims,
which may be third-party
jointly
tried complaints, or
(Sec.1, Rule issues which
31).
may
be
separately
tried.
Consolidation:
1. several cases
2.
similar
issues,
common
question of fact
3. pending in the same court
What are the requisites for
consolidation?
A:
1. Actions involving a common
question of law or fact; and
2. There must be at least 2
actions pending before the same
court (Sec.1, Rule 31).
Q: What are the ways
consolidating cases?
A:
of
Recasti
ng the
Cases
Reshapi
ng
of
the
cases by
amendin
g
the
pleading
,
dismissi
ng some
cases
and
retainin
g
only
one
case.
There
must be
joinder
of
causes
of action
and
of
parties.
Consoli
dation
Proper
It is a
joint
trial with
joint
decision
,
the
cases
retainin
g their
original
docket
number
s.
TestCase
Method
By
hearing
only the
principal
case
and
suspend
ing the
hearing
on
the
other
cases
until
judgmen
t
has
been
rendere
d in the
principal
case.
The
cases
retain
their
original
docket
numbers
(Riano,
Civil
Procedu
re,
p.
96,
2009
ed.).

consolidation of cases?
A:
GR:
Consolidation
is
discretionary upon the court to
avoid multiplicity of suits, guard
against oppression or abuse,
prevent delay, clear congested
dockets, and simplify the work of
the
trial
court
and
save
unnecessary costs and expenses.
XPNs: Consolidation becomes a
matter of duty when:
1. If two or more cases
are pending before the
same judge; or
2. If filed with the
different branches of the
same RTC and one of
such cases has not been
partially
tried.
(Raymundo v. Felipe,
G.R. No. L-30887, Dec.
24, 1971)
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Q: When may civil actions be

suspended?
A:
1. If willingness to discuss a
possible
compromise
is
expressed by one or both parties;
or
2. If it appears that one of the
parties,
before
the
commencement of the action or
proceeding, offered to discuss a
possible compromise but the
other party refused the offer
(Sec. 8, Rule 30; Art. 2030, NCC).
Let us say there are 3 cases
involving different parties, but all
involve a common question of
fact or law, pending in the same
court, the court can issue an
order of consolidation of the
cases.
Consolidation
of
cases
in
different salas in a multi-sala
court such as the Regional Trial
Court of Manila: The internal
rules of RTCs will be followed.
The judge in one branch cannot
issue an order directing the other
judges
to
agree
to
the
consolidation of cases, as there is
a need to coordinate with each
branch first. One judge cannot
simply issue an order to be
obeyed by another judge of the
same level. The internal rules of
the RTC, where there are cases to
be consolidated but which are
assigned to different branches, is
that if there is a consolidation
consented by the judges, it will
be tried by the sala with the
lowest docket number.
If one case is in Manila RTC, the
other in Bulacan RTC, both cases
being those that can be validly
consolidated, then the Supreme
Court may order consolidation.
The opposite of consolidation is
severance of several issues
contained in one complaint. A
trial court is also given the
authority to tell the parties that
the trial to be conducted only for
the purpose for hearing either a
3rd
party
complaint,
a
counterclaim or a crossclaim,
depending upon the discretion of
the court
Otherwise, the claims are barred

forever.
Trial by Commissioners
The language used in the Rule is
not mandatory. This is upon
discretion of the court.
Exceptional
circumstances
where there is mandatory
appointment
of
commissioner:
1. expropriation proceedings, for
determining just compensation
2. partition cases, where there is
a need to determine how the
property will be divided between
co-owners
3. Rule 39, Sec. 36 and 37 When
the judgment was not executed
fully or no execution was had
SEC. 36. Examination of
judgment obligor when
judgment unsatisfied
SEC. 37. Examination of
obligor
of
judgment
obligor. (in case partial
satisfaction was had)
4. Settlement of estates of
deceased persons, in statute of
non-claims, money claims will
have to be submitted to the
settlement court within the
statute of non-claims, and will
have to be responded to by the
executor or administrator. If
administrator of the estate can
contest the validity of these
claims, these claims will become
contested claims, then the court
may appoint a commissioner to
determine
these
contested
claims.
Q: What is the statute of nonclaims?
A: It is a period fixed by the
courts for the filing of claims
against
the
estate
for
examination
and
allowance.
(Herrera, Vol. III-A, p. 132, 2005
ed.)
Q: When should claims be
filed?
A:
GR: Within the time fixed in the
notice which shall not be more
than 12 months nor less than 6
months after the date of the first
publication. Such period once
fixed by the court is mandatory.
Note: Where an executor or

administrator commences an
action, or prosecutes an action
already commenced by the
deceased in his lifetime, the
debtor may set forth by answer
the claims he has against the
decedent, and mutual claims
may be set off against each other
in such action. (Sec. 5, Rule 86)
XPN: Belated claims.
Belated Claims?
A: Belated claims may be filed
even beyond the period fixed by
the court:
1. On application of a creditor
who has failed to file his claim
within
the
time
previously
limited, at any time before an
order of distribution is entered,
the court may, for just causes,
allow such claim to be filed not
exceeding 1 month from the
order
allowing
belated
claims; or (Sec. 2 , Rule 86)
2. Where the estate filed a
claim against the creditor or
claimant
who
failed
to
present his claim against the
estate within the period fixed
by the probate court for the
settlement of such claims,
the creditor will be allowed
to set up the same as a
counterclaim to the action
filed by the estate against
him.
Note: Statute of non-claims
supersedes the Statute of
Limitations insofar as the
debts of deceased persons
are concerned because if a
creditor fails to file his claim
within the time fixed by the
court in the notice, then the
claim
is
barred
forever.
However, both statute of nonclaims
and
statute
of
limitations must concur in
order for a creditor to collect.
JUDGMENTS
Rule 36, Sec. 1 Formal
Requisites of a valid judgment or
final order:
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1. written personally and directly

by the judge
2. signed by the judge
3. given to the branch clerk of
court
4. includes basis from factual
findings and conclusions of law
Shimizu vs. Magsalin
A final order of dismissal
under Rule 17, a dismissal with
prejudice, is void if there is no
explanation how and why the
case was dismissed by failure
to prosecute.
Q: What are the requisites of
a valid judgment?
A:
1. Authority of the court to hear
and determine the case.
2. Jurisdiction over the parties
and the subject matter
3. The parties must have been
given
an
opportunity
to
adduce evidence.
4. The evidence must have
been
considered
by
the
tribunal in deciding the case.
5. The judgment must be in
writing,
personally
and
directly prepared by the
judge.
6. The judgment must state
clearly the facts and the law
on which it is based, signed
by the judge and filed with the
clerk of court.
NOTE: Only for decisions and
final orders on merits and does
not apply to those resolved
through incidental matters.
Final order there should a
adjudication upon the merits.
A case is pending in RTC
Bulacan under Judge A. He
presided
during
the
presentation of evidence by
both
parties.
After
presentation
of
evidence,
Judge A retires. Who will
decide the case?
The successor judge takes over
and decides the case.
If the former judge makes the
decision and turned it over to the
clerk
of
court,
who
then
promulgates it and sends the
said decision by mail, that

judgment is void.
What if Judge A is transferred
from RTC Bulacan to RTC
Manila, can he pen the
decision and send it to his
former sala?
Under the old judiciary act, that
is a valid judgment. Under the
old judiciary act, if the judge who
fully
tried
the
case
is
subsequently
transferred,
he
retains authority to try the case
and render a valid judgment
thereon.
What if Judge A is promoted
to become a justice of the
CA, can he validly pen the
judgment?
No. He can no longer decide the
case. It is only when the trial
judge who has heard the case is
given a new assignment to a
coordinate
court
shall
the
Judiciary Act of 1948 will give
him authority to render a valid
decision.
Entry of judgment takes
place by operation of law.
Rule 36.
This is a very important rule
insofar
as
judgments
are
concerned. Now, we have a new
concept of entry of judgment.
Under Rule 36, Entry of Judgment
takes place by operation of law.
Even if there is no physical or
actual entry of judgment, under
Rule 36, the judgment is deemed
entered upon the expiration of
the period to appeal if no appeal
is perfected. Hence, if no appeal
is perfected, right after the
expiration of the 15/30-day
period,
that
judgment
is
AUTOMATICALLY entered, and
becomes final and executory.
Even if the clerk of court enters
that in the records a year later, it
is not the physical entry on the
record by the clerk of court that
will reckon the entry of judgment.
Why do we consider entry of
judgment as a very important
procedural principle?
The term entry of judgment is a
role if we follow Rule 39,
Execution of Judgments. In Rule
39, if a judgment has become
final and executory, then the
court has the ministerial duty to
grant a motion for execution and

to order execution of the
judgment. In Rule 39 also, there
is a period fixed for that
judgment to be executed. The
first five years from entry is the
period to execute the judgment
via a motion, and the second 5year period is for the revival of
the judgment. We are more
interested in the first 5-year
period within which to execute
the judgment through a motion.
If we reckon period under Rule
39, insofar as the first 5-year
period is concerned, it is 5 years
from entry of judgment. This is
why the principle of entry of
judgment is very important in
implementing the succeeding
procedural principles relating to
execution of judgment, and also
in determining if a particular
remedy has been availed of on
time.
For instance, under Rule 38,
Relief from Judgment. If you
recall, relief of judgments has 2
periods to be taken into account,
60 days from notice and 6
months from ENTRY of judgment.
The period speaks of availment
of certain remedies they are all
reckoned from entry of judgment.
So, do not forget that entry of
judgment under our present rules
takes place by operation of law,
upon the expiration of the period
to appeal, if no appeal is
perfected. The judgment is
automatically entered under the
provisions of Rule 36.
Q: What are those which are
not considered as decisions?
A:
1. Resolutions of Supreme Court
denying the petitions to review
decisions of Court of Appeals.
2. Minute Resolutions if issued
by SC denying or dismissing a
petition
or
a
motion
for
reconsideration for lack of merit,
it
is
understood
that
the
challenged decision or order is
deemed sustained.
3. Interlocutory Orders those
that
determine
incidental
matters that do not touch on the
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merits of the case or put an end

to the proceedings. E.g. Order
denying a motion to dismiss,
granting an extension of time or
authorizing an amendment.
Note: Appeal is not proper to
question an interlocutory order.
The proper remedy to question
an interlocutory order is a
petition for certiorari under Rule
65.
Q: What is a judgment
without trial?
A: The theory of summary
judgment is that although an
answer may on its face appear to
tender issuesrequiring trial
yet if it is demonstrated by
affidavits,
depositions,
or
admissions that those issues
are not genuine, but sham or
fictitious,
the
Court
is
justified in dispensing with
the
trial
and
rendering
summary
judgment
for
plaintiff.
The
court
is
expected to act chiefly on the
basis
of
the
affidavits,
depositions,
admissions
submitted by the movants,
and those of the other party
in opposition thereto. The
hearing contemplated (with 10day notice) is for the purpose of
determining whether the issues
are genuine or not, not to receive
evidence on the issues set up in
the pleadings. A hearing is not
thus de rigueur. The matter
may be resolved, and usually
is, on the basis of affidavits,
depositions,
admissions.
Under the circumstances of the
case, a hearing would serve no
purpose,
and
clearly
unnecessary.
The
summary
judgment here was justified,
considering the absence of
opposing affidavits to contradict
the affidavits (Galicia vs. Polo, L49668, Nov. 14, 1989; Carcon
Devt. Corp. vs. CA, GR 88218,
Dec. 17, 1989).
The other sections of Rule 36
give us the certain classifications
of
judgments;
summary
judgment and several judgment.
Separate judgment(Sec. 5,
Rule 36) It is one rendered
disposing of a claim among
several others presented in a
case, after a determination of
the issues material to a particular
claim and all counterclaims
arising out of the transaction or
occurrence which is the subject
matter of said claim.
Several judgment(Sec. 4, Rule
36) It is one rendered by a
court against one or more
defendants and not against
all of them, leaving the action
to proceed against the others.
The need for this classification of
judgment
stems
from
the
principle of civil actions that
encourage joinder of courses of
action. If there are several
causes of action embodied in a
complaint, it is proper for the
court that after the trial of a
particular cause of action, it
should render a judgment for
that particular cause of action. If
there is joinder of parties, the
court has also the prerogative to
render a
separate
decision
concerning a particular party if
his claim has already been
terminated
when
the
presentation of evidence on his
claim is finished. And what the
court does is only to wait for the
presentation
of
evidence
concerning the claim of other
parties, the court can also render
a decision separately.
These are decisions that are
exceptional, in the sense that we
expect a trial court to make only
one judgment in one particular
case. It is unusual for the court to
render
several
decisions
involving one particular case.
That is why, even if Rule 36
authorizes
the
court
to
promulgate separate or several
decisions, if you will go to Rule
41, Appeal From The RTCs, in
Section 2, it is mentioned that if
the court renders separate or
several judgments, although we
call these as judgments, they are
not appealable. The parties will
have to wait until the principal
action is finally resolved before
they can even think of appealing
the case. So, although Rule 36

designates these as judgments,
they are not appealable. The
court will have to render a
principal decision later on, after
everything is concluded.
So, if that is a separate judgment
involving once cause of action,
the winning party or losing party
cannot appeal. These parties will
have to wait until the court finally
decides the case in its entirety,
unless the court allows an appeal
if the party is entitled. Usually,
the court does not allow it,
because that will lead to a
situation where several appeals
emanate from one case, which is
also frowned upon by the SC.
There should only be one
decision in a particular case, and
there should be one appeal if a
party decides to appeal.
This is also the reason why the
decisions that are classified in
Rule 36, Separate Judgments and
Several
Judgments,
are
sometimes
referred
to
as
interlocutory
judgments,
because
they
cannot
be
appealed by express provision of
Rule 41, although they can be
rendered validly by the court.
Interlocutory
Orders those
that
determine
incidental
matters that do
not touch on the
merits
of
the
case or put an
end
to
the
proceedings. E.g.
Order denying a
motion
to
dismiss, granting
an extension of
time
or
authorizing
an
amendment.
So if you come across that term
in
your
examinations,
interlocutory judgments, and you
find the use of interlocutory and
judgment to be in conflict with
one another, you apply the
following
view:
Because
a
judgment
cannot
be
interlocutory. A judgment by the
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very term should be a judgment

of the merits. But if you
characterize a judgment as
interlocutory, that is only to
emphasize that the judgment,
although it resolves the merits of
the case, cannot be appealed
without the permission of the
trial judge.
Rule 33
Rule
33
begins
with
an
enumeration of special kinds of
judgments:
Judgment
on
Demurrer to Evidence, Judgment
on the Pleadings and Summary
Judgments. There are other kinds
of judgments not found under
Rules 33, 34 and 35. Several are
mentioned in Rule 41, Section 1:
Judgment by Consent, Judgment
upon a Compromise, Judgment
by Confession.
There is another one in Rule 51, a
Memorandum Decision.
Memorandum decision is one in
which the appellate court may
adopt by reference, the findings
of facts and conclusions of law
contained
in
the
decision
appealed from.
There are judgments by virtue of
jurisprudence: Judgment nunc
pro tunc, provisional judgment,
etc.
Q: What are the kinds of
judgment?
A:
1. Judgment upon compromise
It is one conferred on the
basis
of
a
compromise
agreement
entered
into
between the parties.
2. Judgment by confession It is
one rendered by the court
when
a
party
expressly
agrees to the other partys
claim or acknowledges the
validity of the claim against
him.
3. Judgment upon the merits It
is one that is rendered after
consideration of the evidence
submitted by the parties
during the trial of the case.
4. Clarificatory judgment It is
rendered to clarify an ambiguous
judgment or one difficult to
comply with.
5. Judgment nunc pro tunc (Now
for then) A judgment intended
to enter into the record the
acts which had already been
done, but which do not
appear in the records. Its only
function is to record some act of
the court which was done at a
former time, but which was not
then recorded, in order to make
the record speak the truth,
without
any
changes
in
substance or any material
respect.
6. Judgment sin perjuicio
Judgment
without
a
statement of the facts in
support of its conclusion to
be later supplemented by the
final judgment. This is not
allowed.
7. Judgment by default (Sec. 3,
Rule 9) Rendered by the
court following a default
order or after it received, ex
parte, plaintiffs evidence.
8. Judgment on the pleadings
(Rule 34) Proper when an
answer fails to tender an
issue because of a general or
insufficient denial of the
material allegations of the
complaint
or
when
the
answer admits the material
allegations of the adverse
party's pleading.
9. Summary judgment (Rule 35)
One granted by the court for the
prompt disposition of civil actions
wherein it clearly appears
that there exists no genuine
issue or controversy as to
any material fact.
10. Several judgment (Sec. 4,
Rule 36) It is one rendered by a
court against one or more
defendants and not against
all of them, leaving the action
to proceed against the others.
11. Separate judgment (Sec. 5,
Rule 36) It is one rendered
disposing of a claim among
several others presented in a

case, after a determination of
the issues material to a particular
claim and all counterclaims
arising out of the transaction or
occurrence which is the subject
matter of said claim.
12. Special judgment (Sec. 11,
Rule 39) One which can only
be complied with by the
judgment obligor because of
his personal qualifications or
circumstances or one that
requires the performance of
an act other than:
a. Payment of money;
and
b. Sale of real and
personal property.
13. Judgment for specific acts
(Sec. 10, Rule 39) Applicable in
cases of:
1.
Conveyance,
delivery of deeds, or
other specific acts,
vesting title;
2. Sale of real or
personal property;
3.
Delivery
or
restitution
of
real
property;
4.
Removal
of
improvements
on
property subject of
execution; or
5. Delivery of personal
property.
14. Judgment on demurrer to
evidence
(Rule
33)
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.
15. Conditional judgment It is
one the effectivity of which
depends upon the occurrence
or
non-occurrence of
an
event.
16. Final judgment One which
disposes of the whole subject
matter or terminates the
particular
proceedings
or
action, leaving nothing to be
106 | R e m e d i a l
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done by the court but to

enforce by execution what
has been determined.
But the principal classification of
judgments is the one given in the
Rules, particularly these Rules
which
speak
about
Special
Judgments.
What is so special about
these three decisions of the
court?
As we said earlier, they are
special as they are rendered by
the
court
without
having
conducted a full blown trial as
conceived in Rule 30.
DEMURRER TO EVIDENCE IN
CIVIL CASES
Judgment on Demurrer to
evidence
only
plaintiff
presented evidence. (judgment
of
dismissal
based
on
insufficiency of evidence to
support the claim)
If motion for demurrer to
evidence is denied, defendant
must present his evidence,
judgment thereon will be an
ordinary judgment.
When the Plaintiff rests his case,
the
Defendant,
instead
of
presenting his evidence, files a
Motion for Judgment on Demurrer
to Evidence. The defendant asks
the court for an order to dismiss
the case based only on the
ground of failure of the plaintiff
to show right of relief, that there
is insufficiency of the plaintiffs
evidence.
There
is
no
preponderance of evidence to
support the plaintiffs claim.
The court will have to resolve the
motion. The court will either
grant or deny the motion. If the
court denies the motion, the
court in effect tells the defendant
that the plaintiffs evidence is
adequate. What the defendant
has to do now is not to appeal,
because the denial of a motion
for judgment on demurrer to
evidence is interlocutory. No
appeal is allowed.
Can the defendant resort to Rule

65 on the ground that the court
has gravely abused its discretion
amounting to lack or excess of
jurisdiction?
He can try.
Under
the
Rules,
if
the
defendants motion for judgment
on demurrer to evidence is
denied, it is the duty of the
defendant to present now his
own evidence. He cannot appeal
it, he cannot even think about
appealing, he just have to
present his own evidence.
Whe
n to
file
Grou
nds
If
deni
ed
If
grant
ed
Demurrer
to
Evidence (Rule
33)
After the plaintiff
rests its case or
after
the
completion
of
the presentation
of evidence
That upon the
facts and the
law, the plaintiff
has shown no
right to relief
The
defendant
may present his
evidence.
The
complaint
may NOT be
filed.
The
remedy of the
plaintiff is to
appeal from the
dismissal.
Remember the rules of demurrer

to evidence and the other
principles that derive from the
granting of demurrer to evidence
in a civil case. You always
compare them to demurrer in a
criminal case. These topics are
usually
involved
in
Bar
examination.
In a civil case, if a defendant files
a motion for the dismissal of the
complaint based on insufficiency
of evidence, and that motion is
denied, what the defendant will
do is to go ahead with the trial
and present his evidence. And
after the defendant has rested,
the court will render the decision.

The decision, if the order for
demurrer to evidence is denied,
is just an ordinary judgment on
the merits of the case under Rule
36. It is no longer a special type
of a judgment.
But if the trial court grants the
motion, it means it will order the
dismissal of the case. The
dismissal is a final order, in fact a
judgment on the merits of the
case. The winning party is the
defendant. The plaintiff can
appeal the dismissal.
Usually, the if the trial court is
the RTC, it will be brought to the
CA. So, it is brought to the CA.
The CA will have to review the
case based solely on the records
transferred to it by the RTC. The
records will show that the
defendant has not presented any
evidence at all. Right away, the
defendant
will
be
at
a
disadvantage when the case is
reviewed by an appellate court.
The court will review only the
evidence presented
by
the
plaintiff. There is a great
possibility that the CA will not
agree with the trial court, and will
reverse the dismissal of the case.
If the CA reverses the order of
dismissal
by
demurrer
to
evidence and the CA tells the
parties
that
the
evidence
submitted is adequate, CA simply
render its own decision on the
merits of the case, relying solely
on the evidence submitted by the
plaintiff.
The defendant cannot ask the CA
to present his evidence. It is not
proper since the evidence should
have been presented in the trial
court. The CA, as a reviewing
court, will only rely on the
records transmitted to it by the
RTC.
The defendant cannot argue that
the CA is authorized to receive
evidence under the provisions of
BP 129. Under BP 129, the CA is
allowed to receive evidence if it
acts in exercise of its original
jurisdiction, which is not the case
in this instance as the CA is
107 | R e m e d i a l
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acting
under
is
appellate
jurisdiction. Although B.P. 129
also confers authority on the CA
to receive evidence even in
appeal of cases from the lower
court,
the
conferment
of
authority while acting as an
appellate court is only on one
instance, only on grant of
motion for new trial based on
NDE. It will not apply to
demurrer
to
evidence.
The
evidence the defendant will
present is hardly NDE as the
defendant had these pieces of
evidence during the trial in the
RTC. This is why in demurrer to
evidence in civil cases, the
defendant waives his right to
present his evidence when the
trial court grants his motion and
the case is dismissed but the
dismissal is reversed on appeal.
Compare this to the demurrer to
evidence present in a criminal
case.
Q: Distinguish demurrer to
evidence in civil cases from
demurrer to evidence in
criminal cases.
A:
Civil Case Criminal
Case
Lea Not
With
or
ve
required
Without
of
cou
rt
If
Judgment
Judgment
gra
on
the on
the
nte
merits;
merits;
d
The
The
Plaintiff
Plaintiff
may
cannot
appeal
make
an
from
the appeal
order
of from
the
dismissal
order
of
of
the dismissal
case
due to the
constitutio
nal
prohibition
against
double
jeopardy
If
The
The
den Defendant Defendant
ied
may
may
proceed to adduce his
adduce his
evidence
If
the
plai
nti
ff
app
eal
s
fro
m
the
ord
er
of
dis
mis
sal
If the court
finds
plaintiffs
evidence
insufficient
, it will
grant the
demurrer
by
dismissing
the
complaint.
The
judgment
of
dismissal
is
appealabl
e by the
plaintiff. If
plaintiff
appeals
and
judgment
is reversed
by
the
appellate
court,
it
will decide
the
case
on
the
basis
of
the
plaintiffs
evidence
with
the
consequen
evidence
only if the
demurrer
is
filed
with leave
of court.
If
there
was
no
leave
of
court,
accused
can
no
longer
present
his
evidence
and
submits
the
case
for
decision
based on
the
prosecutio
ns
evidence
If the court
finds the
prosecutio
ns
evidence
insufficient
, it will
grant the
demurrer
by
rendering
judgment
acquitting
the
accused.
Judgment
of
acquittal is
not
appealable
;
double
jeopardy
sets in
Ho
w
can
de
mu
rrer
be
den
ied
?
ce that the
defendant
already
loses
his
right
to
present
evidence.
No
res
judicata in
dismissal
due
to
demurrer
The
plaintiff
files
a
motion to
deny
motion to
demurrer
to
evidence.
The court
may motu
propio
deny the
motion.
After the prosecution has rested,

the accused can also file a
motion for judgment on demurrer
to evidence. But there is one
requirement in a criminal case
not found in a civil case: the
accused should get leave of court
if the accused wants to preserve
his right to present evidence
once the motion is denied by the
trial court. Failure to get leave of
court before filing of the motion,
and the motion is subsequently
denied, then the accused has
waived his right to present his
evidence in the trial court. The
trial court will not allow the
accused to present his evidence,
and the next phase will be a
judgment of conviction, meaning
that the evidence presented by
the prosecution is adequate to
convict the accused, that the
evidence has met the quantum
of evidence, which is proof
beyond reasonable doubt.
No
leave of court is required in
demurrer to evidence in civil
cases.
In a criminal case, demurrer can
be initiated either by the accused
or the court itself motu propio.
The idea of demurrer to evidence
can come from the court. So if
the prosecution has rested, the
court can even tell the accused
to file a motion for judgment on
demurrer to evidence. If the idea
108 | R e m e d i a l
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comes from the court, the

accused should file because it is
the
court
who
already
encourages you to file the
motion. That means to say, even
to the court, the prosecutions
evidence failed to meet the
quantum of evidence required to
convict the accused. In a civil
case, the court cannot initiate
the idea as to demurrer to
evidence. It should come from
the mind of the defendants
counsel.
Q: When is there a judgment

based on pleadings?
A: Where an answer fails to
tender an issue, or otherwise
admits the material allegations of
the adverse partys pleading, the
court may, on motion of that
party, direct judgment on such
pleading.
If in a criminal case, the

demurrer to evidence is granted,
the information will be dismissed,
which is tantamount to acquittal
of the accused. The prosecution
can no longer appeal, nor can
Rule 65 be availing, both being
due to prohibition against double
jeopardy. Take note, there can be
no appeal as to the dismissal of
the information, but there can be
an appeal as to the civil aspect of
the case. In a civil case, if the
court dismissed the civil action,
the plaintiff may appeal the
dismissal.
Q: What are cases where

judgment on the pleadings
will not apply?
A:
1. Actions for the declaration of
nullity of a marriage
2. Actions for annulment of
marriage
3. Actions for legal separation
If we allow the civil aspect of the

criminal case already dismissed
to be appealed, there is a chance
that the appellate court will find
merit in the appeal of the private
complainant, and therefore the
appellate
court
will
allow
damages to be awarded to the
private
complainant.
The
satisfaction of these damages
will be directed against the
accused, who has been acquitted
from the crime. In a criminal
case, an accused may be
acquitted of the crime, but may
be found civilly liable for any
injury resulting therefrom. This is
because, the conviction of the
accused requires a higher degree
of proof to be met (proof beyond
reasonable doubt), whereas a
lower degree of proof is required
for proving liability for civil
damages (mere preponderance
of evidence).
JUDGMENT
PLEADINGS
ON
THE
Note: Judgment must be on

motion of the claimant. It cannot
be rendered by the court motu
propio.
Note: in the above cases, the

material facts alleged in the
complaint shall always be proved
(Sec. 1, Rule 34)
Judgment on the pleadings
Judgment on the pleadings (Rule
34) Proper when an answer fails
to tender an issue because of a
general or insufficient denial of
the material allegations of the
complaint or when the answer
admits the material allegations of
the adverse party's pleading.
Defendant filed a motion for
judgment of the pleadings,
although the answer was one
without a counterclaim with
meritorious defenses. What
will be the effect thereof?
SC held that if the movant
defendant is asking for judgment
on the pleadings, he is deemed
to be admitting all the allegations
in the complaint.
In Judgment on the pleadings,
there is an answer filed by the
defendant. But that answer
admits the allegations in the
complaint. Or, even if the answer
in form denies the allegations in
the complaint, the denial is not
specific as required in the Rules.
We are made familiar again with
the principle in a civil case that
when a general denial is made,

that is deemed to be an
admission, which is the reason
why a court need not conduct a
pre-trial nor a trial.
If the plaintiff receives a copy of
the answer which does not set up
any defenses at all, but instead
admits all the allegations in the
complaint, what the plaintiff
needs to do is to file a motion for
a judgment on the pleadings.
In other words, if we follow the
inherent nature of a judgment of
the pleadings, the movant should
be the plaintiff in a complaint or
a permissive counterclaim or
cross-claim. There should be a
motion initiated by the plaintiff
asking the court for a judgment
on the pleadings.
Is
there
any
prohibition
against the defendant who
has filed an answer to also
move for judgment on the
pleadings?
There is really nothing said in the
Rules
that
says
about
a
defendant, upon filing of his
answer, being prohibited to file a
motion for a judgment on the
pleadings. But it seems to be a
crazy idea for a defendant to
himself move for a judgment on
the pleadings. In a case brought
to the SC where it was the
defendant himself who moved for
a judgment on the pleadings,
although the answer was purely
an
answer
without
any
counterclaim, cross-claim or third
party complaint, but containing
several meritorious defenses, the
SC ruled that if a defendant is a
movant for a judgment on the
pleadings, the defendant is
deemed to have admitted the
allegations contained in the
complaint. So it is really very
risky for a defendant to be a
movant for a judgment on the
pleadings. Even if his answer is
properly crafted, even if there is
a specific denial, if it was the
defendant that filed a motion for
a judgment on the pleadings, the
defendant will be considered to
have admitted all the allegations
in the complaint. So, the court
109 | R e m e d i a l
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will render a judgment in favor of

the plaintiff.
A judgment on the pleadings is
also a judgment on the merits. It
should
comply
with
the
essentials of a valid judgment
under Rule 36.
SUMMARY JUDGMENTS
Q: What is a summary
judgment?
A: A summary judgment or
accelerated
judgment
is
a
procedural technique to promptly
dispose of cases where the facts
appear undisputed and certain
from the pleadings, depositions,
admissions and affidavits on
record, of for weeding out sham
claims or defenses at an early
stage of the litigation to avoid
the expense and loss of time
involved in a trial. Its object is to
separate what is formal or
pretended denial or averment
from what is genuine and
substantial so that only the latter
may subject a party-in-interest to
the burden of trial. Moreover,
said summary judgment must be
premised on the absence of any
other triable genuine issues of
fact. Otherwise, the movants
cannot be allowed to obtain
immediate relief. A genuine issue
is such issue of fact which
requires presentation of evidence
as distinguished from a sham,
fictitious, contrived or false claim
(Monterey
Foods
Corp.
vs.
Eserjose, GR 153126, Sept. 11,
2003).
summary judgments?
A:
1. There must be no genuine
issue as to any material fact,
except for the amount of
damages; and
2. The party presenting the
motion for summary judgment
must be entitled to a judgment
as a matter of law.
Q: When
is
a
claimant
allowed to file for summary
judgment?
A: A party seeking to recover
upon a claim, counterclaim, or
cross-claim or to obtain a
declaratory relief may, at any

time after the pleading in answer
thereto has been served, move
with
supporting
affidavits,
depositions or admissions for a
summary judgment in his favor
upon all or any part thereof (Sec.
1, Rule 35).
inati
on
Who
can
file
Q: When is a defendant
judgment?
A: A party against whom a claim,
counterclaim, or cross-claim is
asserted or a declaratory relief is
sought may, at any time, move
with
supporting
affidavits,
as to all or any part thereof (Sec.
2, Rule 35).
JUDGMENT
ON
THE
PLEADINGS
VERSUS
SUMMARY JUDGMENTS
Judgme Summary
nt
on judgment
the
s
pleadin
gs
Mov
Plaintiff
Either
ant
only
plaintiff or
defendant
Ans
Answer
There is an
wer
does not issue
tender
tendered in
an issue the answer,
but it is not
genuine or
real issue
as may be
shown by
affidavits
and
depositions
that there
is no real
issue and
that
the
party
is
entitled to
judgment
as a matter
of right
Notic Movants Opposing
e
must
party
is
give
a given
10
3-day
days
notice
notice
of
hearing
Term Entire
May
only
Basis
of
the
judg
ment
case
may be
terminat
ed
Only the
plaintiff
or
the
defenda
nts
as
far
as
the
counter
claim,
crossclaim or
thirdparty
complai
nt
is
concern
ed can
file the
same
Based
only on
the
pleading
s alone,
hence,
only on
the
complai
nt and
the
answer
be partial
Either the
plaintiff or
the
defendant
may file it
Based
on
the
pleadings,
supporting
affidavits,
depositions
or
admissions
( see Sec.
1, Rule 35).
If you compare the provisions of

a judgment on the pleadings to
that of a summary judgment, as
contained in Rule 34, we will
immediately notice that there is
a section which talks about a
Summary judgment by plaintiff
and a Summary judgment by
defendant. Unlike in judgment on
the pleadings, where we expect
the movant to be a plaintiff, in a
summary judgment, the law
gives either parties the option to
file a motion for summary
judgment. This motions are
expressly recognized in the rules.
Q: When
is
a
claimant
judgment?
A: A party seeking to recover
upon a claim, counterclaim, or
cross-claim or to obtain a
declaratory relief may, at any
time after the pleading in answer
thereto has been served, move
110 | R e m e d i a l
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with
supporting
affidavits,
upon all or any part thereof (Sec.
1, Rule 35).
Q: When is a defendant
judgment?
A: A party against whom a claim,
counterclaim, or cross-claim is
asserted or a declaratory relief is
sought may, at any time, move
with
supporting
affidavits,
as to all or any part thereof (Sec.
2, Rule 35).
Another
term
for summary
judgment under American Rules
is an accelerated judgment. It
seems to be similar to that in
acceleration clause.
Why will the court render a
summary judgment?
The court will not conduct a full
blown trial envisioned in Rule 30.
In a summary judgment designed
not to conduct full-blown trial,
according to jurisprudence, there
is an issue in the answer
submitted by the defendant, but
it turns out to be a sham issue.
Therefore, there is no need for
the court to conduct a full-blown
trial on a sham issue. Whether or
not the issue is genuine will
depend upon the circumstances
of the case.
An
instant
example
of
a
summary judgment rendered by
a court is that where the court
found that the issue is not really
genuine although there is really
an issue raised in the answer. A
complaint was filed by the
plaintiff for an unpaid loan. The
complaint carried with it an
actionable document attached to
the
complaint,
a
printed
promissory note. The promissory
note contained a blank as to the
date of the maturity of the loan,
which was unfortunately not
accomplished. So, the promissory
note is indeterminate as to the
date of maturity. The defendant
filed an answer and set up the
defense that the filing of the
complaint
was
premature
because the debt has not

matured, and the defendant
pointed out that the blank
wherein the date of maturity was
supposed to be indicated has no
entry. The defendant interposed
that the court should first fix the
maturity date of the complaint
before the plaintiff can file a
complaint for recovery of the
loan. The plaintiff filed a motion
for summary judgment. And the
court agreed with the plaintiff
that the defense set up by the
defendant, that the maturity of
the loan has not yet happened, is
really a sham issue, as the issue
is in conflict with the provisions
of substantive law. The SC said
that if that is a promissory note
without a date fixed as to
maturity, that is a note payable
on demand, as provided in the
NCC. If there is already a demand
made by the creditor, and the
debtor failed to comply with that
demand, it means there is
already a breach of the obligation
by the debtor.
In as similar case where the
plaintiff moved for summary
judgment because the answer of
the defendant does not raise any
issue, the court found merit in
the motion. But when the court
prepared the order granting the
motion for summary judgment,
the court mentioned that the
motion is one that is asking for a
judgment on the pleadings. The
dispositive portion of the order
called the judgment as on for
judgment on the pleadings in
favor of the plaintiff, directing the
defendant to pay.
The defendant challenged the
validity of the judgment, saying
that what the court should have
rendered should be a summary
judgment, because the court
made a finding that the issue is
not genuine, and yet the court
issued a judgment on the
pleadings, and therefore the
judgment is void. SC held that
whether it is called a summary
judgment or judgment on the
pleadings, it does not really
matter at all, as there is an
adjudication on the merits. The
error was purely formal. SC said
that
the
error
in
the
determination
whether
the
judgment
was
a
summary
judgment or a judgment on the
pleadings will not prejudice the
defendant, and therefore cannot
be declared as void. After all, it is
a judgment that complies with
the requirements of Rule 36.
There is a determination of the
rights and obligations of the
parties involved in the cause of
action.
There is a summary judgment
that is similar to separate
judgment and several judgment
as it is interlocutory. If you read
the Rule on summary judgment,
there is such a thing as partial
summary
judgment.
If
the
summary judgment is a partial
summary judgment, that is an
interlocutory order, as it does not
dispose of the case completely. It
disposes only of the issue that
was raised before the court. It
cannot be appealed.
In a summary judgment, unlike in
a judgment on the pleadings, the
court will conduct a summary
hearing. In judgment on the
pleadings, the court will not
conduct a hearing at all, as the
court will simply rely on the
contents of the complaint and
the answer. Since there is an
issue raised by the defendant in
summary judgment, the court
will need to conduct a summary
hearing in order to determine
whether that is a sham issue or a
genuine issue. There is need by
the parties to present evidence in
order to support their respective
issues. The parties could present
affidavits, depositions, or any
other document that the parties
may present. What the court will
not allow is a full-blown hearing
on the matter as to whether the
issue is genuine or not. This issue
will have to be proven only by
documentary evidence, affidavits
or evidence taken under modes
of discovery.
The SC has abandoned the old
doctrine
that
summary
judgments cannot be available in
actions for recovery of property.
SC has decided several cases
111 | R e m e d i a l
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which affirmed the availability of

summary judgments involving
recovery of title to or possession
of real property. It is available in
real or personal civil actions as
long as the requisite that the
issue is not a genuine issue is
present.
JUDGMENT
BASED
ON
COMPROMISE
Aside from the special kinds of
judgments provided for in the
Rules, there is a special kind of
judgment provided for in the
NCC. There are several provisions
in the NCC which encourage the
parties to enter into an amicable
settlement or compromise. The
NCC considers a compromise as
a contract between the parties,
and therefore, if the parties
entered into a contract where
they
signed
a
compromise
agreement, they do not have to
submit that agreement to a court
for approval. According the SC, if
there
is
a
compromise
agreement signed by the parties,
since that is a contract, then that
is the law binding between the
parties. There is no need for
court approval to validate the
compromise
agreement.
For
purposes of validity, we follow
the provisions of the NCC, it will
be treated just like any other
contract. As long as the parties
give their consent freely, their
consent is not vitiated, their
signatures
appear
in
the
agreement, that will be the
contract between them, that will
be the law between the parties.
Approval by the court is not
necessary for the validity of the
compromise
agreement.
Approval
of
the
court
is
necessary only for the execution
of the compromise agreement.
For instance, there is a case for
recovery of 2M loan filed by the
creditor against the debtor. They
both agreed to settle their
differences.
They
signed
a
compromise agreement to the
effect that the debtor fully
recognizes his obligation to the
creditor, but they convert the
payment of the loan to that of
payment in installments every

quarter, fixing the amount of
installments. They do not submit
the compromise agreement for
approval. The parties jointly
moved for the dismissal of the
case, which the court complied.
The
debtor
subsequently
commits a breach in the payment
of installments.
After the breach, can the
creditor go back to the court
and ask for revival of the
case?
No.
Can the creditor file a new
case for collection against
the debtor for recovery of the
installment or of the whole
account if in case there is an
accelerator clause?
Yes. It is not barred, as the cause
of action of the creditor is now
different from the previous case
filed. His claim is now based on a
compromise agreement, not a
loan.
a compromise agreement cannot

be appealed.
In order to enforce payment as

provided
in
the
written
compromise
agreement,
the
creditor has to file a complaint
against the defendant debtor.
They will have to undergo the
same process when the first case
was filed concerning the loan.
But that is one case of a
compromise agreement which
does not carry with it the
approval of the court.
Q: What is the remedy in

cases where appeal is not
allowed?
A:
GR: In those instances where the
judgment or final order is not
appealable, the aggrieved party
may file the appropriate special
civil action under Rule 65 (Sec. 1
Rule 41).
The opposite is when there is a

compromise agreement signed
by the parties, but this time, the
parties do not jointly move for
the dismissal of the complaint,
but instead
they submit the
compromise agreement to the
court for approval. The court
renders a decision based on the
compromise agreement. If the
debtor commits a breach in the
payment as agreed upon, what
the creditor can do is to simply
file a motion for execution in the
court. The judgment based upon
a compromise is a judgment on
the merits. And under the NCC, a
judgment
based
upon
a
compromise
is
immediately
executory. There is no appeal. A
judgment by the court based on
Does it mean to say that a

party
of
a
compromise
agreement has no recourse
at all to challenge the validity
of the judgment based upon
a compromise agreement?
There is a remedy under Sec. 1
Rule 41. The defendant may file
a motion to set aside the
compromise agreement based on
the ground of vitiated consent.
That is the remedy in order a
judgment
based
upon
a
compromise.
Supposing the court does not
set
aside
the
judgment
notwithstanding the motion,
can the defendant appeal?
No. Under the Rules, a judgment
based
upon
a
compromise
agreement is inappealable. Also,
the order denying the motion is
in the nature of an interlocutory
order which is inappealable.
There is a remedy given for such

an order denying the motion to
set aside the judgment under a
compromise. Among those orders
not appealable found under
Section 1 of Rule 41 is 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,
which can avail of the remedy
provided in this section. Thus,
what Rule 41 says is that there
must be a Motion to Set Aside
the Judgment of Compromise and
there must be a denial of the
motion before a Rule 65 petition
can be availed of. If the
proponent immediately files a
Rule 65 petition assailing the
validity of the judgment based on
a compromise agreement as well
as the compromise agreement
112 | R e m e d i a l
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itself, that petition will be

dismissed for noncompliance
with the requirement under Rule
65. There is still a plain, speedy
and adequate remedy that can
be had in the form of a Motion to
Set Aside the Judgment of
Compromise
and
the
Compromise Agreement founded
on vitiated consent.
REMEDIES
TO
ASSAIL
A
JUDGMENT
Q: What are the available
remedies to the aggrieved
party
after
rendition
of
judgment?
A: The remedies against a
judgment may refer to those
remedies before a judgment
becomes final and executory and
those remedies after the same
becomes executory.
1. Before a judgment becomes
final
and
executory,
the
aggrieved party may avail of the
following remedies:
a.
Motion
for
Reconsideration;
b. Motion for New Trial;
and
c. Appeal
2. After the judgment becomes
executory, the losing party may
avail of the following:
a. Petition for relief from
judgment;
b.
Action
to
annul
judgment;
c. Certiorari; and
d. Collateral attack of a
judgment.
Compare the remedies available
to a party in a civil case to that in
a
criminal
case.
The
consequences of availing a
remedy in a civil case might be
different in criminal cases. Also,
there are remedies which are
applicable in civil cases which
might not be applicable in a
criminal case.
Remedies in a Civil Case:
The remedies would depend
primarily
on
whether
the
judgment has been or has not
been entered.
If judgment has not been
entered, the period to appeal
has not yet expired (15-30

days)
Remedies available :
Rule 37:
~Motion for New Trial
~Motion
for
Reconsideration
~Appeal
If
judgment
has
been
entered:
~Rule 38 Motion for
Relief From Judgment
~Rule 47 Motion for
Annulment of judgment
~Rule
65
Certiorari,
Prohibition
and
Mandamus (in certain
instances)
Remedies in a Criminal Case

Before
judgment
of
conviction becomes final
~Motion for New Trial
~Motion
for
Reconsideration
~Appeal
~Reopening of a case
due to NDE
Note: Reopening of a civil
case is available but
before
judgment
is
rendered. If judgment is
rendered,
it
is
not
available in a civil case.
Jurisprudence requires no
judgment yet handed
down by the court, the
time frame for availment
of
this
remedy
is
dependent
upon
the
termination of the trial.
The termination of the
trial starts the period to
move for this remedy. As
long as the judgment has
not been rendered, any
party can move for
reopening of the case.
Grounds for reopening
civil cases: There are no
grounds
given
specifically in the rules. It
is
not
expressly
recognized, it is just an
accepted
remedy
in
jurisprudence. It is a
remedy availed of after
trial has ended but
before the judgment is

rendered. The purpose is
for allowing the movant
to offer in evidence those
that
he
may
have
forgotten
to
present
during
the
trial,
or
additional evidence as
the case may be.
Reopening of a case in
criminal cases: This is
expressly recognized in
criminal procedure. It can
be had even after the
judgment
has
been
rendered, so long as
judgment
has
not
become
final
and
executory.
After judgment of conviction
becomes final:
Habeas Corpus
Petition
for
Certiorari
under Rule 65 in exercise
of judiciary under its
equity jurisdiction
If the convict feels that his
detention in prison, although
supported by a judgment of final
conviction,
is
unlawful,
the
remedy he may avail of is
Habeas Corpus, not a petition to
annul judgment. The SC has
made this very clear. Rule 47
applies only to a civil case, it
cannot apply to a criminal case.
The equivalent remedy in a
criminal case is a petition for
habeas corpus. The SC in the
exercise of its equity jurisdiction
cold also entertain a Petition for
Certiorari under Rule 65 even if
the judgment of conviction has
become final and executory
When can a petition for
certiorari be had once the
judgment had become final
and executory long before?
It can be had when the petition is
applied in order for the judiciary
to rectify a wrong under its
equity jurisdiction. A situation
that calls for a special remedy
will always be answered by a
petition for certiorari. A certiorari
will always be entertained as part
of
its
equity
jurisdiction.
Certiorari is a remedy in both a
113 | R e m e d i a l
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civil or criminal case in order to

challenge a final and executory
judgment if the situation calls for
the SC to exercise its equity
jurisdiction. That is why in the
enumeration of remedies, in
either criminal or civil case, we
also include Certiorari under Rule
65.
RULE 37 NEW TRIAL OR

RECONSIDERATION
In
criminal
procedure,
nothing is mentioned about a
pro-forma motion for new
trial or reconsideration.
Q: What is a pro- forma
motion?
A: A pro- forma motion is one
which does not satisfy the
requirements of the rules and
one which will be treated as a
motion intended to delay the
proceedings
(Marikina
Development
Corporation
v.
Flojo, 251 SCRA 87).
In Rule 37, for civil cases, a
motion
for
new
trial
or
reconsideration
must
strictly
comply with the requirements of
a motion so that such motion will
not fall under the concept of a
pro-forma motion.
Pro-forma
motion
for
reconsideration in civil cases
is almost always denied; it could
result to an instance where a
losing party moving that all
remedies
available
will
be
unavailable as sanction. A proforma motion for reconsideration
does not stop the running of the
reglementary period to appeal,
and if the denial of such motion
comes after the expiration of the
period
to
file
an
appeal,
remember that entry of judgment
takes place by operation of law
under Rule 36. Upon entry of
judgment, movant/losing party
loses the remedy of appeal and is
left only with the after judgment
remedies of petition for relief
from judgment, annulment from
judgment or a petition under
Rule 65 as remedies.
A motion for new trial or motion

for reconsideration in civil cases
is always initiated by the losing
party.
There is no pro forma motion
for
new
trial
or
reconsideration in a criminal
case. The court cannot simply
discard the motion for new trial
or
reconsideration
for
noncompliance, even if the motion
does not comply with the
requirements of a motion. The
motion for reconsideration or
new trial will always stop the
running of the period to
appeal. The idea for the accused
to file motion for new trial or
reconsideration could come from
the court. The court can even
initiate
a
new
trial
or
reconsideration as long as the
accused gives his consent.
(Rule 37)Grounds for motion
for new trial is completely
different from grounds for
reconsideration. This is the
reason why these motions
are distinct and different
from one another.
New Trial
1. Extrinsic fraud, accident,
mistake or excusable negligence
(FAME) which ordinary prudence
could not have guarded against
and by reason of which the rights
of the aggrieved party was
impaired; or
2. Newly discovered evidence,
which could not with reasonable
diligence, have been discovered
and produced at the trial, and
which
if
presented,
would
probably alter the result (Sec. 1,
Rule 37).
Reconsideration
1. The damages awarded are
excessive;
2. The evidence is insufficient to
satisfy the decision or final order;
or
3. The decision or final order is
contrary to law (Sec. 1, Rule 37).
Let us say that a losing
defendant/accused is advised
by his counsel that they have
3 remedies while the period
of
appeal
was
running,
motion for reconsideration,
motion for new trial and
appeal.
The
defendant/accused told the
counsel to avail of all three.
Thus, the counsel filed a
motion for new trial, a motion
for
reconsideration
and
lastly, an appeal. The trial
court received all three. The
appeal was duly perfected.
What remedy will the court
entertain?
SC had held that if the aggrieved
party files or perfects an appeal
during the pendency of his
motions for new trial and
reconsideration,
the
motions
shall be deemed abandoned.
It is really inconsistent for an
aggrieved party to file a motion
for new trial or reconsideration,
and while waiting for the
resolution of his motion he
perfects an appeal. It will render
the motions academic.
The
court, upon perfection of the
appeal and upon payment of the
docket fee, will lose jurisdiction
over the case, and what will
remain with the court is residual
jurisdiction.
The winning party, after
receiving a copy of the
decision,
moved
for
the
execution pending appeal. It
is a matter of discretion to
the court founded on special
circumstances.
The
losing
party filed a motion for new
trial while the former motion
was pending. Can the court
grant
the
motion
for
execution pending appeal?
No. The trial court should resolve
the motion for new trial first
before
the
motion
pending
appeal is resolved, even if the
motion pending execution is for
special reasons. Motion for
reconsideration or motion for
new trial of the aggrieved party
should be given preference over
any
other
motion
by
the
prevailing party.
Motion for new trial on
ground of FAMEN.
There must be an affidavit of
merit. FAMEN must be the reason
114 | R e m e d i a l
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for which the motion for new trial

is bound. Affidavits should show
FAMEN. The affidavit should be
executed
by
persons
with
personal knowledge surrounding
the circumstances of FAMEN.
It is not correct to say that in a
motion for new trial, we always
need an affidavit of merit. We
need affidavit of merit only if the
ground relied upon is FAMEN.
Motion for new trial on ground of
NDE will not need Affidavit of
Merit, merely the affidavit of the
new witness will give testimony,
or
an
authentic
copy
of
document or object evidence to
be presented.
Extrinsic fraud vs. Intrinsic
Fraud in Motion for New Trial
EXTRINSIC
INTRINSIC
FRAUD
FRAUD
Connotes any Refers to the
fraudulent
acts of party
scheme
during
trial
executed by which
does
the prevailing not affect the
party outside presentation
trial
against of the case
the
losing
party
who
because
of
such
fraud
was
prevented
from
presenting his
side of the
case
The principle in new trial in the
case
of
fraud,
the
fraud
committed must always be
EXTRINSIC FRAUD. It cannot be
intrinsic fraud. In Rule 37, there
is a basis for the court to
determine extrinsic fraud from
intrinsic fraud for the trial to be
properly resolved. If the fraud
alleged in the motion is intrinsic,
that motion will be denied. What
should be proven should be an
extrinsic fraud.
Rule 37 could give a good basis
for making a distinction between
the two frauds.. There are 2
clauses to justify extrinsic fraud
as a ground for new trial
compared to extrinsic fraud:
which
ordinary
prudence
could
not
have
guarded
against and by reason of

which such aggrieved party
has probably been impaired
in his rights.
If we rely solely on Rule 37,
in court cases, the court has
allowed lawyers to cheat
one another, so long as
cheating is limited only of
intrinsic fraud, which could
be prevented through the use
of ordinary diligence.
For instance, the court has ruled
that if a party wins the case
because his cause of action is
supported by a document which
could serve as preponderant
evidence which could show his
title
to
recover
from
the
defendant. But later on, the
aggrieved party is able to prove
that the document presented by
the plaintiff, and which is the
basis for the judgment in his
favor, is a forged document.
Forging a document is a crime.
But in a trial, the admission of a
forged document will not be a
ground for a new trial, or even as
NDE. This is because the
presentation
of
a
forged
document by the plaintiff could
easily be avoided by the
defendant through the exercise
of
ordinary
diligence.
If
confronted with such document,
and the defendant is not sure as
to its authenticity, the defendant
could
have
called
upon
witnesses, such as an expert
witness, to prove that such
document was forged. His failure
to do so is a waiver of this fact.
Another instance of cheating
duly proven by the movant in a
extrinsic fraud which the SC did
not consider as extrinsic is when
the prevailing party presented
witnesses who had perjured. But
if the aggrieved party relies
solely on the allegation that all
the witnesses presented by the
party all committed perjury, that
is not a ground for new trial, that
it is only intrinsic fraud. What the
SC is telling the defendant is that
he should also have cheated,
that he should also have been
dishonest.
If
the
plaintiff
presented 2 perjured witnesses,

the defendant should have called
5. So the message given with
respect to extrinsic and intrinsic
fraud is that litigants, through
their lawyers, can be dishonest
during the course of a litigation.
But they should see to it that the
;cheating will not amount to
extrinsic fraud, that which will
not deprive the other party of his
day in court, that the other party
will have the opportunity to
present his side in court.
That is the life of a lawyer, he is
encouraged to be dishonest, he
should be deceptive in his
relationship with others lawyers.
Anyway, lawyers will not go to
heaven, that is a given fact. It is
found in the Bible. But that is
only a part of a passage in the
Bible. The additional passage is
that lawyers do not go to hell.
But that does not make the life of
a lawyer less worthwhile. If a
lawyer cannot go to heaven or to
hell, where will the lawyer go
after death? The implication is
that a lawyer does not have a
soul.
That is how the SC looks at the
situation. In fact the S in several
cases said we should expect
dishonesty in the course of a
litigation. We cannot avoid that.
The SC said that if they allow
every act of dishonesty to be a
ground for new trial, there will
never be an end to a litigation,
because a lawyer will always be
able to point out to the court
certain acts of dishonesty or
cheating in a motion for new
trial.
Mistake
The mistake of a lawyer is the
mistake of the client. If the
aggrieved party lost the case due
to a serious mistake of the
lawyer, the said party fires his
lawyer and gets a new one, the
new lawyer cannot capitalize on
the mistake committed by the
former lawyer. The is just
applying the rule on agency. The
act of the agent is the act of the
principal.
115 | R e m e d i a l
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But, there is one situation where

the SC relaxed the application of
this principle. The SC said that
while it is true the mistake of the
lawyer will always be considered
the mistake of the client. But if
the mistake of the lawyer was
tantamount to bad faith, there is
an insinuation that the lawyer
deliberately caused the loss of
the case of the client, then that is
a ground for new trial. The
clients
rights
should
be
protected in this situation.
But the general rule is that the
mistake of a lawyer is the
mistake of the client, and it
cannot be a ground for new trial
under FAMEN.
Newly Discovered Evidence
This is an adaptation of an
American principle called the
Berry Rule : Newly discovered
evidence, which he could not,
with reasonable diligence,
have
discovered
and
produced at the trial, and
which if presented would
probably alter the result.
newly discovered evidence as
a ground for New Trial?
A:
1. The evidence was discovered
after trial;
2. Such evidence could not have
been discovered and produced at
the
trial
with
reasonable
diligence; and
3. Such evidence is material,
not
merely
cumulative,
corroborative or impeaching,
and is of such weight that if
admitted
would
probably
change the judgment (BERRY
RULE) (CIR v. A. Soriano
Corporation, GR No. 113703
January 31, 1997).
Because of the requirement, that
the result of the case would
probably be altered, we cannot
consider
cumulative,
corroborative
or
impeaching
evidence as NDE, as these
cannot alter the result of the
case. The recantation of a
witness is not NDE. In fact, the
SC has been emphatic in its
ruling continuously that if a
witness recants, the recantation

should not even be given any
attention at all. Because if we
give attention to the recantation
of a witness, you can expect
lawyers to produce recantations
by
witnesses
who
already
testified in court. So, the stand of
the court is that the testimony of
a witness given in open court
reflects the truth, not the
recantation. The recantation shall
not be treated as NDE.
In a motion for reconsideration
under Rule 37, there are 3
grounds:
damages awarded are
excessive,
the
evidence
is
insufficient to justify the
decision or final order,
the decision or final order
is contrary to law
There is also a rule under Rule 37
allowing only one motion for
reconsideration by the same
party,
either
prevailing
or
aggrieved party. If that is denied,
a
second
motion
for
reconsideration
will
not
be
allowed, even if the second
motion for reconsideration is
founded on a different ground.
The rule against the filing of a
second
motion
for
reconsideration
is
almost
absolute.
Unlike in a motion for new trial,
Rule 37 allows a movant to file
second motion for new trial if
founded on a ground different
from the one used in the first
motion for new trial.
But whether it is a motion for
new
trial
or
motion
for
reconsideration, there is another
rule contained in other provisions
where the court will not allow an
extension of time to file motion
for new trial or reconsideration
(15-30 day period). The party
must observe the 15/30-day
period.
If motion for reconsideration is
favorably acted upon, the court
will simply render an amended
judgment. If the court feels that
the judgment is contrary to law
or the evidence does not fully

support
the
judgment,
the
motion for reconsideration should
be granted to reduce the liability
of the aggrieved party, but the
court will only amend the
previous judgment in order to
reduce the liability of the party
aggrieved.
If the motion for new trial in a
civil case is granted, and such is
not a partial motion for new trial,
the judgment will be vacated.
But the evidence presented
during the trial will not be
disturbed. There is no need for
the witnesses who had testified
in the trial to give their testimony
again.
If the Motion for new trial granted
was that in a criminal case, the
judgment will also be vacated,
and all evidence taken during the
trial need to be retaken and
witnesses who testified will be
recalled. The grounds for new
trial in a criminal case are serious
irregularities or errors committed
by the trial court, not FAMEN.
Even if the evidence taken in
court will not be retaken, there
will be a recalling of the
witnesses who had testified
during the trial.
In Rule 37, it is clearly provided
that if a motion for new trial or
reconsideration is denied, the
denial cannot be appealed or be
subject to Rule 65 as the order of
denial is interlocutory. What is to
be appealed is the judgment
rendered on the merits, not the
order of denial. Note that Rule 65
is now unavailing in the amended
Rules in Rule 41. The only
remedy is an appeal from the
judgment on the merits that is
the subject of new trial or
reconsideration. SC said that in
appealing the judgment, the
aggrieved party can assign as an
error the denial of the trial court
of the motion for new trial or
motion for reconsideration. But,
he is no longer allowed to file a
petition under Rule 65 to
challenge the denial of the
motion and appeal at the same
time, which was allowed prior to
116 | R e m e d i a l
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the amendment of Section1 of

Rule 41.
ignore the error and just have to

rule on the merits of that motion.
Grounds for a motion for new

MNT or MR in Criminal Cases
trial is similar to a motion for
Either on motion of accused, or the court
relief
from
judgment.
with consent of the accused
Grounds for MNT errors of law (FAMEN)
or irregularities
1. Extrinsic
fraud, accident,
committed during the trial, or newly
discovered
mistake or excusable negligence
evidence
(FAME) which ordinary prudence
Ground for MR error of law or fact
could not have guarded against
and by reason
of which the rights
Filed any time before judgment of conviction
becomes
of the aggrieved party was
final
impaired; or
2. isNewly
discovered
evidence,
When granted, the original judgment
always
set
could not with reasonable
aside or vacated and a new judgment which
rendered.
diligence, have been discovered
and produced at the trial, and
which
if
presented,
would
RULE
38
RELIEF
FROM
probably
alter
the
result
(Sec.
1,
JUDGMENT
Rule 37).
This is a remedy available to the
aggrieved party after the entry of
judgment.
There are 2 periods to be
reckoned with:
~60 days from receipt of copy of
judgment/notice thereof
~6 months from entry of
judgment.
There was one case when the
aggrieved party, before entry,
filed before the trial court a
petition for relief from judgment
founded on FAMEN. The filing of
the
petition
was
irregular
because the judgment has not
yet been entered. SC held that
the trial court should not have
simply denied and dismissed the
motion. What the trial court
should have done was to treat
the motion for relief from
judgment as a motion for new
trial, because the grounds of
both motions are similar. Even if
a lawyer commits an error, and
files a petition for relief from
judgment founded on FAMEN
before
the
judgment
was
entered, the court will consider
the petition for relief as a motion
for new trial, provided of course,
that the petition will carry with it
the requirements needed under
Rule 37, an affidavit of merit
that will prove the presence of
FAMEN. The SC has taken a
liberal attitude on this kind of
error by a lawyer. The court will
Is
a
petition
for
relief
considered as one that is
similar
to
that
of
an
annulment of judgment?
It is not so. A petition for relief is
not an independent action. In
fact, it is just a continuation of
the original case. If we consider
petition for relief a separate
action from the original case, a
petition for relief should be filed
before an RTC because it is
incapable
of
pecuniary
estimation. But since it is not so,
Rule 38 provides that it should be
filed in the same court which
issued the judgment deciding the
case. So if the court that decided
the case is an MTC, a petition for
relief could be filed in the same
court. If the respondent of a
petition for relief challenged the
jurisdiction of an MTC in deciding
the petition for relief on the
ground that such petition is
incapable
of
pecuniary
estimation, the reply to that
argument is that a petition for
relief is just a continuation of the
original case, not an independent
and separate action. Note that
the old docket number is used in
the title of the case in a petition
for relief. We also do not pay
docket fees.
What
is
important
is
the
timeframe in which to file a
petition for relief from judgment.
The SC has been very strict. Time
to file should be observed. SC
has been very strict the time

frame because the judgment has
been entered and has become
final and executory. There is the
likelihood that the winning party
may already file a motion for
execution under Rule 39 as a
matter of right.
It could happen that the
aggrieved
party
filed
a
petition
for
relief
from
judgment and the prevailing
party also file a motion for
execution of the judgment.
Should the court grant the
motion for execution?
Yes. The court has a ministerial
duty to execute the judgment
once the judgment has been
entered and has become final
and executory. Motion to execute
should be granted once made.
The prevailing party has the right
to have the judgment in his favor
enforced.
If the court grants the motion
for execution of judgment
because it is a matter of right
on the part of the prevailing
party, will it not render
academic the relief from
judgment
filed
by
the
aggrieved party?
Rule 38 will not result to making
the petition for relief academic
simply because of the granting a
motion for execution as a matter
of right. Rule 38 says that the
executing court that granted
motion
for
execution
and
subsequently
entertained
a
petition for relief from judgment
can issue a TRO or a preliminary
injunction order to stop the
enforcement of the writ of
execution.
You might say that in the rule on
injunction, an injunctive relief
should be granted by a court
higher than the court which
rendered the decision. In this
case the court which decided the
case and then subsequently
granted the motion for execution
of its judgment shall also issue
the injunctive relief against the
carrying out of the writ of
execution. That is one of the
peculiarities of Rule 38. The court
which grants the execution of its
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judgment, as it really has no

choice as it is a matter of right, is
the same court which will issue
an injunctive relief against the
writ of execution it has previously
issued. If there is no injunctive
relief issued by the said court, its
decision will be carried out until
fully
satisfied.
This
is
an
exception to the principle in
injunction where the injunctive
relief should come from a higher
court. Here, the same court
which decided the case shall be
the one who will issue an
injunctive relief against its own
officer from executing the writ of
execution
the
court
has
previously issued. That is allowed
in Rule 38.
If the petition for relief is
granted, can the prevailing
party appeal the order?
No. The order granting relief is
interlocutory,
hence
unappealable.
If a petition for relief is
denied, the order denying
petition for relief is a final
order. Can it be appealed? If
not, what is the remedy?
No, it is a final order which is not
appealable under Section 1 of
Rule 41. The remedy of the
aggrieved party is to file a
petition under Rule 65, a petition
for certiorari or prohibition as the
case may be.
APPEAL
It could be a matter of right or a
matter of discretion.
Q: What is the remedy if the
motion is denied?
A: The remedy is to appeal from
the judgment or final order itself
subject of the motion for
reconsideration or new trial (Sec.
9, Rule 37, Rules of Court). The
movant has a fresh period of
fifteen days from receipt or
notice of the order denying or
dismissing
the
motion
for
reconsideration within which to
file a notice of appeal. It is no
longer assailable by certiorari.
(Sec.9, Rule 37, A.M. No. 07-712-SC).
Q: When does the fresh

period rule apply?
A: It applies to:
1. Rule 40 MTC to RTC
2. Rule 41 Appeals from RTC
3. Rule 42 Petition for Review
from RTC to CA
4. Rule 43 Appeals from quasijudicial agencies to CA
5. Rule 45 Appeals by certiorari
to the SC
Note: The fresh period rule
does not refer to the period
within which to appeal from the
order denying the motion for
reconsideration, but to the period
within which to appeal from the
judgment itself because an order
denying
a
motion
for
reconsideration
is
not
appealable.
The aggrieved party has a right
to appeal. It means when he has
perfected the appeal within the
period to do so, the appellate
court has no other choice but
entertain the appeal, review the
decision and render its own
decision.
When we say that appeal is a
matter of discretion wherein the
appellate court will determine
whether it should be entertained
or not. If that discretion is given
to the appellate court, it simply
denies to the party the right to
appeal to that court.
In civil cases, there are 3
modes of appeal given under
Rule 41:
Ordinary appeal
Petition for Review in the CA
Petition for Review on Certiorari
under Rule 45
If the origin of the case is the
MTC, the only mode of appeal is
an ordinary appeal. Even if the
only issue raised is a question of
law, the appeal should be an
ordinary appeal brought to the
RTC. Note that the Rules does not
divest the RTC or even the CA to
hear appeals based purely on
questions of law. In fact, the
Rules expressly say that an
appeal to the RTC from the MTC
could
either
involve
both
questions of fact and law or just

purely questions of law.
The procedure of appeal from the
MTC to the RTC is given under
Rule 40.
Rule 40 procedure of appeal
from MTC to appellate court
(RTC)
The party appealing in a civil
case will need to file a Notice of
Appeal and payment of appellate
court docket fee. Cases involving
special proceedings and other
cases of multiple or separate
appeals
will
also
require
submission of a Record on
Appeal.
Docket
fee
is
a
jurisdictional
requirement.
Hence, if not paid on time, SC
said the appellate court does not
case.
Let us say a case for Unlawful
Detainer was filed. A Motion to
dismiss was filed by defendant
on the ground of lack of
matter, which was granted. The
order
of
dismissal,
without
prejudice, is not appealable, as
provided for under Rule 41. He
cannot appeal, but he can file
petition under Rule 65. (Note that
UD is a special proceeding
covered by Rule 70, although
cognizable by the MTC)
So, should we follow Rule 41
in appeals from the MTC to
the RTC?
No. Rule 40 does not follow Rule
41. In Section 3, Rule 40, when
an MTC dismisses a case
cognizable by it for lack of
matter, even if the dismissal is
without prejudice, the remedy of
the plaintiff is to appeal, via an
ordinary appeal, the order of
dismissal rendered by the MTC.
Why cannot we just follow
Rule 41? It says that if a
dismissal is without prejudice,
the order is not appealable, and
the remedy is a petition under
Rule 65.
Insofar as the MTC and the RTC
are concerned, there is a good
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reason why Rule 40 says that the

remedy of the plaintiff is to
appeal via ordinary appeal, that
is to file a notice of appeal in the
appellate court and pay docket
fees. This is because there is a
provision under Rule 40 which
says that if the matter is brought
to the RTC, and the RTC affirms
the decision of the MTC, it is the
duty of the RTC to assume
jurisdiction over the case as if
that case originated with the
RTC.
If we tell the plaintiff to observe
Rule 41, and then the plaintiff
files a petition under Rule 65, the
RTC will not have any authority to
assume jurisdiction over the
case, unlike when the remedy
availed of by the plaintiff is an
ordinary appeal. This is because
an appeal is not a separate
proceeding,
it
is
just
a
continuation of the old case. A
petition under Rule 65 is an
independent proceeding, and not
a continuation of the original
case that has been resolved by
the MTC.
In cases of Unlawful Detainer
decided by the MTC, there
could be an appeal in the RTC
involving factual and legal
questions. Insofar as the RTC
and insofar as the prevailing
party, is the appeal by the
losing party a matter of
right?
Yes. Whenever the mode of
appeal is ordinary appeal, the
appeal is one of a matter of right.
The court has no discretion to
outrightly dismiss the appeal. It
has the duty to review the case
and render its own decision. The
RTC as an appellate court from a
decision of an MTC in ID has no
discretion to tell the appellant
that an appeal is not given due
course, which is allowed in
petition for review and petition
for review on certiorari.
Since the appeal of the losing
party in the RTC is a matter
of right, can the RTC also
order the dismissal of the
appeal
even
without
rendering its own decision as
an appellate court because
the appellant violated certain

orders or provisions of the
Rules?
Yes. Although it is the right of the
losing party to appeal to the RTC,
the losing party, as an appellant,
should also obey the orders that
could be issued by the RTC in
relation to the appeal.
One such order is given in Rule
41 (Section 7[b]), the RTC acting
as an appellate court can require
the appellant/appellee to submit
an appeal memorandum. If
plaintiff does not submit an
appeal memorandum as ordered,
that will be a ground for the
dismissal of the appeal by the
RTC. Although appeal is a matter
of right, it is still the duty of the
appellant to obey the orders of
the appellate court issued in
relation to his appeal taken to
the RTC.
In Rule 41, the RTC can also order
the dismissal on appeal if it can
be shown that the docket fees
have not been paid or that the
appeal was taken out of time. If
the appeal was taken out of time,
the appellate court has no
jurisdiction at all to review the
judgment.
If the RTC renders its own
decision (affirm or reverse),
can there be a second
appeal?
Yes, to the CA via a petition for
review. The rule of thumb in the
case of second appeals is that
the appeal is a matter of
discretion.
The
first
appeal
generally is a matter of right as
to the appellant, as long as the
mode of appeal is an ordinary
appeal. But even if the appeal is
a first appeal, but the mode is
the one under Rule 45, that is a
matter of discretion on the part
of the SC. The second appeal
from the RTC to the CA is a
matter of discretion. The CA can
either refuse or allow the appeal.
In that appeal to the CA from the
RTC in the exercise of its
appellate
jurisdiction,
purely
questions of law can only be
raised before the CA.
Before the CA, could there be

a 3rd appeal?
Yes, we can go to the SC under
Rule 45, always a matter of
discretion in the civil case. The
SC
enjoys
the
prerogative
whether to entertain or not to
entertain that appeal.
Final order vs. interlocutory

order
Final Order an order that
completely disposes a case or a
particular
matter
therein.
(Remedy is an appeal.)
Interlocutory Orders those
that
determine
incidental
matters that do not touch on the
merits of the case or put an end
to the proceedings. (Remedy is a
petition for certiorari under Rule
65)
Question of fact vs. Question
of law
There is a question of law when
the doubt or difference arises as
to what the law is on a certain
set of facts.
A question of fact on the other
hand is when the doubt or
difference arises as to the truth
or falsehood of the facts alleged.
Memorandum
decision
on
appeal (Rule 51)
Memorandum decision is one in
which the appellate court may
adopt by reference, the findings
of facts and conclusions of law
contained
in
the
decision
appealed from (Sec. 24, Interim
Rules and Guidelines)
Rule on harmless error (Rule
51)
SEC.
6.
Harmless
error.No error in
either
the
admission or the
exclusion
of
evidence and no
error or defect in
any ruling or order
or
in
anything
done or omitted by
the trial court or
by
any
of
the
parties is ground for
granting a new trial
119 | R e m e d i a l
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or for setting aside,

modifying,
or
otherwise disturbing
a judgment or order,
unless refusal to take
such action appears
to
the
court
inconsistent
with
substantial
justice.
The court at every
stage
of
the
proceeding
must
disregard any error or
defect which does
not
affect
the
substantial rights of
the parties.
Harmful error that error or
defect
which
affected
the
substantial rights of parties,
being
inconsistent
with
substantial justice.
Material data rule an
essential component for any
mode of appeal whether an
ordinary appeal, petition for
review or petition for review on
certiorari ; it
simply tells
appellant that regardless of
mode of appeal chosen, he
should see to it that he informs
the court about the date he
received the decision, the
date of filing motion, and the
date of denial by the court of
motion
for
reconsideration/new trial, in
order
to
help
the
court
determine the timeliness of
appeal, which is determinant of
the jurisdiction of the appellate
court. If an appeal is not
perfected on time, the appellate
court does not gain jurisdiction
over the matter on appeal.
Erroneous
appeal
vs.
improper appeal
Improper appeal the mode
of appeal used is the correct
mode, but the questions
raised in the appeal should
not be raised in the appeal
(question of fact vs. question of
law). Leads to dismissal of
appeal.
Ex. An RTC rendered a decision.
The decision was appealed in the
CA. The mode of appeal is an
ordinary appeal via a notice of
appeal. Eventually, the records
are transmitted to the CA. Under

the new rules, when there is an
appeal by ordinary appeal via
notice of appeal, both questions
of fact and of law could be
raised. But the rules said that if
the only question raised is purely
questions of law, the CA has no
jurisdiction. So the CA can
dismiss the appeal when purely
questions of law are raised. This
is the importance of knowing the
term improper appeal.
Erroneous appeal this is a
situation wherein the mode of
appeal used is the wrong
mode.
Ex. Under the rules, the correct
mode is ordinary appeal, but the
mode used was petition for
review.
Unlike in improper appeal, where
it can lead to a dismissal of the
appeal, there are certain cases
where the appeal is erroneous, it
will not lead to dismissal of the
appeal.
If the court of origin is an MTC,
the mode of appeal is an ordinary
appeal via a notice of appeal or a
record on appeal (in certain
cases) in the RTC. From the RTC,
as an appellate court, there could
be a second appeal in the CA,
but this time, the mode of appeal
is a petition for review.
From the MTC, supposing the
mode of appeal used by the
aggrieved
party
was
a
petition for review, can the
appeal be dismissed by the
RTC on the ground that the
appellant has chosen the
wrong mode of appeal?
SC held that if the appellate
court is an RTC, and appellant
has chosen the mode of petition
for review, RTC should disregard
the error committed by the
appellant. The SC reasoned that
the contents of a petition for
review meets, and even exceeds,
the requirements of a notice of
appeal. A petition for review is a
very lengthy document, there is
the application of the material
data rule, there are errors that
are assigned and there are
arguments embodied in the

petition for review. In a notice of
appeal, it may compose of one
paragraph where an appellant is
simply telling the court he is
appealing the decision rendered
on such date, alleging the
payment of docket fees. If the
appellant wrongfully chooses a
petition for review, the RTC
should entertain the petition as
the essentials for a notice of
appeal are already contained in
the petition for review.
But if it is the other way around,
where the RTC decides the case
as an appellate court and an
appeal of its decision was made
by the appellant, and filed in the
CA a notice of appeal instead of a
petition for review, that appeal
will be dismissed. The mode of
appeal used is erroneous and will
not confer jurisdiction anymore
upon the RTC. In other words,
there are instances where the
wrong mode of appeal will lead
to the dismissal of the appeal;
and there are instances where
the
wrong
choice
will
be
disregarded by the court.
Also under the Rules, the only
mode of appeal allowed in civil
cases to the SC is Rule 45
(appeal by certiorari/petition for
review on certiorari).From the
decision of the RTC in its original
jurisdiction, there could be an
appeal to the CA or SC. The
appellant decides to go to the SC
immediately. It filed a notice of
appeal. SC will dismiss the
appeal since the choice of mode
of appeal is erroneous under the
Rules. A notice of appeal will
never satisfy the requirements of
a petition for review on certiorari
or appeal by certiorari under Rule
45.
On the other hand, even if the
Rules are very clear in saying
that in civil cases, the mode of
appeal to the SC is only through
Rule 45 using a petition for
review on certiorari or sometimes
called appeal by certiorari, if the
appellant inadvertently calls his
petition simply a Petition for
Certiorari under Rule 65, the SC
will liberally consider that as a
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Petition for Review under Rule

45. The contents of Certiorari
under Rule 45 and Rule 65 are
essentially the same. But, the SC
cautioned parties, the erroneous
appeal must be filed within the
period of appeal (15 days). If you
should recall, the period for
appeal by petition for certiorari
provided under Rule 45 is 15
days, whereas under Rule 65, the
period for filing a petition under
this Rule is 60 days.
In the CA, the decisions that
could be appealed from the CA
do not necessarily come from
courts of justice. It could be
penned by quasi-judicial bodies.
There is just a common mode of
appeal even for quasi-judicial (QJ)
bodies, petition for review.
Appealed
decision
comes
from RTC vs. from QJ body
There is no difference with
respect to the content, but there
is a great difference in the
execution
of
the
judgment
appealed. If the decision comes
from a trial court in the exercise
of its appellate jurisdiction, being
appealed in the CA, the decision
of the trial court cannot be
executed. There could be not
execution. There could be an
execution, but it should be an
execution pending appeal (filed
in the CA). There could be an
execution on motion, supported
by special reasons to convince
the CA to order the execution of
judgment. Generally, when there
is an appeal to the CA from a
court of justice like an RTC, the
appealed decision cannot be the
subject of execution.
In case of QJ body decision, the
appeal will not stay the execution
of the decision. The decision of
the QJ body will be enforced.
There is only one way in which
we can stop the execution of the
decision rendered by a QJ body
during the pendency of the
appeal, that is to ask the CA to
issue a writ of preliminary
injunction.
Why is execution allowed in
QJ bodies?
One reason given in the Rules is

that
quantum
of
evidence
needed in QJ proceedings is only
substantial evidence, while in
trial courts, the quantum of
evidence is preponderance of
evidence.
If we compare also the remedies
available to the defeated party
before the trial court and the
appellate courts (CA and SC), the
remedies
available
to
the
defeated party are considerably
lessened as he goes higher in the
hierarchy.
MTC
Motion
for
reconsideration, Motion for new
trial, appeal
RTC Motion for reconsideration,
Motion for new trial, appeal
CA Motion for reconsideration,
Motion for new trial but only on
the ground of NDE
SCMotion for reconsideration
MOTION FOR NEW TRIAL BUT
ONLY ON THE GROUND OF
NDE IN THE CA
Note: Under the Rules, it is not
necessary for the appealing party
to wait for the case to be decided
by the CA. Even if the case has
not yet been decided by the CA,
the movant can already file a
NDE. This is not possible if the
case is in the MTC or even in the
RTC acting in its appellate
jurisdiction. In the RTC, we have
to wait for the RTC to render a
decision before we can file a
motion for reconsideration or
new trial. With respect to the CA,
we also have to wait for the
decision of the CA before we can
move for reconsideration. But
when it comes to a new trial, we
can file a motion for new trial
based on NDE even before the
case is decided by the CA. This is
clearly spelled out in the Rules.
As long as the case is within the
jurisdiction of the CA, even if
before the CA had made a
decision on the case appealed, a
motion for new trial based only
on NDE can be filed.
The SC is generally not a trier
of facts. A Motion for new trial
will always involve a question of

fact like NDE, and thus will be
dismissed by the SC. The
availability of a motion for new
trial ends with the CA, but the
availability thereof is based only
on the ground of NDE.
RULE
45
APPEAL
BY
CERTIORARI TO THE SC
In civil cases, this is the only
mode used. We cannot use a
notice of appeal or a petition for
review if the SC strictly applies
these rules on appeal. It does not
mean to say that we cannot go
up to the SC b simply filing a
notice of appeal or an ordinary
appeal. What the Rules prohibits
is the filing of an ordinary appeal
to the SC, that is a notice of
appeal if the case is a civil case.
If the case is a criminal case,
there could be notice of appeal to
the SC. It is applicable in case
the penalty imposed is life
imprisonment
or
reclusion
perpetua. The appeal from that
criminal case will be by notice of
appeal not via a petition for
certiorari.
In a petition for review on
certiorari filed in the CA, it is
axiomatic that only questions of
law can be raised. Raising
questions of law with questions
of fact before the SC does not
necessarily disallow the appeal.
The Rules say that if the issues
raised in under Rule 45 are
factual and legal, the SC has the
discretion to remand the case to
the CA. When the SC sends the
case to the CA because the
issues raised are both factual and
legal, the CA will have the duty
now to review the case and
render its own decision.
But, the opposite does not apply,
such as when the CA is the
appellate court. There is an
appeal to the CA through
ordinary appeal, the court of
origin is an RTC, the mode of
appeal is an ordinary appeal by
filing a notice of appeal. It is in
this mode of appeal where the
appellant is required to submit
his brief on appeal.
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thereof
upon
appellant.
Brief on appeal required only
if the appeal is an ordinary
appeal, the trial court is an RTC
and the appellate court is the CA.
If the trial court is an MTC, and
there is an appeal to the RTC,
and an appeal is made on the
RTC
exercising
its
original
jurisdiction, the mode of appeal
is an ordinary appeal to the CA
via a notice of appeal.
During the pendency of that
appeal, the CA will require
parties to submit their briefs. The
Rules provide for the brief of the
appellant and the appellee.
Failure of the appellant to submit
his brief on time will be enough
reason for the CA to dismiss the
appeal. Even if he submits his
brief on time, the appeal will be
dismissed if the essentials of the
brief are not complied with.
SEC. 7. Appellants
brief.It shall be the
duty of the appellant
to file with the court,
within forty-five (45)
days from receipt of
the notice of the
clerk that all the
evidence, oral and
documentary,
are
attached
to
the
record,
seven
(7)
copies of his legibly
typewritten,
mimeographed
or
printed brief, with
proof of service of
two
(2)
copies
thereof
upon
the
appellee.
SEC. 8. Appellees
briefWithin
fortyfive (45) days from
receipt
of
the
appellants brief, the
appellee shall file
with the court seven
(7) copies of his
legibly
typewritten,
mimeographed
or
printed brief, with
proof of service of
two
(2)
copies
the
SEC.
13.
Contents
of
appellants brief.
The appellants
brief
shall
contain, in the
order
herein
indicated,
the
following:
(a) A subject index of
the matter in the
brief with a digest of
the arguments and
page references, and
a table of cases
alphabetically
arranged, textbooks
and statutes cited
with references to
the pages where they
are cited;
(b) An assignment of
errors intended to be
urged, which errors
shall be separately,
distinctly
and
concisely
stated
without
repetition
and
numbered
consecutively;
(c)
Under
the
heading Statement
of the Case, a clear
and
concise
statement
of
the
nature of the action,
a summary of the
proceedings,
the
appealed rulings and
orders of the court,
the nature of the
judgment and any
other
matters
necessary
to
an
understanding of the
nature
of
the
controversy,
with
page references to
the record;
(d)
Under
the
heading Statement
of Facts, a clear and
concise statement in
a narrative form of
the facts admitted by
both parties and of
those in controversy,
together with the
substance
of
the
proof relating thereto
in sufficient detail to
make
it
clearly
intelligible, with page
references
to
the
record;
(e)
A
clear
and
concise statement of
the issues of fact or
law to be submitted
to the court for its
judgment;
(f) Under the heading
Argument,
the
appellants
arguments on each
assignment of error
with page references
to the record. The
authorities
relied
upon shall be cited
by the page of the
report at which the
case begins and the
page of the report on
which the citation is
found:
(g)
Under
the
heading Relief, a
specification of the
order or judgment
which the appellant
seeks; and
(h) In cases not
brought up by record
on
appeal,
the
appellants brief shall
contain,
as
an
appendix, a copy of
the judgment or final
order appealed from.
SEC.
14.
Contents
of
appellees brief.
The appellees
brief
shall
contain, in the
order
herein
indicated,
the
following:
(a) A subject index of
the matter in the
brief with a digest of
the arguments and
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page references, and

a table of cases
alphabetically
arranged, textbooks
and statutes cited
with references to
the pages where they
are cited;
(b)
Under
the
heading Statement
of
Facts,
the
appellee shall state
that he accepts the
statement of facts in
the appellants brief,
or under the heading
Counter-Statement
of Facts, he shall
point
out
such
insufficiencies
or
inaccuracies as he
believes exist in the
appellants
statement of facts
with references to
the pages of the
record
in
support
thereof, but without
repetition of matters
in the appellants
statement of facts;
and
(c)
Under
the
heading Argument,
the appellee shall set
forth his arguments
in the case on each
assignment of error
with page references
to the record. The
authorities relied on
shall be cited by the
page of the report at
which
the
case
begins and the page
of the report on
which the citation is
found.
without which the appeal will

have to be dismissed?
The assignment of errors is
essential in an ordinary appeal
because insofar as the CA is
concerned, the decision of the
trial court is a correct decision.
Remember that in our Rules of
Evidence, there is a presumption
that a decision of a trial court is
correct; there is a presumption of
regularity in the performance of
official duties. The CA will always
apply
that
disputable
presumption whenever there is
an appeal in the CA. That same
attitude is also adopted by the
SC. Whenever an appeal under
Rule 45 is raised to the SC, the
SC
adopts
the
disputable
presumption that the decision of
the CA is correct. Since the CA
adopts the presumption that the
RTC decided on the case
correctly, the appellant must
destroy
or
overwhelm
that
presumption by convincing the
CA that serious errors were
committed by the RTC. The
appellant cannot be allowed to
present
evidence
thereon,
appellant will have to rely on the
records submitted from the RTC.
The only way by which appellant
can possibly convince that the
RTC committed serious errors is
through the assignment of errors.
If the appellant cannot make an
assignment of errors in the brief,
it means the appellant finds
nothing wrong with the decision
of the RTC. Therefore, the
disputable presumption stays,
and this will be used by the CA.
That is why the assignment of
errors is essential to the brief of
the appellant. Absence thereof is
fatal to the appeal, and will
cause the appeals dismissal.
assignment of errors,
just facts and law
applicable
Can the appellant assign as
the only error in the brief
that the RTC committed an
error in deciding the case
against the appellant?
That is not an assignment of
error that is expected by the CA.
Assignment of errors should
specify particular acts done by
the RTC which could have
affected his substantial rights.
Harmless Errors in Appeal
(Section 6, Rule 51)
The trial court must have
committed
errors
in
the
proceedings; it is expressly
provided in Rule 51 that only
errors of the court in admission
of evidence and issuance of
orders that affects substantially
the rights of the appellant could
be considered by the appellate
court. Otherwise, the court will
disregard that error, even if
made a part of the assignment of
errors.
In civil cases brought on appeal,
the appellate court will resolve
only
issues
raised
in
the
assignment of errors. No other
issue, generally, will be resolved
by the court. The only exception
is if the issue not raised in the
assignment is closely related to
the
issue
raised
in
the
assignment of errors of the
appellant. This rule applies to a
civil case only.
In a criminal case, if there is an

error committed by the trial
court, whether mentioned or not
in the assignment of errors, the
Distinguish a brief from a
CA or SC can take cognizance of
memorandum.
such errors in resolving the
Appellants brief contents
A:
appeal. The appellate courts are
divided into several chapters; Brief
Memorandum
very flexible in a criminal case
lack of assignment of errors Ordinary appeals
Certiorari, prohibition,whose decision from the trial
is fatal and will result in
mandamus,
quo court was brought before it on
dismissal of the appeal.
warranto and habeas appeal.
corpus cases
Why is the CA very much Filed within 45 Filed within 30 days GR: Only errors assigned in the
interested in the assignment days
brief may be considered on
of errors that must beContents
Shorter, briefer, onlyappeal
contained
in
the
brief, specified by rules
one issue involved XPNs:
No subject index or
123 | R e m e d i a l
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1.
Grounds
not
assigned as errors
but affecting the
jurisdiction
over
the subject matter
2.
Matters
not
assigned as errors on
appeal
but
are
evidently plain or
clerical
errors
within
the
contemplation
of
law;
3.
Matters
not
appeal
but
consideration
of
which is necessary
in arriving at a just
decision
and
complete
resolution of the
case or to serve
the
interest
of
justice or to avoid
dispensing
piecemeal justice;
4.
Matters
not
specifically assigned
as errors on appeal
but raised in the
trial court and are
matters of record
having
some
bearing
on
the
issue
submitted
which the parties
failed to raise or
which the lower
court ignored;
5.
Matters
not
appeal but closely
related to an error
assigned; and
6.
Matters
not
appeal
but
upon
which
the
determination of a
question properly
assigned
is
dependent. (Riano,
Civil Procedure: A
Restatement for the
Bar, pp. 445-446,
2009 ed.)
What is the purpose of an
appellants / appellees brief?
A: To present to the court in a
concise form the points and
question in controversy, and by
fair argument on the facts

law of the case, to assist
court in arriving at a just
proper conclusion/ decision
Liano v. CA (2006)).
and
the
and
(De
If it is the appellant case who

does not submit his brief, the
appeal is dismissed. If it is the
appellee who does not submit his
brief, then the court will simply
decide the appeal without a brief
coming from the appellee. The
appellee can choose not to
submit a brief. It is the brief of
the appellant whose submission
or non-submission could lead to
the dismissal of the appeal.
Although Rule 45 is explicitly
saying that only questions of law
could be raised in a petition on
certiorari, The SC has recognized
a number of exceptions.
Exceptional issues where the
SC
allowed
the
appeal
whereas factual issues were
raised
(see
Rule
45).
(MEMORIZE at least 5)
Exceptions in which factual
issues may be resolved by the
Supreme Court:
(a) When the findings are
grounded
entirely
on
speculation, surmises or
conjectures;
(b) When the inference
made
is
manifestly
mistaken,
absurd
or
impossible;
(c) When there is grave
abuse of discretion;
(d) When the judgment is
based on misapprehension
of facts;
(e) When the findings of
facts are conflicting;
(f) When in making its
findings, the CA went
beyond the issues of the
case, or its findings are
contrary to the admissions
of both the appellant and
the appellee;
(g) When the findings are
contrary to the trial court;
(h) When the findings are
conclusions
without
citation
of
specific
evidence on which they
are based;
(i) When the facts set forth

in the petition as well as in
the petitioners main and
reply
briefs
are
not
disputed
by
the
respondent;
(j) When the findings of fact
are
premised
on
the
supposed
absence
of
evidence and contradicted
by the evidence on record;
and
(k) When the Court of
Appeals
manifestly
overlooked
certain
relevant facts not disputed
by the parties, which, if
properly considered, could
justify
a
different
conclusion.
The following cases allow
factual issues to be raised
based on SC Circulars:
1. Kalikasan cases
2. Amparo
3. Habeas Data
Both
factual
and
legal
questions can be raised under
Rule 45 in these three situations.
SATISFACTION OF JUDGMENT
(RULE 39) SATISFACTION OF A
FINAL
AND
EXECUTORY
JUDGMENT.
Rule 39 has been described in
jurisprudence as the one that
gives life to the law. It does so in
the sense that the winning party
will be able to recover the award
given in his favor through the use
of Rule 39. So if the civil case is
the recovery of money, and the
court awards 2M to the prevailing
party, the said party will not be
satisfied until he sees the 2M
given to him.
It is not correct to assume that in
order to satisfy a judgment, we
should always make use of Rule
39. Satisfaction of judgment as
conceived in Rule 39 is a forcible
satisfaction of judgment. So if the
award in favor the judgment
creditor is for the payment of the
judgment debtor of 2M, the
judgment creditor does not even
have to think about Rule 39 if the
judgment debtor immediately
pays the award of 2M. It is only in
that
situation
where
the
judgment debtor refuses to pay
that the only remedy of the
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judgment creditor to enforce

payment is to make use of Rule
39, to force the debtor to pay by
levying his properties and by
selling his levied properties by
public auction.
In the ordinary course of things,
if there is an appeal from the
decision rendered by the trial
court, and the case has reached
the SC, even if the decision of
the trial court has been affirmed,
and the said decision of the SC
has been entered, it is not
correct for the prevailing party to
ask for execution from the SC.
The matter of execution is a duty
of the court of origin, not the
appellate court. If the court of
origin is the MTC, it is the duty of
the
MTC
to
enforce
the
satisfaction of the judgment. So
that, there is an indirect rule
between the forcible execution of
judgments by the MTC even if the
case has been decided by higher
courts. This is because higher
courts do not usually issue an
order for execution of judgment.
What a lawyer for the judgment
creditor should do is to wait for
the records to be returned from
the SC or CA to the court of
origin. It could take time for the
records to be returned to the
court of origin. So, if a motion for
execution was filed by the
judgment creditor in the court of
origin before the records are
returned, there is likelihood that
the court of origin will tell him
they have not yet received the
records so they cannot act on the
motion until the records reach
the court of origin. Although, the
issuance of an order granting the
motion for execution is a
ministerial duty of the court. Rule
39 has provided for a remedy in
this situation. The appellate court
will simply issue a certified true
copy of the entry of judgment.
That certified true copy will be
submitted to the court of origin in
order to be a basis of the
granting of the order of a motion
for execution. That is enough
proof that there really is a final
and executory decision.
Is there a need for the
judgment creditor to file a
motion for execution, or will

the issuance of a writ of
execution come as a matter
of course?
There is always a need to file a
motion for execution. If the
judgment creditor has not filed a
motion for execution, the court
has no business to issue a writ of
execution, because the court will
not know whether there was
voluntary
satisfaction
of
judgment.
Since the judgment has become
final and executory and it has
now become a ministerial duty of
the court of origin to issue a writ
of execution, then the motion for
execution will be heard ex parte,
without notice to the judgment
debtor. This issue has been the
subject of conflicting decisions by
the SC. The latest jurisprudence
said that a motion for execution
of a judgment that has become
final and executory can be heard
ex parte by the trial court. But
the other decisions are to the
effect that the judgment debtor
should also be given a copy of
the
motion
for
execution,
because the judgment debtor will
have grounds to oppose the
issuance of the writ of for
execution. In the old doctrine, a
copy of the motion for execution
should be furnished upon the
judgment debtor, but the motion
cannot be heard ex parte.
Within the Rules, there is a
period fixed within which the
court can grant a motion for
execution as a ministerial duty. It
is 5 years from the entry of
judgment. After the 5 years from
entry, there can be revival of
judgment, no longer a motion, as
this is an independent action to
revive the judgment. But, the
independent action to revive
judgment must be filed within
the second 5-year period after
the entry of judgment.
The Rules assume that the
prescription period for the
execution of a judgment is
the 10-year period. Is this a
correct assumption?
This is correct, as this is also
provided under the NCC. A
prescriptive period of a final and

executory judgment is really 1
years under the NCC.
But what Rule 39 has provided
was to divide the 10 years into
two parts : the first five years,
and the second five years.
Meaning, the first five years, we
can execute the judgment via a
motion for execution. After the
lapse of the first five year period,
the judgment creditor cannot file
a motion for execution. If he does
so, the court will deny the motion
as the court will no longer have
the authority to grant the motion
of execution. The second 5-year
period is designed to force the
judgment creditor to file a
separate independent action to
revive the judgment. So the
motion for execution should be
filed within the first five years of
the 10-year period.
Is the first 5-year period
strictly implemented by the
rules?
It is not. It can be extended
according to the Rules. The SC
has decided that if the institution
of the judgment within the first
five years is delayed, and the
delays are equitable or are
attributable solely to the conduct
of the judgment debtor, then the
5-year
period
will
be
correspondingly be extended,
that is equal the delay caused by
the conduct of the judgment
debtor.
Lets say that the judgment
creditor filed a motion for
execution of the judgment on the
3rd year of the first 5-year
period. The court of origin is an
RTC.
The
judgment
debtor
received a copy of the motion.
After receiving the copy of the
motion, the judgment debtor files
a petition for the annulment of
judgment before the CA under
Rule 47 with prayer for a
preliminary injunction. And the
CA
grants
the
preliminary
injunction.
Because
of
the
preliminary injunction issued by
the CA, we cannot expect the
RTC to order the execution of the
judgment. It took the CA 2 years
to decide upon the petition of the
125 | R e m e d i a l
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judgment debtor. At the end, the

CA orders the dismissal of the
petition
for
annulment
of
judgment. There is a delay of 2
years. If the 5[-year period has
already lapsed due to the delay,
another 2 years will be added,
the
5-year
period
will
be
automatically extended up to 7
years within which the judgment
can be executed through the
filing of a motion for execution of
judgment. That is how the SC
described how the first 5-year
period and the second 5-year
period should be interpreted. It is
not a fixed period, it could be
extended due to circumstances
that might arise in the case there
is a delay arising from the
conduct of the judgment debtor.
It simply means
that the
judgment debtor can legally
delay the execution of the final
judgment. In fact, he is even
given 2 remedies under the Rules
to prevent the execution of a
final judgment. Rule 38 is one
means of delaying the execution
of judgment. In Rule 38, the court
that decided the case can issue
an
injunction
against
the
enforcement of the judgment.
Rule 47 is another remedy for the
judgment debtor, as long as in
the petition for the annulment of
judgment,
there
is
a
corresponding
preliminary
injunction that is issued by the
higher court. In annulment of
judgment, the court that will try
the case will always be a higher
court. Thus, if the higher court
hearing the petition issues an
order to stop the execution of the
judgment
(preliminary
injunction), there is no way for
the court of origin to disobey
such order.
If the motion for execution is
granted, which is expected,
as the judgment has become
final and executory, can the
judgment
debtor
file
an
appeal against the order
granting
the
motion
for
execution?
No. Under Section 1 Rule 41, an
order
granting
motion
for
execution is not appealable. Also,
the order will be treated as a
final order. The remedy is to file a
petition under Rule 65, a petition

for prohibition.
Supposed the trial court
denies a motion for execution
of judgment that has already
been entered, is appeal the
remedy
of
a
judgment
creditor?
No, it does not seem so, based
also under Section 1 Rule 41. The
creditor should also resort to Rule
65. The petition that he should
file is a petition for mandamus.
Mandamus is proper as there is a
ministerial duty for the court to
perform. Under Rule 39, as long
as the judgment has been
entered, it has become a
ministerial duty of the court to
grant a motion for execution.
That is an act that can be
compelled
by
a
writ
of
mandamus.
Can the trial court promptly
deny a motion for execution
of a judgment that has been
entered, or can the trial court
rightly quash the writ of
execution
it
has
issued
because the judgment has
become final and executory?
The general rule is that the trial
court cannot quash or rightly
deny a motion for execution if
the judgment has already been
entered. But, there are certain
exceptions that the SC has
recognized.
First is if the judgment sought to
be enforced has already been
novated.
The
judgment
has
become
dormant. This means that the
execution of the final judgment
cannot be granted via a motion
for execution. Judgment creditor
must avail of the independent
action of revival of judgment to
revive a dormant judgment.
The second is when the parties
enter
into
a
compromise
agreement after the judgment
has become final and executory.
If
there
is
a
compromise
agreement
signed
by
both
parties whose terms are not
consistent with the award given,
the effect being that the award
will be novating the judgment.

The court will no longer grant a
motion for execution of the
judgment of the award that has
been given in the dispositive
portion of the duly entered
judgment. The agreement of the
parties can change the terms of
the dispositive portion of the
judgment. This is an application
of novation being a mode of
extinguishment of an obligation
under the NCC.
Q: Is a writ of execution
subject to a motion to quash?
A: A writ of execution may be
quashed on certain grounds:
1. When the writ of execution
varies the judgment;
2. When there has been a change
in the situation of the parties
making the execution inequitable
or unjust;
3. When execution is sought to
be enforced against a property
exempt from execution;
4. When it appears that the
controversy has never been
submitted to the judgment of the
court;
5. When the terms of the
judgment are not clear enough
and there remains room for
interpretation thereof;
6. When it appears that the writ
of
execution
has
been
improvidently issued;
7. When it appears that the writ
of execution is defective in
substance, or is issued against
the wrong party, or that the
judgment debt has been paid or
otherwise satisfied or the writ is
issued
without
authority
(Reburiano v. CA, 301 SCRA 342).
Suppose within the first 5year period, the court grants
a motion for execution, and
then
issues
a
writ
of
execution.
The
writ
of
execution is carried out by
virtue of a levy on execution
of the properties of the
judgment debtor. But the
properties levied upon were
not sold during the first 5year period. On the 6th year,
can the properties levied
upon be sold at public
auction?
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Yes. According to the SC, the 1st

5-year period does not require
that the execution of the
judgment, the actual levy and
the sale of the property on public
auction must be done within the
first 5 years. What is important is
that within the first 5 years, there
must be an actual levy of the
properties of the judgment
debtor, even if the auction sale
was conducted in the 6th year.
Levy is the actual act of carrying
out the judgment.
In another case, in year 7 of the
10-year period, the judgment
creditor who neglected to file a
motion for execution filed a
motion for execution in year 7.
When the judgment creditor
served a copy of the motion to
the
judgment
debtor,
the
judgment creditor convinced the
judgment debtor not to oppose
the granting the motion. The
judgment
debtor,
accommodating the judgment
creditor, even filed his position
paper stating that he is not
objecting to the granting of the
motion of execution. Due to such
manifestation by the judgment
debtor, although it was already
year 7, the court granted the
motion for execution. The writ
was issued, and the properties of
the judgment debtor were levied
upon. It was at this point that the
judgment debtor challenged the
validity of the levying of his
properties by way of a motion for
execution beyond the first 5-year
period. The SC sustained the
stand of the judgment debtor.
The SC said that after the first 5year period, the court loses
jurisdiction
to
execute
the
judgment
through
a
mere
motion. The fact that the
judgment debtor did not oppose
the said motion does not matter
because the issue now is one of
jurisdiction. Jurisdiction will not
be vested upon the court simply
by inaction on the part of a party.
Thus, the proceedings taken by
the court in granting the motion
for execution beyond the first 5year period was held to be
irregular, it will be void. The
issuance of the writ of execution
will also be void, and therefore
the writ can be quashed for lack

of jurisdiction.
With respect to the revival
mentioned
in
the
Rules
pertaining to the 2nd 5-year
period,
this
is
an
independent action. Since
this is an independent action,
if the original action was a
real action, but this is now
simply a revival, can we still
consider the revival action
still as a real action?
The SC held yes. If the original
action is a real action, the action
to revive that judgment will also
be a real action. And therefore,
the venue in Rule 4 will still be
followed. In Rule 4, the venue will
be determined by the place
where the property is located.
Thus, the revival of action will be
field
in
the
court
having
jurisdiction over the place where
the property is situated. The case
will be cognizable by the RTC
because it is incapable of
pecuniary estimation.
REVIVAL
OF
JUDGMENT
UNDER RULE 39
There is another revival of
judgment,
this
time
under
Section 34 Rule 39.
SEC. 34. Recovery
of price if sale not
effective;
revival
of judgment.If the
purchaser
of
real
property
sold
on
execution,
or
his
successor in interest,
fails to recover the
possession
thereof,
or
is
evicted
therefrom,
in
consequence
of
irregularities in the
proceedings
concerning the sale,
or
because
the
judgment has been
reserved or set aside,
or
because
the
property sold was
exempt
from
execution,
or
because
a
third
person
has
vindicated his claim,
to the property, he
may on motion in
the same action or
in
a
separate
action
recover
from the judgment
obligee the price
paid, with interest,
or so much thereof
as has not been
delivered to the
judgment obligor;
or he may, on
motion, have the
original judgment
revived
in
his
name
for
the
whole price with
interest,
or
so
much thereof as
has been delivered
to the judgment
obligor.
The
judgment
so
revived shall have
the same force and
effect
as
an
original judgment
would have as of
the date of the
revival
and
no
more.
The revival of judgment in
Section 34 Rule 39 is not the
revival of a dormant judgment,
but refers to a judgment already
executed.
The situation contemplated in
Section 34 Rule 39 is that
judgment is executed, properties
are levied upon, and these
properties have been sold at
public auction, but the highest
bidder,
or
anybody
who
thereafter acquire the property,
is not able to get possession of
the
property
because
of
opposition or legal complications
that are related to the execution
of
judgment.
According
to
Section 34, the revival of
judgment could be had through a
motion
or
through
an
independent action. Thus, there
is a difference between a revival
of judgment under Section 34
Rule 39 where it is a revival of a
judgment already executed via a
motion or via an independent
action, and the revival of a
dormant judgment where there
has been no execution within the
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first 5-year period prescriptive

period of a judgment under
Section 6 Rule 39.
Take note of the differences
between the two kinds of revival
of judgments in Rule 39, under
Section 6 and Section 34.
The improvement given by Rule
39 under the 1997 Rules, insofar
as the judgment creditor is
concerned, is that under the
present Rules, the writ of
execution issued by the court has
a life of 5 years. So, the
judgment creditor does not need
to file one motion for execution
after another, which was the
prior practice when the life of the
writ of execution was 60 days. At
any time during that 5-year
period, the sheriff could enforce
the writ, he may make levy the
debtor.
The
only
limitation
imposed by the Rules is that the
sheriff must file periodic reports
to the court as to the progress of
the process of execution.
How does the court enforce a
duly entered judgment?
Through the granting of a motion
for execution and through the
issuance of a writ of execution. It
all depends on the tenor of the
judgment.
If
the
judgment
awards money, there will be a
levy of properties. If the award
involves delivery of properties or
documents, there will be no levy
on execution of properties, the
property to be delivered will just
be seized from the judgment
debtor, and there is a delivery of
possession to the judgment
creditor.
If the judgment directs the
judgment debtor to sign a deed
of conveyance or a deed of sale
in favor of the judgment creditor,
and the judgment debtor refuses,
the court can appoint another
person, usually the clerk of court,
to sign the document on behalf
of the judgment debtor. That
document cannot be considered
a spurious document, but one
that is signed effectively by the
judgment debtor following a
lawful order of the court.
If the judgment directs the

judgment debtor to vacate a
piece of land or building, the
court, through the sheriff, will
forcibly oust him from the
building. The court will throw out
the things belonging to the
occupants.
In a writ of execution, the writ
will be directed to the sheriff. But
the writ will contain verbatim the
dispositive
portion
of
the
decision. The writ of execution
directs the sheriff to carry out the
duty of executing the dispositive
portion of the judgment of
execution.
Can the court cite a judgment
debtor for refusing to obey a
lawful order of the court in
compliance
with
the
judgment to be executed?
No. Citation for contempt is
generally not a remedy in
enforcing a judgment in Rule 39.
This
is
because
Rule
39
contemplates enforcement of a
judgment by the sheriff of the
court
making
use
of
the
processes in Rule 39. So if the
judgment debtor refuses to obey,
a court cannot go to another
court to cite the judgment debtor
in
contempt.
That
is
not
contempt of court. This is
because, according to the SC, the
writ is not addressed to the
judgment debtor. The writ is
addressed to the sheriff of the
court, and hence the sheriff has
the duty to carry out the
dispositive
portion
of
the
judgment.
in order to carry out the possible

satisfaction of the judgment. The
more effective remedy under
Rule 39 is to levy the properties
of the judgment debtor, seizure
thereof and sell them at public
auction.
Levy of properties under Rule 39
does not automatically mean
that possession of the levied
properties will be in the hands of
the sheriff or the court. If
debtor that are levied upon are
real properties, the judgment
debtor
will
have
continued
possession thereof, he will not be
ousted. The court will simply
submit a copy of the levy of
execution to the RoD and ask the
RoD to annotate the fact that the
real property is subject to a lien
via a levy on execution. What is
important to know in the levy of
real properties is that the
judgment debtor will not be
ousted
from
his
physical
possession of the real property.
He will continue to be in
possession of the real property
although it is already subject of a
levy.
But when the property levied
upon is personal property, that
is, where the physical possession
of the property will be turned
over to the sheriff. In fact, the
properties will literally be placed
in custodia legis.
Can there be contempt in

collection of money cases by
way of exception?
Generally, no, but it can be had
in support cases. Failure to give
support can result with the
disobeying person being cited in
contempt, as well as being
subjected to a criminal case for
failure to give support.
What happens after the levy

is implemented by the court?
Levy of properties under Rule 39
should always be followed by
sale by public auction. We will
not have an execution if we stop
at levying of properties. The levy
must always be accompanied by
a sale by auction. If there is only
a levy without a sale by auction,
then that levy can be nullified by
the court. It is the duty of the
court to see to it that an actual
levy of properties should be
followed by a public auction sale.
Generally, a judgment debtor

who refuses to obey the writ of
execution cannot be cited in
contempt. There are other more
effective remedies under Rule 39
Under Rule 39 and under certain

special laws, there are certain
properties of a judgment debtor
that is exempt from levy. If the
property of the debtor that is
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exempt from execution is levied

upon, the levy is void, nor the
sale of such levied items be
valid. If the levy is void, the sale
thereof is also be void. The
validity of an auction sale shall
always stem from the validity of
a prior levy. Even if there is valid
levy,
but
if
there
are
requirements not complied with
before, during or after auction
sale, the sale will be void, and
the buyer will not acquire title to
the property sold.
1. Summary hearing before the

court which authorized the
execution;
2. Terceria or third party claim
filed with the sheriff;
3. Action for damages on the
bond
posted
by
judgment
creditors; or
4. Independent reinvindicatory
action. (Sec. 16, Rule 39)
THIRD
PARTY
CLAIM
ON
PROPERTY LEVIED UPON FOR
PURPOSE OF EXECUTION
The principles in Rule 39 and
Rule 16 are practically identical.
Note: The officer shall not be

liable for damages for the taking
or keeping of the property, to any
third-party claimant if there is a
bond filed by the winning party. If
there is no bond, the sale cannot
proceed. However, the judgment
obligee can claim damages
against a third-party claimant
who filed a frivolous or plainly
spurious
claim,
and
such
judgment obligee can institute
proceedings therefor in the same
or separate action (Sec. 16, Rule
39).
Terceria is predicated on the

premise that the property levied
upon by the sheriff for the
purpose of executing of the duly
entered judgment does not
belong to the judgment debtor.
(Terceria is a 3rd party claim filed
with the sheriff.) If the property
levied upon belongs to another
person, the levy is not valid. The
levy not being valid, the sale is
not valid. Rule 39 expects that
the property levied upon by the
sheriff belongs to a judgment
debtor, because Rule 39 is for
the satisfaction of a judgment
against a judgment debtor. If the
sheriff
makes
a
levy
on
properties which do not belong to
the judgment debtor, you can
expect the true owner to
complain. Such owner can file a
complaint for the recovery of the
real property from the sheriff.
The filing of such complaint of
the owner is just one of the
several remedies which the
owner can avail of. In Rule 39,
the remedy refers to the filing of
a 3rd party claim (Terceria).
The other remedies which are
expressly
acknowledged
in
Section 16 Rule 39.
What
are
the
remedies
available to a third-party
claimant in levy of real
property?
A:
The remedies are cumulative and

may be resorted to by the third
party claimant independently of
or separately from the others.
Replevin remedy of the true

owner of the personal property if
it was improperly levied and sold
If the property is a real property,
the
true
owner/3rd
party
claimant can file an independent
action to prevent the sheriff from
selling the property.
The 3rd party claimant, under
Section 16 Rule 39, can make
use
of
these
remedies
successively. Thus, if he was
unsuccessful in recovering the
property under one remedy, he
can make use of the other
remedies.
The easiest and most practical
remedy available right away to
the 3rd party claimant is a Third
Party Claim. It does not require
the filing of a complaint, just the
submission of an affidavit to the
sheriff and to the court, setting
forth
his
ownership
and
entitlement to the possession,
and that the property should not
be levied upon as this is not a
property of the judgment debtor.
Evidence appurtenant
must be attached.
thereto
Can the court render a

judgment that will tell the
sheriff that the property is
not the third party claimants
but that of the judgment
debtor?
No. The third party claim is an
incident
to
the
execution
process, the trial proceedings are
over
insofar
the
court
is
concerned. The court has no
power to resolve an issue of
ownership involving the property
levied upon. It should be
threshed out in a separate
complaint.
Regardless
of
a
finding by the execution court
that the true owner is the
judgment debtor, that will have
no bearing on the third party
claimant. That order will not be
entered, it will not be considered
a judgment on the merits and will
not constitute res judicata insofar
as a 3rd party claimant. If at all,
the consequence of the finding of
the court is that the sheriff can
go ahead with the sale of the
property.
If the sheriff schedules the
sale, can third party file an
independent action to stop
the sale of real property?
Yes, he can file the complaint in
another court, RTC, for injunction
with claims for damages, if any.
If property levied upon is a
personal property of a 3rd
party claimant, can 3rd party
file complaint for replevin?
Yes. The claimant must implead
the sheriff and the judgment
creditor (prevailing party).
If the executing court is an
RTC, and 3rd party claimant
files a case for replevin, can
he file it in the MTC?
Yes, as replevin is cognizable by
the MTC depending upon the
value of the thing subject to the
auction sale.
Is this interference with the
other court? Can the sheriff
in the other court claim that
the seizure is interfering with
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the proceedings of the other

court?
No. The sheriff of the MTC can
seize the personal property from
the sheriff of the other court.
Cannot the sheriff of the MTC
capitalize on the provisions
of Rule 60 on replevin that
the writ of replevin cannot be
enforced when the property
is subject to attachment?
If you go to Rule 60, it is really a
requisite in the issuance of a writ
of replevin. The issuing court can
issue a writ of replevin validly if
the property to be seized is not
under custodia legis, not under a
levy of execution or attachment.
If the property is subject of a levy
on execution, it is under custodia
legis.
But
notwithstanding
that
provision in Rule 60, the SC said
that a writ of replevin issued by
the MTC will prevail over the levy
on execution writ by the sheriff,
because the writ of execution by
the sheriff is void. What is
required under Rule 60 to is
that a property should be
under
custodia
legis
to
prevent enforcement of a
writ of replevin, it assumes
that there was a prior VALID
LEVY ON EXECUTION. For a
property to be validly levied
upon, the property must be
owned by the judgment debtor.
Otherwise, the levy is void.
Therefore, the property can be
the subject of a seizure by
another sheriff in compliance
with a writ of replevin issued by
another court, even if it is an
MTC. It is proper for the MTC to
issue a writ of preliminary
mandatory injunction directed
against the sheriff to prevent the
sheriff from going ahead with the
sale.
In Rule 39, if the property of
judgment debtor has been
subjected
to
levy
on
execution,
can
it
be
subjected to another levy on
execution?
Yes. If there are several cases
where the property is subject to
levy, it is possible the same
property can be subject to levy
on execution. The debtor remains

to be the owner of the land, and
the levy creates a lien only over
the property. The first levy
annotated on the title of the
property shall be superior to the
subsequent levies following the
principle of seniority. The SC has
held that if the property is the
subject of different levies, and
the judgment debtor sells the
property, the sale is valid, as the
judgment debtor is still the
owner of the property at the time
of the sale. But the buyer must
respect the annotations of levies
in the title as to the liens
imposed. So, if the property is
sold at public auction sale later
on in execution of the first
judgment,
the
person
who
bought it from the judgment
debtor stands to lose the
property. Buyer is not considered
a buyer in good faith due to the
said annotation of the levies in
the title.
The right of the first levy holder

to redeem is distinct right from
the 2nd levy holder to redeem
the property. If it is the 2nd
holder
who
redeems
the
property, there could be another
redemption by the first judgment
debtor. Under Rule 39, when it is
the judgment debtor who
redeems the property from the
highest bidder, other rights of
redemption are cut off by virtue
of the redemption by the
judgment debtor. So we can
speak of successive redemptions
only if the redemptioner is not
the judgment debtor himself. If
the one who redeems the
property is another lien holder,
we can apply the rule of
successive redemption which
says that another redemption
can be had within 60 days from
the
efficacy
of
the
first
redemption, even if the 1-year
period
for
redemption
has
already expired.
If
the
property
was
mortgaged to a bank that is
still existing, can the sheriff
subsequently
levy
the
property?
Yes, as the levy will not affect the
ownership of the property by the
judgment debtor. It only creates
a lien. He loses ownership if
there was a public auction sale
thereon. But ownership shall not
immediately be lost, so long as
judgment debtor still has the
right of redemption.
For example, there are 3

redemptioners, one being the
judgment
debtor.
If
the
redemption is carried out by the
judgment debtor, the rights of
redemption of the other 2 are cut
off. Redemption for all of them is
1 year from the registration of
the sale in the certificate of title.
So we have to assume that a
redemption made should be
within 1 year of the registration
of the certificate of sale in the
certificate of title. If the 2nd levy
holder redeems the property,
then the 3rd levy holder can also
further redeem the property
within 60 days of the last
redemption. But within the 1year period, the judgment debtor
can redeem the property, who
upon his exercise of his right of
redemption, the rights of the
others to redeem will be cut off.
If in cases where there are two

different levies over the same
piece of land of the judgment
debtor, usually, the property will
be sold as a result of the first
levy of the property. If the
property is later on sold at public
auction, and as the law gives to
the judgment the right of
redemption,
this
right
of
redemption will also be enjoyed
by the buyer. Rule 39 in defining
the
redemptioner
names
a
judgment debtor, his successors
in interest or any creditor who
holds another levy or lien
subsequent to that of the levying
creditor who has caused the sale
of the property.
Will this not cause prejudice

to the other levy holders if
we cut off the right to
redemption?
No, it will not. The levy holders
will simply enforce their levy
since the property in the hands
of the judgment debtor. They can
have another public auction sale
of that levied property.
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In civil law, as well as in Rule 39,

the SC has accepted the principle
that whenever there is a doubt in
the interpretation of redemption
rules and laws, the interpretation
should always be in favor of the
redemptioner,
the
judgment
debtor.
Rule 39 is also very clear in
saying
that
right
of
redemption will exist only
when the property sold at
public auction is a real
property. When the property
levied upon and sold at public
auction is a personal property,
there is no right of redemption.
SC has come up with these
principles that are applicable
to
redemption
of
real
property
and
principles
applicable because there is
no redemption allowed in
personal property:
1.Personal property is sold in
auction,
and
the
price
generated is inequitably low,
the sale is void. The highest
bidder
does
not
acquire
ownership of the property. The
court
will
issue
an
order
declaring the sale as ineffectual.
Sheriff must schedule another
auction sale until the price
generated is not inequitably low.
2.Real property is sold at
public auction, it does not
matter as to price even if
inequitably low, the sale will
be valid. The low price will not
render the sale void because of
the existence of the right to
redeem by the judgment
debtor. If the price is very low,
that is advantageous to the
judgment debtor, because if he
decides to redeem the property,
he need only to match the
auction sale price.
Due to the above
principle, there could
arise
a
situation
where the levy and
public auction sale of
a real property would
result that the price
generated will be
insufficient to pay the
lien of the judgment

creditor.
Let us say that the
judgment creditor
has a lien of 1M,
and a piece of land
owned
by
the
judgment
debtor
was sold at public
auction,
but
generated
only
500K. It is not
enough to pay in
full
the
award
given
to
the
judgment creditor.
The 500k will go to
the
judgment
creditor, but there
is still a residue of
500k. When the
judgment
debtor
redeems
the
property,
should
he deliver to the
sheriff 500k or 1M?
The judgment debtor
should deliver only
500k. He need not
deliver 1M because
the price paid by the
highest bidder was
only 500k.
So, if the judgment
debtor was able to
redeem
the
property
by
producing
500k,
but the judgment
creditor was not
yet fully paid, the
judgment creditor
will be tempted to
have another levy
on the property.
The
judgment
creditor
could
really
entertain
that idea because
he has not yet
been fully paid. In
Rule
39,
there
must
be
full
satisfaction of the
award to put an
end
to
the
litigation. If the
judgment creditor
decides to have
another levy on
the same property
previously
levied
upon,
but
the
property had been
redeemed by the
judgment
debtor,
can
the
same
levying
creditor
carry out another
levy on the same
property?
SC held that in this
situation, the same
levying
creditor
cannot
impose
another levy on the
same property. If the
levying
creditor
wants to have full
satisfaction of his
lien, he should make
another
lien
on
another
property
owned
by
the
judgment debtor. Or,
he could avail of the
other
remedies
provided for in Rule
39 if he cannot get
full satisfaction of the
judgment.
3. If there is still a residue on the
lien of the judgment creditor, he
can levy other properties owned
by the judgment debtor, but the
judgment creditor cannot levy
the same property that the
judgment debtor has redeemed.
This principle does not prevent
other creditors from levying the
property
that
was
already
redeemed.
With respect to the issue as to
who is entitled to the fruits
earned during the pendency of
the levy and during the 1-year
period of redemption, Rule 39
settled that issue. The fruits of
the property sold at public
auction during the period of
redemption shall redound to
the benefit of the judgment
debtor when the redemption
period is still running. The
basis is that the judgment
debtor retains ownership of
the property while the period
of redemption is still running.
If the judgment debtor is unable
to redeem the property within
the period of redemption, then
131 | R e m e d i a l
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the title will be consolidated in

favor of the highest bidder.
Q: What are the rights of a
judgment debtor during the
period of redemption?
A:
1.
To
remain
in
possession
of
the
property
until
the
expiration of period of
redemption;
2. To collect rents and
profits
until
the
expiration of period of
redemption (Sec. 32);
3. To use the property in
the same manner it was
previously used;
4. To make necessary
repairs; and
5. Use it in the ordinary
course
of
husbandry
(Sec. 31).
In the auction sale, anybody can
bid, even the judgment creditor.
It is usually the judgment creditor
who will be offering the highest
bid
because
the
judgment
creditor can give an amount
equivalent to the award given by
the court. If the award given by
the court is 1M, then the
judgment creditor can give an
amount as high as 1M. He need
not turn over any cash to the
sheriff, because he will just tell
the sheriff that he will consider
the 1M lien as fulfillment of his
claim. Whereas if a stranger is
the highest bidder, this stranger
is expected to give the 1M to the
sheriff.
Can the judgment creditor be
forced to shell out the
equivalent of the highest bid
even if the highest bid is
exactly equivalent to the
amount of his claim?
Generally, no. But if there is a
3rd party claim, a terceria, and
the highest bid was that of the
judgment creditor, the judgment
creditor must still shell out cash
in order to be treated by the
sheriff and the court as the
highest bidder.
If the judgment creditor is not
fully paid, there are other options
given in the rules in order to fully

satisfy the claim:
1. File a motion in the court for
an examination of the judgment
debtor.
2. File a motion in the executing
court for the examination of a
debtor of the judgment debtor.
3. File a motion for the
appointment of a receiver for the
remaining properties of the
judgment debtor.
Rule
39SEC.
47.
Effect of judgments
or final orders .The
effect of a judgment
or
final
order
rendered by a court
of the Philippines,
pronounce
the
judgment or final
order, may be as
follows:
A receiver is one of the

provisional remedies in the RoC.
Receivership is allowed by the
court, although the case has
already been terminated, being
already in the execution stage of
the judgment. This is one
instance where a provisional
remedy can be used even after a
case has been decided by the
court. The usual concept of a
provisional remedy is that they
are availed of during the
pendency of the case, before
entry of judgment. But in the
case of receivership, this remedy
can be availed of under Rule 39
even if the case has already been
decided, the judgment has been
entered and is now subject to
execution.
(a)
In case of
a judgment or final
order
against
a
specific thing, or in
respect
to
the
probate of a will, or
the administration of
the
estate
of
a
deceased person, or
in respect to the
personal, political, or
legal condition or
status of a particular
person
or
his
relationship
to
another,
the
judgment or final
order is conclusive
upon the title to
the thing, the will
or administration,
or the condition,
status
or
relationship of the
person;
however,
the probate of a
will or granting of
letters
of
administration
shall only be prima
facie evidence of
the death of the
testator
or
intestate;
THE
PRINCIPLE
OF
RES
JUDICATA
Res judicata under Section 39
consists of 2 sections, Sections
47 and 48.
Section 47 is concerned with the
effect of local judgment after it is
entered, and Section 48 is the
effect of a foreign judgments.
In our study of res judicata, there
are 3 essential elements:
1. identity of parties
2. identity of causes of action
3. identity of subject matter
The effect of res judicata under
section 47 depends upon the
nature of the action:
Judgment in rem (letter a of
Section 47)
Judgment in personam (letter b
Section 47)
Conclusiveness of judgment
(letter c Section 47)
(b)
In other
cases, the judgment
or final order is, with
respect
to
the
matter
directly
adjudged or as to
any other matter
that could have
been
raised
in
relation
thereto,
conclusive
between
the
parties and their
successors
in
interest by title
132 | R e m e d i a l
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subsequent to the
commencement of
the
action
or
special
proceeding,
litigating for the
same thing and
under the same
title and in the
same capacity; and
(c)
In any
other
litigation
between the same
parties
of
their
successors
in
interest, that only
is deemed to have
been adjudged in a
former
judgment
or
final
order
which
appears
upon its face to
have
been
so
adjudged, or which
was actually and
necessarily
included therein or
necessary thereto.
(49a)
Letter a and b speaks of
conclusiveness in both instances.
In letter a, the law says the
judgment is conclusive upon the
title to the thing, the will or
administration,
or
the
condition,
status
or
relationship of the person.
In letter b, the law says the
judgment is conclusive between
the
parties
and
their
successors in interest by title
subsequent
to
the
commencement of the action or
special proceeding, litigating for
the same thing and under the
same title and in the same
capacity.
This is the reason why a
cadastral
proceeding
is
considered as an action in rem,
because the judgment in that
litigation is conclusive upon the
title, it is not conclusive upon the
plaintiff or defendant. Since the
judgment
in
a
cadastral
proceeding is conclusive upon
the title of the property, that

judgment will have to be binding
against the litigants as well as
anybody who has an interest
over the property, although these
persons might have not been
involved in the litigation.
In the probate of a will, which is
another procedure in rem, when
there is a decision of the court
admitting the will to probate, it is
conclusive upon the will or
administration.
Therefore,
anybody who have an interest in
the will must respect the decision
of the court.
But you will notice that there is a
caveat when it comes to a
probate of a will: it is not
conclusive as to the fact that
the testator is dead. There is
only a disputable presumption,
unless proof thereof is presented.
The reason for this is that in civil
law as well as in the Rules, the
probate of the will can be
commenced even when the
testator is still alive, provided
that it is initiated by the testator
himself.
If a person has been issued a
decree of adoption of a child
named Juan dela Cruz, the
decree is conclusive upon the
personal status of that adoptee.
Therefore, anyone who meets the
adoptee and transacts with him
shall be bound by the issued
decree of adoption.
In letter b, when the law says
that judgment is conclusive upon
the parties and their successors
in interest as to matters directly
adjudged or as to matters that
could have been adjudged, that
phrase litigating for the same
thing and under the same title
and in the same capacity will
refer,
for
instance,
to
a
compulsory counterclaim or a
cross-claim. This is because we
learned
that
a
compulsory
counterclaim or a cross-claim
that is not raised in the same
action shall be barred. The
reason they will be barred is
because they are matters that
could have been raised in
relation to the principal action.
So, in a judgment in personam,

the judgment is conclusive only
on the matter directly adjudged.
An example of an action in
personam could be an action
involving
reconveyance
of
property. If the action is only an
action for reconveyance or an
accion reinvindicatoria, it is an
action in personam. Although
real property is involved, still it is
an action in personam.
Plaintiff won the case with
attachment
of
property.
Judgment is entered. The
plaintiff is now the owner of
the property insofar as the
judgment
is
concerned.
However, X, the true owner of
the property, filed a case for
recovery of the property. Is
there res judicata?
No. There is no identity of parties
between the first and second
case. There also there may be no
identity in cause of action,
although there is identity in the
subject matter to recover.
If there is identity in the
subject matter, does it not
follow that there will be
identity in the causes of
action?
No. That would not be the correct
assumption. There could be
identity as to the subject matter,
but the causes of action could
still be different.
For
instance,
in
accion
reinvindicatoria,
the
subject
matter involves a piece of land.
The case involves title to a piece
of land. If there was another
complaint filed involving the
same piece of land, the cause of
action
could
be
different,
although they are referring to the
same land. For instance, there
could be a case for unlawful
detainer filed involving the same
property. Again, though involving
the same subject matter, the
causes of action for accion
reinvindicatoria
and
unlawful
detainer are different. Accion
reinvindicatoria involves recovery
of title to the property, while
unlawful
detainer
involves
recovery of physical possession
of the property. In this case, the
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second case cannot be dismissed

by reason of res judicata as there
is no identity of causes of action.
substance
respect.
General Rule on Res Judicata

under Section 47 Rule 39
When the judgment is entered as
contemplated in Section 47, Rule
39, then the effect of the
judgment is similar to a judgment
in rem or judgment in personam.
The collateral principle that we
adopt from this rule on res
judicata is that the judgment that
has been entered shall become
immutable, it cannot be changed
or modified, even by the SC
itself. Everybody will have to
respect res judicata applicable to
this judgment.
(c)
In any
other
litigation
between the same
parties
of
their
successors
in
interest, that only is
deemed
to
have
been adjudged in a
former judgment or
final
order
which
appears upon its face
to have been so
adjudged, or which
was
actually
and
necessarily included
therein or necessary
thereto
Exception:
1. Propriety of petition to annul
judgment (it is an attempt to
change or modify a judgment,
one ground being lack of
jurisdiction of the court over
the subject matter or over the
person of the party)
2. Relief from judgment on
ground of FAMEN under Rule 38
FGU Insurance Case and a
2007 case
In that case, the SC gave 5
instances
where
a
final
judgment can be modified or
set aside.
1. Clerical errors;
2. Judgment nunc pro tunc;
3. The judgment is void; and
4.
When
supervening
circumstances intervene after
finality of judgment to render
execution of judgment unjust
and inequitable.
5. SC held that it has the
inherent power to change and
modify final and executory
judgments if substantial justice
so require. (2007 case)
Judgment nunc pro tunc (Now
for then) A judgment intended
to enter into the record the acts
which had already been done,
but which do not appear in the
records. Its only function is to
record some act of the court
which was done at a former
time, but which was not then
recorded, in order to make
the record speak the truth,
without
any
changes
in
or
any
material
This is a kind of res judicata with

limited application. There could
be identity of parties and subject
matter, but there is no identity of
causes
of
action.
Thus,
subsequent cases may prosper
due to absence of res judicata.
The
debt
based
on
a
promissory note was 1M
payable in 2 installments.
The debtor defaulted in the
1st installment. The creditor
filed a case where creditor
stated
that
the
PNs
signature was forged. Court
held that the signature on
the note was genuine. Then,
the
second
installment
became due. Can another
complaint be had?
Yes. Each installment gives rise
to a separate cause of action.
Can forgery be raised again
on the promissory note?
No. Judgment on the first case is
conclusive
insofar
as
the
genuineness of the note is
concerned.
Sec.
48
Rule
39Foreign
judgments in rem and in
personam
Judgment in rem conclusive
upon the title of the thing;
Judgment in personam there
is
only
the
presumptive
evidence of a right as between
the parties and their successors

in interest by a subsequent title.
There is a foreign judgment
rendered by the Japanese Court.
The relief which the creditor
stated in the Japanese court is
the fulfillment of an unpaid loan
of 100k. The Japanese court
decides the case in favor of the
debtor. The debtor is required to
pay the 100k in the Japanese
court. The Japanese court had
not executed the judgment. But
somehow,
the
debtor
and
creditor were now living in the
Philippines. The judgment debtor
has
accumulated
certain
propertied in the Philippines.
Can the judgment creditor in
that Japan case file a motion
for
execution
in
the
Philippine courts?
No. The Philippine court cannot
entertain the motion as it knows
nothing about the claim of the
judgment creditor against the
judgment debtor in the Japan
case.
Is there a remedy available to
the judgment creditor to
enforce the judgment of the
Japan
court
in
the
Philippines?
Yes, the remedy is found in
Section 48 (b) Rule 39. The
judgment from the Japanese
court is a presumptive evidence
of the judgment creditors right
against the judgment debtor.
How
does
the
judgment
creditor make use of that rule
that the decision of the Japan
court
is
presumptive
evidence of his right against
the judgment debtor?
The creditor should file an
independent complaint for the
enforcement of the decision of
the Japan court. And the only
evidence that he needs to
convince the court as to the
preponderance
of
evidence
needed to prove his right is to
present to the Philippine court a
certified true copy of the decision
rendered by the Japan court. If he
is able to present a certified true
copy of the decision to the
Philippine court, the court will
then apply the presumption
given under Section 48(b) Rule
39, that the decision of the Japan
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court is presumptive evidence of

the rights between the parties.
In Section 48, there is a last
paragraph talking about repelling
of
a
foreign
judgment.
A
judgment of a foreign court can
be repelled by evidence of a
want of jurisdiction, want of
notice to the party, collusion,
fraud, or clear mistake of law or
fact committed by the foreign
court. Hence, if the creditor files
a case for the enforcement of the
decision of the Japan court, the
judgment debtor can present
evidence that will repel the
foreign decision, such as want of
jurisdiction over his person.
Can all these grounds repel a
local judgment?
No. The defenses available for
repelling the execution of a
foreign judgment is not availing.
Why cannot the defendant
oppose the execution of a
local judgment using the
grounds to repel a foreign
judgment?
We do not allow a motion for
execution to be denied on the
argument did based on want of
jurisdiction, want of notice to the
party, collusion, fraud, or clear
mistake of law or fact committed
by the court because that will be
a collateral attack on the
judgment, which is generally not
allowed under the Rules. We can
only allow a direct attack on the
judgment by filing a petition to
annul that judgment, on the
the subject matter, lack of
the defendant or extrinsic fraud.
We cannot use these grounds to
collaterally attack the judgment
in our system.
When we say collateral attack,
the
person
attacking
the
judgment does
not file a
separate
complaint
for
the
purpose of having that judgment
set aside. If he only opposes a
motion for execution, and the
ground is that of lack of
jurisdiction over the case, it is
not allowed since that is a
collateral
judgment.
attack
on
the
Section 48 allows collateral

attacks only against a foreign
judgment, which cannot be
allowed
insofar
as
local
judgments are concerned.
With respect to collusion and
fraud, they are also grounds to
attack directly the judgment
under Rule 47 (Annulment of
Judgments), and then under Rule
38 (Petition for Relief from
Judgments). What cannot be
done under our system is a
collateral attack against a final
and executory judgment.
When can a collateral attack
be had against a judgment?
When the judgment is patently
void on its face, it is vulnerable
to collateral attacks.
Ex. The judgment contains only
the dispositive portion. This kind
of judgment is void on its face.
(Shimizu vs. Magsalin)
PETITION
TO
REVIVE
JUDGMENT
It is an independent
action available to a
judgment
creditor
who
has
not
executed the case
via a motion in the
first 5 years from
entry of judgment;
Within the 2nd 5-year
period from entry of
judgment,
the
judgment
debtor
cannot oppose an
action
to
revive
judgment by setting
up the defense that
the judgment is void
due
to
lack
of
person
of
the
defendant, as this is
a collateral attack on
the
judgment
rendered.
If the ground that the judgment
is void is used as a defense other
than an independent complaint
for annulment of judgment, that
is a collateral attack on the

judgment.
PROVISIONAL REMEDIES
Also called as Interim
relief
and
provisional
order
Q: What are the Provisional
Remedies under the Rules of
Court?
A:
1. Preliminary Attachment (Rule
57)
2. Preliminary Injunction (Rule
58)
3. Receivership (Rule 59)
4. Replevin (Rule 60)
5. Support Pendente Lite (Rule
61)
Q: What are the Other
Provisional
Remedies
available?
A:
1. Temporary custody over a
minor
2.
Deposit
in
Actions
for
Annulment of Sale (Reyes v. Lim)
3. Restraining order against the
accused in cases of violence
among
immediate
family
members living in the same
domicile and household
4. Hold departure orders issued
by Regional Trial Courts in
criminal cases
5. Interim reliefs under Writ of
Amparo:
a. Temporary Protection
Order
b.
Witness
Protection
Order
c. Inspection Order
d. Production Order
(Riano,
Civil
Procedure:
A
Restatement for the Bar, p. 534536, 2009 ed.)
Rule 57 to Rule 61 as well as
Separate circulars of the SC
on WHD and WA.
Writ of Habeas Data under
certain
circumstances,
it
functions as a provisional remedy
Writ of Amparo under certain
circumstances, it functions as a
provisional remedy
Amparo Provisional Remedies
Protection order
Production Order
Witness Protection Order
Inspection Order
135 | R e m e d i a l
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Provisional
Remedies
in
Marriage-Related Cases:
Spousal support
Child support
Visitation
Temporary Custody of
minor/s
Hold Departure Order
Protection order
Appointment
of
administrator
of
coowned
propertied
of
spouses
(owned
in
common or forming part
of
the
conjugal
partnership of gains)
Writ of Kalikasan
Temporary Environmental
Protection Order (TEPO)
Discovery
measures
that appears to be
considered
as
provisional remedies:
Ocular Inspection Order
Production order
Writ of Amparo
Writ of Habeas Data
Writ of Kalikasan
Common element: There is a
pending principal action, except
when the provisional remedy by
itself is or can be treated as a
principal
action,
such
as
Replevin, Writ of Amparo and
Writ of Habeas Data.
We cannot file an independent
action solely for the purpose of
obtaining as a principal relief any
of these provisional remedies.
Example, a creditor cannot file a
case solely for the purpose of
obtaining
a
preliminary
attachment.
Preliminary
attachment should be a relief
prayed for in an independent
case.
Note:
Rule 57 Preliminary Attachment
is a provisional remedy because
of the word preliminary.
Final attachment is not a
provisional remedy. It is now part
of the execution process under
Rule 39.
Note:
Levy on execution refers to
levy on final attachment. But
we use the term levy on
execution to differentiate it on
levy on attachment.
Levy on attachment
provisional remedy.
is
The enumeration of provisional

remedies in the rules is no longer
exclusive.
The new rules/circulars issued by
the SC used the following terms:
1. Provisional Order related to
marriage-related cases
2. Interim Relief Amparo
3. Provisional Order or Provisional
Remedy - Kalikasan
Provisional remedies cannot be
the principal action itself, subject
to the exception of Replevin.
Provisional remedy of a writ of
replevin is an application for
recovery of personal property in
the main case.
Support pendente lite cannot be
a principal action, as the
principal action should be a
complaint for support, with
application of the provisional
remedy of support pendente lite.
Writ of Amparo and Writ of
Habeas Data are actions in
themselves, but are treated as
provisional remedies. If there is a
criminal
case
already
filed
involving the disappearance of a
person, that criminal action being
the principal case, there can be
an application for a writ of
Amparo or a writ of Habeas Data
as a provisional remedy.
In the circular of Kalikasan,
Production and inspection orders,
formerly modes of discovery,
were elevated as provisional
remedies
in
Amparo
and
Kalikasan writs. Also included
were
TEPO,
preliminary
attachment, ocular inspection
order, cease and desist order
(Sec. 15a) and production and
inspection order.
In these new circulars, the SC

has elevated several Modes of
Discovery
as
provisional
remedies like production of
documents and inspection of
things, they are now treated as
provisional
remedies.
The
Kalikasan court can issue a
production and inspection order
or an ocular inspection order.
The same is true with the
Amparo circular. There is a
production order and inspection
order,
although
they
are
substantially of the same nature
of the production and inspection
in the Modes of Discovery.
Although
we
have
several
provisional reliefs, interim reliefs
or provisional orders, it is
incorrect to assume that there
are
commonalities.
These
different circulars have not
adopted the provisions in the
Rules (Rules 57 up to 61).
If you will notice under Rules 57
to 61, one of the common
requirements is the posting of
bond by the applicant (except
support pendente lite). We have
an attachment bond, receivers
bond, production bond, and the
like.
But in the circular on marriagerelated cases, the family court
can grant these provisional
orders with or without bond at
the discretion of the family court.
Also, in the same circular, the
family court can grant these
provisional orders with or without
a hearing, which is similar to
some provision in the Rules that
some remedies can be granted
ex parte, or some provisional
remedies require a summary
hearing before issuance.
In the Amparo circular, when it
comes to the provisional relief of
a PO and IO, there must be a
motion filed by the applicant and
a must be hearing conducted. In
the case of WPO and PO, they
can be issued ex parte.
In the Amparo circular, there is
nothing mentioned about the
136 | R e m e d i a l
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posting of a bond by the

applicant. This is similar to that
in circular on marriage-related
cases, where no bond is required
In the circular for the Writ of
Kalikasan,
the
issuance
of
Temporary
Environmental
Protection Order does not require
a bond. Just like preliminary
injunction, there can be TRO
good for 72 hours, but can be
extended until the end of the
case. What is peculiar is that
the party required to post a
bond in a TEPO is not the
applicant but the adverse
party who will apply the
lifting of the TEPO. When the
adverse party moves for the
lifting of the TEPO, the adverse
party is required to file a bond to
protect the other party. In most
preliminary reliefs, it is the
applicant who files a bond. The
filing of a counterbond will lift the
preliminary relief. The same is
true with a TEPO. But the
applicant does not have to file a
bond. If the TEPO is issued, the
adverse party wants to have the
bond lifted, then he will be
required to post a bond to
protect the interest of the
applicants.
Another rule of interim relief or
provisional remedies that is
applicable to the issuance of the
interim reliefs is that the interim
relief or provisional order is
always interlocutory, it is not a
final order and has nothing to do
with the merits of the case.
Appeal is not allowed.
The
accepted
remedy
to
challenge the issuance of a
provisional remedy or interim
relief or a provisional order is
Rule 65, but in some circulars,
that has also been changed
substantially. For instance, in
summary procedure, in cases in
the MTC, when it grants a
provisional order, it is not
appealable, and the adverse
party cannot file a petition under
Rule 65. The reason is that the
application of availment of
Rule 65 in order to challenge
an interlocutory order is
prohibited under summary
proceedings.
Likewise
in
Amparo, there is a similar
provision stating that grant
of
provisional
order
is
interlocutory, and Rule 65 is
not
available,
being
an
expressly prohibited pleading
(See Section 11l of The Rule
on The Writ of Amparo). In the
circular
of
Kalikasan,
the
issuance
of
TEPO
is
also
interlocutory. Although it can
be challenged, the problem is
the challenge on a TEPO can
only be filed before the SC
under Rule 65.It is only the SC
that can entertain a petition
assailing the issuance of a TEPO.
So, do not be of the impression
that all of these remedies being
provisional in character, they are
governed by the same set of
rules. They are governed by a
different set of rules, depending
upon the circular of the SC
applicable to each one of them.
With respect to the authority of
the MTC being able to grant
interim relief, it has been settled
under BP 129. Under Sec. 33 of
BP 129, it is clearly provided
therein that MTCs have authority
to grant provisional remedies so
long as it has jurisdiction over
the principal case. In case of
support pendente lite, there
could be instances where MTC
can grant for support pendente
lite, but we must keep in mind
that so long as that principal
case is cognizable by the MTC,
support as a provisional remedy
can be had.
PRELIMINARY ATTACHMENT
Rule 57. SECTION 1. Grounds
upon which attachment may
issue.At the commencement
of the action or at any time
before entry of judgment, a
plaintiff or any proper party may
have the property of the adverse
party attached as security for the
satisfaction of any judgment that
may be recovered in the
following cases:
(a) In an action for
the recovery of a
specified amount of
money or damages,
other than moral and

exemplary,
on
a
cause
of
action
arising
from
law,
contract,
quasicontract, delict or
quasi-delict against a
party who is about to
depart
from
the
Philippines
with
intent to defraud his
creditors;
(b) In an action for
money or property
embezzled
or
fraudulently
misapplied
or
converted to his own
use by a public
officer, or an officer
of a corporation, or
an attorney, factor,
broker,
agent,
or
clerk, in the course of
his employment as
such, or by any other
person in a fiduciary
capacity, or for a
willful violation of
duty;
(c) In an action to
recover
the
possession
of
property unjustly or
fraudulently
taken,
detained
or
converted, when the
property, or any part
thereof, has been
concealed, removed,
or disposed of to
prevent
its
being
found or taken by the
applicant
or
an
authorized person;
(d) In an action
against a party who
has been guilty of a
fraud in contracting
the debt or incurring
the obligation upon
which the action is
brought, or in the
performance thereof;
(e) In an action
against a party who
has
removed
or
disposed
of
his
property, or is about
to do so, with intent
to
defraud
his
creditors; or
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(f)
In an action
against a party who
does not reside and
is not found in the
Philippines, or on
whom summons may
be
served
by
publication.
You will notice in Section 1 that
there are 6 instances where one
can file for the relief of
preliminary attachment. In the
first five, there is a common
denominator, intent to defraud
the applicant.
The last is closely related to Rule
14
(Summons),
in
gaining
the party. The applicant is
moving for an interim relief in
order to enable him to secure for
himself a judgment in court by
attachment of the properties of
the party who could not be
served with summons in any
manner, including by publication.
When the property of the absent
party is attached, the action in
personam will be converted to an
action in rem or quasi in rem by
virtue
of
a
preliminary
attachment issued by the court
and actually implemented by the
sheriff.
Except for the last part of Section
1, the only purpose of the
applicant in moving for the
issuance of a writ of preliminary
attachment is to enable him to
obtain a security for any
judgment that may be rendered
later on by the trial court in his
favor.
If we will note in the cases
enumerated in Section 1, mainly,
the conduct of the adverse party
is criminal in character. It is a
common saying in preliminary
attachment
that
the
fraud
committed could be a criminal
fraud or wholly a civil fraud (an
act of fraud that has not reached
the level of a crime) that will
justify issuance of preliminary
attachment. The conduct should
fall in any one of the instances
under Section 1 of Rule 57.
Thus, the issuance of a bouncing

check can cause the filing of an
information as well as an
application for attachment of
properties of the drawer. There is
fraud in the performance of an
obligation. In the NCC, if there is
fraud in performance of an
obligation (dolo incidente), or a
fraud
in
contracting
(dolo
causante, a deception employed
by one party prior to or
simultaneous to the contract in
order to secure the consent of
the other). In both instances,
they are justification for the
issuance of preliminary relief.
Supposing the plaintiff has a
creditor that holds collateral.
If there is default in payment
of indebtedness, and there is
a case of collection with
allegation
of
intent
to
defraud, can the creditor
move
for
preliminary
attachment
over
the
collateral?
Yes. Although applicant may
have a security already in hand,
the court may still grant such
preliminary attachment if the
applicant
proves
such
collateral/security
is
insufficient to satisfy the
debt. Thus, creditor can look for
other properties of the debtor
sufficient to secure the obligation
due once the court grants
preliminary attachment.
In preliminary attachment,
there are 2 rules that are
applicable
to
preliminary
attachment as well as other
provisional remedies in the
Rules when they are granted
ex parte:
1.
Prior
and/or
contemporaneous service of
summons
2. Principle under Section 20
Rule 57
Prior
and/or
contemporaneous service of
summons
there
is
an
application
filed
after
the
commencement of the action,
and even before the court
acquires jurisdiction over the
person of the defendant via
summons, the court may already

have approved the application
for attachment.
For a court to act validly, the
court must acquire jurisdiction
over the cause of action, the
person of the plaintiff and the
person of the defendant. This
remedy is available even before
jurisdiction over the defendant
can be had via a verified
application
for
preliminary
attachment filed by the plaintiff.
But, issuance of preliminary
attachment
at
pre-stage
proceeding requires a hearing
and the court will require the
posting of an attachment
bond before the writ is issued;
as long as all the conditions have
been met, there is only the
carrying out the writ. The sheriff
must first serve the summons
and
then
the
notice
of
attachment, or serve them
contemporaneously.
This
will
remedy the lack of jurisdiction by
the court over the person of the
defendant. This is applicable in
all provisional remedies that the
court can grant ex parte even
before the court has gained
the defendant.
This can be
applied in preliminary injunction
and
in preliminary relief of
replevin.
Since preliminary attachment, if
carried out, is a derogation on
the right of ownership of the
adverse party, the rule on
attachment should be strictly
construed in order to protect the
right of ownership of the adverse
party. If the properties of the
defendant are going to be
subject to attachment, and these
properties are those capable of
delivery, like a car, they will be
seized in custodia legis so long
as the preliminary attachment is
not lifted. But the property will
not be delivered to the plaintiff,
nor used by the defendant. It will
be in the custody of the court. If
the court takes 3 years to decide
the case, the property will be
under custody of the court for 3
years.
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In case of real property, the title

will be annotated with a lien. He
does not lose ownership. He can
sell it, but the buyer will be
notified via the annotation on the
title, and he must recognize that
fact, that the property can be
subject to auction sale later on.
The buyer could stand to lose his
title on the property. The buyer
cannot be considered a buyer in
good faith. He will always be a
buyer
with
notice
of
the
existence of the preliminary
attachment.
If the defendant has a sizable
bank account, the sheriff will
simply
prepare
a
writ
of
garnishment and serve it upon
the bank. When the bank
receives the writ, the bank will
freeze the account up to the
amount of the claim. And if the
bank account is frozen, the
defendant cannot use these
funds anymore. The bank will not
allow him to withdraw. If it is a
checking
account
and
the
defendant issued checks thereon,
the bank will dishonor the checks
that are presented to it. Thus, a
preliminary attachment is a
serious derogation of the rights
of ownership of the defendant.
In that writ of garnishment,
which is also applicable to Rule
39 (Execution of Judgment),
there will be a new relationship
created as an incident to the
case, which we called Forced
intervention the judgment
debtor/defendant, whether he
likes it or not, will be subject to
further orders of the court. So if a
bank account is garnished,
whether the bank likes it or not,
the bank will be forced to follow
the orders of the court, in the
sense that the bank will have to
follow the orders of the court
after the garnishment of the
bank account of the defendant.
The remedies under Rule 57 can
be lifted.
How preliminary attachment
is lifted:
1. File a cash deposit with the
court equal to the attachment
bond or
2. File a counterbond via surety

authorized by the court (The
filing of such counterbond will
make a ministerial duty of the
court to lift the preliminary
attachment.)
3. Motion for lifting preliminary
attachment
due
to
being
improper or irregular a motion
must be filed by the defendant,
with notice of hearing.
If the defendant has already
posted a counterbond and
the preliminary attachment
has already lifted. Can he
apply for reversal of the
order granting preliminary
attachment?
Yes. Even if the defendant has
caused
the
lifting
of
the
preliminary
attachment
by
payment of cash deposit or by
counterbond, he can still file a
motion to lift the preliminary
attachment. This is because he
has put up counterbond or cash
deposit enough to secure the
satisfaction of the claim of the
plaintiff, and there is no need
for the attachment anymore.
Principle under Section 20
Rule 57
SEC. 20. Claim for
damages on account
of improper, irregular
or
excessive
attachment.An
application
for
damages on account
of improper, irregular
or
excessive
attachment must be
filed before the trial or
before
appeal
is
perfected or before
the judgment becomes
executory, with due
notice to the attaching
party and his surety or
sureties, setting forth
the facts showing his
right to damages and
the amount thereof.
Such damages may be
awarded only after
proper hearing and
shall be included in
the judgment on the
main case.
If the judgment of the

appellate
court
be
favorable to the party
against
whom
the
attachment was issued,
he must claim damages
sustained
during
the
pendency of the appeal
by filing an application in
the appellate court, with
notice to the party in
whose
favor
the
attachment was issued or
his surety or sureties,
before the judgment of
the
appellate
court
becomes executory. The
appellate
court
may
allow the application to
be heard and decided by
the trial court.
Nothing herein contained
shall prevent the party
against
whom
the
attachment was issued
from recovering in the
same
action
the
damages awarded to him
from any property of the
attaching
party
not
exempt from execution
should the bond or
deposit given by the
latter be insufficient or
fail to fully satisfy the
award.
In an action where a writ of
attachment has been issued
by the court, the writ will
only be lifted if there is a
cash deposit or counterbond
filed in the court, and the
court will withdraw the order.
The court will then decide the
merits of the case. If the
applicant wins, there is now a
judgment on the merits in
favor of the applicant. Can
the
defendant
hold
the
applicant liable for improper
or irregular attachment even
if he lost the case?
Yes. If the applicant eventually
wins the case, it means the
applicant has a cause of action
against the defendant. But, it
does not necessarily follow
that the cause of action falls
under Sec. 1 of Rule 57. He
may not have been able to
prove dishonesty or intent to
139 | R e m e d i a l
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defraud. So, if the applicant

failed to prove that his case falls
under the cases mentioned in
Section 1 of Rule 57, it means
that the issuance of the court of
the
writ
of
preliminary
attachment was irregular and
improper. The only instance the
court should grant preliminary
attachment are the instances
mentioned in Sec. 1 Rule 57. If
the defendant wins the case, the
applicant shall be liable for
damages as a matter of course.
But Section 20 is the procedure
to be followed in rendering the
applicant liable for damages for a
wrongful or improper issuance of
a writ of preliminary attachment.
Note: If bond or deposit given by
the
party
availing
of
the
provisional
remedy
be
insufficient or fail to satisfy the
award:
Adverse party may recover
damages in the same action
(Sec. 20, Rule 57; Sec. 8, Rule
58; Sec. 9, Rule 59; Sec. 10, Rule
60).
Note: Any award of damages for
the wrongful issuance of a
provisional remedy should be
recovered in the same case. The
recovery of damages cannot be
had in a separate action.
The first principle under Section
20 Rule 57 is that the recovery of
damages should be had in the
same
case,
not
in
an
independent
action.
Adverse
party must already submit an
application for damages for
improper issuance of writ of
preliminary
attachment.
The
most practical way of informing
the court right away is to set up
in his answer a compulsory
counterclaim for recovery of
damages. If the defendant did
set up a counterclaim for
recovery of damages, and then
the defendant eventually wins,
he will just file an application
through a motion to conduct a
hearing on the extent of liability
to which the defendant is entitled
to recover.
What Rule 57 tells us is that it is
not possible for the defendant
who has won the case to file a

separate complaint for recovery
of damages arising out of a
wrongful attachment. If he did
so, that independent case will be
dismissed, even motu propio by
the court, due to res judicata.
In Section 20, Rule 57, it is very
clear that the extent of damages
to be recovered need not be
equivalent to the attachment
bond filed in court. Sec. 20
Rule 57 provides that if the
attachment bond is insufficient,
there could be an availment of a
levy of execution under Rule 39
by the defendant. (This section is
similar to other provisional
remedies in the Rules) Nothing
herein
contained
shall
prevent the party against
whom the attachment was
issued from recovering in the
same action the damages
awarded to him from any
property of the attaching
party
not
exempt
from
execution should the bond or
deposit given by the latter be
insufficient or fail to fully
satisfy the award. Thus, the
defendant can ask for a writ of
execution against the applicant
under Rule 39. There can now be
a levy on execution against the
applicant.
Remember that Rule 20 is a
provision that is followed by
other provisional remedies where
there
is
a
bond
required
(preliminary
injunction,
receivership and replevin) before
the
court
will
issue
the
preliminary relief prayed for.
RULE
58
PRELIMINARY
INJUNCTION (PI)
The principal action could be any
action
coupled
with
an
application for a TRO or a writ of
Preliminary Injunction. A special
action for certiorari under Rule
65 is usually accompanied by a
verified application for TRO and
writ for PI. The relief usually
asked for in Rule 65 is for a writ
to prevent or prohibit the
respondent court from going
ahead with the case pending
before the court, or in case of a
certiorari, to set aside the

decision or interlocutory order of
the
respondent
court.
Preliminary injunction and TRO
can be availed of in any civil
proceeding where the principal
relief sought by the applicant or
petitioner is to prevent an act or
compel performance of an act. PI
can also be had in criminal cases
or special proceedings, as long
the principal relief is to compel or
to prevent the performance of an
act.
In PI, there are 2 provisional
remedies contemplated:
1. TRO
2. Writ of Preliminary Injunction
Both require an injunction
bond. TRO, in exceptional cases,
can be granted ex parte. A bond
must be paid. Generally, a court
cannot grant TRO without a
hearing. When there is grave and
irreparable injury,
The general rule is that a court
cannot grant a TRO or a writ of PI
without
a
hearing,
unlike
preliminary attachment. Always
expect a summary hearing, with
notice to both parties, to be
conducted.
TRO can be granted ex parte, by
way of exception, in instances
when
there
is
grave
and
irreparable injury that will be
caused to the applicant, and in
no way shall the total period of
the TRO be longer than 20 days.
The court will still fix a TRO bond.
During the 20-day period, the
court will then conduct a hearing
to determine whether or not a
writ of PI will be needed.
(if the matter is of extreme
urgency and the applicant will
suffer grave injustice and
irreparable
injury,
the
executive judge of a multiple-sala
court or the presiding judge of a
single-sala court may issue ex
parte a temporary restraining
order effective for only seventytwo (72) hours from issuance but
he shall immediately comply with
the provisions of the next
preceding section as to service of
summons and the documents to
140 | R e m e d i a l
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be served therewith. Thereafter,

within the aforesaid seventy-two
(72) hours, the judge before
whom the case is pending shall
conduct a summary hearing to
determine
whether
the
temporary restraining order shall
be extended until the application
for preliminary injunction can be
heard. In no case shall the
total period of effectivity of
the temporary restraining
order exceed twenty (20)
days, including the original
seventy-two hours provided
herein. 2nd Par. Sec. 5 Rule 58),
PI ABSOLUTELY requires a
summary hearing. A court cannot
grant a PI without a hearing.
There is no exception. It is only in
the issuance of a TRO where
there is an exception to the
general rule where it can be
issued ex parte. In multi-sala
courts, the executive judge can
issue a TRO ex parte, but it shall
be good only for 72 hours. And
then, in a multi-sala court, what
the petitioner files with the court
is motion for a special raffle. If
granted, there will be such
special raffle in the meantime
that the executive judge has
issued the ex parte TRO. After
the raffle is completed, the judge
sala in which the action has been
assigned has the duty to conduct
a hearing to determine whether
or not it will have to issue a writ
of PI.
Do not forget the modifications of
the 2007 circular to Rule 58. The
modification is that if a court
has issued a writ of PI which
has no term (not lifted until
finally
decided
or
until
ordered), the court that
issued such writ of PI must
decide the principal action
within a period of 6 months.
This is the modification in the
2007 circular. If the court does
not place a limit of 6 months to
decide the principal action, the
writ will be effectively be a
perpetual injunction, because it
is effective until the case has
finally been decided. If the court
grants the PI today, it has only 6
months within which to decide
the case. In deciding the
principal case, the court could

rule in favor of the plaintiff or
defendant. If ruled in favor of the
defendant, the PI is automatically
lifted, meaning the plaintiff has
no right at all to ask for the writ
of PI.
Although the authority of the
court is very broad in the
issuance of a writ of PI, there are
instances where a court cannot
grant a writ of PI or TRO.
Instances where a court
cannot grant PI or TRO:
1.
in
the
enforcement
of
Kalikasan statutes (except the
SC, as only SC is authorized to
issue TRO or PI in Kalikasan
cases)
2. if there is a TEPO issued by
any court (it is only the SC
that can prevent the carrying
out of the TEPO)
3. In the case of infrastructure
projects
of
the
national
government (only the SC that
can prevent the carrying out of
the project)
4. When it is a government bank
that forecloses the mortgage
(only the SC that can prevent
the carrying out of the
foreclosure, either judicial or
extra-judicial)
5. court has no authority to grant
injunctive relief against the BoC.
(violation
of
separation
of
powers)
6. court cannot grant injunctive
relief against deportation of
aliens (violation of separation of
powers)
If we compare the remedies
available to a defendant against
whom an injunctive writ has been
issued to that of which a
Preliminary Attachment has been
issued, in Rule 57, in PA, if the
adverse part/defendant files with
the court a counterbond, the
lifting of the PA is ministerial to
the court. The properties will be
returned. PI cannot be lifted
without a hearing despite posting
of counterbond. The court cannot
rely
on
the
filing
of
a
counterbond to lift the PI, as it
has to study the merit of the
lifting of the injunction. It is not a
matter of right of the adverse
party to expect the injunction

court to lift the PI just because of
the filing of a counterbond. The
reason why the Rules do not
make it a ministerial duty of the
court to lift the PI simply because
there is a counterbond is due to
the
ground
of
grave
and
irreparable injury. The injury
cannot be measured exactly,
there is no mathematical formula
to determine extent of damages
that applicant can suffer in
injunction cases.
In Preliminary Injunction (PI) and
Preliminary Mandatory Injunction
(PMI), we should always relate
these
to
the
summary
proceedings. Relate these in
relation to Forcible Entry and
Unlawful Detainer in the NCC.
The MTC can grant PA or PMI.
The
NCC
contains
some
procedures
in
the
matters
pertaining to Forcible Entry or
Unlawful Detainer. In the NCC,
which is copied by Rule 70, it is
provided that the court can grant
PI or PMI in cases of ejectment. If
the MTC grants PI or PMI, that
cannot
be
appealed
or
challenged by a petition under
Rule 65. Under the rule on
summary proceedings, Rule 65 is
a prohibited pleading in summary
proceedings in challenging an
interlocutory order. This is the
Rule found in Rule 70, as well as
in some articles of the NCC.
But when that ejectment case is
appealed in the RTC, in the
exercise
of
its
appellate
jurisdiction, the NCC, as well as
the Rules, provides that the RTC
can grant PMI or PI if applied by
the plaintiff/applicant. PI or PMI
granted by the RTC as an
appellate
court
remains
unappealable as it remains to
be interlocutory, but this can
now be challenged under
Rule 65. This is because
summary procedure is in
effect while the case is in the
MTC, whereas on appeal in
the
RTC,
the
regular
procedure
applies,
and
challenge under Rule 65 is
allowed.
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RULE 59 RECEIVERSHIP
It has a feature not present in
other
provisional
remedies.
Provisional
remedies
are
contemplated to be used during
the pendency of the case. In
receivership, the court can
appoint a receiver during
pendency of a case. Under
the Rules, the court can also
appoint a receiver after the
judgment or in the process of
execution of said judgment.
This feature makes this remedy
unique. There is no fixed time
in which a court can appoint
a receiver.
Relate this to the remedies of a
judgment creditor in Rule 39
when he is unable to recover full
satisfaction of his account. Under
Rule 39, the judgment creditor
can ask for examination of the
judgment
debtor
for
any
properties. If there are properties
present, judgment creditor can
apply that such properties be
placed in receivership.
There has to be a summary
hearing, no ex parte appointment
of a receiver is allowed.
The grounds for appointment of
receiver
are
quite
broad.
Whenever the court feels there is
a need for the appointment of a
receiver to preserve the property
in litigation, it shall do so. The
Rules also provide in foreclosure
of a mortgage, the mortgagee
can move for the court to have
the mortgaged property placed
under receivership, even if there
is no proof that the collateral will
be lost or deteriorate. This can
be done whenever the deed of
mortgage contains a stipulation
authorizing the mortgagee to
move for the appointment of a
receiver. But generally, the
purpose of
receivership is to
preserve the property under
litigation
from
loss
or
deterioration.
SC held that the receiver is
not a representative of either
party.
It
classified
the
receiver as a representative
and an officer of the court.
Thus, the receiver cannot file a

case as a receiver without the
consent of the court. If a receiver
needs to file a case to recover
certain
properties
under
receivership,
he
needs
permission from the court to do
so. On the other hand, if a 3rd
person has a grievance against
the receiver in his capacity as a
receiver, the 3rd person cannot
simply file a case against such
receiver as the 3rd person must
seek permission of the court first.
We find here a situation that the
filing of a case will need
permission of the court. If not
granted, that action will fail.
Practically every issue is left to
the court. The court determines
how much compensation to give
to the receiver, the qualifications
of
a
receiver,
how
many
receivers may be needed. The
court can appoint a receiver, it
can also fire said receiver and
appoint a new one, whenever
there is a need to preserve the
property. The competence in the
determination of such matters is
in the receivership court.
There is another feature in
receivership that is not found in
the other provisional remedies. In
receivership, there are two bonds
:
1. Bond of the applicant
2. Bond of the receiver
The applicant should manifest
that he is able to post bond.
Once the court appoints the
receiver, the receiver shall also
post a bond. The receivers bond
is designed to protect the parties
to the litigation from any abuse
or mischief by the receiver in the
performance of his duty.
RULE 60 REPLEVIN
By
jurisprudence,
it
is
accepted as a main action
and as a provisional remedy
at the same time. Recovery of
possession of property capable of
manual remedy is termed as a
complaint
for
replevin.
It
automatically rules out a real
action. In personal action for
recovery
of
possession
of
personal property, it involves

warrant of seizure or writ of
replevin to enable applicant to
gain possession of the specified
personal property.
In replevin cases, without an
application of a provisional
remedy of a writ of replevin, the
plaintiff recovers possession of a
personal property only after the
case has been decided in his
favor. So, if plaintiff filed the case
today for recovery of a car
without an application for the
provisional remedy of a writ of
replevin, and the case was
decided 5 years later, the car
shall
remain
under
the
possession of the defendant
during those 5 years. Chances
are, by the time the case is
decided, the car might already
be in a bad condition. That is the
role of a writ of replevin. So if a
plaintiff files a complaint today
for the recovery of a car, if he
wants to gain possession of the
car right away, he should file an
application for a writ of replevin
in order for him to immediately
gain possession of the car.
Writ of replevin is tilted always in
favor of the applicant. The court
can
grant
the
motion
or
application ex parte. This is one
provisional
remedy
which
cannot be granted by an
appellate court. Only the
court of original jurisdiction
can grant it, as this can be
granted ONLY before the
defendant answers (thus, it
will be improper for the court
to
grant
it
once
the
defendant already filed an
answer). But, there must be
prior/contemporaneous
service of summons to cure
defect in jurisdiction over the
Once served, the sheriff will
seize the personal property.
Sheriff has a 5 day holding period
after seizure. If there is no
challenge on sufficiency of the
replevin
bond
and
no
counterbond, the sheriff shall
turn over possession to the
plaintiff. This is the advantage of
replevin, it immediately enables
the
plaintiff
to
recover
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possession
of
the
personal
property that is the subject of
litigation..
Problems in the service of
the writ of replevin.:
1. Jurisdiction is either RTC or
MTC depending on the value of
the property alleged in the
complaint. As long as the court
has
jurisdiction
over
the
complaint based on the alleged
value of the personal property,
the
court
can
issue
the
provisional remedy of a writ of
replevin.
Note: Value of the property =
jurisdictional
2. The bond required is
different
than
the
other
provisional
remedies.
The
bond is DOUBLE THE VALUE
of the property subject to
seizure AS ALLEGED in the
complaint. The court has not
further authority to increase
or decrease the bond. IT will
be based solely on the value
of the property as alleged in
the complaint.
3. In the service of writ of
replevin, when the sheriff finds
the
property
is
not
in
possession of the defendant
but a 3rd person who is not a
litigant, and said person
claims
ownership of
the
property, sheriff will not seize
the property.
(Note: The solution to this is to
advise your client that complaint
should implead 2 defendants,
one who was known by the
plaintiff to possess the thing
subject to the complaint and an
UNKNOWN
defendant.
Thus,
sheriff can rightfully seize
the car from anybody who
might be in possession, as
long as an unknown defendant is
impleaded in the complaint.)
4. Within the holding period of 5
days, the defendant can file
motion
to
challenge
sufficiency
of
the
bond
(undervaluing) or a 3rd party
claim, wherein a 3rd person
claims to be a true owner of
the thing (like in Rule 57 and

Rule 39). But in Rule 60,
Replevin, the 3rd party claim
must be filed within the 5-day
holding period, otherwise,
the
3rd
party
claim
is
useless. This is because after
the 5-day holding period, the
sheriff shall deliver the car to
the applicant.
A complaint for replevin was
filed by X for recovery of a
car. The court issued the writ
but the sheriff submitted a
return saying he cannot
enforce the writ as the car
can no longer be found. What
the
plaintiff
did
after
receiving the return was to
file another application for
Preliminary Attachment of
the
properties
of
the
defendant based on the same
complaint on the ground that
the defendant has gotten
hold
of
the
property
fraudulently and that he has
hidden the car so it cannot be
found and be subject to
seizure. Is this proper?
The conversion of application for
a writ of replevin into one for an
issuance for PA is not proper. SC
held that if plaintiff does not
succeed via replevin, he cannot
use PA. If he desires to use PA,
he
should
overhaul
his
complaint. The allegations for
the application for a writ of
replevin is different from that
for issuance of a writ of PA. In
application for issuance of a writ
of replevin, the plaintiff alleges
he is the owner or entitled to
possession. PA is for security
purposes, the ownership of the
property subject to it belongs to
the defendant, not a property of
the plaintiff.
5 The decision of the court can
be in the alternative. If the
property itself cannot be
delivered, the value of such
property can be delivered to
the prevailing party.
RULE
61
SUPPORT
PENDENTE LITE
This is found under the Rules and
also mentioned in the SC Circular
on
Provisional
Remedies in
Marriage-Related Cases. In fact,
the circular of the court is more
expansive. This is because, it
does not only mention support
pendente lite, it classifies it into
spousal
support
and
child
support,
and
are
treated
differently.
In the circular Family Court,
which has jurisdiction over a
complaint for support, can grant
both spousal support and child
support even without hearing
and without requiring the filing of
a bond. This is also provided in
the Rules on Support pendente
lite. We follow that provision
provided for in the circular. A
Family Court can grant spousal
and child support even without
filing of a bond and without need
for a hearing.
This is different in trial in courts
that are not functioning as family
court. This is because in the
Rules of Court, it is not proper for
an ordinary court to grant an
application of support pendente
lite without conducting a hearing.
In the Rules, in Provisional
Remedies, support pendente lite
can only be allowed only after a
hearing is heard, and the
applicant and respondent are
given the chance to explain. The
reason why this is required in the
Rules is that a court cannot
conceivably
issue
an
order
granting support pendente lite
unless the court is able to
determine first that the petitioner
needs support, and even if the
petitioner does need support, to
determine that the respondent is
capable of grant such support.
This is because if the court
simply grants an application for
support pendente lite without
examining the financial ability of
the respondent, that provisional
remedy will be useless. If the
respondent cannot comply, as he
had no means to give support, he
could be jailed. This is one action
where the court can imprison a
respondent who does not comply
with its order to give support,
although the respondent really
may not have the ability to really
do so.
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Remedies in case of violation

against giving of support
under substantive law: (Dean
Jara: This probably violates the
equal protection clause as they
are relatively unfavorable to us
men.)
1. Imprisonment for commission
of a crime
2. Citation for contempt and
imprisonment
3. Issuance of an order of
execution against violator under
Rule 39
TPO in a marriage-related case is

actually a prohibitory injunction
and a mandatory injunction at
the same time. This is because in
the protection order, the Family
Court prohibits respondent from
certain
acts,,
which
is
a
prohibitory injunction. Also, the
Family Court can
tell the
respondent not to enter the
former conjugal dwelling and to
remove his personal properties
from the house. Thus, it partakes
of a mandatory injunction.
In the Rules of Court on Support

Pendente Lite, you will notice
that the principle in Section 20
Rule 57 is not followed at all. A
remedy to recover damages in
wrongful issuance of provisional
remedies should be in the same
case. There must be no separate
action to recover damages. But if
you read the provisions for
Support Pendente Lite, it is
expressly provided that there
could be an independent action
for recovery of money given as
support in compliance with an
order of the court. There is no
need for respondent to file a
claim for damages in the same
action.
If you are asked why a Family
Court can order spousal support
without a hearing, just state that
there is no need for a Family
Court to determine the needs of
the spouse or of the minor
children, there is no need for the
court to determine the financial
ability of the defendant. This is
because in family-related cases,
there is a need for an inventory
of properties submitted to the
Family Court by the petitioner.
Based on the inventory, the court
can conclude how much the
spouse is entitled and how much
the minors are entitled to
support.
Also,
with
respect
to
the
Provisional Orders granted by a
Family Court in marriage-related
cases, although the provisional
orders are called by some other
name, these partake in the
nature of an injunction.
RECEIVERSHIP IN MARRIAGERELATED CASES

We also have receivership in
marriage-related cases where the
court
may
appoint
an
administrator of the properties.
He is effectively a receiver of
properties owned in common.
With respect to interim reliefs in
Amparo,
there
is
nothing
mentioned in the circular about
filing of a bond.
With
respect
to
Kalikasan
circular, the applicant is not
required to post a bond. It is the
adverse party who will have to
post a bond in order to lift or
dissolve the writ of Kalikasan as
security to protect the interest of
the applicant.
Read the Circulars on the Writs.
Center your attention on the
procedures required in civil and
criminal cases given in the Writs:
Kalikasan cases
Commenced in RTC, MTC,
CA, SC
Continuing mandamus
is only cognizable only
in SC and CA
Party
complaining/answering
must
have
attached
documentary
and/or
object evidence available
If the defendant does not
file an answer, there is
no need for a motion do
declare
defendant
in
default,
it
being
a
prohibited pleading.
If the defendant does not

answer, it is the duty of
the court to declare
the
defendant
in
default, no motion need
be had, and the plaintiffs
evidence can be received
ex parte.
Compromise of the civil
action is encouraged.
The judgment is not
called a judgment based
upon a compromise but
is called a Consent
Decree.
Rules on Evidence are
not necessarily followed.
Quantum of evidence in
civil
cases
is
mere
preponderance
of
evidence. However, there
are several instances in
Kalikasan
cases
that
mere
substantial
evidence
is
enough,
which
is
also
now
followed
in
Amparo
cases. In Amparo cases,
only substantial evidence
is required, which is the
same
quantum
of
evidence in quasi-judicial
proceedings. In Amparo
cases,
the
rule
on
quantum of evidence is
exclusively
determined
by the SC. If substantial
evidence is required in
Amparo cases, then that
is the quantum required.
An administrative body
cannot
change
the
quantum of evidence
required.
Special Civil Actions

1. Interpleader (Rule 62)
2. Declaratory relief and similar
remedies (Rule 63)
3. Review of judgments and final
orders of the COMELEC and the
Commission on Audit (Rule 64)
4. Certiorari, prohibition and
mandamus (Rule 65)
5. Quo warranto(Rule 66)
6. Expropriation (Rule 67)
7. Foreclosure of real estate
mortgage(Rule 68)
8. Partition (Rule 69)
9. Forcible entry and unlawful
detainer (Rule 70)
10. Contempt (Rule 71)
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11. Petition for Writ of

Kalikasan
12. Petition for Continuing
Mandamus
Q: What special civil actions
are initiated by complaints
and initiated by petitions?
A:
1. by complaint
a. interpleader
b. expropriation
c. foreclosure of real
estate mortgage
d. partition
e. forcible entry and
unlawful detainer
2. by petition
a. declaratory relief
b. review of judgments
and
final
orders
or
resolutions
of
the
COMELEC / COA
c. Certiorari
d. Prohibition
e. Mandamus
f. Quo Warranto
g. Contempt
h. Petition for Writ of
Kalikasan
i. Petition for Continuing
Mandamus
To properly appreciate why a civil
action is further classified into a
special civil action, all that we
have to do is to check Rule 1. In
Rule 1, a special civil action is
inherently a civil action. What
makes it special is that the Rules
require additional procedure for
each and every special civil
action that is not followed in
ordinary civil proceedings. Unless
there is a special rule specifically
devoted to a certain special civil
action, we will still apply ordinary
rules of civil procedure.
RULE 62 INTERPLEADER
What is so special about
interpleader?
In ordinary civil cases, an action
is commenced by the filing of a
complaint, petition or something
equivalent to a complaint.
In an interpleader, it can be
commenced by the filing of an
answer with a counterclaim for
interpleader.
Since we are following the rules

in ordinary civil action, there is
need of a plaintiff and a
defendant. In an interpleader,
there is a plaintiff and there can
two or more defendants.
One
of
the
features
of
interpleader
which
is
not
possessed by ordinary civil
actions is the absence of a cause
of action. In ordinary civil actions,
if there is no cause of action, the
complaint will be dismissed. In a
complaint for interpleader or a
counterclaim for interpleader, the
plaintiff does not aver a cause of
action.
The
plaintiff
in
interpleader cannot say that he
has a cause of action because it
is an essential requirements in an
action for interpleader that the
plaintiff does not allege a right at
all; or if he alleges a right,
nobody has violated the right,
the defendants agree he has a
right or does not contest the
right.
Since we are going to follow
the rules of ordinary civil
actions
unless
otherwise
provided in the Rules, does it
mean to say that we should
submit
a
controversy
of
interpleader
involving
at
least
two
or
more
defendants, should there be
prior barangay conciliation
before we go to court?
Yes. Generally, that is a rule that
is applicable to all civil actions,
and thus will include special civil
actions, so long as the parties
are natural persons residing in
the same city or municipality.
Since we are going to follow
the rules of ordinary civil
actions
unless
otherwise
provided in the Rules, does it
mean to say that we should
wait for the court to issue
summons?
Yes. That is the means by which
the court will acquire jurisdiction
over the defendant.
In interpleader, a summoned
defendant who failed to file an
answer shall be declared in
default.
In Rule 9, when there is a

complaint
against
several
defendants, and one or two of
these defendants failed to file an
answer while the others filed an
answer, Rule 9 says that the nonanswering defendant will be
declared in default, but the nonanswering defendant will be tried
based on the answer filed by the
other
answering
defendants.
Hence,
if
the
answering
defendant wins, the defaulting
defendant automatically wins.
This is because both answering
and non-answering defendants
are sued under a common cause
of action.
We do not apply Rule 9 to an
interpleader.
In
interpleader,
when one defendant files an
answer and the other did not file
an answer and was declared in
default, the defaulting defendant
automatically loses the case. This
is because the Rules provide,
that in addition to being declared
in default, the non-answering
defendant will lose his claim.
Although in reality the defaulting
defendant has a claim, his being
declared in default will make him
lose his right to the claim. Thus,
if there are only two defendants
and one of them was declared in
default, since the defaulting
defendant has already lost the
case, the remaining defendant
will have a great chance of being
declared as the one with the
right to the subject of the
interpleader. This is because the
plaintiff in the interpleader does
not have any right or interest to
the claim of either defendants.
The remaining defendant will be
declared as the one with the
right to the claim that is the
subject of the interpleader.
Q: What are the three special
civil actions which are within
the jurisdiction of MTCs?
A:
1. Interpleader, provided that the
amount is within the jurisdiction
of such MTC
2. Ejectment suits
3. Contempt
Q: What is an interpleader?
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A: It is a special civil action filed

by a person against whom two
conflicting claims are made upon
the same subject matter and
over which he claims no interest,
to compel the claimants to
interplead and to litigate their
conflicting
claims
among
themselves. (Sec. 1, Rule 62).
Q: What are the requisites in
order that the remedy of
interpleader may be availed
of?
A:
1. Plaintiff claims no interest in
the subject matter or his claim is
not disputed
2. Two or more claimants
asserting conflicting claims
3. The subject matter must be
one and the same
4. Person in possession or
obliged files a complaint.
5. The parties to be interpleaded
must make effective claims.
6. Payment of docket and other
lawful fees.
Note: Upon filing of complaint,
the court shall issue an order
requiring conflicting claimants to
interplead. (Sec. 2, Rule 62)
Rule 63 Enumerates 4 special
civil actions
~Declaratory Relief
and other similar remedies:
~Reformation of instrument
~Quieting of title
~Consolidation of title
Although in the same Rule, they
are
governed
by
different
procedures.
DECLARATORY RELIEF RULE
63
The
obvious
nature
of
declaratory relief, which makes it
a special civil action, is that the
petition must be filed before a
breach or violation of a right. (If
we would follow ordinary rules of
procedure, the complaint would
have been dismissed outright
because of lack of a cause of
action.) There is no allegation
that there is a right violated by
another. If there is such an
allegation,
then
the
action
ceases to be a special civil action
for declaratory relief, it becomes

an ordinary action.
Declarative relief is a preventive
mechanism to prevent parties
from getting involved in an
ordinary civil case. In Declarative
relief , the petitioner does not
allege he has a right, or if he has,
it has not been violated, and
therefore, there is really no cause
of action. The petitioner seeks
from the court a determination of
what his rights are. Petitioner is
not absolutely certain if he has
rights
under
a
certain
instrument, so he asks the court
to declare what his rights are.
The actual remedy is that the
court declares what his rights
are.
If
the
remedy
is
the
declaration of the rights of
the petitioner, then a prayer
for damages in declaratory
relief negates the nature of
such special civil action.
Damages connote the fact that a
breach or violation of a right has
occurred.
There is an enumeration under
Rule 63 (Section 1) as to the
instruments which could be
subjects
of
a
petition
for
declaratory relief; deed, will,
contract
or
other
written
instrument, whose rights are
affected by a statute, executive
order or regulation, ordinance, or
any
other
governmental
regulation.
With respect to statute or
ordinance, the same principle
applies, we cannot apply for a
petition for declaratory relief if
there is already a violation. If
there is a violation already, the
petition will not be proper.
Declaratory relief must be had
before such ordinance or statute
has become effective. This is one
of the reasons of the 30 day
period (date of effectivity; after
publication) before a law that has
been enacted by Congress has
effect. The said time before such
statute or ordinance takes effect
is the time for it to be subject to
petition for declaratory relief,
determining whether that statute
or ordinance is constitutional or
unconstitutional.
You will meet decisions of the SC
concerning declaratory relief to
the effect that you cannot file a
motion for execution in order to
carry
out
the
declaratory
judgment (the judgment in a
case for declaratory relief), in
order to differentiate it from what
the court usually renders after a
judgment has been entered in
order to clarify the judgment. The
latter is what we a clarificatory
judgment. In a clarificatory
judgment, that is where a
judgment that has become final
and executory but has certain
ambiguities with that judgment.
The remedy of the interested
party is to file a motion for the
rendition
of
a
clarificatory
judgment.
This
clarificatory
judgment is different from a
declaratory
judgment.
In
declaratory judgment the court
will only tell the petitioner what
his rights and duties are under a
certain will or contract. But in the
case of a statute or ordinance,
the court will tell the petitioner
whether or not the statute or
ordinance is unconstitutional or
not. So after the court has done
its duty, there is no more need
for the prevailing party to return
to the court in order to move for
the execution. We do not apply
Rule 39 to a petition for
declaratory relief.
So, that is the nature of a
declaratory relief that makes it a
special civil action. There is really
no
cause
of
action
as
contemplated in ordinary civil
actions where there is a right
violated by the defendant.
Distinguish
declaratory
judgment
from
ordinary
judgment.
A:
DECLARATO
ORDINARY
RY
JUDGMENT
JUDGMENT
Declaratory
Ordinary
judgment
judgment
stands
by involves
itself and no executor
or
executory
coercive relief
process
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follows
Intended
to
determine
any question
of
construction
or
validity
prior
to
breach
or
violation
Intended
to
remedy
or
compensate
injuries
already
suffered
What are the requisites of an

action for declaratory relief?
A:
1. Filing of Petition before there is
a breach or violation
2. Subject matter is a deed, will,
contract,
written
instrument,
statute,
executive
order,
regulation or ordinance
Note: The enumeration
of the subject matter is
exclusive,
hence,
an
action not based on any
of
the
enumerated
subject matters cannot
be the proper subject of
declaratory relief. (Riano,
Civil
Procedure:
A
Restatement for the Bar,
p. 613, 2009 ed.)
3. There is justiciable controversy
4. Issue is ripe for judicial
determination
(Republic
v.
Orbecido III, G.R. No. 154380,
October 5, 2005), i.e. litigation is
imminent
and
inevitable
(Tolentino
v.
Board
of
Accountancy, G.R. No. L-3062,
September 28, 1951)
5. Adequate relief is not available
through other means or other
forms of action or proceedings
(Ollada v. Central Bank, G.R. No.
L-11357, May 31, 1962)
6. The controversy is between
persons whose interests are
adverse.
Q: When may an action for
declaratory
relief
be
converted into an ordinary
action?
A: After filing of petition for
declaratory relief but before the
final termination of the case or
rendition of judgment, a breach
or violation of an instrument,
statute,
executive
order,
regulation or ordinance
place. (Sec. 6, Rule 63)
takes
Remedial Law Compendium, Vol.

I, p. 769, 2005 ed.)
Q: Distinguish Ordinary Civil

Action from Special Civil
Action for Declaratory Relief.
A:
1. Ordinary civil action plaintiff
alleges that his right has been
violated
by
the
defendant;
judgment rendered is coercive in
character; a writ of execution
may be executed against the
defeated party.
2.
Special
civil
action
of
declaratory relief an impending
violation is sufficient to file a
declaratory relief; no execution
may be issued; the court merely
makes a declaration.
Q: Can the court exercise

discretion in application for
declaratory relief?
A:
1. In declaratory relief, the court
is given the discretion to act or
not to act on the petition. It may
therefore choose not to construe
the instrument sought to be
construed or could refrain from
declaring the rights of the
petitioner under the deed or the
law. A refusal of the court to
declare rights or construe an
instrument
is
actually
the
functional equivalent of the
dismissal of the petition.
2. On the other hand, the court
does not have the discretion to
refuse to act with respect to
actions described as similar
remedies. Thus, in an action for
reformation of an instrument, to
quiet
or
to
consolidate
ownership, the court cannot
refuse to render a judgment
(Sec. 5, Rule 63).
The second procedural rule that

we apply to declaratory relief
which is not followed in other
special civil actions or in other
ordinary civil actions is the
authority of the court not to
entertain
a
petition
for
declaratory relief. The court can
refuse to make a declaration of
the rights of petitioner and
respondents on a deed or a
contract on the ground that the
judgment will not bind the
parties not impleaded in the
petition for declaratory relief.
This shows that declaratory relief
is not in rem. It is purely a
petition in personam. It cannot
bind other parties who had not
been impleaded, although these
parties not so impleaded may be
parties to the contract or matter
under litigation.
When may a court refuse to
make a judicial declaration?
A: Court may motu propio or
upon motion refuse based on the
following grounds:
1. A decision will not terminate
the uncertainty or controversy
which gave rise to the action
2. Declaration or construction is
not necessary and proper under
the circumstances
Note: Discretion to refuse does
not extend to actions for
reformation of an instrument
quiet title or remove clouds or to
consolidated ownership in a
pacto de retro sale. (Regalado,
Q: Is a third-party complaint
proper in an action for
declaratory relief?
A: No. Because in a third-party
complaint, such person seeks to
obtain contribution, indemnity,
subrogation or other reliefs and a
declaratory relief is confined
merely to the interpretation of
the
terms
of
a
contract.
(Commission of Customs v.
Cloribel, G.R. No. 21036, June 30,
1977).
Q: What are the instances
wherein a declaratory relief
is unavailable?
A:
1. To obtain judicial declaration of
citizenship;
2.
To
establish
illegitimate
filiation and determine hereditary
rights;
3. The subject of the action is a
court decision;
4. Actions to resolve political
questions;
5. Those determinative of the
issues rather than a construction
of definite status, rights and
relations;
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6. Terms of assailed ordinances

are not ambiguous or of doubtful
meaning;
7. In a petition to seek relief from
a moot and academic question;
8. Where the contract or statute
on which action is based has
been breached;
9. When the petition is based on
the happening of a contingent
event;
10. When the petitioner is not the
real party in interest; and
11. Where the administrative
remedies have not yet been
exhausted.
What is the competent court
in a petition for declaratory
relief?
Petition for declaratory relief is
an action incapable of pecuniary
estimation; hence RTC is the
proper venue. However, as to
who is the competent court in
other similar remedies, take
into account the provisions under
BP 129:
~Reformation of instrument is
cognizable solely by RTC as it is
incapable
of
pecuniary
estimation.
~Quieting
of
Title
is
not
necessarily
under
the
RTC.
Actions involving title to property
will depend on the value of the
property. Under BP 129, actions
involving title to or possession of
the property may be cognizable
by an RTC or MTC depending
upon the assessed value of the
property involved.
~Consolidation of title involves
real property, hence, assessed
value must be alleged to vest
jurisdiction.
Q: What is an action for
quieting
title
to
real
property?
A: This action is brought to
remove a cloud on title to real
property or any interest therein.
The
action
contemplates
a
situation where the instrument or
a record is apparently valid or
effective but is in truth and in
fact invalid, ineffective, voidable
or unenforceable, and may be
prejudicial to said title to real
property. This action is then
brought to remove a cloud on

title to real property or any
interest therein. It may also be
brought as a preventive remedy
to prevent a cloud from being
cast upon title to real property or
any interest therein (Art. 476,
Civil Code).
Q: Is it required that the
plaintiff be in the possession
of the property before an
action is brought?
A: The plaintiff need not be in
possession of the real property
before he may bring the action
as long as he can show that he
has a legal or an equitable title to
the property which is the subject
matter of the action (Art. 477,
Civil Code).
Why do we need to file a
special
civil
action
for
consolidation of title?
In execution of judgment under
Rule 39, if a real property is sold
at public auction by virtue of a
levy on execution, the highest
bidder will not automatically get
a title in his own name, merely a
certificate of sale from the
sheriff,
which
bidder
must
register such encumbrance in the
RoD for annotation to the title of
the property. He must wait one
year. If there is no redemption
after one year from registration
in the RoD, the sheriff will issue a
final deed of sale to the highest
bidder and the highest bidder will
have the final deed of sale
recorded in the RoD. The RoD will
determine whether the 1-year
period has been met, and if there
is no redemption, the highest
bidder will naturally be interested
in securing the title to the
property in his name. The old
title (still in the name of the
judgment
debtor)
will
be
cancelled, and a new title will be
issued in the name of the highest
bidder. The highest bidder does
not have to file an action for
consolidation of title. The highest
bidder will only secure from the
sheriff the final deed of sale. The
RoD will simply cancel the old
title and issue a new title in the
name of the highest bidder. So,
in Rule 39, there is no such thing
as consolidation of title as a
special civil action.
This is also the procedure that is
followed when a mortgage is
foreclosed. Once the mortgage is
foreclosed, the property is sold
under auction to the highest
bidder. The sheriff will issue a
certificate
of
sale
to
be
registered in the RoD, and then
wait for the 1-year redemption
period to expire. If there is no
redemption, the sheriff will again
issue a final deed of sale. And on
the basis of that final deed of
sale, the RoD will cancel the title
of the judgment mortgagor and
issue a new title in the name of
the highest bidder.
So you will notice that under Rule
39 and even in the Mortgage
Law, in order to consolidate title,
we do not require a special civil
action to consolidate title to be
filed in court. The only public
officer who is going to deal with
the interested party is the RoD,
who has the ministerial duty to
issue a title if the papers are in
order, in this case a final deed of
sale.
Why do we require an action
to consolidate under Article
1607 of the NCC?
NCC Art. 1607. In case of
real
property,
the
consolidation
of
ownership in the vendee
by virtue of the failure of
the vendor to comply
with the provisions of
article 1616 shall not be
recorded in the Registry
of Property without a
judicial order, after the
vendor has been duly
heard.
NCC Art. 1616. The
vendor
cannot
avail
himself of the right of
repurchase
without
returning to the vendee
the price of the sale, and
in addition:
(1) The expenses of the
contract, and any other
legitimate
payments
made by reason of the
sale;
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(2) The necessary and

useful expenses made on
the thing sold.
This is to obtain an order from
the court for the RoD to
consolidate the title of a property
subject to sale with right to
redeem, although the factual
antecedents are the same. In the
NCC Art. 1607, if there is a right
to redemption, it is called
conventional redemption, not a
legal redemption as that in Rule
39
and
in
foreclosure
of
mortgage. It is that classification
of redemption to conventional
that makes the difference.
A conventional redemption has
also a period for 1 year. When
the 1-year period expires, the
buyer of the property cannot deal
directly with the RoD. The reason
why there is a need to go to
court in conventional redemption
is that there is a provision in the
NCC requiring it. It is explicitly
stated in the NCC that sale
with the right to redeem is
not a sale but an equitable
mortgage. So, insofar as the
courts are concerned, if the
contract entered by the parties is
a sale with right to redeem by
way of conventional redemption,
the NCC assumes (a disputable
presumption)
that
the
real
agreement between the parties
is not really a sale but an
equitable mortgage. Insofar as
the NCC is concerned, the seller
is not a genuine seller, only a
mortgagor, and the buyer is the
mortgagee of the property,
notwithstanding the clear tone of
the deed of sale with right of
redemption. Even the RoD will
have to observe the disputable
presumption given by the NCC
that the deed of sale with right of
redemption is one of an equitable
mortgage. So if we go to the RoD
for consolidation of title, the RoD
will simply tell the buyer of the
property that the contract is one
of equitable mortgage, not of
sale, so there is a need to get a
decision from the court declaring
that contract is really a genuine
contract of sale with right of
redemption. That is the only
purpose of this special civil
action of consolidating of title

under Art. 1607 NCC, to give to
the buyer in sale with right of
redemption a chance to present
evidence
to
defeat
that
disputable
presumption
contained in the NCC. If he is
able to convince the court that
the sale is a genuine sale, the
court will issue an order directing
the RoD to cancel the title of the
seller and issue a new title in the
name of the buyer.
But if the petitioner/buyer fails to
defeat
the
disputable
presumption that the contract is
one of equitable mortgage, he
can still obtain a title, but he
must file another special civil
action. This time, the buyer must
file
an
action
for
judicial
foreclosure of mortgage. Even if
he is not able to obtain a decision
under Rule 63 in order to
consolidate title under Article
1607 NCC, that is not the end
insofar as the buyer is concerned
since
he
is
an
equitable
mortgagee, so he still has the
right to foreclose the property.
The only means where he can
foreclose the property is by
availing of another special civil
action, which is called foreclosure
of real estate mortgage under
Rule 68. But the procedure for
judicial foreclosure of mortgage
is quite lengthy, requiring 3 final
orders of the foreclosure court, a
sale via public auction for the
property, and even if we assume
that the mortgagee will become
the highest bidder, he will get
the title in his own name only
after the confirmation by the
foreclosure court of the sale in
his favor is duly entered. As we
will see later, judicial foreclosure
of mortgage, as a complement to
a
special
civil
action
for
consolidation of title, is a 3-stage
special civil action. Meaning to
say, that the foreclosure court is
expected
to
make
three
decisions/orders
before
the
mortgagee can obtain a title in
his name.
Q: What is the purpose of an
action brought to consolidate
ownership?
A: The action brought to

consolidate ownership is not for
the purpose of consolidating the
ownership of the property in the
person of the vendee or buyer
but for the registration of the
property. The lapse of the
redemption period without the
seller a retro exercising his right
of
redemption
consolidates
ownership or title upon the
person of
the vendee by
operation of law. Art. 1607
requires the filing of the petition
to
consolidate
ownership
because the law precludes the
registration of the consolidated
title without judicial order (Cruz
vs. Leis, 327 SCRA 570).
Note:
The
concept
of
consolidation of ownership under
Art. 1607, Civil Code, has its
origin
in
the
substantive
provisions of the law on sales.
Under the law, a contract of sale
may be extinguished either by
legal redemption (Art. 1619) or
conventional redemption (Art.
1601).
Legal
redemption
(retracto legal) is a statutory
mandated redemption
of
a
property previously sold. For
instance, a co-owner of a
property may exercise the right
of redemption in case the shares
of all the other co-owners or any
of them are sold to a third person
(Art. 1620). The owners of
adjoining lands shall have the
right of redemption when a piece
of rural land with a size of one
hectare or less is alienated (Art.
1621). Conventional redemption
(pacto de retro) sale is one that
is not mandated by the statute
but one which takes place
because of the stipulation of the
parties to the sale. The period of
redemption may be fixed by the
parties in which case the period
cannot exceed ten (10) years
from the date of the contract. In
the absence of any agreement,
the redemption period shall be
four (4) years from the date of
the contract (Art. 1606). When
the redemption is not made
within the period agreed upon, in
case the subject matter of the
sale is a real property, Art. 1607
provides that the consolidation of
ownership in the vendee shall
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not be recorded in the Registry of

Property without a judicial order,
after the vendor has been duly
heard.
If we compare this procedure
governing the other similar
remedies in Rule 63, you will
notice right away that while the
court can outrightly refuse to
entertain
a
petition
for
declaratory relief, the court
cannot
outrightly
refuse
a
petition for consolidation of title,
reformation of instrument or
quieting of title. This is expressly
provided in Rule 63. So, if the
complaint is for the consolidation
of title, the court will have to
follow the procedure outlined in
ordinary civil cases, which is not
followed in declaratory relief. In
declaratory relief, if the court
notices that not all contracting
parties are impleaded in the
case, it can refuse to entertain
the petition as the judgment will
not resolve the lawsuits which
may be filed as a result of this
mistake.
If the court decides to entertain a
petition for declaratory relief, and
during the pendency of the
petition, the law took effect or
there is a violation committed as
to the terms of the contract, the
court shall order the conversion
of declaratory relief into an
ordinary civil action. Petitioner
will have to amend his complaint,
as he will now allege that he has
a right and that right has been
violated. The declaratory relief
will cease to be a special civil
action. An ordinary civil action
takes its place, which is not
possible in the actions covered
by other similar remedies. The
court does not enjoy discretion to
outrightly dismiss a petition for
consolidation of title, reformation
of instrument or quieting of title.
It is settled when a person
doubts his citizenship, he cannot
file a petition for declaratory
relief. He can decide for himself
right away. He needs not go to
court. He can register as a voter,
which then shall be tantamount
to his recognition as a Filipino.
Or, he may opt to go through
naturalization. If he files a
petition for declaratory relief as
to his citizenship, the court will
dismiss outrightly the petition.
This is because declaratory relief
is interested only in declaration
of rights and duties under a
deed, will, contract or any other
instrument. There is no deed,
contract or other instrument
which will be involved in
determining whether a person is
a Filipino or not. If he is not a
Filipino citizen, then he may need
to go through naturalization or
administrative way of acquiring
citizenship, not through a petition
for declaratory relief to be filed
before the RTC.
Note: Rule 65 applies to the

mode of review under Rule
64.Said mode of review is based
on Article IX-A of the 1987
Constitution providing that the
proper mode of review is
certiorari under Rule 65 to be
filed before the Supreme Court.
Under R.A. 7902 the Court of
Appeals has jurisdiction over all
adjudications of the Civil Service
Commission.
RULE 64 VS. 65 AND SPECIAL

CIVIL ACTIONS IN WRIT OF
KALIKASAN
Q: What is the period for

filing certiorari as referred to
in Rule 64?
A: The petition for certiorari
referred to in Rule 64 shall be
filed within 30 days from
notice of the judgment, final
order or resolution of the
COMELEC and the COA sought to
be reviewed (Sec. 3, Rule 64).
Rule 64 is always related to Rule

65. Although Rule 64 is a mode
of review, and the period to file
for Rule 64 is different from that
in Rule 65, Rule 64 itself provides
that in availing of the mode of
review provided in Rule 64, the
petitioner should adopt the
pleading in Rule 65, a special
civil
action
for
certiorari,
prohibition and mandamus. We
have a review process from the
COMELEC and COA, it is not
strictly a special civil action that
will be filed, it is still a mode of
review, but using the pleadings
outlined in Rule 65.
Rule 64 speaks of a mode of
appeal from a judgment or
final order of COMELEC and
CoA. Although a mode of
review, Rule 64 provides that
petitioner should adopt the
pleading in Rule 65. Rule 65
is about a special civil action
for certiorari, prohibition and
mandamus.
Q: What is the mode of
review for judgments and
final orders of the COMELEC
and COA?
A: The petition may be brought
by the aggrieved party to the
Supreme Court on Certiorari
under Rule 65, except otherwise
provided.
Note: The order to comment

under Sec. 6, Rule 64 in case the
Supreme Court finds the petition
sufficient in form and substance
is equivalent to summons in
ordinary civil action.
Note: While Rule 64 makes

reference to the certiorari under
Rule 65, the period for the
filing of the petition for
certiorari
assailing
the
judgment of the COMELEC
and COA is shorter than that
provided under Rule 65
Petitioner should not move
for
an
extension
for
a
petition under Rule 65. It is
inextensible.
Cite
some
distinctions
between certiorari in Rule 45,
64 and 65.
Rule 45 is appeal by certiorari
Rule 64 is appeal to SC with
reference to Rule 65 pertaining to
final
orders,
resolutions
or
decisions rendered by CoA or
COMELEC acting as quasijudicial bodies.
Rule 65 is a special civil action of
certiorari,
prohibition
and
mandamus.
Rule 65 competent court is RTC,
CA or SC
150 | R e m e d i a l
Law
Review
Under COMELEC CODE, COMELEC

has certiorari jurisdiction under
Rule 65.
Sandiganbayan has certiorari
jurisdiction under Rule 65.
Q: Distinguish Rule 64 from
Rule 65.
A:
Rule 64
Rule 65
Directed only Directed
to
to
the any tribunal,
judgments,
board
or
final orders or officers
resolutions of exercising
the COMELEC judicial
or
and COA;
quasi-judicial
functions;
Must be filed Must be filed
within
30 within
60
days
from days
from
notice
of notice
of
judgment or judgment or
resolution
resolution
If
MR
is If
MR
is
denied,
the denied,
the
aggrieved
aggrieved
party may file party
will
the
petition have another
within
the 60
days
remaining
within which
period,
but to
file
the
which
shall petition
not be less counted from
than 5 days.
the notice of
denial.
Distinguish certiorari under
Rule 65 and certiorari under
Rule 45.
A:
Rule 65
Rule 45
Findings
of GR: Findings
fact of Court of fact of CA
of Appeals are are conclusive
not conclusive
or
binding
upon SC
Involves
Involves
question
of question
of
jurisdiction
law
Mode
of Mode
of
appeal
review
Directed
Involves the
against
an review of the
interlocutory
judgment
order of
a final orders or
court
or resolutions of
where there is the
CA,
no appeal or Sandiganbaya
any
other n, CTA, RTC or
plain, speedy other courts
or adequate
remedy
Filed not later
than 60 days
from notice of
judgment,
order
or
resolution
appealed
from
Unless a writ
of preliminary
injunction or
temporary
restraining
order
is
issued, it does
not stay the
challenged
proceeding
The
judge,
court, quasijudicial
agency,
tribunal,
corporation,
board, officer
or
person
shall be public
respondents
who
are
impleaded in
the action
Motion
for
reconsideratio
n or for new
trial
is
required.
If a motion for
reconsideratio
n or new trial
is
filed,
another
60
days shall be
given to the
petitioner
(A.M. No. 0203-SC)
Court
exercises
original
jurisdiction
Filed with the

RTC,
CA,
Sandiganbaya
n or COMELEC
Filed within 15
days
from
notice
of
judgment,
final order or
resolution
appealed
from
Stays
the
judgment or
order
appealed
from
The appellant
and
the
appellee are
the
original
parties to the
action,
and
the
lower
court
or
quasi-judicial
agency is not
impleaded
Motion
for
reconsideratio
n
is
not
required
The court is in
the exercise
of
its
appellate
jurisdiction
and power of
review.
Filed with the
SC
Note: The remedies of appeal

and certiorari
are mutually
exclusive and not alternative or

successive.
The
antithetic
character
of
appeal
and
certiorari has been generally
recognized and observed save
only on those rare instances
when appeal is satisfactorily
shown to be an inadequate
remedy. Thus, a petitioner must
show valid reasons why the
issues raised in his petition for
certiorari could not have been
raised on appeal (Banco Filipino
Savings and Mortgage Bank vs.
CA, 334 SCRA 305).
Certiorari as
a Mode of
Appeal (Rule
45)
Called
petition
for
review
on
certiorari, is a
mode
of
appeal, which
is
but
a
continuation
of
the
appellate
process over
the
original
case;
Seeks
to
review
final
judgments or
final orders;
Certiorari as
a
Special
Civil Action
(Rule 65)
A special civil
action that is
an
original
action and not
a mode of
appeal,
and
not a part of
the appellate
process
but
an
independent
action.
May
be
directed
against
an
interlocutory
order of the
court
or
where
not
appeal
or
plain
or
speedy
remedy
available
in
the ordinary
course of law
DISTINCTIONS
BETWEEN
CERTIORARI UNDER RULES
45, 64, AND 65
Rule 65 Rule 64 Review
Certior
for
of
ari,
COMEL
judgme
Prohibi
EC and nt, final
tion
COA
orders
and
or
Manda
resoluti
mus
ons of
other
tribuna
151 | R e m e d i a l
Law
Review
Special
civil
action
for
certiorar
i,
prohibiti
on and
manda
mus;
A
special
civil
action
that
is
an
original
action
and not
a mode
of
appeal,
and not
a part of
the
appellat
e
process
but
an
indepen
dent
action.
May be
directed
against
an
interlocu
tory
order of
the
court or
where
not
appeal
or plain
or
speedy
remedy
availabl
e in the
ordinary
course
of law
Appeal
to
the
SC using
Rule 65
from the
COMELE
C
En
Banc
ls,
person
s
and
officer
(Rule
45)
Petition
for
Review
or
Appeal
by
Certiora
ri;
Called
petition
for
review
on
certiorar
i, is a
mode of
appeal,
which is
but
a
continua
tion
of
the
appellat
e
process
over the
original
case;
Directed
only to
the
judgmen
ts, final
orders
or
resolutio
ns of the
COMELE
C
and
COA;
Rules of
the
COMELE
C states
that
only
decision
s of the
En Banc
shall be
appeala
Review
of
judgmen
t,
final
orders
or
resolutio
ns of the
CA,
Sandiga
nbayan,
CTA, RTC
or other
courts
Under
BP 129:
RTC, CA
or
SC
has
concurre
nt
and
original
jurisdicti
on;
under
special
laws:
COMELE
C
and
Sandiga
nbayan
has
special
certiorar
i
jurisdicti
on
BP 129:
Original
and
Concurr
ent
Jurisdicti
on (RTC,
CA and
SC)
The
petition
er has a
choice
to file in
the RTC,
and if an
adverse
decision
is given,
he can
elevate
it to the
CA, and
then the
SC.
If
directly
filed in
ble
in
the SC)
and CoA
acting
as
quasijudicial
bodies
(final
orders
or
judgmen
ts
SC
CA, SC
Appellat
e
Appellat
e
Failure
of
petition
er
to
comply
with the
formal
require
ments
under
Sec.
5
Rule 64
will
cause
the
petition
to
be
dismisse
SC may
deny
the
decision
motu
propio
on
the
ground
that the
appeal
is
without
merit, or
is
prosecut
ed
manifest
ly
for
the SC,
SC has
the
discreti
on
whethe
r
to
outrigh
tly
dismiss
the
petitio
n
or
remand
it
to
the CA
becaus
e
of
insuffici
ency in
form
and/or
substa
nce
in
accorda
nce with
the
principle
of
hierarch
y
of
courts.
Raises
question
s
of
jurisdicti
on
because
a
tribunal,
board or
officer
exercisin
g
judicial
or quasijudicial
function
s
has
acted
without
jurisdicti
on or in
excess
of
jurisdicti
on
or
with
grave
abuse of
discretio
n
amounti
d.
delay, or
that the
question
s raised
therein
are too
unsubst
antial to
require
consider
ation.
Petition
is based
on
question
s of law
Petition
is based
on
question
s of law
152 | R e m e d i a l
Law
Review
ng
to
lack of
jurisdicti
on;
Filed not
later
than 60
days
from
notice of
judgmen
t, order
or
resolutio
n
appeale
d from
Extensio
n
no
longer
allowed;
(Motion
for
extensio
n
of
period
to file is
not
allowed)
Motion
for
reconsid
eration
or
for
new trial
is
required
.
If
a
motion
for
reconsid
eration
or new
trial
is
filed,
another
60 days
shall be
given to
the
petition
er (Fresh
Period
Rule/Ne
ypes
Doctrine
) (A.M.
No. 0203-SC)
Filed
within
30 days
from
notice of
judgmen
t,
final
order or
resolutio
n sought
to
be
reviewe
d
No
extensio
n
of
period
mention
ed
in
Rule 64
The
filing of
Motion
for
reconsid
eration
or
for
new
trial,
if
allowed
under
the
procedu
ral rules
of
the
Commis
sion,
shall
interrupt
period
fixed
Filed
within
15 days
from
notice of
judgmen
t,
final
order or
resolutio
n
appeale
d from
Extensio
n of 30
days
may be
granted
for
justifiabl
e
reasons
Motion
for
reconsid
eration
is
not
required
Unless a
writ
of
prelimin
ary
injunctio
n
or
tempora
ry
restraini
ng order
is
issued,
it does
not stay
the
challeng
ed
proceedi
ng
The
judge,
court,
quasijudicial
agency,
tribunal,
corporat
ion,
board,
officer
or
person
shall be
public
respond
ents
who are
implead
ed
in
the
action
Court
exercise
s
original
jurisdicti
on
Does
not stay
the
executio
n unless
SC shall
direct
otherwis
e upon
such
terms as
it
may
deem
just
Stays
the
judgmen
t
or
order
appeale
d from
The
COMELE
C
and
COA
shall be
public
respond
ents
who are
implead
ed
in
the
action
The
appellan
t
and
the
appellee
are the
original
parties
to
the
action,
and the
lower
court or
quasijudicial
agency
is
not
implead
ed
The
court is
in
the
exercise
of
its
appellat
e
jurisdicti
on and
power of
review
The
court is
in
the
exercise
of
its
appellat
e
jurisdicti
on and
power of
review
SC, CA and RTC have original

jurisdiction over petitions under
Rule
65.
Thus,
there
is
concurrence
of
jurisdiction
among
these
three
courts.
Theoretically, petitioner has a
choice as to where to file. The
law does not compel him to file a
petition first in the RTC, then the
CA, and finally in the SC. There is
no such provision in BP 129 and

the Constitution.
However, SC had sought to
prevent being swamped by
petitions under Rule 65. To
remedy the abuse by petitioners,
SC devised the principle of
hierarchy of courts under Section
4 of Rule 65. This will limit the
choice
that
theoretically
a
petitioner
has.
Effectively,
petitioners are prohibited from
going directly to the SC under
Rule 65. Petitioner must file first
in the RTC or in the CA. If a
petition was filed directly in SC, it
will outrightly dismiss a petition if
such petition is insufficient in
form or substance. Even if the
petition is well-crafted, a single
omission, such as the PTR
number, shall dismiss it for being
insufficient in form.
Q: What are the grounds for
the outright dismissal of the
petition?
A: (Sec. 6, Rule 64)
1. Petition is not sufficient in form
and substance (Sec. 5, Rule 64)
2. Petition was filed for purpose
of delay
3. Issue is unsubstantial
the filing of a petition for
certiorari?
A: That a tribunal, board or
officer exercising judicial or
quasi-judicial functions acted:
1. Without or in excess of
jurisdiction
2. In grave abuse of discretion
jurisdiction
Note: It is commenced by the
filing of a verified petition
accompanied by certified true
copy of the judgment, order or
resolution subject thereof, copies
of all pleadings and documents
relevant and pertinent thereto
and a sworn certification of nonforum shopping. (Sec. 1, Rule
65).
Q: When is certiorari under
Rule 65 unavailable?
A:
1. Summary procedure
2. Writ of Amparo
153 | R e m e d i a l
Law
Review
3. Writ of Habeas Data

4. Small claims cases (Riano,
Civil Procedure: A Restatement
Q:
When
is
prohibition
issued?
A:
GR:
Prohibition
does
not
ordinarily lie to restrain an act
which is already fait accompli.
XPN: It will lie to prevent the
creation of a new province by
those in the corridors of power
who
could
avoid
judicial
intervention and review by
merely speedily and stealthily
completing the commission of
such illegality. (Tan v. COMELEC,
G.R. No. 73155, July 11, 1986)
Note:
Prohibition
and
not
mandamus, is the remedy where
a motion to dismiss is wrongfully
denied (Enriquez v. Macadaeg,
G.R. No. L-2422, Sept. 30, 1949)
Is it fatal for a petitioner to
file a petition for certiorari,
although the true remedy is a
petition for prohibition?
For instance, where a motion to
dismiss is filed by the defendant
on the ground of absence of
matter of the case. Said motion
was denied. The defendant could
appeal to the higher court via a
petition under Rule 65.
We do not follow Rule 16 which
tells the defendant that when his
motion to dismiss is denied, he
has to file an answer within the
remaining period. The SC has
recognized the propriety of filing
a
petition
for
certiorari,
prohibition or mandamus if a
subject matter has been denied.
The petitioner files a petition for
certiorari in the CA or SC. The
true remedy, according to the
SC, is a petition for prohibition,
not a certiorari. From the facts
stated above, a prohibition is the
correct
remedy.
As
the
petitioner/defendant had filed a
petition for certiorari, can CA/SC
outrightly deny the petition
because it is the wrong remedy?

SC said no. The petition for
certiorari should instead be
treated
as
a
petition
for
prohibition. So it seems under
this
attitude
of
liberal
interpretation of statutes, it is not
fatal for a petitioner to choose
the remedy provided under Rule
65.
Remember that certiorari is
different from prohibition and
mandamus, although they are all
contained in one Rule. The SC
will simply treat the petition for
certiorari as a petition for
prohibition. If you will analyze the
requisites of a petition for
certiorari and prohibition, they
are practically the same. There is
not much difference between the
concept given in Section 1 Rule
65 (Certiorari) and
Section 2
Rule 65 (Prohibition). The only
differences is that in certiorari,
the petitioner asks that the
judgment or interlocutory order
be annulled or set aside; in
prohibition, the petitioner simply
asks the prohibition court to
prevent the respondent court
from going ahead with the
proceedings, and in prohibiting
the
respondent
court,
the
prohibition
court
will
be
effectively telling the respondent
court that the denial, the
interlocutory
order
or
the
judgment
rendered
therein
should be set aside and annulled
because it is a wrong final order
or wrong interlocutory order.
CERTIO
RARI
That the
petition
is
directed
against
a
tribunal,
board or
officer
exercisin
g
judicial
or quasijudicial
function
s;
PROHIB
ITION
The
petition
is
directed
against
a
tribunal,
corporat
ion,
board or
person
exercisin
g
judicial,
quasijudicial,
MANDA
MUS
The
plaintiff
has
a
clear
legal
right to
the act
demand
ed;
The
tribunal,
board or
officer
has
acted
without,
or
in
excess
of
jurisdicti
on
or
with
abuse of
discretio
n
amounti
ng
to
lack or
excess
or
jurisdicti
on
There is
no
appeal
or
any
plain,
speedy
and
adequat
e
remedy
in
the
ordinary
course
of law.
Accomp
anied by
a
certified
true
copy of
the
judgmen
t
or
order
subject
of
the
petition,
copies
of
all
pleading
s
and
docume
nts
or
ministeri
al
function
s;
The
tribunal,
corporat
ion,
board or
person
must
have
acted
without
or
in
excess
of
jurisdicti
on
or
with
grave
abuse of
discretio
n
amounti
ng
to
lack of
jurisdicti
on;
There is
no
appeal
or
any
plain,
speedy
and
adequat
e
remedy
in
the
ordinary
course
of law.
Accomp
anied by
a
certified
true
copy of
the
judgmen
t
or
order
subject
of
the
petition,
copies
of
all
pleading
s
and
docume
nts
154 | R e m e d i a l
Law
It must
be
the
duty of
the
defenda
nt
to
perform
the act,
which is
ministeri
al
and
not
discretio
nary,
because
the
same is
mandat
ed
by
law;
The
defenda
nt
unlawful
ly
neglects
the
perform
ance of
the duty
enjoined
by law;
There is
no
appeal
or
any
plain,
speedy
and
adequat
e
remedy
in
the
ordinary
course
of law.
Review
relevant
and
pertinen
t
thereto,
and
sworn
certifica
tion
of
nonforum
shoppin
g under
Rule 46.
Prohibiti
on is an
extraord
inary
writ
comman
ding
a
tribunal,
corporat
ion,
board or
person,
whether
exercisin
g
judicial,
quasijudicial
or
ministeri
al
function
s,
to
desist
from
further
proceedi
ngs
when
said
proceedi
ngs are
without
or
in
excess
of
its
jurisdicti
on,
or
with
abuse of
its
discretio
n, there
being no
appeal
or
any
other
plain,
speedy
relevant
and
pertinen
t
thereto,
and
sworn
certifica
tion
of
nonforum
shoppin
g under
Rule 46.
Mandam
us is an
extraord
inary
writ
comman
ding
a
tribunal,
corporat
ion,
board or
person,
to do an
act
required
to
be
done:
(a)
When
he
unlawful
ly
neglects
the
perform
ance of
an
act
which
the law
specifica
lly
enjoins
as
a
duty,
and
there is
no other
plain,
speedy
and
adequat
e
remedy
in
the
ordinary
course
of law;
or
(b)
and
adequat
e
remedy
in
the
ordinary
course
of
law
(Sec. 2,
Rule
65).
Main
action
for
injunctio
n seeks
to enjoin
the
defenda
nt from
the
commis
sion or
continua
nce of a
specific
act,
or
to
compel
a
particula
r act in
violation
of
the
rights of
the
applican
t.
Prelimin
ary
injunctio
n is a
provisio
nal
remedy
to
preserve
the
status
quo and
prevent
future
wrongs
in order
to
preserve
and
protect
certain
interests
Special
civil
action
To
prevent
an
encroac
hment,
excess,
usurpati
on
or
assumpt
ion
of
jurisdicti
on;
May be
directed
against
entities
exercisin
g
judicial
or quasijudicial,
or
ministeri
al
function
s
Extends
to
discretio
nary
function
s
When
one
unlawful
ly
excludes
another
from the
use and
enjoyme
nt of a
right or
office to
which
the
other is
entitled
(Sec. 3,
Rule
65).
Special
civil
action
To
compel
the
perform
ance of
a
ministeri
al
and
legal
duty;
May be
directed
against
judicial
and
nonjudicial
entities
Extends
only to
ministeri
al
function
s
or rights
during
the
pendenc
y of an
action.
Ordinary
civil
action
For the
defenda
nt either
to
refrain
from an
act or to
perform
not
necessa
rily
a
legal
and
ministeri
al duty;
Directed
against
a party
Does
not
necessa
rily
extend
to
ministeri
al,
discretio
nary or
legal
Always
the
main
action
Always
the
main
action
May be
brought
in
the
Suprem
e Court,
Court of
Appeals,
Sandiga
nbayan,
or in the
Regional
Trial
Court
which
has
jurisdicti
on over
the
territoria
l
area
where
respond
ent
resides.
May be
brought
in
the
Suprem
e Court,
Court of
Appeals,
Sandiga
nbayan,
or in the
Regional
Trial
Court
which
has
jurisdicti
on over
the
territoria
l
area
where
respond
ent
resides.
function
s;
May be
the
main
action or
just
a
provisio
nal
remedy
May be
brought
in
the
Regional
Trial
Court
which
has
jurisdicti
on over
the
territoria
l
area
where
respond
ent
resides.
But in our example, when a

lack of jurisdiction is denied, it is
also correct for the petitioner to
make use right away of Rule 65.
If he immediately files a petition
for certiorari either in the CA or
SC, that petition for certiorari will
not be denied because it is not
compliant with the requirements
of Sections 1 and 2 Rule 65, that
there is no appeal, or any plain,
speedy, and adequate remedy in
the ordinary course of law. This
phrase serves as an essential
requisite before we can properly
file a petition under Rule 65. In
fact, it is this phrase which is the
source of the principle that we
learned that in Rule 65, a motion
for reconsideration is a MUST.
This is not expressly mentioned
in
Rule
65.
Motion
for
reconsideration is not even
mentioned in Rule 65. A motion
for reconsideration is always
a plain, speedy and adequate
155 | R e m e d i a l
Law
Review
remedy
in
the
course of law.
ordinary
Note: General Rule: Motion for

reconsideration is a condition
precedent in the filing of a
petition for certiorari under
Rule
65.
Motion
for
reconsideration is a plain and
speedy
remedy
available
prior to petition under Rule
65.
In Rule 65, if we examine the
caption of a petition under Rule
65, we will discover that there
are at least 2 respondents, one is
the private respondent, the other
is the public respondent. The
public respondent is the agency,
court or officer/person who
exercises judicial or quasi-judicial
functions (in case of prohibition,
public respondent is the agency,
court or officer/person who
exercises judicial , quasi-judicial
or ministerial functions). In other
words, we always involve a
public officer or agency or court
on
or
officer/person
who
exercises judicial , quasi-judicial
or ministerial functions under
Rule 65. We cannot get a petition
for certiorari under Rule 65 with
only the private respondent. We
must
implead
the
public
respondent.
Although the rules describe the
public respondent as a nominal
party,
it
is
in
fact
an
indispensible party under Rule
65, because it is the final order or
judgment that it had issued that
is being assailed or challenged.
The reason why Rule 65 calls the
public respondent only as a
nominal party is because in Rule
65 itself, it is provided that the
public
respondent
is
not
authorized
to
enter
his
appearance
and
to
defend
himself before the certiorari
court. The fate of the public
respondent lies in the hands of
the private respondent. It is the
private respondent who will
argue before the higher court
and explain the correctness of
the
interlocutory
order
or
judgment that is being assailed
under Rule 65. It is only in rare
instances where the higher court
will allow the public respondent

to argue on his own behalf or
submit his own papers in the
certiorari court. He should always
rely on the papers and pleadings
that are submitted by the private
respondent.
Because of the inherent nature of
the petition under Rule 65, that
there
is
always
a
public
respondent, the petition under
Rule 65 does not have to comply
with that condition precedent of
prior barangay conciliation. This
is one of the exceptions given in
the LGC, where the action
involves a government officer or
employee in the performance of
his duty.
And the grounds of course are
very strictly interpreted. In Rule
65 Sections 1 and 2, the ground
is that the public respondent has
acted without jurisdiction, in
excess of jurisdiction or with
grave
abuse
of
discretion
amounting to lack of jurisdiction.
The definition of Grave abuse of
discretion amounting to lack or
excess of jurisdiction is a very
simple definition given by the SC,
when the public respondent acts
whimsically,
despotic
and/or
arbitrarily. The SC did not
elaborate on whimsical, despotic
or arbitrary, so it would have to
be resolved on a case-to-case
basis.
For instance, a case is
pending in the RTC for the
collection
of
an
indebtedness. The plaintiff
applies for the issuance of a
writ
of
preliminary
attachment. The court grants
and issues the writ. Does the
RTC act arbitrarily, acting
gravely in abuse of its
discretion if it grants and
issues the writ of preliminary
attachment?
Yes, if that complaint does not
fall any one of the cases
mentioned in Rule 57:
(a) In an action
for the recovery
of a specified
amount of money
or
damages,
other than moral

and exemplary,
on a cause of
action
arising
from
law,
contract, quasicontract, delict or
quasi-delict
against a party
who is about to
depart from the
Philippines with
intent to defraud
his creditors;
(b) In an action
for
money
or
property
embezzled
or
fraudulently
misapplied
or
converted to his
own use by a
public officer, or
an officer of a
corporation,
or
an
attorney,
factor,
broker,
agent, or clerk, in
the course of his
employment
as
such, or by any
other person in a
fiduciary
capacity, or for a
willful violation of
duty;
(c) In an action to
recover
the
possession
of
property unjustly
or
fraudulently
taken, detained
or
converted,
when
the
property, or any
part thereof, has
been concealed,
removed,
or
disposed of to
prevent its being
found or taken by
the applicant or
an
authorized
person;
(d) In an action
against a party
who has been
guilty of a fraud
in contracting the
debt or incurring
the
obligation
upon which the
action is brought,
156 | R e m e d i a l
Law
Review
or
in
the
performance
thereof;
(e) In an action
against a party
who has removed
or disposed of his
property, or is
about to do so,
with intent to
defraud
his
creditors; or
(f) In an action
against a party
who does not
reside and is not
found
in
the
Philippines, or on
whom summons
may be served
by publication.
No, if the case does not fall under
the
above-mentioned
cases
under Rule 57 Section 1. Thus,
the court would have acted in
grave abuse of its discretion
jurisdiction.
Hence, in the issuance of
provisionary remedies or orders,
it could happen that a court will
gravely abuse its discretion
jurisdiction, a very despotic and
arbitrary act of a court.
For instance, the defendant files
an answer containing a negative
defense properly crafted. Then
the court grants a summary
judgment
or
rendered
a
judgment on the pleadings. That
is an arbitrary act of the court.
But if the decision rendered is a
summary judgment or judgment
on the pleadings, Rule 65 may
not be a correct remedy. This is
because
under
our
Rules,
because from a judgment, the
remedy is to appeal from the
judgment. Whenever there is an
appeal available, you better
forget Rule 65, because it is
available only when there is no
appeal or other plain, speedy and
adequate remedy available in the
ordinary course of law. This is the
rule that we must always follow.
Although,
there
are
rare
instances that the SC allowed a
petition for Rule 65 although
appeal is still available. If you will

remember, there are certain
exceptions to the general rule
that a motion for reconsideration
is a must before making use of
Rule 65. There are also rare
instances
where
the
court
allowed a petition under Rule 65
even if appeal was still available,
the reason being that in certain
instances, appeal is not a plain,
speedy and adequate remedy
available in the ordinary course
of law.
Q: Is it an absolute rule that
before recourse to certiorari
is
taken
a
motion
for
reconsideration
must
be
filed?
A:
GR: Petition for certiorari will
not be entertained unless the
public respondent has been
given first the opportunity
through
a
motion
for
reconsideration to correct
the error being imputed to
him.
XPNs: A prior motion for
reconsideration
is
not
necessary to entertain a
petition for certiorari where:
1. Order is a patent
nullity, as where the
court a quo has no
jurisdiction;
2. Questions raised in
the
certiorari
proceedings
have
been duly raised and
passed upon by the
lower court, or are the
same as those raised
and passed upon in
the lower court;
3. Urgent necessity for
the resolution of the
question,
and
any
further delay would
prejudice the interests
of the Government or
of the petitioner, or
the subject matter of
the
action
is
perishable;
4.
Under
the
circumstances,
a
motion
for
reconsideration would
be useless;
5.
Petitioner
was
deprived
of
due
process and there is
extreme urgency for
relief;
6. In a criminal case,
relief from an order of
arrest is urgent and
the granting of such
relief by the trial court
is improbable;
7. Proceedings in the
lower court are a
nullity for lack of due
process;
8. Proceedings were
ex parte or in which
the petitioner had no
opportunity to object;
and
9. Issue raised is one
purely of law or where
public
interest
is
involved.
Can a petition under Rule 65
that is filed to challenge an
interlocutory
order
or
judgment
be
enough
to
suspend all proceedings in
the lower court and await the
decision of the certiorari
court on the petition for
certiorari?
If the litigant is aggrieved by
an order or judgment that is
inappealable,
it
is
not
allowed under Rule 65 for the
trial
court
to
suspend
proceedings
in
the
case
pending
before
it.
Proceedings will only be
suspended if the higher court
issues TRO or writ of PI.
Thus, it is practical to ask
along with the petition for an
issuance of TRO or writ of PI.
Take note of the modifications in
Rule 65 concerning the abuse of
parties and lawyers in using
petition for certiorari, prohibition
or mandamus. It is under the
principle of res ipsa loquitur. In
the past, lawyers usually file
such
petitions
whenever
motions are denied, citing
abuse of discretion whereas
under Rule 65, the required
ground is GRAVE ABUSE of
discretion.
In
order
to
prevent this practice, SC
157 | R e m e d i a l
Law
Review
incorporated in Rule 65 the

application of the civil law
principle of res ipsa loquitur.
If a lawyer and his client will
go up to CA or SC under Rule
65, and the court resolves
that
the
petition
was
manifestly without merit or
for purposes of delay, the
lawyer and client will be held
in contempt of court for filing
such
manifestly
unmeritorious petition or to
pay a solidary debtor treble
costs, and there may be
administrative
sanctions
against the lawyer.
If the writ of mandamus is
issued as requested, there is
propriety
of
awarding
damages in favor of the
petitioner,
so
it
is
automatically awarded under
Section 3 of Rule 65.In
petitions
for
certiorari,
petitioner
may
include
petition
for
award
of
damages. If proven, SC may
award such damages.
SEC. 3. Petition
for mandamus.
When
any
tribunal,
corporation,
board, officer or
person unlawfully
neglects
the
performance
of
an act which the
law
specifically
enjoins as a duty
resulting from an
office, trust, or
station,
or
unlawfully
excludes another
from the use and
enjoyment of a
right or office to
which such other
is entitled, 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
and
praying
that
judgment
be
rendered
commanding the
respondent,
immediately or at
some other time
to be specified by
the court, to do
the act required
to be done to
protect the rights
of the petitioner,
and to pay the
damages
sustained
by
the petitioner
by reason of
the
wrongful
acts
of
the
respondent.
The petition shall
also contain a
sworn
certification
of
non-forum
shopping
as
provided in the
third paragraph
of section 3, Rule
46.
Rule 65 does not specifically
provide for award of damages
under
Sections
1
and
2
(Certiorari
and
Prohibition
respectively).
But
the
SC
resolved that in proper instances,
if there is a prayer for damages
incorporated in a petition for
certiorari or prohibition, there is
nothing wrong if the court grants
the
writ
of
certiorari
or
mandamus and award damages
in favor of the petitioner,
although none is provided for it
in
Sections
1
and
2.The
justification given by the SC
is that in a petition for
certiorari
or
prohibition,
there is always that prayer
for
any
additional
relief
which the court will deem
just and equitable. SC said
that is enough justification for
the award of damages, so long as
the petitioner is able to present
proof of damages.
Why do we consider Rule 65

as a special civil action?
1. Procedurally, the court can
dismiss
the
petition
for
insufficiency in form and
substance, which has a very
broad in interpretation. So even
if the SC has jurisdiction, it
can outrightly dismiss the
petition.
2.If the court did not dismiss the
petition outrightly, the court
may not issue summons. It
may instead issue an order to
comment. Once a comment is
submitted, the court acquires
jurisdiction over that party.
(Similarly, no summons is issued
in cases of interpleader and
declaratory relief and other
similar remedies.)
3. Since the court does not issue
summons, issuing instead a plain
order to comment within a fixed
period,
if
no
comment
is
submitted, the court cannot
declare
respondent
in
default.
4. Under Rule 65, the court
will not conduct a pre-trial or
a trial. The issue is a very
limited issue. It is not only a
mere question of law raised in
Rule 65. That question of law
is one of law that it is limited
to the issue of jurisdiction
(without or in excess with grave
abuse of discretion). There could
be several questions of law that
could be raised. But, that
question of law may not involve
jurisdiction at all. But in Rule 65,
the issue is one of law and it is
limited
to
the
issue
of
jurisdiction, whether or not the
respondent committed grave
abuse of discretion amounting to
lack or excess of jurisdiction.
Also , the submission of the
petition or Order to comment
requires parties to submit the
pleadings already submitted in
the lower courts. So, the court
will just analyze the documents
presented before it via the
documents attached to the
petition or the comment, and
thus there is no need for a trial.
158 | R e m e d i a l
Law
Review
What is the remedy of the

aggrieved party in a petition
for certiorari?
The remedy is appeal, either by
petition for review or petition on
certiorari (Rule 45).
TABLE OF COMPARISON FOR
THE
WRITS
OF
HABEAS
CORPUS, AMPARO, HABEAS
DATA AND KALIKASAN
HAB
EAS
COR
PUS
Literal
You
have
the
body
AMPA
RO
HABE
AS
DATA
interpretation
To
You
protec
have
t
the
data
Governing Rule
Rule
A.M.
102
No.
07-912-SC
Description
Writ
Remed
direc
y
ted
availa
to
ble to
the
any
pers
person
on
whose
detai
right
ning
to life,
anot
liberty,
her,
and
com
securit
man
y
is
ding
violate
him
d
or
to
threat
prod
ened
uce
with
the
violati
body
on by
of
an
the
unlawf
priso
ul act
ner
or
at a omissi
desig on of a
nate
public
d
official
time
or
and
emplo
place yee, or
, with of
a
the
private
day
individ
and
ual or
caus
entity.
e of
his
capt
KALIK
ASAN
It is a
Filipino
word
which
means
natur
e
in
English
A.M.
No.
08-116-SC
A.M.
No. 096-8-SC
Remed
y
availa
ble to
any
person
whose
right
to
privac
y
in
life,
liberty
or
securit
y
is
violate
d
or
threat
ened
by an
unlawf
ul act
or
omissi
on of a
public
official
or
emplo
yee, or
of
a
private
individ
ual or
entity
engag
ed in
the
Special
remed
y
availab
le
to
a
natural
or
juridic
al
person
, entity
authori
zed by
law,
people
s
organi
zation,
nongovern
mental
organi
zation,
or any
public
interes
t group
accredi
ted by
or
registe
red
with
any
govern
ment
agency
,
on
ure
and
dete
ntion
, to
do,
subm
it to,
and
recei
ve
what
soev
er
the
court
or
judg
e
awar
ding
the
writ
shall
consi
der
in
that
beha
lf.
Coverage
Invol
Involv
ves
es the
the
right
right
to life,
to
liberty,
libert
and
gatheri
ng,
collecti
ng, or
storing
of data
or
inform
ation
regardi
ng the
person
,
family,
home
and
corres
ponde
nce of
the
aggrie
ved
party.
Involv
es the
right
to
privac
y
in
behalf
of
person
s
whose
constit
utional
right
to
a
balanc
ed and
healthf
ul
ecolog
y
is
violate
d,
or
threat
ened
with
violati
on by
an
unlawf
ul act
or
omissi
on of a
public
official
or
emplo
yee, or
private
individ
ual or
entity,
involvi
ng
enviro
nment
al
damag
e
of
such
magnit
ude as
to
prejudi
ce the
life,
health
or
proper
ty
of
inhabit
ants in
two or
more
cities
or
provin
ces.
Constit
utional
right
to
a
balanc
ed and
y of
and
rightf
ul
custo
dy
by
the
aggri
eved
party
.
securit
y
of
the
aggrie
ved
party
and
covers
extrale
gal
killings
and
enforc
ed
disapp
earanc
es.
life,
liberty,
and
securit
y
of
the
aggrie
ved
party
and
covers
extrale
gal
killings
and
enforc
ed
disapp
earanc
es.
healthf
ul
ecolog
y.
Rights
Ther
e is
an
actu
al
violat
ion
of
the
aggri
eved
party
s
right.
violated
There
is
an
actual
or
threat
ened
violati
on of
the
aggrie
ved
partys
right.
There
is
an
actual
or
threat
ened
violati
on of
the
aggrie
ved
partys
right.
There
is
an
actual
or
threat
ened
violati
on of
ones
right
to
a
healthf
ul and
balanc
ed
ecolog
y
involvi
ng
enviro
nment
al
damag
e.
Where
RTC
or
any
judg
e
there
of,
CA or
any
mem
ber
there
of in
insta
nces
auth
orize
d by
law;
or SC
or
any
mem
ber
to file
RTC of
the
place
where
the
threat,
act or
omissi
on was
commi
tted or
any of
its
eleme
nts
occurr
ed; SB
or any
justice
thereo
f; CA
or any
justice
thereo
RTC
where
the
petitio
ner or
respon
dent
resides
,
or
that
which
has
jurisdic
tion
over
the
place
where
the
data or
inform
ation
is
gather
In SC
or any
station
s
of
the
CA.
159 | R e m e d i a l
Law
Review
there
of.
f;
SC
or any
justice
thereof
.
Who may file a

In the
1.
followi
Party
ng
for
order:
whos
1. Any
e
memb
relief
er
of
it is the
inten
immed
ded;
iate
or
family
2. Any
2.
ascen
Any
dant,
pers
desce
on
ndant,
on
or
his
collate
beha
ral
lf
relativ
e
of
the
aggrie
ved
party
within
the
4th
civil
degree
of
consa
nguinit
y
or
affinity
3. Any
concer
ned
citizen
,
organi
zation,
associ
ation
or
institut
ed,
collect
ed or
stored,
at the
option
of the
petitio
ner; or
with
SC, CA
or SB
when
the
action
concer
ns
public
data
files or
govern
ment
offices.
petition
In the
followi
ng
order:
1. Any
aggrie
ved
party;
2.
Howev
er, in
cases
of
extrale
gal
killings
and
enforc
ed
disapp
earanc
es:
a. Any
memb
er
of
the
immed
iate
family
b. Any
ascend
ant,
descen
dant,
or
collate
ral
relativ
e
of
the
aggrie
ved
party
within
the
4th
ion
Respondent
May
Public
or
official
may
or
not
emplo
be
yee or
an
a
office private
r.
individ
ual or
entity.
A
natural
or
juridic
al
person
, entity
authori
zed by
law,
people
s
organi
zation,
nongovern
mental
organi
zation,
or any
public
interes
t
group
accredi
ted by
or
registe
red
with
any
govern
ment
agency
.
civil
degree
of
consan
guinity
or
affinity
Public
official
or
emplo
yee or
a
private
individ
ual or
entity
engag
ed in
the
gatheri
ng,
collecti
ng or
storing
of data
or
inform
ation
regardi
ng the
person
,
family,
home
and
corres
ponde
nce of
the
aggrie
ved
party.
HABE
AS
DATA
Public
official
or
emplo
yee,
private
individ
ual or
entity.
HAB
AMPA
KALIK
EAS
RO
ASAN
COR
PUS
Enforceability of the writ
If
Enforceable
Enforc
grant anywhere in the eable
ed
Philippines
anywh
by
regardless
of ere in
SC or who issued the the
CA:
same
Philippi
enfor
nes
ceabl
e
anyw
here
In
the
Philip
pines
;
If
grant
ed
by
RTC:
enfor
ceabl
e
only
withi
n the
judici
al
distri
ct
Docket fees
Paym Petitio
Payme
Petitio
ent is ner is nt
is ner is
requi
exemp
require exemp
red
ted
d.
ted
Note from
Note:
from
:
payme
Rule
payme
Rule
nt
on
nt
on
indige
indig
nt
ent
petitio
petiti
ner
oner
applies
appli
.
es.
Service of writ
Serv
Served Served Served
ed
upon
upon
upon
upon
the
the
the
the
respon
respon
respon
pers
dent
dent
dent
on to person
person
person
who
ally; or ally; or ally; or
m it substit
substit
substit
is
uted
uted
uted
direc
servic
service service
ted,
e
.
and
if not
foun
d or
has
not
the
priso
ner
in his
custo
dy,
to
the
other
pers
on
havin
g or
exerc
ising
such
custo
dy
Person who makes the return
Offic
Respo
Respo
Respo
er by ndent
ndent
ndent
who
m
the
priso
ner
is
160 | R e m e d i a l
Law
Review
impri
sone
d or
the
pers
on in
whos
e
custo
dy
the
priso
ner
is
foun
d
When
On
the
day
speci
fied
in
the
writ
to file a return
Within
The
5
respon
workin
dent
g days shall
after
file a
servic
verifie
e
of d
the
written
writ,
return
the
togeth
respon
er with
dent
suppor
shall
ting
file a affidav
verifie
its
d
within
written 5
return
workin
togeth
g days
er with from
suppor service
ting
of the
affidav
writ,
its.
which
period
may
be
reason
ably
extend
ed by
the
Court
for
justifia
ble
reason
s.
Return
If
If
If
grant issued
issued
ed
by
by
by
RTC:
RTC:
the
return
return
SC or able
able
CA:
before
before
retur
such
such
nabl
court;
court;
e
If
If
befor
issued
issued
e the by SB by SB
court
or CA or CA
or
or any or any
Within
nonextend
ible
period
of 10
days
after
the
service
of writ.
If
issued
by SC,
return
able
before
such
court
or CA.
any
mem
ber
or
befor
e
RTC
or
any
judg
e
there
of;
If
grant
ed
by
RTC:
retur
nabl
e
befor
e
such
court
of
their
justice
s:
return
able
before
such
court
or
to
any
RTC of
the
place
where
the
threat,
act or
omissi
on was
commi
tted or
any of
its
eleme
nts
occurr
ed;
If
issued
by SC
or any
of its
justice
s:
return
able
before
such
court,
or
before
SB,
CA, or
to any
RTC of
the
place
where
the
threat,
act or
omissi
on was
commi
tted or
any of
its
eleme
nts
occurr
ed
of
their
justice
s:
return
able
before
such
court
or
to
any
RTC of
the
place
where
the
petitio
ner or
respon
dent
resides
or that
which
has
jurisdic
tion
over
the
place
where
the
data or
inform
ation
is
gather
ed,
collect
ed or
stored;
If
issued
by SC
or any
of its
justice
s:
return
able
before
such
court,
or
before
SB,
CA, or
to any
RTC of
the
place
where
the
petitio
ner or
respon
dent
resides
or that
which
has
jurisdic
tion
over
the
place
where
the
data or
inform
ation
is
gather
ed,
collect
ed or
stored
General denial
Not
Not
Not
Not
prohi
allowe
allowe
allowe
bited
d.
d.
d.
.
HAB
AMPA
HABE
KALIK
EAS
RO
AS
ASAN
COR
DATA
PUS
Liability of the person to
whom the writ is directed if he
refuses to make a return
Forfe
Impris
Impris
Indirec
it to onmen onmen
t
the
t
or t
or conte
aggri
fine
fine for mpt.
eved
for
commi
party
commi
tting
the
tting
conte
sum
conte
mpt.
of
mpt.
P100
0,
and
may
also
be
punis
hed
for
cont
empt
.
Hearing
Date
Summ
Summ
The
and
ary
ary
hearin
time
hearin
hearin
g
of
g shall g shall includi
heari
be
be
ng the
ng is condu
condu
prelimi
speci
cted
cted
nary
fied
not
not
confer
in
later
later
ence
the
than 7 than
shall
writ.
days
10
not
from
workin
extend
the
g days beyon
date of from
d sixty
issuan
the
(60)
ce of date of days
the
issuan
and
writ.
ce of shall
the
be
writ.
given
161 | R e m e d i a l
Law
Review
the
same
priority
as
petitio
ns for
the
writs
of
habea
s
corpus
,
ampar
o and
habea
s data.
Period
Withi
n 48
hour
s
from
notic
e of
the
judg
ment
or
final
order
appe
aled
from.
of appeal
5
5
workin
workin
g days g days
from
from
the
the
date of date of
notice
notice
of the of the
advers
judgm
e
ent or
judgm
final
ent.
order.
Prohibited pleadings
None
1.
Motion
to
dismiss;
2. Motion for
extension
of
time
to
file
opposition,
affidavit,
position
paper
and
other
pleadings;
3.
Dilatory
motion
for
postponement;
4. Motion for a
bill
of
particulars;
5. Counterclaim
or cross - claim;
6. Third - party
complaint;
7. Reply;
8.
Motion
to
declare
respondent
in
default;
9. Intervention;
10.
Memorandum;
11. Motion for
reconsideration
of interlocutory
Within
fifteen
(15)
days
from
the
date of
notice
of the
advers
e
judgm
ent or
denial
of
motion
for
reconsi
deratio
n.
1.
Motion
to
dismis
s;
2.
Motion
for
extensi
on of
time to
file
return;
3.
Motion
for
postpo
nemen
t;
4.
Motion
for
a
bill of
particu
lars;
5.
Counte
rclaim
or
crossclaim;
orders or interim
relief
orders;
and
12. Petition for
certiorari,
mandamus
or
prohibition
against
any
interlocutory
order.
6.
Thirdparty
compl
aint;
7.
Reply;
and
8.
Motion
to
declar
e
respon
dent in
default
.
SPECIAL CIVIL ACTIONS IN

THE KALIKASAN CIRCULAR
The Writ of Kalikasan is a mini
RoC for environmental cases. By
itself, the circular appears to
contain all rules pertaining to
civil
cases
arising
out
of
Kalikasan laws as well as criminal
procedures.
2 special civil actions:
~Writ of Kalikasan
~Petition
for
Continuing
Mandamus
Why
does
the Kalikasan
circular consider a petition
for a writ of kalikasan and
continuing mandamus as a
special civil action?
It is because of the fact that
although these are governed by
ordinary rules of procedure, there
are instances where there is a
special procedure which has to
be followed in hearing said
special proceeding.
A Petition of a Writ of Kalikasan
as a special civil action is entirely
different from ordinary civil
cases. The sheer number of
parties, as well as the magnitude
of the prejudice that could be
suffered by the petitioners (the
threat to their life, liberty and
property),is such that they are
the inhabitants of at least 2 or
more provinces or cities. If we
talk about numbers, the actual
number of inhabitants in a typical
province could number in the
hundreds of thousands. This is a
perfect example of a class suit.
They stand to be prejudiced in
their right to their life, liberty and

property by a violation or a
threat to violate environmental
laws by a natural person or
juridical entity. Even if there is
just a petitioner, a juridical
entity, an NGO or an accredited
public interest group, they can
file a petition on behalf of two or
more provinces or cities. The
parties are so numerous that it
will be impractical for all of them
to be brought before the court.
To
make
matters
simple
procedurally, take note that the
procedures in Habeas Corpus and
Amparo as special proceedings
are
practically
the
same
procedures followed in Kalikasan
cases.
Upon the filing of the petition,
and the court analyzes the
petition, and the court is
convinced of the need for the
writ to be issued, the writ will be
immediately issued without need
of hearing the side of the
respondents. The writ can be
issued right away by the court as
long as the allegations in the
petition are complete,
that
petition is meritorious by itself.
The court may issue also an
order requiring respondents to
file a VERIFIED RETURN (not an
answer). In writ of HC and
Amparo, return is also required to
be filed by respondents. The
Return
must
contain
the
respondents explanation as to
his side. The writ is a special civil
action in this contest because the
writ is issued right away, even
before the respondent is given
the chance to give his side, even
before the respondent can file his
return.
The Kalikasan circular has lots of
sections as to the use of
discovery measures. But, they
are treated not as discovery
measures, but as provisional
orders in the Kalikasan circular.
After the issuance of the writ of
Kalikasan, even without hearing
the respondent, the Kalikasan
court can issue a provisional
remedy called cease and desist
order, which is similar to a TRO in
162 | R e m e d i a l
Law
Review
civil cases. But, it does not have

an expiration date, unlike a TRO
in
ordinary
procedure,
the
duration depends upon the
discretion of the Kalikasan court.
Also, there are only 2 courts that
can take cognizance of a petition
for a writ of Kalikasan, the SC
and the CA.
Since there is no answer that is
required to be filed by the
respondent,
failure
by
the
respondent to file a verified
return does not result in default.
In ordinary civil actions involving
environmental laws, we follow a
different procedure.
If the defendant in an ordinary
civil procedure does not file an
answer, the defendant will be
declared in default even if there
is no motion initiated by a
plaintiff. That is in an ordinary
civil
action
involving
environmental laws which is not
a special civil action of Kalikasan
filed only in the CA or SC. So if
the respondents do not submit a
verified return, the court will go
ahead with analyzing the merit of
the petition for a writ of
Kalikasan.
A decision of the Kalikasan court
in a special civil action of
Kalikasan
is
immediately
executory, although there could
be an appeal. If the Circular says
that the decision is immediately
executory, it does not mean that
appeal is no longer available. A
decision could be executed as a
matter of right even if the
aggrieved party still has the right
to appeal. This is an example of a
judgment that is immediately
executory, but the aggrieved
party enjoys the right of appeal.
In a special civil action for a
writ of kalikasan, an appeal
under Rule 45 is filed in the
SC. Questions of fact could
be raised therein, as an
exception to the general rule
in Rule 45 that only questions
of law could be raised before
the SC.
Judgment in favor of petitioner,
aside from being immediately
executory,
partakes
of
a
permanent
prohibitory
mandatory injunction and at the
same
time
a
permanent
mandatory injunction. That is the
tenor of a judgment in Kalikasan
cases. The judgment will always
contain a provision in which
respondent
is
permanently
prohibited from violating or from
doing an act that will violate
environmental laws, and the
permanently mandatory part is
that the LGU is given a mandate
to enforce environmental laws.
Writ of Continuing Mandamus
in Kalikasan Cases
It
is
patterned
after
the
mandamus contained in Rule 65.
If you will compare the definition
of mandamus in Rule 65 to the
definition
of
continuing
mandamus in the Kalikasan
Circular, there is only the
inclusion
in
continuing
mandamus
of
the
clause
pertaining to the enforcement of
environmental
laws
(in
connection
with
the
enforcement or violation of
an
environmental law rule or
regulation or a right therein,
Section 1 Rule 8 Rules of
Procedure
on
Environmental
Cases).
MCQ
The idea or concept of
continuing mandamus. What
is the source of this writ of
continuing mandamus?
1. an invention of the SC
2. it was taken from India
3. It was taken from USA
4. it is adopted from Latin
American Countries just like
Amparo.
Answer 2. it came from the SC
of India, which seems to have a
good experience in enforcing
environmental laws.
Why do we have a writ of
continuing mandamus when
we already have mandamus
under Rule 65? Cannot the
writ of Mandamus under Rule
65 satisfy the requirements
of a continuing mandamus?
Mandamus under Rule 65

under Sec. 3 cannot satisfy
the
requirement
of
a
continuing mandamus. It will
negate the state policy of
enforcing
strictly
environmental laws. A final
and
executory
judgment
under Rule 39 can only be
enforced through a motion in
the first five years. After
that, the next five years, a
case for revival of judgment
must be had. In continuing
mandamus, it is designed to
avoid the process of motion
and then filing a case for
revival of judgment. The
continuing
mandamus
requires
continuous
enforcement
of
the
judgment. Via the continuing
mandamus, the government
is given a duty until the
objective sought in achieved.
MMDA vs. Concerned Citizens
Writ of Kalikasan and
Continuing
Mandamus
petition to clean Manila Bay

2011
MMDA and various agencies were
ordered by SC to clean Manila
Bay until it is returned to its
pristine
condition.
(Without
Continuing Mandamus, MMDA
will not be compelled to execute
the judgment.)
MMDA v. Concerned
Residents of Manila
Bay
The
Cleaning
or
Rehabilitation
of
Manila Bay Can be
Compelled
by
Mandamus
Generally, the writ
of mandamus lies to
require
the
execution
of
a
ministerial duty. A
ministerial duty is
one that requires
neither the exercise
of official discretion
nor judgment. It
connotes an act in
which nothing is left
to the discretion of
the
person
163 | R e m e d i a l
Law
Review
executing it. It is a
simple,
definite
duty arising under
conditions admitted
or proved to exist
and
imposed
by
law.Mandamus
is
available to compel
action, when refused,
on matters involving
discretion, but not to
direct the exercise of
judgment or discretion
one way or the other.
***
Respondents, on the
other hand, counter
that
the
statutory
command is clear and
that petitioners duty to
comply with and act
according to the clear
mandate of the law
does not require the
exercise of discretion.
According
to
respondents,
petitioners,
the
MMDA in particular,
are
without
discretion,
for
example, to choose
which
bodies
of
water they are to
clean up, or which
discharge or spill
they are to contain.
By the same token,
respondents
maintain
that
petitioners
are
bereft of discretion
on whether or not to
alleviate
the
problem of solid and
liquid
waste
disposal; in other
words,
it is
the
MMDAs ministerial
duty to attend to
such services.
We
agree
respondents.
with
First off, we
wish to state that
petitioners obligation
to perform their duties
as defined by law, on
one hand, and how
they are to carry out
such duties, on the
other, are two different

concepts. While the
implementation
of
the
MMDAs
mandated tasks may
entail a decisionmaking process, the
enforcement of the
law or the very act
of doing what the
law exacts to be
done is ministerial in
nature and may be
compelled
by
mandamus. We said
so in Social Justice
Society v. Atienza in
which
the
Court
directed
the
City
of Manila to enforce,
as
a
matter
of
ministerial duty, its
Ordinance No. 8027
directing the three
big local oil players
to cease and desist
from operating their
business in the socalled
Pandacan
Terminals within six
months
from
the
effectivity
of
the
ordinance.
But
to
illustrate with respect
to the instant case, the
MMDAs duty to put up
an
adequate
and
appropriate
sanitary
landfill and solid waste
and liquid disposal as
well
as
other
alternative
garbage
disposal systems is
ministerial, its duty
being
a
statutory
imposition.
The
MMDAs duty in this
regard is spelled out in
Sec. 3(c) of Republic
Act No. (RA) 7924
creating the MMDA.
This section defines
and
delineates
the
scope of the MMDAs
waste disposal services
to include:
Solid
waste
disposal
and
management
which
include formulation and
implementation
of
policies,
standards,
programs and projects

for proper and sanitary
waste disposal. It shall
likewise
include
the establishment
and
operation
of
sanitary land fill and
related facilities and
the implementation of
other
alternative
programs intended to
reduce,
reuse
and
recycle solid waste.
(Emphasis added.)
The MMDA is
duty-bound
to
comply with Sec. 41
of
the
Ecological
Solid
Waste
Management Act (RA
9003)
which
prescribes
the
minimum criteria for
the establishment of
sanitary landfills and
Sec.
42
which
provides
the
minimum operating
requirements
that
each site operator
shall maintain in the
operation
of
a
sanitary
landfill. Complementi
ng Sec. 41 are Secs. 36
and
37
of
RA
9003, enjoining
the
MMDA
and
local
government
units,
among others, after the
effectivity of the law on
February
15,
2001,
from
using
and
operating open dumps
for solid waste and
disallowing, five years
after such effectivity,
the use of controlled
dumps.
The MMDAs
duty in the area of
solid waste disposal,
as may be noted, is
set forth not only in
the
Environment
Code (PD 1152) and
RA 9003, but in its
charter as well. This
duty of putting up a
proper
waste
disposal
system
164 | R e m e d i a l
Law
Review
cannot
be
characterized
as
discretionary, for, as
earlier
stated,
discretion
presupposes
the
power or right given
by law to public
functionaries to act
officially
according
to their judgment or
conscience. A
discretionary duty is
one that allows a
person
to
exercise
judgment and choose
to perform or not to
perform. Any
suggestion that the
MMDA has the option
whether or not to
perform its solid waste
disposal-related duties
ought to be dismissed
for want of legal basis.
A perusal of
other
petitioners
respective charters
or
like
enabling
statutes
and
pertinent laws would
yield this conclusion:
these
government
agencies
are
enjoined,
as
a
matter of statutory
obligation,
to
perform
certain
functions
relating
directly or indirectly
to
the
cleanup,
rehabilitation,
protection,
and
preservation of the
Manila Bay. They are
precluded
from
choosing
not
to
perform
these
duties. ****
****
All told, the
aforementioned
enabling laws and
issuances
are
in
themselves
clear,
categorical,
and
complete as to what
are the obligations
and mandate of each
agency/petitioner
under the law. We
need not belabor the
issue
that
their
tasks include the
cleanup
of
the Manila Bay.
Secs. 17 and 20 of
the
Environment
Code
Include
Cleaning in General
****
Respondents
are correct. For one
thing, said Sec. 17
does not in any way
state
that
the
government agencies
concerned ought to
confine themselves to
the
containment,
removal, and cleaning
operations
when
a
specific
pollution
incident occurs. On
the contrary, Sec. 17
requires them to act
even in the absence
of
a
specific
pollution incident, as
long as water quality
has deteriorated to
a degree where its
state will adversely
affect
its
best
usage. This section,
to stress, commands
concerned
government
agencies,
when
appropriate,
to
take such measures
as may be necessary
to
meet
the
prescribed
water
quality standards.
In
fine,
the
underlying duty to
upgrade the quality
of
water
is
not
conditional on the
occurrence of any
pollution incident.
For another, a
perusal of Sec. 20 of
the
Environment
Code, as couched,
indicates that it is
properly applicable
to
a
specific
situation in which
the
pollution
is
caused by polluters
who fail to clean up

the mess they left
behind.
In
such
instance,
the
concerned
government
agencies
shall
undertake
the
cleanup work for the
polluters
account.**** As earlier
discussed,
the
complementary Sec. 17
of the Environment
Code comes into play
and the specific duties
of the agencies to
clean up come in even
if there are no pollution
incidents staring at
them. Petitioners,
thus,
cannot
plausibly invoke and
hide behind Sec. 20
of PD 1152 or Sec.
16 of RA 9275 on the
pretext that their
cleanup
mandate
depends
on
the
happening
of
a
specific
pollution
incident. In
this
regard, what the CA
said with respect to
the impasse over
Secs. 17 and 20 of
PD 1152 is at once
valid
as
it
is
practical.
The
appellate
court
wrote:
PD
1152
aims to introduce a
comprehensive
program
of
environmental
protection
and
management. This is
better
served
by
making Secs. 17 &
20
of
general
application
rather
than limiting them
to specific pollution
incidents.
Granting argue
ndo that
petitioners
position thus described
vis--vis
the
implementation of Sec.
20 is correct, they
seem
to
have
overlooked the fact
165 | R e m e d i a l
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that the pollution of

the Manila Bay is of
such magnitude and
scope that it is wellnigh impossible to
draw
the
line
between a specific
and
a
general
pollution
incident.
And such impossibility
extends to pinpointing
with
reasonable
certainty
who
the
polluters are. We note
that Sec. 20 of PD 1152
mentions
water
pollution
incidents
which may be caused
by polluters in the
waters
of
the Manila Bay itself or
by
polluters
in
adjoining lands and in
water
bodies
or
waterways that empty
into the bay. Sec. 16 of
RA 9275, on the other
hand,
specifically
adverts to any person
who causes pollution in
or
pollutes
water
bodies, which may
refer to an individual or
an establishment that
pollutes the land mass
near the Manila Bay or
the waterways, such
that the contaminants
eventually end up in
the
bay.
In
this
situation, the water
pollution
incidents
are so numerous and
involve
nameless
and
faceless
polluters that they
can
validly
be
categorized
as
beyond the specific
pollution
incident
level.
Not
to
be
ignored of course is the
reality
that
the
government agencies
concerned
are
so
undermanned that it
would
be
almost
impossible
to
apprehend
the
numerous polluters of
the Manila Bay. It may
perhaps not be amiss

to
say
that
the
apprehension, if any, of
the Manila Bay polluter
s has been few and far
between.
Hence,
practically
nobody
has been required to
contain, remove, or
clean up a given
water
pollution
incident. In
this
kind of setting, it
behooves
the
Government to step
in
and
undertake
cleanup operations.
Thus, Sec. 16 of RA
9275,
previously
Sec. 20 of PD 1152,
covers for all intents
and
purposes
a
general
cleanup
situation.
The
cleanup
and/or restoration of
the Manila Bay is
only an aspect and
the initial stage of
the
long-term
solution. The
preservation of the
water quality of the
bay
after
the
rehabilitation
process
is
as
important
as
the
cleaning phase. It is
imperative then that
the
wastes
and
contaminants found
in the rivers, inland
bays,
and
other
bodies of water be
stopped
from
reaching the Manila
Bay. Otherwise, any
cleanup effort would
just be a futile,
cosmetic
exercise,
for, in no time at all,
the Manila Bay wate
r
quality
would
again
deteriorate
below
the
ideal
minimum standards
set by PD 1152, RA
9275,
and
other
relevant laws. It thus
behooves the Court to
put the heads of the
petitioner-department-
agencies
and
the
bureaus and offices
under
them
on
continuing
notice
about, and to enjoin
them to perform, their
mandates and duties
towards cleaning up
the Manila Bay and
preserving the quality
of its water to the ideal
level.
Under
what
other
judicial
discipline describes
as
continuing
mandamus, the
Court may, under
extraordinary
circumstances, issue
directives with the
end
in
view
of
ensuring
that
its
decision would not
be set to naught by
administrative
inaction
or
indifference. In India,
the
doctrine
of
continuing mandamus
was used to enforce
directives of the court
to clean up the length
of
the Ganges River from
industrial
and
municipal pollution.
*****
In the light of
the
ongoing
environmental
degradation, the Court
wishes to emphasize
the extreme necessity
for
all
concerned
executive departments
and
agencies
to
immediately act and
discharge
their
respective
official
duties
and
obligations. Indeed,
time is of the essence;
hence, there is a
need
to
set
timetables for the
performance
and
completion of the
tasks, some of them
as defined for them
by
law
and
the
nature
of
their
respective
offices
and mandates.
166 | R e m e d i a l
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The importance
of the Manila Bay as a
sea
resource,
playground, and as a
historical
landmark
cannot
be
overemphasized. It is not
yet too late in the day
to
restore
the Manila Bay to
its
former splendor and
bring back the plants
and sea life that once
thrived in its blue
waters. But the tasks
ahead, daunting as
they may be, could
only be accomplished if
those mandated, with
the
help
and
cooperation of all civicminded
individuals,
would put their minds
to these tasks and take
responsibility.
This
means
that
the
State,
through
petitioners, has to
take the lead in the
preservation
and
protection
of
the Manila Bay.
The era of
delays,
procrastination,
and ad
hoc measures
is
over.
Petitioners
must transcend their
limitations, real or
imaginary,
and
buckle down to work
before the problem
at hand
becomes
unmanageable.
Thus,
we
must
reiterate
that
different
government
agencies
and
instrumentalities
cannot shirk from
their mandates; they
must perform their
basic functions in
cleaning
up
and
rehabilitating
the Manila Bay.
We
are
disturbed
by
petitioners
hiding
behind two untenable
claims: (1) that there

ought to be a specific
pollution
incident
before
they
are
required to act; and (2)
that the cleanup of the
bay is a discretionary
duty.
RA 9003 is a
sweeping piece of
legislation
enacted
to
radically
transform
and
improve
waste
management. It
implements Sec. 16,
Art. II of the 1987
Constitution, which
explicitly
provides
that the State shall
protect and advance
the right of the
people to a balanced
and
healthful
ecology in accord
with the rhythm and
harmony of nature.
So it was that
in Oposa v. Factoran,
Jr. the Court stated
that the right to a
balanced
and
healthful
ecology
need not even be
written
in
the
Constitution for it is
assumed, like other
civil
and
political
rights guaranteed in
the Bill of Rights, to
exist
from
the
inception of mankind
and it is an issue of
transcendental
importance
with
intergenerational
implications. Even
assuming
the
absence
of
a
categorical
legal
provision specifically
prodding petitioners
to clean up the bay,
they and the men
and
women
representing
them
cannot escape their
obligation to future
generations
of
Filipinos to keep the
waters
of
the Manila Bay clean

and
clear
as
humanly as possible.
Anything less would
be a betrayal of the
trust
reposed
in
them.
How do we execute that
judgment in the Kalikasan
court?
Theoretically, SC said that
the
execution
of
the
judgment requires a periodic
report
from
the
agencies
concerned on the extent of
progress
the
government
agencies
concerned
had
achieved until the objective of
the writ has been achieved. If
the SC is understaffed to
monitor the progress, it can
appoint
commissioners
in
charge of accepting periodic
reports and in submitting the
progress reports to the SC in
order to satisfy this judgment
requirement. Thus, dormancy
and prescription of judgment
under Rule 39 and NCC shall
not
apply
in
Writ
of
Kalikasan.
A continuing mandamus is
another special civil action,
but this time it is cognizable by
the RTC, CA and the SC. Just
like in Rule 65 or the Writ of
Kalikasan as a special civil action,
the respondent is required to file
a verified return, and if no return
is filed by respondent, court
continues with the process of
analyzing the merit of the
petition
for
continuing
mandamus.
A provisional remedy that could
be issued by the court handling
the
petition
for
continuing
mandamus is the issuance of a
Temporary
Environmental
Protection Order (TEPO) or a
cease and desist order, just like
in the writ of Kalikasan. There
could also be an award of
damages.
You will also notice that unlike in
Kalikasan, there is no provision
concerning appeals in continuing
167 | R e m e d i a l
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mandamus..
In the writ of
Kalikasan as a special civil action,
appeal under Rule 45 is a
remedy, raising only questions of
law and questions of fact. . It
would seem that the appeals
provided
in
ordinary
civil
procedure will govern. If the trial
court is the RTC, the appeal could
be by notice of appeal provided
in the Rules, or it could be an
appeal directed to the SC. In
ordinary civil cases, we allow an
appeal from the RTC to the SC
under Rule 45, but the appeal
should only contain questions of
law.
What is the precautionary
principle in Kalikasan Cases?
Precautionary principle states
that when human activities
may lead to threats of
serious
and
irreversible
damage to the environment
that is scientifically plausible
but uncertain, actions shall
be taken to avoid or diminish
that threat.
What is Strategic Lawsuit
Against Public Performance
(SLAPP) ?
It could be in the form of a civil
or criminal action. Plaintiffs
intent
from
SLAPP
is
to
discourage
enforcement
officers from enforcing or
attempting
to
enforce
environmental laws. This is
filed usually against DENR or
MMDA by a private individual.
Strategic
lawsuit
against
public
participation
(SLAPP)refers to an
action whether civil,
criminal
or
administrative,
brought against any
person, institution or
any
government
agency
or
local
government unit or its
officials
and
employees, with the
intent to harass, vex,
exert undue pressure
or stifle any legal
recourse
that
such
person, institution or
government
agency
has taken or may take
in the enforcement of
environmental
laws,
protection
of
the
environment
or
assertion
of
environmental rights.
In such case, the government
officer can file a motion to
dismiss such case. The public
officer/defendant/accused
need
only
to
present
substantial
evidence
(the
same
standard
in
administrative
cases)
to
prove that the case filed was
a SLAPP. The plaintiff must
present
preponderance
of
evidence/proof
beyond
reasonable doubt to sustain his
challenge.
In criminal procedure in SLAPP,
there is a substantial change in
the manner by which a criminal
case is governed when compared
to a criminal action which follows
criminal procedure.
In ordinary criminal procedure, if
the court grants bail, one of the
conditions in the bail is that if the
accused does not appear in court
for trial, then the court is
authorized to conduct a trial in
absentia.
But
in
criminal
procedure, if the accused is
granted bail, and then during the
arraignment he does not appear,
the criminal court will be forced
to suspend proceedings until the
accused is rearrested. What the
court will do is to postpone the
arraignment, issue another arrest
warrant and probably order the
cancellation of the bail bond. But,
the arraignment will not be
pushed through. If there is no
arraignment, there can be no
trial in the ordinary criminal case.
There must be an arraignment
first before the court can conduct
a trial in absentia.
This is not followed in
Kalikasan criminal cases. In
Kalikasan criminal cases,
crimes are usually bailable. If
accused is granted bail,
condition of the bail bond
the
the
the
the
the
will
contain similar provisions to that

found in bail under ordinary
criminal proceedings. There is
modification in arraignment. If
accused does not appear in the
scheduled arraignment, the court
is authorized enter a plea of not
guilty, so that if there is a plea of
not guilty, the arraignment is
completed, a trial can then be
scheduled. If the accused still
failed to appear on trial, there
can be a trial in absentia.
There is no more need for the
accused to be present personally
during the arraignment in the
Kalikasan criminal cases. If he
does not appear, then it is the
court who will enter a plea of not
guilty for him so the court can
continue with the trial in absentia
of the accused.
Other Terms(Rules of
Procedure
on
Environmental Cases):
By-product
or
derivatives means any
part taken or substance
extracted from wildlife, in
raw or in processed form
including stuffed animals
and
herbarium
specimens.
Consent
decree
refers to a judiciallyapproved
settlement
between
concerned
parties based on public
interest
and
public
policy to protect and
preserve
the
environment.
Mineral refers to all
naturally
occurring
inorganic substance in
solid, gas, liquid, or any
intermediate
state
excluding
energy
materials such as coal,
petroleum, natural gas,
radioactive
materials
and geothermal energy.
Wildlife means wild
forms and varieties of
flora and fauna, in all
developmental stages
including those which
168 | R e m e d i a l
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are in captivity or are

being
bred
or
propagated.
Some
Important
provisions (Rules of
Procedure
on
Environmental
Cases):
Rule 2 SEC. 13. Service
of summons, orders
and
other
court
processes.The
summons, orders and
other court processes
may be served by the
sheriff, his deputy or
other
proper
court
officer or for justifiable
reasons, by the counsel
or representative of the
plaintiff or any suitable
person authorized or
deputized by the court
issuing the summons.
Any private person
who is authorized or
deputized
by
the
court
to
serve
summons,
orders
and
other
court
processes shall for
that
purpose
be
considered an officer
of the court.
The summons shall be
served
on
the
defendant,
together
with a copy of an order
informing all parties
that they have fifteen
(15) days from the
filing of an answer,
within which to avail of
interrogatories
to
parties under Rule 25
of the Rules of Court
and
request
for
admission by adverse
party under Rule 26, or
at
their
discretion,
make
use
of
depositions under Rule
23 or other measures
under Rules 27 and 28.
Should personal and
substituted service fail,
summons
by
publication shall be
allowed. In the case of

juridical
entities,
summons
by
publication shall be
done by indicating the
names of the officers or
their duly authorized
representatives.
Rule 3 SEC. 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.
Rule 3 SEC. 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.
Rule
4
SEC.
2.
Affidavits in lieu of
direct examination.In
lieu
of
direct
examination,
affidavits
marked
during the pre-trial
shall be presented
as
direct
examination
of
affiants subject to
cross-examination
by
the
adverse
party.
Rule 4 SEC. 3. One-day
examination of witness
rule.The court shall
strictly adhere to the
rule that a witness
has
to
be
fully
examined in one (1)
day, subject to the
courts discretion of
extending
the
examination
for
justifiable
reason.
After
the
presentation of the
last witness, only
oral
offer
of
evidence shall be
allowed,
and
the
opposing party shall
immediately
interpose
his
objections.
The
judge shall forthwith
rule on the offer of
evidence
in
open
court.
169 | R e m e d i a l
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Rule
4
SEC.
4.
Submission of case for
decision;
filing
of
memoranda.
After
the last party has
rested its case, the
court shall issue an
order submitting the
case for decision.
The
court
may
require the parties
to
submit
their
respective
memoranda,
if
possible
in
electronic
form,
within a non-extendible
period of thirty (30)
days from the date the
case is submitted for
decision.
The court shall have a
period of sixty (60)
days to decide the case
from the date the case
is
submitted
for
decision.
Rule 4 SEC. 5. Period to
try and decide.The
court shall have a
period of one (1)
year from the filing
of the complaint to
try and decide the
case.
Before
the
expiration
of
the
one-year period, the
court may petition
the Supreme Court
for the extension of
the
period
for
justifiable cause.
The
court
shall
prioritize
the
adjudication
of
environmental cases.
Rule 5 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.
Rule
5
SEC.
2.
Judgment not stayed
by
appeal.
Any
judgment directing
the performance of
acts
for
the
protection,
preservation
or
rehabilitation of the
environment shall be
executory
pending
appeal
unless
restrained by the
appellate court.
Rule 7 SEC. 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.
Rule 7 SEC. 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.
Rule 10 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
170 | R e m e d i a l
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for the restoration

and rehabilitation of
the
environment
adversely affected.
Rule 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.
Rule 16
SEC. 4.
Manner of questioning.
All questions or
statements must be
directed
to
the
court.
Rule 16
SEC. 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,
Court
shall
be
approved by the court.
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.
SEC. 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 66 QUO WARRANTO
~One of the cases under the
concurrent original jurisdiction of
the SC, CA and RTC under BP 129
and also the COMELEC under the
Omnibus Election Code. MTC has
limited quo warranto jurisdiction
as
to
proceedings
at
the
barangay level.
Q: What is quo warranto?
A: A proceeding or writ issued by
the court to determine the right
to use an office, position or

franchise and to oust the person
holding or exercising such office,
position or franchise if his right is
unfounded or if a person
performed acts considered as
grounds for forfeiture of said
exercise of position, office or
franchise.
Note: It is commenced by a
verified petition brought in the
name of the Republic of the
Philippines or in the name of the
person claiming to be entitled to
a public office or position
usurped or unlawfully held or
exercised by another. (Sec. 1)
Q:
What
are
the
classifications
of
quo
warranto proceedings?
A:
1. Mandatory brought by the
Solicitor
General
or
Public
prosecutor when:
a.
directed
by
the
President;
b. upon complaint or
when he has reason to
believe that the cases for
quo warranto can be
established
by
proof
(Sec. 2)
c. at the request and
upon the relation if
another
person
(ex
relatione), but leave of
court
must
first
be
obtained. (Sec. 3)
2. Discretionary brought by the
Solicitor General or a public
prosecutor at the request and
upon the relation of another
person, provided there must be:
a. leave of court
b. at the request and
upon the relation of
another person
c. indemnity bond (Sec.
3)
Who commences the action?
A:
1. The solicitor general or public
prosecutor, when directed by the
President of the Philippines, or
when
upon
complaint
or
otherwise he has good reason to
believe that any case specified in
the proceeding section can be
171 | R e m e d i a l
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established by proof. (mandatory

quo warranto)
2. The Solicitor General or a
public prosecutor may, with the
permission of court, bring an
action at the request and upon
the relation of another person.
(discretionary quo warranto)
3. A person claiming to be
entitled to a public office or
position or unlawfully held or
exercised by another may also
bring action, in his own name.
(Relator)
Q: Against whom a quo
warranto may be filed?
A: The action must be filed
against:
1. A person who usurps,
intrudes
into,
or
unlawfully
holds
or
exercises a public office,
position or franchise;
2. A public officer who
does or suffers an act
which, by the provision of
law, constitutes a ground
for the forfeiture of his
office; and
3. An association which
acts as a corporation
within the Philippines
without
being
legally
incorporated or without
lawful authority so to act
(Sec. 1, Rule 66).
Note: Actions of quo warranto
against corporations now fall
under the jurisdiction of the RTC
(Sec. 5.2, Securities Regulations
Code).
Usually, the petitioner has the
right of choice. But under Rule
65,
although
nothing
is
mentioned in Rule 66 about
hierarchy of courts in quo
warranto proceedings, we follow
hierarchy of courts. As much as
possible, we do not file a petition
for quo warranto in the SC. It
should be filed in the RTC which
has territorial jurisdiction over
the case where the public office
in question is placed.
If we compare quo warranto to
mandamus, if you go back to
Rule 65 Section 3, the second
part of that section has a phrase
or clause which seems to overlap
with
the
concept
of
quo
warranto. Quo warranto refers to
the usurpation, holding an office
without title. In mandamus, the
second part of the section on
mandamus speaks about a
respondent
who
unlawfully
excludes another from the use or
enjoyment of a right or office to
which he is entitled. So there
seems to be an overlap between
the second part of mandamus
and quo warranto.
Rule 65 SEC. 3. Petition
for
mandamus.When
any tribunal, corporation,
board, officer or person
unlawfully neglects the
performance of an act
which the law specifically
enjoins
as
a
duty
resulting from an office,
trust, or station, or
unlawfully
excludes
another from the use
and enjoyment of a
right or office to which
such other is entitled,
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 and
praying that judgment be
rendered
commanding
the
respondent,
immediately or at some
other time to be specified
by the court, to do the
act required to be done
to protect the rights of
the petitioner, and to pay
the damages sustained
by the petitioner by
reason of the wrongful
acts of the respondent.
The petition shall also
contain
a
sworn
certification of non-forum
shopping as provided in
the third paragraph of
section 3, Rule 46.
Because
of
this
seemingly
overlap between mandamus and
quo warranto, the SC has also
resolved that there is nothing
wrong when a petitioner files a

petition for mandamus or in the
alternative a petition for quo
warranto. The petitioner is not
very certain whether the right
proceeding is mandamus or quo
warranto, because these actions
would involve really the intrusion
or usurpation of a public office or
title.
But there is a great difference
procedurally between mandamus
and quo warranto although these
petitions
could
be
used
alternatively. This is because in a
quo warranto proceeding, the
petitioner could be the Solicitor
General, although he is not
interested in the public office in
question. Upon the instruction of
the President, the SolGen is
authorized to file a petition for
quo
warranto.
Or,
if
the
instructions does not come from
the President, the request comes
from a relator. A relator is a
term
associated
with
quo
warranto, he is the petitioner, a
person who believes he is
entitled to the public office held
by another, and he is asking the
SolGen to file a petition for quo
warranto on his behalf. The
SolGen, upon the request of a
relator,
shall
commence
a
petition for quo warranto. But the
person interested in the office
could himself file a petition for
quo warranto. That is what
usually happens. The person who
alleges he is entitled to a position
can file a petition for quo
warranto in a competent court.
Quo warranto is a special civil
action because of numerous
changes in the procedure which
modify the rules we apply to
ordinary civil actions.
Procedural changes:
1. Rule on venue
Usually in ordinary civil cases, in
the absence of an express
agreement, venue is governed by
Rule 4. We do not follow this in
quo warranto. It is specifically
provided that for quo warranto,
the venue is where the officer
sought to be ejected is
residing. We do not take into
172 | R e m e d i a l
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Review
account the residence of the

petitioner.
Q:
A
group
of
businessmen
formed
an association in Cebu
City calling itself Cars
Co. to distribute/sell
cars in said city. It did
not incorporate itself
under the law nor did
it
have
any
government permit or
license to conduct its
business as such. The
Solicitor General filed
before the RTC in
Manila
a
verified
petition
for
quo
warranto questioning
and seeking to stop
the operations of Cars
Co. The latter filed a
motion to dismiss the
petition on the ground
of
improper
venue
claiming that its main
office and operations
are in Cebu City and
not in Manila. Is the
contention of Cars Co.
correct? Why?
A: No. As expressly
provided in the Rules,
when
the
Solicitor
General commences the
action for quo warranto,
it may be brought in a
Regional Trial Court in the
City of Manila, as in the
case, in the CA or in the
SC (Sec. 7, Rule 66).
(2001 Bar Question)
2. Period for submission of
pleadings
In ordinary civil actions, the
period to file pleadings is fixed in
the Rules, and the court has
discretion to grant extension
thereof. But if we read Rule 66,
the quo warranto court can
reduce the period at its
discretion. The quo warranto
court can issue a summons
instructing the recipient thereof
to file a responsive pleading with
5 days. That discretion of a quo
warranto court is not enjoyed by
other courts under ordinary civil
procedure, as courts under
ordinary procedure can grant
extensions only.
3. The most significant change in

quo warranto is that we do not
apply
the
rule
against
splitting a cause of action. It
is expressly allowed in quo
warranto under Sections 9, 10
and 11 of Rule 66.
SEC. 9. Judgment
where
usurpation
found.When
the
respondent is found
guilty of usurping,
intruding
into,
or
unlawfully holding or
exercising a public
office,
position
or
franchise, judgment
shall be rendered
that
such
respondent
be
ousted
and
altogether excluded
therefrom, and that
the petitioner or
relator, as the case
may be, recover his
costs. Such further
judgment may be
rendered
determining
the
respective rights in
and to the public
office, position or
franchise of all the
parties
to
the
action as justice
requires.
SEC. 10. Rights of
persons
adjudged
entitled to public
office; delivery of
books and papers;
damages.If
judgment be rendered
in favor of the person
averred
in
the
complaint
to
be
entitled to the public
office he may, after
taking the oath of
office and executing
any official bond
required
by
law,
take upon himself
the execution of the
office,
and
may
immediately
thereafter demand
of the respondent
all the books and
papers
in
the
respondents
custody or control
appertaining to the
office to which the
judgment relates. If
the
respondent
refuses or neglects
to deliver any book
or paper pursuant to
such
demand,
he
may be punished
for
contempt
as
having disobeyed a
lawful order of the
court.
The person
adjudged entitled to
the office may also
bring action against
the respondent to
recover
the
damages sustained
by such person by
reason
of
the
usurpation.
SEC.
11.
Limitations.
Nothing contained in
this Rule shall be
construed
to
authorize an action
against
a
public
officer or employee
for his ouster from
office unless the
same
be
commenced within
one (1) year after
the cause of such
ouster, or the right
of the petitioner to
hold such office or
position, arose; nor
to
authorize
an
action for damages
in accordance with
the provisions of
the next preceding
section unless the
same
be
commenced within
one (1) year after
the entry of the
judgment
establishing
the
petitioners right to
the
office
in
question.
You will note that in these 3
sections, there is a rule derived
173 | R e m e d i a l
Law
Review
from these sections, which says

that if the quo warranto court
decides in favor of the
petitioner, the quo warranto
court
will
oust
the
respondent and direct that
the office and the records of
that office be turned over to
the prevailing party. In the
succeeding sections, it is also
provided that the prevailing party
has a right, within 1 year after
taking
over,
can
claim
damages incurred as a result
of usurpation by ousted
respondent
public
officer.
Although a favorable decision in
a quo warranto proceeding could
lead the court to award damages
against the respondent public
officer, the quo warranto need
not award damages in the quo
warranto petition itself. There
could be a separate complaint for
recovery of damages arising from
the usurpation of a public office.
This is splitting a cause of action.
In other words, the prevailing
party can recover the office, and
after he has assumed office,
within one year from entry of
judgment, he can file a separate
complaint for the recovery of
damages suffered as a result of
the intrusion or usurpation made
by the defendant.
Claim for damages arising from
principal cause of action is not
barred if split from quo warranto
action. But prescriptive period is
1 year from entry of the main
action. Whereas in the case of
mandamus, a special civil action,
lets say the petitioner files a
petition for mandamus without a
claim for damages. He later on
wins the case. When court directs
the defendant to turn over the
office to the prevailing party, the
prevailing party will be barred
from claiming damages from the
plaintiff. Mandamus does not
authorize splitting a cause of
action. A claim of damages could
be awarded if claimed in the
same petition for mandamus. In
quo warranto, there is a different
procedure that we follow when it
comes to recovery of damages.
There could be a separate
complaint
for
recovery
of
damages
arising
from
the
intrusion or usurpation of public

office. But the prescriptive period
is one year from entry of
judgment of the quo warranto
proceeding.
Distinguish mandamus from
quo warranto.
A:
Mandamus
Quo
Warranto
Available
Available
when one is against
the
unlawfully
holder of an
excluded from office, who is
the use or the
person
enjoyment of claiming the
an
office office
as
against
a against
person who is petitioner, not
responsible
necessarily
for excluding the one who
the petitioner
excludes the
petitioner
No splitting of Recovery
of
a cause of damages
is
action.
allowed within
1 year from
the entry of
judgment of
the
petition
for
quo
warranto
Distinguish quo warranto in
elective
office
from
an
appointive office.
A:
Elective
Appointive
Office
Office
Issue:
Issue: validity
eligibility
of of
the
the
appointment
respondent
Occupant
Court will oust
declared
the
person
ineligible/dislo illegally
yal will be appointed and
unseated but will order the
petitioner will seating of the
not
be person
who
declared the was
legally
rightful
appointed and
occupant
of entitled to the
the office.
office.
Distinguish
quo
warranto
under Rule 66 from quo
warranto
under
Omnibus
Election Code.
A:
Quo
Warranto
Under Rule
66
Prerogative
writ by which
the
government
can call upon
any person to
show by what
title he holds
a public office
or exercises a
public
franchise.
Grounds:
1.
usurpation
2. forfeiture
3.
illegal
association
Presupposes
that
the
respondent is
already
actually
holding office
and
action
must
be
commenced
within 1 year
from cause of
ouster or from
the time the
right
of
petitioner to
hold
office
arose.
The petitioner
must be the
government
or the person
entitled to the
office
and
who
would
assume
the
same if his
action
succeeds.
Person
adjudged
entitled to the
office
may
bring
a
separate
action against
the
respondent to
recover
damages.
174 | R e m e d i a l
Quo
Warranto In
Electoral
Proceedings
To contest the
right of an
elected public
officer to hold
public office.
Grounds:
ineligibility or
disqualificatio
n to hold the
office
Petition must
be filed within
10 days from
the
proclamation
of
the
candidate.
May be filed
by any voter
even if he is
not entitled to
the office.
Actual
or
compensatory
damages are
recoverable in
quo warranto
proceedings
under
the
Omnibus
Election Code.
Law
Review
Note: If the dispute is as to the

counting of votes or on matters
connected with the conduct of
the election, quo warranto is not
the proper remedy but an
election
protest
(Cesar
v.
Garrido, G.R. No. 30705, Mar. 25,
1929)
3. Taking must be for public use
Is the claim of damages in

quo
warranto
cases
considered a separate special
civil action?
No, it is an ordinary action for a
claim of damages.
Q: When is expropriation
proper?
A: It is proper only when the
owner refuses to sell or, if the
latter agrees, agreement as
to the price cannot be
reached.
Supposing that the petitioner

filed a case for quo warranto
against
respondent.
His
petition for quo warranto was
granted. The respondent was
ousted from the office. When
the prevailing party filed a
case for damages, 1 year
after
the
entry
of
the
judgment
of
the
quo
warranto
court,
the
respondent
interposed
a
defense that he cannot be
held liable for damages as
the judgment of the quo
warranto court was an invalid
judgment. Is his defense
succeed in this ordinary
complaint for damages?
No. It cannot be set up. It is a
collateral attack on a judgment,
which we do not allow. Collateral
attack on judgment rendered by
the court is not allowed when the
judgment appears on its face to
be
valid
under
Rule
39.
Practically, in that separate
damages, no meritorious defense
could be set up by the
respondent because the award of
damages necessarily arises from
the fact that there is already a
final and executory judgment
rendered in the principal case of
quo warranto.
RULE 67 EXPROPRIATION
Q: What is expropriation?
A: The procedure for enforcing
the right of eminent domain.
a valid expropriation?
A:
1. Due process of law
2. Payment of just compensation
Q: What is the power of

eminent domain?
A: It is the right of the State to
acquire private property for
public use upon the payment of
just compensation.
Jurisdiction
exclusively
cognizable by RTC. The test in
BP 129 as to assessed value
of the property is not applied
here.
The nature of the action as a
real action has nothing to do
with the jurisdiction of the
court, but it has something to
do only with respect to the
venue. The nature of the
property is not determinative
of jurisdiction in expropriation
proceedings
because
expropriation is one not
capable
of
pecuniary
estimation.
Why is this so when state is
required
to
pay
just
compensation?
This is because the issue to be
resolved first by the court is
the right of the plaintiff to
expropriate. Only in the second
stage is the fixing of just
compensation resolved. A court
cannot simply decide the
issue of just compensation
first, as it should assess first
the right to expropriate,
which
is
incapable
of
pecuniary estimation. SC held
that since the first issue to be
resolved is one incapable of
pecuniary estimation, under BP
129, then it should be the RTC
which should have jurisdiction.
In expropriation proceedings, if
there is a complaint filed
yesterday, and the plaintiff
deposits
an
amount
equivalent to assessed value
today, even if the defending
party has not been notified
yet, the plaintiff can proceed

to
possess
the
property
subject of expropriation. Let
us say that the DPWH is
interested in getting a property
of land for the purpose of
expanding a national highway.
What it will do is to simply file a
complaint in the RTC where the
land is located. The deposit is
made the next day. Immediately,
the DPWH will take over the said
property, and the owner thereof
can do nothing about it. Once
deposit is made as required
by the Rules or as required
by substantive law, the court
issues a writ of possession as
its ministerial duty. In ordinary
civil actions, issuance of a writ of
possession can be done only
after the court has rendered a
decision and such decision has
been entered.
In case of reversion, when
will the owner recover the
expropriated property?
After a judgment in favor of
owner has become final and
executory. If there is an appeal,
possession is not returned,
except when execution pending
appeal is granted. Otherwise, a
writ of possession shall be issued
upon finality.
Suppose there is a lien over
the property? What if there
were informal settlers in the
property?
They will all be driven out as a
result of the writ of possession
issued
even
before
the
expropriation
court
has
determined whether or not the
state has a right to expropriate.
There
are
now
new
laws
providing for fixing the amount of
deposit to be made, not the one
that is always provided for under
Rule 67. The new laws say that
deposit should be 100% of the
assessed value. Rule 67 shall
govern in cases where the
special laws are not applicable.
WHEN
PLAINTIFF
IMMEDIATELY
ENTER
175 | R e m e d i a l
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CAN
INTO
Review
POSSESSION OF THE REAL

PROPERTY
Q: What is the new system of
immediate payment of initial
compensation?
A:
RA
8974
provides
a
modification of sec 2, Rule 67
where
the
Government
is
required to make immediate and
direct payment to the property
owner upon the filing of the
complaint to be entitled to a writ
of possession. As a relevant
standard for initial compensation,
the market value for the
property as stated in the tax
declaration or the current
relevant zonal valuation of
the
Bureau
of
internal
Revenue (BIR), whichever is
higher and the value of the
improvements
and/or
structures
using
the
replacement cost method.
Note: RA 8974 applies in
instances when the national
government
expropriates
property
for
national
government
infrastructure
projects.
Thus,
if
expropriation is engaged by
the national government for
purposes other than national
infrastructure projects, the
assessed value standard and
the deposit mode prescribed
in Rule 67 continues to apply.
The intent of RA 8974 to
supersede the system of deposit
under Rule 67 with the scheme of
immediate payment in cases
involving national government
infrastructure projects is indeed
very clear (MCWD v. J. King and
Sons, GR 175983, April 16, 2009)
NEW SYSTEM OF IMMEDIATE
PAYMENT OF INITIAL JUST
COMPENSATION
Q: What is the new system of
immediate payment of initial
just compensation?
A: For the acquisition of right-ofway, site or location for any
national
government
infrastructure project through
expropriation, upon the filing of
the filing of the complaint, and
after
due
notice
to
the
defendant, the implementing
agency shall immediately pay
the owner of the property the

amount equivalent to the sum of
(1) 100 percent of the value of
the property based on the
current relevant zonal valuation
of the BIR; and (2) the value of
the
improvements
and/or
structures as determined under
Sec. 7 of RA 8974 (Sec. 4, RA
8974).
Expropriation by LGUs, under
the LGC, it must be alleged in the
complaint that there is an
ordinance
authorizing
the
filing expropriation complaint
and a further allegation that
LGU offered to buy the
property from the owner, but
the owner refused (there was
an attempt by the LGU to buy
the property).
What are the two (2) stages
in expropriation proceedings?
A:
1. Determination of the authority
of the plaintiff to exercise the
power of eminent domain and
the propriety of the exercise in
the context of the facts involved.
2.
Determination
of
just
compensation.
FIRST STAGE
The
first
stage
of
the
expropriation proceeding is for
purposes of determining the
plaintiffs right to expropriate.
The first decision in resolving this
issue is called an order of
condemnation
or
expropriation, which is a final
decision on the merits. This is
appealable.
Certain
pleadings
are
not
allowed: Counterclaim, crossclaim and 3rd party complaint. If
defendant believes the filing of
expropriation by the Republic is
arbitrary, he cannot sue the
Republic. He cannot file a
counterclaim
against
the
Republic.
Is there a way the defendant
protect himself in case the
court decides in his favor?
Under Rule 67, even if without a
counterclaim,
if
the
court
resolves the expropriation is not
meritorious, the court will award

damages in favor of defendant. If
there is a dispute among several
defendants as to who is entitled
to just compensation, even if no
cross-claim is filed, the court
itself will resolve this issue, even
if there are no pleadings relating
thereto. The expropriation court
has a very wide discretion in the
matter of payment, or even
distribution, of just compensation
that will be fixed during the 2nd
stage where the court will
appoint commissioners, who will
then tell the court the amount of
just compensation to be paid to
the various defendants.
POSSESSORS
WITH
JUST
TITLE
SC also ruled that if the Republic
has a Torrens title over certain
properties,
but
the
said
properties were in the possession
of private individuals claiming
possession under a just title, the
Republic cannot simply cause
their ejection, but Republic can
simply file an expropriation
proceeding against them. There
is nothing wrong if the Republic
will
file
a
complaint
for
expropriation
to
oust
the
possessors from the property,
although these properties are
already in the title of the
government.
DEFAULT
Supposing the defendant does
not answer within the period of
default, the court, upon motion
of the plaintiff, may declare the
defendant in default. But in the
default
order
issued
in
expropriation proceedings, the
defendant is in default only
during the first stage of the
proceedings,
and
is
lifted
automatically in the 2nd stage.
The defendant, if declared in
default, will not be able to
participate during the first stage
of the proceedings where the
right
of
the
plaintiff
to
expropriate will be determined by
the court. The first stage ends, if
favorable to plaintiff, with the
court issuing an order for
condemnation
or
order
of
expropriation. Once that order is
entered, or even if there is an
176 | R e m e d i a l
Law
Review
appeal from that order, the

expropriation court will now go to
the second stage, the fixing of
just compensation. During the
2nd stage, the defendant is
allowed again to participate in
the proceedings the fixing of just
compensation. Unlike in ordinary
civil actions, if the defendant is in
default, the defendant will not be
able to participate during the
entire proceedings, unless the
order of default is lifted or the
order of default is set aside.
SECOND STAGE
The fixing of just compensation is
not solely the discretion of the
court.
Court
MUST
appoint
commissioners to determine such
compensation. If the court has
not followed this procedure,
there is ground to question the
decision of just compensation by
said court. Commissioners must
be appointed in order to help the
court
in
fixing
the
just
compensation to be paid. This is
another deviation from ordinary
procedures. Note in ordinary
procedure,
trial
by
commissioners is discretionary;
unlike in expropriation, the
appointment of commissioners in
the second stage is mandatory.
The judgment rendered by the
expropriation court will be void if
the court does not follow the
mandatory
requirement
of
appointing of commissioners.
Q: May the court dispense
with
the
assistance
of
commissioners
in
the
determination
of
just
compensation
in
expropriation proceedings?
A: No. The appointment of
commissioners in expropriation
proceedings is indispensable. In
such cases, trial with the aid of
commissioners is a substantial
right that may not be done away
with capriciously or for no reason
at all (MERALCO v. Pineda, G.R.
No. L-59791, Feb. 13, 1992).
Note: Objections to the order of
appointment must be filed within
10 days from service of the order
and shall be resolved within 30
days after all the commissioners
received the copies

objections (Sec. 5)
of
the
Q:
What
is
just
compensation?
A:
Just
compensation
is
equivalent to the fair market
value of the property at the time
of its taking or filing of complaint
whichever comes first. It is the
fair and full equivalent for the
loss sustained by the defendant.
Q: What is the formula for
the determination of just
compensation?
JC = FMV + CD CB
If CB is more than CD then,
JC = FMV
Where:
JC Just compensation
FMV Fair market value
CD Consequential damages
CB Consequential benefits
Note: Sentimental value is not
computed.
Q: What is the reckoning
point for determining just
compensation?
A:The value of just compensation
shall be determined as of the
date of the taking of the property
or the filing of the complaint,
whichever came first. (Sec. 4)
GR: When the taking of the
property
sought
to
be
expropriated coincides with the
commencement
of
the
expropriation proceedings, or
takes place subsequent to the
filing of the complaint for
eminent
domain,
the
just
compensation
should
be
determined as of the date of the
filing of the complaint. (City of
Iloilo v. Hon. Lolita ContrerasBesana, G.R. No. 168967, Feb.
12, 2010).
Note: Typically, the time of
taking is contemporaneous with
the time the petition is filed.
(NAPOCOR v. Co, G.R. No
166973, Feb. 10, 2009)
XPNs:
1. Grave injustice to the property
owner
2. The taking did not have color

of legal authority
3. The taking of the property was
not initially for expropriation
4. The owner will be given undue
increment advantages because
of the expropriation
Based on past jurisprudence, if
the state has expropriated a
piece of land and had paid just
compensation based on the
courts decisions, but the state
did not push through with the
project alleged in the complaint,
there is nothing we can do about
it on ground of res judicata. The
case can no longer be reopened.
But that was old jurisprudence.
Recently, the decision on MactanCebu International Airport cases,
the last of which was decided in
2010, the SC held that in the
case of the public purpose of
the
expropriation
being
unfulfilled, the former owners
can rightfully file a complaint
in the RTC for the reversion
of
the
property
and
reconveyance of the property
expropriated, the amount of
payment of which shall be
based
on
the
just
compensation paid at the
time of expropriation (the
purpose being to return to
the government the amount
of just compensation paid to
them).
In another case, there was a land
owner who donated a tract of
land to the government. The
government
introduced
improvements with tolerance of
the owner, and the value of the
property increased. The donor,
seeing that the improvements
increase the value of his
property, changed his mind and
sought to recover the donated
property by filing a case for
unlawful detainer against the
government.SC
held
that
unlawful detainer is not the
remedy. There was a de facto
expropriation
that
happened
when the government took over
the property. What the owner can
do is to file an ordinary action for
the
recovery
of
just
compensation.
177 | R e m e d i a l
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In other words, if we follow the

reasoning
of
the
SC,
expropriation could be de jure
expropriation, it could also be de
facto
expropriation.
If
the
government actually occupies a
piece of land and introduces
improvements therein, with the
tolerance of the owner of the
property, that is effectively an
expropriation of the property.
And the only remedy of the land
owner is to file an ordinary case
for
the
recovery
of
just
compensation. There will still be
a need to fix the amount of just
compensation.
We follow the same procedure if
the subject of expropriation is
personal property. But there are
laws fixing the amount to be
deposited if the government
wants to take possession of the
personal property right away.
APPEAL
Supposed
defendant
appealed the first final order,
may the court proceed with
the 2nd stage?
Yes. An appeal from the first final
order will not prevent the court
from proceeding to the 2nd stage
to fix the amount of just
compensation.
If
the
defendant
during
appeal asks the court to
withdraw the deposit made,
will
that
mean
he
is
withdrawing his appeal or
shall the appeal continue?
The appeal shall continue. SC
held that defendant is allowed to
withdraw
the
money
since
technically it is his as it is
intended to pay partly his just
compensation, this will not mean
that
the
appeal
is
being
withdrawn.
Thus, immediately, you can see
why expropriation is a special
civil action. It consists of 2
stages. And for each stage, there
is a final order of judgment. Thus,
for each final order of judgment,
an appeal can be had, meaning
there can be 2 appeals in an
expropriation case. Thus, it is
possible that there can be
multiplicity
of
appeals
in
expropriation cases, which is not
allowed in ordinary civil actions.
Because of the possibility of
multiple
of
appeals
in
expropriation proceedings, the
requirements of appeal are
changed.
In
ordinary
civil
proceedings, the period to appeal
is 15 days, and what needs to be
filed is just a notice to appeal. In
expropriation proceedings, since
there could be multiple appeals,
the period to appeal is extended
to 30 days, and together with
notice of appeal, appellant is also
required to file a record on
appeal. Failure to file record to
appeal means the appeal is not
perfected.
Q: City of Iloilo (petitioner)
represented by Mayor Treas
filed a complaint for eminent
domain
against
Javellana
seeking to expropriate two
parcels of land. Mayor Treas
filed a motion for issuance of
writ of possession alleging
that it had deposited 10% of
the amount of compensation
of which the court issued. A
writ
of
possession
was
subsequently
issued,
and
petitioner was able to take
physical possession of the
properties. After which, the
expropriation
proceedings
remained dormant. 16 years
later, Javellana filed an ex
parte motion/manifestation,
where he alleged that when
he sought to withdraw the
money, he discovered that no
deposit was made. Thus,
Javellana filed a complaint for
recovery of possession, fixing
and recovery of rental and
damages. The City of Iloilo
argues that Javellana could
no longer bring an action for
recovery since the subject
property was already taken
for public use. The trial court
in its orders and amended
orders maintained that the
assailed orders issued by it
were
interlocutory
in
character and as such are
always
subject
to
modification and revision by
the court anytime. Is the

order of expropriation final?
A: Expropriation proceedings
have two stages. The first phase
ends with an order of dismissal,
or a determination that the
property is to be acquired for a
public purpose. The second
phase
consists
of
the
determination
of
just
compensation.
Both
orders,
being final, are appealable.
An order of condemnation or
dismissal is final, resolving the
question of whether or not the
plaintiff has properly and legally
exercised its power of eminent
domain. Once the first order
becomes final and no appeal
thereto is taken, the authority to
expropriate and its public use
can no longer be questioned.
Thus, it has become final, and
the
petitioners
right
to
expropriate the property for a
public use is no longer subject to
review. (City of Iloilo v. Hon.
Lolita Contreras-Besana, G.R. No.
168967, Feb. 12, 2010).
May Congress enact a law
providing that a 5,000 square
meter lot, a part of the UST
compound
in
Sampaloc,
Manila, be expropriated for
the construction of a park in
honor of former City Mayor
Arsenio
Lacson?
As
compensation to UST, the
City of Manila shall deliver its
5-hectare lot in Sta. Rosa,
Laguna originally intended as
a residential subdivision for
the
Manila
City
Hall
employees. Explain.
A: Yes, Congress may enact a
law to expropriate property but it
cannot limit just compensation.
The
determination
of
just
compensation
is
a
judicial
function and Congress may not
supplant or prevent the exercise
of judicial discretion to determine
just compensation. Under Sec. 5,
Rule 67 of the Rules of Court, the
ascertainment
of
just
compensation
requires
the
evaluation of 3 commissioners.
(2006 Bar Question)
RULE 68 FORECLOSURE OF
REAL ESTATE MORTGAGE
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Another multi-stage special civil

action it has 3 stages
Q: What is foreclosure of Real
Estate Mortgage (REM)?
A: It is the remedy used for the
satisfaction of any monetary
obligation, which a person owes
to
another,
by
proceeding
against the property used to
secure said obligation.
complaint setting forth the date
and due execution of the
mortgage;
the
names
and
residences of the mortgagor and
the mortgagee; a description of
the mortgaged property; date of
the note or other documentary
evidence
of
the
obligation
secured by the mortgage, the
amount claimed to be unpaid
thereon; and the names and
residences of all persons having
or claiming an interest in the
property subordinate in right to
that of the holder of the
mortgage (Sec. 1).
JUDICIAL VS.EXTRA-JUDICIAL
FORECLOSURE
Judicial
ExtraForeclosure
judicial
Foreclosure
Governed by Governed by
Rule 68
Act 3135
There is only Right
of
an equity of redemption
redemption
exists
except when
the
mortgagee is
a bank
Requires
No
court
court
intervention
intervention
necessary
Mortgagee
Mortgagee is
need not be given
a
given
a special power
special power of attorney in
of attorney.
the mortgage
contract
to
foreclose the
mortgaged
property
in
case
of
default
Note: A mortgagee may bring a
personal action for the amount
due, instead of a foreclosure suit,
in which case, he will be deemed
to have waived his right to

proceed against the property in a
foreclosure proceeding. (Movido
v. RFC, G.R. No. L-11990, May 29,
1959)
Judicial foreclosure of real estate
mortgage. Rule 68 deals only
with real estate mortgage. Here,
the court is involved.
Note: There is no judicial
foreclosure
of
a
chattel
mortgage.
Extra-judicial foreclosure of real
mortgage is governed by special
law, the Real Estate Mortgage
Law. We deal only with the notary
public or the court sheriff. There
is a circular issued by the SC
concerning
extra-judicial
real
estate mortgage, so we follow
that SC circular when it comes to
extra-judicial foreclosure. In the
circulars, the mortgagee will not
need to file a complaint, but
instead will be dealing with
notary public or sheriff. There will
also be public auction, period of
redemption, and consolidation of
title by RoD. The only time when
the purchaser in this foreclosure
needs to go to court is when the
purchaser needs to recover
possession of the property. He
will have to go to court in order
to petition for the issuance of a
writ of possession.
In extra-judicial foreclosure of
mortgage,
the
period
of
redemption is similar to Rule 39,
1 year from registration of the
certificate of sale. This period of
redemption is one of the
distinctions of judicial under Rule
68 and extra-judicial foreclosure
of mortgage.
Redemption
in
judicial
foreclosure is called equity of
redemption. It is redemption just
the same. Period of redemption is
between 90 to 120 days from
entry of judgment. Such short
period is actually misleading, as
it can be without a definite end.
The
counting
must
be
commenced from ENTRY of
judgment
or
final
order.
There are 3 judgments or
final orders to be rendered in
judicial foreclosure. For each
stage, there could be an

appeal in each final order.
The counting starts upon
entry of all three judgments
or final orders. Thus, if one or
two judgments were appealed in
the CA up to the SC, then such
period is extended until the
finality of the said judgments,
which could take many years. If
an appeal is perfected on time,
there can be no entry of
judgment. This is the reason why
mortgagees
are
discouraged
from
engaging
in
judicial
foreclosures.
Q:
Distinguish
equity
of
redemption from right of
redemption.
A:
Equity
of Right
of
Redemption
Redemption
Right of the Right of the
defendant
debtor,
his
mortgagor
successor in
to
interest
or
extinguish
any
judicial
the
creditor
or
mortgage
judgment
and
retain creditor
of
ownership
said debtor or
of
the any
person
property by having a lien
paying
the on
the
debt within property
90-120 days subsequent to
after
the the mortgage
entry
of or deed of
judgment or trust
under
even
after which
the
the
property
is
foreclosure
sold
to
sale
but redeem the
prior
to property
confirmatio
within
1
n
year
from
the
registration
of
the
Sheriffs
certificate
of
foreclosure
sale
Governed by Governed by
Rule 68
Secs. 29-31,
Rule 39
Note: There is no right of
redemption in judicial foreclosure
sale after the confirmation of sale
except those granted by banks or
179 | R e m e d i a l
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banking institutions in favor of

non-judicial persons as provided
by the General Banking Act
(Government Insurance System
v. CFI of Iloilo, G.R. No. 45322,
July 5, 1989).
In extra-judicial foreclosure, the
mortgagor has the right to
redeem the property within one
year from the registration of the
deed of sale. However, Sec. 47 of
the General Banking Act provides
that in case of extra-judicial
foreclosure,
juridical
persons
shall have the right to redeem
the property until, but not after,
the registration of the certificate
of foreclosure sale which in no
case shall be more than 3
months
after
foreclosure,
whichever is earlier.
The pendency of the action stops
the running of the right of
redemption. Said right continues
after perfection of an appeal until
the decision of the appeal.
(Consolidated Bank and Trust
Corp. v. IAC, G.R. No. 73341,
Aug. 21, 1987)
A
mortgagee
can
only
foreclose
extra-judicially
under the Real Mortgage Law
if he is given an SPA to do so
by the mortgagor. Otherwise,
he must make use of judicial
foreclosure
of
mortgage.
If
mortgagee files a complaint for
judicial foreclosure, the first
problem is jurisdiction.
SC held that foreclosure of REM is
always cognizable under the RTC.
It is not capable of pecuniary
estimation. Notwithstanding the
nature of foreclosure of a real
estate, the SC used the reasons
in expropriation. SC held that a
judicial foreclosure of a real
estate mortgage is incapable of
pecuniary estimation since in the
first stage, the court determines
the right of plaintiff to foreclose,
which is incapable of pecuniary
estimation.
Rule 68 already tells who should
be the plaintiff as well as who to
implead
defendant.
The
defendants should be the debtor

and the mortgagor. The debtor is
different from mortgagor. And
debtor must also implead as codefendants persons who might
have
interests
or
liens
subsequent to the mortgagee. By
implication, the owner of a piece
of land can validly mortgage his
land more than once. He can
mortgage the land to A, then to
B, and then C.
contract serves automatically as

the
consideration
for
the
accessory
contract.
The
mortgagor only has himself to
blame, setting up his property as
security for the benefit of the
debtor without compensation.
If the mortgage loans are all

defaulted, the defendant, if he
has not given any authority to
foreclose the mortgage, is sure to
be impleaded as a defendant in
the
complaint
for
judicial
foreclosure of a real estate
mortgage.
It
is
the
first
mortgagee
who
judicially
forecloses the mortgage and if he
follows the Rules, the first
mortgagee should implead the
debtor, the mortgagor and the
subsequent mortgagees.
The only reason why subsequent

mortgagees should be impleaded
under the Rules is to protect the
1st mortgagee, assuming that he
wins the case, from these
subsequent
lien
holders
(subsequent mortgagees) from
exercising
their
equity
of
redemption. If the subsequent
mortgagees are not impleaded,
and there is a decision in favor of
the
1st
mortgagee,
the
subsequent mortgagees will not
lose their equity of redemption.
Meaning, they do not start to
count the 90 to 120 days period
from entry of judgment so as to
bar
these
subsequent
lien
holders from exercising their
right to equity of redemption.
That is the only reason why Rule
68 says that subsequent lien
holders should be impleaded,
because they are necessary
parties, so that they will lose
their equity of redemption if ever
the 1st mortgagee will win the
case.
Does it mean to say that the

debtor is an indispensible
party?
Yes. The mortgagor is an
indispensable
party,
whose
property
is
sought
to
be
foreclosed. Remember that a
mortgage is a collateral contract.
There must always be a principal
contract coupled with a contract
of real estate mortgage. Thus, we
should
always
implead
the
mortgagor,
who
is
an
indispensable
party
in
the
recovery of the indebtedness.
How about the mortgagor, is
he an indispensible party?
Yes. He is also an indispensible
party as it is his property that will
be foreclosed. He might lose his
property if it is foreclosed to
satisfy the obligation incurred by
the debtor.
Supposing
the
mortgagor
files an answer and sets up
the
defense
that
the
mortgage insofar as he is
concerned is void due to lack
of consideration thereto, is
this a valid argument against
the foreclosure?
It is untenable. In civil law, where
there is a collateral under an
accessory
contract,
the
consideration under the principal
Subsequent lien holders are

necessary parties, so they will
lose their equity of redemption
incase the plaintiff wins the case.
In an indispensible party is not

impleaded, the court will order
plaintiff to amend his complaint
and include said party. Failure to
implead an indispensible party
despite order of the court will
result in the dismissal of the
case.
STAGES
OF
JUDICIAL
FORECLOSURE
FIRST STAGE
In the first stage, the court
determines the liability of the
debtor, and the court will order
the
debtor
to
pay
his
indebtedness
within a 90- to
120-day period from entry of
judgment. The mortgagor is not
the one ordered to pay the
180 | R e m e d i a l
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secured indebtedness, it is the

debtor who must pay.
But inn our given facts, we do not
expect the debtor to pay,
because the property anyway
does not belong to him. He will
leave the problem to the
mortgagor.
If
there
is
no
payment, and the judgment is
not appealed, it will be entered.
The entry will not cut off the
equity of redemption. The equity
of redemption shall exist until
after the entry of the 2nd
judgment.
If the debt is paid,
the
proceedings become academic.
There is no more reason for the
mortgagee
continue
his
complaint if the debt is paid. It is
the obligation of the mortgagee
to cancel the mortgage if the
obligation is finally settled. But if
the obligation is not paid, the
proceedings will go to the 2nd
stage.
SECOND STAGE
The foreclosure court orders the
sale of the mortgaged property
at public auction. The court will
issue an order directing the
sheriff to sell the property in a
public auction under Rule 39, as
well as in the Mortgage Law.
If the property is sold to the
highest bidder, do we now cut off
the equity of redemption?
We do not cut off as of yet the
equity of redemption even when
the property has been sold at
public auction. What the court
will do next after the public
auction is conducted is to resolve
the motion for the confirmation
of the validity of the auction sale.
This is the second final order of
confirmation. It is appealable.
When an appeal is seasonably
filed,
the
final
order
of
confirmation is not entered, the
equity of redemption will still
continue to run. It will not be
interrupted
until
the
2nd
judgment is entered. If 2nd final
order is entered, that will not
mark the end of the proceedings.
That will only mark the beginning
of the 3rd stage.
THIRD STAGE
Deficiency Judgment
If the proceeds of the auction
sale are not enough to pay off
the indebtedness, the court will
be determining if there is any
deficiency and issue another final
order authorizing the recovery of
the deficiency.
The recovery of the deficiency
will be governed by Rule 39,
because the property/collateral
has already been sold at public
auction. We are going to apply,
for purposes of recovery of
deficiency,
execution
of
judgment.
The
recovery
of
deficiency is the third final order.
If there is no satisfaction of the
deficiency
through
voluntary
payment,
the
foreclosing
mortgagee will have to avail of
Rule 39. He can move for the
issuance of a writ of execution.
But in that 3rd stage, do not
forget that the only one who is
liable now is the debtor. The
mortgagor will not be liable for
any deficiency, because the
mortgagor is not the debtor. The
mortgagor is liable only to the
extent of the value of his
collateral. He cannot be held
personally liable for the value of
the deficiency, unless he makes
himself solidarily liable together
with the debtor. So in the
recovery of deficiency, only the
principal debtor is held liable, but
not the mortgagor of the
property.
Since we are going to apply Rule
39, there will be a levy on
execution of properties of the
debtor. If these are sold at public
auction, there will be another
round of legal redemption, 1 year
from
registration
of
the
certificate of sale in the RoD, but
not because of the foreclosure,
but because of the issuance of
the foreclosure court of a writ of
execution.
Q:
What
is
deficiency
judgment?
A: It is the judgment rendered by
the court holding the defendant
liable for any unpaid balance due
to the mortgagee if the proceeds
from the foreclosure sale do not

satisfy the entire debt.
when the court cannot render
deficiency judgment?
A: where the debtor-mortgagor is
a non-resident and who at the
time of the filing of the action for
foreclosure
and
during
the
pendency of the proceedings was
outside the Philippines, then it is
not procedurally feasible. It is by
nature
in
personam
and
jurisdiction over the person is
mandatory.
In one case decided by the
SC, the debtor secured his
indebtedness with a real
estate mortgage to his own
property.
The
lender/mortgagee obligated
the debtor to issue postdated checks for the payment
of
the
obligation.
The
mortgagees
filed
criminal
cases since the checks he got
from the mortgagor were
dishonored
upon
presentation.
During
the
pendency of the criminal
cases, since the principal
obligation remained unpaid,
the mortgagee availed of the
special civil action for judicial
foreclosure of mortgage of
the mortgagors property.
The mortgagor, previously
summoned in the criminal
cases,
sought
for
the
dismissal of the foreclosure
case, claiming that the civil
aspect of BP 22 should not be
separated from the criminal
aspect as it is automatically
carried with the criminal
case, and that mortgagee has
split his causes of action in
filing the special civil action
for judicial foreclosure. Is the
mortgagor correct?
In an earlier case, the SC
upheld the
mortgagor.
The
special civil action for judicial
foreclosure was dismissed. There
was really splitting of causes of
action.
The
criminal
cases
stemmed from the issuance of
the debtor of the checks, which
were dishonored. In a mortgage
relationship, there are effectively
181 | R e m e d i a l
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Review
2 contracts entered into between

the mortgagor and mortgagee.
The principal contract, usually a
loan, and an accessory contract
of mortgage. If the mortgagee
files a separate complaint for the
recovery of the loan without
foreclosing the mortgage, he can
do so. The filing of a separate
complaint for the purpose of
recovering the loan will be
considered as a waiver of the
collateral
arrangement.
The
mortgagee, if he does this, is
deemed to have abandoned the
mortgage. He is deemed to have
converted his secured loan to an
unsecured loan.
The ordinary
civil action of the loan will bar a
second complaint for the judicial
foreclosure of mortgage.
In a 2011 decision, involving
the same set of facts, the SC
changed its course. SC held
that the existence of a
criminal case for violation of
BP 22 is not a ground to
conclude that the mortgagee
has abandoned his mortgage
lien.
Notwithstanding
the
criminal case for violation of
BP 22 pending before the
MTC, the mortgagee can still
institute
a
judicial
foreclosure of the mortgage.
Q: Arlene borrowed P1 million
from GAP Bank (GAP) secured
by the titled land of her
friend
Gretchen
who,
however, did not assume
personal liability for the loan.
Arlene defaulted and GAP
filed an action for judicial
foreclosure of the real estate
mortgage impleading Arlene
and Gretchen as defendants.
The court rendered judgment
directing Arlene to pay the
outstanding account of P1.5
million
(principal
plus
interest) to GAP. No appeal
was taken by Arlene. Arlene
failed to pay the judgment
debt
within
the
period
specified in the decision. At
the foreclosure sale, the land
was sold to GAP for P1.2
million.
The
sale
was
confirmed by the court, and
the confirmation of the sale
was
registered
with
the
Registry of Deeds on January

5, 2002.
On January 10, 2003, GAP
filed an ex-parte motion with
the court for the issuance of
a writ of possession to oust
Gretchen from the land. It
also filed a deficiency claim
for P800,000 against Arlene
and Gretchen. The deficiency
claim was opposed by Arlene
and Gretchen.
1. Resolve the motion for the
issuance
of
a
writ
of
possession.
2. Resolve the deficiency
claim of the bank.
A:
1. In judicial foreclosure by
banks
such
as
GAP,
the
mortgagor or debtor whose
real property has been sold
on foreclosure has the right
to
redeem
the
property
within 1 year after the sale
(or registration of the sale).
However, under Sec. 47 of the
General Banking Law of 2000,
the purchaser at the auction
sale has the right to obtain a
writ of possession after the
finality
of
the
order
confirming sale. The motion
for
writ
of
possession,
however, cannot be filed ex
parte. There must be a notice
of hearing.
2. The deficiency claim of the
bank
may
be
enforced
against the mortgage debtor
Arlene, but it cannot be
enforced against Gretchen,
the owner of the mortgaged
property, who did not assume
personal liability of the loan.
(2003 Bar Question)
INSTANCES
WHEN
COURT
CANNOT RENDER DEFICIENCY
JUDGMENT
when
the
courts
cannot
render deficiency judgment?
A: When the:
1. Case is covered by the Recto
Law (Art. 1484, NCC);
2. Mortgagor is a non-resident
and is not found in the
Philippines,
unless
there
is
attachment;
3. Mortgagor dies, the mortgagee
may file his claim with the
probate court under Sec. 7, Rule
86; and
4. Mortgagee is a third person
but not solidarily liable with the
debtor.
If the mortgagee holds a chattel
mortgage, he will have to
foreclose it under the provisions
of the Chattel Mortgage Law via
an extra-judicial foreclosure of
chattel mortgage. The problem of
the mortgagee in a chattel
mortgage is similar to that of a
mortgagee in a real estate
mortgage.
In
mortgage
arrangements, the collateral is
usually left to the possession of
the mortgagor. In real estate
mortgage, mortgagor continues
to be in possession of the real
property. In a chattel mortgage,
chattel is retained by mortgagor.
(If mortgagor loses possession of
the
personal
property,
the
contract will not remain a
contract of mortgage, but one of
pledge.) With respect to real
estate mortgage, the possession
of the collateral by debtor does
not give much of a problem.
Mortgagee, if he is the highest
bidder, can ask for writ of
possession after the auction sale.
The
problem
by
the
mortgagee
in
a
chattel
mortgage is that the personal
property must be in his
possession before he can
extra-judicially
sell
the
chattel
subject
to
the
mortgage. Mortgagees in a
chattel
mortgage
usually
resort to court action by
filing a complaint for replevin
and avail of the provisional
remedy of a warrant of
seizure or a writ of replevin.
The court can grant the
provisional
remedy
even
before the mortgagor files an
answer. Once the mortgagee
gains possession of the chattel,
he can proceed with the process
of extra-judicial foreclosure of a
chattel mortgage.
182 | R e m e d i a l
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PARTITION
It is a special civil action which
could involve both personal and
real properties unlike judicial
foreclosure.
A complaint for partition is
predicated on the theory that
plaintiff and defendant are coowners of the properties subject
of litigation. The basis of a
complaint of partition is that the
plaintiff is allegedly a co-owner of
the property together with other
co-owners who are impleaded as
defendants. What is essential in
the complaint is that ALL coowners of the plaintiff must be
impleaded in the case as
defendants.
Q: What is partition?
A: It is a process of dividing and
assigning property owned in
common among the various coowners thereof in proportion to
their respective interests in said
property. It presupposes the
existence of a co-ownership over
a property between two or more
persons.
The
rule
allowing
partition originates from a wellknown principle embodied in the
Civil Code, that no co-owner shall
be obliged to remain the coownership. Because of this rule,
he may demand at any time the
partition of the property owned in
common (Art. 494).
complaint. (Sec.1, Rule 69)
a valid partition?
A:
1. Right to compel the partition;
2. Complaint must state the
nature and extent of plaintiff's
title and a description of the real
estate of which partition is
demanded; and
3. All other persons interested in
the property must be joined as
defendants (Sec. 1, Rule 69)
Who may file and who should
be made defendants?
A: The action shall be brought by

the person who has a right to
compel the partition of real
estate (Sec. 1, Rule 69) or of an
estate composed of personal
property, or both real and
personal property (Sec. 13, Rule
69). The plaintiff is a person who
is supposed to be a co-owner of
the property or estate sought to
be partitioned. The defendants
are all the co-owners.
SC said that all co-owners are
indispensable parties. Even if one
is left out, the judgment of
partition will never become final
and executory. So, all of the coowners MUST be impleaded.
Q: What is the effect of noninclusion of a co-owner in an
action for partition?
A:
1. Before judgment not a
ground for a motion to dismiss.
The remedy is to file a motion to
include the party.
2. After judgment makes the
judgment therein void because
co-owners
are
indispensable
parties.
Note: Creditors or assignees of
co-owners may intervene and
object to a partition affected
without their concurrence. But
they cannot impugn a partition
already executed unless there
has been fraud or in case it was
made notwithstanding a formal
opposition presented to prevent
it. (Sec. 12, Rule 69)
Can co-owners agree among
themselves
to
partition
without going to court?
Yes. If they were able to agree
among themselves, then they do
not need to go to court anymore.
The only time they go to court is
the time when they cannot agree
in the partition. But even if they
cannot agree at the start, and
therefor there is now a complaint
for partition now filed in court,
during the pendency of the case,
they can file agree voluntarily on
how to partition that property.
And if they want, they can
submit
the
agreement
of
partition to the court. If the court
approves the agreement of
partition, that will be a decision
on the merits by the court. It is a

partition in the form of a
compromise
agreement
duly
approved by the court. So even
there nothing to prevent the
plaintiff and the defendants from
entering
voluntarily
into
a
voluntary partition. They may not
allow the court to decide how the
property will be divided.
But if the parties insist in
partition to be done by the court,
it
will
involve
a
2-stage
proceeding.
Partition
is
a
two-stage
proceeding.
First proceeding the court
will issue an order for partition,
Second proceeding the court
may appoint commissioners to
determine how the property will
be divided among the co-owners.
There could be a third stage if
there is no agreement on the
system of accounting for the
properties; the court will order
the co-owner who has been
managing the property to submit
his accounting to the court for its
approval, but he furnishes a copy
to show how he has spent the
income and how he has kept the
income as a fund for the
preservation of the property.
What are the two aspects of
partition proceedings?
A:
1. Existence of co-ownership; and
2. Accounting or how to actually
partition the property.
Note: During the trial, the court
shall determine whether or not
the plaintiff is truly a co-owner
and there is co-ownership and
that partition is not legally
proscribed, the court will issue an
order of partition. It directs the
parties to partition the property
by
proper
instruments
of
conveyance, if they agree among
themselves.
If they do agree, the court shall
then confirm the partition so
agreed and such is to be
183 | R e m e d i a l
Law
Review
recorded in the registry of deeds

of the place in which the property
is situated (Sec 2, Rule 69).
There
always
exists
the
possibility that the parties are
unable to agree on the partition.
Thus, the next stage is the
appointment of commissioners.
What are the stages in an
action for partition which
could be the subject of
appeal?
A:
1.
Order
determining
the
propriety of the partition
2. Judgment as to the fruits and
income of the property
3. Judgment of partition (Riano,
Civil Procedure: A Restatement
ORDER OF PARTITION AND
PARTITION BY AGREEMENT
Q: What is an order of
partition?
A: The order of partition is one
that directs the parties or coowners to partition the property
Q: When does the court issue
the order of partition?
A: During the trial, the court
shall determine whether or not
the plaintiff is truly a co-owner of
the property, that there is indeed
a
co-ownership
among
the
parties, and that a partition is not
legally proscribed thus may be
allowed. If the court so finds that
the facts are such that a partition
would be in order, and that the
plaintiff has a right to demand
partition, the court will issue an
order of partition.
Note: The court shall order the
partition of the property among
all the parties in interest, if after
trial it finds that the plaintiff has
the right to partition (Sec. 2, Rule
69). It was held that this order of
partition including an order
directing an accounting is final
and not interlocutory and hence,
appealable;
thus,
revoking
previous contrary rulings on the
matter. A final order decreeing
partition and accounting may be
appealed by any party aggrieved
thereby.
When
is
partition
agreement proper?
by
A: The parties may make the

partition among themselves by
proper
instruments
of
conveyance, if they agree among
themselves. If they do agree, the
court shall then confirm the
partition so agreed upon by all of
the parties, and such partition,
together with the order of the
court confirming the same, shall
be recorded in the registry of
deeds of the place in which the
property is situated (Sec. 2, Rule
69).cc
If you happen to read the
provisions in the NCC on coownership, it would seem that if
there is a complaint for partition
filed by one co-owner against the
other co-owners, it seems the
other co-owners cannot set up a
very meritorious defense. When
one of the co-owners wants to
leave, that is a right given him by
substantive law. Nobody can stop
him from leaving the coownership.
In one recent case, the SC said
that here could be a good
defense in a complaint for
partition. Even if the court finds
property is co-owned, and one
co-owner decides to leave, the
court cannot simply issue a
decision
in
favor
of
the
plaintiff/co-owner that will lead to
the dissolution of the coownership. SC cited the provision
in the Family Code citing Article
159, which substantially says
that if there are co-owners of a
property by reason of their right
to
inheritance
from
a
predecessor in interest, and one
of them is a minor residing in the
property,
the
court
cannot
subject the property to partition
and the co-ownership cannot be
dissolved until the minor shall be
capacitated. That would be a
good defense in a complaint for
partition.
FC Art. 159. The family
home shall continue
despite the death of
one or both spouses
or of the unmarried
head of the family for
a period of ten years
or for as long as there

is a minor beneficiary,
and the heirs cannot
partition
the
same
unless the court finds
compelling
reasons
therefor. This rule shall
apply
regardless
of
whoever
owns
the
property or constituted
the family home.
I
suggest
that
you
read
provisions of the NCC on the
propriety of a partition among
co-heirs if one of them is a minor
who is residing in the property
owned in common. It seems that
the co-ownership shall continue
to exist for 10 years if there is a
minor residing in that property.
That property cannot be simply
be ordered to be divided by the
court, even if there is a complaint
for partition.
NCC
Articles
related
to
partition among heirs Art.
238. Upon the death of the
person who has set up the family
home, the same shall continue,
unless he desired otherwise in
his will. The heirs cannot ask
for its partition during the
first ten years following the
death
of
the
person
constituting the same, unless
the court finds powerful
reasons therefor.
Art. 494. No co-owner shall be
obliged to remain in the coownership. Each co-owner may
demand at any time the partition
of the thing owned in common,
insofar as his share is concerned.
Nevertheless, an agreement
to keep the thing undivided
for a certain period of time,
not exceeding ten years,
shall be valid. This term may
be
extended
by
a
new
agreement.
184 | R e m e d i a l
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A donor or testator may prohibit

partition for a period which shall
not exceed twenty years.
Neither shall there be any
partition when it is prohibited by
law.
No prescription shall run in favor
of a co-owner or co-heir against
his co-owners or co-heirs so long
as he expressly or impliedly
recognizes the co-ownership.
SECTION 6. - Partition
Distribution of the Estate
and
SUBSECTION 1. - Partition
Art. 1078. Where there are two or
more heirs, the whole estate of
the decedent is, before its
partition, owned in common by
such heirs, subject to the
payment
of
debts
of
the
deceased. (n)
Art. 1081. A person may, by an
act inter vivos or mortis causa,
entrust the mere power to make
the partition after his death to
any person who is not one of the
co-heirs.
The provisions of this and of the
preceding
article
shall
be
observed even should there be
among the co-heirs a minor or a
person subject to guardianship;
but the mandatory, in such case,
shall make an inventory of the
property of the estate, after
notifying
the
co-heirs,
the
creditors, and the legatees or
devisees.
Art. 1082. Every act which is
intended to put an end to
indivision among co-heirs and
legatees or devisees is deemed
to be a partition, although it
should purport to be a sale, and
exchange, a compromise, or any
other transaction.
Art. 1083. Every co-heir has a
right to demand the division of
the estate unless the testator
should have expressly forbidden
its partition, in which case the
period of indivision shall not
exceed
twenty
years
as
provided in article 494. This
power of the testator to prohibit
division applies to the legitime.
Even though forbidden by the
testator,
the
co-ownership
terminates when any of the
causes for which partnership is
dissolved takes place, or when
the court finds for compelling
reasons that division should be
ordered, upon petition of one of
the co-heirs.
Art. 1084. Voluntary heirs
upon whom some condition
has been imposed cannot
demand a partition until the
condition has been fulfilled;
but the other co-heirs may
demand it by giving sufficient
security for the rights which
the former may have in case
the
condition
should
be
complied with, and until it is
known that the condition has
not been fulfilled or can
never be complied with, the
partition shall be understood
to be provisional.
FC Art. 159. The family home
shall continue despite the death
of one or both spouses or of the
unmarried head of the family for
a period of ten years or for as
long as there is a minor
beneficiary, and the heirs
cannot partition the same unless
the
court
finds
compelling
reasons therefor. This rule shall
apply regardless of whoever
owns the property or constituted
the family home.
Note: Family Code is a
subsequent law, hence the
limit is 10 years.
Unlawful
Detainer
and
Forcible Entry (Rule 70)
Read NCC articles on lease
(especially those relevant to UD)
LEASE
Art. 1669. If the lease was made
for a determinate time, it ceases
upon the day fixed, without the
need of a demand.
Art. 1670. If at the end of the
contract the lessee should
continue enjoying the thing
leased for fifteen days with

the
acquiescence
of
the
lessor, and unless a notice to
the contrary by either party
has previously been given, it
is understood that there is an
implied new lease, not for the
period
of
the
original
contract, but for the time
established in Articles 1682
and 1687. The other terms of
the original contract shall be
revived.
Art. 1671. If the lessee
continues enjoying the thing
after the expiration of the
contract, over the lessor's
objection, the former shall be
subject to the responsibilities
of a possessor in bad faith.
Art. 1672. In case of an implied
new
lease,
the
obligations
contracted by a third person for
the security of the principal
contract shall cease with respect
to the new lease.
Art. 1673. The lessor may
judicially eject the lessee for any
of the following causes:
(1) When the period agreed
upon, or that which is fixed for
the duration of leases under
Articles 1682 and 1687, has
expired;
(2) Lack of payment of the price
stipulated;
(3) Violation of any of the
conditions agreed upon in the
contract;
(4) When the lessee devotes the
thing leased to any use or
service not stipulated which
causes the deterioration thereof;
or if he does not observe the
requirement in No. 2 of Article
1657, as regards the use thereof.
The ejectment of tenants of
agricultural lands is governed by
special laws.
Art. 1674. In ejectment cases
where an appeal is taken the
remedy granted in Article 539,
second paragraph, shall also
apply, if the higher court is
satisfied that the lessee's appeal
is frivolous or dilatory, or that the
lessor's appeal is prima facie
meritorious. The period of ten
185 | R e m e d i a l
Law
Review
days referred to in said article

shall be counted from the time
the appeal is perfected.
of property. The recovery of

money is only an incident to the
principal action.
Art. 1675. Except in cases stated

in Article 1673, the lessee shall
have a right to make use of the
periods established in Articles
1682 and 1687.
Q: What is forcible entry?

A: It is entry effected by force,
intimidation, threat, strategy, or
stealth; the action is to recover
possession founded upon illegal
possession from the beginning.
Art. 1147. The following actions

must be filed within one year:
(1) For forcible entry and
detainer;
(2) For defamation.
verified complaint. (Sec. 1)
Rule 70 FORCIBLE ENTRY (FE)

AND UNLAWFUL DETAINER
(UD)
Rule 70 contains 2 special civil
actions which are different from
one another, FE and UD.
FE and UD are special civil
actions cognizable exclusively in
the MTC following summary
procedures. The provisions of
Rule
79
are
practically
a
reproduction
of
summary
procedures. They are initiated by
a complaint filed in the MTC.
Both are real action, but we do
not follow BP 129 which uses the
assessed value to determine
jurisdiction. Under BP 129, real
actions are cognizable by an MTC
or an RTC depending upon the
assessed value of the real
property involved. FE and UD are
cognizable by an MTC regardless
of the assessed value of the
property or other collateral
issues that could be raised like
unpaid rentals or recovery of
damages. So if there is a
complaint for unlawful detainer
with a claim for back rentals
amounting to 1M, the case is still
cognizable by the MTC. In certain
instances,
the
landlord/land
owner is interested only in the
recovery of the back rentals. And
if he decides to file a complaint
solely for recovery of the 1M
back rentals, then the case is
cognizable in the RTC, since the
case is no longer one for unlawful
detainer
UD, just like FE, is for the
recovery of physical possession

a valid forcible entry?
A:
1. A person is deprived of
possession of any land or
building by force, intimidation,
threat, strategy, or stealth; and
2. Action is brought within 1 year
from the unlawful deprivation.
(Sec. 1)
Q: What are the questions to
be resolved in an action for
forcible entry?
A:
1. Who has actual possession
over the real property;
2. Was the possessor ousted
therefrom within one year from
the filing of the complaint by
force,
intimidation,
strategy,
threat or stealth; and
3. Does the plaintiff ask for the
restoration of his possession
(Dizon v. Concina, G.R. No.
23756, Dec. 27, 1969)
Q: What is unlawful detainer?
A: It is unlawful detention by a
person
who
has
acquired
possession rightfully, but who
detains the property after the
right to keep possession has
ended.
verified complaint. (Sec. 1)
a valid unlawful detainer?
A:
1. Possession of any land or
building is unlawfully withheld
from a lessor, vendor, vendee, or
other person after the expiration
or termination of the right to hold
possession by virtue of any
contract express or implied;
2. Action is brought within 1 year

after such unlawful deprivation or
withholding of possession; and
3. Demand to pay or comply with
the conditions of the lease and to
vacate is made upon the lessee.
(Sec. 1)
Q: Is formal contract a
prerequisite
in
unlawful
detainer?
A: The existence of a formal
contract is not necessary in
unlawful detainer. Even if there is
no formal contract between the
parties, there can still be an
unlawful
detainer
because
implied contracts are covered by
ejectment
proceedings.
Possession by tolerance creates
an implied promise to vacate the
premises upon the demand of
the owner (Peran v. CFI of
Sorsogon, G.R. No. 57259, Oct.
13, 1983).
Q: Does the amount of rents
and damages prayed for in an
action for forcible entry and
unlawful detainer affect the
jurisdiction of the courts?
A: No. The amount of rents and
damages claimed does not affect
jurisdiction of the MTCs because
the same are only incidental or
accessory to the main action
(Lao SengHian v. Lopez, G.R. No.
L-1950, May 16, 1949).
Note: If only rents or damages
are claimed in an ordinary action,
the action is personal and the
amount
claimed
determines
whether it falls within the
jurisdiction of the RTC or the
MTC.
Q: Distinguish forcible entry
from unlawful detainer.
A:
Forcible
Unlawful
Entry
Detainer
(Detentacio
(Desahucio)
n)
Possession of Possession is
the land by inceptively
the defendant lawful but it
is
unlawful becomes
from
the illegal
by
beginning as reason of the
he
acquires termination of
possession by his right to
force,
the
intimidation,
possession of
186 | R e m e d i a l
Law
Review
strategy,
threat
or stealth.
No
previous
demand
for
the defendant
to vacate the
premises
is
necessary.
The
plaintiff
must
prove
that he was in
prior physical
possession of
the premises
until he was
deprived
thereof by the
defendant.
The 1 year
period
is
generally
counted from
the date of
actual
entry
on the land.
the property
under
his
contract with
the plaintiff.
Demand
is
jurisdictional
if the ground
is
nonpayment
of
rentals
or
failure
to
comply
with
the
lease
contract.
The
plaintiff
need not have
been in prior
physical
possession.
Period
is
counted from
the date of
last demand
or last letter
of demand.
DISTINGUISHED
FROM
ACCION
PUBLICIANA
AND
ACCION REINVINDICATORIA
Q: What are the possessory
actions on real property?
A:
Accion
Accion
Accion
Interdic Publici
Reinvin
tal
ana
dicatori
a
Summar A
An
y action plenary
action
for the action
for the
recovery for the recover
of
recovery y
of
physical
of
the owners
possessi real
hip,
on
right of which
where
possessi necess
the
on when arily
disposse the
include
ssion
disposse s
the
has not ssion
recover
lasted
has
y
of
for
lasted
posses
more
for
sion.
than 1 more
year.
than 1
year.
All cases
of
forcible
entry
and
unlawful
detainer
irrespect
ive
of
the
amount
of
damage
s
or
unpaid
rentals
sought
to
be
recovere
d should
be
brought
to
the
MTC.
RTC has
jurisdicti
on if the
value of
the
property
exceeds
P20,000
or
P50,000
in Metro
Manila.
MTC has
jurisdicti
on if the
value of
the
property
does not
exceed
the
above
amounts
.
RTC has
jurisdicti
on if the
value of
the
property
exceeds
P20,000
or
P50,000
in Metro
Manila.
MTC has
jurisdicti
on if the
value of
the
property
does not
exceed
the
above
amounts
.
Usually in UD, the contract

involved is a contract of lease.
There is a land lord-tenant
relationship, the tenant does not
pay rental, there is a written
demand to vacate and to pay
back rentals, and if tenant fails to
pay, then there could be a
complaint for UD.
But, these remedies appear to
have been modified by the
decisions of the SC. For instance,
in a past case, about 30 years
ago, there was a case involving a
contract
of
lease
on
a
commercial property. There was
a stipulation in the contract
which states that if the tenant
does
not pay rentals, for
instance, 3 months, the land lord
will send a letter demanding that
the tenant must vacate the
property and pay the back
rentals for 3 months. If the
tenant still failed to pay, the land
lord can extra-judicially take over
the
property.
Under
that
stipulation, the land lord does not
have to go to court in order to
recover physical possession of
the property. What the land lord
will do is to go to the premises,
throw out the things of the
tenant, change the locks of the
doors of the property, and accept
a new tenant. When the tenant
challenged the validity of the

stipulation in the SC, the SC at
that
time
held
that
the
stipulation was valid. The SC held
that the contract was one of
lease with a resolutory condition.
When the tenant fails to pay, he
loses his right to possess the
property.
The latest decision involving this
kind of stipulation in a contract of
lease was last 2009/10, one of
the parties was By the Bay, Inc. It
also involved a lease of a
commercial
property,
with
essentially the same set of facts
involving the same stipulation,
that the land lord can take over
the property extra-judicially if
tenant failed to pay upon written
demand to pay back rentals and
vacate. The SC affirmed it past
decision, that the lease contract
is
one
with
a
resolutory
condition.
As of now, it seems that if you
are lawyering for the land lord,
and you want to protect the land
lord without a need to go to court
file a case for unlawful detainer,
all you have to do is to
incorporate a stipulation in the
contract of lease authorizing the
land lord to take over extrajudicially the possession of the
property. SC said this is a valid
stipulation, there is nothing
wrong with it. Under our system,
a contract is the law between the
parties. There is nothing wrong if
the tenant agrees in a contract of
lease to be ejected without a
court order by virtue of a written
stipulation in the contract of
lease. These contracts have been
accepted as valid by the SC. So,
such stipulation is a valid
stipulation in a lease contract.
But in the event that the contract
of lease does not contain such
stipulation, if the tenant has
failed to pay rentals for several
months, the only recourse of the
land lord is to file a complaint
before the MTC for unlawful
detainer.
Supposing the land lord of a
contract
without
that
stipulation physically enters
the
property,
ejects
the
187 | R e m e d i a l
Law
Review
tenant, throws out the things

of the tenant and starts to
occupy the property. The land
lord is now in possession of
the property. Can the tenant
file a case against the land
lord for forcible entry?
Yes. When the land lord forces his
way into the rented property
(subject to a contract of lease
without the resolutory condition),
and the land lord acquired the
property
through
force,
intimidation, strategy or stealth,
that is forcible entry.
Is there anything improper if
the tenant files a case for
unlawful detainer or forcible
entry against the owner of
the property?
There is nothing wrong from the
legal point of view, because what
is involved in unlawful detainer
or forcible entry is not ownership,
it is physical possession of the
property. So the defendant in a
case for FE or UD may be the
owner of the property when he is
in unlawful possession of his own
property, depending upon the
circumstances of the case.
What makes FA and UD
special as a special civil
action?
FE and UD are governed by
summary procedures. But that
fact alone is not the most
significant reason why FE and UD
are characterized as special civil
actions. It is due to the provision
of immediate enforcement of
a decision in favor of the
plaintiff under Sec. 19 Rule
70 that makes FE and UD a
special
civil
action.
The
decision
is
immediately
executory,
although
it
is
appealable.
But
even
if
appealed, the decision is
immediately executory. The
appeal shall not stop the court in
performing in its ministerial duty
to execute the decision in a case
of FE or UD. The execution of
the decision here is a matter
of right on the part of the
plaintiff, and not a matter of
discretion of the court.
Why the radical change from

the procedural rules that we
had in ordinary civil actions?
This is because of the provision
found in Section 4 Rule 39.
Under Rule 39, the general
principle is that we cannot
execute as a matter of right a
judgment that has not been
entered. Generally, what can be
executed as a matter of right is a
judgment duly entered.
There is an exception to this
general rule in Section 4 Rule 39,
rendering
the
judgment
as
executory as a matter of right,
although appealable. The first
sentence in Section 4 states:
Judgments
in
actions
for
injunction,
receivership,
accounting and support, and
such other judgments as are now
or may hereafter be declared to
be immediately executory, shall
be
enforceable
after
their
rendition and shall not be stayed
by an appeal taken therefrom,
unless otherwise ordered by the
trial court. There are very few
judgments that are executory as
a matter of right, and the phrase
and such other judgments as
are now or may hereafter be
declared to be immediately
executory includes FE and
UD.
SEC. 4. Judgments not
stayed
by
appeal.
Judgments in actions
for
injunction,
receivership,
accounting
and
support,
and
such
other judgments as
are
now
or
may
hereafter be declared
to
be
immediately
executory,
shall
be
enforceable after their
rendition and shall not be
stayed by an appeal
taken therefrom, unless
otherwise ordered by the
trial court. On appeal
therefrom, the appellate
court in its discretion
may make an order
suspending,
modifying,
restoring or granting the
injunction, receivership,
accounting, or award of
support.
The stay of execution
shall be upon such terms
as to bond or otherwise
as may be considered
proper for the security or
protection of the rights of
the adverse party.
The fact is that a decision in
favor of the plaintiff is
immediately executory as a
matter of right, although the
aggrieved defendant could
immediately appeal the said
decision,
is
there
no
contradiction in terms? Why?
There is no contradiction. This is
because the Rules do not say
that
simply
because
the
defendant has appealed from the
judgment, the MTC cannot go on
with execution of its judgment.
Thus, although appealable, the
decision
is
immediately
executed.
If defendant does not want to be
evicted right away on appeal,
Rule 70 requires the defendant
can file supersideas bond duly
approved by the MTC [current
rentals earned, referring to the
preceding month, according to
the contract of lease or the terms
of the decision, plus cost of suit]
to the cashier of the RTC. While
the case is on appeal, defendant
should keep on depositing said
bond (monthly basis if rent is
paid monthly according to the
contract of lease). Failure to do
so, he will be evicted, but the
appeal continues.
How is the execution of

judgment stayed?
A: Defendant must take the
following steps to stay the
execution of the judgment:
1. Perfect an appeal;
2. File a supersideas bond to pay
for the rents, damages and costs
accruing down to the time of the
judgment appealed from; and
3. Deposit periodically with the
RTC, during the pendency of the
appeal, the adjudged amount of
rent due under the contract or if
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there be no contract, the

reasonable value of the use and
occupation of the premises (Sec.
19, Rule 70).
Q:
When
is
demand
necessary?
A:
Unless
there
exists
a
stipulation to the contrary, an
unlawful detainer case shall be
commenced
only
after
the
demand to pay or comply with
the conditions of the lease and to
vacate is made upon the lessee
(Sec. 2). The requirement for a
demand implies that the mere
failure of the occupant to pay
rentals or his failure to comply
with the conditions of the lease
does not ipso facto render his
possession of the premises
unlawful. It is the failure to
comply with the demand that
vests upon the lessor a cause of
action.
Q: In what form should the
demand be made?
A: The demand may be in the
form of a written notice served
upon the person found in the
premises. The demand may also
be made by posting a written
notice on the premises if no
person can be found thereon
(Sec. 2). It has been ruled,
however, that the demand upon
a tenant may be oral (Jakihaca
vs. Aquino, 181 SCRA 67).
Sufficient evidence must be
adduced to show that there was
indeed a demand like testimonies
from disinterested and unbiased
witnesses.
The RTC is the appellate
court in FE and UD cases. If
the RTC decides against
appellant/tenant
and
the
tenant appealed in the CA,
what can be done to prevent
eviction on appeal to the CA
under Rule 65?
The filing of a supersideas bond
cannot be applicable this time.
This process will apply if the
decision appealed upon is a
decision of the MTC. If the RTC
decides in favor of the land lord,
the judgment will still be
executed as a matter of right,
and eviction can be had. The
only way to prevent the

immediate eviction of the
defendant tenant on appeal
to the CA is to apply for a
TRO or writ of preliminary
injunction in the CA against
the eviction of the tenant,
subject to filing of a bond if
required by the CA.
There are mechanisms resorted
to by a tenant in order to delay
an action to recover possession
of property
What can the tenant file to
protect his right to possess?
~In case of UD, the tenant can
file a case for reconveyance or
reversion of tenanted property in
the RTC
~He can also file a case for
Quieting of Title in the RTC
~Complaint for Recovery of
Possession in the RTC
The tenant filed a case for
reconveyance of the property
subject to the lease in the
RTC. During the pendency of
the case, the land lord filed a
case for FE or UD to recover
of possession of the property
subject to the lease. The
tenant asked the RTC to issue
a writ of injunction or TRO
against the MTC, in order to
prevent it from trying the
case for FE or UD. Is this
allowed?
No. This is a settled issue. The
tenant shall not be allowed to
cause the injunction of the case
in the MTC. Although these 2
cases filed in different courts
involve the same property, they
do not involve the same issue. FE
and UD involve the issue of
physical
possession
of
the
property. In reconveyance or
quieting of title, the issue is also
possession, but it is what is
called in the NCC as a real right
of possession, not mere physical
possession of the property. The
SC had made it very clear that
we can have a case for FE or UD
filed by the land lord against the
tenant pending in the MTC, and
at the same time, a case for
reconveyance to reacquire the
same property subject to the
lease pending before the RTC. SC
held that there is no litis

pendencia here. Also, RTC cannot
enjoin MTC from trying the
complaint for FE or UD, as MTC
has exclusive jurisdiction over
cases of FE or UD.
Can
the
court
grant
injunction while the case is
pending?
A:
The
court
may
grant
preliminary
injunction,
in
accordance with the provisions of
Rule
58,
to
prevent
the
defendant
from
committing
further acts of dispossession
against the plaintiff. A possessor
deprived
of
his
possession
through forcible entry or unlawful
detainer may, within five (5) days
from the filing of the complaint,
present a motion in the action for
forcible
entry
or
unlawful
detainer for the issuance of a writ
of
preliminary
mandatory
injunction to restore him in his
possession. The court shall
decide the motion within thirty
(30) days from the filing thereof
(Sec. 15, Rule 70).
Note: Prior demand to vacate
and to pay is jurisdictional in
unlawful detainer, but not in all
cases.
If the tenant had failed to pay
rents for 3 months, and the land
lord immediately filed a case for
UD without a prior demand to
vacate and to pay, the MTC does
not acquire jurisdiction over the
case. A demand to vacate and to
pay is jurisdictional in FE or UD.
But not in all cases.
IMPLIED NEW LEASE
In
the
NCC
there
are
provisions
governing
the
relationship of land lord and
tenant once the lease has
expired. If the tenant had
remained in unlawful possession
by tenant was retained after 15
days from the end of the lease,
there is an implied new lease,
but such implied new lease will
be on a month-to-month, day-today or quarterly basis, depending
on the previous contract of lease
as to period of payment.
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Art. 1670. If at the

end of the contract
the
lessee
should
continue enjoying the
thing
leased
for
fifteen days with the
acquiescence of the
lessor, and unless a
notice to the contrary
by either party has
previously been given,
it is understood that
there is an implied
new lease, not for the
period of the original
contract, but for the
time established in
Articles
1682
and
1687. The other terms
of
the
original
contract
shall
be
revived.
At the end of the lease contract
until the 15th day, the tenant is
deemed to be in unlawful
possession
of
the
leased
property. There is no need for the
land lord to send a demand to
vacate to make the tenant an
unlawful
possessor,
as
he
became so from the operation of
the NCC. Within the 15-day
period, the land lord can properly
file a case for unlawful detainer
against the tenant by virtue of
the termination of the lease. The
NCC itself calls the tenant as an
unlawful possessor if he does not
surrender the property after the
lease has already terminated.
The NCC has a caveat. If the
tenant, after the termination of
the lease, remains in possession
of the property for the next 30
days from the termination of the
lease, and there is no action filed
by the land lord in court, the
unlawful possession by the
tenant will be reconverted to a
lawful possession because of the
implied new lease. The implied
new lease is not for the same
period stipulated in the old
contract of lease. It will be on a
month-to-month, day-to-day or
quarterly basis, depending on the
previous contract of lease as to
period of payment
Propriety of the awarding of
damages in FE and UD.
There
is
a
conflict
in
jurisprudence as to extent of
damages that could be awarded.
The Section 1 of Rule 70
authorizes awarding of damages,
but it does not place a limit on
the kind of damages to be
awarded. In Sec. 17, there is a
clear statement as to award of
damages being a reasonable
amount as compensation for the
use of the property if no amount
is stipulated in the lease
contract.
SECTION 1. Who may
institute proceedings,
and when.Subject to
the provisions of the next
succeeding section, a
person deprived of the
possession of any land or
building
by
force,
intimidation,
threat,
strategy, or stealth, or a
lessor, vendor, vendee,
or other person against
whom the possession of
any land or building is
unlawfully withheld after
the
expiration
or
termination of the right
to hold possession, by
virtue of any contract,
express or implied, or the
legal representatives or
assigns of any such
lessor, vendor, vendee,
or other person may at
any time within one (1)
year after such unlawful
deprivation
or
withholding
of
possession,
bring
an
action in the proper
Municipal
Trial
Court
against the person or
persons
unlawfully
withholding or depriving
of possession, or any
person
or
persons
claiming under them, for
the restitution of such
possession, together
with
damages
and
costs.
SEC. 17. Judgment.If
after trial the court finds
that the allegations of
the complaint are true, it
shall render judgment in
favor of the plaintiff for
the restitution of the

premises,
the
sum
justly due as arrears
of
rent
or
as
reasonable
compensation for the
use and occupation of
the
premises,
attorneys fees and
costs. If it finds that said
allegations are not true,
it shall render judgment
for the defendant to
recover his costs. If a
counterclaim
is
established, the court
shall render judgment for
the sum found in arrears
from either party and
award costs as justice
requires.
There is a decision by the SC
which held that Section 1 should
be implemented if fully proven in
court. Moral damages, temperate
damages, as well as other forms
of damages may be awarded
beside interest and the actual
rent.
The greater number of SC
decisions adhere to Section 17
Rule 70. There is a limit as to the
award of damages that could be
had in MTC, and the MTC had
always followed strictly the
provisions of Section 17. The
award of damages is based on
the amount stated in the
contract as rentals or if none, a
reasonable amount for the use of
the
property
during
the
tenantship.
In what instances may the
court
resolve
issue
of
ownership?
A: When the defendant raises
the issue of ownership, the court
may resolve the issue of
ownership
only
under
the
following conditions:
(a) When the issue of possession
cannot be resolved without
resolving the issue of ownership;
and
(b) The issue of ownership shall
be resolved only to determine
the issue of possession (Sec. 16).
Note: The assertion by the
defendant of ownership over the
190 | R e m e d i a l
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disputed property does not serve

to divest the inferior court of its
jurisdiction.
The
defendant
cannot deprive the court of
jurisdiction by merely claiming
ownership
of
the
property
involved (Rural Bank of Sta.
Ignacia vs. Dimatulac, 401 SCRA
742; Perez vs. Cruz, 404 SCRA
487).If the defendant raises the
question of ownership and the
issue of possession cannot be
resolved without deciding the
question of ownership, the issue
of ownership shall be resolved
only to determine the issue of
possession (Sec. 3, RA 7691).
Rule 71 CONTEMPT
What is contempt?
A: It is a defiance of the
authority, justice or dignity of the
court; such conduct as tends to
bring
the
authority
and
administration of the law into
disrespect or to interfere with, or
prejudice
litigant
or
their
witnesses during litigation (Halili
v. CIR, G.R. No. L-24864, Nov. 19,
1985)
verified petition with supporting
particulars and certified true
copies of documents or papers
involved therein (Sec. 4).
Q: What are the kinds of
contempt?
A:
1. Direct or indirect, according to
the manner of commission.
2. Civil or Criminal, depending on
the nature and effect of the
contemptuous act.
Q: Distinguish direct from
indirect contempt?
A:
Direct
Indirect
Contempt
Contempt
Committed in Not
the presence committed in
of or so near the presence
a court.
of the court.
Summary
in Punished after
nature
being charged
and heard
If committed IF
against:
COMMITTED
1. RTC fine AGAINST:
not exceeding 1. RTC FINE
P2,000
or NOT
imprisonment
not exceeding
10 days or
both.
2. MTC fine
not exceeding
P200
or
imprisonment
not exceeding
1
day,
or
both.
Remedy:
Certiorari
or
prohibition (or
you
could
follow the old
jurisprudence,
file a petition
for
habeas
corpus on the
ground
that
the
confinement
is
illegal.
Dean Jara)
AKA
Contempt in
facie
curiae
(in front of the
judge)
Distinguish
contempt
contempt.
A:
Criminal
Contempt
Punitive
in
nature
Purpose is to
preserve the
courts
authority and
to
punish
disobedience
of its orders
Intent
is
necessary
State is the
real
prosecutor
EXCEEDING
P30,000
OR
IMPRISONMEN
T
NOT
EXCEEDING 6
MONTHS OR
BOTH
2. MTC fine
not exceeding
P5,000
or
imprisonment
not exceeding
1 month or
both.
Remedy:
Appeal
(by
notice
of
appeal)
AKA
Constructive
contempt
from
criminal
civil
Civil
Contempt
Remedial
in
nature
Purpose is to
provide
a
remedy for an
injured suitor
and to coerce
compliance
with an order
for
the
preservation
of the rights
of
private
persons
Intent is not
necessary
Instituted by
the aggrieved
party or his
successor or
Proof required
is
proof
beyond
reasonable
doubt.
If accused is
acquitted,
there can be
no appeal.
someone who
has pecuniary
interest in the
right to be
protected
Proof required
is more than
mere
preponderanc
e of evidence
If judgment is
for
respondent,
there can be
an appeal
Q: What is the purpose of the

power to contempt?
A: The reason for the power to
punish for contempt is that
respect of the courts guarantees
the stability of their institution.
Without such guarantee, said
institution would be resting on
shaky foundation (Cornejovs.Tan,
85 Phil. 772).
contempt power?
A: The power to punish for
contempt is inherent in all courts;
its existence is essential to the
preservation of order in judicial
proceedings
and
to
the
enforcement
of
judgments,
orders and mandates of the
courts, and, consequently, to the
due administration of justice.
Q: What are the dual aspects
on the power to punish
contempt?
A:
1.
Primarily,
the
proper
punishment of the guilty party
for his disrespect to the courts;
and
2. Secondarily, his compulsory
performance of some act or duty
required of him by the court and
which he refuses to perform.
Contempt is the one that we
can consider as a special civil
action
for
the
following
reasons:
Contempt is a special civil
action where one can be sent
to jail whereas the case is
civil in character.
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There is no need to file a

case, especially in direct
contempt. In ordinary cases, if
there is no complaint, the
contender does not know who
the plaintiff is, and he is
appearing before a court before a
plaintiff can be identified. But in
direct contempt, it is clear that
the plaintiff is the court. A
contender would practically have
no chance to win in this instance.
The complainant is the court,
and the one who will decide
the
case
is
still
the
complaining court.
What are the acts which are
deemed
punishable
as
indirect contempt?
A:After a charge in writing has
been filed, and an opportunity
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
officer of a court in
performance
of
official duties or in
official transactions;
an
the
his
his
2. Disobedience of or
resistance to a lawful
writ, process, order, or
judgment of a court,
including the act of a
person who, after being
dispossessed or ejected
from any real property by
the judgment or process
of
any
court
of
competent
jurisdiction,
enters or attempts or
induces another to enter
into or upon such real
property, for the purpose
of executing acts of
ownership or possession,
or in any manner disturbs
the possession given to
the person adjudged to
be entitled thereto;
3. Any abuse of or any
unlawful
interference
with the processes or
proceedings of a court
not constituting direct

contempt under section 1
of this Rule;
punish
contemptuous
acts.
(Nazareno v. Barnes, G.R. No. L59072, Apr. 25, 1984)
4. Any improper conduct

tending,
directly
or
indirectly, to impede,
obstruct, or degrade the
administration of justice;
The court does not declare the

respondent in default since the
proceeding partakes the nature
of
a
criminal
prosecution
(Fuentes v. Leviste, G.R. No. L47363, Oct. 28, 1982).
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 (Sec. 3).
Note: Failure by counsel to
inform the court of the death of
his client constitutes indirect
contempt within the purview of
Sec. 3, Rule 71, since it
constitutes an improper conduct
tending
to
impede
the
administration of justice.
Q: How may an action for
indirect
contempt
be
commenced?
A:
1. By order or other formal
charge by the court requiring the
respondent to show cause why
he should not be punished for
contempt (motu propio); or
(Show cause order)
2. By a verified petition with
supporting
particulars
and
certified true copies of the
necessary documents and papers
(independent action) (Sec. 4).
(Separate petition)
Note: The first procedure applies
only when the indirect contempt
is committed against a court or
judge possessed and clothed
with contempt powers.
The second mode applies if the
contemptuous
act
was
committed not against a court or
a judicial officer with authority to
Indirect contempt is initiated

through:
1. show cause order
2. independent action, which the
court may consolidate with the
main case
If there is a separate petition for
indirect contempt filed, although
it arises out of a pending case or
is related to a pending case, the
petition is still an independent
case, and what the court usually
does is to consolidate the
pending case with the petition to
cite respondent in contempt of
court.
Penalty in Contempt Cases
The penalty may be payment of
fine or imprisonment.
Q: What are the procedural
requisites before the accused
may be punished for indirect
contempt?
A:
1. A charge in writing to be filed;
2. An opportunity for the person
charged to appear and explain
his conduct; and
3. To be heard by himself or
counsel. (Regalado v. Go, G.R.
No. 167988, Feb. 6, 2007)
NOTE: The rules on contempt
under Rule 71 apply to contempt
committed against persons or
entities exercising quasi-judicial
functions or in case there are
rules for contempt adopted for
such bodies or entities pursuant
to law, Rule 71 shall apply
suppletorily (Sec 12, Rule 71)
Because of the nature of direct
contempt proceedings where
there is no initiatory proceeding
filed,
the
remedy
of
the
contender is different from the
192 | R e m e d i a l
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remedy of the contender

indirect proceedings.
in
Citation for indirect contempt

is not immediately executory,
according
to
current
jurisprudence. That is why there
is a remedy provided for in the
Rules
Q: Lawyer Mendoza, counsel
for the accused in a criminal
case, was cited for direct
contempt by Judge Tagle and
was sentenced to 10 days
imprisonment.
Lawyer
Mendoza was placed in prison
immediately.
Lawyer
Mendoza
manifested
his
readiness to post a bond and
to appeal the order by
certiorari
to
stay
its
execution but Judge Tagle
said
that
the
order
is
immediately
executory.
Is
Judge Tagle correct?
A: No. An order of direct
contempt is not immediately
executory or enforceable. The
contender must be afforded a
reasonable remedy to extricate
or purge himself of the contempt.
Under Sec. 2, Rule 71, of the
Rules
of
Court,
a
person
adjudged in direct contempt by
any court may not appeal
therefrom, but may avail himself
of the remedies of certiorari or
prohibition. The execution of the
judgment shall be suspended
pending
resolution
of
such
petition, provided such person
files a bond fixed by the court
which rendered the judgment
and conditioned that he will
abide by and perform the
judgment should the petition be
decided against him (Tiongco v.
Judge Salao, A.M. No. RTJ-062009, July 27, 2006).
Contenders
remedy
in
indirect
contempt
is
an
ordinary appeal as in criminal
cases. In indirect contempt, if
contender is found guilty, he has
the right to appeal.
In
Direct
Contempt,
the
remedy is Rule 65 or Habeas
Corpus.
BP 129 has done away with bond

in cases of contempt. But, a
bond is still required to be
posted in APPEALING the
judgment of contempt in order
to suspend the execution
thereof.
What is the remedy against
direct
contempt
and
its
penalty?
A:
1.
The
penalty
for
direct
contempt depends upon the
court
which
the
act
was
committed;
a. If the act constituting
direct
contempt
was
committed against an RTC
or a court of equivalent or
higher rank, the penalty is a
fine not exceeding 2,000
pesos or imprisonment
not exceeding 10 days, or
both;
b. If the act constituting
direct
contempt
was
committed
against
a
lower court, the penalty is
a fine not exceeding 200
pesos or imprisonment
not exceeding one (1)
day, or both(Sec. 1);
c. If the contempt consists
in the refusal or omission
to do an act which is yet
within the power of the
respondent to perform,
he may be imprisoned by
order
of
the
court
concerned
until
he
performs it.
2. A person adjudged in direct
contempt
may
not
appeal
therefrom. His remedy is a
petition for certiorari or
prohibition (Rule 65) directed
against
the
court
which
adjudged
him
in
direct
contempt(Sec. 2). Pending the
resolution of the petition for
certiorari or prohibition, the
execution of the judgment for
direct contempt shall be
suspended. The suspension
however shall take place only
if the person adjudged in
contempt files a bond fixed
by the court which rendered
the judgment. This bond is
conditioned
upon
his
performance of the judgment

should the petition be decided
against him.
What is the remedy against
indirect contempt and its
penalty?
A:
1. The punishment for indirect
contempt depends upon the level
of the court against which the act
was committed;
(a) Where the act was
committed against an RTC
or a court of equivalent or
higher rank, he may be
punished by a fine not
exceeding 30,000 pesos
or
imprisonment
not
exceeding 6 months, or
both;
(b) Where the act was
committed
against
a
lower court, he may be
punished by a fine not
exceeding 5,000 pesos or
imprisonment
not
exceeding one month, or
both.
Aside
from
the
applicable penalties, if the
contempt consists in the
violation of a writ of
injunction, TRO or status
quo order, he may also 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(Sec.
7);
(c) Where the act was
committed
against
a
person
or
entity
exercising
quasi-judicial
functions,
the
penalty
imposed
shall
depend
upon the provisions of the
law which authorizes a
penalty
for
contempt
against such persons or
entities.
(2) The person adjudged in
indirect contempt may appeal
from the judgment or final
order of the court in the same
manner as in criminal cases.
The appeal will not however
have the effect of suspending
the judgment if the person
adjudged in contempt does
not file a bond in an amount
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fixed by the court from which

the appeal is taken. This bond
is
conditioned
upon
his
performance of the judgment or
final order if the appeal is
decided against (Sec. 11).
Quasi-judicial
bodies
that
have the power to cite
persons for indirect contempt
pursuant to Rule 71 of the
Rules of Court can only do so
by initiating them in the
proper RTC. It is not within
their
jurisdiction
and
competence to decide the
indirect contempt cases.
Q: May a non-party be held
for contempt?
A: No, unless he is guilty of
conspiracy with any one of the
parties in violating the courts
orders(DesaEnt., Inc. v. SEC, G.R.
No. L-45430, Sept. 30, 1982).
Q: Ray, through Atty. Velasco,
filed a complaint for quieting
of title against Chiz. Chiz,
however,
interposed
the
defense that the documents
relied upon by Ray and Atty.
Velasco were forged and
falsified. Finding that the
said documents were indeed
forged and falsified, Judge
Victoria cited Ray and Atty.
Velasco for direct contempt
and ordered them to serve 10
days of detention at the
Municipal Jail. Ray and Atty.
Velasco filed a motion for bail
and a motion to lift the order
of arrest. But they were
denied outright by Judge
Victoria. Is Judge Victoria
correct?
A: No. Direct contempt is a
contumacious act done facie
curiae and may be punished
summarily
without
hearing.
Indirect
or
constructive
contempt, in turn, is one
perpetrated outside of the sitting
of the court.
Here the use of falsified and
forged
documents
is
a
contumacious act. However, it
constitutes indirect contempt
not direct contempt. The
imputed use of a falsified
document, more so where the
falsity of the document is not

apparent on its face, merely
constitutes
indirect
contempt, and as such is
subject to such defenses as
the accused may raise in the
proper
proceedings.
Thus,
following Sec. 3, Rule 71, a
contender may be punished
only after a charge in writing
has been filed, and an
opportunity has been given
to the accused to be heard by
himself and counsel.
Moreover, settled is the rule that
a contempt proceeding is not
a civil action, but a separate
proceeding of a criminal
nature in which the court
exercises limited jurisdiction.
Thus, the modes of procedure
and the rules of evidence in
contempt proceedings are
assimilated
as
far
as
practicable to those adapted
to
criminal
prosecutions.
Thus, the judge erred in declaring
summarily that Ray and Atty.
Velasco are guilty of direct
contempt and ordering their
incarceration. He should have
conducted a hearing with notice
to Ray and Atty. Velasco (Judge
Espanol v. Formoso, G.R. No.
150949, June 21, 2007).
CONTEMPT AGAINST QUASIJUDICIAL BODIES
contempt
against
quasijudicial bodies?
A: The rules on contempt
apply to contempt committed
against persons or entities
exercising
quasi-judicial
functions or in case there are
rules for contempt adopted
for such bodies or entities
pursuant to law, Rule 71 shall
apply
suppletorily.
Quasijudicial bodies that have the
power to cite persons for indirect
contempt can only do so by
initiating them in the proper RTC.
It
is
not
within
their
jurisdiction and competence
to
decide
the
indirect
contempt cases. The RTC of
the place where contempt
has been committed shall
have jurisdiction over the
charges for indirect contempt

that may be filed(Sec. 12).
If one was found guilty of
contempt, it is possible other
laws or Rules may be applicable.
For example, a lawyer may be
sanctioned under the Code of
Professional Ethics. Other laws
may also apply in certain
instances although contender
was not found guilty of contempt.
Relate
this
to
the
modification under Rule 65. A
lawyer may be cited for indirect
contempt, even if there is no
show-cause
order,
at
the
discretion of the court. In Rule
65, under the principle of res
ipsa loquitur, the lawyer who
files a patently unmeritorious
pleading under Rule 65 can
be cited in indirect contempt,
even without a show cause
order.
In
execution
of
judgment,
Contempt is not a usual recourse
to execute a judgment. But,
contempt is the only recourse
whenever there is a writ or
process
(like
a
writ
of
mandamus or prohibition)
that is issued by the court
that
is
subsequently
disobeyed
by
the
contender/respondent. We do
not use contempt in Rule 39
when it comes to execution of
judgments for money or delivery
of property. But when the
judgment is about issues in
special civil actions, the only
remedy will be a citation for
contempt.
Q: When shall imprisonment
be imposed?
A:
When
the
contempt
consists in the refusal or
omission to do an act which
is yet in the power of the
respondent to perform, he
may be imprisoned by order
of the court concerned until
he performs it. Indefinite
incarceration
may
be
resorted
to
where
the
attendant circumstances are
such that the non-compliance
with the court order is an
utter
disregard
of
the
194 | R e m e d i a l
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authority of the court which

has then no other recourse but to
use its coercive power. When a
person or party is legally and
validly required by a court to
appear before it for a certain
purpose,
and
when
that
requirement is disobeyed, the
only remedy left for the court is
to use force to bring the person
or party before it.
Note:
The
punishment
is
imposed for the benefit of a
complainant or a party to a suit
who has been injured aside from
the need to compel performance
of the orders or decrees of the
court, which the contemnor
refuses to obey although able to
do so. In effect, it is within the
power
of
the
person
adjudged guilty of contempt
to set himself free.
Ordinar
y
Action
To
protect
or
enforce
a right
or
prevent
or
redress
a wrong
Involve
2
or
more
parties
plaintiff
and
defenda
nt
Governe
d
by
ordinary
rules,
supplem
ented
by
special
rules
Initiated
by
a
complai
nt, and
parties
respond
Special
Procee
ding
Involves
the
establis
hment
of
a
right,
status,
or fact
Special
Civil
Action
Civil
Action
subject
to
specific
rules.
May
involve
only one
party
only
petition
er
Involves
two
or
more
parties
Governe
d
by
special
rules,
supplem
ented
by
ordinary
rules
Initiated
by
a
petition
and
parties
respond
Ordinary
rules
apply
primaril
y
but
subject
to
specific
rules
Some
are
initiated
by
complai
nt, while
through
an
answer
through
an
oppositi
on
Heard
by
courts of
general
jurisdicti
on
Issues
or
disputes
are
stated in
the
pleading
s of the
parties
Adversa
rial
Heard
by
courts of
limited
jurisdicti
on
Issues
are
determi
ned by
law
Based
on
a
cause of
action
Not
adversar
ial
Not
based
on
a
cause of
action
(except
habeas
Corpus)
some
are
initiated
by
petition
proceedings, that petition should

also comply with jurisdictional
requirements on change of name
and correction of entries of the
records of the local civil registrar.
The 3 most important special
proceedings which are often the
source of bar questions, which
are asked usually, would be
settlement
of
estates
of
deceased
persons,
habeas
corpus (inclusive of Amparo and
Habeas Data) and the adoption.
Some
special
civil
action
have no
cause of
action
SPECIAL PROCEEDINGS
Do not rely so much in the
enumeration of the special
proceedings in our RoC as some
of them are no longer applicable.
Like constitution of a family
home,
there
is
no
such
proceeding now, a family home is
constituted now under the NCC
by operation of law. There is no
more
need
for
a
judicial
declaration to consider a home
as a family home. There is also
no more judicial recognition of
illegitimate children. This concept
has been changed also by the
FC, where recognition takes place
by operation of law.
Under the present set up, the
rules on adoption incorporates
two other special proceedings.
Thus presently, we can file a
petition for adoption, plus a
petition for change of name, plus
a petition for correction of entry.
But the rule is that if there is a
petition for adoption which
encompasses
tw0
other
What makes a proceeding a

special
proceeding
or
a
special
action
that
is
entertained by the court?
The definition given in the rules
is a very clear and simple
definition. A special proceeding is
one that is commenced for the
purpose of establishing a right,
status or a particular fact.
Intrinsic in this definition of
special proceedings therefore is
the
conclusion that special
proceedings generally are not
designed to be adversarial. There
is
no
contest
between
2
contending parties. All you have
to do is to look for the particular
fact or status or right which the
petitioner seeks to establish and
to be declared by the court.
SETTLEMENT OF ESTATES OF
DECEASED PERSONS
With respect to settlement of
estates in the concept of special
proceedings, we have to go back
to Rule 1 to appreciate the
meaning of a special proceeding.
At the end, the conclusion that
we derive from this special
proceeding is that there is a
person who is dead. The principal
fact that is sought to be
established in settlement of
estates first is that a person is
dead. We cannot settle the
estate of a person who is still
alive. But because settlement of
estate usually carries with it the
concept of probate of a will, there
is some complication because
under
the
NCC,
under
substantive law, a will can be
submitted for probate during the
lifetime of the testator. So, it is
not correct to assume, that when
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there is a petition for a probate

of a will, the testator is already
dead.
Under substantive law, the
testator himself, during his
lifetime, can file a petition in the
RTC for the probate of the will.
The complication arises because
when it is the testator who files a
petition for the probate of his
own will during his lifetime, and
that will is admitted to probate, it
is allowed by the RTC, that will be
the
end
of
the
probate
proceedings. There will be no
settlement of estates that will
follow. That is the only fact that
needs to be established in a
probate of a will while the
testator is still alive. What he
seeks from the court is a mere
declaration that the will has been
executed in accordance with the
formalities of the NCC. When the
will is admitted to probate, where
the petitioner is the testator
himself, the admission to probate
will mark the end of the special
proceedings. No settlement of
estate will follow.
Q: What is probate?
A: Probate is the act of proving
before a competent court the
due execution of a will by a
person
possessed
of
testamentary capacity, as well as
the approval thereof by said
court, (also known as Allowance
of Will).
Q: Why is probate necessary?
A:
To settle all questions
concerning the capacity of the
testator and the proper execution
of his will, irrespective of whether
its provisions are valid and
enforceable.
(Fernandez
v.
Dimagiba, G.R. No. L-23638, Oct.
12, 1967)
Q: What is the nature of a
probate proceeding?
A:
1. IN REM- It is binding upon the
whole world.
2. MANDATORY- No will shall
pass either real or personal
property unless it is proved and
allowed in the proper court.
Note: However, a will

may be sustained on the
basis of Article 1080 of
the NCC which states
that, if the testator
should make a partition
of his property by an act
inter vivos or by will,
such partition shall stand
in so far as it does not
prejudice the legitime of
the forced heir. (MangOy v. CA, L-27421, 1986)
3. IMPRESCRIPTIBLE- because
of the public policy to obey the
will of the testator
4. DOCTRINE OF ESTOPPEL
DOES NOT APPLY- the probate
of the will is mandatory. The
presentation and probate of the
will is required by public policy. It
involves
public
interest.
(Fernandez v. Dimagiba, L23638, 1967)
Q: Does the probate court
look into the intrinsic validity
of the will?
A:
GR: The jurisdiction of probate
court
is
limited
to
the
examination and resolution of the
extrinsic validity of a will.
XPNS: Principle of practical
considerations wherein the court
may pass upon the intrinsic
validity of the will:
1. If the case where to be
remanded for probate of the will,
it will result to waste of time,
effort, expense, plus added
anxiety; as in the case of
absolute preterition (Nuguid v.
Nuguid, G.R. No. L-23445, June
23, 1966).
2. Where the entire or all
testamentary dispositions are
void and where the defect is
apparent
on
its
face
(Nepomuceno v. CA, G.R. No. L62952, Oct. 9, 1985).
Note: Principle does not apply
where
the
meat
of
the
controversy is not the intrinsic
validity of the will.
NOTE: The decree of probate is
conclusive with respect to the
due execution of the will and it
cannot be impugned on any of
the grounds authorized by law,

except by fraud, in any separate
or
independent
action
or
proceeding.
WHO MAY PETITION FOR
PROBATE
Q: Who may file petition for
allowance of will?
A:
1. Executor (Sec. 1, Rule 76);
2. Devisee or legatee named in
the will (Sec. 1, Rule 76);
3. Person interested in the
estate; e.g. heirs
Note: An interested party is one
who would be benefited by the
estate, such as an heir, or one
who has a claim against the
estate such as a creditor.
(Sumilang v. Ramagosa, G.R. No.
L-23135, Dec. 26, 1967)
4. Testator himself during his
lifetime (Sec. 1, Rule 76); or
5. Any creditor as preparatory
step for filing of his claim therein.
Q: Who are the people
entitled
to
notice
in
a
probate hearing?
A:
1. Designated or known heirs,
legatees and devisees of the
testator
resident
in
the
Philippines at their places of
residence, at least 20 days
before the hearing, if such places
of residence be known.
2. Person named executor, if he
not the petitioner.
3. To any person named as coexecutor not petitioning, if their
places of residence be known.
4. If the testator asks for the
allowance of his own will, notice
shall be sent only to his
compulsory heirs. (Sec. 4, Rule
76)
We compare that to a probate of
a will where the testator is
already dead. Since the testator
is already dead, the petitioner
could
be
somebody
else
interested in his estate, like an
heir, devisee, legatee or creditor
of the decedent. In this second
kind of probate of a will where
the testator has died, when the
will is admitted to probate, that
196 | R e m e d i a l
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will not be the end of the

proceedings. In fact, that will
mark the beginning of the
settlement of estate of the
deceased person. That is the
time when we apply the rules in
special proceedings in settlement
of estate of deceased person.
You should be wary about the
differences between probate of a
will when the testator is still
alive, and the probate of a will
when the testator has already
died. When the testator has
already died, the admission to
probate of that will not be the
proceedings, it will be the start
the settlement of estate.
We should also relate settlement
of estate of decease persons to
Rule 107, the Rule on Absentees.
When the law speaks about
settlement
of
estates
of
deceased persons, the inference
that we derive is that the fact
that is sought to be established is
that a person is dead. That is not
necessarily
true
insofar
as
probate of will or intestacy is
concerned. We have to relate it
to the provisions of the NCC and
FC on absentees, and also the
provisions of special proceedings
on absentees in Rule 10.
Even if the testator is not in fact
dead, even if the problem is that
the heirs, legatees, devisees and
creditors are not certain whether
or not the testator is dead,
therefore, the court cannot
simply issue an order declaring
he is dead. Under our present
rules, if there are antecedent
facts that are proven by clear
and convincing evidence, we can
apply the presumption of death
under the NCC, then we can
commence a special proceeding
for the settlement of his estate. If
we go through the provisions of
Rule 107 on absentees, the first
essential is that a person has left
properties without somebody in
charge
or
without
an
administrator,
and
that
his
whereabouts are unknown. And
then, he has disappeared for at
least 2 years. On the second year
of his absence, there could be a
petition for the declaration of his
absence. In other words, being

absent is a status under our
procedural laws.
This person who has been
declared an absentee cannot be
an absentee forever. So there
must come a time when the said
status as an absentee could be
utilized in order to settle his
estate, and this is the situation
contemplated in Rule 107. If
there is enough proof of facts
that will allow the court to
conclude that the absentee is
already dead, although he is not
actually dead, we can commence
proceedings. But the court will
not issue an order declaring the
absentee as presumptively dead.
A court does not have any
authority at all to issue an order
declaring a person dead by
presumption. We just capitalize
on the presumption given in the
NCC, that under circumstances, a
person is presumably dead.
Using that presumption, the
remedy of the spouse, heirs, or
any interested person is to file a
petition for the settlement of the
estate.
So, there could be a petition for
the settlement of estates of a
person who is certainly dead. The
court will declare that this person
is actually dead, and this can be
easily proven by submission of a
certificate of death. But if a
certificate of death cannot be
issued or the civil registrar is
unwilling to issue a certificate of
death because there is no
certainty of the persons death,
but the antecedent facts proven
before the courts show that we
can now make a disputable
presumption that the person is
dead, the remedy is to file a
petition for the settlement of his
estate.
So it is not always correct to say
that in settlement of estates of
deceased persons, that person
must be proven to have really
died. That is not what the law
requires. What the law requires is
simply the demonstration or
proof of certain facts upon which
this disputable presumption of
death will be used in order to

settle his estate.
Supposing there are certain
facts which will lead to the
conclusion that this person is
presumably dead. There are
proceedings initiated for the
settlement of his estate.
While the proceedings are
going on, or even after the
closure of the settlement
proceedings,
the
person
suddenly reappears. Will the
settlement of his estate be
negated?
Not so. He can recover what is
left of his properties. Because in
settlement
proceedings,
we
always involve the payment of
his indebtedness to his creditors.
If the debts has already been
paid, this person is not allowed to
file for the recovery of the money
or other properties that may
have been delivered to the
creditors or to the heirs of his
estate.
But the procedure that is outlined
in our Rules is about settlement
of estate of deceased persons.
So that is the first particular fact
that will be established in
settlement of estate of deceased
persons. The court will issue an
order, let us say, in admitting the
will to probate, the court will
make a finding that the testator
is already dead. Then, there will
also be a finding as to the formal
validity of the will.
With respect to the jurisdiction,
the RoC is not expected to give
us the standard in determining
the jurisdiction of courts in
settlement
proceedings.
The
courts will rely on what BP 129
provides. In BP 129, there are 2
courts which are given authority
to take cognizance of estate
proceedings, the MTC and the
RTC, depending upon the gross
value of the estate, the same
amount used as a standard in
ascertaining the jurisdiction of
MTC or RTC in money claims. But
it is the gross value of the
estate that will be the principal
factor.
Unlike
in
action
reinvindicatoria, the assessed
value of the property will be the
197 | R e m e d i a l
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standard that will be determining

the jurisdiction of court.
petition for habeas corpus, if the

habeas corpus court makes a
finding that the petitioner has
Which court has jurisdiction
been unlawfully deprived of his
over the estate of the
liberty by the respondent, the
deceased?
habeas corpus court cannot
A:
award damages for unlawful
deprivation of liberty. It is enough
Regional Trial Court
for the
habeas corpus court to
Gross value of the estate exceeds 500,000
(within
sayManila)
that there was unlawful
Metro Manila) or 400,000 (outside Metro
deprivation of liberty. But the
court cannot go further by
State the rule on venue in
awarding damages in favor of the
judicial settlement of estate
petitioner. That is always the rule
of deceased persons.
that
we
follow
in
special
A:
proceedings. Any court in a
Resident
special proceeding
acts within a
Court of the province/city where the deceased
resided
jurisdiction.
The
at the time of death, whether a citizenlimited
or alien
jurisdiction is limited to the issue
that should be resolved by the
special proceeding involved.
In special proceedings, one Rule
that you should always bear in
mind is that when a court
Q:
May
probate
courts
entertains a special proceeding,
determine
issues
of
that court, RTC or MTC, acts with
ownership in a proceeding for
a very limited jurisdiction. So, if
the settlement of estate of
the settlement is in the RTC,
decedent? Explain.
although the RTC is characterized
A:
as a court of general jurisdiction
GR: No, because probate courts
under BP 129, when an RTC tries
are courts of limited jurisdiction.
a proceeding for settlement of
XPNS:
the estate, the RTC acts with a
1. Provisionally, for the sole
limited jurisdiction. The same is
purpose of including the property
true with the rest of special
in
the
inventory,
without
proceedings. When the RTC acts
prejudice
to
its
final
as a habeas corpus or amparo or
determination in a separate
habeas data court, the RTC acts
action;
with a very limited jurisdiction. In
2. When all the parties are heirs
other words, what can be
of the decedent and they agreed
resolved by the RTC in these
to submit the issue of ownership
special proceedings will only be
to the probate court, provided
the issue that is raised in the
that no rights of third persons are
petition. It cannot be expanded.
prejudiced;
For instance, when the RTC acts
3. If the question is one of
as a settlement court, and there
collation or advancement; or
is a dispute between a stranger
4. If the parties consent to the
and the executor, concerning the
assumption of jurisdiction by the
ownership of a piece of land
probate court and no rights of
which the executor claims to be
third parties are prejudiced.
owned by the estate of the
(Agpalo, Handbook on Special
deceased, and which according
Proceedings, pp. 10-12, 2003
to the stranger is owned by him,
ed.)
the settlement court has no
authority to rule on that issue.
Q: The probate court ordered
Title of this real property has to
the inclusion of a parcel of
be resolved in an independent
land registered in the name
proceeding, an ordinary action of
of Richard in the inventory of
accion reinvindicatoria.
the
properties
of
the
To illustrate why a habeas
corpus, amparo or habeas data
court has limited jurisdiction, in a
deceased
Anna.
Richard
opposed
the
inclusion
arguing that the probate
court cannot determine the
issue of the ownership of the

parcel of land inasmuch as
the same was registered in
his name. Is Richard correct?
A: Yes. In probate proceedings, if
a property covered by Torrens
title is involved, the presumptive
conclusiveness of such title
should be given due weight, and
in
the
absence
of
strong
compelling evidence to the
contrary, the holder thereof
should be considered as the
owner
of
the
property
in
controversy until his title is
nullified or modified in an
appropriate
ordinary
action,
particularly, when as in the case
at bar, possession of the property
itself is in the persons named in
the title (Luy Lim v. CA, G.R. No.
124715, Jan. 24, 2000).
It is not also correct to assume
that when a person dies, his
estate can be settled only
through this special proceeding
of settlement of estate. It is very
clear from the Rules that if a
person dies, the heirs can agree
among themselves to settle his
estate without going to court
through the scheme of extrajudicial partition. They can agree
to divide among themselves
what has been left by the
decedent. They can do so
voluntarily. But there are certain
essentials like there must be no
will that has been left by the
decedent, that there are no
creditors, and that all heirs are of
age, or if some are minors or
incapacitated, they are properly
represented
properly
by
a
guardian.
If a person dies, he has left
sizable
properties,
and
the
spouse and the children are in
good terms, there is no will, and
there are no creditors, then the
surviving spouse and the children
can simply execute what is called
a deed of extra-judicial partition.
If there is one heir, then he will
just institute a document called
an affidavit of self-adjudication.
The
deed
of
extra-judicial
partition or affidavit of selfadjudication will have to be
registered with the Office of the
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Registry of Property, especially

when
there
are
properties
involved, in order to enable the
parties or the only heir to get a
title in their or his own name. By
virtue of the presentation of the
deed of extra-judicial partition or
affidavit of self-adjudication, if
there are titled properties that
have been left, the title of the
deceased will be cancelled, and a
new one will be issued in the
name of his heirs or only case, as
the case may be.
What protection do we give
to the creditors, if there are
any, or even to the Republic
of the Philippines?
Insofar as the Republic of the
Philippines, the interest of the
state will be in recovering taxes
arising from the death of the
person
if
he
left
sizable
properties. Insofar as creditors
are
concerned,
they
are
interested in getting full payment
of their respective claims. The
protection given by our Rules is
that when it comes to taxes due,
the RoD will not accept for
registration an deed of extrajudicial partition or affidavit of
self-adjudication
unless
the
interested parties present to the
civil registrar a certification from
the BIR that taxes have been
paid. So that solves the problem
of the state. It may always be
able to recover the taxes due,
because if the BIR does not issue
this
certification,
the
civil
registrar also will not accept for
registration the deed of extrajudicial partition or affidavit of
self-adjudication.
The situation of the creditors, if
there are any, entails a bigger
problem, because the RoD has
the ministerial duty to accept a
affidavit of self-adjudication for
registration. The RoD simply
cannot compel the parties to that
affidavit of self-adjudication to
present proof that there are
really no creditors of the estate.
The RoD will have to rely on the
say so of the parties who have
signed the deed of extra-judicial
partition or affidavit of self-
adjudication. And in that deed or

affidavit, the parties are required
to state that there is no will, and
that there are no debts. So if
these parties are telling a lie,
they know that there are
creditors
but
they
state
otherwise, then the creditors will
be at the losing end. They need
protection for their claims.
estate of a deceased person

without including all the heirs. So
an heir so excluded can always
contend that there was fraud in
the execution of that document,
and he has a period of 4 year
within which to file an ordinary
action for the setting aside or
annulment of the deed of extrajudicial partition.
What the law provides is that if

the estate settled consists of
both
personal
and
real
properties, before the RoD will
accept these documents for
registration,
the
interested
parties
must
file
a
bond
equivalent to the value of the
personal properties. Again, the
parties can easily avoid this
requirement by simply stating in
the deed that there are no
personal properties involved, so
they need not pay the bond. If
there are no personal properties
of the estate, then there is no
requirement for the interested
parties to submit a bond to the
RoD.

extra-judicial
partition
executed
without
the
knowledge and consent of
the other co-heirs?
A: It shall not prejudice the coheir who had no knowledge nor
consented to the same. He shall
have the right to vindicate his
inheritance. Such heir or such
other person deprived of his
lawful participation payable in
money
may
compel
the
settlement of the estate in courts
for the purpose of satisfying such
lawful participation. (Sec. 4, Rule
74)
So if the estate consists purely of

real titled properties, the RoD will
admit the documents for the
registration, he will cancel the
title of the decedent and issue
new ones in the name of the
interested parties. But at the
back of the title of the new
owners, there is annotated a lien,
that the property is subject to the
claims of any creditors within a
period of 2 years. The 2-year
period,
according
to
jurisprudence, is really extended
by another 2 years. The SC ruled
that if there is a title carrying this
annotation, a person interested
in the property, like an heir who
has been deprived of his share,
or even a creditor, can file an
ordinary civil action for the
annulment of the writ of extrajudicial partition within 4 years
from the discovery of fraud. So
that 2-year period, if we apply
that decision of the court, will be
extended to another 4 years, and
the 4-year period shall be
counted from the discovery of
fraud. It is fraudulent for the
heirs or interested parties to
extra-judicially
partition
the

extra-judicial
partition
executed
without
the
knowledge and consent of
the other co-heirs?
A: It shall not prejudice the coheir who had no knowledge nor
consented to the same. He shall
have the right to vindicate his
inheritance. Such heir or such
other person deprived of his
lawful participation payable in
money
may
compel
the
settlement of the estate in courts
for the purpose of satisfying such
lawful participation. (Sec. 4, Rule
74)
TWO-YEAR
PRESCRIPTIVE
PERIOD
Q: When does the two year
period rule apply?
A: After the expiration of two
years from the extra-judicial
partition, distributees or heirs are
barred from objecting to an
extra- judicial partition. The two
year prescriptive period applies
only:
1. To persons who have
participated or taken part or
had notice of the extrajudicial partition; and
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2. When all the persons or

heirs of the decedent have
taken part in the extrajudicial settlement or are
represented by themselves
or through their guardians.
Note: It is only a bar against the
parties who had not taken part in
the extra-judicial proceedings,
but not against third persons not
parties
thereto.
(Herrera,
Remedial Law III-A, 39)
Q: Does the two year period
apply for a claim of minor or
incapacitated person?
A: If on the date of the expiration
of the period of two years
prescribed,
the
person
authorized to file a claim is a
minor or mentally incapacitated,
or is in prison or outside the
Philippines, he may present his
claim within one year after such
disability is removed. (Sec. 5,
Rule 74)
The
deed
of
extra-judicial
partition or affidavit of selfadjudication should also be
published, once a week for three
consecutive weeks, before the
RoD will admit it for purposes of
registration.
When
is
extra
judicial
settlement
by
agreement
between the heirs allowed?
(Substantial Requisites)
A:
When the decedent:
1. Left no will and no debts; and
the heirs are all of age; and
2. Of the minors are represented
by
their
judicial
or
legal
representatives duly authorized
for the purpose.
Q: What are the requisites
before
an
extra-judicial
settlement of estate could be
resorted to as evidence of its
validity?
(Procedural
Requisites)
A:
1. Settlement is made in a public
instrument or by affidavit of
adjudication in the case of a sole
heir;
Note: In case of disagreement of

heirs, they may state their
oppositions in an ordinary action
of partition.
2. Filed with the Register of
Deeds;
3. Fact of settlement must be
published in a newspaper of
general circulation once a week
for 3 consecutive weeks; and
4. Bond filed equivalent to the
value of personal property. (Sec.
1, Rule 74)
Note: While the Rules of Court
provide that the decedent must
not have left any debts, it is
sufficient if any debts he may
have left have been paid at the
time the extra-judicial settlement
is entered into (Guico v. Bautista,
G.R. No. L-14921, Dec. 31, 1960).
It is a disputable presumption
that the decedent left no debts if
no creditor files a petition for
letters of administration within
two years after the death of the
decedent.
Q: What is a bond?
A: It is the value of the personal
property certified by the parties
under oath and conditioned upon
payment of just claims under
Section 4, Rule 74.
Note: The amount of bond
required under Section 2 is
determined
by
the
COURT
whereas in Section 1 the amount
is EQUAL TO THE VALUE OF THE
PERSONAL
PROPERTY
as
established by adjudication.
Q: When is a bond required
to be filed in extra-judicial
settlement of estate?
A: When personal property is
involved, a bond is required. On
the other hand, if it is a real
property, it is subject to a lien in
favor of a creditor for 2 years
from distribution and such lien
cannot be substituted by a bond.
(Sec. 1, Rule 74)
Note: The same provision on the
bond and lien also applies in
summary settlement of estate.
(Sec. 2, Rule 74)
Q: Is a public instrument
necessary for the validity of
the extra-judicial settlement?
A: No, the requirement of public

instrument is not constitutive of
the validity but is merely
evidentiary in nature (Hernandez
v. Andal, G.R. No. L-273, Mar. 23,
1947). Even a private instrument,
oral agreement of partition or
compromise agreement entered
into without previous authority
from the court is valid. However,
reformation of the instrument
may be compelled.
Note:
Public
instrument
is
required
in
transfer
and
registration of title to the heirs.
Q: Why is publication of the
extra-judicial
settlement
necessary?
A: To notify and bind the whole
world
of
the
extra-judicial
settlement
and
give
the
concerned parties a chance to
come forward and challenge the
same (Sec. 1, Rule 74).
Note: Publication alone does not
suffice to bind the excluded heirs
to the extra-judicial settlement
unless he did not participate in
the proceedings.
Q: What is the effect if the
provisions
on
notice
or
participation
requirement
under Sec. 1, Rule 74 have
been strictly complied with?
A: It bars distributees or heirs
from objecting to an extrajudicial partition after the twoyear
prescriptive
period
to
question such partition. (Sec. 4,
Rule 74)
But if the parties cannot settle
extrajudicially, then the only
recourse will be to go to court, so
that the court will decide the
manner by which the properties
of the estate should be divided
among the heirs. In this situation,
the parties are not required file a
case for settlement of the estate.
There is still another option given
in these special civil actions. The
special civil action of Partition
under Rule 69 is also available as
a remedy in order to divide the
estate of the decedent.
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If you go back to partition,

partition as a special civil action
is predicated on the theory that
there are several co-owners of
the same property, and one of
the co-owners decide to leave
the co-ownership. This is related
to settlement of estates because
under substantive law, when a
person
dies,
the
heirs
automatically become co-owners
of the estate of the decedent. So
if there is a co-ownership created
by operation of law, any one of
the co-owners can decide to
leave the co-ownership by simply
availing of the special civil action
for partition.
accordance with the provisions of

the last will and testament.
But a special civil action of

partition as given in Rule 69 is
not in rem. It cannot prejudice
persons
who
have
not
participated
in
these
proceedings. So if there is an heir
or creditors who has not been
impleaded in this special civil
action for partition, that deed of
partition duly approved by the
court will not have the effect of a
judgment in rem. That is always
the advantage of a settlement
proceeding
as
a
special
proceeding, the judgment and
final orders of the court in a
settlement proceeding are in
rem. They will be enforceable
against any person who might
have an interest in the properties
of the estate. That is the only
advantage of settling the estate
of a deceased person through a
petition for probate of a will, or if
there is no will, through a petition
for the issuance of letters of
administration.
In order to appreciate the scope

of an order of a court admitting a
will to probate, read Rule 39, that
is the effect of a judgment in rem
in Section 47(a).
In settlement proceedings, we
have to determine whether there
is a will or none. Under
substantive
law,
whose
provisions
are
practically
reproduced in the RoC, before
the will would be a basis for the
division
or
giving
of
the
properties of the estate to the
heirs, devisees or legatees, the
will must be admitted to probate.
If not admitted to probate, it
could not be the proper basis for
the division, even if the parties
will state in their agreement that
they have divided the estate in
The SC has repeatedly held that

if there is a will, that will must be
submitted to the court for
probate, so that it can be a
source of a right given to an heir,
a devisee or legatee. Without an
order from the court allowing or
admitting the will for probate, a
person who benefited from the
provisions of that will cannot
enforce his right. There must
always be first an order coming
from the court admitting the will
or allowing the probate of the
will.
SEC. 47. Effect of

judgments
or
final
orders .The effect of
a judgment or final
order rendered by a
court of the Philippines,
pronounce
the
judgment or final order,
may be as follows:
(a)
In case of
a judgment or final
order
against
a
specific thing, or in
respect
to
the
probate of a will, or
the
administration
of the estate of a
deceased person, or
in respect to the
personal,
political,
or legal condition or
status of a particular
person
or
his
relationship
to
another,
the
judgment or final
order is conclusive
upon the title to the
thing, the will or
administration,
or
the condition, status
or relationship of
the person; however,
the probate of a will
or granting of letters
of
administration
shall only be prima

facie evidence of the
death of the testator
or intestate;
(b)
In other
cases, the judgment or
final order is, with
respect to the matter
directly adjudged or as
to any other matter
that could have been
raised
in
relation
thereto,
conclusive
between the parties
and their successors in
interest
by
title
subsequent
to
the
commencement of the
action
or
special
proceeding,
litigating
for the same thing and
under the same title
and
in
the
same
capacity; and
(c)
In any other
litigation between the
same parties of their
successors in interest,
that only is deemed to
have been adjudged in
a former judgment or
final
order
which
appears upon its face
to
have
been
so
adjudged, or which was
actually
and
necessarily
included
therein or necessary
thereto.
Rule 39 gives us the effect of a
judgment in rem. A judgment
admitting a will to probate is a
judgment in rem. It is binding
upon anybody who might have
interest in the estate. In fact, the
NCC says that an order of a court
admitting the will to probate is
conclusive insofar as the formal
requirements of a will are
concerned.
Supposing that a will is
admitted to probate, can the
oppositors appeal from that
order?
Yes.
If there is an appeal from an
order of the court allowing a will,
we cannot apply the statement in
Rule 39 that probate of a will is
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conclusive insofar as the formal

elements are concerned because
that order, if there is an appeal
going on, will not be entered.
That provision in Rule 39
presupposes
that
an
order
admitting the will has been
entered. It has become final and
executory.
But before it is entered, do
we have the presumption
that the formal requisites of
the will have been satisfied?
Yes. But the presumption is not a
conclusive presumption, merely
disputable. Under our Rules on
Evidence, there is a disputable
presumption that the final order
or judgment of a court is
presumed to be correct, that is if
it has not yet been entered. Once
entered, the period to appeal
having expired without an appeal
being
perfected,
then
the
disputable presumption to a
conclusive presumption. So once
the order admitting the will to
probate is entered, then we are
going to apply the provisions of
Rule 39 Section 47. The formal
requisites
of
the
will
are
conclusive upon anybody who
might have an interest in the
estate.
If there is no will, the settlement
proceedings
will
be
called
intestate proceedings. If there is
a will, it will be called testacy or
probate proceedings. But in our
Rules,
whether
the
special
proceeding to settle the estate is
testate or intestate, there should
be only one settlement court in
our jurisdiction.
So if there is a petition to
settle where the decedent
died without a will, praying
for letters of administration,
during
the
pendency
proceedings after the letters
had been issued by the court,
an heir suddenly appears in
court
claiming
he
has
discovered a will of the
decedent. What will happen
to
the
proceedings
of
intestacy?
The court will change the
proceedings from intestacy to
testacy, simply converting from

intestate court to testate or
probate court.
There should only be one
settlement court. A court that
takes cognizance of settlement of
the estate of a deceased person
does so to the exclusion of all
other courts. There is a clear
message that in settlement
proceedings, we should only
have one settlement court.
But what always happens, as our
culture allows to happen, is when
a person dies and in his lifetime
was a very wealthy person, our
culture expects that he was
maintaining
several
different
families in different regions. So
when he dies, one family will file
settlement proceedings for the
estate located, lets say in
Mindanao, and another family
would do so also for the property
found in Cebu, and so forth. We
cannot allow this to happen
where
several
courts
take
cognizance of the properties of
one decedent. We still have to
apply the Rule in Rule 73, where
a court that takes cognizance of
the settlement of the estate of a
decedent will do so in exclusion
of other courts. So, its just a
matter of determining which RTC
has first acquired jurisdiction
over the case. The jurisdiction
over the case can be ascertained
by determining the period when
these different petitions were
filed. Thus, we will have one
settlement court.
The authority of a settlement
court will extend to any part of
the country where the decedent
left
some
properties.
A
settlement court in Manila will
have jurisdiction over properties
left in Cebu or Mindanao. And it
is very simple for the court to
acquire jurisdiction over these
properties, because when the
court issues letter testamentary
or letters of administration, the
administrator is required to
submit an inventory of the estate
of the deceased. This inventory
must be complete, an inventory
of properties possessed by the
administrator or executor or the
properties that have come to the

knowledge of the administrator,
though not in his physical
possession. So the settlement
courts
authority
will
be
throughout the country insofar as
the properties left behind by the
decedent is concerned.
There is another term used in the
Rule
aside
from
letters
testamentary or administration,
and it is called letters of
administration
with
a
will
annexed.
What is this concept of
letters of administration with
a will annexed?
This is the letter issued by the
court where there is a will
submitted to probate, but where
the executor nominated in the
will has refused to accept the
trust or he is not qualified to
accept the trust. So if there is no
executor willing to accept the
trust, the court will have to
appoint another administrator. To
distinguish an administrator who
is usually appointed where there
is no will that is submitted for
probate, we call these letters as
letters of administration with a
will annexed.
Letters of administration with a
will annexed assume that there is
a will submitted to the court for
probate, and that the court has
admitted or allowed the will, but
the executor nominated in the
will has refused to accept the
position.
In a will, aside from the
disposition of the properties, the
decedent usually nominates a
person who will act as executor
of the will. This is the reason why
in RoC, there is an order of
preference in appointing an
administrator. But there is no
order of preference insofar as the
appointment of an administrator
in letters of administration with a
will annexed. This is because the
court
will
appoint
an
administrator despite the fact
that an executor is nominated by
the testator in the will.
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You should also note that when a

testator names the person as
executor of the estate, that is
only a nomination. It is the court
that will appoint him as executor.
The proof that he is now an
executor
is
called
letters
testamentary; the proof of the
authority of an administrator is
called letters of administration.
We also have the concept of
letters
of
ancillary
administration.
In
ancillary
administration, the antecedent
fact is that a will has been
admitted to probate in a foreign
country. The testator must have
been a resident of that foreign
country. But the testator also left
properties in RP. So, there is a
principal testate proceedings
going on in a foreign country
where an executor may have
been appointed in that foreign
country. But the authority of the
appointed
executor
from
a
foreign court cannot extend to
properties
within
Philippine
territory. The remedy of that
executor from a foreign country
is to initiate a proceeding called
ancillary
administration
proceedings, which be called a
reprobate of the same will of the
same will that has been admitted
to probate in a foreign court.
That
petition
for
ancillary
administration, if a will has been
already admitted to probate in a
foreign country, the same will be
submitted to a local court for
another proceeding. The local
court will simply rely on the
decision of the foreign court in
admitting the will for probate. If
there was no will left by this
foreigner, then the ancillary
proceedings will also be an
intestate proceeding. It will still
be the local court that will issue
letters of ancillary administration
to the administrator appointed by
the local court to take care and
to manage the properties left
within RP territory.
There is also another concept
called
letters
of
special
administration
or
a
special
administrator. These letters are
issued by the court when there is
a delay in the appointment of an
administrator or an executor of
the estate. If a court issues
letters of administration, and
therefore appoints letters of
administration of an intestate
estate,
or
issues
letters
testamentary, to the person who
will manage the estate, this is
always
a
final
order.
The
appointment
of
a
regular
administrator is always a final
order, never interlocutory. Since
it is a final order, it is appealable.
In
order
to
appreciate
in
settlement
proceedings
the
difference between a final order
and an interlocutory order in
settlement proceedings, read
Rule 109, Section 2.
SEC.
2. Advance
distribution in special
proceedings.
Notwithstanding
a
pending controversy or
appeal in proceedings to
settle the estate of a
decedent, the court may,
in its discretion and upon
such terms as it may
deem proper and just,
permit that such part of
the estate as may not be
affected
by
the
controversy or appeal be
distributed among the
heirs or legatees, upon
compliance
with
the
conditions set forth in
Rule 90 of these rules.
proceedings will be a final order

in special proceedings, of which
the
appointment
of
an
administrator/executor is a good
example. The appointment of an
administrator/executor will not
put an end to the proceedings. In
fact, an appointment of an
administrator/executor will mark
other proceedings to be taken by
the court in settling the estate.
But since special proceedings are
governed by their own rules, and
it says that the appointment of
an
administrator/executor
or
admitting of a will to probate are
all final orders and hence
appealable. In fact if we go
through the whole process of
settlement proceeding, although
it is the policy of the RoC to
terminate proceedings speedily,
with as much as practicable a
period of 2 years from institution
of the settlement proceedings,
Rule 109 negates this state
policy because of the Rule in 109
that
all
final
orders
are
appealable. In the course of
reading
special
proceedings,
there are several final orders that
can be issued by the settlement
court, and all these final orders
can
be
appealable.
The
settlement proceedings will not
be terminated until all these
issues brought on appeal had
been resolved by the appellate
court and the records returned to
the settlement court.
FINAL ORDERS
If you go through the provisions
of Rule 109, Appeals in Special
Proceedings, right away you will
notice that if special proceedings
were governed by the rules of
ordinary civil actions, some of
the final orders in special
proceedings may be interlocutory
in ordinary civil actions. For
instance,
appointing
an
administrator or executor, if we
use the rules in ordinary civil
actions, this appointment will be
interlocutory, because it does not
put an end to the case, unlike
final order in ordinary civil
actions which put an end to the
case.
But
in
settlement
proceedings,
what
was
interlocutory under ordinary civil
If the settlement court appoints

Juan
dela
Cruz
today
as
administrator of the estate, an
heir who dislikes him can appeal
from that order. And while that
appeal is going on, Juan dela
Cruz cannot assume the position
as administrator of the estate
until the higher court has ruled
on the qualifications or the
validity of the order appointing
him as administrator. In the
meantime, nobody will be taking
care of the estate. The remedy of
Juan dela Cruz is to ask the court
to appoint him as a special
administrator.
So
if
his
appointment as administrator is
challenged by another heir, he
cannot assume the office as a
REGULAR administrator, but the
settlement court can appoint him
203 | R e m e d i a l
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as SPECIAL administrator. A
settlement
court
has
the
authority to appoint a special
administrator if there is a delay
in the appointment of a regular
administrator. This is necessary
because the estate has to be
managed while the appeal is
ongoing.
Will it cause any prejudice to
the heirs or creditors if Juan
dela Cruz is appointed as
special administrator?
There will be no prejudice to
anybody. This is because as
special administrator, Juan dela
Cruz is not given all the powers
of a regular administrator. All
that he can do is to manage the
properties of the estate, to
preserve the estate. He will not
be able to entertain claims of
creditors. That is the sole
prerogative
of
a
regular
of
an
estate.
Can an oppositor also appeal
from the order of the court
appointing Juan dela Cruz as
special administrator?
We cannot. Under Rule 109, the
appointment
of
a
special
administrator is interlocutory, it
is not appealable. The remedy
will be Rule 65, to challenge the
appointment
as
special
administrator. But it will not give
the
oppositors
any
undue
advantage,
since
we
have
learned under Rule 65, the
assumption of Juan dela Cruz as
special administrator will not be
prevented, unless the higher
court issues a writ of preliminary
injunction or TRO. Without these
injunctive writs, Juan dela Cruz
can start with the performance of
the
office
of
a
special
administrator.
The great difference between a
special administrator and a
regular administrator of an
estate
is
that
a
regular
administrator is empowered to
entertain claims of creditors to
be filed against the estate, while
a special administrator cannot. In
fact, the statute of non-claims
given in Rule 86 will only come to
life after the appointment of a
regular
administrator/executor.
We cannot talk about statute of
non-claims if the court has only
appointed
a
special
administrator.
Let us assume that there is
already
a
regular
administrator/executor appointed
by the settlement court. Whether
there
is
an
executor
or
administrator, their duties are
the same. Both should submit to
the court within a period of 3
months a complete inventory of
the properties of the estate that
have come to their possession or
to their knowledge, and then
they will have to do an
accounting within a period of 1
year. They have to preserve and
manage the estate, and they will
have to comply with the orders of
the settlement court.
The
duties
of
administrator/executor outlined
in the Rules are practically the
duties of any fiduciary given in
the RoC, similar any person who
occupies a fiduciary position
under the Rules like a trustee of
an express trust, the guardian of
an incompetent of a minor. They
have all these common duties
like to preserve the estate, to
submit an inventory, to submit
an accounting, and to obey the
orders issued by the court.
STATUTE OF NON-CLAIMS
Rule 86 SEC. 5. Claims
which must be filed
under the notice. If
not
filed,
barred;
exceptions.All claims
for money against the
decedent, arising from
contract,
express
or
implied,
whether
the
same be due, not due, or
contingent, all claims for
funeral expenses and
expenses for the last
sickness of the decedent,
and judgment for money
against the decedent,
must be filed within
the time limited in the
notice; otherwise they
are barred
forever,
except that they may
be
set
forth
as
counterclaims in any
action
that
the
executor
or
administrator
may
bring
against
the
claimants. Where an
executor or administrator
commences an action, or
prosecutes
an
action
already commenced by
the deceased in his
lifetime, the debtor may
set forth by answer the
claims he has against the
decedent,
instead
of
presenting
them
independently
to
the
court as herein provided,
and mutual claims may
be set off against each
other in such action; and
if
final
judgment
is
rendered in favor of the
defendant, the amount
so determined shall be
considered
the
true
balance
against
the
estate, as though the
claim
had
been
presented directly before
the
court
in
the
administration proceedings. Claims not yet due,
or contingent, may be
approved at their present
value.
Once the administrator/executor
has assumed office, the first
thing that he should do under
Rule 86 is to ask the court to
issue a Notice to Creditors. This
will be published. This is a notice
to all the creditors of an estate to
submit their claims within a
period of not less than 6 months
nor more than 12 months from
the first publication of the Notice
to Creditors. This period of not
less than 6 months nor more
than 12 months within which
creditors should file their claims
is called the Statute of NonClaims. Rule 86 spells out the
concept and the consequences of
the Statute of Non-Claims. It is a
very short prescriptive period.
The publication of the Notice to
Creditors is jurisdictional insofar
as creditors are concerned,
204 | R e m e d i a l
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because this notice serves as a

prescriptive period.
The answer is found in Rule 3

Section 16 and Section 20.
So if there is a creditor of the

estate, like PNB, from whom
the decedent borrowed 2M in
a clean loan (unsecured)
during his life time. Can PNB
file an ordinary action for the
recovery
of
indebtedness
against the estate of the
estate on the theory that
under the law, when a
natural person dies, the law
creates an artificial person,
called the estate of the
deceased, to take the place
of his person?
Although it is true that when a
natural person dies, under the
NCC creates another person to
take his place, an artificial person
called estate of the deceased.
But the law does not allow the
artificial
person
to
be
a
defendant in a suit for recovery
of money. What the law requires
is for PNB to file a claim within a
period of not less than six
months to 12 months from the
first publication of the Notice to
Creditors.
SEC. 16.
Death of
party; duty of counsel.
Whenever a party to a
pending action dies, and
the claim is not thereby
extinguished, it shall be
the duty of his counsel to
inform the court within
thirty (30) days after
such death of the fact
thereof, and to give the
name and address of his
legal representative or
representatives.
Failure
of counsel to comply with
this duty shall be a
ground for disciplinary
action.
So you will not find any ordinary

civil action commenced by a
creditor against the estate of a
deceased creditor. That simply is
not allowed by the Rules. But you
can find a complaint, ordinary
civil action, where the action is
Creditor vs. Estate of Deceased
Debtor, but the circumstances
are different from one another.
When you meet a case captioned
thusly, the debtor must have
died after the institution of that
action. If the debtor is already
dead, the creditor will not be
allowed an ordinary civil action
for
the
recovery
of
the
indebtedness. The only recourse
of the creditor after the death of
the debtor is to file a claim in the
settlement court within the
period so provided by law.
Why do we make a distinction
as to whether the debtor is
dead
before
the
commencement of the action
or during the pendency of an
collection of money?
The
heirs
of
the
deceased
may
be
allowed
to
be
substituted for the
deceased,
without
requiring
the
appointment
of
an
executor
or
administrator and the
court may appoint a
guardian ad litem for
the minor heirs.
The court shall forthwith
order
said
legal
representative
or
representatives
to
appear
and
be
substituted
within
a
period of thirty (30) days
from notice.
If no legal representative
is named by the counsel
for the deceased party or
if the one so named shall
fail to appear within the
specified
period,
the
court may order the
opposing party, within a
specified time, to procure
the appointment of an
executor or administrator
for the estate of the
deceased and the latter
shall immediately appear
for and on behalf of the
deceased.
The court
charges in procuring such
appointment, if defrayed
by the opposing party,
may be
costs.
recovered
as
SEC. 20.
Action on
contractual
money
claims.When
the
action is for recovery of
money
arising
from
contract,
express
or
implied,
and
the
defendant dies before
entry of final judgment in
the court in which the
action was pending at
the time of such death, it
shall not be dismissed
but shall instead be
allowed to continue
until entry of final
judgment. A favorable
judgment obtained by
the plaintiff therein
shall be enforced in
the manner especially
provided
in
these
Rules for prosecuting
claims
against
the
estate of a deceased
person.
In Rule 3, Section 20, if the
debtor in a claim for money dies
RoC provides that the case will
be
prosecuted
until
final
judgment. But what Rule 3
requires is that there will be
substitution of parties, and if
there are no heirs willing to act
as the defendant, it is ultimately
the administrator/executor who
will be named as the substitute
defendant. This is the only
instance where we can have an
recovery of money where the
defendant is the estate of the
deceased debtor represented by
the administrator/executor.
Remember the antecedent facts:
The debtor died during the
pendency of the case. At the
time the action was commenced,
the debtor was still alive. If the
debtor is already dead, a creditor
cannot file an ordinary civil
action for the recovery of the
indebtedness. The creditor must
file a claim in the settlement
court within the Statute of Nonclaims.
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In the same facts of the problem

involving PNB with an unsecured
2M loan, we assume that PNB
made a promissory note, which
was signed by the now deceased
debtor. So, the unsecured loan of
2M was put into writing. The
obligation is now reduced into
writing. Under the NCC, if there is
a money claim supported by a
written document, prescription
period is 10 years. The creditor
can enforce his claim within 10
years. But suddenly, here is Rule
86 giving PNB a very short period
for which to enforce the claim.
Will it not defeat substantive
law? Are we not reducing the
prescriptive period enjoyed
by PNB from 10 years to 12
months? Can RoC defeat
substantive law?
There is really a conflict in the
RoC and NCC in this instance.
What the SC said is that the
provisions of Rule 86 will prevail
over the NCC. We reduce the
prescriptive period contained in
the NCC which is 4 years, 6 years
or 10 years are shortened to 6
months to 12 months from first
printing
of
the
Notice
to
Creditors. The justification given
by the SC is that the statute of
non-claims as contained in the
Rule 86 is not a product of the
SC. It is just a copy of the old civil
procedure. At that time, the old
code of civil procedure was also a
substantive
law
insofar
as
prescription was concerned. SC
went further by saying, even
under the NCC on the chapter of
prescription, it is provided that
the NCC provisions will be
without prejudice to periods of
prescription that are found in
special or other laws. In other
words, the period of prescription
given in the NCC is the general
law on prescription. If there are
other laws on prescription which
contravene the NCC, then the
NCC will have to give way over
the provisions of the other laws.
Rule 86 is just an exact copy of
the period of prescription that
was contained in the old code of
civil procedure, which has not
been repealed by the provisions
of the NCC. We still maintain this
statute of non-claims as a
prescriptive period, not less than

six months nor more than 12
months from the date of first
publication of the Notice to
Creditors.
If you read Rule 86 on the statute
of non-claims, the consequence
is that the claim will be barred
forever if it is not submitted
within
this
period
to
the
settlement court.
But the RoC do not require all
creditors to submit their claims
within this statute of non-claims.
You have also to take into
account the provisions of Rule
87. If there are creditors but their
claims are not for money, and
instead involve recovery of real
or personal property, they are
not covered by the statute of
non-claims. Or if these creditors
claim, although for money, stem
out of a tort committed by
decedent during this lifetime,
they are not governed by the
statute of non-claims.
So we have to limit the concept
of these claims to the provisions
of Rule 86. What are these
money claims? All claims for
money against the decedent,
arising
from
contract,
express or implied, whether
the same be due, not due, or
contingent, all claims for
funeral
expenses
and
expenses
for
the
last
sickness of the decedent, and
judgment for money against
the decedent, as provided for
in Section 5 of Rule 86. So that
excludes claims arising from a
crime or delict or tort. These
claims must be claimed within
the
period
of
non-claims.
Otherwise, they are barred
forever.
In our example, where the debtor
dies during the pendency of an
action for the recovery of the
loan, the administrator/executor
has taken his place as a
substitute defendant. If the
subsequently loses the case, the
creditor will have an award in his
favor for payment of 2M. Even if
that award is supported by a final
and executory judgment, the

creditor should still file a claim
against the estate within 6
months and 12 months, in the
period for statute of non-claims.
Otherwise, the claim will be
barred.
If you read Rule 86 on the statute
of non-claims, claims for money
supported by a final judgment
should still be submitted as a
claim before the settlement
court. In short, the judgment
creditor cannot make use of Rule
39. He cannot move for the
issuance of a writ of execution. If
a trial court issues a writ of
execution, that writ is void. We
cannot issue a writ of execution
against an estate that is being
settled in a settlement court. It is
the settlement court that has the
authority to determine who the
creditors are and what claims will
be approved and paid in the
settlement proceeding. And that
cannot be interfered with by any
other court.
If you will notice, in the Rule on
settlement of estates, there is no
instance by which a writ of
execution
can
be
enforced
against the estate of the
deceased
person.
That
is
prohibited under our system.
Except the instance that is
contemplated in Rule 39, when
there is already a writ of
execution
issued
against
a
defendant who is still alive, and
there is a levy on execution on
the properties of this defendant,
and thereafter, the defendant
died. The levy on execution can
continue and the properties can
be sold at public auction. This is
the only known instance where
there could be a writ of execution
and a levy on execution against
the estate of the recently
deceased
judgment
debtor/defendant in Rule 39. The
general rule is we cannot enforce
a judgment against a deceased
judgment debtor by using a writ
of execution and levy on the
properties of his estate under
Rule 39.
Although Rule 86 operate as a
period of restriction, Rule 86
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recognizes that certain creditors

do not have to submit their
claims against the estate. And
even if they do not submit their
claims, their claims will not be
barred, they can still enforce
their
claims.
This
involves
creditors who hold a security, a
mortgage, a pledge or any other
security
arrangement,
contractual in character, that has
been entered into during the life
the deceased debtor. So, a
mortgagee, a pledgee or any
other creditor who holds a
security is not required to submit
a claim against the estate. He
does not participate in the
settlement proceeding, but he
can still enforce his claim. In fact,
under Rule 86, the secured
creditors are given 3 options. The
first is that they just abandon
their security. So if the creditor is
a mortgagee at the same time,
and he uses the first option, he
will convert himself from a
secured creditor to an unsecured
creditor. He gives up the
mortgage, so he will be able to
participate in the proceedings.
This does not seem to be very
practical. Why should a secured
creditor convert himself into an
unsecured creditor when there is
no certainty that he is going to
be paid? But that is the first
option given to secured creditors.
The second option relies on the
collateral.
Foreclose
the
mortgage. And if there is any
deficiency, with respect to the
deficiency, submit a contingent
claim within the statute of nonclaims. So in this second option,
the mortgage is not abandoned,
but foreclosed instead, and the
creditor is required to file a
contingent
claim
for
any
deficiency.
In the third option, the secured
creditor will rely entirely on his
security. He can foreclose the
mortgage. But if there is a
deficiency, he can no longer
recover the deficiency against
the estate. He will have to be
satisfied with what he received in
the foreclosure of the mortgaged
property.
There could be some questions

pertaining to this rule on secured
creditors in Rule 86. Remember
that the mortgagor/pledger is
already dead. And if in the
mortgage, the mortgagee is
given a special power of attorney
to extra-judicially foreclose the
mortgage,
the
administrator/executor or any
one of the heirs can bring out
this issue, if the mortgagor is
already dead, does it not follow
that the SPA given to the
mortgagee to foreclose extrajudicially will be extinguished.
Because what the mortgagor
gives to the mortgagee is a SPA
to extra-judicially foreclose a
mortgage, a contract within a
contract. In essence, a contract
of agency is created, authorizing
the mortgagee to extra-judicially
foreclose the security.
Supposing the administrator
challenges the authority of
the mortgagee to extrajudicially
foreclose
the
mortgage, on the ground that
under the NCC the death of
the principal extinguishes the
agency. Is the administrator
correct?
No. The SC said we do not apply
that principle in agency through
a case of secured credit and
security consists of a mortgage,
pledge or any other form of
contractual
security
arrangement. And the SC said
that the death of the mortgagor
will not extinguish the agency,
since the agency falls in the
concept in the civil code called
an agency coupled with an
interest.
So if the mortgagor
dies, the mortgagee still retain
the
right
to
extra-judicially
foreclose the security. So, we do
not take away the right of the
mortgagee
to
extra-judicially
foreclose the security even if the
mortgagor is already dead. That
is the reason why in Rule 86, the
mortgagee is given the 3 options:
to
abandon
the
mortgage,
foreclose
the
security
and
recover the deficiency by filing a
contingency claim within the
statute on non-claims or rely
solely on the foreclosure of the
security and forget about the

deficiency.
We said that a court will not
accept even for filing an ordinary
money arising from a contract if
the defendant was already dead,
even if we implead as defendant
the estate of the deceased
defendant. Even if the court
accepts it for filing, it will be
subsequently dismissed because
the filing is not the proper filing
for the commencement of a
complaint. How do we expect
creditors to file a claim? In our
example, do we expect PNB to
file an action against the
administrator/executor for the
recovery of the loan? So, in filing
a claim for money, what do we
expect the creditors to submit if
they are not expected to file an
ordinary claim in court?
A
claim
in
settlement
proceedings is just in the form of
an affidavit where the creditor
asserts his claim and then gives
the circumstances surrounding
the claim, and then he presents
already together with his affidavit
proof of the existence of his
claims. So these claims are not
commenced with the filing of a
complaint. Since these claims are
commenced by the filing of an
affidavit, the SC ruled that
claimants for money do not
require a certification for nonforum shopping. Said certification
is not required since an affidavit
can hardly be considered an
initiatory
pleading.
Such
certification is required only in
initiatory pleadings.
Supposing
that
the
settlement court is an RTC.
Therefore we assume that
the estate is sizable. A
creditor files a claim, submits
his affidavit, saying that the
decedent owed him money by
way of a loan but only the
sum of 200k. Can the RTC as
a settlement court entertain
that claim, although it is not
within
the
jurisdictional
amount given to an RTC
under BP 129?
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Yes. The amount of the claim of

the creditor will not determine
the jurisdiction of the settlement
court. This is only an incident of
the exercise of the settlement
court of its authority to entertain
the petition for the settlement of
estate. As long as the settlement
court has jurisdiction because of
the GROSS VALUE OF THE
ESTATE, the settlement court will
have the authority to resolve ALL
incidents that are brought before
it in relation to the liquidation of
the estate of the deceased
person.
Under the Rules also, if there are
10 claimants for money, and they
all have submitted their claims in
the form of an affidavit, the Rules
expect
the
to
respond to the claims, so he can
contest
or
accept
the
genuineness or validity of the
claims.
If the administrator/executor
does not respond at all, can
the
court
declare
the
in
default?
No. Because, the claim is not in
the form of a complaint, only in
the form of an affidavit. So there
is
no
default
if
the
administrator/executor does not
respond to the claim.
If
the
contests
the
claim,
he
is
expected to reduce his contest
formally in writing, stating the
defenses
that
the
administrator/executor wishes to
set up when that particular claim
is
filed.
If
the
admits
the claim, he will simply state
that he is not contesting the
claim. So it is very likely that the
will
collude or conspire with a
creditor who has filed a claim by
simply telling the court that he is
admitting the genuineness of a
particular
claim.
There
is
mechanism given in the Rules for
this
situation.
If
the
administrator/executor admits a
claim for money, the heirs can
submit their opposition to the
admission of the claim, in which
case, the claim will become a

contested claim.
If there are contest given by the
administrator/executor to the 10
claims
submitted
by
the
creditors, then the court will have
to try these 10 claims, as if there
is a full blown trial, to be taken
up in the settlement court. The
court can easily avoid conducting
a hearing in cases of contested
claims by using another provision
in the Rule 86, that is to appoint
commissioners in order to hear
the claims of the creditors.
In Rule 109, the order for each
and every claim is considered as
a final order. So if the court
eventually denies all the 10
claims, and the creditors feel
aggrieved, expect the creditors
to appeal to the CA or SC as the
case may be. There will be 10
appeals emanating from the
same proceedings. While these
appeals are going on, the
settlement court will have to wait
until they are finally adjudicated.
So that is why although the
policy of the state is to speedily
dispose
of
settlement
proceedings, by providing in the
Rules a clear period within which
a settlement proceedings should
be terminated and closed, it is
Rule 109 that will necessarily
cause a delay in the closure of
settlement proceedings, because
of the number of appeals that
can be taken in each and every
final order that can be granted
by the settlement court. Under
the Rules, the resolution of each
money claim is a final order.
Let us assume that all claims
had
been
resolved
and
granted by the court, and the
administrator/executor does
not appeal. The final order
became final and executory,
it will now be entered. Can
the creditors, whose claims
have been approved, file in
the
settlement
court
a
motion for execution under
Rule 39?
No. The settlement court is not
bound to issue or to order an
execution of its own final order,
even if the final order is
favorable to a creditor with a

claim for money.
Does the judgment creditor
have any other recourse?
None. He cannot make use of
Rule 39.
The only recourse, if we can call
it a recourse, available to a
judgment creditor who has filed a
claim for money is to wait for the
court to issue another order
directing
the
administrator/executor to pay all
these claims. Until that order is
issued,
the
administrator/executor has no
authority to voluntarily pay off
the claims of the judgment
creditors, although they have
already been approved.
Insofar as creditors of an estate
subject
of
settlement
are
concerned, even if they have
won their respective claims,
there is guarantee that they are
going to be paid. It is also
possible that they will not be
paid at all if the estate is
insolvent.
There
are
more
liabilities than assets, then the
settlement court will be forced to
make use of the provisions in the
NCC
on
preference
and
concurrence of credits.
A creditor cannot tell himself that
since his claims had been
approved by the court, all that he
needs to do is to wait for the full
payment. There is no assurance
that a creditor in a settlement
proceeding could even be paid. If
he is going to be paid, there is no
assurance that he will get the full
amount of his claim, it could only
be a part. This is when the court
will start to use the NCC
provisions on preference and
concurrence of credits.
In preference and concurrence of
credits, there are credits that are
more
preferred
than
other
credits. There is need to pay
these preferred creditors before
the rest of the creditors can be
paid. And the Rules are very
clear in saying that when there
are more assets that liabilities in
the estate, the estate being
insolvent, the settlement court is
208 | R e m e d i a l
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duty-bound
to
observe
the
preference and concurrence of
credits.
So, always have in mind that
judgment creditor in a settlement
proceeding cannot make use of
Rule 39. No writ of execution, no
levy on execution. And, we
cannot say with certainty that a
duly approved claim of a creditor
will lead to payment in full. There
could be full payment, partial
payment or no payment at all,
depending
on
the
financial
condition of the estate that is
being settled.
How about the heirs? Can
these
heirs
enter
into
possession of some of the
properties under liquidation?
They may not. The purpose of a
settlement
proceeding
is
primarily to protect the state and
most of the creditors of the
deceased. Until the creditors of
the decedent are fully satisfied,
the heirs cannot take over
possession and control any of
any properties of the estate. The
entity that has full control of the
estate of a deceased person is
the settlement court, probate
court or intestate court as the
case may be.
So how will the surviving
spouse and minor children
survive?
There are some provisions in the
Rules and the NCC that during
the pendency of the settlement
proceedings,
the
surviving
spouse and the children will be
entitled to allowances determine
by the court. And it is the duty of
the administrator to comply with
the order of the court directing
him to give allowances to the
surviving spouse and minor
children.
What the settlement court is
prohibited from doing is to allow
the surviving spouse and the
heirs to take over possession and
control over properties of the
estate before the creditors are
fully paid or the estate has been
exhausted for the payment of
these creditors.
Supposing that the statute of

non-claims
has
already
expired, and the court has
already resolved the validity
of these claims, but the
reports to the court that
there are not much liquid
assets of the estate. Can the
court
authorize
the
administrator/executor to pay
creditors whose claims had
been approved through the
mechanism known as accion
en
pago
(pay
using
properties belonging to the
estate)?
Generally, dacion en pago is not
allowed in settlement cases. A
court will not allow or authorize
an
to
settle a monetary obligation with
properties of the estate. The
procedure outlined in the Rules
where assets are enough to pay,
but the assets are not in cash is
for the administrator/executor to
ask the convert for authority to
convert
the
hard
assets
(properties) into liquid assets
(cash) by selling the properties of
the estate.
The order of preference is to sell
personal
properties
first.
Generally, this is the rule
followed by the settlement
courts. If we are going to sell
properties in order to generate
cash to pay off creditors, we sell
first personal properties. And
then, if the proceeds are not
enough still, the court can
authorize the sale, mortgage or
encumbrance of real properties.
So, the Rules seem to allow only
a sale of personal property, but
not mortgage or encumbrance of
personal properties of the estate.
But the Rules are very clear that
in the case of real property, there
could be a sale, mortgage or
encumbrance, if so directed by
the court.
The
authority
of
the
administrator/executor to sell
properties,
whether
real
or
personal, does not stem from his
authority
as
an
He
should get a special order from
the settlement court authorizing
him to sell particular pieces of

properties. And it is the court
that will determine under what
conditions under which the
contract of sale should be had,
and
if
signed
by
the
Can
the
administrator/executor, after
he has obtained an authority
to sell properties of the
estate, sell these properties
in a private sale or public
auction sale?
Yes to either, as long as the court
authorizes the sale in either a
private or public sale of these
properties. The settlement court
has almost complete discretion in
determining the cognizance for
the disposition of the properties
of the estate for the purpose of
generating money with which the
administrator/executor can pay
the claims of creditors.
If the administrator/executor
has already amassed enough
cash in order to pay off the
creditors,
can
the
administrator/executor start
paying or liquidating in full
the approved claims against
the estate?
He cannot still. He needs another
order from the court, directing
him, the administrator/executor,
to pay creditors whose claims
had already been approved. So,
the
should always be relying upon
the directive that will be issued
from the settlement court.
If the administrator is directed to
pay off already his creditors
because
there
are
already
enough funds, and the creditor
neglects to pay the creditors, can
the creditors this time make use
of Rule 39, to file a motion for
execution?
They still cannot. We do not use
Rule
39
in
settlement
proceedings.
If
the
disregards the order of the court
directing him to pay his creditors,
the creditors can move to cite
him in contempt of court, or the
court can even remove him as an
209 | R e m e d i a l
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appoint another.
and
If all the creditors have been

paid, and there are enough
assets left for distribution to
the surviving heirs, legatees
or devisees, if there is a will,
the next problem to be
resolved by the court is
determining who the heirs
are. We have learned that a
settlement court is a court of
very
limited
jurisdiction.
Does it possess authority to
determine who the heirs are?
Yes, that is part of the limited
jurisdiction of a settlement court.
So if the settlement court can
determine who the heirs are, the
court is likewise authorized to
determine the distributive share
of each of these heirs.
What
the
settlement
court
cannot
do
is
to
resolve
contentious issues concerning
title to or possession of real
property. In a dispute between
the estate and a 3rd person
concerning the property, the
settlement court has no authority
to resolve that issue. It has to be
resolved in an ordinary civil
action. The only recognized
exception that is recognized by
the SC, although not contained in
the Rules, is that if all the parties
agree
to
submit
this
matter/dispute concerning title or
possession of property to the
settlement court for resolution. If
there is such an agreement, that
will place these parties in
estoppel from challenging later
on the resolution of the court.
The
declaration
by
the
settlement court as to who the
hers are is another final order
that can be appealed to a higher
court. It is not an interlocutory
order.
Even if the heirs have already
been determined by the
court, the other problem now
is how to divide the estate
and distribute the estate
among the heirs. If they
cannot agree on the manner
of division, can they file a
special
civil
action
for
partition?
They cannot if there is a pending
settlement proceeding in court.
The partition of the estate, how
they will divide the property, is
within the authority of the
settlement court to determine.
So if they want the settlement
court to have the ultimate
responsibility
to
divide
the
property, they can submit that
issue to the settlement court.
If they do not want the
settlement court to settle that
issue, the compulsory heirs, the
devisees and legatees can agree
on what is usually called in
settlement proceedings as a
project of partition. A project of
partition is usually agreed upon
voluntarily among the heirs. They
sign it and then submit it to the
court
for
approval.
Once
approved by the court, the court
will issue another order directed
to the administrator called an
order of distribution.
If
the
neglects to distribute, again the
remedy is not Rule 39, it is
simply
to
cite
the
in
contempt or the court will ask
him to resign or be removed by
the court from that office.
If all the creditors had been
paid, and the heirs have
received their distributive
shares
according
to
the
project of partition, will the
proceedings
now
be
terminated?
Before termination, there is a
final stage before the court will
issue an order of closure, the
order which will terminate the
proceeding. It is essential that
the court should conduct a
hearing and approve the final
accounting
of
the
Under
the
Rules,
an
is
required to submit an accounting
once a year. If all these
submissions have been approved
in the past, then there is no more
need to repeat them during final
accounting. If you also again
read Rule 109, each and every

approval by the settlement court
of an accounting is a final order.
If there is a final accounting
submitted and that is approved
by the court, it is a final order. If
that is appealed, the settlement
court in the meantime will not
issue an order of closure. When
there is already an order of
closure, the period to appeal
therefrom has expired, then the
order of closure will be entered.
That will mark the end of the
proceedings.
Supposing that after the order of
closure has been entered and the
proceedings
have
been
terminated, here comes an heir
who claims that he has been
deprived of his distributive share
in the estate, and here comes a
creditor who claims he is a
creditor for money but he was
unaware that there was a
settlement proceeding.
Can the heir file his own
petition for the settlement of
estate
for
the
same
decedent? Can the creditor
also
commence
his
own
petition for the settlement of
the estate?
No to both remedies. There
should be only one settlement
court allowed, and it has already
terminated the proceedings.
If
there
is
only
one
settlement court allowed, but
the settlement proceedings
have already been closed,
what remedy do the heir and
creditor have, if there is any
remedy at all, that is if we
want to life to the principle
that there should be only one
settlement court?
The remedy of the heir is to look
for reopening of the case. A
proceeding that has already been
closed can be reopened by the
same settlement court. This is
insofar as the heir is concerned,
if he can show that he has been
unjustly deprived of his estate.
But insofar as the creditor for
money is concerned, he does not
have this privileged for asking for
reopening, because his claim for
210 | R e m e d i a l
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Review
money must have been filed

during the running of the statute
of claims. If he has failed to do
so, following the provisions of
Rule 86, the creditors claim shall
be barred forever.
petition for the settlement of the

estate, which is not allowed
under these Rules. So, as of now,
there is really no fixed period
within which a petition for the
reopening of the settlement
proceedings could be filed.
So, the person who can ask for

reopening will be an heir, not a
creditor of the estate.
Remember that a final order in
settlement
proceedings
is
considered a judgment in rem. It
binds anybody who might have
an interest upon the estate. That
is the rule we are applying
insofar
as
the
creditor
is
concerned. The order of closure
will be binding upon the creditor,
because the prescriptive period
given in the Rules has already
lapsed. His claim is barred
forever.
But insofar as the heir is
concerned, he can capitalize on a
provision in the Rules which says
that aside from publication of the
notice of hearing of the probate
of a will, or for the filing of letters
of
administration,
it
also
jurisdictional for that settlement
court to give personal notice to
the heirs, legatees or devisees
mentioned in the will.
The notice, which is also
jurisdictional together with the
publication, refers to a notice by
registered mail that must be
strictly adhered to by the
settlement court. Otherwise, if
not strictly adhered to insofar as
the heir is concerned, he can
always contend that the court
has not acquired jurisdiction over
his person. That could be used by
this heir deprived of his share in
order to challenge the nature of
the order of closure as a
judgment in rem.
The SC has not fixed any period
at all within which a motion or
petition for the reopening should
be filed. It seems that it is not
possible to fix a period within
which a period for reopening
could be filed, because if we
place a period of prescription, the
only remedy that will be left to
the heir will be to file his own
Q: What are the remedies of

the
aggrieved
party
in
summary
or
extrajudicial
settlement of the estate?
COMP
Should be brought
EL THE within 2 years after
SETTL
settlement
and
EMENT distribution of the
OF
estate
ESTAT
GROUNDS: (Section
E
IN 4, Rule 74)
COURT a. If there is undue
S
deprivation of lawful
participation in the
estate;
b. Existence of debts
against the estate.
ACTIO
N FOR
RESCIS
SION
ACTIO
N FOR
RECON
VEYAN
CE OF
REAL
PROPE
RTY
It must be availed of
within 5 years from
the time the right of
action accrues. (Art.
1149, NCC)
Also applicable in
judicial proceedings
GR: It is based on
an
implied
or
constructive
trust
which prescribes in
10 years from the
date of registration
or date of issuance
of certificate of title
or
from
actual
discovery of fraud if
the registration was
made in bad faith.
XPN: If the plaintiff
is in possession of
the property and did
not pass to innocent
purchaser for value
and
good
faith,
action
is
imprescriptible.
(Marquez v. CA, G.R.
No. 125715, Dec.
29,
1998)
Also
applicable in judicial
proceedings.
REOPE
NING
BY
INTER
VENTI
ON IN
SUMM
ARY
SETTL
EMENT
PETITI
ON
FOR
RELIEF
(SUMM
ARY
SETTL
EMENT
)
ACTIO
N
TO
ANNUL
A
DEED
OF
EXTRA
JUDICI
AL
SETTL
EMENT
OR
JUDGM
ENT IN
SUMM
ARY
SETTL
EMENT
ORDIN
ARY
ACTIO
Upon motion of a
person who either:
a.
Has
a
legal
interest
in
the
matter in litigation;
b. Has such legal
interest
in
the
success of either of
the parties, or an
interest
against
both; or
c. Is so situated as
to
be
adversely
affected
by
the
distribution
of
property
in
the
custody of the court
or of an officer.
Note:
May
be
availed
of
after
judgment but before
its finality or appeal
by the aggrieved
party.
On grounds of fraud,
accident,
mistake,
and
excusable
negligence within 60
days after petitioner
learns
of
the
judgment,
final
order
or
other
proceeding to be set
aside, and not more
than 6 months after
such judgment or
final
order
was
entered. (Rule 38.)
Also applicable in
judicial proceedings.
On the ground of
fraud which should
be filed within 4
years
from
the
discovery of fraud.
If
the
order
of
closure has already
become final and
211 | R e m e d i a l
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N BUT
NOT
AGAIN
ST THE
BOND
executory, the heir

must
file
an
independent
civil
action
of
accion
reinvindicatoria
to
recover his deprived
share.
Note: It must be
brought within 10
years from the time
the right of action
accrues.
[Art.
1144(c)]
Also applicable in
judicial proceedings.
After the lapse of
two
years
an
ordinary action may
be instituted against
the
distributees
within the statute of
limitations but not
against the bond.
Rule 91 ESCHEAT
The special proceeding after
settlement is escheat. Although
escheat
comes
right
after
settlement, it does not mean to
say that escheat is an integral
part of an estate settlement
proceeding. Escheat proceedings
are independent of settlement
proceedings, although the nature
of
escheat
proceedings
contemplated in the Rules is also
one where a person has died and
there is no will, and then there
are no persons who claim to be
entitled to the estate. But if you
read the last section of escheat,
there is another proceeding
contemplated which could be
different from escheat. We call it
a reversion proceeding.
Rule 91 SEC. 5.
Other actions for
escheat.Until
otherwise
provided by law,
actions
for
reversion
or
escheat
of
properties
alienated
in
violation of the
Constitution or of
any statute shall
be governed by
this rule, except
that the action

shall
be
instituted in the
province
where
the land lies in
whole or in part.
The escheat contemplated in the
Rules is one where a person has
died, left no will and there are no
person who claim to be entitled
to the estate as heirs or any
other capacity whatsoever.
In an escheat proceedings under
these antecedents, is that the
proceeding will be initiated by
the
Solicitor-General
in
his
capacity as the lawyer of the
Republic. So, it is also an in rem
proceedings. Petition for the
escheat of the properties of Juan
dela Cruz. This is also a
proceeding in rem because there
is no party impleaded as
defendant.
It
is
not
also
adversarial, theoretically. The
publication requirement is much
longer than the publication
requirement
in
settlement
proceedings. If the escheat court
finds the petition sufficient in
form and substance, and the
jurisdictional requirements have
been met by proof of publication,
the escheat court will declare the
properties of the deceased
person as escheated in the name
of the Republic of the Philippines.
The provisions of the Rules on
how the properties will be
distributed are mere reiterations
of the provisions found in the
NCC. You will notice then that
there seems to be no protection
at all extended by the Rule of
Escheat to creditors of the
deceased, unlike that extended
in settlement proceedings where
parties are notified and they are
required to submit their claims
within a certain period of time, or
else their claims are barred.
There is no such procedure under
escheat proceedings So if the
escheat court has issued an
order escheating the properties
in favor of the state, the state
will just distribute the properties
in accordance with the provisions
of substantive law.
If it turns out that there are

creditors of the deceased, do
these creditors have any
remedy at all to enforce their
claims, although the estate
of the deceased debtor has
not
been
settled
in
accordance with settlement
proceedings?
The escheat court in fact will give
creditors a very long period of 5
years within which to file their
claim. Within that 5 years, the
escheat court will either approve
or deny the claims, and then
order the payment of these
claims.
Can the settlement court
convert itself into an escheat
court if in the settlement
proceedings, there are no
claimants to the estate under
settlement there being only
creditors,
but
no
heirs,
devisees or legatees?
No. It cannot convert itself into
an escheat court. In an escheat
proceeding where decedent had
left no will, nor are there any
heirs or creditors, the proceeding
should be commenced by the
solicitor-general
via
an
independent petition for escheat.
It is also incorrect to assume
where escheat is applicable only
in situations where the owner is
dead. Even if the owner is still
alive, there could be escheat
proceedings
under
certain
special laws, particularly the Law
on Unclaimed Balances Act. This
law covers bank deposits that
have remained dormant for a
period of at least 10 years. If the
depositors
of
these
bank
accounts leave their accounts
dormant for a period of 10 years,
the Republic of the Philippines
will confiscate these dormant
accounts. So, it is not good to
deposit in a bank and keep it
dormant. You should keep on
depositing and withdrawing, as
the case may be, so that may
prevent the Unclaimed Balances
Act from being implemented in
your account.
This dormant bank accounts will
also be the subject of escheat
proceedings. The Republic of the
212 | R e m e d i a l
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Philippines will file a petition for

the escheat of these dormant
accounts. And once the court has
granted the petition, the deposits
will be turned over to the
national treasury. These dormant
accounts might be in millions of
pesos, because they have been
dormant for about 10 years, and
it must have kept on earning
interest.
Is this not unconstitutional?
SC said it is not unconstitutional.
It is merely an exercise of the
Republic of the Philippines will of
its police power. It is not eminent
domain since the state is
confiscating
money
without
paying just compensation to the
owners. If it were expropriation
or eminent domain, the Republic
of the Philippines will be forced
to pay just compensation for
these dormant deposits.
REVERSION
With respect to the reversion, it
is also a proceeding in rem
according to the SC. Although,
there is a particular individual
who is impleaded for the
recovery of properties that are illgotten. The SC said these are
also proceedings in rem. And
with respect to a reversion filed
by the Sol-Gen involving real
properties, the SC recently ruled
on the issue as to whether
proceeding for the recovery of a
real property is cognizable by an
MTC or RTC, depending upon the
assessed value of the property
based on the standards under BP
129, the SC said that it is
possible
that
a
reversion
proceeding
involving
titled
property will be cognizable by an
MTC if the assessed value of the
property is within the jurisdiction
of the MTC as embodied in BP
129. But even if the assessed
value of that property is within
the
jurisdictional
amount
assigned to the MTC, the MTC will
have no jurisdiction if it will
involve the setting aside of a
judgment or annulment of a
judgment that has already been
rendered in the past by the court,
more
particularly
if
that
judgment has been a duly
entered judgment. SC said MTC

will have no authority over that
reversion proceeding because
the reversion will include another
aspect, that is annulment of
judgment, over which an MTC
does not have any jurisdiction
under BP 129.
Rule 102 HABEAS CORPUS,

WRIT OF AMPARO, WRIT OF
HABEAS DATA
If you are asked whether a
writ of habeas corpus issued
by a court will release a
detainee from detention, that
is if upon issuance of the
writ, will that result to the
release of the detainee from
detention?
No. A writ of habeas corpus, even
if issued by the court, does not
mean the detainee will be
released from detention. What
the writ of habeas corpus
provides is that the respondent
will be required to present to the
court the detainee on a particular
day and period before the court.
And after the detainee had been
presented on that particular day
and period, the respondent
would have complied with the
writ of habeas corpus. So a
petition for habeas corpus, once
granted, does not mean that the
detainee will be released from
detention.
What
will
release
the
detainee from detention?
Under Section15, Rule 102, if the
writ
is
issued
with
a
complimentary
order
after
hearing that will lead to the
release of the detainee from
detention. The order in Section
15 is called an order of discharge
or an order of release. So, it is
not the writ of habeas corpus
itself that will lead to the release
of the detainee.
Rule 102 SEC. 15.
When
prisoner
discharged
if
no
appeal.When the court
or judge has examined
into the cause of caption
and restraint of the
prisoner, and is satisfied
that he is unlawfully
imprisoned or restrained,
he shall forthwith order
his
discharge
from
confinement, but such
discharge shall not be
effective until a copy of
the order has been
served on the officer or
person
detaining
the
prisoner. If the officer or
person
detaining
the
prisoner does not desire
to appeal, the prisoner
shall
be
forthwith
released.
It is the order of discharge or
release that will be issued by the
court after conducting a hearing,
which could be a summary
hearing, after a return was
submitted by the respondent to
the
court.
So
that
is
a
complementary order issued by
the habeas corpus court that will
now authorize the detainer to
release the detainee.
With respect to jurisdiction, the
provisions of the law creating the
Family Court, the Constitution as
well as BP 129 have long been
the
subject
of
discussions,
because under the law creating a
Family Court, the court has
exclusive
original
jurisdiction
over petitions for custody of
children and habeas corpus in
relation to custody of children.
The intention of the law is quite
clear by merely reading the
substantive law creating the
Family Court. The family court
has exclusive original jurisdiction
over petitions for habeas corpus
in relation to custody of a minor.
And
of
course,
in
the
Constitution, the SC has also
original jurisdiction over petitions
for habeas corpus, together with
certiorari,
prohibition,
mandamus, etc. And then, under
BP 129, the CA is likewise vested
with original jurisdiction over the
same petitions. That includes
habeas corpus. The RTC likewise
has original jurisdiction over
petitions for habeas corpus.
So, there seems to be an
inconsistency or conflict between
the Constitution, BP 129 and the
213 | R e m e d i a l
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law creating a Family Court which

assigned to a family court
exclusive
original
jurisdiction
over petitions for habeas corpus
in relation to custody of a minor.
designed to favor of a detainee

who claims that he is being
deprived of his liberty by means
of an unlawful detention.
The SC has already settled this

issue. The SC has already ruled
that
notwithstanding
the
provisions of the Family Court
Law assigning exclusive original
jurisdiction to a family court over
petitions for habeas corpus in
relation to custody of a minor,
the SC, CA and the RTC still
exercise
jurisdiction
over
petitions for habeas corpus.
Q: When is habeas corpus not

applicable?
A:
1. When detained under a
lawful cause.
2. In case of invasion or
rebellion or when public safety
requires it, under Art. III, Sec.
15, 1987 Constitution.
3. When in case of invasion or
rebellion or when public safety
requires it, for a period not
exceeding 60 days, under Art.
7, Sec. 18, 1987 Constitution.
4. If the jurisdiction of the court
to try the person detained
appears after the writ is
allowed. (Sec. 4, Rule 102).
5. If the person is in custody of
an officer under process issued
by a court or by virtue of a
judgment or order of a court of
record which has jurisdiction to
issue the process, render the
judgment, or make the order.
(Sec. 4, Rule 102).
6. If the person is charged or
convicted of an offense in the
Philippines. (Sec. 4, Rule 102).
7. If the person is suffering
imprisonment
under
lawful
judgment. (Sec. 4, Rule 102).
8. In case of three-day
retention of a suspect for three
days without charge, pursuant
to Sec. 18 of the Human
Security Act.
9. When person is serving final
sentence imposed by court.
10. For asserting or vindicating
a denial of right to bail.
11. For correcting errors in
appreciation of facts or of law.
From a procedural point of view,

habeas corpus is limited to only
two instances. The first is when
there is unlawful detention,
which deprives a person of his
liberty. And the second situation
is when the lawful custody of the
person is withheld.
If there is a detainee who
complains that his detention is
unlawful, he will file a petition for
habeas corpus. Rule 102 provides
that the petition can be filed by a
person on behalf of the detainee.
Our problem in habeas corpus is
that jurisprudence is to the effect
that when there is another
person who files a petition for
habeas corpus on behalf of the
detained person, this has been
construed very restrictively by
the SC. The SC has ruled several
times in the past that a stranger
who files a petition for habeas
corpus on behalf of a detainee
should show or demonstrate his
personality or his standing as to
why he is interested in the
release of the detainee. So there
must be a relationship between
the petitioner and the detainee,
if the petition is not filed by the
detainee himself.
If the petition is sufficient in form
and in substance, the habeas
corpus court can right away issue
the writ of habeas corpus. There
is no need for the court to hear
the side of the respondent. So if
we stop at these principles of
habeas corpus, it would seem
that
habeas
corpus
is
a
prerogative writ of liberty, it is
Note: Issuance of a writ of

habeas corpus may not lie in
order to revive a settled issue of
the validity of the writ of
preliminary injunction issued in
an agrarian case allegedly on the
ground of the existence of a
tenancy relationship between the
parties arising from their arrest
for having assaulted persons in
authority. (Bernarte v. CA, G.R.
No. 107741, Oct. 18, 1996).
Loss of the records of the case

after petitioner, by his own
admission, was already convicted
by the trial court of the offense
charged will bar the issuance of a
writ of habeas corpus. The loss
must have occurred prior to the
filing of the information against
him. (Feria v. CA, G.R. No.
122954, Feb. 15, 2000).
It has been noted that the
ORDER contains a provision
enjoining the prosecution of the
Accused in the Criminal Case.
That is error. If the Accused was
illegally detained because he was
arrested without a preliminary
examination, what should have
been done was to set aside the
warrant of arrest and order the
discharge of the Accused, but
without enjoining the Municipal
Judge
from
conducting
a
preliminary
examination
and
afterwards properly issuing a
warrant of arrest. Habeas Corpus
proceedings are not meant to
determine criminal responsibility.
(Alimpoos v. CA, G.R. No. L27331, July 30, 1981).
In case of an illegal arrest, the
petition for a writ of habeas
corpus will still not prosper if the
detention has become legal by
virtue of the filing before the trial
court of the complaint against
him and by the issuance of an
order denying bail. (Velasco v.
CA, G.R. No. 118644, July 7,
1995).
Habeas Corpus may be had to
give retroactive effect to a
previous ruling of the Supreme
Court favorable to the accused
when the accused has already
served the full term for a crime
which the Court has declared
non-existent.
(Gumabon
v.
Director of the Bureau of Prisons,
G.R. No. L-30026, Jan. 30, 1971).
However, it will not lie if the
penalty of imprisonment imposed
by the court is longer than that
allowed by law. Such error of
judgment may be corrected by
appeal or by the President.
(Pomeroy v. Director of Prisons,
G.R. No. L-14284, Feb. 24, 1960).
The writ of habeas corpus cannot
be issued in cases in which the
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Bureau of Immigration has duly

ordered
the
deportation
of
undocumented
aliens,
specifically those found guilty of
illegally entering the Philippines
with the use of tampered and
previously cancelled passports.
(Tung Chin Hui v. Rodriguez, G.R.
No. 141938, April 2, 2001).
Q: May a wife secure a writ of
habeas corpus to compel her
husband to live with her in
the conjugal home?
A: No. Marital rights including
coverture and living in conjugal
dwelling may not be enforced by
the extra-ordinary writ of habeas
corpus. In case the husband
refuses to see his wife for private
reasons, he is at liberty to do so
without threat of any penalty
attached to the exercise of his
right. That is a matter beyond
judicial authority and is best left
to the man and womans free
choice. (Ilusorio v. Bildner, G.R.
No. 139789, May 12, 2000).
But if we reach the last sentence
of Section 4, then the problems
will now come out. Because in
the last sentence of Section 4, it
is provided that if a person has
been convicted or charged of a
crime, he is under detention by a
lawful process issued by a court,
there is no way that he can be
released from detention through
a petition for habeas corpus.
Rule 102 SEC. 4. When
writ not allowed or
discharge authorized.
If it appears that the
person alleged to be
restrained of his liberty is
in the custody of an
officer
under
process
issued by a court or
judge or by virtue of a
judgment or order of a
court of record, and that
the court or judge had
jurisdiction to issue the
process,
render
the
judgment, or make the
order, the writ shall not
be allowed; or if the
jurisdiction appears after
the writ is allowed, the
person shall not be
discharged by reason of
any informality or defect
in the process, judgment,
or order. Nor shall
anything in this rule
be held to authorize
the discharge of a
person charged with
or convicted of an
offense
in
the
Philippines, or of a
person
suffering
imprisonment
under
lawful judgment.
And then, if we relate Section 4
to Section 13 of Rule 102, we will
meet very strict procedural
requirements which the
Rule require the petitioner to
comply with so that the court will
be convinced in order to issue a
writ of habeas corpus or an order
of discharge. Section 13 apples
when
a
return
is
already
submitted by the respondent.
Rule 102 SEC. 13.
When
the
return
evidence, and when
only a plea. If it
appears that the prisoner
is in custody under a
warrant
of
commitment
in
pursuance of law, the
return
shall
be
considered prima facie
evidence of the cause
of restraint; but if he is
restrained
of
his
liberty by any alleged
private authority, the
return
shall
be
considered only as a
plea
of
the
facts
therein set forth, and
the party claiming the
custody must prove such
facts.
You will notice that in Rule 102
although the court can issue the
writ can be issued without
hearing the other side as long as
the petition is sufficient in form
and substance, there is nothing
in Rule 102 which fixes a date
when a return should be filed in
the habeas corpus. So, we rely
on the discretion of the court as
to when a return should be filed
by the respondent. So the court
can require the respondent to file

the return after 15 days, 20 days
or 30 days as the case may be.
If the respondent indeed files a
return, Section 13 provides that if
the respondent is a public officer,
and he admits that he is
detaining the petitioner, the
detainee,
but
under
some
process issued by the court, that
return is prima facie presumed to
be correct. That means the
detention is correct, if that is the
tenor of the return submitted by
the respondent. But if the
detainer is not a public officer, a
private individual, when the
return says that the detention by
the respondent private individual
is lawful, it is not considered as
presumably correct. It will only
be considered as a plea.
Why is this Rule very prejudicial
to the detainee? Let us say the
respondent is the chief of the
PNP, he is required to file a
return. He submits a verified
return saying that they are
detaining petitioner based on
court
processes
authorizing
detention by the PNP. Insofar as
the habeas corpus court is
concerned, the detention is
presumably lawful. So it is up to
the petitioner to contravene this
disputable
presumption
of
regularity in the performance of
service by the PNP. From a purely
evidentiary angle, that will make
it hard for the petitioner to
disprove
the
disputable
presumption created in Section
13, that the detention is prima
facie presumed to be an orderly
and lawful detention.
Why do we say this? Because if
the respondent has in his favor
that the detention is prima facie
proper, then, he does not have
to present any evidence at all
about the lawfulness of the
detention.
He
enjoys
a
presumption created by law. It is
the burden of the petitioner to
disprove that presumption, to
present the quantum of evidence
necessary
to
dispute
the
presumption of regularity given
in the Rules and by substantive
law.
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If the respondent enjoys this

disputable presumption that the
detention is lawful, the quantum
of evidence required in the RoC
to
defeat
a
disputable
presumption is of a much higher
level, that is the level of clear
and convincing evidence. But
remember that habeas corpus is
not a criminal case. It is a special
civil action akin to an ordinary
civil action or even a special civil
action, and the quantum of
evidence in ordinary or special
civil
actions
is
just
preponderance of evidence. But
in habeas corpus, because the
respondent enjoys a disputable
presumption, that the detention
is lawful and proper, it will create
a very big burden on the part of
the
petitioner
to
present
evidence that will reach the level
of clear and convincing evidence
to disprove that disputable
presumption. That has always
been the rule that was followed
in habeas corpus cases.
But if the one detaining is not a
public
officer,
a
private
individual, then we dont apply
this disputable presumption of
regularity. For instance, if a
woman gives birth to an infant in
a clinic, and when she wants to
leave the clinic, the clinic tells
the woman that she is allowed to
leave, but the infant must be left
behind and will stay there until
the woman has fully paid the
medical bills. That could be the
subject
of
habeas
corpus,
because the lawful custody of the
mother
is
being
unlawfully
withheld from her, as means of
leverage against the woman to
enforce payment of hospital bills.
And if there is a return submitted
by the owner of the clinic, it is up
to him to prove that the
detention is lawful. The quantum
will
only
be
preponderant
evidence, which is the same
quantum the petitioner will also
be required to submit to court.
In Section 4 also, if you notice, if
there is already a conviction by
the court, and the convict is now
in jail, a petition for habeas
corpus will not be proper in order
to obtain his release. But, there

are several exceptions to this
rule. Even if a person is already
convicted of an offense, and the
conviction has become final and
executory, and he is now serving
sentence, he can still obtain his
release through a petition for
habeas corpus if the situation is
covered by the Rule on DNA
evidence (A.M. No. 06-11-5-SC).
There is a section on the circular
on DNA evidence entitled postconviction DNA testing.
(A.M.
No.
06-11-5SC)SEC.
10.
Postconviction
DNA
Testing. Remedy if the
Results Are Favorable
to
the Convict.The convict
or the prosecution may
file a petition for a writ of
habeas
corpus in the court of
origin if the results of the
post-conviction
DNA
testing are
favorable to the convict.
In case the court, after
due hearing, finds the
petition to be
meritorious,
it
shall
reverse or modify the
judgment of conviction
and order the release
of the convict, unless
continued detention is
justified
for
a
lawful
cause.
A similar petition may be
filed either in the Court of
Appeals or the Supreme
Court, or with any member of
said courts, which may
conduct a hearing thereon or
remand the petition to the
court of origin and issue the
appropriate orders.
If a person is convicted of a
crime, he is now in jail because
the judgment has become final
and executory. While in jail, he
can move for DNA examination. If
the DNA examination results are
favorable to him, in the sense
that the findings create a doubt
as to whether or not he is the
one who committed the crime,
he can obtain his release through
a petition for habeas corpus. In

other words, the judgment of
conviction that has become final
and executory can be overturned
by a petition of habeas corpus.
Remember that the judgment is
now final and executory, and if
we use civil law, there is now res
judicata. But DNA Circular says
that in a post-conviction DNA
testing authorized by the court, if
the finding creates a doubt as to
whether the detainees stay in
jail is still proper, an RTC can
entertain a petition of habeas
corpus and overturn a judgment
of conviction that has become
final and executory.
There are other instances where
a
judgment
of
conviction
although final and executory can
be defeated by a petition for
habeas corpus. In one case, there
was a judgment of conviction,
serving his sentence. While the
convict was serving sentence,
the Congress enacted a law
which reduced the penalty for
the crime committed by the
convict. Since the convict has
served the sentence as imposed
by the new law, he filed a
petition for habeas corpus,
saying that he has already
served
the
sentence,
and
therefore
his
stay
in
jail
constitutes deprivation of his
liberty, a case of unlawful
detention. And the court issued
the writ of habeas corpus and
ordered the release of the
convict. (Robin Padilla case)
So simply because there is a final
judgment of conviction, it does
not mean to say that petition for
habeas corpus is no longer
available as what Section 4
intends to say as a message.
There are several instances still
where a final judgment of
conviction can be overturned,
and the convict will be released
from custody.
In habeas corpus also, when
it comes to a return filed by a
respondent public officer, if
the respondent tells in the
return that he has custody of
the detainee a few months
ago, but the detainee has
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already been released by

said
officer,
with
documentation showing that
the detainee has already
been release, what is the
effect of this return upon the
petition of habeas corpus?
The SC said that if the detainee
has already been released, and
proven by preponderance of
evidence, then the petition for
habeas corpus has become moot
and academic and the petition
for habeas corpus is going to be
dismissed.
Or, in other instances when a
public officer submits a return
consisting of one sentence,
stating that he does not have the
petitioner in his custody, that is a
sufficient return according to the
SC.
In other words, when it comes to
habeas corpus, if you look at it
solely from a procedural point of
view, the aces are in the hand of
the respondent public officer. He
can file a very simple return that
is effectively a general denial, if
we are going to apply the rules
for ordinary civil actions. The
statement of denial of custody is
a general denial as it does not
give the circumstances upon
which he relies upon to support
that denial. That is allowed in
habeas corpus. This because,
habeas corpus is not a civil
action, and therefore, the rules of
ordinary civil procedure cannot
be applied to a petition for
habeas corpus.
There are several procedural
defects that a petition of habeas
corpus will have to waive if we
rely solely on Rule 102. These
defects were pointed out a while
ago. A general denial is allowed.
We cannot compel a respondent
to give particulars in support of
that denial.
Another procedural defect is that
a person, not a detainee, who
files a petition must show to the
court why he is interested in the
release of the detainee. If he
cannot show any interest in the
freedom of the detainee, he will
be considered as not having the
standing to file the petition for

habeas corpus.
And then, when it comes to
evidentiary rules, Section 13 will
always support the stand of the
respondent public officer who is
detaining person. Every time that
he asserts that the detention was
because of some process issued
by a court, his stand will be
presumed, although disputable,
to be correct. Therefore, if the
stand of the public respondent is
the correct stand, the habeas
corpus court will consider the
detention of the detainee as one
that is lawful and proper.
When it comes to appeal, we
have a special rule when it
comes to habeas corpus. In spite
of the different decisions of the
SC in the past as to the period of
appeal in habeas corpus cases,
the SC finally resolved that the
period to appeal in habeas
corpus cases is the one found in
BP 129. The period of appeal is
48 hours, not 15 days, not 30
days. And the SC relied solely on
provisions of BP 129. If you read
the last chapter on general
provision of BP 129, there really
is a 48 hour period in which to
perfect an appeal in habeas
corpus cases.
Since there is a respondent in
habeas corpus cases, do we
consider that as one in personam
or is it one in rem?
This another settled matter. SC
held that it is a proceeding in
rem,
although
there
is
a
particular respondent impleaded
in the action.
If we analyze the effect of
authorizing a petition for habeas
corpus in order to obtain the
release of a person in jail or
already serving a sentence by
virtue
of
a
judgment
of
conviction
rendered
by
a
competent court, like the rule on
post-conviction DNA testing, we
will immediately appreciate that
habeas corpus is a means by
which we can attack collaterally
a final and executory judgment.
That is why, when we are talking
about Rule 47, annulment of
judgments in civil cases, we said

that
while
annulment
of
judgment in Rule 47 is not
applicable to a criminal case, the
remedy available in a criminal
case
is
more
convenient,
because the remedy available in
a criminal case to defeat a final
and
executory
judgment
is
simply a petition for habeas
corpus.
Why is habeas corpus a
collateral
attack
on
a
judgment?
Because the relief which the
petitioner in habeas corpus seeks
is for the court to issue an order
saying that the detention is
unlawful and there is deprivation
of liberty. The habeas corpus
court will not determine directly
whether or not the conviction is
proper or should be set aside,
and that is why it is always a
collateral
attack
from
a
judgment.
If you compare habeas corpus to
annulment of judgment, we will
readily conclude that annulment
of judgment is really a direct
attack against the final and
executory judgment because the
relief which the petitioner in Rule
47 seeks is to declare the
judgment null and void, it should
be set aside because of lack of
matter or the person, or based
on extrinsic fraud. That is not
what habeas corpus does.
When the habeas corpus court
releases a person on a finding
that his confinement or detention
is unlawful. But in declaring that
his confinement is unlawful, the
court will effectively say that
there really is something wrong
with the judgment that has been
rendered by the court. But the
habeas corpus court does not say
that the court did not have
matter or the person, or that
there was fraud committed
during the pendency of the case.
A habeas corpus court, since it is
trying a special proceeding, will
also be acting with a very limited
jurisdiction. So if there is a
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petition for habeas corpus, and

there is an allegation that the
petitioner or detainee is being
unlawfully detained, and that he
is being deprived of his liberty,
the detainee/petitioner cannot
apply for the issuance of
preliminary mandatory injunction
in order to compel the immediate
release of the detainee. This is
because the court will be acting
in a limited jurisdiction in the
sense that what the court will do
only is to determine whether or
not there is unlawful deprivation
of liberty. That independent
action will no longer be a special
proceeding; it will be an ordinary
action for the recovery of
damages. This is to emphasize
that a habeas corpus court is
acting like a settlement court,
one having a very limited
jurisdiction.
Because
of
the
procedural
defects that we have always
encountered when it comes to a
petition for habeas corpus, the
SC issued circulars on amparo
and habeas data.
So one of the purposes of the
circulars on amparo and habeas
data is to remedy the governing
rules and the procedure we
usually apply to petitions for
habeas corpus. And the concept
of amparo and even habeas data
is of a much larger scope than in
habeas corpus. You will note that
in the instances given in Rule
102 in habeas corpus, it is
intended to meet the fact or the
situation that there is an actual
deprivation of liberty, actual
unlawful detention or there is an
actual unlawful withdrawal of
custody.
But in amparo, it is not only
limited to an actual violation of a
constitutional right to life, liberty
and security. It also covers a
threat to violate a right, which is
not possible in habeas corpus. So
if the petitioner simply alleges in
habeas
corpus
that
the
respondent has threatened him
several times to deprive him of
his right to liberty by unlawfully
detaining him, that will not be a
proper ground for habeas corpus.
What habeas corpus requires is

an actual deprivation liberty
because of an actual detention.
In amparo, what is also covered
is a threat of the right to life,
liberty and security. And of
course, in the second part of the
second paragraph of amparo,
extralegal killings and enforced
disappearances are also included
in the writ of amparo.
SECTION 1. Petition.
The petition for a writ
of amparo is a remedy
available
to
any
person whose right
to life, liberty and
security is violated
or threatened with
violation by an unlawful
act or omission of a
public
official
or
employee, or of a
private individual or
entity.
The writ shall cover
extralegal
killings
and
enforced
disappearances
or
threats thereof.
As late as 2009, there was a
criticism hurled at the circular on
amparo on the ground that
although amparo appears to
favor the respondents because
enforced
disappearance
and
extralegal killings are included,
that there is no meaning given to
the term enforced disappearance
in the circular for amparo. That
has been remedied. Congress
enacted a law last year giving a
definition
of
enforced
disappearance. And under that
law, enforced disappearance is
now considered as a criminal act,
although there are predicate
offenses enumerated in that law.
So, we now have a statute which
considers
enforced
disappearances as a crime.
Extralegal killings are
killings
committed
without due process of
law, i.e. without legal
safeguards or judicial
proceedings. As such,
these will include the
illegal taking of life
regardless of the motive,

summary and arbitrary
executions, salvagings
even
of
suspected
criminals, and threats to
take the life of persons
who are openly critical of
erring
government
officials and the like. On
the
other
hand,
enforced
disappearances
are
attended by the following
characteristics: an arrest,
detention or abduction of
a
person
by
a
government official or
organized
groups
or
private individuals acting
with the direct or indirect
acquiescence
of
the
government; the refusal
of the State to disclose
the fate or whereabouts
of the person concerned
or
a
refusal
to
acknowledge
the
deprivation
of
liberty
which
places
such
persons
outside
the
protection
of
law.
(Annotation to the Writ of
Amparo)
Q:
What
are
extralegal
killings?
A: Killings committed without
due process of law, legal
safeguards
or
judicial
proceedings.
(Secretary
of
National Defense v. Manalo, G.R.
No. 180906, Oct. 7, 2008) These
include the illegal taking of life
regardless
of
the
motive,
summary
and
arbitrary
executions, salvaging even of
suspected criminals, and threats
to take the life of persons who
are openly critical of erring
government officials and the like.
Q:
What
are
enforced
disappearances?
A: An arrest, detention or
abduction of a person by a
government official or organized
groups or private individual
acting with the direct or indirect
acquiescence of the government;
the refusal of the State to
disclose the fate or whereabouts
of the person concerned or a
refusal to acknowledge the
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deprivation of liberty which

places such persons outside the
protection of law. (Secretary of
National Defense v. Manalo, G.R.
No. 180906, Oct. 7, 2008)
You
will
also
notice
the
improvements in the circulars on
amparo
and
habeas
data
practically rectifies the stringent
rules that we have always
applied to habeas corpus. For
instance, compared to habeas
corpus, in a petition for amparo,
there
an
express
acknowledgement in the circular
that anybody can file a petition
for a writ of amparo. An NGO or
any stranger can file a petition
for a writ of amparo; unlike in
habeas corpus where although
the Rules say that the detainee
or any person on this behalf can
file, we do not have that
restrictive interpretation that the
SC has made in habeas corpus
cases. So, a stranger can file a
petition for a writ of amparo, and
he does not have the burden to
show why a writ of amparo
should be issued, although the
victim is not at all related to him,
he will have the proper standing
in court insofar as the filing of
amparo is concerned.
You will notice that there is an
order of preference.
Q: Who may file the petition?
A: Any aggrieved party may file
the petition. It may also be filed
by any qualified person or entity
in the following order:
1. Any member of the immediate
family, namely: the spouse,
children and parents of the
aggrieved party;
2. Any ascendant, descendant or
collateral
relative
of
the
aggrieved party within the fourth
civil degree of consanguinity or
affinity, in default of those
mentioned in the preceding
paragraph; or
3.
Any
concerned
citizen,
organization,
association
or
institution, if there is no known
member of the immediate family
or relative of the aggrieved party.
NOTE: The filing of a petition by

the aggrieved party suspends the
right of all other authorized
parties to file similar petitions.
Likewise, the filing of the petition
by an authorized party on behalf
of the aggrieved party suspends
the right of all others, observing
the order established herein.
(Sec. 2).
With respect to the return in
amparo, if we compare it to
habeas corpus, there is a very
big improvement. In amparo and
even in habeas data, there is a
very clear statement that a
general denial is not allowed. So
if the respondent submits a
return containing a general
denial, that will be disregarded
by the court and then the court
may cite the respondent in
contempt of court; unlike in
habeas corpus wherein a general
denial is allowed.
With
respect
to
the
evidentiary rules, what is the
quantum
of
evidence
required in amparo?
You are familiar with the circular
which says that although amparo
is being heard by a court, not by
a
quasi-judicial
body,
the
evidence
required
on
both
parties is merely substantial
evidence. And the respondent
cannot capitalize on a disputable
presumption of regularity in the
performance of official duty.
So if the respondent is a public
officer, which is an essential
element in a petition for amparo,
even if the respondent will say
that he has in his custody or is
detaining the petitioner, and he
submits documents showing that
the detention is supported by
orders of another court or
another body, he cannot enjoy
the presumption of regularity in
the performance of official duty.
So, the amparo court will not look
at the detention as a proper and
regular detention. It will still look
at the detention as more likely to
be an unlawful detention of the
petitioner. And the petitioner in
amparo cases will only be
required to reach the quantum of
evidence
called
substantial
evidence,
the
quantum
of
evidence applied only in quasijudicial
bodies.
In
court
proceedings, the usual quantum
of evidence is usually proof
beyond
reasonable
doubt,
preponderance of evidence or
clear and convincing evidence,
which should normally be applied
to a proceeding for amparo. But
the SC has lowered the quantum
in amparo, although the court is
not a quasi-judicial body. The
respondent cannot set up the
defense the theory should be
presumed to be proper and
regular due to the disputable
presumption of regularity in the
performance of official duty.
Last year, the court decided the
case entitled Bambico vs. Nieva
(June 2012). The SC clearly
spelled out the principle that in a
petition for amparo, there should
be an allegation essential to the
succession for the prosecution of
the petition that the respondents
or the defendants are agents of
the state; or even if the
respondents are only private
citizens, there should be an
allegation that these respondents
have been instructed or they
have been used by government
agents in causing the enforced
disappearance or violation of the
constitutional
right
of
the
petitioner. SC said if there is no
such allegation as to the
participation
of
government
agents, the petition for amparo
will fail. It will simply be a
criminal act that has been
committed by private individuals.
That is not a part of the circular,
that when the SC was given a
chance to explain the concept of
amparo in relation to conventions
entered into among several
states of which the Philippines is
a member, the SC emphasized
this essential allegation: that
there should be a participation
by the state or by agents of the
state in causing the enforced
disappearance of the petitioner.
Also from another procedural
angle, in habeas corpus, a
habeas corpus court has the final
say in fixing the submission of a
219 | R e m e d i a l
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return. In amparo, there is a 72

hour period fixed in the circular.
And then, if you will notice in the
circular on amparo, there is a
long deliberation of prohibited
pleadings and motions, similar to
that in summary procedure,
small claims procedure, and even
in habeas date. Whereas there
are no prohibited pleadings and
motions in Rule 102 with respect
to a petition for habeas corpus.
Another
important
difference
between habeas corpus and
amparo
is
the
express
acknowledgment by the court
now
of
the
existence
of
provisional remedies. In habeas
corpus, we cannot apply for a
provisional remedy. But in the
circular for amparo, there are 4
interim
reliefs.
They
are
effectively provisional remedies
that could accompany petition
for a writ of amparo. They are
Protection
Order,
Inspection
Order (IO), Production Order and
Witness Protection Order (WPO).
The IO and Production Order as
interim reliefs in amparo are
available to both petitioner and
respondent. But the Protection
Order and WPO` are both
available only to the petitioner.
And in these Production Order
and IO in amparo, the amparo
court should conduct a hearing
before issuing these orders. The
amparo court cannot simply
grant a motion ex-parte for the
issuance of these interim reliefs.
You will also notice a big
difference in amparo and habeas
corpus. The appeal in amparo
cases is always to the SC under
Rule 45. And the issues that
could be raised, even if it is the
SC that will be hearing it, could
be both issues of fact and issues
of law, although the mode of
appeal is under Rule 45. This is a
departure
from
the
usual
principle that we apply when we
appeal under Rule 45. The
general rule that we apply in an
appeal under Rule 45 to the SC is
that we can only raise questions
of law. But when it comes to
amparo cases that are appealed
to the SC under Rule 45, the
appellant
can
raise
both
questions of fact and questions
of law.
You will also notice that in the
circular on amparo, there is a
provision which says it can coexist with other criminal, civil or
administrative proceedings that
are filed with the competent
court or body. So there is nothing
wrong if a petition for a writ of
amparo
involving
enforced
disappearance
or
extralegal
killing filed in an amparo court,
and there is a criminal case is
filed before an RTC concerning
the enforced disappearance. The
two can stand together, but with
several qualifications.
Q: May a separate action be
filed after filing a petition for
a writ of amparo?
A: Yes. It does not preclude the
filing of separate criminal, civil or
administrative actions. (Sec. 21)
Q: What is the effect if a prior
criminal action has been
filed?
A: No petition for a writ of
amparo shall be filed. The reliefs
under the writ shall be available
by motion in the criminal case.
(Sec. 22)
The procedure under this Rule
shall govern the disposition of
the reliefs available under the
writ of amparo.
If the criminal case is filed ahead
of a petition for amparo, we can
no longer file a petition for writ of
amparo as a special proceeding,
but we can ask for the issuance
of a writ of amparo through a
motion in that pending case. So
in that sense, amparo now
becomes a provisional remedy in
that case filed ahead of a petition
for amparo.
Will it not cause prejudice to
the movant if we require the
movant to ask for a writ of
amparo
in
the
pending
criminal case, given that in a
criminal case, in order to
prove
the
guilt
of
the
accused,
the
prosecution
must meet the quantum of

evidence known as proof
beyond reasonable doubt? Do
we not make it difficult for
the movant to convince the
court to issue a writ of
amparo since we are filing a
motion for a writ of amparo
in a court trying a criminal
case?
That is solved by the provisions
of the amparo circular. If there is
already an existing criminal case,
the petitioner will no longer be
allowed to file a petition for
amparo. Instead, he will be
required to file a motion for the
criminal court to issue a writ of
amparo, insofar as the criminal
court is concerned, the criminal
court will use the quantum of
evidence in the amparo circular,
although it is trying a criminal
case. In other words, the criminal
court will convict the accused
through proof beyond reasonable
doubt, but to convince the court
to issue a writ of amparo
concerning
enforced
disappearance and extrajudicial
killing, the quantum of evidence
required of the movant will be
substantial evidence. So we find
a situation where there are two
different degrees of proof that
will be used by the court in
resolving these issues. The
criminal case will require proof
beyond reasonable doubt, but
the issuance of a writ of amparo
will require only substantial
evidence.
But if the criminal case is filed
later than the petition for a writ
of amparo, there will only be a
consolidation of cases. The
petition for the writ of amparo
will retain its existence as a
special proceeding but it will only
be consolidated with the criminal
case.
With respect to habeas data, we
practically follow the procedure
that is given in amparo, except
that, this time in habeas data,
the circular does not authorize
other persons to file a petition for
habeas data. Generally, it is only
the aggrieved party who can file
properly a petition for habeas
data. It is only when the records
220 | R e m e d i a l
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are kept by a government

agency where the immediate
family of the relatives of the
victim can file a petition for
habeas data. A stranger or an
NGO are not authorized to file a
petition for habeas date. And it is
easy to understand why we do
not follow the order of preference
followed in amparo. Because in
habeas data, it is concerned with
records that are supposed to be
confidential. They are supposed
to be known only to the
petitioner or to the aggrieved
party. So, he is the only one
authorized to file this petition for
habeas data.
We follow the same procedure in
amparo, there are prohibited
pleadings and motion. And
habeas data can also be used as
an interim relief and as a
provisional remedy when a
criminal case has been filed of
the petition for habeas data.
PETITION FOR ADOPTION
Q: What is adoption?
A: It is a juridical act, a
proceeding in rem, which creates
between
two
persons
a
relationship similar to that which
results from legitimate paternity
and filiation.
Q: What is the State policy on
adoption?
A: It is the policy of the State to
ensure that every child remains
under the care of his or her
parent/s and be provided with
love, care, understanding and
security towards the full and
harmonious development of his
personality.
Q: What is a Child Legally
Available for Adoption?
A: A Child Legally Available for
Adoption refers to a child in
whose favor a certification was
issued by the DSWD that he/she
is legally available for adoption
after the fact of abandonment or
neglect has been proven through
the submission of pertinent
documents, or one who was
voluntarily committed by his/her
parent(s) or legal guardian. (Sec.
2(5), R.A. 9523).
Q: What is the requirement in

order that the child may be
declared legally available for
adoption?
A: There must be a certification
which shall be issued by the
DSWD in lieu of a judicial order,
thus making the entire process
administrative in nature. The
certification, shall be, for all
intents
and
purposes,
the
primary evidence that the child is
legally available in a domestic
adoption and in an inter-country
adoption proceeding (Sec. 8,
Ibid.).
Q: Can minor children be
legally adopted without the
written consent of a natural
parent on the ground that
the latter has abandoned
them?
A: No. Adoption cannot be had
without the written consent of a
natural parent who has allegedly
abandoned them. Abandonment
cannot be merely presumed, it
must be duly proven. Moreover,
there
should
be
proof
of
emotional abandonment. (Cang
v. CA, GR No. 105308, Sept. 25,
1998).
Q: Is publication of the
hearing
for
adoption
necessary for the adoption to
be valid?
A: Indeed, publication of the
scheduled
hearing
for
the
petition for adoption is necessary
for the validity of a decree of
adoption but not for the purpose
merely of taking a deposition. In
taking
a
deposition,
no
substantial rights are affected
since depositions may or may not
be presented or may even be
objected to when formally offered
as evidence at the trial of the
main
case
later
on.
the
philosophy
behind
adoption
statutes is to promote the
welfare of the child and every
reasonable intendment should be
sustained
to
promote
that
objective. (Republic v. Elepano,
G.R. No. 92542, Oct. 15, 1991).
Note:
The
necessary
consequence of the failure to
implead the civil registrar as an
indispensable party and to give
notice by publication of the

petition for correction of entry
was to render the proceeding of
the trial court, so far as the
correction
of
entry
was
concerned, null and void for lack
of jurisdiction both as to party
and as to the subject matter.
(Republic v. CA, G.R. No. 103695,
Mar. 15, 1996).
Q: What is the effect of
adoption created under the
law of a foreign country?
A: It is entitled to registration in
the corresponding civil register of
the Philippines. It is to be
understood, however, that the
effects of such adoption shall be
governed
by
laws
of
the
Philippines. (Marcaida v. Aglubat,
G.R. No. L-24006, Nov. 25, 1967)
A petition for adoption could
carry with it 2 other special
proceedings for change of name
and correction of entries in the
records of the local civil registrar,
or it can stand by itself without
the others. In one petition, we
may have 3 special proceedings.
And these 3 special proceedings
are governed by different Rules.
Is this not a violation of the RoC?
Does not civil procedure prohibit
joinder of causes of action when
these causes of action are
governed by different Rules?
Well, it does, that is true. In Rule
2, that is one of the limitations to
joinder of causes of actions. A
party may join as many causes of
action he may have, but he
should see to it that these causes
joined are not governed by
different procedures. If so, there
will be misjoinder of causes of
action. The issues misjoined will
be dropped, and the party will be
forced to file a separate ordinary
civil action.
Why then does the circular
on adoption allow a petition
for adoption change of name
and correction of entries
when they are governed by
different procedures?
If you read the Domestic
Adoption Act, Rule 103 on
Change of Name and Rule 108 on
221 | R e m e d i a l
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Cancellation Or Correction Of
Entries In The Civil Registry, you
will immediately realize that the
procedures to be followed are
really different from one another.
Their essentials are different,
jurisdictional requirements are
different, but we allow joinder
because
these
are
special
proceedings,
they
are
not
ordinary
civil
actions,
and
therefore,
they
cannot
be
governed by Rule 2 on the
prohibition concerning misjoinder
of action.
In special proceedings, we do not
apply generally the rules for
ordinary civil actions. They are
governed by their own set of
rules. That is why we allow
joinder
of
several
special
proceedings, although they are
governed by different rules.
In adoption, in the past, there
was a 4th special proceeding
which SC allowed to be included
in this petition. This was a
declaration of a minor to be
considered as legally available
for adoption. The court in the
same proceeding can declare
that the child is legally free for
purposes of adoption. We do not
have that any more as a special
proceeding. A court has no
authority to declare a minor to be
legally free for purposes of
adoption. That is now the
exclusive
authority
of
the
Secretary of the DSWD. So if the
Secretary of Social Welfare issues
an order declaring a minor as
legally free for adoption, that
declaration will be binding upon
all courts. That is the effect of
giving to the secretary the
authority to declare a minor
legally free for purposes of
adoption.
But if we look only adoption as a
special proceeding, then there
are 2 laws governing adoption in
the country. The first is InterCountry Adoption Law, and the
Domestic Adoption Act. The
Domestic Adoption Act contains
its own rules under this law, and
we do not necessarily follow
anymore follow the rules of
adoption in the RoC. We should
rely solely on what the Domestic

Adoption Act provides, although
in most instances, the provisions
of the RoC would still be
applicable
because
the
provisions
of
the
Domestic
Adoption Act are reiterations of
the procedures given in the RoC.
What makes it difficult for
adopters or proposed adopters to
make use of adoption under the
Domestic Adoption Act is the
requirement that the adopter
must have resided in the
Philippines continuously for 3
years. That makes it extremely
difficult for any person wishing to
adopt to make use of the
Domestic Adoption Act. And the
law is very strict in saying that
the 3-year period must be
continuous in character. There
are some breaks allowed, but
there should be an order by the
adoption court. Because of this
difficulty in making adoption
convenient to the adopter, we
have the Inter-Country Adoption
Law, which is not judicial in
character, purely administrative
in character. Although, we have
this inter-country adoption board
(ICAB), this applies only to
Filipinos who are minors, unlike in
Domestic Adoption Act, the
adoptee could be an alien or a
Filipino. Under the ICAB, this is
limited to Filipinos who have not
yet reached the age of majority.
Usually, they are the children
declared by the Secretary of
Social Welfare to be legally free
for purposes of adoption.
Although we call the proceeding
as purely administrative, it is not
the ICAB that issues a decree of
adoption, unlike in domestic
adoption where it is the family
court that issues a decree of
adoption.
The
Inter-Country
Adoption Act does not authorize
the board to issue a decree of
adoption. The ICAB will only be
responsible for the matching for
the adopter in the foreign
country and the adoptee who is
in the Philippines. In the process
of this matching, it is the
responsibility of the ICAB to
determine the qualifications of
the
adopter,
his
financial
capability,
and
also
the
possibility that the adopter and
adoptee may not like each other
once they start living together.
So who will eventually issue
the decree of adoption under
the ICAB?
It is a foreign court. It is the court
of the country where the adopter
resides.
The adopter will come to the
Philippines only when he is going
to
fetch
the
adoptee.
So
throughout the life of this
administrative proceeding, it is
likely the adopter has not gone to
the Philippines at all. He is an
alien
residing
abroad.
He
manifests his intent to adopt a
legally free Filipino minor. And
there is an agency that will get in
touch with another agency
stationed in the Philippines, and
these two agencies will be
getting in touch with one another
as to the requirements and as to
the possibility of the adopter
adopting the proposed adoptee.
So when the ICAB is finally
convinced that the adoption is for
the benefit of the adoptee, the
ICAB will require the adopter to
come to the Philippines to fetch
the adoptee. That is the only
time when we require the
adopter
to
come
to
the
Philippines, only for the purpose
of fetching the adoptee. So that
after the two had left for abroad,
the adoptee will necessarily will
be at the mercy of the adopter.
No one will be able to protect the
adoptee once he is allowed to
leave the country. There are
remedies concerning repatriation
if the relationship turns out to be
sour, but that will always be to
the prejudice of the adoptee.
It is the foreign court where the
adopter resides that will issue
the decree of adoption, because
it is with that foreign court where
the formal petition for adoption
was filed, not in our family courts
nor the ICAB.
Insofar as domestic adoption is
concerned, there is also a
separate
special
proceeding,
although related to adoption, it is
222 | R e m e d i a l
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always separate from a petition

of adoption itself, it is rescission
or revocation of adoption, also
governed
by
the
Domestic
Adoption Act. In this separate
special proceeding for revocation
of adoption, or rescission of
adoption, the petitioner is the
adoptee, and the relief he seeks
for the family court is for the
family court to he seeks for the
family court is for the family
court to revoke or rescind the
decree of adoption. If you will
notice in the Domestic Adoption
Act, this remedy is exclusively
available to the adoptee only. If
the adoptee and adopter cannot
live together peacefully, the
adoptee is given this remedy to
file an independent special for
the revocation or rescission of
the adoption.
The venue is where the adoptee
resides. But when it comes to
adoption, the venue is the place
of residence of the adopter. It is
only the adoptee who can avail
of the special proceeding for the
revocation or rescission of the
adoption. The adopter cannot
avail of this remedy. So if it is the
adopter who is the victim of
abusive conduct by the adoptee,
the adopter cannot go to court
for the rescission or revocation of
the decree of adoption. But if it is
the adoptee who is the victim of
abusive conduct by the adopter,
he can avail of this remedy.
Is it unfair to the adopter
who could a victim of abusive
conduct by the adoptee?
It is not, according the Domestic
Adoption Law as the law gives to
the adopter a remedy. The
remedy given is for the adopter
to disinherit the adoptee. That is
the only recourse given to the
adopter given under the law if he
is a victim of abusive conduct
from the adoptee.
Why the different treatment
when
it
comes
to
the
availability of remedies by
the adopter and the adoptee?
The reason is because these
adoption laws are construed to
be in favor of the adoptee, of the
minor.
If the adoptee is given this

recourse while the adopter is
given remedy to disinherit
adoptee, is it not easier for
the adopter to avail of the
remedy because what the law
tells us is that what an
adopter must do is very
simple if will just disinherit
the adoptee?
If you will look at the provisions
of
the
NCC
concerning
disinheritance, you will notice
that disinheritance must be
contained in a last will and
testament. And if that must be
contained in a last will and
testament, if the adopter dies,
that will must be submitted for
probate,
it
must
be
accepted/allowed by the court in
a probate proceeding. There
must be proof that the will has
complied with the formalities
contained in the NCC. If by
chance the will of the adopter is
not admitted to probate, then
that remedy of disinheriting
becomes ineffective, because if
the will is not admitted to
probate, there will be no
disinheritance, and the adoptee
will continue to be an heir of the
adopter. Unlike a revocation or
rescission
of
a
decree
of
adoption, in which the decree of
adoption will be set aside
altogether, there will be no more
relationship between the adopter
and adoptee.
RULE 108 CANCELLATION OR
CORRECTION OF ENTRIES IN
THE CIVIL REGISTRY
proceedings in Rule 108?
A: It is summary if the entries in
the civil register sought to be
corrected
are
clerical
or
innocuous in nature. However,
where such entries sought to be
corrected
or
changed
are
substantial, the proceedings are
adversarial in nature. (Republic
v. Valencia, G.R. No. L-32181,
Mar. 5, 1986)
Q:
What
is
meant
by
appropriate
adversarial
proceeding?
A: One which has opposing
parties;
contested
as
distinguished from an ex parte

application, one of which the
party seeking relief has given
legal warning to the other party,
and afforded the latter an
opportunity
to
contest
it.
(Republic v. Valencia, Ibid.)
Note: Rule 108, when all the
procedural
requirements
thereunder are followed, is the
appropriate
adversary
proceeding to effect substantial
correction and changes in the
entries of civil register (Lee v.
CA, G.R. No. L-118387, Oct. 11,
2001).
adversarial proceedings?
A:
1. Proper petition is filed where
the Civil Registrar and all parties
interested are impleaded;
2. The order of hearing must be
published once a week for three
consecutive weeks;
3. Notice must be given to the
Civil Registrar and all parties
affected thereby;
4. The civil registrar and any
person interested, may within 15
days from notice or from the last
date of publication, files his
opposition thereto; and
5. Full blown trial. (Republic v.
Valencia, supra.)
The last special proceeding which
can be attached to a petition for
adoption is that in Rule 108,
correction of entries in the
records of the local civil registrar.
For purposes of the Bar, we
should be concerned principally
with what entries in the records
of the local civil registrar could
be changed administratively or
under Rule 108.
Can there
citizenship?
be
change
of
In the records of civil registry in

the certificate, can there be a
change
of
filiation
from
legitimate to illegitimate?
Can there be a change of sex or
gender?
Can there be a change of name?
223 | R e m e d i a l
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In the case of citizenship in the

records in the local civil registry,
as entered in the birth certificate
of a person, do not forget the
case of Republic vs. Valencia.
That is the leading case where
the SC said that the entry in the
citizenship from Chinese to
Filipino can be allowed. Although,
it is substantial, that is not a
mere clerical error. It is not
simply
innocuous,
we
are
changing the citizenship from
Chinese to a Filipino. SC said that
it can be done under Rule 108 as
long as the court will conduct a
full-blown hearing, different than
the hearing contemplated in Rule
108, which is a summary
hearing.
When it comes to change or
correction of entry involving a
substantial change, it can be
done, so long as a full-blown
hearing is done under Rule 108.
There is a need for respondents
the chance to present its own
evidence, to cross-examine the
witnesses of the petitioner and
they are notified of everything
the court will do in the petition
under Rule 108 with respect to
citizenship.
With respect to filiation, in the
certificate of birth, there is an
item
for
filiation,
whether
legitimate or illegitimate. There
was a petition for the correction
of filiation of the children born to
a particular woman where the
petitioner filed his petition to
correct
the
entry
in
that
certificate
of
birth
from
legitimate to illegitimate. The
petitioner said that she is the
lawful spouse of the person
mentioned as the father of the
children, but the children are not
hers, but the children of the
mistress of her spouse.
They
cannot
be
considered
as
legitimate children. They should
be considered as illegitimate
children. So the issue to be
resolved was that could it be
done under Rule 108 as the
change that was going to be
involved
was
substantial.
Changing filiation of the children
from legitimate to illegitimate will
mean that the hereditary rights

of
these
children
will
be
significantly
reduced.
As
legitimate children, they are
entitled to so much of the estate,
whereas as illegitimate children,
each will get of what a
legitimate child would get. SC,
applying the principle in Republic
vs. Valencia, also said that it
could be done as long as the
hearing conducted is not a
summary hearing. It is a fullblown hearing where we notify
the
Solicitor-General
or
his
representative, we comply with
all the requirements given in Rule
108
concerning
publication,
where the petition will be filed, to
implead the local civil registrar
as a respondent in that petition.
The bottom line is it can be done
as long as the hearing conducted
is a full-blown hearing. The
process is adversarial, according
to SC.
With respect to gender, we have
now a new law authorizing an
administrative change of gender
from male to female or vice
versa, enacted last year.
It gives to the local civil registrar
the authority to change the
gender of a person. But, the
limitation in that law authorizing
the local civil registrar the
authority to change the gender
of a person is by reason only of a
clerical error or innocuous error.
Before this new law was enacted
last year, the SC had already
established
certain
rules
concerning sex change. The
general rule, according to SC is
that we do not allow under Rule
108 a change of sex if the sex
change by reason of human
intervention. For instance, if a
man decides to become a female
via a medical procedure, and
after such operation, he applies
for change of entry of gender
from male to female (Republic vs.
Silverio). SC held that is not
allowed. If there is human
intervention, that will not be
allowed under Rule 108.
That was the general rule until
the SC was confronted by the
case
of
Cagandahan
(a
hermaphrodite). In the case of
Cagandahan, the SC allowed the
change from male to female
because the SC cannot do
anything about the problem
really. Even the doctor of the
infant could not determine the
gender of the infant. SC called it
intersexuality. If the person is
intersexual, and on the birth
certificate the infant is made to
appear as female, but as years
go by, upon reaching the
teenage years, the features
suddenly changes from female to
male, there could be sex change,
SC said, because of the reason of
absence of human intervention,
by reason of the constitution
form birth of the child. So, we
have no sex change under Rule
108 based on the requirements
given by the SC in the
Cagandahan case.
Now, here comes a new law,
which authorizes a local civil
registrar,
to
allow
administratively a correction of
entry from male to female, if the
entry is proven really to be
clerical or innocuous as the case
may be. Under that law, the local
civil registrar or the consul to a
foreign country could also use
this prerogative, provided that
they are presented with records
from the birth of this individual,
which will convince him that the
entry made in the certificate of
birth is wrong. In other words, if
the school records or baptismal
records of the child invariably
indicates that the child is really a
female, but then the record
shows that he is male, and then
there is the certification by a
government doctor that there
was no human intervention that
was made. According to this new
law, the local civil registrar has
the authority to administratively
change the entry concerning the
gender of a person.
This new law also enlarges the
authority of a local civil registrar
to change entries. Under the old
law, the local civil registrar was
authorized
to
only
change
administratively the first name
and the nickname. Now it
224 | R e m e d i a l
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includes therein the gender, if it

is purely clerical or innocuous
error, date of birth, month of
birth, but not the year of birth.
Following
the
procedure
in
challenging this exercise of the
local civil registrar of
his
authority under the old law; and
in the new law, which is
amendatory in character, it is
also the one followed in the old
law. There could be an appeal to
the superior, the Civil Registrar
General, there could be an
appeal to the Office of the
President, and from there, there
could be a petition for review
that could be filed in the CA
under the provisions of Rule 43.
Under
Rule
43,
in
the
enumeration of quasi-judicial
bodies whose decisions may be
brought to CA by way of petition
for review, the enumeration
includes the Office of the
President.
So, from the local civil registrar,
we can go up to the Civil
Registrar General, then appeal to
the Office of the President
following
the
political
law
principle
of
exhaustion
of
administrative remedies. So form
the Office of the President, we
have nowhere else to go, so the
only recourse now is to make use
of Rule 43, file a petition for
review in the CA.
ENTRIES
SUBJECT
TO
CANCELLATION
OR
CORRECTION UNDER RULE
108, IN RELATION TO RA 9048
Q: What are the entries
subject to cancellation or
correction under Rule 108?
A:
1. Births;
2. Marriages;
3. Deaths;
4. Legal separations;
5. Judgments of annulments of
marriage;
6. Judgments declaring marriages
void from the beginning;
7. Legitimations;
8. Adoptions;
9. Acknowledgments of natural
children;
10. Naturalization;
11. Election, loss or recovery of

citizenship;
12. Civil interdiction;
13. Judicial determination of
filiation; and
14. Change of name. (Sec. 2)
15.Gender (in the case of an
intersexual or clearly clerical
or innocuous error in the
entry).
Q: May the trial court issued
an order declaring the nullity
of marriage under Rule 108
and change the status from
married to single?
A: No, it is proper only in
ordinary adversarial proceedings.
(Lim v. Republic, G.R. No. 8932,
May 31, 1957)
Q: Within what period may a
petition for correction or
cancellation of entries be
filed?
A: The law did not fix a period
within which the petition for
correction under Rule 108 in
relation to Art. 412 of Civil Code
may be filed. Accordingly, such
petition may be filed within 5
years from time the petitioner
discovered the error or mistake
in the civil registry, and not from
the date the birth certificate was
registered in the civil registry.
(Lee v. CA, supra.)
Q: Celine files a petition for
cancellation of the birth
certificate of her daughter
Jeanie on the ground of
falsified
material
entries
therein made by Celines
husband as the informant.
The RTC sets the case for
hearing
and
directs
the
publication of the order once
a week for 3 consecutive
weeks in a newspaper of
general circulation. Summons
was served on the Civil
Registrar but there was no
appearance
during
the
hearing. The RTC granted the
petition.
Jeanie
filed
a
petition for annulment of
judgment before the CA,
saying that she was not
notified of the petition and
hence, the decision was
issued in violation of due

process.
Celine
opposed
saying that the publication of
the court order was sufficient
compliance with due process.
Rule.
A: The petition for annulment of
judgment before the CA should
be granted. Jurisdiction of the
court
over
a
petition
for
cancellation of a birth certificate
requires reasonable notice to all
interested
parties
and also
publication of the order once a
week for 3 consecutive weeks in
a
newspaper
of
general
circulation.
In
this
case,
publication of the order is
insufficient because Jeanie, a
directly concerned party, was not
given reasonable notice, hence,
denied due process. The lower
court, therefore, did not acquire
jurisdiction. (Ceruila v. Delantar,
G.R. No. 140305, Dec. 9, 2005).
Alternative Answer:
It should not be granted. The
publication of an order of hearing
under Section 4 of Rule 108
cured the failure to implead an
indispensable party. A petition for
correction is an action in rem, an
action against a thing and not
against a person. The decision on
the petition binds not only the
parties thereto but the whole
world. An in rem proceeding is
validated
essentially
through
publication. Publication is notice
to the whole world that the
proceeding has for its object to
bar indefinitely all who might be
minded to make an objection of
any sort against the right sought
to be established. It is the
publication of such notice that
brings in the whole as a party in
the case and vests the court with
jurisdiction to hear and decide it
(Republic v. Kho, G.R. No.
170340, June 29, 2007; Alba v.
CA, G.R. No. 164041, July 29,
2005; Barco v. CA, G.R. No.
120587, Jan. 20, 2004). (2007
Bar Question)
Q: Helen is the daughter of
Eliza, a Filipina, and Tony, a
Chinese, who is married to
another woman living in
China. Her birth certificate
indicates that Helen is the
225 | R e m e d i a l
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legitimate child of Tony and

Eliza and that she is a
Chinese citizen. Helen wants
her birth certificate corrected
by changing her filiation from
"legitimate" to "illegitimate"
and her citizenship from
Chinese"
to
"Filipino"
because her parents were not
married.
What
petition
should Helen file and what
procedural
requirements
must be observed? Explain.
A: A petition has to be filed in a
proceeding under Rule 108 of the
Rules of Court. A petition to
change the record of birth by
changing
the
filiation
from
legitimate to illegitimate and
petitioners
citizenship
from
Chinese to Filipino does not
involve
a
simple
summary
correction which could otherwise
be done under the authority of
R.A.
9048.
Procedural
requirements include: (a) filing a
verified petition; (b) naming as
parties all persons who have or
claim any interest which would
be affected; (c) issuance of an
order fixing the time and place of
hearing; (d) giving reasonable
notice to the parties named in
the petition; and (e) publication
of the order once a week for 3
consecutive
weeks
in
a
newspaper of general circulation.
(2005 Bar Question)
GUARDIANSHIP
Q: What is guardianship?
A: It is a trust relation in which
one person acts for another
whom the law regards as
incapable of managing his own
affairs.
Note: Guardianship of minors is
now governed by the Rule on
Guardianship of Minors (AM No.
03-02-05-SC) which took effect
on
May
1,
2003.
While
guardianship of incompetents
who are not minors is still
governed by the provisions of the
Rules of Court on Guardianship.
(Rule 92- 97)
Q:
What
is
ancillary
guardianship?
A: It refers to the guardianship in
a state other than that in which
guardianship
granted.
is
originally
Q: To what extent does

guardianship extend?
A: Conflicts regarding ownership
or title to the property in the
hands of the guardian in his
capacity as such should be
litigated
in
a
separate
proceeding,
the
court
in
guardianship
proceeding
is
concerned solely with the wards
care and custody and proper
administration of his properties
(Villoria v. Administrator of
Veteran Affairs, L-9620, June
1957)
Q: What are the general
powers
and
duties
of
guardians?
A:
1. To have the care and custody
of the person of the ward, and/or
the management of his estate;
2. Pay the debts of the ward;
3. To settle accounts, collect
debts, and appear in actions for
the ward;
4. Manage the estate of the ward
frugally, and apply the proceeds
to the maintenance of the ward;
5. Render verified inventory
within 3 months after his
appointment
and
annually
thereafter, and upon application
of interested persons;
6. Render to court for its approval
an accounting of the property for
1 year from his appointment and
as often thereafter as may be
required, and upon application of
interested persons
7. Consent to a partition of real
or personal property owned by
ward jointly or in common with
others. (Secs. 1-8, Rule 96; Sec.
17, A.M. No. 03-02-05-SC)
A:
1. Hearing
2. Notice to relatives of the ward;
and
3. Careful investigation as to the
necessity and propriety of the
proposed action (Section 5)
CONDITIONS OF THE BOND
OF THE GUARDIAN
Q: What are the conditions of
the bond of the guardian?
A:
1. To make and return to the
court, within 3 months, a true
and complete inventory of all the
estate of his ward which shall
come to his possession or
knowledge or to the possession
or knowledge of any other person
for him;
2. To faithfully execute the duties
of his trust, manage and dispose
of the estate according to the
rules for the best interests of the
ward, and to provide for the
proper
care,
custody,
and
education of the ward;
3. To render a true and just
account of all the estate of the
ward in his hands, and of all
proceeds or interest derived
there
from,
and
of
the
management and disposition of
the same, at the time designated
by the rules and such other times
as the court directs; and at the
expiration of his trust, settle his
accounts with the court and
deliver and pay over all the
estate, effects, and moneys
remaining in his hands, or due
from him on such settlement, to
the person lawfully entitled
thereto; and
4. To perform all orders required
by the court (Sec. 1, Rule 94;
Sec.14, A.M. No. 03-02-05-SC).
Q: What is the order of

liability
of
the
wards
property?
A:
1. Personal estate and income of
real estate
2. Real estate
Q: What is the purpose of the

bond?
A: It is for the protection of the
property
of
the
minor
or
incompetent to the end that he
may be assured of an honest
administration
of
his
funds
(Herrera, Vol. III-A, p. 282, 2005
ed.)
Q: What are the requisites to

authorize the guardian to join
in the partition proceedings
after hearing?
Note: The bond of the guardian

is a continuing one against the
obligors and their estates until all
of its conditions are fulfilled. The
226 | R e m e d i a l
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mere fact that defendant was

removed as guardian did not
relieve her or her bondsmen from
liability during the time she was
duly acting as such guardian.
(Guerrero v. Teran, G.R. No. L4898, Mar. 19, 1909)
Q: Does the requirement of
posting a bond extend to
parents who are the legal
guardians of their minor
children? Explain.
A:
GR: No, if the market value or
annual income of the child is P
50,000 or below.
XPN: If the market value of the
property or the annual income of
the child exceeds P50,000, the
parent concerned shall furnish a
bond in such amount as the court
may determine, but in no case
less than 10% of the value of
such property or annual income,
to guarantee the performance of
the obligations prescribed for
general guardians (Sec. 16, A.M.
No. 03-02-05-SC).
Q: Who may petition for
appointment of guardian for
resident?
A:
1. Any relative;
2. Other person on behalf of the
minor;
3. Minor himself is 14 years of
age; or
4. Secretary of Social Welfare and
Development
AND
by
the
Secretary of Health in case of
insane minor who needs to be
hospitalized. (Section 2, AM-0302-05-SC)
Q:
Is
court
appointment
necessary to enable the
father and the mother to
exercise
joint
legal
guardianship over the person
and property of minor?
A: No. The father and the mother
shall
jointly
exercise
legal
guardianship over the person
and property of their minor
without the necessity of a court
appointment. In such case, this
Rule shall be suppletory to the
provisions of the Family Code on
Guardianship (Section 1, AM -0302-05-SC)
Q: What would the court do if

an issue arises as to who has
the better right or title to the
properties conveyed in the
guardianship proceeding?
A:
GR:
The issue should be
threshed out in a separate
ordinary action as it is beyond
the
jurisdiction
of
the
guardianship court.
XPN: When the wards right or
title to the property is clear and
undisputable, the guardianship
court may issue an order
directing its delivery or return.
the
appointment
of
a
guardian over the person or
property, or both, of a minor?
A:
1. Death, continued absence, or
incapacity of his parents;
2. Suspension, deprivation or
termination of parental authority;
3.
Remarriage
of
surviving
parent, if the latter is found
unsuitable to exercise parental
authority; or
4. When the best interests of the
minor so require (Sec. 4, A.M. No.
03-02-05-SC).
Q: What are the factors to be
considered
for
the
appointment of guardian of
minors?
A:
1. Moral character;
2.
Physical,
mental,
and
psychological condition;
3. Financial status;
4. Relationship of trust with the
minor;
5. Availability to exercise the
powers and duties of a guardian
for the full period of the
guardianship;
6. Lack of conflict of interest with
the minor; and
7. Ability to manage the property
of the minor (Sec. 5, A.M. No. 0302-05-SC).
Note: The court shall order a
social worker to conduct a case
study of the minor and all the
prospective
guardians
and
submit
his
report
and
recommendation to the court for
its
guidance
before
the
scheduled hearing. (Sec.9, A.M.

No. 03-02-05-SC).
Q: Who may be appointed as
guardian of a minor?
A: In default of parents or a
court-appointed guardian, the
court may appoint a guardian of
the person or property, or both,
of a minor, observing, as far as
practicable, the following order of
preference:
1. Surviving grandparent and, in
case
several
grandparents
survive, the court shall select any
of them taking into account all
relevant considerations;
2. Oldest brother or sister of the
minor over 21 years of age,
unless unfit or disqualified;
3. Actual custodian of the minor
over 21 years of age, unless unfit
or disqualified;
4. Any other person, who in the
sound discretion of the court
would serve the best interests of
the minor (Sec. 6, A.M. No. 0302-05-SC).
opposition to petition of
guardianship of minors?
A:
1. Majority of the alleged minor;
or
2. Unsuitability of the person for
whom letters are prayed for (Sec.
10, A.M. No. 03-02-05-SC).
Q: How may a petition for
guardianship of minors or
incompetents be opposed?
A: Any interested person may
contest the petition by filing a
written opposition and pray that
the petition be denied, or that
letters of guardianship issue to
himself, or to any suitable person
named in the opposition (Sec.
10, A.M. No. 03-02-05-SC; Sec. 4,
Rule 9).
The
rest
of
the
special
proceedings like guardianship for
instance, the guardian has the
same duties as that of an
administrator/executor because
both are fiduciaries. The main
difference between a guardian
and administrator/executor is
that a guardian has the authority
by himself alone to pay the
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indebtedness of his ward. The

administrator/executor does not
have that authority. In settlement
proceedings, we speak about
statute of non-claims. There is no
statute
of
non-claims
in
guardianship.
The substantive law gives to the
guardian the authority whether
or not the claim against the ward
is valid and therefore should be
paid by him. He does not need
express authority from the court
to be able to pay a valid
indebtedness incurred by the
ward.
For purposes of jurisdiction in
guardianship proceedings, do not
be of the impression that
guardianship proceedings are
always cognizable by the family
court. If there is a guardianship
proceeding involving a minor,
that is exclusively cognizable by
a Family Court. But when the
guardianship
is
over
an
incompetent who is not a minor,
the competent court is an RTC.
The competent court is either a
family
court
or
an
RTC,
depending on who the ward is. If

the ward is a minor, we go to a
family court. If the ward is an
incompetent of major age, then
we go to the RTC.
But when the guardianship is

over an incompetent who is not a
minor, it still an RTC that has
jurisdiction under the provisions
of BP 129.
If you are asked to explain

that this is the rule we follow,
why not just give everything
to the family court? After all,
that is the expertise of the
family court, a guardianship
action. Why do we leave to
an RTC the guardianship of
an incompetent who is a
minor?
That fault is traceable to the
Congress in enacting the law
creating the Family Court. In that
law, the family court was given
exclusive
original
jurisdiction
over petitions for guardianship
involving a minor. The Congress
failed to notice that there could
also be guardianship involving a
non-minor, that is if the ward is
an incompetent. So, the SC
applied literally this rule of
exclusive
original
jurisdiction
given to a Family Court. It has
authority
only
when
the
guardianship involves a minor.
When it comes to termination of

guardianship.
When
the
guardianship is via the family
court by reason of minority, and
the minor reaches the age of
majority, there is no need for the
family court to issue an order
directing that the guardianship
has ended. The guardianship
automatically ends if the minor
reaches the age of majority. By
operation of law, he is no longer
a minor.
But when the guardianship is by
reason of incompetency, there is
a need for RTC to issue an order
saying that the incompetency
has ended, and there must be a
hearing conducted by the court.
There must be a finding by the
court that the incompetent
person is now competent and
therefore,
the
guardianship
should be terminated.
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Dean Jara Lecture Notes in Remedial Law 2013

Petition for quo warranto

JURISDICTIN IN REAL ACTIONS TITLE TO OR POSSESSION OF PROPERTY

On Cases of Collection of Payments Payable on Installments

SPLITTING VS JOINDER OF CAUSES OF ACTIONS

What is the difference of a dismissal under Rule 16 and Rule 17?

It does not require for its adjudication the presence of third

It may require for its adjudication the presence of third

Barred if not set up in the action (Sec. 2, Rule 9)

Not barred even if not set up in the action

Need not be answered; No default

Must be answered,: Otherwise, default

Need not be accompanied by a certification against forum

The court has jurisdiction to entertain both as to the

Must be within the jurisdiction of the court where the case

12. Complaint for forcible entry

19. Petition for voluntary judicial

20. Petition for correction or

that one has read the pleading

Note: A previous decision or

RULE 9 (Effect of Failure to

Can there be a judgment in

trial that he indeed has cause of

case so long as the constitutional

1. After notice of order and

pleadings will be the basis of the

Comparison between Rule 9

The court cannot grant a relief more than that

In Rule 9, the defendant in default has not

During ex parte presentation

to comply with a court order to

Can there be a judgment in

defendants in default. This is one

17 for refusal to obey a lawful

over the case, as in this instant,

If amendment is not a matter of

Q: When may amendment be

When the time comes for the

the pleader. Claims or defenses

separately from a counterclaim,

commercial courts, a motion for

But if the motion is granted, in

2004). An important part of that

submission to the jurisdiction

A: This service always requires

Summons is the writ available to

There is even that mode of

Service of summons in case

of summons with preliminary

days from the

Given the skill

In 2008, Santos vs. PNOC was

Palma vs. Galvez (When the

the service of the

suitable age and

summons is concerned. There

1. service upon the adverse

Under Rule 16, if the defendant

Currently, there are now 4

Because of the application of

In the resolution of a motion to

In a motion to dismiss, we can

to those non-waivable grounds.

The aggregate sum to be