CIVIL PROCEDURE

Compiled by

JUSTICE GABRIEL T. INGLES

Distributed by

University of San Carlos

Center for Legal Aid Work
 UNIVERSITY OF SAN CARLOS
CIVIL PROCEDURE
Justice Gabriel T. Ingles’ Notes Compilation

was found in the 1935, 1973 and 1987 Constitutions. Based on the
INTRODUCTION present law, the rule-making power of the SC is expressed in Article
VIII, Section 5, paragraph [5] which is substantially the same as the
I. General Principles 1935 and 1973 Constitutions which states that: the SC "shall
promulgate the rules concerning the protection and enforcement
1. Concept of remedial law of constitutional rights, pleading, practice, and procedure in all
courts.”
Major divisions in law:

a) Substantive law – a part of law which creates, defines 4.a.LIMITATIONS TO THE RULE-MAKING POWER OF THE SC
or regulates rights concerning life, liberty or property,
or the powers of agencies or instrumentalities for the
administration of public affairs. (Primicias vs. Ocampo The Constitution has also placed limitations on these powers.
49 OG 2230) As currently worded, one limitation provided for by the Article is
“the rules of procedure to be enacted by the SC "shall provide for
b) Procedural/Adjective/Remedial Law – prescribes the
a simplified and inexpensive procedure for the speedy disposition
method of enforcing rights or obtaining redress for
of cases.” The second one is: “the rules shall be uniform for all
their violation. (Bustos v. Lucero 81 Phil. 640,650)
courts of the same grade.” And the third is: “the rules shall not
diminish, increase or modify substantive rights.”
2) Sources of Remedial law:
a) The Constitution
b) Laws creating the judiciary
LIMITATIONS :
c) Laws defining and allocating jurisdiction to different courts
d) Rules promulgated by the SC
1. The Rules of Court shall provide a simplified and
e) circulars, administrative orders, internal rules and SC
inexpensive procedure for the speedy
decisions
disposition of cases;
2. The Rules of Court shall be uniform for all courts of
3) Scope of Remedial Law:
the same grade; and
a) Constitution
3. The Rules of Court shall not diminish, modify or
b) Civil Procedure (Rules 1 to 56 and other related laws);
increase substantive rights.
c) Provisional Remedies (Rules 57 to 61);
d) Special Civil Actions (Rules 62 to 71)
Substantive rights are created by substantive law so the Rules
e) Special Proceedings (Rules 72 to 109)
of Procedure should not increase, diminish or modify them. In
f) Criminal Procedure (Rules 110 to 127)
effect, the Rules of Court should not amend the substantive law. It
can only interpret substantive law but should not change it
g) Evidence (Rules 128 to 133)
completely. Those are the limitations. With that we are now ready
h) Katarungang Pambarangay Law (RA 7160) and
to tackle the 1997 rules on civil procedure.
Implementing rules
i) Revised Rules on Summary Procedure.
j)Rules on Small Claims Cases
5. JUDICIAL POWER includes the duty of the courts of justice to
k)Rules on Environmental Cases
settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not
4.RULE-MAKING POWER OF THE SUPREME COURT
there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality
The Rules of Court (1940, 1964, 1997) have all been enacted
of the Government. (Sec. 1, Art. VIII, 1987 Constitution)
by the SC. It is law, not enacted by Congress but enacted by the SC.

The power of judicial review is the Supreme Court's power to

Q: What is the authority of the SC to enact a law when
declare a law, treaty, international or executive agreement,
actually the role of the judiciary is only to interpret the law? Is this
presidential decree, proclamation, order, instruction,
not a violation of the separation of powers?
ordinance or regulation unconstitutional.
A: The authority of the SC in enacting the prior rules and the
present rules is what you call its rule-making power which provision

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Justice Gabriel T. Ingles’ Notes Compilation
6. Nature of Philippine courts
a.) Court
Describe it.
There is a table, a gavel, there is someone sitting there. Then
below, there are lawyers sitting down. But actually, what is
described is a courtroom and not a court.
Similarly, when you are asked to describe a corporation, you
will refer to the building, the office, the employees etc. But a
corporation, as you know in Persons, is a juridical entity. It is a
creature of the law. It is a person under the law but it has no
physical existence.
A court has no physical existence, only a legal one.
Define a court
A court is an entity or body vested with a portion of the judicial
power. (Lontok vs. Battung, 63 Phil. 1054)
Q: Why ‘portion’ only?
A: This is because the Constitution provides that “the judicial
power shall be vested in one Supreme Court (SC) and in such other
lower courts as may be established by law.” (Art. VIII, Section 1,
1987 Constitution.
The reason that the law creates different courts is to divide
the cases or judicial power among them so that one court may not
be burdened with so many cases.
So, judicial power is not exercised only by one court, but by
several courts.
There is a division of labor and this division is done thru
delineating jurisdiction among courts. Jurisdiction will be discussed
in the following parts.
b.) Court as distinguished from a Judge
Just as corporations cannot act without its officers, a court
cannot function without a judge. But do not say that the court and
the judge mean the same thing. The judge is the person or officer
who presides over a court.
The following are the distinctions:
1.) Court is the entity, body, or tribunal vested with a
portion of the judicial power, while judge is the
person or officer who presides over a court.
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2.)Judges are human beings – they die, they resign, they
retire, they maybe removed. The court continues to
exist even after the judge presiding over it ceases to do
so. In the Supreme Court, for example, the justices
presiding over it are not the same justices who presided
it in the early part of this century yet the Court in some
decisions states that “as early 1905, ‘WE’ have already
ruled such as such…” Why do they use ‘WE’? They are
talking about the court, they are not talking about
themselves. The court is continuous. It does not die
alongside with the justices who presided on it.
3.) The two concepts may exist independently of
each other, for there may be a court without
a judge or a judge without a court.
(Pamintuan vs. Llorente, 29 Phil. 342)
c.) Hearing and Trial
Hearing is not synonymous with trial. The words “hearing” and
“trial” have different meanings and connotations. Trial may refer
to the reception of evidence and other processes. It embraces the
period for the introduction of evidence by both parties. Hearing,
as known in law, is not confined to trial but embraces the several
stages of litigation, including the pre-trial stage. A hearing does
not necessarily mean presentation of evidence. It does not
necessarily imply the presentation of oral or documentary evidence
in open court but that the parties are afforded the opportunity to
be heard. (Republic v. Sandiganbayan, 416 SCRA 133)
7. Classification of courts in general.
A: Generally, courts may be classified as:
1.) Constitutional and Statutory Courts;
2.) Superior Courts and First-Level courts (inferior courts);
3.) Courts of Original jurisdiction and Courts of Appellate
jurisdiction;
4.) Civil Courts and Criminal Courts;
5.) Courts of law and Courts of equity;
6.) Courts of record; probate Courts; Land Registration
Courts; Ecclesiastical Courts; Military Courts
a.) CONSTITUTIONAL COURTS vs. STATUTORY COURTS
CONSTITUTIONAL COURTS are created directly by the Constitution
itself, while STATUTORY COURTS are created by law or by the
legislature. The first cannot be abolished by Congress without
amending the Constitution while the second can be so abolished
by just simply repealing the law which created them.
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In our country, there is only one Constitutional court – the
Supreme Court. Even the Sandiganbayan is not considered a
Constitutional court because it was not created by the Constitution
directly. The 1973 Constitution, particularly Art. XIII, Section 5
ordered the then National Assembly to create a special court to be
known as the Sandiganbayan which shall have jurisdiction over
criminal and civil cases involving graft and corrupt practices and
such other offenses committed by public officers and employees,
including those in government-owned or controlled corporations in
relation to their office as may be determined by law.. It was law
that created the Sandiganbayan (PD 1486).
The CA, RTC, and the MTC are created by the Congress.
So there is only one Constitutional court. All the rest, from the
CA down and all other special courts, are only creatures of
Congress.
In political law, the power to create carries with it the power
to abolish. That is why, BP 129 abolished all existing courts at that
time (CFI, CA, Juvenile and Domestic courts, etc.) and RTC, IAC,
MTC were created. That was the judicial reorganization of 1980
under BP 129. But there is only one court which the Batasan
Pambansa could not touch – the Supreme Court.
b. SUPERIOR COURTS vs. FIRST-LEVEL COURTS
SUPERIOR COURTS, otherwise known as courts of general
jurisdiction, are those which take cognizance of all kinds cases,
whether civil or criminal, and possess supervisory authority over
lower courts. The refer to these courts which have the power of
review or supervision over another lower court.
INFERIOR COURTS, otherwise known as courts of special or
limited jurisdiction, are those which take cognizance of certain
specified cases only. (14 Am. Jur. 249) They are those which, in
relation to another are lower in rank and subject to review and
supervision of the latter.
Q: What courts are superior or inferior?
A: It DEPENDS from what viewpoint you are looking at it. If
you are looking from the viewpoint of the Constitution, there is
only one superior court – the Supreme Court.
From the viewpoint of other laws, the Court of Appeals (CA)
maybe inferior to the SC but it is a superior court for it exercises
supervision over RTC. In the same manner that the RTC might be
inferior to the SC and the CA but it has also power of supervision
over MTC. The jurisdiction of the RTC is varied. It is practically a jack
of all trade. The RTC has also the power of supervision over MTC.
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A superior court may therefore handle civil, criminal cases
while an inferior court may try specified cases only. The SC, CA
including the RTC are considered as superior courts.
The MTC is a first-level (inferior) court so that its power is
limited to specified cases despite of the law which expanded the
jurisdiction of the MTC. It does not have any supervisory authority
over any lower court.
c. ORIGINAL COURT vs. APPELLATE COURT
ORIGINAL COURTS are those where a case is originally
commenced, while APPELLATE COURTS are those where a case is
reviewed. (Ballentine's Law Dict., 2nd Ed., p. 91)
So, if you are filing a case for the first time, that case is filed in
an original court. But the case does not necessarily end there. You
may bring the case to the appellate court which has the power to
change the decision of the original court.
Q: Is the SC an original or appellate court?
A: The SC is both an original and an appellate court. The SC
has original jurisdiction on cases of certiorari, prohibition,
mandamus, etc. There are certain cases where one may file directly
to the SC.
Q: Is the CA an original or appellate court?
A: The same is true with the CA. It is both original and
appellate court. (Section 9, BP 129) When we study the jurisdiction
of the CA, you will see that it is both an original and an appellate
court. There are cases which are elevated to it from the RTC, but
there are also cases which are filed there for the first time like an
action for annulment of an RTC judgment.
Q: How about the RTC? Is the RTC an original or appellate
court?
A: The RTC is also both original and appellate court. You can
file certain cases there for the first time, and there are also
decisions of the MTC which are appealable to the RTC.
Q: How about the MTC? Is the MTC an original or appellate
court?
A: The MTC however, is a 100% original court. It is the lowest
court in the hierarchy. There are no cases appealed to it. There is
no such animal as barangay court. The barangay captains do not
decide cases, they only conciliate.
d. CIVIL COURTS vs. CRIMINAL COURTS
CIVIL COURTS are those which take cognizance of civil cases only,
while CRIMINAL COURTS are those which take cognizance of
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criminal cases only. (14 Am. Jur. 249; Ballentine's Law Dict., 2nd
Ed., p. 301)
All the courts in the Philippines are both civil and criminal
courts. They can handle both types of cases. The SC decides civil
and criminal cases. The same is true with the CA, RTC and MTC.
So, in the Philippines, there is no such thing as a 100%
criminal court or civil court. During the 70's there was the old
Circuit Criminal Court. As the name implies, it is purely a criminal
court. But with other courts, this was abolished by BP 129.
With the abolition of those special courts, all their powers were
transferred to the present RTC. Right now, there is no such thing as
a 100% civil court or a 100% criminal court. So, all our courts are
both civil and criminal courts at the same time.
e. COURTS OF LAW vs. COURTS OF EQUITY
COURTS OF LAW are tribunals administering justice only by
applying the law of the land, whereas COURTS OF EQUITY are
tribunals which rule according to the precepts of equity or justice,
and are sometimes called “courts of conscience.” (Ballentine’s
Law Dict., 2nd Ed., p. 303)
Courts Of Law dispose cases according to what the
promulgated law says while Courts Of Equity adjudicate cases
based on the principles of equity. Principle of equity means
principles of justice, fairness, fair play or of what is right and just
without inquiring into the terms of the statutes.
Q: Are the Philippine courts, courts of law? Or courts of
equity? Do they decide cases based on what the law says or based
on the principle of justice and fairness?
A: In the Philippines, our courts, original or appellate, are both
courts of law and of equity. (U.S. vs. Tamparong 31 Phil. 321)
In the case of substantive law, there is a thin line which
divides the principle of law from the principle of equity because
principles of equity are also found in the principles of law. Equity is
what is fair and what is just and equitable. Generally, what is legal
is fair.
As a matter of fact under the Civil Code, when the law is
silent, you decide it based on what is just and fair, thus, the saying
EQUITY FOLLOWS THE LAW. In the Philippines you cannot
distinguish sometimes the principle of law and the principle of
equity because principles of equity are also written in the law.
Example: The principles of estoppel, laches or solutio indebiti are
no longer purely principles of equity since they are also found in
our law. Under the Civil Code, when there is no applicable law,
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courts still have to decide according to customs and general
principles.
ESTOPPEL.
Estoppel is an equitable doctrine which means that it is not fair
that you disown your own representation after misleading
somebody. But if you look at the Civil Code, there is a chapter on
estoppel. So if you apply estoppel, you cannot say that you are
applying a principle not found under the law.
LACHES
It is considered to be the half-brother of prescription because it
means if you delay a certain right then you must have no right.
That is more of equity, rather than of law.
SOLUTIO INDEBITI.
No one should enrich himself at the expense of another. That is a
principle of equity. But if you look at the Civil Code, it's there!
ALONZO vs. INTERMEDIATE APPELLATE
COURT
May 28, 1987, J. Cruz
HELD: “The question is sometimes asked, in
serious inquiry or in curious conjecture, whether
we are a court of law or a court of justice. Do we
apply the law even if it is unjust or do we
administer justice even against the law? Thus
queried, we do not equivocate. The answer is that
we do neither because we are a court both of law
and of justice. We apply the law with justice for
that is our mission and purpose in the scheme of
our Republic.”
COURTS OF RECORD
Those whose proceedings are enrolled and which are bound
to keep a written record of all trials and proceedings handled by
them. RA 6031 mandates all MTCs to be courts of record.
PROBATE COURTS
Those which have jurisdiction over settlement of estate of
deceased persons.
LAND REGISTRATION COURTS
Those which have jurisdiction over registration of real
properties under the Torrens System.
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8. HIERARCHY OF THE COURTS
In the 1996 BAR: One of the questions in Remedial Law was:
State the hierarchy of the Courts in the Philippines.
a.) Regular courts
SUPREME COURT
COURT OF APPEALS
REGIONAL TRIAL COURTS
MetTC MTCC MTC MCTC
Note:
MetTC- In Manila
MTCC- cities outside Manila e.g. Cebu, Davao
MTC- municipalities such as Minglanilla, Argao
MCTC- circuitized areas because it is impractical and
expensive to maintain one MTC in every municipality.
b.) Special courts
There are also Special Courts which are also considered part
of the judiciary. These are:
1. Court of Tax Appeals (RA 1125)
2. Sandiganbayan (PD 1486 as amended)
3. Sharia District Courts and the Sharia Circuit
Courts (PD 1083 , also known as the Code of
Muslim Personal Law);
4. Family Courts
8.a Policy of Judicial Hierarchy
This policy means that a higher court will not
entertain direct resort to it unless the redress desired
cannot be obtained in the appropriate courts.
While it is true for example that the Supreme Court,
Court of Appeals and the Regional Trial Courts have
concurrent original jurisdiction to issue writs of
Certiorari, Prohibition, Mandamus, such concurrence
does not accord litigants unrestrained freedom of choice
of the court to which the application for the writ may be
directed. The application should be filed with the court
of lower level unless the importance of the issue
involved deserves the action of the court of the higher
level.
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9. INHERENT POWERS OF THE COURT
Before we leave the concepts of courts, we must know that
the courts of justice have what we call inherent powers. Just like
the State have certain inherent powers, namely; Police power,
power of taxation, and power of eminent domain.
Their very existence automatically necessitates the existence
of these powers.
Q: What are the inherent powers of the court?
A: Section 5 Rule 135 of the Rules of Court provides:
Section 5. Inherent powers of courts.
Every court shall have the power:
(a) to preserve and enforce order in its
immediate presence;
(b) to enforce order in proceedings
before it, or before a person or persons
empowered to conduct a judicial
investigation under its authority;
(c) to compel obedience to its judgments
orders, and processes, and to the lawful
orders of a judge out of court, in a case
therein;
(d) to control, in furtherance of justice,
the conduct of its ministerial officers, and of
all other persons in any manner connected
with a case before it, in every manner
appertaining thereto;
(e) to compel the attendance of persons
to testify in a case pending therein;
(f) to administer or cause to be
administered oaths in a case pending therein,
and in all other cases where it may be
necessary in the existence of its powers;
(g) to amend and control its process and
orders so as to make them conformable to
law and justice;
(h) to authorize a copy of a lost or
destroyed pleading or other paper to be filed
and used instead of the original, and to
restore, and supply deficiencies in its records
and proceedings.
SITUATION: Suppose I have the power to decide and I render
a decision. I want to enforce the decision, how do I enforce? Well,
usually the law provides for the procedure.
Q: But suppose the law does not provide for any manner to
enforce? For example a judge has rendered a decision, and the law
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is silent on how to enforce it, do you mean to say that the order is
unenforceable because the law is silent?
A: NO. Section 6 of Rule 135 answers the question.
SEC 6. Means to carry jurisdiction into
effect – When by law jurisdiction is conferred
on a court or a judicial officer, all auxiliary
writs, processes and all other means to carry
it into effect maybe employed by such court
or officer; and if the procedure to be
followed in the exercise of such jurisdiction is
not specifically pointed out by law or these
rules, any suitable process or mode of
proceeding may be adopted which appears
conformable to the spirit of said law or rules.
What Section 6 is trying to say is that when courts have the
power to decide, they have the power to enforce. And if the law is
silent, judges have to think of how to do it provided they conform
to the spirit of the rule. So they should not make the order useless
simply because there is no rule. That is part of their power.
10. ENFORCEABILITY OF COURT WRITS AND PROCESSES
Another provision that should be emphasized is Section 3 of
the Interim Rules.
Question: The court of Cebu issues a writ or a process. Can
that writ or process be enforced in Manila? What is the extent of
the enforceability of a writ issued by a court?
Under Section 3, Interim Rules:
Sec. 3. Writs and Processes. -
a) Writs of certiorari, prohibition,
mandamus, quo warranto, habeas corpus and
injunction issued by a regional trial court may
be enforced in any part of the region.
b) All other processes whether issued
by the RTC or MetTC, MCTC, and MTC may be
served anywhere in the Philippines, and, the
last three cases, without a certification by the
judge of the RTC.
A: Under Section 3 of the Interim Rules, you have to
distinguish what kind of writ or process you are talking about:
a) If it is a writ of certiorari, prohibition, mandamus, quo
warranto, habeas corpus, injunction, it can be enforced
anywhere within the region. So at least, RTC can enforce
it within the region and it cannot enforce those writs
outside the region.
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EXAMPLE: If you are illegally detained, you can
ask the court to issue a writ of habeas corpus. Now, a
person is detained in Cagayan de Oro and the family is
here in Cebu City. They filed a petition for habeas
corpus here in Cebu City. Is it proper?
No. Cebu City belongs to the 7th Judicial Region
while Cagayan de Oro is in the 11th or 12th Judicial
Region. The law is very clear: writs of certiorari,
prohibition, mandamus, quo warranto, habeas corpus
and injunction issued by a trial court may be enforced
in any part of the region.
b) Section 3 further says, all other writs are enforceable
anywhere in the Philippines. Suppose the MTC issues a
warrant for the arrest of the accused in the criminal
case, and he fled to Baguio City, such warrant can be
enforced there. This includes summons, writs of
execution or search warrants.
11. Aspects of remedial law
1.) PUBLIC ASPECT – one which affords a remedy in
favor of the State against the individual
(e.g. criminal procedure) or in favor of
the individual against the State (e.g.
habeas corpus) on the other hand,
2.) PRIVATE ASPECT – one which affords a remedy in
favor of an individual against another
individual, like the rules on civil
procedure. (Gamboa’s Introduction to
Philippine Law, 6th Ed., pp. 97-99)
BRIEF HISTORY OF THE LAW ON CIVIL PROCEDURE IN THE
PHILIPPINES
The origin of our law on procedure is American. Forget the
law on procedure during the Spanish regime. But the first known
ancestor of the law on Civil Procedure was the old Act 190,
otherwise known as the Code of Civil Procedure, which was
enacted on August 7, 1901 by the United States and Philippine
Commission.
And that was the law until 1940 because on July 01,1940 the
SC enacted the Rules of Court which we now call the Old Rules of
Court. That continued for another 24 years until January 01, 1964
when the SC enacted the Revised Rules of Court repealing the Old
Rules of Court. And that continued for another 33 years until July
01,1997 where the SC enacted and which took effect on that day
(July 01, 1997) the New Rules on Civil Procedure.
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SUMMARY:
1.) First Law – August 07, 1901 – Act 190 – Code of Civil
Procedure (40 years)
2.) Second Law – July 01, 1940 – Old Rules of Court (24
years)
3.) Third Law – January 01, 1964 – Revised Rules of Court
(33 years)
4.) Fourth Law – July 01, 1997 – New Rules of Civil
Procedure.

SOURCES OF THE 1997 RULES OF CIVIL PROCEDURE

Well of course the sources are almost the same as the prior
law. The old Rules of Court is also a source. Many provisions were
taken from the 1964 Rules, substantive law like the Civil Code and
jurisprudence. And of course SC circulars. Many circulars are now
incorporated under the new rule. So those are the main sources.

SOURCES:
1.) Previous Rules of Court;
2.) Jurisprudence;
3.) New Civil Code;
4.) SC Circulars

-oOo-

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JURISDICTION IN GENERAL
1. Jurisdiction defined
If we relate jurisdiction to courts, it means authority or the
power to hear, try and decide a case.
In its complete aspect, jurisdiction includes not only the
powers to hear and decide a case, but also the power to enforce
the judgment (14 Am. Jur. 363-364) as the judgment or decree is
the end for which jurisdiction is exercised, and it is only through
the judgment and its execution that the power of the court is
made efficacious and its jurisdiction complete (21 CJS, Courts, S
9). The power to control the execution of its decision is an
essential aspect of jurisdiction. It cannot be the subject of
substantial subtraction and the most important part of the
litigation is the process of execution of decisions (Echegaray vs.
Sec. of Justice, 301 SCRA 96).
2. Test of Jurisdiction
The test of jurisdiction is whether the court has the power to
enter into the inquiry and not whether the decision is right or
wrong. (Herrera vs. Barreto, 25 Phil. 245)
Since jurisdiction refers to power or authority to hear, try and
decide a case, it cannot depend on the correctness or rightfulness
of the decision made. (Century Insurance Co. v. Fuentes, 2 SCRA
1168 [1961])
Correctness or rightfulness of the decision relates to the
exercise of and not to the authority itself.
3. Duty of the court to determine its jurisdiction
It is the duty of the court to consider the question of jurisdiction
before it looks at other matters involved in the case. It may, and
must, do this on its own motion without waiting for the question
of jurisdiction being raised by any of the parties involved in the
proceeding (20 Am Jur 2d, Courts, S 92). Courts are bound to take
notice of the limits of their authority and they may act accordingly
by dismissing the action even though the issue of jurisdiction is
not raised or not even suggested by counsel (Ace Publications vs.
Commissioner of Customs, 11 SCRA 147).
Effect if the court has no jurisdiction or of absence or lack of
jurisdiction over the case
If a court has no jurisdiction, it has no power or authority to try a
case and because it has no authority it must not exercise it.
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Exercise of absent authority or power is necessarily nothing. Thus,
without jurisdiction, the entire proceedings would be null and
void.
The only recourse for the court, absent jurisdiction, is to
dismiss the case motu proprio or on motion for without authority
it cannot act.
What about if it has jurisdiction?
It is the duty of the court to exercise the jurisdiction
conferred upon it by law and to render a decision in a case
properly submitted to it. Failure to do so may be enforced by way
of a mandamus proceeding (20 Am Jur. 2d, S 93).
4. Constitutional Guarantee of Access to Courts and Jurisdiction
The Constitutional guarantee of access to courts refers to
courts with appropriate jurisdiction as defined by law. It does not
mean that a person can go to any court for redress of grievances
regardless of the nature or value of his claim. (Santos III v.
Northwest Airlines, 210 SCRA 256 [1992])
5. JURISDICTION vs. EXERCISE OF JURISDICTION
Jurisdiction pertains to the authority to hear and decide a case.
Any act of the court pursuant to such authority, including the
decision and its consequences is exercise of jurisdiction.
The authority to decide a case, not the decision rendered, is
what makes up jurisdiction. It does not depend upon the regularity
of the exercise of that power or upon the rightfulness of the
decision made. Where there is jurisdiction over the person and
subject matter, the resolution of all other questions arising in the
case is but an exercise of jurisdiction. (Herrera vs. Barreto, 25 Phil.
245)
6. ERROR OF JURISDICTION vs. ERROR OF JUDGMENT
Distinctions:
1.) When a court acquires jurisdiction over the subject
matter, the decision or order on all other
questions arising in the case is but an exercise
of jurisdiction; Errors which the court may
commit in the exercise of such jurisdiction, like
errors of procedure or mistakes in the court's
findings, are merely ERRORS OF JUDGMENT;
whereas,
When a court takes cognizance of a case over the
subject matter of which it has no jurisdiction,
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or acts in excess of jurisdiction or with grave
abuse of discretion amounting to lack of
jurisdiction, the court commits an ERROR OF
JURISDICTION.(GSIS vs. Oliza 304 SCRA 421).
2.) When the court acts without authority (error of
jurisdiction) such act would be null and void or at least
voidable, but if the court has authority but commits a
mistake in the exercise of such authority (error of
judgment) such mistake will bind unless corrected
3.) .ERRORS OF JURISDICTION are reviewable by the
extraordinary writ of certiorari; whereas, ERRORS OF
JUDGMENT are reviewable by appeal.
Importance of the distinction
The procedure or remedy in case of a mistake or error committed
by the court would be dependent on whether it is an error of
jurisdiction or an error in the exercise of jurisdiction also known
as error of judgment.
EXAMPLE: A case of murder was filed in the MTC. The
accused, Ken Sur, files a motion to quash because MTC has no
jurisdiction over cases of murder. But the court denied the motion
to quash. Meaning, the judge has decided to assume jurisdiction.
What is the error committed?
When the court without authority assumes authority over the
case that is called ERROR OF JURISDICTION – the court committed
an error of jurisdiction.
EXAMPLE: Suppose the case for murder is filed in the RTC
where the court has jurisdiction. But in the course of the trial, it
committed mistakes like the court misinterpreted or misapplied
the provision of the RPC or the Indeterminate Sentence Law. What
error is committed?
Obviously the RTC has the authority to hear and decide the
case and therefore acted with authority or jurisdiction. There is no
error of jurisdiction.
However, in the exercise of such authority it committed a
mistake, thus, the error committed is error in the exercise of
jurisdiction, also known as error of judgment.
Is the proceeding null and void?
NO. What is committed is an error in the exercise of
jurisdiction and if not corrected the error can become final and
executory. In other words, if not objected to, it will stay.
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An error of judgment should be raised on ordinary appeal, not by
certiorari because certiorari is only confined to correcting errors of
jurisdiction or grave abuse of discretion. The governing rule is that
the remedy of certiorari is not available when the remedy of appeal
is available or even if available, when it will not be a speedy and
adequate remedy. And when the remedy of appeal is lost, you
cannot revive it by resorting to certiorari because certiorari is not a
substitute for the lost remedy of appeal.
7. Lack of jurisdiction and excess of jurisdiction
The respondent court or tribunal acts without jurisdiction if
it does not have the legal power to determine the case; where the
respondent, being clothed with the power to determine the case,
oversteps its authority as determined by law, it is performing a
function in excess of its jurisdiction (Vette Industrial Sales
Company Inc. vs. Cheng, 509 SCRA 532).
Philippine National Bank, substituted by Tranche 1 (SPV-AMC),
Inc. v. Rina Parayno Lim and Puerto Azul Land, Inc., G.R. No.
171677. January 30, 2013
Special Civil Action for Certiorari (Rule 65); nature; distinction
between excess of jurisdiction, acts without jurisdiction and grave
abuse of discretion. A certiorari proceeding is limited in scope and
narrow in character. The special civil action for certiorari lies only
to correct acts rendered without jurisdiction, in excess of
jurisdiction, or with grave abuse of discretion. Certiorari will issue
only to correct errors of jurisdiction, not errors of procedure or
mistakes in the findings or conclusions of the lower court. As long
as the court acts within its jurisdiction, any alleged errors
committed in the exercise of its discretion will amount to nothing
more than mere errors of judgment, correctible by an appeal or a
petition for review under Rule 43 of the Rules of Court, and not a
petition for certiorari.
In a petition for certiorari, the public respondent acts without
jurisdiction if it does not have the legal power to determine the
case; there is excess of jurisdiction where the respondent, being
clothed with the power to determine the case, oversteps its
authority as determined by law. There is grave abuse of discretion
where the public respondent acts in a capricious, whimsical,
arbitrary or despotic manner in the exercise of its judgment as to
be said to be equivalent to lack of jurisdiction. Mere abuse of
discretion is not enough.
Excess of jurisdiction, as distinguished from absence of jurisdiction
means that an act, though within the general power of a tribunal,
board or officer is not authorized, and invalid with respect to the
particular proceeding, because the conditions which alone
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authorize the exercise of the general power in respect of it are
wanting. The supervisory jurisdiction of the court to issue a
certiorari writ cannot be exercised in order to review the judgment
of the lower court as to intrinsic correctness, either upon the law or
the facts of the case. In the absence of a showing that there is a
reason for the court to annul the decision of the concerned tribunal
or to substitute its own judgment, it is not the office of the Court in
a petition for certiorari to inquire into the correctness of the
assailed decision or resolution.
Example of excess of jurisdiction:
When the court does not conduct a pre-trial conference which
is mandatory under the rules.
8. Jurisdiction is vested in the court, not in the judge. A court may
be a single sala or may have several branches (multiple sala). If
the latter, each is not a court distinct and separate from the
others. So, when a case is filed before a branch, the trial may be
had or proceedings may continue before another branch or judge.
(Tagumpay vs. Moscoso, L-14723, May 29, 1959)
EXAMPLE:
The RTC of Cebu City is composed of several branches –22 all
in all. But technically, there is only one court – the RTC of Cebu City.
Q: Now, if the case is filed and is assigned to Branch 8, can
that case later be transferred and continued in Branch 9?
A: YES, because you never left the same court. You are still in
the same court. This is because jurisdiction is not with the judge. It
is with the court itself.
But there is only one branch of RTC-Bogo, can RTC-Cebu City take
jurisdiction over its cases?
No because they are different courts and jurisdiction is attached to
the court.
8. TYPES OF JURISDICTION:
1. Based on cases tried
a. GENERAL JURISDICTION is the authority of the court
to hear and determine all actions and suits, whether
civil, criminal, administrative, real, personal or mixed. It
is very broad – to hear and try practically all types of
cases. (14 Am. Jur. 249; Hahn vs. Kelly, 34 Cal. 391)
b. SPECIAL or LIMITED JURISDICTION is the authority of
the court to hear and determine particular cases only.
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Its power is limited. (14 Am. Jur. 249; Hahn vs. Kelly, 34
Cal. 391)
Example:
In criminal cases, the MTC has jurisdiction over offenses where the
penalty imposable does not exceed 6 years while beyond 6 years
they are triable before the RTC.
If you examine the jurisdiction of the MTC, it has a limit but none
for the RTC.
The same applies in civil cases as we shall learn.
2. Based on the nature of the cause:
a.) ORIGINAL JURISDICTION is the power of the court
to take cognizance of a case at its inception or
commencement. (Ballentine’s Law Dict., 2nd Ed.,
pp. 91 and 917)
b.) APPELLATE JURISDICTION is the power vested in a
superior court to review and revise the judicial action of
a lower court. (Ballentine’s Law Dict., 2nd Ed., pp. 91
and 917) If one court has the power to correct the
decision of a lower court, the power of this court is
appellate. This is because it is commenced somewhere
else and it is just reviewing the decision of the said
lower court.
Note that in certiorari petition, the action of the superior
court is not to correct but to annul. The power exercised by the
superior court is the power of control and supervision over an
inferior court, not appellate, that is, to limit the inferior court
within its jurisdiction, its authority.
3. Based on the nature and extent of exercise:
a. EXCLUSIVE JURISDICTION is that possessed by a court to
the exclusion of all others.
b. CONCURRENT or COORDINATE JURISDICTION is that
possessed by the court together with another or other
courts over the same subject matter, the court
obtaining jurisdiction first retaining it to the exclusion
of the others, but the choice of court is lodged in those
persons duly authorized to file the action. (Villanueva
vs. Ortiz, 58 O.G. 1318, Feb. 12, 1962)
Exclusionary Principle
The court first acquiring jurisdiction excludes all others.
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Another principle that may be relevant is the policy of judicial
hierarchy.
Hierarchy of courts; concurrence of jurisdiction; non-observance
results in dismissal.
Spouses Augusto Dacudao and Ofelia Dacudao v. Secretary of
Justice Raul Gonzales of the Department of Justice, G.R. No.
188056. January 8, 2013
We emphasize that the concurrence of jurisdiction among the
Supreme Court, Court of Appeals and the Regional Trial Courts to
issue the writs of certiorari, prohibition, mandamus, quo warranto,
habeas corpus and injunction did not give petitioners the
unrestricted freedom of choice of court forum. An undue disregard
of this policy against direct resort to the Court will cause the
dismissal of the recourse. In Banez, Jr. v. Concepcion, we explained
why, to wit:
The court must enjoin the observance of the policy on the
hierarchy of courts, and now affirms that the policy is not to be
ignored without serious consequences, the strictness of the policy
is designed to shield the Court from having to deal with causes that
are also well within the competence of the lower courts, and thus
leave time to the Court to deal with the more fundamental and
more essential tasks that the Constitution has assigned to it, the
Court may act on petitions for the extraordinary writs of certiorari,
prohibition, and mandamus only when absolutely necessary or
when serious and important reasons justify an exception to the
policy. Xxx
Accordingly, every litigant must remember that the Court is not the
only judicial forum from which to seek and obtain effective redress
of his or her grievances. As a rule, the Court is a court of last resort,
not a court of first instance. Hence, every litigant who brings
petitions for the extraordinary writs of certiorari, prohibition and
mandamus should ever be mindful of the policy on the hierarchy of
courts, the observance of which is explicitly defined and enjoined in
Section 4 of Rule 65.
Doctrine of Judicial Stability or Non-Interference
General rule:
No court has the authority to interfere by injunction with the
judgment of another court of coordinate jurisdiction or to pass
upon or scrutinize and much less declare as unjust a judgment of
another court. (Industrial Enterprises, Inc. vs. CA GR No. 88550,
April 18, 1990)
Exception:
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The doctrine of judicial stability does not apply where a third
party claimant is involved. (Santos vs. Bayhon, GR No. 88643, July
23, 1991).
4. Based on situs:
a. Territorial jurisdiction - exercised within the limits of the
place where the court is located.
b. Extra-territorial jurisdiction - exercised beyond the confines
of the territory where the court is located.
Examples: Writs of certiorari,
prohibition and mandamus are enforceable
only within the region where the issuing
court is located; while a writ of execution
can be enforced even outside said territory.
9. ELEMENTS OF JURISDICTION IN CIVIL CASES
The word jurisdiction as applied to the faculty of exercising
judicial power is used in different but related senses. It refers to
the authority of the court:
1. to entertain a particular kind of action, or
2. to administer a particular kind of relief depending on
the issues raised;
3. to bind the parties, or
4. to bind the property which is the subject of the
litigation.
In your study of criminal procedure where you also studied
the law on jurisdiction, we studied the authority of the court over
the cases as determined by the imposable penalty; its authority to
bind the accused and the prosecution; its authority to grant the
relief which is either acquittal or conviction and over the place
where the offense charged is alleged to have been committed.
So there are what we call elements of jurisdiction in criminal
cases, otherwise, the proceeding will be illegal. These elements are:
Jurisdiction over the subject matter;
Jurisdiction over the person of the accused; and
Territorial jurisdiction, i.e. the case should be filed in the place
where the crime was committed.
a.Elements of jurisdiction in civil cases:
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a.) Jurisdiction over the subject matter ;
b.) Jurisdiction over the person of the parties to the
case;
c.) Jurisdiction over the res; and
d.) Jurisdiction over the issues.
Effect if in a particular case one of these is missing:
The proceedings become questionable. The proceedings become
void. The judgment is not binding. The proceedings are tainted
with illegality and irregularity.
A. JURISDICTION OVER THE SUBJECT MATTER
Jurisdiction over the subject matter.
1. Definition
Jurisdiction over the subject matter is the power of the court to
hear and determine cases of the general class to which the
proceedings in question belong. (Banco Español-Filipino vs.
Palanca, 37 Phil. 291)
In other words, it is the jurisdiction over the nature of the action.
In criminal cases you have light, less grave and grave offenses. In
civil cases we have such actions as actions for sum of money,
actions not capable of pecuniary estimation, real and personal
actions, action in rem, action in personam etc. This is what we call
the NATURE or classification OF THE ACTION.
When a complaint is filed in court, the basic questions that ipso
facto are to be immediately resolved by the court on its own are:
a.)What is the nature of the action filed?
b.) Does the court have authority to try and determine that
class of actions to which the one before it belongs?
Jurisdiction over the “subject matter” is not to be confused
with the term “subject matter of the action”.
“Subject matter” in lack of jurisdiction over the subject matter is
the kind or nature of the action filed and is the proper ground for a
motion to dismiss. “Subject or subject matter of the action” refers
to the physical facts, the things real or personal, the money, lands
or chattels and the like, in relation to which the suit is prosecuted
and not the delict or wrong committed by the defendant.
So if you talk about declaration of nullity of marriage the
subject matter of the action is the marriage of the parties involved
not any other contract but the nature of the action is that it is not
capable of pecuniary estimation; if it is for foreclosure of
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mortgage, the thing or subject of the action is the property
mortgaged, in specific performance or rescission of contract, it is
the contract involved that is the subject matter of the action.
2. Jurisdiction over the subject matter or nature of the action how
acquired-
Jurisdiction over the subject matter is conferred by law, which
may be either the Constitution or a statute(Tyson’s Super
Concrete, Inc. vs. Court of Appeals, 461 SCRA 435; de la Cruz vs. CA,
510 SCRA 103; Guy vs. CA, December 10, 2007), and is never
acquired by consent or submission of the parties or by their
laches. This is a matter of legislative enactment which none but the
legislature can change. (MRR Co. vs Atty. Gen. 20 Phil. 523; Otibar
vs. Vinson, L-18023, May 30, 1962)
It cannot be acquired by an agreement of the parties, waiver, or
failure to object (silence).
3. The important role Congress plays in the exercise of judicial
power, namely:
a. It creates by law the rights which are sought to be
protected or enforced;
b. It confers by law jurisdiction over the subject matter.
Both are of course in the form of substantive laws.
The law that confers jurisdiction refers to substantive law, not
a procedural law. It likewise does not refer to an administrative
order or circular (Malaloan vs. CA, 232 SCRA 249).
4. Determination of the subject matter or nature (class) of the
action-
It is a settled rule that jurisdiction over the subject matter is
determined by the allegations in the complaint (Baltazar vs.
Ombudsman, 510 SCRA 74) regardless of whether or not the
plaintiff is entitled to his claims asserted therein (Gocotano vs.
Gocotano 469 SCRA 328; Cadimas vs. Carrion GR No. 180394,
Sept. 29, 2008).
BANK OF THE PHILIPPINE ISLANDS, as successor-in-interest of Far
East Bank and Trust Company,
vs.
EDUARDO HONG, doing business under the name and style
“SUPER LINE PRINTING PRESS” and the COURT OF
APPEALS,
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G.R. No. 161771, February 15, 2012
Jurisdiction is defined as the power and authority of a court to
hear and decide a case. A court’s jurisdiction over the subject
matter of the action is conferred only by the Constitution or by
statute. The nature of an action and the subject matter thereof, as
well as which court or agency of the government has jurisdiction
over the same, are determined by the material allegations of the
complaint in relation to the law involved and the character of the
reliefs prayed for, whether or not the complainant/plaintiff is
entitled to any or all of such reliefs. And jurisdiction being a matter
of substantive law, the established rule is that the statute in force
at the time of the commencement of the action determines the
jurisdiction of the court.
It does not depend upon the pleas or defenses of the defendant in
his answer or motion to dismiss. (Cardenas vs. Camus, L-19191,
July 30, 1962; Edward J. Nell Co. vs. Cubacub, L-20842, June 23,
1965; Serrano vs. Muñoz Motors, L-25547, Nov. 27, 1967)
6. How do you determine then jurisdiction over the subject
matter?
It is determined by facts alleged in the complaint and the law
in force at the time of the commencement of the action.
(Mercado v. Ubay 187 SCRA 719)
This is true in criminal and civil cases.
Examples:
A case of Serious Physical Injuries was alleged in the
information filed with the CFI which was then vested with
jurisdiction over this type of cases, even if the medical certificate
attached to the records shows that the injuries are only slight
which falls under the jurisdiction of the municipal court. The CFI
may convict for slight physical injuries. Jurisdiction was determined
from the allegations in the information. (People v. Ocaya, 83 SCRA
218[1978])
In a civil case for collection of sum of money where the
complaint alleges that the totality of the demand is P350,000.00,
the case is properly filed with the RTC even if the defendant is able
to prove that it is only P50,000.00 for jurisdiction over the subject
matter is determined by the allegations in the complaint not the
defense or evidence presented.
7. Exception to the rule that jurisdiction is determined by the
allegations of the complaint
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The general rule is not applied with rigidity in ejectment cases in
which the defendant averred the defense of the existence of
tenancy relationship between the parties.
In Ignacio vs. CFI of Bulacan (42 SCRA 89) and other ejectment
cases (Salandanan vs. Tizon 62 SCRA 388; Concepcion vs. CFI of
Bulacan 119 SCRA 222), where tenancy was the defense, the court
went beyond the allegations of the complaint in determining
jurisdiction over the subject matter and required the presentation
of evidence to prove or disprove the defense of tenancy. After
finding the real issue to be tenancy, the cases were dismissed for
lack of jurisdiction as it should properly be filed with the Court of
Agrarian Reform (now DARAB) [de la Cruz vs. CA 510 SCRA 103]
In Salmorin vs. Zaldivar, GR No. 169691, July 23, 2008, the plaintiff
entered into an agreement with the defendant designating him as
administrator of a lot with a monthly salary of P150. The defendant
allegedly did not comply with the terms of the agreement when he
failed to till the vacant areas as agreed. This compelled the plaintiff
to terminate his services and eject him from the lot. When the
defendant refused to vacate the property, the plaintiff filed a
complaint for unlawful detainer against him in the MCTC.
In his Answer, the defendant alleged the existence of a tenancy
relationship between him and the plaintiff. Thus, he claimed that
the case was an agrarian matter over which the MCTC had no
jurisdiction.
The Court found that the plaintiff alleged the following:
(1) That he possessed the subject lot;
(2) That he instituted the defendant as administrator
thereof;
(3) That the defendant failed to administer the subject lot by
not having the vacant areas thereof planted;
(4) That for the defendant’s failure to administer the subject
lot, his services as administrator was terminated;
(5) That he advised defendant through registered mail to
leave or vacate the subject lot; and
(6) That the defendant refused to vacate the subject lot
without justification.
The Court ruled that from its material allegations, the complaint
concerned the unlawful detainer by the defendant of the subject
lot, a matter which is properly within the jurisdiction of the regular
courts.
The allegation of tenancy in the defendant’s answer did not
automatically deprive the MCTC of its jurisdiction because the
jurisdiction of the court over the nature of the action and the
subject matter thereof cannot be made to depend upon the
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defenses set up in the court or upon a motion to dismiss.
Otherwise, the Court ruled, the question of jurisdiction would
depend almost entirely on the defendant. Accordingly, the MCTC
does not lose its jurisdiction over an ejectment case by the simple
expedient of a party raising as defense therein the alleged
existence of a tenancy relationship between the parties. It is
however, the duty of the court to receive evidence to determine
the allegations of tenancy. If after hearing, tenancy had in fact
been shown to be the real issue, the court should dismiss the case
for lack of jurisdiction.
The Court further stressed that a tenancy relationship cannot be
presumed. There must be evidence to prove the tenancy relations
such that all its indispensable elements must be established, to
wit:
(1) The parties are the landowner and tenant;
(2) The subject is agricultural land;
(3) There is consent by the landowner;
(4) The purpose is agricultural production;
(5) There is personal cultivation; and
(6) There is sharing of the harvests.
All these requisites are necessary to create tenancy relationship,
and the absence of one or more requisites will not make the
alleged tenant a de facto tenant. All these elements must concur.
It is not enough that they are alleged.
8. No Retroactive Effect of Law on Jurisdiction over the subject
matter
Jurisdiction being a matter of substantive law, the
established rule is that statute in force at the time of the
commencement of the action determines jurisdiction – RA 7691
has no retroactive application. (Yu Oh v. CA GR No. 125297, June
6, 2003)
This follows the general rule on application of laws.
Why is jurisdiction over the subject matter substantive not
procedural?
Because the law vests, defines, regulates, authority or
power.
9. DOCTRINE OF PRIMARY JURISDICTION
Statement of the Doctrine
Under this doctrine, courts will not resolve a controversy involving
a question which is within its jurisdiction and also of an
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administrative tribunal, especially where the question demands
the exercise of sound administrative discretion requiring the
special knowledge and experience of said tribunal in determining
technical and intricate matters of fact. (Villaflor vs. CA, GR No.
95694, Oct. 8, 1997).
Where a case is such that its determination requires the expertise,
specialized skills and knowledge of the proper administrative
bodies because technical matters or intricate questions of fact are
involved, then relief must be obtained in an administrative
proceeding before a remedy will be supplied by the courts even
though the matter is within the proper jurisdiction of a court. This
is the doctrine of primary jurisdiction. It applies “where a claim is
originally cognizable in the courts, and comes into play whenever
enforcement of the claim requires the resolution of issues which,
under a regulatory scheme, have been placed within the special
competence of an administrative body, in such case, the judicial
process is suspended pending referral of such issues to the
administrative body for its view.” (US v. Western Pacific Railroad
Co., 352 US 59; Industrial Enterprises, Inc. v. CA, 184 SCRA 426)
Example: Damages is claimed arising from the collision between
the claimant's vessel and that of another. Such claim can of course
be determined by the courts. But in order to enforce such claim
before the courts, there must be a determination of which vessel is
at fault. This is issue is placed within the special special
competence of the Maritime Industry Authority or Philippine Coast
Guard which administrative body regulates sea travel. Under this
situation courts should defer to the jurisdiction of such
administrative body for it has the competence to determine which
vessel is at fault. Its finding then can serve as basis or premise for
the legal consequences to be then defined by the court.
In Far East Conference v. US 342 US 570 (1952) the Court defined
the primary jurisdiction doctrine as:
A principle, now firmly established, that in cases raising issues of
fact not within the conventional expertise of judges or cases
requiring the exercise of administrative discretion, agencies
created by Congress for regulating the subject matter should not
be passed over. This is even though the facts after they have been
appraised by specialized competence serve as a premise for legal
consequences to be judicially defined. Uniformity and consistency
in the regulation of business entrusted to a particular agency are
secured, and the limited functions of review by the judiciary are
more rationally exercised, by preliminary resort for ascertaining
and interpreting the circumstances underlying legal issues to
agencies that are better equipped than courts by specialization,
by insight gained through experience, and by more flexible
procedure.
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Since the inception of the doctrine courts have
resisted creating any fixed rules or formulas for its
application, “in every case the question is whether
the reasons for the existence of the doctrine are
present and whether the purposes it serves will be
aided by its application in the particular litigation.”
As the origin and evolution of the primary
jurisdiction doctrine demonstrate, the reasons for
the existence and the purposes it serves are two-
fold: the desire for the uniformity and the reliance
on administrative expertise. Thus, in determining
whether to apply the primary jurisdiction doctrine,
we must examine whether doing so would serve
either of these purposes.
These same tests were applied by our courts in the determination
of whether or not to apply the doctrine of primary jurisdiction.
Spouses Jose Abejo and Aurora Abejo, et a., v. Hon. Rafael de la
Cruz, etc. et al., 149 SCRA 654, citing Pambujan Sur United Mine
Workers v. Samar Mining Co., In., 94 Phil. 932, 941 [1954])
See GMA Network, Inc., v. ABS-CBN Broadcasting Corporation, G.R.
No. 160703, September 23, 2005.
In Paat v. CA, 266 SCRA 167 the Court said that enforcement of
forestry laws, rules and regulations and the protection,
development and management of forest lands fall within the
primary and special responsibilities of the DENR. By the very nature
of the functions, the DENR should be given a free hand
unperturbed by judicial intrusion to determine a controversy which
is well within its jurisdiction. The assumption therefore of the
replevin suit by the trial court filed by the private respondents
constitutes an unjustified encroachment into the domain of the
administrative agency’s prerogative.
Quasi-judicial bodies like the CSC are better equipped in handling
cases involving the employment status of employees of those in
the civil service since it is within the field of its expertise. (Paloma
v. Mora GR No. 157783, Sept. 23, 2005)
10. Doctrine of Continuity of jurisdiction (Adherence of
Jurisdiction)
Under this rule, jurisdiction, once it attaches cannot be
ousted by the happening of subsequent events although of such a
character which should have prevented jurisdiction from
attaching in the first instance (Ramos vs. Central Bank of the Phil.
41 SCRA 586 [1971]).
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The court, once jurisdiction has been acquired, retains that
jurisdiction until it finally disposes of the case (De La Rosa vs.
Roldan, 501 SCRA 34).
As a consequence of this principle, jurisdiction is not affected
by a new law placing a proceeding under the jurisdiction of another
tribunal except when otherwise provided in the statute or if the
statute is clearly intended to apply to actions pending even
before its enactment (People vs. Cawaling, 293 SCRA 267)
Thus, when RA No. 7691 expanded the jurisdiction of the first level
courts, said courts acquired jurisdiction over cases that under BP
129 were originally within the jurisdiction of the RTC. But cases
pending already with the RTC at the time of the effectivity of the
law were not affected by such new law unless the parties by
agreement, pursuant to Sec. 7 therein, agreed to transfer the
pending cases from the RTC to the lower courts especially those
which have reached the pre-trial stage.
In an action for ejectment, if the defendant voluntarily
surrenders the premises subject of the action to the plaintiff, the
surrender of the property does not divest the court of jurisdiction
(Pamintuan vs. Tiglao 53 Phil. 1)
If the court has jurisdiction to act on a motion at the time it
was filed, that jurisdiction to resolve the motion continues until the
matter is resolved and is not lost by the subsequent filing of a
notice of appeal. (Asmala vs. Comelec, 289 SCRA 746)
The trial court did not lose jurisdiction over the case involving
a public official by the mere fact that said official ceased to be in
office during the pendency of the case (Flores vs. Sumaljag, 290
SCRA 568). Also, the jurisdiction that the court had at the time of
the filing of the complaint is not lost by the mere fact that the
respondent judge ceased to be in office during the pendency of the
case (Victory Liner vs. Bellosillo, 425 SCRA 79).
Even the finality of the judgment does not totally deprive
the court of jurisdiction over the case. What the court loses if the
power to amend, modify or alter the judgment. Even after the
judgment has become final, the court retains jurisdiction to
enforce and execute it (Echegaray vs. Sec. of Justice, 301 SCRA 96;
Republic vs. Atlas Farms, 345 SCRA 296).
10. Exceptions to the Rule of Adherence/Continuity of
Jurisdiction
1. When there is an express provision in the statute on
retroactive application; or
2. The statute is clearly intended to apply to actions
pending before its enactment; or
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3. The statute is curative. This means that even if
originally there was no jurisdiction, the lack of
jurisdiction may be cured by the issuance of the
amendatory decree which is in the nature of a curative
statute with retrospective application to a pending
proceeding and cures that lack of jurisdiction. Thus, in a
case, while the CFI has no jurisdiction over a complaint
for damages arising from the dismissal of a radio station
manager which was filed on August 2, 1976, PD 1367
vesting the court with jurisdiction over such type of
cases cured the lack of jurisdiction of the trial court at
the time the instant claim was filed before it. (Garcia vs.
Martinez 90 SCRA 331 [1979])
Read also Atlas Fertilizer vs. Hon. Exaltacion Navarro, 149
SCRA 432)
11. How Jurisdiction Over the Subject Matter is Acquired By the
Court
1. It is conferred by law applicable at the time of the
commencement of the action; and
2. Jurisdiction must be properly invoked by filing the
complaint or information.
12. Doctrine of Ancillary Jurisdiction
It involves the inherent or implied power of the court to
determine issues incidental to the exercise of its primary
jurisdiction.
Under its ancillary jurisdiction, a court may determine all
questions relative to the matters brought before it, regulate the
manner in which a trial shall be conducted, determine the hours
at which the witnesses and lawyers may be heard, direct the
disposition of money deposited in court in the course of the
proceedings, appoint a receiver and grant an injunction,
attachment or garnishment.
14. Objections to jurisdiction over the subject matter
The court may on its own initiative object to an erroneous
jurisdiction and may ex mero motu take cognizance of lack of
jurisdiction at any point in the case and has a clearly recognized
right to determine its own jurisdiction (Fabian vs. Desierto, 295
SCRA 470). “When it appears from the pleadings or evidence on
record that the court has no jurisdiction over the subject
matter,…the court shall dismiss the same” (Sec. 1, Rule 9, Rules of
Court)
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The earliest opportunity of a party to raise the issue of jurisdiction
is in a motion to dismiss filed before the filing or service of an
answer. Lack of jurisdiction over the subject matter is a ground for
a motion to dismiss (Sec. 1(b), Rule 16, Rules of Court). If no motion
is filed, the defense of lack of jurisdiction may be raised as an
affirmative defense in the answer (Sec. 6, Rule 16)
Under the Omnibus Motion rule, a motion attacking a pleading like
a motion to dismiss, shall include all grounds then available, and all
objections not so included shall be deemed waived (Sec. 8 Rule 15).
The defense of lack of jurisdiction over the subject matter is
however, a defense not barred by the failure to invoke the same in
a motion to dismiss already filed. Even if a motion to dismiss was
filed and the issue of jurisdiction was not raised therein, a party
may, when he files an answer, raise the lack of jurisdiction as an
affirmative defense because this defense is not barred under the
omnibus motion rule.
Thus, the prevailing rule is that jurisdiction over the subject
matter may be raised at any stage of the proceedings, even for
the first time on appeal (Calimlim vs. Ramirez, 118 SCRA 399;
Francel Realty Corporation vs. Sycip 469 SCRA 424).
The issue is so basic that it may be raised at any stage of the
proceedings, even on appeal. In fact, courts may take cognizance
of the issue even if not raised by the parties. There is thus no
reason to preclude the Court of Appeals, for example, from ruling
on this issue even if the same has not yet been resolved by the
trial court below (Asia International Auctioneers, Inc. vs. GR No.
163445, Dec. 18, 2007).
Lack of jurisdiction is one of those excepted grounds where the
court may dismiss a claim or a case at any time when it appears
from the pleadings or the evidence on record that any of those
ground exists, even if they were not raised in the answer or in a
motion to dismiss. That the issue of lack of jurisdiction was raised
only by the defendants in their memorandum filed before the trial
court did not render them in estoppel (Vda. De Barrera vs. Heirs of
Vicente Legaspi GR No. 174346 Sept. 12, 2008).
When the court dismisses the complaint for lack of jurisdiction over
the subject matter, should it refer or forward the case to another
court with the proper jurisdiction? It is submitted that the court
should not do so. Its only authority is to dismiss the complaint and
not to make any other order.
15. Objections to Jurisdiction over the subject matter and
Estoppel by Laches
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Estoppel means you cannot disown your act by which you
have misled another while laches means abandonment of a right
for failure to assert it for a long time.
Gen. Rule: You can raise your objection on jurisdiction over
the subject matter even for the first time on appeal.
The ONLY exception is when there is estoppel by laches, as
laid down in TIJAM vs. SIBONGHANOY ( Tijam vs. Sibonghanoy 23
SCRA 29, April 15, 1968).
In this case, a complaint for collection cognizable by the
inferior court was filed in the CFI. The jurisdiction was not
questioned. The CFI issued a writ of preliminary attachment but
was dissolved when the defendant filed a counterbond thru a
surety. After trial, the court rendered a judgment against the
defendants. That decision became final and a motion for execution
was filed and granted. When implemented, the writ of execution
was unsatisfied so the plaintiff moved that the writ be executed
against the counterbond. The surety filed an opposition and sought
to be relieved from liability. The motion was denied on ground that
the surety was not notified. Plaintiff then filed a second motion for
execution against the counterbond notifying the surety this time.
Since the surety failed to oppose the motion was granted. The
surety moved to quash the writ against the counterbond but was
denied. The surety went to the Court of Appeals which affirmed the
order. The surety filed a motion for extension of time to file a
motion for reconsideration which the CA granted. However,
instead of filing a motion for reconsideration the surety filed this
time a motion to dismiss on ground that the CFI did not have
jurisdiction over the subject matter. Instead of deciding the CA
certified the case to the Supreme Court because the issue raised is
purely legal.
The Court emphatically declared: “The facts of the case show
that from the time the Surety became a quasi-party on July 31,
1948, it could have raised the question of the lack of jurisdiction of
the Court of First Instance of Cebu to take cognizance of the
present action by reason of the sum of money involved which,
according to the law then in force, was within the original exclusive
jurisdiction of inferior courts. It failed to do so. Instead, at several
stages of the proceedings, in the court a quo as well as in the CA, it
invoked the jurisdiction of said courts to obtain affirmative reliefs
and submitted its case for a final adjudication on the merits. It was
only after an adverse decision was rendered by the CA that it finally
woke up to raise the question of jurisdiction. Were we to sanction
such conduct on its part we would in effect be declaring as useless
all the proceedings had in the present case since it was
commenced on July 19, 1948 and compel the judgment creditors to
go up their Calvary once more. The inequity and unfairness of this
is not only patent but revolting.”
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In other words, while jurisdiction as a rule, may be raised at
any stage of the proceedings (Panganiban vs. CA, 321SCRA 51, 59
[1999]), a party may be stopped from raising such questions if he
has actively taken part in the very proceedings which he questions,
belatedly objecting to the court’s jurisdiction in the event that the
judgment or order subsequently rendered is adverse to him. (Alday
v. FGU Insurance Corporation, 350 SCRA 113, 120 [2001]).
In general sense, estoppel by laches is failure or neglect for an
unreasonable and unexplained length of time to do what ought to
have been done earlier. The failure to act warrants the
presumption that one has abandoned his right or that he had
acquiesced to the correctness and fairness of what has been
resolved. The doctrine of estoppel is based on public policy
intended to discourage stale claims. Estoppel is not a question of
time unlike the statute of limitations. It is rather based on the
inequity or unfairness of permitting a claim to be asserted at a
time such claim is presumed to have been abandoned. (Sps.
Guillermo Agbada and Maxima Agbada v. Inter-Urban Developers,
Inc. GR 144029, Sept. 19,2002)
Lamis, et al. v. Dong-E, G.R. No. 173021, October 20, 2010
An action to recover an ancestral land in Baguio City was filed with
the RTC. The parties participated in the proceedings and the trial
court rendered a decision which was affirmed by the CA. The losing
party went up to the Supreme Court and questioned for the first
time the jurisdiction of the RTC on ground that with the enactment
of RA 8371, or the Indigenous People’s Right Act of 1997 (IPRA)
original and exclusive jurisdiction over disputes involving ancestral
lands and domains now lies with the National Commission of
indigenous Peoples (NCIP).
Is the contention of petitioners correct? Why?
No. They are barred by laches from raising their jurisdictional
objection.
In Tijam v. Sibonghanoy, 131 Phil. 556 (1968), the Court ruled that
the existence of laches will prevent a party from raising the court’s
lack of jurisdiction. Laches is defined as the ”failure or neglect, for
an unreasonable and unexplained length of time, to do that which,
by exercising due diligence, could or should have been done earlier;
it is negligence or omission to assert a right within a reasonable
time, warranting the presumption that the party entitled to assert
it either has abandoned or decline to assert it.”
The fact pattern common among those cases wherein the Court
invoked estoppel to prevent a party from questioning jurisdiction
is a party’s active participation in all stages of a case, including
invoking the authority of the court in seeking affirmative relief
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and questioning the court’s jurisdiction only after receiving a
ruling or decision adverse to his case for the purpose of annulling
everything done in the trial in which he has actively participated.
As clearly pointed out in Lao vs. Republic 479 SCRA 439: “A party
who has invoked the jurisdiction of the court over a particular
matter to secure affirmative relief cannot be permitted to
afterwards deny the same jurisdiction to escape liability.”
The Supreme Court frowns upon the undesirable practice of
submitting one’s case for decision, and then accepting the
judgment only if favorable, but attacking it for lack of jurisdiction if
it is not (Bank of the Philippine Islands vs. ALS Management and
Development Corporation, 427 SCRA 564).
Bar by Estoppel Is An Exception and Not the General Rule
The doctrine laid down in Tijam is the exception , and not the
general rule (Pangilinan v. CA, 321 SCRA 51, 59 [1999]).
Estoppel by laches may be invoked to bar the issue of
jurisdiction only in cases in which the factual milieu is analogous
to that of Tijam.
In Tijam, the defense of lack of jurisdiction was raised for the
first time in a motion to dismiss filed by the Surety almost fifteen
(15) years after the questioned ruling had been rendered. At
several stages of the proceedings, in the court a quo as well as in
the Court of Appeals, the Surety invoked the jurisdiction of the said
courts to obtain affirmative relief and submitted its case for final
adjudication on the merits. It was only when the adverse decision
was rendered by the Court of Appeals that it finally woke up to
raise the question of jurisdiction (Regalado vs. Go, GR No. 167988,
February6, 2007)
Inspite of Tijam and subsequent cases which invoked it, the
rule that the lack of jurisdiction over the subject matter may be
raised at any stage of the proceedings, even on appeal, still remains
the prevailing rule and Tijam should be confined only to situations
prevailing in a particular case viewed in the light of the special
circumstances surrounding it.
The statement that jurisdiction is conferred by substantive law is
not accurate because only jurisdiction over the subject matter is
conferred by substantive law. Jurisdiction over the parties, issues
and res is governed by procedural laws.
B. JURISDICTION OVER THE PERSON (PARTIES)
1. Define jurisdiction over the person.
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Jurisdiction over the person is the power to render a
personal judgment against a party to an action or proceeding
through the service of process or by voluntary appearance of a
party during the progress of a cause. (Banco Español-Filipino vs.
Palanca, 37 Phil. 291)
It is the power of the court to bring before it persons to be
affected by the judgment so as to give him an opportunity to be
heard, and to render a judgment binding upon his person.
(21C.J.S., Courts, Sec. 11, 1990)
Q: In criminal cases, how does the court acquire jurisdiction
over the person of the accused?
A: By having him (1) arrested; (2) by service of the warrant of
arrest; or (3) by his voluntary surrender.
2. How does the court acquire jurisdiction over the person in
civil actions?
The manner by which the court acquires jurisdiction over the
parties depends on whether the party is the plaintiff or the
defendant.
As to Plaintiff
Jurisdiction over the person of the plaintiff is acquired by
his/her filing of the complaint or petition. By doing so, he submits
himself/herself to the jurisdiction of the court. (Davao Light &
Power Co. Inc. v. CA, 204 SCRA 343, 348 [1991])
Example:
X, a resident of Melbourne, Australia, presented a complaint
against Y, a resident of Manila, before the CFI of Manila for
accounting and damages. X never came to the Philippines to file
the suit and is only represented in this case by counsel. Y files a
motion to dismiss the complaint on the ground that the court
acquired no jurisdiction over the person of X.
Should the complaint be dismissed on said ground? Why?
No. It is a recognized procedural rule that jurisdiction over the
plaintiff is acquired by his/her filing of the complaint in court. By
filing the complaint through his/her counsel, X invoked the
jurisdiction of the court over his person.
As to Defendant
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Jurisdiction over the person of the defendant is required
only in action in personam (Asiavest Limited vs. CA, 296 SCRA
539). Jurisdiction over the person of the defendant is not a
prerequisite in an action in rem and quasi in rem (Gomez vs. CA
425 SCRA 98; Biaco vs. Phil. Countryside Rural Bank 515 SCRA 106.
Jurisdiction Over the Person of the Defendant in Actions in
Personam, How Acquired
Jurisdiction over the person of the defendant in actions in
personam is obtained either by a valid service of summons upon
him or by his/her voluntary submission to the court’s authority.
(Ang Ping vs. CA, 310 SCRA 343, 349 [1999]; Davao Light vs. CA)
The service of summons is intended to give official notice to
the defendant or respondent that an action has been commenced
against him. He is thus put on guard as to the demands of the
plaintiff as stated in the complaint. The service of summons is an
important element in the operation of a court’s jurisdiction upon
a party to a suit because it is the means by which the court
acquires jurisdiction over his person. Without service of
summons, or when the service is improper, the trial and the
judgment being in violation of due process, are both null and
void. (Avon Insurance PLC v. CA, 278 SCRA 312, 325 [1997])
The mode of acquisition of jurisdiction over the plaintiff and
the defendant applies to both ordinary and special civil actions
like mandamus or unlawful detainer cases (Bar 1994).
First Manner: UPON SERVICE ON HIM OF COERCIVE PROCESS
IN THE MANNER PROVIDED BY LAW
The first instance when a court acquires jurisdiction over the
person of the defendant is through service upon him of the
appropriate court process, which, in civil procedure, is called
service of summons. This is the counterpart of warrant of arrest in
criminal procedure.
So if the defendant was never served with summons, any
judgment rendered by the court will not bind him. Even if he is the
loser in the case, judgment cannot be enforced because the court
did not acquire jurisdiction over his person.
The same principle holds true in criminal cases. A court cannot
try and convict an accused over whose person the court never
acquired jurisdiction. In criminal cases, the court acquires
jurisdiction over the person through the issuance and service of a
warrant of arrest. The warrant cannot have its effect even if it was
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issued, if the same had not been served, i.e. by effecting the arrest
of the accused by virtue of a warrant.
Second Instance: BY HIS VOLUNTARY SUBMISSION TO THE
JURISDICTION OF THE COURT
In civil cases, voluntary submission of the defendant to the
jurisdiction of the court can be by:
a.) waiver;
b.) consent; or
c.) lack of objection by the defendant. (MRR Co. vs.
Atty. Gen. 20 Phil. 523)
Jurisdiction; personal jurisdiction in civil cases; voluntary
appearance.
Optima Realty Corporation v. Hertz Phil. Exclusive Cars, Inc.,G.R.
No. 183035. January 9, 2013
In civil cases, jurisdiction over the person of the defendant may be
acquired either by service of summons or by the defendant’s
voluntary appearance in court and submission to its authority.
In this case, the MeTC acquired jurisdiction over the person of
respondent Hertz by reason of the latter’s voluntary appearance in
court. In Philippine Commercial International Bank v. Spouses Dy,
we had occasion to state:
Preliminarily, jurisdiction over the defendant in a
civil case is acquired either by the coercive power
of legal processes exerted over his person, or his
voluntary appearance in court. As a general
proposition, one who seeks an affirmative relief is
deemed to have submitted to the jurisdiction of
the court. It is by reason of this rule that we have
had occasion to declare that the filing of motions
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, is considered voluntary
submission to the court’s jurisdiction. This,
however, is tempered by the concept of
conditional appearance, such that a party who
makes a special appearance to challenge, among
others, the court’s jurisdiction over his person
cannot be considered to have submitted to its
authority.
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Prescinding from the foregoing, it is thus clear that:
(1) special appearance operates as an exception to the general rule
on voluntary appearance;
Accordingly, objections to the jurisdiction of the court over the
person of the defendant must be explicitly made, i.e., set
forth in an unequivocal manner.
Failure to do so constitutes voluntary submission to the jurisdiction
of the court, especially in instances where a pleading or
motion seeking affirmative relief is filed and submitted
to the court for resolution.
Certain actions which could be construed as voluntary
appearance are:
1.) when the defendant’s counsel files the corresponding
pleading thereon;
2.) when the defendant files a motion for reconsideration
of the judgment by default;
3.) when the defendant files a petition to set aside the
judgment of default;
4.) when the defendant and plaintiff jointly submit a
compromise agreement for the approval of the court;
5.) when the defendant files an answer to the contempt
charge;
6.) when the defendant files a petition for certiorari
without questioning the court’s jurisdiction over his
person (Navale v. CA, 253 SCRA 705, 709, 710, 709-712
[1996])
Objections to jurisdiction over the person of the defendant, how
or to raise-
An objection to the jurisdiction over the person of the
defendant may be raised as a ground for a motion to dismiss (Sec.
1(a) Rule 16). If no motion to dismiss has been filed, the objection
may be pleaded as an affirmative defense in the answer (Sec. 6
Rule 16).
If a motion to dismiss has been filed, the objection to the lack of
jurisdiction over the person of the defendant must be pleaded in
the same motion where such ground is available at the time the
motion is filed, otherwise it is deemed waived pursuant to the
omnibus motion rule. The defense of lack of jurisdiction over the
person of the defendant is not one of those defenses which are
not deemed waived if not raised in the motion to dismiss. Only
lack of jurisdiction over the subject matter, litis pendentia, res
judicata and prescription are not waived (Sec. 1 Rule 9 in relation
to Sec. 8 Rule 15).
Effect of pleading additional defenses aside from lack of jurisdiction
over the person of the defendant
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Under the former procedure, if the defendant raises the objection
of lack of jurisdiction over his person in a motion to dismiss, the
motion must rely only on that particular ground. If the defendant
appears in court, objects to its jurisdiction over his person and at
the same time alleges other grounds, the appearance would be
deemed a general appearance which was in effect a voluntary
submission to the jurisdiction of the court (Republic vs. Kerr 18
SCRA 207; WANG Laboratories VS. Mendoza 156 SCRA 44).
The above rule was re-examined in La Naval Drug Corporation vs.
CA 236 SCRA 78). The pronouncements in said case are now
embodied in Sec. 20 of Rule 14 which provides: ****The inclusion
in a motion to dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant shall not be deemed
a voluntary appearance.
In a criminal action, another way to acquire jurisdiction over the
person of the accused even if the accused is not arrested is through
VOLUNTARY SURRENDER. Since there is no more need for the
warrant, the court will recall the same.
Distinction between jurisdiction over the subject matter and
jurisdiction over the person of the defendant.
Lack of jurisdiction over the person of the defendant may be
cured by waiver, consent, silence or failure to object, whereas
jurisdiction over the subject matter cannot be cured by failure to
object or by silence, waiver or consent. (MRR Co. vs. Atty. Gen. 20
Phil. 523)
C. JURISDICTION OVER THE RES or property in litigation-
RES is the Latin word for “thing.” It is applied to an object,
subject matter (not nature of the action), status, considered as
the defendant in the action or as the object against which,
directly, proceedings are taken. (Black’s 5th Ed., 1172)
Define jurisdiction over the res.
Jurisdiction over the res is the power or authority of the court
over the thing or property under litigation. (Perkins v. Dizon, 69
Phil. 186, 190 [1939])
It is the power to bind the “thing”.
How acquired-
It is acquired either by the (a) the seizure of the property
under legal process whereby it is brought into actual or
constructive custody of the court or (b) as a result of the
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institution of legal proceedings, in which the power of the court is
recognized and made effective. (Macahilig vs. Heirs of Grace M.
Magalit, GR No. 141423, Nov. 15, 2000)
Acquisition of jurisdiction over the res by actual seizure is
exemplified by an attachment proceeding where the property is
seized at the commencement of the action or at some subsequent
stage in the action. It is also acquired through a legal provision
which authorizes the court to exercise authority over a property
or subject matter such as suits involving a person’s status or
property located in the Philippines in actions in rem or quasi in
rem. (Banco Espanol Filipino vs. Palanca 37 Phil. 921, 927 [1918];
Perkins v. Dizon; Sec. 15, Rule 14, Rules of Court.)
In Land Registration cases or probate proceedings,
jurisdiction is acquired by compliance with procedural requisites,
such as publication.
In a petition for change of name, the title of the petition
must be complete by including the name sought to be adopted;
otherwise, the court acquires no jurisdiction over the
proceedings. (Telmo vs. Republic, 73 SCRA 29 (1976).
Q: A files a case for recovery of ownership against B over a
piece of land. What is the res of the case?
A: The piece of land is the res of the case.
What is the nature of the action?
To recover ownership of real property or real action.
Q: However, res may not be tangible. For example, X is an
illegitimate child. She wants to be acknowledged by her father.
Thus, she filed a case against her father for compulsory recognition.
What is the res?
A: The res is the status of the child because it is the object of
the litigation.
Importance of jurisdiction over the res-
The court obtains the authority to bind the “thing”. Sometimes it is
a substitute for jurisdiction over the person. There are instances
when the court cannot acquire jurisdiction over the defendant like
when he is abroad. But if the court acquires jurisdiction over the
res, the case may go on. Even if the court cannot acquire
jurisdiction over the person of the defendant, jurisdiction over the
res becomes a substitute over the person.
In the example of action for compulsory recognition, even if
the defendant is a non-resident who is out of the country the
object of litigation is status here in the Philippines, then acquisition
of jurisdiction over the res confers jurisdiction to the court even if
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the defendant is abroad. The res here is the status against which or
in relation to which the judgment can be enforced.
In Rule 57 Section 1, among the grounds for issuance of a writ
of preliminary attachment is:
“(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
publications.”
D. JURISDICTION OVER THE ISSUES
Meaning of Issue
An issue is a disputed point or question to which parties to
an action have narrowed down their several allegations and upon
which they are desirous of obtaining a decision. (Black’s 5th Ed.,
745 citing Muller v. Muller, 235 Cal App. 2nd 341, 45 Cal. Rptr 182,
184)
Define jurisdiction over the issues.
Jurisdiction over the issue is the authority to try and decide
the issues raised in the pleadings of the parties. (Reyes vs. Diaz,
73 Phil. 484)
Q: What are pleadings?
A:Rule 6, Section 1 - Pleadings are the written allegation of
the parties of their respective claims and defenses submitted to
the court for trial and judgment.
How Jurisdiction Over The Issues Is Conferred and Determined
In order to determine whether or not a court has jurisdiction
over the issue or issues of the case, one must, therefore, examine
the pleadings.
Jurisdiction over the issue is conferred and determined by
the pleadings of the parties.
In a civil case, pleadings are written statements of the
respective positions of the parties, namely, the claims for the
plaintiff and defenses for the defendant.
EXAMPLE: X files a case for collection of sum of money against
Y. The pleading that X will file will contain the written statements of
his claim. He will narrate there for instance that Y borrowed money
from him promising to pay it on a day certain but when it became
due no payment was made despite demands so he suffered actual
loss or damage aside from moral damage.
By way of response, X will file his position in writing stating his
defenses like denying the loan; the promissory note is a forgery or
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admitting the loan but claiming that it had already been paid or the
action has prescribed. This written statement of his position
containing his defense or defenses is a pleading called an answer.
In the answer Y can also allege claims, if he has any against the
plaintiff like the case is merely intended to harass him for which
reason he suffered damages. This is called a counterclaim, another
pleading and X can in turn file an answer to the counterclaim where
he will state his defense/s as regards the claim contained in the
counterclaim.
Based on their allegations and counter-allegations the court
will know what issues are to be resolved.
So, if X says that Y borrowed money, and never paid
him, while Y, in answer states that he did borrow but
already paid it, what issue is being presented to be
resolved by the court?
A: The issue is, whether the obligation is still existing or is it
already extinguished by payment. So that is how the court
will know what it will try in this case.
Q: Let us suppose that in the problem above, the court, after
the trial, said in its decision that the obligation has been
extinguished by condonation. Will that bind?
A:No, because the parties did not raise condonation as the
issue. So the court decided that issue over which it never acquired
jurisdiction.
In other words, the court should only rule on what the
parties raised in their pleadings. That is what we call jurisdiction
over the issue.
Jurisdiction over the issues may also be determined and conferred
by stipulation of the parties as when in the pre-trial, the parties
enter into stipulation of facts and documents or enter into an
agreement simplifying the issues of the case (Sec. 2 Rule 18)
Jurisdiction over the issues may also be conferred by waiver
or failure to object to the presentation of evidence on a matter
not raised in the pleadings. Here the parties try with their express
or implied consent issues not raised by the pleadings. The issues
tried shall be treated in all respects as if they had been raised in
the pleadings (Sec. 5 Rule 10).
So, if in the above example, the plaintiff presented evidence
to prove moral damage without objection from the defendant, or
the defendant proved a defense not alleged without objection from
the plaintiff, the court obtains jurisdiction over such issue by waiver
or failure to object.
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When An Issue Arises Even If Not Raised In the Pleadings
Although it is a rule that jurisdiction over the issue is to be
determined by the pleadings of the parties, an issue may arise in a
case without it being raised in the pleadings. This happens when
the parties try an issue with their consent. Under Sec. 5, Rule 10 of
the Rules of Court, when issues not raised by the pleadings are
tried with the express or the implied consent of the parties, they
shall be treated in all respects, as if they had been raised in the
pleadings. Thus, if evidence on a claim for salary differential is not
objected to, the Labor Arbiter correctly considered the evidence
even if the claim is not mentioned in the complaint. (Cindy and
Lynsy Garment v. NLRC, 284 SCRA 38, 45 [1998])
Jurisdiction Over the Subject Matter Distinguished from
Jurisdiction Over the Issues
Jurisdiction over the issues is conferred by the pleadings and
by the express (stipulation) or implied (failure to object to
evidence) consent of the parties because an issue not duly pleaded
may be validly tried and decided by the court as long as there is no
objection from the parties. Jurisdiction over the subject matter is
conferred by law and cannot be subject to the agreement of the
parties. (Vda de Victoria v. CA, GR No. 147550, Jan. 26, 2005)
A: The following are the distinctions:
1.) Jurisdiction over the subject matter is the power to
hear and try a particular case, while
Jurisdiction over the issues is the power of the
court to resolve questions involved in the
case;
2.) Jurisdiction over the subject matter is acquired
upon filing of the complaint, while
Jurisdiction over the issues of the case is acquired
upon filing of the answer which joins the
issues involved in the case.
Take note that jurisdiction over the issues in civil cases is
acquired after defendant has filed an answer. In criminal cases,
jurisdiction over the issues is acquired when the accused enters a
plea of not guilty or pleads guilty but seeks to prove a mitigating
circumstance.
For a decision to be effective, the court must acquire the
jurisdiction over the subject matter, the person, the res in case the
defendant is not around, and the last is jurisdiction over the issue.
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JURISDICTION OVER THE SUBJECT MATTER
THE SUPREME COURT
The highest court of the land is the Supreme Court. It was not
affected by the Judiciary Law (BP 129) which reorganized the
judiciary in 1983. Being a constitutional court, its jurisdiction is
found in the fundamental law itself. The SC is both an original and
appellate court.
Composition
It is composed of the Chief Justice and 14 Associate Justices.
The Constitution ordains that the President appoints the
members of the SC and judges of lower courts from a list of at least
three nominees prepared by the JBC for every vacancy and requires
the President to issue appointments, for lower courts, within 90
days from submission of the list (Art. VIII, Sec. 9) and to fill the
vacancy of the SC within 90 days from its occurrence. (Art. VIII Sec.
4(1). All such appointments need no confirmation. (Sec. 9)
Principal Functions of the Supreme Court
a.) Adjudication (Judicial Power)
b.)Administration or Disciplinary power
c.)Rule-making (Rule-making Power)
Divisions and En Banc
The SC sits either en banc or in divisions of 3, 5 or 7 members.
At present, it has 3 divisions of 5 members each.
A decision or resolution of a division, when concurred in by a
majority of its members who actually took part in the deliberations
on the issues in a case and voted thereon, and in no case without
the concurrence of at least 3 of such members, is a decision or
resolution of the SC. (Sec. 4(3) Art. VIII Constitution).
The Court en banc is not an appellate court to which decisions
or resolutions of a division may be appealed. (Circular No. 2-89)
No doctrine or principle of law laid down by the court in a
decision rendered en banc or in division may be modified or
reversed except by the court sitting en banc. (Sec. 4(3))
How a Case Before a Division is Referred to the Court en banc
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At any time after a Division takes cognizance of a case and
before a judgment or resolution therein rendered becomes final
and executory, the Division may refer the case en consulta to the
court en banc which, after consideration of the reasons of the
division for such referral, may return the case to the Division or
accept the case for decision or resolution.
Cases assigned to a Division including motions for
reconsideration which in the opinion of at least 3 members merit
the attention of the court en banc and are accepted by the majority
vote of the actual members of the court en banc may be
considered as en banc cases.
A resolution of the Division denying a party’s motion for
referral to the Court en banc of any division shall be final and not
appealable to the Court en banc.
When a decision or resolution is referred by a division to the
Court en banc, the latter may in the absence of sufficiently
important reasons decline to take cognizance of the same, in which
case, the decision or resolution shall be returned to the referring
Division. (Circular No. 2-89 effective March 1, 1989)
En Banc Cases
In a resolution dated February 23, 1984, the following are
considered en banc cases:
a.) Cases in which the constitutionality or validity of any
treaty, executive agreement, law, ordinance or
executive order or regulation is in question;
b.) Criminal cases in which the decision imposes the death
penalty;
c.) Cases raising novel questions of law;
d.) Cases affecting ambassadors, public ministers and
consuls;
e.) Cases where a doctrine or principle laid down by the
court en banc or in division may be modified or
reversed;
f.) Cases assigned to a division including motions for
reconsideration which in the opinion of at least 3
members merit the attention of the Court en banc
and are acceptable to a majority vote of the actual
membership of the Court en banc;
g.) All other cases as the Court en banc by a majority of its
actual membership may deem of sufficient
importance to merit its attention;
h.) Cases where the penalty to be imposed is the dismissal
of a judge, officer, or employee of the SC,
disbarment of a lawyer, or suspension of any of
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them for a period of more than one year or a fine of
P10,000.00, or both;
i.) Cases involving decisions, resolutions or orders of the
Sandiganbayan, Comelec, COA, or Military
Tribunals;
j.) Habeas corpus against government or military officials;
ORIGINAL JURISDICTION OF THE SUPREME COURT
Article VIII, Section 5, paragraph 1 of the 1987 Constitution
enumerates the ORIGINAL jurisdiction of the SC:
Section 5. The Supreme Court shall have the following
powers:
[1] Exercise original jurisdiction over cases affecting
ambassadors, other public ministers and consuls, over petitions
for certiorari, prohibition, mandamus, quo warranto, and habeas
corpus.
Note that the foregoing provision does not define the
original jurisdiction of the SC as exclusive, hence it can be
concurrent or exclusive.
When is it exclusive and when concurrent?
I. SUPREME COURT
A. Original Jurisdiction
1. Exclusive
Petitions for issuance of writs of certiorari, prohibition, and
mandamus against the following:
1.1. Court of Appeals (Republic Act No. 296 [1948], Sec. 171);
1.2. Commission on Elections En Banc (CONSTITUTION, Art. IX-
A, Sec. 7);
1.3. Commission on Audit (CONSTITUTION, Art. IX-A, Sec. 7);
1.4. Sandiganbayan (Presidential Decree No. 1606 [1979], Sec
7, as amended by Rep. Act No. 8249 [1997], Sec. 5);
1.5. Court of Tax Appeals En Banc (Rep. Act No. 1125 [1954],
Sec. 19, as amended by Rep. Act No. 9282 [2004], Sec. 12); and
1.6. Ombudsman in criminal and non-administrative
disciplinary cases.
2. Original Concurrent
2.1. with the Court of Appeals
2.1.1. Petitions for writs of certiorari, prohibition, and
mandamus against the Civil Service Commission (Rep. Act No. 7902
[1995]).
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2.1.2. Petitions for writs of certiorari, prohibition, and
mandamus against the National Labor Relations Commission under
the Labor Code (Batas Pambansa Blg. 129 [1983], Sec. 9, as
amended by Rep. Act No. 7902, St. Martin’s Funeral Homes v.
National Labor Relations Commission, G.R. No. 130866, September
16, 1998, 295 SCRA 494).
2.2. with the Court of Appeals and Regional Trial Courts
2.2.1 Petitions for habeas corpus and quo warranto
2.2.2 Actions brought to prevent and restrain violations of
laws concerning monopolies and combinations in restraint of trade
(Rep. Act No. 296, Sec. 17, as amended by Rep. Act No. 5440
[1968]).
2.3. with the Court of Appeals, Sandiganbayan and Regional
Trial Courts
2.3.1. Petitions for certiorari, prohibition, and mandamus
relating to an act or omission of a municipal trial court, or of a
corporation, a board, an officer, or person.
2.3.2. Petitions for issuance of writ of amparo (Sec. 3, A.M.
No. 07-9-12-SC or “The Rule on the Writ of Amparo,” effective
October 24, 2007).
2.3.3. Petitions for issuance of writ of habeas data (Sec. 3, A.
M. No. 08-1-16-SC, effective February 2, 2008).
2.4. with the Regional Trial Courts
Actions affecting ambassadors and other public ministers and
consuls (CONSTITUTION, Art. VIII, Sec. 5[1]; Batas Pambansa Blg.
129, Sec. 21[2])
APPELLATE JURISDICTION OF THE SUPREME COURT
The appellate jurisdiction is found in Section 5, Paragraph (2),
Article VIII 1987 Constitution:
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.
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e) All cases in which an error or question of law is
involved.
*If (a), (b), and (c) also involve questions of facts or mixed
questions of fact and of law, the aggrieved party shall appeal to
the Court of Appeals; and its final judgment may be appealed to
the Supreme Court. (Subpar 4, Third Par. Sec. 17, Judiciary Act or
RA 544)
B. Appellate Jurisdiction
1. Automatic review
From the Court of Appeals, in all criminal cases invoving
offenses for which the penalty imposed is death. (People v. Mateo).
2. Ordinary Appeal by Notice of Appeal
From the Court of Appeals, in all criminal cases involving
offenses for which the penalty imposed is reclusion perpetua or life
imprisonment; or a lesser penalty is imposed for offenses
committed on the same occasion or which arose out of the same
occurrence that gave rise to the more severe offense for which the
penalty of death is imposed (Sec. 13[c], Rule 124, as amended by
A.M. No. 00-5-03-SC, effective October 15, 2004, Sec. 13[b], Rule
124)
3. By Petition for Review on Certiorari (Rule 45)
2.1. Appeals from the Court of Appeals (Rep. Act No. 296, Sec.
17, as amended by Rep. Act No. 5440; Constitution, Art. VIII, Sec.
5[2]; Rule 45, 1997 Rules of Civil Procedure)
2.2. Appeals from the Sandiganbayan on pure questions of
law, except cases where the penalty imposed is reclusion perpetua,
life imprisonment, or death (Pres. Decree No. 1606, Sec. 7, as
amended by Rep. Act No. 8249; Nunez v. Sandiganbayan, Nos.
50581-50617, January 20, 1982, 111 SCRA 433; Rule 45, id.).
2.3. Appeals from judgments or final orders of the Regional
Trial Courts exercising original jurisdiction in the following:
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; and
d) All cases in which only an error or question of law is
involved. (CONSTITUTION, Art. VIII, Sec. 5[2-a, b,
c]; Rep. Act No. 296, Sec. 17, as amended; Batas Pambansa
Blg. 129, Sec. 9[3]; Id., Rule 45; Id., Rule 41, Sec. 2[c]; Id., Rule 122,
Sec. 3[e]).
2.3.1. Appeals from decisions or final resolutions of the Court
of Tax Appeals 11 (Rule 16, Sec. 1, A.M. No. 05-11-07-CTA, or “The
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Revised Rules of the Court of Tax Appeals;” Sec. 1, Rule 45, as
amended by A.M. No. 07-7-12-SC dated December 12, 2007; See
also Rep. Act No. 9282 [2004]).
4. By Special Civil Action of Certiorari (Rule 64, 1997 Rules of
Civil Procedure) filed within thirty (30) days from notice of the
judgment/ final order/ resolution sought to be reviewed against
the following: 3.1. Commission on Elections (CONSTITUTION, Art.
IX-A, Sec. 7; Aratuc v. COMELEC, No. 49705-09, February 8, 1979,
88 SCRA 251).
3.2. Commission on Audit (Ibid., CONSTITUTION).
Petition for Review on Certiorari (Rule 45) from decisions of
the RTC
a)All cases in which the constitutionality or validity of any
treaty, international or executive agreement, law, presidential
decree, proclamation, order, instruction, ordinance, or regulation is
in question.
So if the RTC, which has the power, declares the law as
unconstitutional, the same has to be appealed directly to the SC. It
cannot pass through the CA because the SC has exclusive appellate
jurisdiction regarding the matter.
b)All cases involving the legality of any tax, impost,
assessment, or toll, or any penalty imposed in relation thereto.
This is related to the legality of tax cases – whether a tax or
tax penalty is legal or not. However, whatever decision the lower
court gives, it has to be appealed directly to the SC.
(c) All cases in which the jurisdiction of any lower court is in
issue
EXAMPLE: The RTC or the MTC says it has jurisdiction or it has
no jurisdiction over a case. The aggrieved party, it if wants to raise
that issue, it must go to the SC. When the issue is purely
jurisdiction, the SC shall have exclusive appellate jurisdiction.
Now, when the law says all cases in which the jurisdiction of
any lower court is in issue, the cases involve 100% pure jurisdiction
as an issue. There are no factual issues involved. If the issue of
jurisdiction is mixed with a factual issue, the appeal should be in
the CA without prejudice to the filing of the same with the SC later.
So, this is 100% issue of jurisdiction. No factual issue is involved.
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(e) All cases in which only an error or question of law is
involved.
Take note that ONLY an error or question of law is involved.
So, if there is a mixed question of law and a question of fact, appeal
must be filed with the CA. You only go to the SC if the appeal is
100% legal. That applies to both criminal and civil cases.
QUESTIONS OF LAW and QUESTIONS OF FACT
There is a question of law when the doubt or difference
arises as to what the law is applicable on a certain set of facts.
There is a question of fact when the doubt or difference arises as
to the truth or falsehood of the alleged facts (Sps. Santos vs. CA
337 SCRA 67).
Example: Where the question is whether or not the debtor
has paid the debt, the issue is one of fact. Where the question is
whether or not the manner of payment is of the type which
produces the legal effect of extinguishing the obligation, the issue
becomes one of law. Also, when under the set of facts the issue is
whether or not the law on double sales applies, there is a question
of law.
When the issue involves a review of the evidence, it involves
a question of fact because evidence, as defined, is the means,
sanctioned by the rules, of ascertaining in a judicial proceeding
the truth respecting a matter of fact. (Sec. 1 Rule 128)
In an action for declaration of nullity of marriage the basis is
psychological incapacity. The RTC/Family Court dismissed the case
finding that there was no psychological incapacity. If the plaintiff
wants to appeal from that judgment, can she appeal directly to the
SC? Is it a question of fact or law?
No. The appeal should be to the CA. The issue raised is a
question of fact because there is need to review the evidence to
resolve it.
Suppose the court nullified the marriage on ground of
impotence and the defendant wants to appeal because he wants to
raise the issue whether or not impotence is a ground for
declaration of nullity of marriage this would be a question of law
because there is no need for review of the evidence to resolve it.
So appeal is to the SC.
The Supreme Court is not a trier of facts
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The SC is not a trier of facts which means that passing upon a
factual issue is not within the province of the Court (Romy’s
Freight Service vs. Castro, 490 SCRA 160). The findings of facts of
the Court of Appeals are not generally reviewable by the SC
(Sarmiento vs. Yu 497 SCRA 513). Also, factual findings of the trial
court, particularly when affirmed by the Court of Appeals, are
generally binding on the Court (Tan vs. GVT Engineering Services
498 SCRA 93; Office of the Ombudsman vs. Lazar0-Baldazo GR No.
170815 February 2, 2007).
It is not the function of the SC to determine the weight of the
evidence supporting the assailed decision (JR Blanco vs. Quasha
318 SCRA 373). However, factual issues may be delved into and
resolved where the findings and conclusions of the trial court or
the quasi-judicial bodies are frontally inconsistent with the
findings of the CA (Office of the Ombudsman vs. Tongson 499
SCRA 567).
Exceptions
While it is settled rule that the SC in the exercise of its power
of review is not a trier of facts, jurisprudence has, however,
recognized several exceptions in which factual issues may be
resolved by the SC, namely:
a.) when the findings are grounded entirely on speculation,
surmises or conjectures;
b.) when the inference made is manifestly mistaken, absurd
or impossible;
c.) when there is grave abuse of discretion;
d.) when the judgment is based on a misapprehension of
facts;
e.) when the findings of facts are conflicting;
f.) when in making its findings the CA went beyond the
issues of the case, or its findings are contrary to the
admissions of both appellant and appellee;
g.) when the findings are contrary to the trial court;
h.) when the findings are conclusions without citation of
specific evidence on which they are based;
i.) when the facts set forth in the petition, as well as in the
petitioner’s main and reply briefs, are not disputed
by the respondent;
j.) when the findings of fact are premised on the supposed
absence of evidence and contradicted by the
evidence on record; and
k.) when the CA manifestly overlooked certain relevant facts
not disputed by the parties, which, if properly considered, could
justify a different conclusion (Cristobal Cruz vs. Cristobal 498 SCRA
37; Heirs of Dicman vs. Carino 490 SCRA 240; Safeguard Security
Agency Inc. vs. Tangco 511 SCRA 67; De Los Santos vs. Elizalde 514
SCRA 14; NPC vs. De la Cruz GR No. 156093 Feb. 2, 2007; Spouses
Yu vs. Ngo Yet Te GR No. 155868 Feb. 6, 2007).
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OTHER CONSTITUTIONAL PROVISIONS DEALING WITH THE
JURISDICTION OF THE SUPREME COURT
Article IX (on the COA, Comelec and Civil Service Commission)
Section 7, paragraph (a), 1987 Constitution:
“Each Commission shall decide by a majority vote x x x.
Unless otherwise provided by this Constitution or by law, any
decision, order, or ruling of each Commission may be brought to
the Supreme Court on certiorari by the aggrieved party within
thirty days from receipt of a copy thereof.”
The COMELEC, COA and the CSC act also as courts of justice.
They have powers to decide certain cases within their jurisdiction.
Election cases are covered by the COMELEC, claims against the
government, by COA and eligibility or removal from government
service of an appointive employee, by CSC.
Now, according to Section 7, any decision, order or ruling of
these commissions may be brought to the SC on certiorari, etc. So
you will see that the decisions of the constitutional commissions
are reviewable by the SC.
However, Congress amended the Judiciary Law particularly
Section 9 on the jurisdiction of the CA by now making decisions of
the CSC no longer appealable to the SC directly but appealable to
the CA. So based on the present law, out of the three
constitutional commissions, the only ones whose decisions are
appealable directly to the SC are those of the COMELEC and the
COA
What is the basis for Congress to pass such a law where a
decision of a constitutional body (CSC) is reviewable by a non-
constitutional body?
Under the Constitution, decisions of the constitutional
commissions are appealable to the SC. Does Congress have the
power to change that by making it appealable to the CA?
Yes because the provision, it says: “Unless otherwise provided
by this Constitution or by law..” Meaning, the decisions are
appealable to the SC unless otherwise provided by law. The
Constitution itself gave Congress the power to change it.
SC as Presidential Electoral Tribunal
Article VII, Section 4, last paragraph, 1987 Constitution:
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“The Supreme Court, sitting en banc, shall be the sole judge
of all contests relating to the election, returns, and qualifications
of the President or Vice-President, and may promulgate its rules
for the purpose.”
If there’s an electoral protest for the President and Vice-
President, the matter is not to be decided by the COMELEC but by
the SC acting as the Presidential Electoral Tribunal.
Judicial Review of Presidential Proclamation of Martial or
Suspension of the Privilege of the Writ of Habeas Corpus
Article VII, Section 18 (3), 1987 Constitution – Commander-in-
Chief Clause
“The Supreme Court may review, in an appropriate
proceeding filed by any citizen, the sufficiency of the factual basis
of the proclamation of martial law or the suspension of the
privilege of the writ or extension thereof, and must promulgate
its decision thereon within thirty days from its filing.”
So, the SC, in an appropriate proceeding filed by any citizen
review the sufficiency of the factual basis of the proclamation of
martial law. Meaning, the SC can inquire into the basis on why
martial law is declared.
This is intended to prevent the Supreme Court from invoking
the Political Question doctrine laid down in many earlier cases that
it is the prerogative of the President to determine, at his discretion,
the sufficiency of the factual basis of the proclamation of martial
law or the suspension of the privilege of the writ or the extension
thereof.
Congress and Jurisdiction of the SC
1.) Article VIII, Section 2, 1987 Constitution:
The Congress shall have the power to define, prescribe, and
apportion the jurisdiction of the various courts but may not
deprive the Supreme Court of its jurisdiction over cases
enumerated in Section 5 hereof.
Congress may change or even remove the jurisdiction of the
RTC or CA. The law can change them because jurisdiction over the
subject matter is conferred by law. However, Congress does not
have the power to lessen or deprive the Supreme Court of its
jurisdiction under Section 5, Article VIII.
2.) However Article VI, Section 30 states:
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“No law shall be passed increasing the appellate jurisdiction

of the Supreme Court as provided in this Constitution without its
advice and concurrence.”

Thus, Congress cannot lessen but it can increase the SC’s

powers and jurisdiction, PROVIDED it is with the latter's advice and
concurrence.

So more or less, these are the scattered provisions of the

Constitution dealing with the SC’s jurisdiction.

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JURISDICTION OF THE COURT OF APPEALS
BRIEF HISTORY OF THE COURT OF APPEALS
The jurisdiction of the CA is now governed by BP 129 or the
Judiciary Reorganization Act of 1980. BP 129 was passed in 1983 by
the former Batasang Pambansa which practically abolished all the
regular courts at that time, and also the special courts except the
SC which cannot be abolished by Congress. What was also spared
was the Court of Tax Appeals which was likewise not affected.
In lieu of these, other courts were created. The
constitutionality of BP 129 was challenged as violative of the
security of tenure of the judges. But its constitutionality was
sustained in the case of DELA LLANA vs. ALBA, 112 SCRA 294.
The CA is composed of 69 justices constituting 23 divisions
after new divisions were created, based in Cebu City and the other
in Cagayan de Oro City pursuant to RA 8246.
They decide cases by a division of three. They sit en banc only
for administrative matters not to decide a case as it would be
impractical considering their number.
Before BP 129, the court was also called the “Court of
Appeals,” the counterpart of the present CA, though the CA now is
different and more powerful than the old one. BP 129 abolished
the old CA and created another court which was called the
INTERMEDIATE APPELLATE COURT (IAC).
So, from the 1983 to 1986, it was called the IAC. After the
EDSA Revolution, President Aquino, pursuant to her law-making
powers, issued E.O. #33 amending the Judiciary Law and changed
the name of IAC to CA (referring to the jurisdiction of the IAC).
Many people thought that the CA of President Aquino under
E.O. #33 is actually the IAC under another name only, but in a case
decided by the SC, reported in
IN RE: LETTER OF ASSOCIATE JUSTICE REYNATO S. PUNO
210 SCRA 589 [1992]
HELD:
“It is the holding of the Court that the present Court of
Appeals is a new entity, different and distinct from the Court of
Appeals or the Intermediate Appellate Court existing prior to
Executive Order No. 33, for it was created in the wake of the
massive reorganization launched by the revolutionary government
of Corazon C. Aquino in the aftermath of the people power (EDSA)
revolution in 1986.”
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Section 5 of EO 33 also amended Sec. 9 of BP 129 to read as
follows:
“The Court of Appeals shall have the power to receive
evidence and perform any and all acts necessary to resolve factual
issues raised in (a) cases falling within its original jurisdiction, such
as actions for annulment of judgments of regional trial courts, as
provided in paragraph (2) hereof; and in (b) cases falling within its
appellate jurisdiction wherein a motion for new trial based only on
the ground of newly discovered evidence is granted by it.”
So, Section 9 of BP 129, which defines the second highest
court of the land, has been amended by E.O. #33. In February 1995,
it was amended again by RA 7902, known as “The Act expanding
the jurisdiction of the CA.”
RA 7902 restored the power of the CA to try cases and
conduct hearings, receive evidence, and perform any and all acts
necessary to resolve factual issues raised in cases falling within the
original and appellate jurisdiction, including the power to grant
new trials or further proceedings (without limiting the motion for
new trial based on newly discovered evidence). Trials or hearings in
the CA must be continuous and completed within 3 months unless
extended by the Chief Justice.
The essential features of the CA’s jurisdiction are as follows:
ORIGINAL JURISDICTION OF THE COURT OF APPEALS
Original Concurrent
[1] Section 9, paragraph 1, BP 129
Section 9 – Jurisdiction – The Court of Appeals shall exercise:
(1) Original jurisdiction to issue writs of
mandamus, prohibition, certiorari,
habeas corpus, and quo warranto, and
auxiliary writs or processes whether or
not in aid of its appellate jurisdiction.
A. Original Jurisdiction
1. Exclusive
1.1. Actions for annulment of judgments of the Regional Trial
Courts (Batas Pambansa Blg. 129, Sec. 9[2]); 1997 Rules of Civil
Procedure, Rule 47).
1.2. Petitions for certiorari, prohibition, and mandamus
involving an act or omission of a quasi-judicial agency, unless
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otherwise provided by law (Rule 65, Sec. 4, as amended by A.M.
No. 077-12-SC dated December 12, 2007).
2. Concurrent
2.1. with the Supreme Court Refer to 2.1. above under I.A.,
supra
2.2. with the Supreme Court and Regional Trial Courts Refer
to Sec. 2.2. above under I.A., supra
2.3. with the Supreme Court, Sandiganbayan, and Regional
Trial Courts Refer to 2.3. above under I.A., supra
Q. Being concurrent, what will happen if such a case is filed
simultaneously in the CA and SC?
A: The consequence is found in Section 17 of the Interim
Rules. In other words, the Interim Rules are still intact.
Interim Rules, Sec. 17. Petitions for writs of certiorari, etc. -
No petition for certiorari, mandamus, prohibition, habeas corpus
or quo warranto may be filed in the IAC if another similar petition
has been filed or is still pending in the SC. Nor may such petition
be filed in the SC if a similar petition has been filed or is still
pending in the IAC, unless it is to review the action taken by the
IAC on the petition filed with it. A violation of this rule shall
constitute contempt of court and shall be a cause for the
summary dismissal of both petitions, without prejudice to the
taking of appropriate action against the counsel or party
concerned.
Original Exclusive
[2] Section 9, paragraph 2, BP 129
(2) “Exclusive” jurisdiction over actions for annulment of
judgments of Regional Trial Courts;
Q: Actions for annulment of judgments of RTC’s, is this similar
to an appeal? Is this the same as appealing the decision of the RTC
to the CA?
A: No, because in appeal, you are invoking the appellate
jurisdiction of the CA. Here in paragraph 2, it is not appellate but
original jurisdiction. Meaning, you are filing an action before the
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CA for the first time. And the nature of the action is to annul a
judgment of the RTC.
The implementation is found in Rule 47 of the Rules.
APPELLATE JURISDICTION OF THE COURT OF APPEALS
Paragraph 3, Sec. 9 of BP 129 defines the appellate jurisdiction
of the CA.
[3] Section 9, paragraph 3, BP 129
(2) Exclusive appellate jurisdiction over all final
judgments, decisions, resolutions,
orders or awards of the RTCs and
quasi-judicial agencies,
instrumentalities, boards or
commissions, including the Securities
and Exchange Commission, the Social
Security Commission, the Employees
Compensation Commission and the
Civil Service Commission, except those
falling within the appellate jurisdiction
of the SC in accordance with the
Constitution, the Labor Code of the
Philippines under PD 442, as amended,
the provisions of this Act, and of
subparagraph (1) of the third
paragraph and subparagraph (4) of the
fourth paragraph of Sec. 17 of the
Judiciary Act of 1948.
B. Appellate Jurisdiction
1. Ordinary Appeal by Notice of Appeal or with Record on
Appeal
1.1. Appeals from the Regional Trial Courts, except those
appealable to the Supreme Court under Sec. 2(3) of I.B. above.
1.2. Appeals from the Regional Trial Courts on constitutional,
tax, jurisdictional questions involving questions of fact or mixed
questions of fact and law or which should be appealed first to the
Court of Appeals (Republic Act No. 296 [1948] Sec. 17, par. 4.4, as
amended, which was not intended to be excluded by Batas
Pambansa Blg. 129 [1983], Sec. 9[3]).
1.3. Appeals from the decisions and final orders of the Family
Courts (Republic Act No. 8369 [1997], Sec. 14).
1.4. Appeals from the Regional Trial Courts, where the penalty
imposed is reclusion perpetua, or life imprisonment, or where a
lesser penalty is imposed but for offenses committed on the same
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occasion or which arose out of the same occurrence that gave rise
to the more serious offense for which the penalty of reclusion
perpetua or life imprisonment is imposed (Rule 122, Sec. 3[c], as
amended by A.M. No. 00-5-03-SC, effective October 15, 2004;
People v. Mateo, G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640)
1.5. Direct appeal from land registration and cadastral cases
decided by metropolitan trial courts, municipal trial courts, and
municipal circuit trial courts based on their delegated
jurisdiction.12
2. Special civil action of certiorari (Rule 65) against decisions
and final resolutions of the National Labor Relations Commission
(A. M. No. 99-2-01-SC; St. Martin Funeral Homes v. National Labor
Relations Commission, G.R. No. 13086, September 16, 1998, 295
SCRA 494; Torres, et. al. v. Specialized Packaging Development
Corp., et. al., G.R. No.149634, July 6, 2004, 433 SCRA 455)
3. Automatic review in cases where the Regional Trial Courts
impose the death penalty14 (Secs. 3[d] and 10, Rule 122, as
amended by A.M. No. 00-5-03-SC, effective October 15, 2004;
People vs. Mateo, supra)
4. Petition for Review
4.1. Appeals from the Civil Service Commission (Rep. Act No.
7902 [1995]; Rule 43, 1997 Rules of Civil Procedure).
4.2. Appeals from the Regional Trial Courts in cases appealed
from the Metropolitan Trial Courts and Municipal Circuit Trial
Courts, which are not a matter of right (Batas Pambansa Blg. 129
[1983], Sec. 22; Rule 42, 1997 Rules of Civil Procedure; Rule 122,
Sec. 3[b]).
4.3. Appeals from awards, judgments, final orders, or
resolutions of, or authorized by, quasi-judicial agencies in the
exercise of their quasi-judicial functions. Among these are:
1. Securities and Exchange Commission;
2. Office of the President;
3. Land Registration Authority;
4. Social Security Commission;
5. Civil Aeronautics Board;
6. Intellectual Property Office (formerly the Bureau of
Patents, Trademarks, and Technology Transfer);
7. National Electrification Administration;
8. Energy Regulatory Board;
9. National Telecommunications Commission;
10. Department of Agrarian Reform under Rep. Act No. 6657;
11. Government Service Insurance System;
12. Employees Compensation Commission;
13. Agricultural Inventions Board;
14. Insurance Commission;
15. Philippine Atomic Energy Commission;
16. Board of Investments;
17. Construction Industry Arbitration Commission;
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18. Voluntary arbitrators authorized by law; and
19. Decisions of Special Agrarian Courts
4.4. Appeals from the National Commission on Indigenous
Peoples (NCIP) (Rep. Act No. 8371 [1997], Sec. 67).
4.5. Appeals from the Office of the Ombudsman in
administrative disciplinary cases (A.M. No. 99-2-02-SC; Fabian v.
Desierto, G.R. No. 129742, September 16, 1998, 295 SCRA 470).
Take note, the appellate jurisdiction of the CA is generally
EXCLUSIVE except in criminal cases decided by the RTC when the
penalty imposed is reclusion perpetua, life imprisonment or death.
Now, if you will analyze paragraph 3, you will notice that the CA is a
powerful court because it has exclusive appellate jurisdiction over
all final judgments, decisions, resolution, orders or awards of RTC’s.
So as a general rule, if the RTC, anywhere in the country renders a
decision and you want to appeal, whether civil or criminal, chances
are it will go the to CA. It is a powerful court, because it covers all
RTC’s and the appellate jurisdiction is generally exclusive.
And not only RTC’s. The law says “and quasi-judicial agencies,
instrumentalities, boards or commissions…” Not only decisions of
the RTC but also of quasi-judicial agencies or bodies, also called
administrative bodies. Administrative bodies are actually
part of the executive branch but they act just like courts of justice.
They can decide cases and there are hundreds of administrative
agencies in the Philippines. And therefore, if you lose a case before
anyone of these bodies, or tribunals, you appeal the decision not
with the SC, but to the CA.
The amendments by RA 7902 is even more specific by adding
this phrase, “including the SEC, SSS, the Employees Compensation
commission and the Civil Service Commission (CSC).”
That is the addition.
CSC –Before this law was passed, under the Constitution,
decisions of the CSC are appealed to the SC together with the
COMELEC and the COA. But with the passage of RA 7902, the
appeal from the CSC has been transferred to the CA, so what is left
behind in the Constitution are the COMELEC and the COA.
Obviously, the purpose of this statute is to unburden the SC
with so many cases.
The phrase “except those falling within the appellate
jurisdiction of the Supreme Court…”means all cases should be
appealed to the CA except those which belong to the SC under the
Constitution. We know that already.
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And also “except those falling under the Labor Code of the
Philippines.”
A labor case is not supposed to be filed in court but with a
quasi-judicial agency known as the NLRC and you start in the local
level – from the Labor Arbiter, then the decisions of the Labor
Arbiter are appealable to the NLRC and then from there, where will
you go?
And then there is the phrase, "the provisions of this Act, and
of subparagraph (1) of the third paragraph and subparagraph (4)
of the fourth paragraph of Section 17 of the Judiciary Act of
1948.”
So, the new Judiciary Law still makes some reference to the
old law. This shows that the entire 1948 Judiciary Law has not
been totally repealed. Some provisions are still intact because of
the reference.
Now what is this subparagraph 1 of the third paragraph?
It only applies to criminal cases. EXAMPLE: A person is
sentenced to reclusion perpetua, his co-accused is sentenced to
reclusion temporal or prison mayor, and all of them will appeal, all
of them should go to the SC. Otherwise, you will be splitting the
appeal into two parts. (Modified in the People vs Mateo case as
discussed in Criminal Procedure.)
Subparagraph 4 of the fourth paragraph of Section 17 refers
to appeal from the RTC on pure legal question which should be
filed with the SC.
Q: Suppose there are questions of fact, or it is an appeal on
questions of fact and questions of law?
A: Under the 1948 Judiciary Law, you cannot appeal directly to
the SC. You must appeal to the CA.
The same thing when the issue is on the constitutionality of a
treaty, law, legality of tax, when the jurisdiction of the lower court
is in issue, as explained here in this paragraph of the Judiciary Act
of 1948, if the appeal is 100% constitutional issue, jurisdictional or
legality issue – appeal is to the SC under the Constitution. But if it
is mixed with questions of fact, do not go to the SC. You go first to
the CA. That is what the paragraph is all about.
Exclusive appellate jurisdiction
Exclusive appellate jurisdiction by way of ordinary appeal
from the RTC and the Family Courts (Sec. 9[3] BP Blg. 129).
Exclusive appellate jurisdiction by way of petition for review
from the RTC rendered by the RTC in the exercise of its appellate
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jurisdiction (Sec. 22 BP Blg. 129; Rule 43, Rules of Court; Sec. 9 BP
Blg. 129)
Exclusive appellate jurisdiction by way of petition for review
from the decisions, resolutions or orders or awards of the CSC,
Central Board of Assessment Appeals and other bodies mentioned
in Rule 43 (Sec. 9[3]), BP Blg. 129) and of the Office of the
Ombudsman in administrative disciplinary cases (Enemecio vs.
Office of the Ombudsman 419 SCRA 82; Gonzales vs. Rosas 423
SCRA 488).
Note that under RA No. 9282, the judgments AND FINAL
ORDERS OF THE Court of Tax Appeals are no longer appealable by
way of petition for review to the CA. Judgments of the CTA
rendered en banc are appealable to the SC by way of Rule 45 (Sec.
11 RA No. 9282)
Exclusive appellate jurisdiction over decisions of MTCs in
cadastral or land registration cases pursuant to its delegated
jurisdiction (Sec. 34 BP Blg. 129 as amended by RA No. 7691). This
is because decisions of MTCs in these cases cases are appealable in
the same manner as decisions of RTCs (Sec. 34 BP Blg. 129).
Power to try and conduct hearings
[4] Section 9, last paragraph, BP 129:
The Court of Appeals shall have the power to try cases and
conduct hearings, receive evidence and perform any and all acts
necessary to resolve factual issues raised in cases falling within its
original and appellate jurisdiction, including the power to grant
and conduct new trials or further proceedings. Trials or hearings
in the CA must be continuous and must be completed within
three (3) months unless extended by the Chief Justice. (As
amended by RA 7902)
Even if the CA is not a trial court, under the law it has the
power to try cases and conduct hearings, receive evidence and
perform any and all acts necessary to resolve factual issues in cases
falling within its original and appellate jurisdiction, including the
power to grant and conduct new trials or further proceedings (Sec.
9 [3], BP 129 as amended by RA 7902). The CA may pass upon
factual issues as when a petition for certiorari is filed before it
(Alcazaren vs. Univet Agricultural Products, Inc. 475 SCRA 636).
This paragraph shows that the present CA is a more powerful
court than before. It is a unique court. Aside from being an
appellate court, it also acts as a trial court. It may receive evidence
but only those evidence which were overlooked by the trial court.
It can order a new trial or conduct a new trial itself.
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The CA may pass upon factual issues as when a petition for

certiorari is filed before it(Alcazaren vs. Univet Agricultural
Products, Inc. 475 SCRA 636) or in petitions for writ of amparo or
habeas corpus data or in case of actions to annul judgment of the
RTC over which the CA has original jurisdiction (Bar 2008).

Q: If an issue of fact is tried before the RTC, can I always ask

the CA to allow me to present evidence? Does it mean to say now
that since the CA is a very powerful court, it can take the place of
the RTC? A: That is already interpreted in the case of

LINGER AND FISHER vs. INTERMEDIATE APPELLATE COURT

125 SCRA 522 [1983]

HELD: The power of the CA to receive evidence refers only to

incidental facts which were not 100 percent touched upon, or
matters which were simply overlooked by the trial court. You
cannot opt not to present evidence before the RTC. It only refers to
incidental facts.
“Evidence necessary in regards to factual issues raised in cases
falling within the Appellate Court’s original and appellate
jurisdiction contemplates ‘incidental’ facts which were not touched
upon, or fully heard by the trial or respondent Court. The law could
not have intended that the Appellate Court would hold an original
and full trial of a main factual issue in a case, which properly
pertains to Trial Courts.”

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JURISDICTION OF THE
REGIONAL TRIAL COURTS
Q: How many RTC’s are there in the Philippines?
BP 129 Section 13 (1) Creation of Regional Trial Courts –
There are hereby created thirteen (13) Regional Trial Courts, one
for each of the following regions: x x
So the Judiciary law has divided the country into 13 areas
called JUDICIAL REGIONS. From the 1st to the 12th, the 13th is
actually in the National Capital Region (NCR), Metro Manila. Every
division is divided into branches.
Every RTC judge is appointed to a region which shall be his
permanent station, and his appointment states the branch of the
court and seat to which he shall be originally assigned. However,
the SC may assign temporarily an RTC judge to another region as
public interest may require, provided that such temporary
assignment shall not last longer than 6 months without the consent
of the RTC judge concerned.
The SC shall define the territory over which a branch of the
RTC shall exercise his authority. The law provides:
BP 129, Section 18. Authority to define territory appurtenant
to each branch – The Supreme Court shall define the territory over
which a branch of the Regional Trial Court shall exercise its
authority. The territory thus defined shall be deemed to be the
territorial area of the branch concerned for purposes of
determining the venue of all suits, proceedings or actions,
whether civil or criminal, as well as determining the Metropolitan
Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial
Courts over which the said branch may exercise appellate
jurisdiction. The power herein granted shall be exercised with a
view to making the courts readily accessible to the people of the
different parts of the region and making the attendance of
litigants and witness as inexpensive as possible.
Though RTC Cebu City is found in the 7th Judicial Region, which
includes Cebu, Bohol, Negros Oriental and Siquijor province, its
territorial area is not the entire region, (7th Judicial Region), where
it belongs or even the entire province of Cebu or limited to Cebu
City only because it depends on the territory as defined by the SC.
Now, the law says, the SC has the power to define the area of
its branch for purposes of supervising that area and the MTC there.
Now, as early as 1983, the SC has already come out with the
administrative order defining the area of responsibility of each
branch throughout the Philippines.
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Interim Rules, Sec. 2. Territorial Jurisdiction of Courts. -
a) MetTCs, MTCs and MCTCs shall exercise their
jurisdiction in the city, municipality or circuit for which the judge
thereof is appointed or designated.
b) A Regional Trial Court shall exercise its jurisdiction
within the area defined by the SC as the territory over which the
particular branch concerned shall exercise its authority, in
accordance with Sec. 18 of BP 129.
Jurisdiction of the RTC
EXCLUSIVE ORIGINAL JURISDICTION– Note Section 19 was
amended by RA 7691, effective April 15, 1994 and entitled “An Act
Expanding the Jurisdiction of the Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial Courts”.
CONCURRENT ORIGINAL JURISDICTION with other courts –
Section 21
APPELLATE JURISDICTION – Section 22
EXCLUSIVE ORIGINAL JURISDICTION OF THE RTC
A. Original Jurisdiction
1. Civil
1.1. Exclusive
1.1.1. Subject of the action not capable of pecuniary
estimation;
1.1.2. Actions involving title or possession of real property or
interest therein where the assessed value exceeds P20,000.00
or in Metro Manila P50,000.00, except for forcible entry and
unlawful detainer;
1.1.3. Actions in admiralty and maritime jurisdiction where
demand or claim exceeds P300,000.00, or in Metro Manila
P400,000.00;
1.1.4. Matters of probate, testate or intestate, where gross
value of estate exceeds P300,000.00, or in Metro Manila
P400,000.00;
1.1.5. Cases not within the exclusive jurisdiction of any court,
tribunal, person, or body exercising judicial or quasi-judicial
function;
1.1.6. Other cases where the demand, exclusive of interest,
damages, attorney’s fees, litigation expenses and costs, or value of
property in controversy exceeds P300,000.00, or in Metro Manila
P400,000.00 (Batas Pambansa Blg. 129, Sec. 19, as amended by
Rep. Act No. 7691 [1994]). However, if the claim for damages is the
main cause of the action, the amount thereof shall be considered in
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determining the jurisdiction of the court. (Administrative Circular
No. 09-94, dated June 14, 1994).
1.1.7. Additional original jurisdiction transferred under Sec.
5.2. of the Securities Regulation Code:
a) Devices or schemes employed by, or any acts of, the board
of directors, business associates, its officers or partnership,
amounting to fraud and misrepresentation xxx;
b) Controversies arising out of intra-corporate partnership
relations xxx;
c) Controversies in the election or appointment of directors,
trustees, officers, or managers of such corporation, partnership, or
association; and
d) Petitions of corporations, partnerships or associations to be
declared in a state of suspension of payments xxx(Rep. Act No.
8799, approved July 19, 2000).
1.1.8. Application for issuance of writ of search and seizure in
civil actions for infringement of intellectual property rights (Sec. 3,
A.M. No. 02-1-06-SC, effective February 15, 2002).
1.1.9. Violations of Rep. Act No. 9160, or “Anti-Money
Laundering Act of 2001,” as amended by Rep. Act No. 9194.19
1.2. Concurrent
1.2.1. with the Supreme Court
Actions affecting ambassadors and other public ministers and
consuls (Batas Pambansa Blg. 129 [1983], Sec. 21[1]).
1.2.2. with the Supreme Court and Court of Appeals Petitions
for habeas corpus and quo warranto.
1.2.3. with the Supreme Court, Court of Appeals, and
Sandiganbayan
1.2.3.1. Petitions for writ of amparo and writ of habeas data
(Sec. 3, A.M. No. 07-9-12-SC, or “The Rule on the Writ of Amparo,”
effective October 24, 2007; Sec. 3, A.M. No. 08-1-16-SC, effective
February 2, 2008).
1.2.3.2. Petitions for certiorari, prohibition, and mandamus, if
they relate to an act or omission of a municipal trial court,
corporation, board, officer, or person (Sec. 4, Rule 65, as amended
by A.M. No. 07-7-12-SC, dated December 12, 2007).
1.2.4. with the Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts
Application for Protection Order under Republic Act No. 9282,
Sec. 10, unless there is a Family Court in the residence of
petitioner.
1.2.5. with the Insurance Commission Claims not exceeding
P100,000.00 (INSURANCE CODE [1974], Sec. 416; Pres. Decree No.
612 [1975]). Applicable if subject of the action is not capable of
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pecuniary estimation; otherwise, jurisdiction is concurrent with
Metropolitan Trial Court, etc.
2. Criminal
2.1. Exclusive
Criminal cases not within the exclusive jurisdiction of any
court, tribunal, or body (Batas Pambansa Blg. 129 [1983],
Sec. 20). These include criminal cases where the penalty
provided by law exceeds six (6) years imprisonment irrespective of
the fine (Republic Act No. 7691 [1994]).20
These also include criminal cases not falling within the
exclusive original jurisdiction of the Sandiganbayan, where none of
the accused are occupying positions corresponding to salary grade
“27” and higher (Rep. Act No. 7975 and Rep. Act No. 8249).
But in cases where the only penalty provided by law is a fine,
the Regional Trial Courts have jurisdiction if the amount of the fine
exceeds P4,000.00. (Rep. Act No. 7691 as clarified by
Administrative Circular No. 09-94 dated June 14, 1994).
Jurisdiction over the whole complex crime is lodged with the
trial court having jurisdiction to impose the maximum and most
serious penalty imposable for an offense forming part of the
complex crime.
Sec. 19 Jurisdiction in civil cases – Regional Trial Courts shall
exercise exclusive original jurisdiction:
[1] In all civil actions in which the subject of the litigation is
incapable of pecuniary estimation.
What does incapable of pecuniary estimation mean?
In an action incapable of pecuniary estimation, the basic issue
is one other than the recovery of a sum of money. If ever there is a
claim for money, it should only be incidental to the main issue.
Where the action is principally the recovery of a sum of
money, the action is one capable of pecuniary estimation and
jurisdiction would then depend on the amount of the claim
exclusive of interest, damages of whatever kind, attorneys fees,
litigation expenses and costs. (Raymundo vs. CA, 213 SCRA 457
[1992]; Singsong vs. Isabela Sawmill, 88 SCRA 623 [1979])
The basic issue in an action incapable of pecuniary estimation
is one other than the recovery of money. In this kind of action the
money claim is merely incidental (ibid)
How to determine whether the action is capable or incapable
of pecuniary estimation-
“In determining whether an action is one the subject matter
of which is not capable of pecuniary estimation, this Court has
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adopted the criterion of first ascertaining the nature of the
principal action or remedy sought. If it is primarily for the
recovery of a sum of money, the claim is considered capable of
pecuniary estimation and whether jurisdiction is in the MTCs or
the CFIs would depend on the amount of the claim. However,
where the basic issue is something other than the right to recover
a sum of money, where the money claim is purely incidental to, or
a consequence of, the principal relief sought, this Court has
considered such actions as cases where the subject of the
litigation may not be estimated in terms of money, and are
cognizable exclusively by the CFI.”
Examples of actions incapable of pecuniary estimation are
those for specific performance, support, or foreclosure of mortgage
or annulment of judgment, also actions questioning the validity of a
mortgage, annulling a deed of sale or conveyance and to recover
the price paid and for rescission which is a counterpart of specific
performance. (Russel vs. Vestil, 304 SCRA, 739, 744-745 [1999])
Such ruling was, however, modified in Go vs. UCPB, GR No.
156182 Nov. 11, 2004 where the court declared the following as
real actions:
1.) judicial foreclosure of real estate mortgage;
2.) actions to annul real estate mortgage;
for the reason that a real estate mortgage is a real right as
well as a real property. So an action to cancel or annul a real estate
mortgage necessarily affects title to the real property, hence a real
action and jurisdiction is determined by the assessed value of the
property.
A complaint for expropriation is incapable of pecuniary
estimation (Barangay San Roque vs. Heirs of Pastor, 334 SCRA 127).
An action seeking to annul a resolution of a government-
owned and controlled corporation is an action incapable of
pecuniary estimation (Polomolok Water District vs. Polomolok
General Consumers Association GR No. 162124, October 19, 2007).
An action to annul a Deed of Declaration of Heirs and for a
partition of land with an assessed value of P5,000.00 is an action
incapable of pecuniary estimation where the partition aspect is
only incidental to the action for annulment (Russel vs. Vestil 304
SCRA 739).
An action for partition of a real property located in Taytay
Rizal and with an assessed value of P20,000.00, the resolution of
which involves the determination of hereditary rights, is an action
incapable of pecuniary estimation and thus, should be filed in the
RTC (Suggested answer UP Law Center Bar 2000) Note: This answer
could also be subject to an alternative answer, when it is argued
that an action for partition is one which involves interest in real
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property. Hence, jurisdiction would be dependent on the assessed
value of the property.
An action for specific performance to compel the defendant
to execute a deed of conveyance covering a parcel of land with an
assessed value of P19,000.00 is an action incapable of pecuniary
estimation because the main issue is whether or not there is a right
to compel specific performance (Suggested answer, UP Law Center
Bar 2000). Note: This answer is subject to an alternative answer
which asserts that where the primary purpose of the action is to
recover or obtain ownership of the real property, the action is one
affecting title to real property and is, therefore, a real action. In a
real action, jurisdiction is determined by the assessed value of the
property.
An action for specific performance is one generally considered
incapable of pecuniary estimation (Russel vs. Vestil, supra).
The amount of damages that may be claimed in addition to
the prayer for specific performance is not determinative of
jurisdiction. Thus, an action for specific performance and damages
of P200,000.00 is cognizable by the RTC even if the amount of
damages sought to be recovered is within the jurisdiction of the
MTC.
Where, however, the demand is in the alternative, as in an
action to compel the defendant to deliver the house by completing
its construction or to pay the sum of P644.31, the action is one that
is capable of pecuniary estimation (Cruz vs. Tan 87 Phil. 627). Thus
an action for specific performance or in a the alternative, for
damages in the amount of P180,000.00 is one capable of pecuniary
estimation. Here, the amount of damages is determinative of
jurisdiction (Bar 1997).
If as gleaned from the complaint, the principal relief sought by
the complaint is for the court to issue an injunction against the
adverse party and his representatives to permanently enjoin them
from preventing the survey of the subject land, the complaint is not
a possessory action but one for injunction. As such, the subject
matter of litigation is incapable of pecuniary estimation and
properly cognizable exclusively by the RTC under Sec. 19(1) of BP
Blg. 129, as amended by RA No. 7691 (Bokingo vs. CA 489 SCRA
521).
An action for injunction is within the jurisdiction of the RTC
being an action incapable of pecuniary estimation. (Bar 1997).
An action for replevin of a motorcycle valued at P150,000.00
is capable of pecuniary estimation. The basis of jurisdiction is the
value of the personal property sought to be recovered. The amount
of P150,000.00 falls within the jurisdiction of the MTC. (Bar 1997).
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An action for interpleader is capable of pecuniary estimation.
If the subject of interpleader is real property, then the jurisdictional
amount is determined by the assessed value of the land. If it be
personal property, then the value of the property.
Hence, an action of interpleader to determine who between
the defendants is entitled to receive the amount of P190,000.00
from the plaintiff is within the jurisdiction of the MTC (Bar 1997;
Makati Development Corporation vs. Tanjuatco 27 SCRA 401).
[2] In all civil actions which involve the title to, or possession
of, real property or any interest therein, where the assessed value
of the property involved exceeds P20,000 or for civil actions in
Metro Manila, where such value exceeds P50,000 except actions
for forcible entry into and unlawful detainer of lands and
buildings; original jurisdiction over which is conferred upon the
Metropolitan Trial Courts, Municipal Circuit Trial Courts;
So in all real actions outside of forcible entry and unlawful
detainer, jurisdiction is determined by the assessed value of the
real property subject thereof.
What is a real action?
It is one affecting title to or possession of real property, or
interest therein. (Sec. 1, Rule 4)
Examples would be accion publiciana (an action to recover
possession of real property), accion reinvidicatoria (action to
recover ownership of real property), quieting of title, provided the
assessed value of the property exceeds P20,000.00.
So, for a lesser value, MTC has jurisdiction. This is why MTCs
now have jurisdiction over accion publiciana when the value of the
property is P20,000 or less.
In forcible entry and unlawful detainer, jurisdiction lies with
the MTC regardless of the assessed value.
Now, if in Metro Manila, the value is P50,000.
[3] In all civil actions in admiralty and maritime jurisdiction
where the demand or claim exceeds One Hundred Thousand
pesos (P100,00.00) [now PhP 300,000.00] or, in Metro Manila,
where such demand or claim exceeds Two Hundred Thousand
pesos (P200,000.00)[now, PhP 400,000].
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EXAMPLE: The shipper will ship to you goods involving a
common carrier and while in transit, the goods are lost or they are
totally damaged. You would like to file a claim or a case against the
carrier, what kind of a case is it? That is an admiralty or maritime
case.
Q: In which court will you file it?
A: It depends on how much is your claim. If your claim of the
damaged or lost cargo exceeds P300,000, then, RTC; if it is
P300,000 or less, MTC. In Metro Manila, the jurisdictional amount
is higher – it should be over P400,000.
RA 7691, Sec. 5. After five (5) years from the effectivity of
this Act, the jurisdictional amounts mentioned in Sec. 19(3), (4),
and (8); and Sec. 33(1) of Batas Pambansa Blg. 129 as amended by
this Act, shall be adjusted to Two hundred thousand pesos
(P200,000.00). Five (5) years thereafter, such jurisdictional
amounts shall be adjusted further to Three hundred thousand
pesos (P300,000.00): Provided, however, That in the case of
Metro Manila, the abovementioned jurisdictional amounts shall
be adjusted after five (5) years from the effectivity of this Act to
Four hundred thousand pesos (P400,000,00).
[4] In all matters of probate, both testate and intestate,
where the gross value of the estate exceeds One Hundred
Thousand pesos (P100,000.00) [now php300,000] or, in probate
matters in Metro Manila, where such gross value exceeds Two
Hundred Thousand pesos (P200,000.00) [now P400,000].
In the subject of Wills and Succession, when a person dies, his
estate, his property will be settled for the benefit of his creditors
and heirs. That is what you call either as testate or intestate
proceedings depending on whether the deceased left a will or
none.
If there are debts due the decedent, thus, payable by his/her
estate, settlement would mean liquidation, which includes
inventory of all the assets and obligations payable, payment of the
debts, then distribution of the residue to the heirs. This is done by
the court thru an administrator appointed by it or thru the
executor appointed by the decedent.
Q: Where should the estate of the deceased person be
settled, RTC or MTC?
A: It depends on how much is the gross value of his estate. If it
exceeds P300,000, RTC. If it is P300,000 or less, it should be with
the MTC. In Metro Manila again, the gross should be more than
P400,000.
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The jurisdiction of the court as a probate or intestate court
relates only to matters having to do with the settlement of the
estate and probate of the will of the decedent but does not extend
to the determination of questions of ownership that arise during
the proceedings.
[5] In all actions involving the contract of marriage and
marital relations.
Most of these cases are under the Family Code and now fall
under the jurisdiction of family courts (RA 8369, The Family Courts
Act of 1997). But because family courts have not yet been
constituted, the SC has designated RTCs to take cognizance of such
cases.
Q: What are the possible actions which you can imagine
involving the contract of marriage and marital relations?
A: Annulment of marriage, legal separation, declaration of
nullity, dissolution of the absolute community of husband and wife,
and action for support.
RA 8369, SECTION 5.Jurisdiction of Family Courts. — The
Family Courts shall have exclusive original jurisdiction to hear and
decide the following cases:
xxxxxx
d) Complaints for annulment of marriage, declaration of
nullity of marriage and those relating to marital status and
property relations of husband and wife or those living together
under different status and agreements, and petitions for
dissolution of conjugal partnership of gains;
xxxxxx
No. 6 will be discussed later.
[7] In all civil actions and special proceedings falling within
the exclusive original jurisdiction of a Juvenile and Domestic
Relations Court and of the Court of Agrarian Relations as now
provided by law;
Before BP 129 or before 1980, there were special courts
existing. Among these courts were the so called Juvenile and
Domestic Relations Courts (JDRC). Then you have the Court of
Agrarian Relations (CAR) which tried cases involving tenancy,
agricultural lessor, agricultural lessee, agricultural lands. When BP
129 was enacted, the CAR and the JDRCs were abolished together
with the other courts created by law. Cases which they used to
handle were automatically transferred to the RTC. That was after
BP 129 took effect.
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What were the cases which were usually falling within the
original jurisdiction of the former JDRC?
Usually, those involving family and children, like support filed
by the child against his father, compulsory recognition, custody of
children, adoption proceedings.
Under BP 129, all of these are now within the jurisdiction of
RTC.
HOWEVER, this has been amended again by RA 8369 (Family
Courts Act of 1997) and these cases are now under the jurisdiction
of the FAMILY COURTS: (See Sections 5 [b], [c], [e], [g])
RA 8369, SECTION 5.Jurisdiction of Family Courts. — The
Family Courts shall have exclusive original jurisdiction to hear and
decide the following cases:
xxxx
b) Petitions for guardianship, custody of children, habeas
corpus in relation to the latter;
c) Petitions for adoption of children and the revocation
thereof;
xxxx
g) Petitions for declaration of status of children as
abandoned, dependent or neglected children, petitions for
voluntary or involuntary commitment of children; the suspension,
termination, or restoration of parental authority and other cases
cognizable under Presidential Decree No. 603, Executive Order
No. 56, (Series of 1986), and other related laws;
xxxxx
As regards the law transferring the jurisdiction of the CAR to
the RTC, it became partially obsolete with the enactment of the
Comprehensive Agrarian Reform Law (CARL) or RA 6657 (June 15,
1988). Under the CARL, all agrarian disputes between landlord and
tenant, lessor and lessee were transferred to the DAR particularly
the DAR Adjudication Board (DARAB), making them quasi-judicial
cases. So, from CAR to RTC, from RTC to DARAB
So the RTC has NO jurisdiction, EXCEPT in the following 2
cases:
QUISMUNDO vs. COURT OF APPEALS
201 SCRA 609 [1991]
HELD: “Wth the enactment of Executive Order No. 229, which
took effect on August 29, 1987, the Regional Trial Courts were
divested of their general jurisdiction to try agrarian reform matters.
The said jurisdiction is now vested in the Department of Agrarian
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Reform. Said provisions thus delimit the jurisdiction of the regional
trial courts in agrarian cases only to two instances:
1.) petitions for the determination of just compensation to
landowners; and
2.) prosecution of criminal offenses under said Act.
EXAMPLE: If you are a landowner and your agricultural land is
placed under the CARP coverage, the government will fix the
payment for you. The trouble is that you did not agree on the
amount of payment. You want to contest the amount of
compensation payable, in which court will you file your action?
RTC and you ask for higher compensation.
[8] In all cases in which the demand, exclusive of interest,
damages of whatever kind, attorney’s fees, litigation expenses,
and costs or the value of the property in controversy exceeds One
Hundred Thousand pesos (P100,000.00) [now P300,000] or, in
such other cases in Metro Manila, where the demand, exclusive
of the above-mentioned items exceeds Two Hundred Thousand
pesos (P200,000.00)[now P400,000]
The best example is money claim. Most cases which go to
court now are money claims – an action to collect sum of money.
Q: Unpaid loan – you would like to collect an unpaid loan of
your debtor. Where will you file your case?
A: It depends on how much are you collecting. If it is over
P300,000 outside Metro Manila – RTC, in Metro Manila, –
P400,000. If the amount that you are collecting is only P300,000 or
less obviously, you file your case in the MTC.
If the value of the claim is > P300,000 – RTC
If the value of the claim is = or < P300,000 – MTC
Q: Suppose the principal amount that you borrowed from me
is P300,000, the interest is P30,000. And you are collecting P10,000
for moral damages, another P10,000 for expense of litigation, etc.
So my total claim is P350,000. Where will I file the case?
A: MTC. In determining the jurisdictional limit of P300,000, do
not include the interest, damages, attorney’s fees, etc. So you
deduct those from the principal claim even if you put them in your
complaint because the law says, “xxx exclusive of interest, damages
of whatever kind, attorney’s fees, litigation expenses, and costs
xxx.”
Q: What are litigation expenses and costs?
A: Costs are not the same as attorney’s fees and litigation
expenses. Actually, attorney’s fees and litigation expenses are part
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of damages. Costs are governed by Rule 141, while attorney’s fees
and litigation expenses are governed by the Civil Code.
ACTIONS PURELY FOR DAMAGES
SITUATION: Suppose the action is purely for damages, like
breach of contract of carriage. Instead of bringing you to your
destination, you ended up in the hospital. You now sue the
common carrier for damages and your claim is P1 million for
injuries, moral, exemplary, etc. Where will you file the case?
This question has been clarified by SC Circular No. 09-94:
“Guidelines in the Implementation of RA 7691 Extending the
Jurisdiction of the MTCs” where the SC said that the provision
excluding damages applies only if the damages are INCIDENTAL to
the action. If the main cause of action is 100% damages, you
include it in determining tire P300,000 jurisdictional limit of the
MTC.
EXAMPLE: Ms. Pastor rode on a PAL fight. The plane crashed
but she survived. She claims for damages for breach of contract of
carriage amounting to P1 million.
Q: Where will she file her case?
A: RTC because the amount of the claim for damages
exceeded P300,000. Since the case is purely for damages, it is
included in determining the jurisdiction of the court.
The rule is, you only exclude the damages if it is a secondary
claim. But if damages is the primary or only claim, you determine
whether the total claim for damages is above P300,000, or equal to
or less than P300,000.
The SC said in this Circular, “the exclusive damages of
whatever kind” in determining the jurisdiction under Section 19
paragraph [8] applies to cases where the damages are merely
incidental to or a consequence of the main cause of action.
However, if the claim for damages is the main cause of action, the
amount of such claim should be considered in determining the
jurisdiction.
EXAMPLE: P will file a case against D to recover a piece of land
worth P20,000.00 only. But her claim for damages exceeds
P300,000.
Q: In what court will P file a civil case where she wants to
recover a piece of land with value of only P20,000?
A: MTC because of paragraph [2]. As regards the damages of
P300,000.00, MTC still has jurisdiction because such damages,
being incidental, is not included in determining the jurisdiction of
the RTC.
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Now, the law says, “exclusive of interest, damages of
whatever kind, attorney’s fees, litigation expenses, and costs or
THE VALUE OF THE PROPERTY IN CONTROVERSY exceeds
P300,000….”
Q: What is the property in controversy?
A: Obviously here, the property is PERSONAL PROPERTY not
real. If the property sought to be recovered is real, apply paragraph
[2] of Section 19 on recovery of real property.
Q: You want to recover your car which your friend borrowed
but did not return, which court has jurisdiction?
MTC if the value is P300,000.00 or less, and RTC, if over.
Q: Who shall determine the value or how should the value be
determined?
A: In determining the jurisdiction of the court, over the
subject matter, the allegations in the complaint governs.
Let us go to some interesting cases on this provision.
ORTIGAS AND CO., LTD PARTNERSHIP vs. HERRERA
120 SCRA 89 [1983]
FACTS: A entered into an agreement with B where A
deposited the sum of P50,000 with B. After certain conditions are
complied B has to return the amount to A. According to A the
conditions are already complied with but B still refuses to return
the money. So A filed a complaint which he denominated as sum of
money and since he is only asking for the return of P50,000, A filed
the case in the MTC.
ISSUE #1: Whether or not the MTC has jurisdiction over the
case.
HELD: The MTC has NO jurisdiction. It should be filed in the
RTC. It is not an action to collect a loan. You are not recovering a
loan. You are compelling him to comply with the agreement – to
return the money after certain conditions are complied with. You
are trying to enforce your agreement. therefore your action is an
action for SPECIFIC PERFORMANCE which should be tried by the
RTC under paragraph [1].
“When a party to a contract has agreed to refund to the other
party a sum of money upon compliance by the latter of certain
conditions and only upon compliance therewith may what is legally
due him under the written contract be demanded, the action is one
not capable of pecuniary estimation.” So it is cognizable by the RTC.
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ISSUE #2: But according to the plaintiff, when he filed the
complaint, it is entitled “for sum of money” which should fall under
paragraph [8]. Is the plaintiff correct?
HELD: NO. The plaintiff is wrong. The title of the action is not
determinative on the court. Just like the rule on contracts where
the nature of the contract is not determined by the title but by
stipulation.
“The factual allegations in the complaint seeking for the
performance of an obligation of a written contract which is a
matter clearly incapable of pecuniary estimation prevail over the
designation of the complaint as one for the sum of money and
damages.”
As may be seen from the foregoing enumeration, jurisdiction
is determined:
(1) by the nature of the action; or
(2) by the value of the demand; or
(3) by the value of the property involved.
[6] In all cases not within the exclusive jurisdiction of any
court, tribunal, person or body exercising judicial or quasi-judicial
functions
Practically, this makes the RTC the universal catcher – what
does not belong to any other court, belongs to the RTC. That’s
what this provision is saying.
That is why, because of this, there are problems reaching the
SC on jurisdiction – whether a case belongs to this, to the regular
court or to a special quasi-judicial body. And we are going to go
over some of these cases.
SANDOVAL vs. CANEBA
190 SCRA 77 [1990]
FACTS: The quarrel in this case involves the owner of the
subdivision and the buyer. Later on, the buyer refused to pay the
unpaid installments. The subdivision developer filed a case for the
collection of unpaid installments over the subdivision lots.
HELD: The regular courts have no jurisdiction. That should be
decided by the Housing and Land Use Regulatory Board (HLURB)
formerly known as NHA. Under PD 957, it is the HLURB not the RTC
or MTC which has the jurisdiction to hear a case involving non-
payment of installments over subdivision lots.
The counterpart of this case was the case of
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CT TORRES ENTERPRISES, INC. vs. HIBIONADA
191 SCRA 268 [1990]
FACTS: This is also the case between the buyers of a
subdivision lot against the subdivision developer. Only this time it
is the subdivision lot buyers who are suing the developer of the
subdivision. The subdivision lot owners filed against the subdivision
developer for not maintaining properly the roads of the
subdivision. So they filed a case for specific performance with
damages to compel the developer to comply with the contract to
maintain the roads.
HELD: The jurisdiction is with the HLURB and not with the
regular courts. But according to the plaintiff “But I’m also claiming
for damages so that it should be filed before the regular courts.
How can the HLURB award damages? Only the regular courts can
award the damages.” Can the HLURB award damages? According
to the SC:
“The argument that only courts of justice can adjudicate
claims resoluble under the provisions of the Civil Code is out of step
with the fast-changing times. There are hundreds of administrative
bodies now performing this function by virtue of a valid
authorization from the legislature. This quasi-judicial function, as it
is called, is exercised by them as an incident of the principal power
entrusted to them of regulating certain activities falling under their
particular expertise.”
So quasi-judicial bodies are now authorized to award
damages.
As a matter of fact in Labor Relations, the question is asked
whether the NLRC is authorized to grant damages also to an
employee, moral and exemplary, which normally is only awarded
by courts. The Labor Code says yes. In other words, even damages
now can be awarded by administrative bodies such as NLRC.
FAJARDO vs. BAUTISTA
232 SCRA 291 [1994]
FACTS: Isabelo and Marita Jareno are the owners and
developers of a subdivision. Fajardo and others, as buyers, signed
separate contracts each designated a contract to sell under which
for consideration therein stated, the Jarenos bound themselves to
sell to Fajardo et al the lot subject thereof, and after the latter shall
have paid the purchase price and interest shall execute in favor of
Fajardo et al the corresponding deeds of sale.
When these contracts to sell are still ongoing the Jarenos sold
these lots to other buyers and the title was transferred to the
second buyer. So when Fajardo et al learned about it, they filed
separate complaints with the RTC for annulment of the sale to the
other buyers.
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Now, according to Fajardo, the jurisdiction of the case belongs
to the RTC and not with the HLURB because the title of the lots are
transferred to the other buyers. It is no longer under the name of
Jareno. Secondly, their action is for the annulment of title to a third
person. Thirdly, these third persons are not the developers;
fourthly, under the Judiciary Law, actions involving title to a real
property are to be tried by the RTC.
HELD: The RTC still has NO jurisdiction because the case
involved unsound real estate business practice on the part of the
subdivision owners and developers. Under the law, unsound real
estate business practice is under the HLURB. The practice in the
case is not a sound real estate business – I am a developer, I enter
into a contract with you and then later on I sold the contract to a
third person, that is unsound!
“By virtue of P.D. 1344, the HLURB has the exclusive
jurisdiction to hear and decide the matter. In addition to involving
unsound real estate business practices, the complaints also involve
specific performance of the contractual and statutory obligations of
the owners or developers of the subdivision.” So it is still with the
HLURB and not with the regular courts.
BENGUET CORPORATION vs. LEVISTE
204 SCRA 99 [1991]
FACTS: A mining company entered into an operations
agreement for management with another mining company. Then
later on, one wants to file a case for rescission of the agreement for
one reason or another. So it was filed with the RTC.
HELD: The RTC has NO jurisdiction again because PD 1281
vested with the Bureau of Mines with jurisdictional supervision
and control over all issues on mining claims and that the Bureau
of Mines shall have the original exclusive jurisdiction to hear and
decide cases involving the cancellation and enforcement of
mining contracts.
The trend is to make the adjudication of mining cases a
purely administrative matter. Another case is the case of
MACHETE vs. COURT OF APPEALS
250 SCRA 176 [1995]
FACTS: This case involves the collection by the landowner of
unpaid back rentals from his leasehold tenants. The landowner
filed the money claims before the RTC.
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HELD: The RTC has no jurisdiction over cases for collection of
back rentals for the leasehold tenants. This is an agrarian dispute
which exclusively cognizable by the DARAB.
“The failure of petitioners to pay back rentals pursuant to the
leasehold contract with landowner is an issue which is clearly
beyond the legal competence of the trial court to resolve. The
doctrine of primary jurisdiction does not warrant a court to
arrogate unto itself the authority to resolve a controversy the
jurisdiction over which is initially lodged with an administrative
body of special competence.”
Let’s go to Professional Regulation Commission (PRC). That is
the government body which administers all government
examination for professionals except members of the law
profession. Now, this is what happened in the case of
LUPANGCO ET AL vs. COURT OF APPEALS
160 SCRA 848 [1988]
FACTS: Lupangco et al were BS Accounting graduates and
reviewing to take the CPA exams in 1985.
There were some anomalies (leakages) in the 1985 CPA Board
Examination. By next year, the PRC passed a resolution prohibiting
CPA examinees to attend review classes or conferences because of
leakages. They are prohibited from receiving any handouts, review
materials or any tip from any school, college or university. That was
Resolution No. 105 of the PRC.
So petitioners Lupangco et al, all CPA reviewers filed an
injunction suit against the PRC and to declare the resolution
unconstitutional. They filed it with the RTC. The PRC moved to
dismiss alleging that the RTC has no jurisdiction over the case
because the one which has the jurisdiction is the CA – exclusive
jurisdiction to review any decision, order, ruling or- resolution of
any quasi-judicial body. And the PRC is a quasi-judicial body. So
their resolution can only be questioned before the CA and not with
the RTC.
HELD: The PRC is WRONG because PRC is not only a quasi-
judicial body, it is also a quasi-legislative body. It also acts as
legislative body by issuing rules and regulations.
Now, what kind of resolution is being questioned here? It is a
resolution pursuant to its purely administrative function. It is a
measure to preserve the integrity of licensure examination.
Therefore, it does not belong to the CA. It is not the type of
resolution contemplated by Section 9.
“The authority of the CA to review all resolutions of all quasi-
judicial bodies pursuant to the law does not cover rules and
regulations of general applicability issued by the administrative
body to implement its purely administrative policies and functions
like Resolution No. 105 which was adopted by the PRC as a
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measure to preserve the integrity of licensure examinations.” So
that is not the resolution reviewable by the CA.
Now, under what provision under Section 19 can we justify
the jurisdiction of the RTC in the case. The SC said: It is under
paragraph 1 where the case is incapable of pecuniary estimation or,
it may fall under paragraph 6 where the case is not within the
exclusive jurisdiction by any court, tribunal or- body exercising
Judicial or quasi-judicial functions.
So, if it is not reviewable by the CA, in what court can you
question the resolution? Definitely, not the CA, definitely not the
SC. I don’t think it’s with the NLRC. So it will fall under the
jurisdiction of the RTC. Or, it can also fall under paragraph [1,]
where the subject matter of the suit is not capable of pecuniary
estimation because what is the nature of the demands is to declare
unconstitutional this resolution. So it belongs to the jurisdiction of
the RTC.
BERNARDO vs. CALTEX PHIL. INC.
216 SCRA 170 [1992]
FACTS: Under E.O. No. 172, when there is a dispute between
an operator or dealer and an Oil company regarding dealership
agreement, the case shall be under the jurisdiction of the Energy
Regulatory Board (ERB). So any dispute regarding their relationship
agreement except disputes arising out of the relationship as debtor
and creditor. So if the dispute arose out of the relationship as
debtor and creditor, it should be filed with the RTC.
Now what happened here is that on December 5, 1990,
Bernardo, a dealer of Caltex, ordered gasoline from Caltex. So he
ordered in the morning. At 6:00 at night on the same day, there
was a price increase. So when the gasoline was delivered the
following day, Caltex charged Bernardo for the increased price.
Bernardo refused to pay and he filed a case before the RTC. Caltex
argued that the case should be filed with the ERB.
HELD: The RTC has jurisdiction because “a contract of sale of
petroleum products was here perfected between Caltex and its
operator/dealer Bernardo; that in virtue of the payment admittedly
made by Bernardo, Caltex became a “debtor” to him in the sense
that it was obligated to make delivery to Bernardo of the
petroleum products ordered by him; and that the only issue is the
manner by which Caltex shall perform its commitment in
Bernardo’s favor. It is rather one cognizable by the Regional Trial
Court, as a dispute indeed ‘arising out of their relationship as
debtor and creditor.’”
“What the controversy is all about, to repeat, is simply the
prices at which the petroleum products shall be deemed to have
been purchased from Caltex by Bernardo in December 5, 1990. This
is obviously a civil law question, one determinable according to the
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provisions of the Civil Code and hence, beyond the cognizance of
the Energy Regulatory Board.”
Lack of Jurisdiction by RTC on Customs Matters
The RTC is devoid of any competence to pass upon the validity
or regularity of seizure and forfeiture proceedings conducted by
the Bureau of Customs, and to enjoin or otherwise interfere with
the said proceedings even if the seizure was illegal. Such act does
not deprive the Bureau of Customs of jurisdiction thereon. (RV
Marzan Freight, Inc. v. CA, 424 SCRA 596)
The Court held that the Trial court was incompetent to pass
upon and nullify: (1)the seizure of the cargo in the abandonment
proceedings, and (2) the declaration made by the District Collector
of Customs that the cargo was abandoned and ipso facto owned by
the government. It, likewise, has no jurisdiction to resolve the issue
of whether or not the private respondent was the owner of the
cargo before it was gutted by fire. The trial court should have
rendered judgment dismissing the complaint, without prejudice to
the right of the private respondent to ventilate the issue before the
Commissioner of Customs and/or to the CTA as provided for in the
Tariff and Customs Code.
Disputed Assessments
The CTA has jurisdiction over disputed assessments, and the
ordinary courts over non-disputed ones. Failure of a taxpayer to
appeal to the CTA makes the assessment final and executory.
Thereafter, if a collection suit is filed in the court, there can no
longer be any inquiry on the merits of the original case. (Republic v.
Dy Chay 1 SCRA 975; Olivares v. Marquez, 438 SCRA 679)
Non-Disputed Assessments
As provided in RA 9262, the CTA has:
“(1) Exclusive original jurisdiction in tax collection cases
involving final and executory assessments for taxes, fees, charges
and penalties; Provided, however, that collection cases where the
principal amount of taxes and fees, exclusive of charges and
penalties, claimed is less than P1M shall be tried by the proper
MTC, MetTC and RTC.
The tax collection case would fall under the jurisdiction of the
first level courts where the amount does not exceed P300,000.00
or in MM where it does not exceed P400,000.00.
Where, however, what is being questioned is the very
authority and power of the assessor, acting solely and
independently, to impose the assessment and of the treasurer to
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collect the tax, and not merely the amounts of the increase in the
tax, jurisdiction over the case was properly with the trial courts.
(Olivares v. Marquez 438 SCRA 679)
Special jurisdiction to try special cases
Certain branches of the RTC may be designated by the SC to
handle exclusively criminal cases, juvenile and domestic relations
cases, agrarian cases, urban and land reform cases which do not fall
under the jurisdiction of quasi-judicial bodies and agencies, and/or
such other special cases as the SC may determine in the interest of
a speedy and efficient administration of justice (Sec. 233 BP Blg.
129)
Jurisdiction over intra-corporate controversies
Sec. 5.2 of the Securities Regulation Code (RA No 8799)
provides that the RTCs shall exercise original and exclusive
jurisdiction to hear and decide the following cases:
a.) Cases involving devises or schemes employed by or any
act, of the board of directors, business associates, its
officers or partnership, amounting to fraud and
misrepresentation which may be detrimental to the
interest of the public and/or of the stockholders,
partners, members of associations or organizations
registered with the Commission.
b.) Controversies arising out of inter-corporate or
partnership relations, between and among stockholders,
members or associates; between any or all of them and
the corporation, partnership or association of which they
are stockholders, members or associates, respectively,
and between such corporation, partnership or
association and the state insofar as it concerns their
individual franchise or right to exist as such entity.
c.) Controversies in the election or appointments of
directors, trustees, officers or managers of such
corporations, partnerships or associations; and
d.) Petitions of corporations, partnerships or associations to
be declared in the state of suspension of payments in
cases where the corporation, partnership or association
possesses sufficient property to cover all its debts but
foresees the impossibility of meeting them when they
respectively fall due or in cases where the corporation,
partnership or association has no sufficient assets to
cover its liabilities, but is under the management of a
Rehabilitation Receiver or Management Committee.
CONCURRENT ORIGINAL JURISDICTION OF THE RTC
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Sec. 21. Original jurisdiction in other cases. - Regional Trial
Courts shall exercise original jurisdiction:
[1] In the issuance of writs of certiorari, prohibition,
mandamus, quo warranto, habeas corpus, and injunction which
may be enforced in any part of their respective regions;
Q: What is the difference between the original jurisdiction of
the RTC in Section 21 and the original jurisdiction of the RTC in
Section 19?
A: In Section 19, you have the EXCLUSIVE original jurisdiction,
whereas in Section 21 you have the original jurisdiction but
CONCURRENT with other courts.
Thus “original” jurisdiction stated in Section 21 is also shared
with the SC and CA. Therefore , the SC, CA, and RTC have original
concurrent jurisdiction under Section 21. Like issuance of writs of
certiorari, prohibition, mandamus, quo warranto, habeas corpus,
etc. This is concurrent with the CA and the SC. Such writs may be
issued by (a) the RTC under Section 19; (b) CA under Section 9; and
(c) SC under Article VIII Section 5 of the Constitution. The 3 courts
share concurrent jurisdiction over these cases.
However the only difference is that writs issued by an RTC can
only be enforced in the same region where the RTC belongs. Unlike
writs issued by the SC and CA, they can be enforced anywhere in
the Philippines.
[2] In actions affecting ambassadors and other public
ministers and consuls.
The SC and RTC have original concurrent jurisdiction in actions
affecting ambassadors, other public ministers and consuls. Section
21 paragraph 2 states only of the concurrent original jurisdiction of
the SC and RTC. Section 19 on the jurisdiction of CA does not
include the action stated in section 21 paragraph 2 as part of its
(CA’s) jurisdiction.
APPELLATE JURISDICTION OF THE RTC
Sec. 22. Appellate jurisdiction. - Regional Trial Courts
shall exercise appellate jurisdiction over all cases decided by
MetTCs, MTCs and MCTCs in their respective territorial
jurisdictions. Such cases shall be decided on the basis of the
entire record of the proceedings had in the court of origin and
such memoranda and/or briefs as may be submitted by the
parties or required by the RTCs. The decision of the RTCs in such
cases shall be appealable by petition for review to the CA which
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may give it due course only when the petition show prima facie
that the lower court has committed an error of fact or law that
will warrant a reversal or modification of the decision or
judgment sought to be reviewed.
B. Appellate Jurisdiction
All cases decided by lower courts (Metropolitan Trial Courts,
etc.) in their respective territorial jurisdictions (Batas Pambansa
Blg. 129, Sec. 22).
Now take note that the RTC also has appellate jurisdiction
under Section 22. These are cases decided by the MTC. So they act
as a sort of ‘court of appeals.’ The RTC exercises appellate
jurisdiction over all cases decided by the MTC in their respective
territorial jurisdiction.
Q: How will the RTC decide on the appeal?
A: It shall be decided on the basis of the entire record of the
proceedings had in the court of origin (MTC) such as memoranda
and/or briefs as may be submitted. This means that witnesses will
not be made to appear again in the appeal. It is only a matter of
reviewing the testimony, stenographic notes, evidence presented,
memoranda and briefs by the RTC judge.
Q: What are memoranda and briefs?
A: It is where the appealing party will argue that the decision
is wrong and try to convince the judge that the decision is wrong,
and the other party to counter act that the decision is correct.
Q: Assuming that the case is originated in the MTC and
subsequently dismissed by the RTC on appeal, is the decision by the
RTC rendered pursuant to its appellate jurisdiction appealable to
the CA?
A: YES, but the mode of appeal is now different. The decision
of the RTC in such cases shall be appealable by petition to review to
the CA. The CA may or may not give it due course.
Q: What is the difference between an appeal made from the
RTC to CA and appeal from the MTC to RTC, which is dismissed by
the latter and subsequently appealed to the CA?
A: The former (RTC – CA) is in pursuance to the original
jurisdiction of the RTC. The latter (MTC-RTC-CA) is in pursuance to
the appellate jurisdiction of the RTC. (They are governed by
different rules)
To illustrate:
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Pursuant to original Pursuant to appellate guilty, the court shall promulgate sentence and ascertain any civil
jurisdiction of the RTC: jurisdiction of the RTC: liability which the accused may have incurred. The sentence,
however, shall be suspended without need of application, pursuant
COURT OF APPEALS COURT OF APPEALS to Pres. Decree No. 1903, otherwise known as “The Child and Youth
Welfare Code;”

2. Petitions for guardianship, custody of children, and habeas

Ordinary appeal Petition for Review
(Rule 41) (Rule 42)
RTC RTC
Ordinary Appeal
(Rule 40)
MTC
Unlike in a case under the original jurisdiction of the RTC,
where an appeal to the CA is a matter of course. Meaning, for as
long as your appeal is on time and properly made, the CA will
entertain it.
It is different, however, in a case under the appellate
jurisdiction of the RTC, even if your appeal is on time and properly
made, there is no assurance that the CA will entertain the appeal.
The CA may give it due course only when your petition for review
shows prima facie evidence that the lower court has committed an
error of fact or law that will warrant a reversal or modification of
the decision or judgment sought to be reviewed.
Summary of RTC jurisdiction:
1.) As to the EXCLUSIVE original jurisdiction – Section 19 (BP
129);
2.) As to its original CONCURRENT jurisdiction – Section 21
(BP 129);
3.) As to its APPELLATE jurisdiction – Section 22 (BP 129)
JURISDICTION OF FAMILY COURTS
V. FAMILY COURTS
A. Exclusive and Original Jurisdiction
1. Criminal cases where one or more of the accused is below
eighteen (18) years of age but not less than nine (9) years of age,
when one or more of the victims is a minor at the time of the
commission of the offense: Provided, That if the minor is found
corpus in relation to the latter (Sec. 3, A.M. No. 03-04-04-SC,
effective May 15, 2003; Sec. 3, A.M. No. 03-02-05-SC, effective
April 15, 2003);
3. Petitions for adoption of children and the revocation
thereof (Secs. A.20 and B.28, A.M. No. 02-6-02-SC, effective August
22, 2002; See also Rep. Act No. 9523, or “An Act Requiring
Certification of the Department of Social Welfare and Development
to Declare A Child ‘Legally Available for Adoption’ as a Prerequisite
for Adoption Proceedings, Amending for this Purpose Certain
Provisions of Republic Act No. 8552, otherwise known as The
Domestic Adoption Act of 1998, Rep. Act No. 8043, otherwise
known as The Inter-Country Adoption Act of 1995, Pres. Decree No.
603, otherwise known as The Child and Youth Welfare Code, and
for Other Purposes,” approved on March 12, 2009);
4. Complaints for annulment of marriage, declaration of
nullity of marriage, and those relating to marital status and
property relations of husband and wife or those living together
under different status and agreements, and petitions for
dissolution of conjugal partnership of gains (Sec. 2, A.M. No. 02-11-
10-SC, effective March 15, 2003);
5. Petitions for involuntary commitment of a child, for
removal of custody against child-placement or child-caring agency
or individual, and for commitment of disabled child (Secs. 4[b],
5[a][ii], 6[b], A.M. No. 02-1-19-SC, effective April 15, 2002);
6. Petitions for support and/ or acknowledgment;
7. Summary judicial proceedings brought under the provisions
of Exec. Order No. 209, otherwise known as “The Family Code of
the Philippines;”
8. Petitions for declaration of status of children as abandoned,
dependent, or neglected children, petitions for voluntary or
involuntary commitment of children, the suspension, termination,
or restoration of parental authority and other cases cognizable
under Pres. Decree No. 603, Executive Order No. 56 (series of 1986)
and other related laws;
9. Petitions for constitution of family home;24
10. Cases against minors cognizable under Rep. Act No. 9165,
or “The Comprehensive Dangerous Drugs Act of 2002” (See also
A.M. No. 07-8-2-SC, effective November 5, 2007); and

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11. Violation of Rep. Act No. 7610 [1991], otherwise known as
the “Special Protection of Children Against Child Abuse, Exploration
and Discrimination Act,” as amended by Rep. Act No. 7658 *1993+
and as further amended by Rep. Act No. 9231 [2003].
12. Violation of Rep. Act No. 9775, otherwise known as the
“Anti-Child Pornography Act of 2009”
13. Cases of domestic violence against:
13.1. Women - which are acts of gender based violence that
results, or are likely to result in physical, sexual or psychological
harm or suffering to women; and other forms of physical abuse
such as battering or threats and coercion which violate a woman's
personhood, integrity and freedom of movement; and
13.2. Children – which include the commission of all forms of
abuse, neglect, cruelty, exploitation, violence, and discrimination
and all other conditions prejudicial to their development.25
14. Cases of violence against women and their children under
Rep. Act No. 9262, otherwise known as “Anti-Violence Against
Women and their Children Act of 2004,”26 including applications
for Protection Order under the same Act;27 and
15. Criminal cases involving juveniles if no preliminary
investigation is required under Sec. 1, Rule 112 of Revised Rules on
Criminal Procedure28 (Sec. 1, A.M. No. 02-1-18-SC, effective April
15, 2002).
In areas where there are no Family Courts, the above
enumerated cases shall be adjudicated by the Regional Trial Court
(Sec. 17, RA No. 8369).
Jurisdiction of Shari’a Courts
Types:
1. These courts were created under Art. 137 of PD 1083
dated February 4, 1977. Their creation, as stated in Art.
2 of the decree, is a recognition of the “legal system of
the Muslims in the Philippines as part of the law of the
land and seeks to make Islamic institutions more
effective.”
2. These courts are the a) Shari’a District Courts and the b)
Shari’a Circuit Courts (Art. 137, PD 1083). Under the
same article, the Shari’a courts and the personnel
thereof are subject to the administrative supervision of
the Supreme Court.
3. The Shrari’a District judges receive the same
compensation and enjoy the same privileges as the
judges of Courts of First Instance, now Regional Trial
Courts (Art. 142, PD 1083). Shari’a Circuit Court judges
shall receive the same compensation and enjoy the
same privileges as judges of MTCs. (Art. 154, PD 1083)
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Original jurisdiction of Shari”a District Courts
Exclusive Original jurisdiction over:
(a) All cases involving custody, guardianship, legitimacy,
paternity and filiation under the Code;
(b) All cases involving disposition, distribution and
settlement of the estate of the deceased Muslims,
probate of wills, issuance of letters of administration or
appointment of administrators or executors regardless
of the nature or the aggregate value of the property;
(c) Petitions for the declaration of absence and death and
for the cancellation or correction of entries in the
Muslim Registries mentioned in Title VI of Book Two of
the Code;
(d) All actions arising from customary contracts in which the
parties are Muslims, if they have not specified which
law shall govern their relations; and
(e) All petitions for mandamus, prohibition, injunction,
certiorari, habeas corpus, and all other auxiliary writs
and processes in aid of its appellate jurisdiction.
Concurrent original jurisdiction of Shari’a District Courts with
existing civil courts over:
(a) Petitions by Muslims for the constitution of a family
home, change of name and commitment of an
insane person to an asylum;
(b) All other personal and real actions not mentioned in
paragraph (d) of the immediately preceding topic,
wherein the parties involved are Muslims except
those for forcible entry and unlawful detainer,
which shall fall under the exclusive original
jurisdiction of the Municipal Circuit Court; and
(c) All special civil actions for interpleader or declaratory
relief wherein the parties are Muslims or the
property involved belongs exclusively to Muslims.
Appellate jurisdiction of Shari’a District Courts over:
(a) all cases tried in the Shari’a Circuit Courts within their
territorial jurisdiction;
(b) and decide all cases appealed to it on the basis of the
evidence and records transmitted as well as such
memoranda, briefs or oral arguments as the parties
may submit (Art. 144, PD 1083).
Finality of decisions
Under Art. 145 of the decree, the decisions of the Shari’a
District Courts whether on appeal from the Shari’a Circuit Court or
not, shall be final. Nothing herein contained shall affect the original
and appellate jurisdiction of the Supreme Court as provided in the
Constitution.
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Original jurisdiction of Shari’a Circuit Courts

Exclusive original jurisdiction over:

(1) All cases involving offenses defined and punished under
this Code;
(2) All civil actions and proceedings between parties who
are Muslims or have been married in accordance
with Art. 13 involving disputes relating to:
(a) Marriage;
(b) Divorce recognized under the Code (PD 1083);
(c) Bethrotal or breach of contract to marry;
(d) Customary dower (mahr);
(e) Disposition and distribution of property upon
divorce;
(f) Maintenance and support, and consolatory
gifts, (mut’a); and
(g) Restitution of marital rights.
(3) All cases involving disputes relative to communal
properties. (Art. 155, PD 1083)

Rules applicable
The Shari’a courts shall be governed by special rules of
procedure as the Supreme Court may promulgate (Art. 148 and Art.
158, PD 1083).

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JURISDICTION OF THE MUNICIPAL TRIAL COURTS
Actually, when you know the jurisdiction of the RTC,
automatically you know the jurisdiction of the MTC. In criminal
cases for example, RTC has jurisdiction when the penalty imposable
is imprisonment of more than 6 years until death penalty. So,
necessarily, if it is 6 years or below, the MTC has jurisdiction. Same
with civil cases.
Summary of jurisdiction of MTC:
A.) As to original jurisdiction – Section 33
B.) As to delegated jurisdiction – Section 34
C.) As to special jurisdiction – Section 35
A.) EXCLUSIVE ORIGINAL JURISDICTION OF THE MTC
Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal
Trial Courts and Municipal Circuit Trial Courts in civil cases. -
Metropolitan Trial Courts, Municipal Trial Courts and Municipal
Circuit Trial Courts shall exercise:
1) Exclusive original jurisdiction over civil actions and
probate proceedings, testate and intestate, including the grant of
provisional remedies in proper cases, where the value of the
personal property, estate, or amount of the demand does not
exceed One hundred thousand pesos (P100,000.00) or, in Metro
Manila where such personal property, estate, or amount of the
demand does not exceed two hundred thousand pesos
(P200,000.00), exclusive of interest, damages of whatever kind,
attorney's fees, litigation expenses, and costs, the amount of
which must be specifically alleged: Provided, That interest,
damages of whatever kind, attorney's fees, litigation expenses,
and costs shall be included in the determination of the filing fees:
Provided further, That where there are several claims or causes of
actions between the same or different parties, embodied in the
same complaint, the amount of the demand shall be the totality
of the claims in all the causes of action, irrespective of whether
the causes of action arose out of the same or different
transactions.
RA 7691, Sec. 5. After five (5) years from the effectivity of
this Act, the jurisdictional amounts mentioned in Sec. 19(3), (4),
and (8); and Sec. 33(1) of Batas Pambansa Blg. 129 as amended by
this Act, shall be adjusted to Two hundred thousand pesos
(P200,000.00). Five (5) years thereafter, such jurisdictional
amounts shall be adjusted further to Three hundred thousand
pesos (P300,000.00): Provided, however, That in the case of
Metro Manila, the abovementioned jurisdictional amounts shall
be adjusted after five (5) years from the effectivity of this Act to
Four hundred thousand pesos (P400,000,00).
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VI. METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL
COURTS, MUNICIPAL CIRCUIT TRIAL COURTS, AND MUNICIPAL
TRIAL COURTS IN CITIES
A. Original Jurisdiction
1. Civil
1.1. Exclusive
1.1.1. Actions involving personal property valued at not more
than P300,000.00 or in Metro Manila P400,000.00;
1.1.2. Actions demanding sums of money not exceeding
P300,000.00 or in Metro Manila P400,000.00; in both cases,
exclusive of interest, damages, attorney’s fees, litigation expenses
and costs, the amount of which must be specifically alleged, but
the filing fees thereon shall be paid. These include admiralty and
maritime cases;
1.1.3. Actions involving title or possession of real property
where the assessed value does not exceed P20,000.00 or in Metro
Manila P50,000.00;
1.1.4. Provisional remedies in principal actions within their
jurisdiction, and in proper cases, such as preliminary attachment,
preliminary injunction, appointment or receiver and delivery of
personal property; (Rule 57, 58, 59, and 60)
1.1.5. Forcible entry and unlawful detainer, with jurisdiction
to resolve issue of ownership to determine issue of possession;
1.1.6. Probate proceedings, testate or intestate, where gross
value of estate does not exceed P300,000.00 or in Metro Manila
P400,000.00 (Batas Pambansa Blg. 129, Sec. 33, as amended by
Rep. Act No. 7691); and
1.1.7. Inclusion and exclusion of voters. (Sec. 38, Batas
Pambansa Blg. 881, Omnibus Election Code of the Philippines
[1985]).
1.2. Delegated30 Cadastral and land registration cases
assigned by the Supreme Court where there is no controversy or
opposition and in contested lots valued at more than P100,000.00
(Batas Pambansa Blg. 129, Sec. 34, as amended by Rep. Act No.
7691).
1.3. Special Petition for habeas corpus in the absence of all
Regional Trial Court judges (Batas Pambansa Blg. 129, Sec. 35).
2. Criminal
2.1. Exclusive
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2.1.1. All violations of city or municipal ordinances committed
within their respective territorial jurisdictions;
2.1.2. All offenses punishable with imprisonment of not more
than six (6) years irrespective of the fine and regardless of other
imposable accessory or other penalties and the civil liability arising
therefrom; provided, however, that in offenses involving damage
to property through criminal negligence, they shall have exclusive
original jurisdiction (Batas Pambansa Blg. 129, Sec. 32, as amended
by Rep. Act No. 7691);31
2.1.3. All offenses committed not falling within the exclusive
original jurisdiction of the Sandiganbayan where none of the
accused is occupying a position corresponding to salary grade “27”
and higher (As amended by Rep. Act No. 7975 and Rep. Act No.
8249); and
2.1.4. In cases where the only penalty provided by law is a fine
not exceeding P4,000.00, the Metropolitan Trial Courts, etc. have
jurisdiction (Administrative Circular No. 09-94, dated June 14,
1994).
2.2. Special Applications for bail in the absence of all Regional
Trial Court judges. (Batas Pambansa Blg. 129, Sec. 35).
Well if you know the jurisdiction of the RTC on money claims
and probate cases, automatically you will also know that of the
MTC.
Under the law, it is only the principal claim or the main claim
which is computed. Interest, damages of whatever kind, attorneys
fees, litigation expenses and cost are not included in determining
the jurisdiction when they are merely incidental to or a
consequence of the main cause of action. However, in cases where
the claim for damages is the main cause of action, or one of the
causes of action, the amount of such claim shall be considered in
determining the jurisdiction of the court.
TOTALITY RULE
Now, continuing with Section 33, it says there in paragraph
[1]:
“Provided further, That where there are several claims or
causes of actions between the same or different parties,
embodied in the same complaint, the amount of the demand shall
be the totality of the claims in all the causes of action, irrespective
of whether the causes of action arose out of the same or different
transactions.”
Under This rule, where there are several claims or causes of
actions between the same or different parties, embodied in the
same complaint, the amount of the demand shall be the totality of
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the claims in all the causes of action, irrespective of whether the
causes of action arose out of the same or different transactions
(Sec. 33 as amended by RA No. 7691; PANTRANCO North Express
Inc. vs. Standard Insurance Company Inc., 453 SCRA 482).
ILLUSTRATION of joinder of causes of action:
The defendant secured from me two loans covered by 2
promissory notes and all of them are due and he has not paid me
any. Let's say each note covers a principal amount of P175,000.00.
I decided to file one complaint embodying 2 causes of action
against him although I have the option also to file 2 separate
complaints. If you will look at the value of each claim which is
P175,000 that is triable by the MTC but if you will add the claims
that will be P350,000.00.
Q: Which court will have jurisdiction?
A: The RTC because the jurisdictional amount is the total
amount.
Never mind that there are 2 separate loans because the law
says “irrespective of whether the cause of action arose out of the
same or different transactions.”
In the example, there are two causes of action arising from
two separate transactions. Illustrate a joinder of causes of action
arising from only one transaction.
Suppose the loan is payable in installments on separate dates.
Each failure is a cause of action.
Now in the examples, there is only one plaintiff and one
defendant.
What about when there are several plaintiffs or defendants?
EXAMPLE: There are four (4) passengers riding on a public
vehicle. They were all injured when the bus met an accident and all
of them were hospitalized. So after they were discharged, the four
of them wanted to sue the bus company for damages arising from
contract of carriage or culpa contractual. They decided to file only
one complaint and, in effect, joined the 4 causes of action.
Q: What will be now the basis of jurisdiction the claim of each
plaintiff or the totality of the claims of the 4 plaintiffs?
A: The totality of the claims. You apply the totality rule
because the law says “where there are several claims or cause of
action between the same or different parties.”
So whether the parties are the same or the parties are
different embodied in the same complaint the amount of the
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demand shall be the totality of the claims the totality rule applies in
both situations.
Totality Rule subject to rule on joinder of parties
Where two or more plaintiffs, having separate causes of
action, sue one defendant or a plaintiff sues one or more
defendants in a single complaint, based on several causes of action
for or against each other, respectively, the totality rule applies only
where there is a common question of fact or law among them as
provided in Section 6 of Rule 3.
When there are several parties-plaintiffs or defendants and
there are several causes of action, as in the last example given,
when you join the causes of action there will necessarily be a
joinder of parties. In such a case there can only be a proper joinder
of causes of action when there is a proper joinder of parties and
the totality rule applies only when the joinder is proper.
When is a joinder of parties proper?
It is proper when there is a common question of fact and law.
Note also that joinder of parties is permissive (Sec. 6, R3)
Jurisdiction and Payment of Docket Fees
Even if the amount of damages and attorney’s fees do not
determine jurisdiction, they must still be specifically alleged in the
complaint for the purpose of payment of docket fees. Thus, the
higher the amount one is claiming the higher the filing fee.
Why pay the docket fee?
Because it is not simply the filing of the complaint or
appropriate initiatory pleading, but the payment of the prescribed
docket fee, that vests a trial court with jurisdiction over the subject
matter or nature of the action. (Sun Insurance Office Ltd. [SIOLI] v.
Asuncion 170 SCRA 274, 285 [1989])
Let us review what we learned in criminal procedure.
SECTION 1.
Xxxxxx
When the offended party seeks to enforce civil liability against
the accused by way of moral, nominal, temperate, or exemplary
damages without specifying the amount thereof in the complaint
or information, the filing fees therefore shall constitute a first lien
on the judgment awarding such damages.
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Where the amount of damages, other than actual, is specified
in the complaint or information, the corresponding filing fees shall
be paid by the offended party upon the filing thereof in court.
Except as otherwise provided in these Rules, no filing fees
shall be required for actual damages.
(b) The criminal action for violation of Batas Pambansa Blg. 22
shall be deemed to include the corresponding civil action. No
reservation to file such civil action separately shall be allowed.
Upon filing of the aforesaid joint criminal and civil actions, the
offended party shall pay in full the filing fees based on the amount
of the check involved, which shall be considered as the actual
damages claimed. Where the complaint or information also seeks
to recover liquidated, moral, nominal, temperate or exemplary
damages, the offended party shall pay additional filing fees based
on the amounts alleged therein. If the amounts are not so alleged
but any of these damages are subsequently awarded by the court,
the filing fees based on the amount awarded shall constitute a first
lien on the judgment.
For dependent civil action
FIRST DIVISION
[G.R. No. 126334. November 23, 2001.]
EMILIO EMNACE, petitioner, vs. COURT OF APPEALS, ESTATE
OF VICENTE TABANAO, SHERWIN TABANAO, VICENTE WILLIAM
TABANAO, JANETTE TABANAO DEPOSOY, VICENTA MAY TABANAO
VARELA, ROSELA TABANAO and VINCENT TABANAO, respondents.
Payment of Filing fees In Case Civil Aspect Is Deemed
Impliedly Instituted In the Criminal Action:
In any event, the Court now makes that intent plainer, and in
the interest of clarity and certainty, categorically declares for
guidance of all concerned that when the civil action is deemed
impliedly instituted with the criminal in accordance with Section 1,
Rule 111 of the Rules of Court – because the offended party has
not waived the civil action, or reserved the right to institute it
separately, or instituted the civil action prior to the criminal action
– the rule is as follows: (1) when the amount of the damages, other
than actual, is alleged in the complaint or information filed in court,
then the corresponding filing fees shall be paid by the offended
party upon filing thereof in court for trial; (2) in any other case,
however, -- i.e. when the amount of damages is not so alleged in
the complaint or information filed in court the corresponding filing
fees need not be paid and shall simply constitute a first lien on the
judgment, except in an award for actual damages. (General vs. Hon.
Claravall, et al., 195 SCRA 623)
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Q: Suppose there was no mention of any claim for moral or
exemplary damages, by not stating the amount claimed, can he still
prove them during the trial?
YES.
But he did not pay docket fee?
A: Never mind, once it is awarded, there is now a lien in the
judgment for the payment of the docket fee.
For Independent Civil Actions
In the case of Sun Insurance if the damages was not
mentioned in the complaint in the civil case they are deemed
waived. If it is mentioned, and the amount is fixed you must pay
the docket fee at the start of the case though if it is not complete,
you are given the chance to complete the payment or amend the
complaint within reasonable time.
In criminal cases, even if there is no mention of damages in
the information, you can still prove and claim them as long as there
is no waiver or reservation.
When docket fee is due for actual damage:
So in criminal cases, if the claim for moral or exemplary
damages is mentioned in the information, you must pay the docket
fee upon filing of the information. But whether alleged in the
information or not, you can claim for actual damages and there is
no docket fee for actual damages except in cases under BP 22. That
is the exception which is now embodied in Section 1 paragraph [b]
which was taken from SC circular 57-97 – there is no payment of
docket fee for actual damages except in criminal cases for violation
of BP 22 because paragraph [b] says:
Upon filing of the aforesaid joint criminal and civil actions, the
offended party shall pay in full the filing fees based on the amount
of the check involved, which shall be considered as the actual
damages claimed.
OTHER CASES ON FILING FEE IN CIVIL CASES:
In the case of
MANCHESTER DEVELOPMENT CORP. vs. CA
149 SCRA 562
FACTS: The plaintiff files a complaint and paid the docket fee
but he did not specify the amount of the damages he was claiming.
He contended that he is claiming for moral damages in such
amount as the court will grant. Respondent contended, on the
other hand, that it cannot be done, there is a necessity to state the
exact amount of the damages in order to determine the correct
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amount of the docket fee. So the plaintiff amended the complaint
and paid the balance of the docket fees.
ISSUE: Whether or not the subsequent amendment cures the
defect?
HELD: No, the defect is incurable. Thus, the action has to be
dismissed. The court acquires no jurisdiction over the case. The
remedy is to re-file the complaint and pay again the complete
amount of the docket fee. The prior payment made is forfeited in
as much as the defect in the first complaint is incurable.
So based on the MANCHESTER ruling, you cannot cure the
defect by merely amending the complaint.
However, the SC, after reflecting on what it said in the case of
MANCHESTER, realized the harshness of their decision. This
Manchester ruling was relaxed in the subsequent case of SUN
INSURANCE OFFICE which is now the governing law:
SUN INSURANCE OFFICE LTD. vs. COURT OF APPEALS
170 SCRA 274 [1989]
HELD: Thus, the Court rules as follows:
1. It is not simply the filing of the complaint or appropriate
initiatory pleading, but the payment of the prescribed docket fee,
that vests a trial court with jurisdiction over the subject matter or
nature of the action. Where the filing of the initiatory pleading is
not accompanied by payment of the docket fee, the court may
allow payment of the fee within a reasonable time but in no case
beyond the applicable prescriptive or reglementary period.
2. The same rule applies to permissive counterclaims, third
party claims and similar pleadings, which shall not be considered
filed until and unless the filing fee prescribed therefore is paid. The
court may also allow payment of said fee within a reasonable time
but also in no case beyond its applicable prescriptive or
reglementary period.
3. Where the trial court acquires jurisdiction over a claim
by the filing of the appropriate pleading and payment of the
prescribed filing fee but, subsequently, the judgment awards a
claim not specified in the pleading, or if specified the same has
been left for determination by the court, the additional filing fee
therefor shall constitute a lien on the judgment. It shall be the
responsibility of the Clerk of Court or his duly authorized deputy to
enforce said lien and assess and collect the additional fee.
Payment of docket fee and counterclaims
Second rule:
“The same rule applies to permissive counterclaims…”
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Re Compulsory Counterclaim
Rule 141 on Legal Fees was revised effective August 26, 2004
by AM No. 04-2-04-SC and the revision includes the payment of
docket fees not only for permissive counterclaim but also for
compulsory counterclaims. But the SC suspended the enforcement
of the new rates of legal fees under Rule 141 effective September
21, 2004, with respect to compulsory counterclaims, among others.
It did not suspend the imposition of legal fees.
However, in Korea Technologies Co. Ltd. Vs. Lerma, 542 SCRA
1, January 7, 2008, the Court said:
“On July 17, 1998, at the time PGSMC filed its Answer
incorporating its counterclaims against KOGIES, it was not liable to
pay filing fees for said counterclaim being compulsory in nature.
We stress, however, that effective August 16, 2004, under Sec. 7 of
Rule 141, as amended by AM No. 04-2-04-SC, docket fees are now
required to be paid in compulsory counterclaim or cross claims.”
And the third rule laid down in Sun Insurance:
If the judgment awards a claim not specified in the pleadings,
the filing fee therefor shall be a lien in the judgment. It shall be the
responsibility of the clerk of Court or his duly-authorized deputy to
enforce the lien, assess and collect the additional fee.
Q: When can this possibly happen?
A: That can happen for example if I ask for damages. A man
was hospitalized because of physical injuries. While still in the
hospital he filed an action for damages and based the amount of
damages on the current billing but alleged that he continues to
incur expenses as may be determined in the course of trial. He paid
the docket fee corresponding to the amount mentioned. After trial
he was able to establish expenses in the sum of P50,000.00.
Q: Can the court award the P 50,000?
A: Yes, because the additional expenses came only after the
filing of the case. The additional docket fee will constitute a lien on
the award.
The Sun Insurance is a leading case on docket fee. It was
followed with a third case in December 1989 which further clarified
the SUN INSURANCE ruling. This is the case of
TACAY vs. RTC OF TAGUM, DAVAO DEL NORTE
180 SCRA 433 [1989]
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NOTE: When this case was filed, there was no SUN
INSURANCE decision yet. The guiding rule was still MANCHESTER.
But while this was pending the SUN INSURANCE was already out.
FACTS: The case was for recovery of land with damages. So it
is not purely for damages. So the amount of filing fee is assessed
based on the assessed value of the land because it is a real action,
which the plaintiff paid.
Defendant moved to dismiss based on MANCHESTER because
the plaintiff did not specify in the complaint how much damages he
was claiming. Now the RTC of Tagum denies the motion to dismiss.
The defendant goes to the SC citing MANCHESTER.
Of course the SC said that the Manchester ruling was no
longer controlling because of Sun Insurance.
But it enunciated another rule.
HELD:
“Where the action involves real property and a related claim
for damages as well, the legal fees shall be assessed on the basis of
both (a) the value of the property and (b) the total amount of
related damages sought. The court acquires jurisdiction over the
action if the filing of the initiatory pleading is accompanied by the
payment of the requisite fees, or, if the fees are not paid at the
time of the filing of the pleading, as of the time of full payment of
the fees within such reasonable time as the court may grant,
unless, of course, prescription has set in the meantime.”
In other words, the total docket fee must be based on the
assessed value of the land and for the damages. Thus: (1.) If the
docket fee for the recovery of land is paid but none for the
damages, do not dismiss the entire case! Just do not consider the
claim for the damages. Or, (2.) second option, citing SUN
INSURANCE, give him reasonable time to pay the balance.
While Sun Insurance relaxed the rule (as to how or when to
complete the payment), it did not however, effect any change in
the rule that it is not only the filing of the complaint but also the
payment of the docket fee that is necessary for the acquisition of
the jurisdiction of the court over the complaint filed. (Gensoli & Co.
v. NLRC, 289 SCRA 407, 413 [1998]). If the filing of the initiatory
pleading is not accompanied by payment of the docket fees, the
court may allow payment of the fee within a reasonable time but in
no case beyond the applicable prescriptive or reglementary period.
(Colarina v. CA, 303 SCRA 647, 654 [1999])
Other interesting cases on docket fees.
No “file now, pay later” policy
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FILIPINAS SHELL PETROLEUM CORP. vs. COURT OF APPEALS
171 SCRA 674 [1989]
FACTS: Adrian dela Paz sued all oil companies (Shell, Caltex,
Mobil, etc.) of the Philippines for infringement of patent with
prayer for the payment of reasonable compensation for damages.
According to him, these companies used in their operation a
certain type of machine which he claimed he invented. His patent
was infringed. Thus, all these companies are all liable to him for
royalties. The estimated yearly royalty due him is P236,572. Since
the violation has been for many years already, his claims reached
millions. The trial court ordered him to pay P945,636.90 as docket
fee. He had no money so he questioned it. The trial court ruled:
“We will allow you to file the case and the docket fee is
deductible from whatever judgment of damages shall be awarded
by the court.”
HELD: There is no such thing as file now pay later. No
justification can be found to convert such payment to something
akin to a contingent fee which would depend on the result of the
case.
“Filing fees are intended to take care of court expenses in the
handling of cases in terms of cost of supplies, use of equipments,
salaries and fringe benefits of personnel, etc., computed as to man
hours used in handling of each case. The payment of said fees
therefore, cannot be made dependent on the result of the action
taken, without entailing tremendous losses to the government and
to the judiciary in particular.”
What is the remedy of the plaintiff if he/she cannot really pay
the filing fee?
Have himself declared by the court as a pauper litigant.
LACSON vs. REYES
182 SCRA 729
FACTS: There was a case filed and then the lawyer filed a
motion to direct the plaintiff to pay him his attorney’s fees – a
motion for payment of attorney’s fees.
Is the lawyer required to pay a filing fee?
HELD: Yes. “It may be true that the claim for attorney's fees
was but an incident in the main case, still, it is not an escape valve
from the payment of docket fees because as in all actions, whether
separate or as an offshoot of a pending proceeding, the payment of
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docket fees is mandatory. The docket fee should be paid before the
court would validly act on the motion.”
SUSON vs. COURT OF APPEALS
278 SCRA 284 [August 21, 1997)
FACTS: Mortz filed a case against Charles in Leyte. After filing,
the court dismissed the case because it should be filed in Cebu.
Mortz wrote a letter to the Office of the Court Administrator (OCA)
asking that the docket fee paid in Leyte be considered applicable to
Cebu. OCA granted his request.
Charles questioned it because of the rule that the payment of
docket fee is jurisdictional.
HELD: “The OCA has neither the power nor the authority to
exempt any party not otherwise exempt under the law or under
the Rules of Court in the payment of the prescribed docket fees. It
may be noteworthy to mention here that even in the Supreme
Court, there are numerous instances when a litigant has had to re-
file a petition previously dismissed by the Court due to a
technicality (violation of a pertinent Circular), and in these
instances, the litigant is required to pay the prescribed docket fee
and not apply to the re-filed case the docket fees paid in the earlier
dismissed case.”
“In the case at bar, in the strict sense, Mortz’s complaint
cannot be deemed to have been ‘re-filed’ in Cebu City because it
was not originally filed in the same court but in the RTC Leyte.
Thus, when Mortz’s complaint was docketed by the clerk of court
of the RTC Cebu City, it became an entirely separate case from that
dismissed by the RTC of Leyte due to improper venue. As far as the
case in Cebu is concerned, while undoubtedly the order of
dismissal is not an adjudication on the merits of the case, the
order, nevertheless, is a final order. This means that when private
respondent did not appeal therefrom, the order became final and
executory for all legal intents and purposes.”
DE LEON vs. COURT OF APPEALS
287 SCRA 94 [March 6, 1998]
FACTS: The question for decision is whether in assessing the
docket fees to be paid for the filing of an action for annulment or
rescission of a contract of sale, the value of the real property,
subject matter of the contract, should be used as basis, or whether
the action should be considered as one which is not capable of
pecuniary estimation and therefore the fee charged should be a
flat rate of P400.00 as provided in Rule 141, Section 7(b)(1) of the
Rules of Court.
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Defendant argued that an action for annulment or rescission
of a contract of sale of real property is a real action and, therefore,
the amount of the docket fees to be paid by Plaintiff should be
based either on the assessed value of the property, subject matter
of the action, or its estimated value as alleged in the complaint.
Since Plaintiff alleged that the land, in which they claimed an
interest as heirs, had been sold for P4,378,000.00 to defendant,
this amount should be considered the estimated value of the land
for the purpose of determining the docket fees.
Plaintiff countered that an action for annulment or rescission
of a contract of sale of real property is incapable of pecuniary
estimation and, so, the docket fees should be the fixed amount of
P400.00 in Rule 141, Section 7(b).
HELD: Plaintiff is correct. “In determining whether an action is
one the subject matter of which is not capable of pecuniary
estimation, this Court has adopted the criterion of first ascertaining
the nature of the principal action or remedy sought. If it is
primarily for the recovery of a sum of money, the claim is
considered capable of pecuniary estimation, and whether
jurisdiction is in the municipal courts or in the courts of first
instance would depend on the amount of the claim. “
However, where the basic issue is something other than the
right to recover a sum of money, or where the money claim is
purely incidental to, or a consequence of, the principal relief
sought, like in suits to have the defendant perform his part of the
contract (specific performance) and in actions for support, or for
annulment of a judgment or to foreclose a mortgage, this Court has
considered such actions as cases where the subject of the litigation
may not be estimated in terms of money, and are cognizable
exclusively by courts of first instance.”
“The rationale of the rule is plainly that the second class
cases, besides the determination of damages, demand an inquiry
into other factors which the law has deemed to be more within the
competence of courts of first instance, which were the lowest
courts of record at the time that the first organic laws of the
Judiciary were enacted allocating jurisdiction.”
“Actions for specific performance of contracts have been
expressly pronounced to be exclusively cognizable by courts of first
instance and no cogent reason appears, and none is here advanced
by the parties, why an action for rescission (or resolution) should
be differently treated, a "rescission" being a counterpart, so to
speak, of ‘specific performance’.”
“In both cases, the court would certainly have to undertake an
investigation into facts that would justify one act or the other. No
award for damages may be had in an action for rescission without
first conducting an inquiry into matters which would justify the
setting aside of a contract. Issues of the same nature may be raised
by a party against whom an action for rescission has been brought,
or by the plaintiff himself.”
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“It is, therefore, difficult to see why a prayer for damages in
an action for rescission should be taken as the basis for concluding
such action as one capable of pecuniary estimation — a prayer
which must be included in the main action if plaintiff is to be
compensated for what he may have suffered as a result of the
breach committed by defendant, and not later on precluded from
recovering damages by the rule against splitting a cause of action
and discouraging multiplicity of suits.”
“Thus, although eventually the result may be the recovery of
land, it is the nature of the action as one for rescission of contract
which is controlling.”
“Since the action of Plaintiff against Defendant is solely for
annulment or rescission which is not susceptible of pecuniary
estimation, the action should not be confused and equated with
the ‘value of the property’ subject of the transaction; that by the
very nature of the case, the allegations, and specific prayer in the
complaint, sans any prayer for recovery of money and/or value of
the transaction, or for actual or compensatory damages, the
assessment and collection of the legal fees should not be
intertwined with the merits of the case and/or what may be its end
result.”
In Go vs. UCPB, GR No. 156182 Nov. 11, 2004 the court
declared the following as real actions:
3.) judicial foreclosure of real estate mortgage;
4.) actions to annul real estate mortgage;
for the reason that a real estate mortgage is a real right as
well as a real property. So an action to cancel or annul a real estate
mortgage necessarily affects title to the real property, hence a real
action and jurisdiction is determined by the assessed value of the
property.
FIRST DIVISION
[G.R. No. 126334. November 23, 2001.]
EMILIO EMNACE, petitioner, vs. COURT OF APPEALS, ESTATE
OF VICENTE TABANAO, SHERWIN TABANAO, VICENTE WILLIAM
TABANAO, JANETTE TABANAO DEPOSOY, VICENTA MAY TABANAO
VARELA, ROSELA TABANAO and VINCENT TABANAO, respondents.
DECISION
YNARES-SANTIAGO, J p:
I. Whether or not respondent Judge acted without
jurisdiction or with grave abuse of discretion in taking cognizance
of a case despite the failure to pay the required docket fee;
On August 8, 1996, the Court of Appeals rendered the assailed
decision, 12 dismissing the petition for certiorari, upon a finding
that no grave abuse of discretion amounting to lack or excess of
jurisdiction was committed by the trial court in issuing the
questioned orders denying petitioner's motions to dismiss.
Not satisfied, petitioner filed the instant petition for review,
raising the same issues resolved by the Court of Appeals, namely:
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I. Failure to pay the proper docket fee;
Xxxx xxxx xxxx
It can be readily seen that respondents' primary and ultimate
objective in instituting the action below was to recover the
decedent's 1/3 share in the partnership's assets. While they ask for
an accounting of the partnership's assets and finances, what they
are actually asking is for the trial court to compel petitioner to pay
and turn over their share, or the equivalent value thereof, from the
proceeds of the sale of the partnership assets. They also assert that
until and unless a proper accounting is done, the exact value of the
partnership's assets, as well as their corresponding share therein,
cannot be ascertained. Consequently, they feel justified in not
having paid the commensurate docket fee as required by the Rules
of Court.
We do not agree. The trial court does not have to employ
guesswork in ascertaining the estimated value of the partnership's
assets, for respondents themselves voluntarily pegged the worth
thereof at Thirty Million Pesos (P30,000,000.00). Hence, this case is
one which is really not beyond pecuniary estimation, but rather
partakes of the nature of a simple collection case where the value
of the subject assets or amount demanded is pecuniarily
determinable. 13 While it is true that the exact value of the
partnership's total assets cannot be shown with certainty at the
time of filing, respondents can and must ascertain, through
informed and practical estimation, the amount they expect to
collect from the partnership, particularly from petitioner, in order
to determine the proper amount of docket and other fees. 14 It is
thus imperative for respondents to pay the corresponding docket
fees in order that the trial court may acquire jurisdiction over the
action. 15
Nevertheless, unlike in the case of Manchester Development
Corp. v. Court of Appeals, 16 where there was clearly an effort to
defraud the government in avoiding to pay the correct docket fees,
we see no attempt to cheat the courts on the part of respondents.
In fact, the lower courts have noted their expressed desire to remit
to the court "any payable balance or lien on whatever award which
the Honorable Court may grant them in this case should there be
any deficiency in the payment of the docket fees to be computed
by the Clerk of Court." 17 There is evident willingness to pay, and
the fact that the docket fee paid so far is inadequate is not an
indication that they are trying to avoid paying the required amount,
but may simply be due to an inability to pay at the time of filing.
This consideration may have moved the trial court and the Court of
Appeals to declare that the unpaid docket fees shall be considered
a lien on the judgment award.
Petitioner, however, argues that the trial court and the Court
of Appeals erred in condoning the non-payment of the proper legal
fees and in allowing the same to become a lien on the monetary or
property judgment that may be rendered in favor of respondents.
There is merit in petitioner's assertion. The third paragraph of
Section 16, Rule 141 of the Rules of Court states that:
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The legal fees shall be a lien on the monetary or property
judgment in favor of the pauper-litigant.
Respondents cannot invoke the above provision in their favor
because it specifically applies to pauper-litigants. Nowhere in the
records does it appear that respondents are litigating as paupers,
and as such are exempted from the payment of court fees. 18
The rule applicable to the case at bar is Section 5(a) of Rule
141 of the Rules of Court, which defines the two kinds of claims as:
(1) those which are immediately ascertainable; and (2) those which
cannot be immediately ascertained as to the exact amount. This
second class of claims, where the exact amount still has to be
finally determined by the courts based on evidence presented, falls
squarely under the third paragraph of said Section 5(a), which
provides:
In case the value of the property or estate or the sum claimed
is less or more in accordance with the appraisal of the court, the
difference of fee shall be refunded or paid as the case may be.
(Emphasis ours)
In Pilipinas Shell Petroleum Corporation v. Court of Appeals,
19 this Court pronounced that the above-quoted provision "clearly
contemplates an initial payment of the filing fees corresponding to
the estimated amount of the claim subject to adjustment as to
what later may be proved." 20 Moreover, we reiterated therein the
principle that the payment of filing fees cannot be made contingent
or dependent on the result of the case. Thus, an initial payment of
the docket fees based on an estimated amount must be paid
simultaneous with the filing of the complaint. Otherwise, the court
would stand to lose the filing fees should the judgment later turn
out to be adverse to any claim of the respondent heirs.
The matter of payment of docket fees is not a mere triviality.
These fees are necessary to defray court expenses in the handling
of cases. Consequently, in order to avoid tremendous losses to the
judiciary, and to the government as well, the payment of docket
fees cannot be made dependent on the outcome of the case,
except when the claimant is a pauper-litigant.
Applied to the instant case, respondents have a specific claim
— 1/3 of the value of all the partnership assets — but they did not
allege a specific amount. They did, however, estimate the
partnership's total assets to be worth Thirty Million Pesos
(P30,000,000.00), in a letter 21 addressed to petitioner.
Respondents cannot now say that they are unable to make an
estimate, for the said letter and the admissions therein form part
of the records of this case. They cannot avoid paying the initial
docket fees by conveniently omitting the said amount in their
amended complaint. This estimate can be made the basis for the
initial docket fees that respondents should pay. Even if it were later
established that the amount proved was less or more than the
amount alleged or estimated, Rule 141, Section 5(a) of the Rules of
Court specifically provides that the court may refund the excess or
exact additional fees should the initial payment be insufficient. It is
clear that it is only the difference between the amount finally
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awarded and the fees paid upon filing of this complaint that is
subject to adjustment and which may be subjected to a lien.
In the oft-quoted case of Sun Insurance Office, Ltd. v. Hon.
Maximiano Asuncion, 22 this Court held that when the specific
claim "has been left for the determination by the court, the
additional filing fee therefor shall constitute a lien on the judgment
and it shall be the responsibility of the Clerk of Court or his duly
authorized deputy to enforce said lien and assess and collect the
additional fee." Clearly, the rules and jurisprudence contemplate
the initial payment of filing and docket fees based on the estimated
claims of the plaintiff, and it is only when there is a deficiency that
a lien may be constituted on the judgment award until such
additional fee is collected.
Based on the foregoing, the trial court erred in not dismissing
the complaint outright despite their failure to pay the proper
docket fees. Nevertheless, as in other procedural rules, it may be
liberally construed in certain cases if only to secure a just and
speedy disposition of an action. While the rule is that the payment
of the docket fee in the proper amount should be adhered to, there
are certain exceptions which must be strictly construed. 23
In recent rulings, this Court has relaxed the strict adherence to
the Manchester doctrine, allowing the plaintiff to pay the proper
docket fees within a reasonable time before the expiration of the
applicable prescriptive or reglementary period. 24
In the recent case of National Steel Corp. v. Court of Appeals,
25 this Court held that:
The court acquires jurisdiction over the action if the filing of
the initiatory pleading is accompanied by the payment of the
requisite fees, or, if the fees are not paid at the time of the filing of
the pleading, as of the time of full payment of the fees within such
reasonable time as the court may grant, unless, of course,
prescription has set in the meantime.
It does not follow, however, that the trial court should have
dismissed the complaint for failure of private respondent to pay
the correct amount of docket fees. Although the payment of the
proper docket fees is a jurisdictional requirement, the trial court
may allow the plaintiff in an action to pay the same within a
reasonable time before the expiration of the applicable prescriptive
or reglementary period. If the plaintiff fails to comply within this
requirement, the defendant should timely raise the issue of
jurisdiction or else he would be considered in estoppel. In the latter
case, the balance between the appropriate docket fees and the
amount actually paid by the plaintiff will be considered a lien or any
award he may obtain in his favor. (Emphasis ours)
Accordingly, the trial court in the case at bar should
determine the proper docket fee based on the estimated amount
that respondents seek to collect from petitioner, and direct them
to pay the same within a reasonable time, provided the applicable
prescriptive or reglementary period has not yet expired. Failure to
comply therewith, and upon motion by petitioner, the immediate
dismissal of the complaint shall issue on jurisdictional grounds.
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Jurisdiction of the MTC in Forcible Entry and Unlawful
Detainer
Sec. 33[2] Exclusive original jurisdiction over cases of forcible
entry and unlawful detainer: Provided, That when, in such cases,
the defendant raises the question of ownership in his pleadings
and the question of possession cannot be resolved without
deciding the issue of ownership, the issue of ownership shall be
resolved only to determine the issue of possession. x x x x”
These are called accion interdictal and the only issue is
physical possession of the property. The two cases should not be
confused with accion publiciana which is also the recovery of
possession.
In unlawful detainer, the plaintiff prays not only to eject the
defendant but also to claim for back rentals or the reasonable
amount of the use and occupation of the property in case of
forcible entry.
Q: Suppose the unpaid rentals already amount to almost half
a million pesos, where should the case be filed?
A: The case should still be filed with the MTC. What
determines jurisdiction is the nature of the action, and not the
amount of recoverable rentals.
Q: In an action for forcible entry or unlawful detainer, can the
party present evidence of ownership?
A: The general rule is NO because the MTC cannot adjudicate
ownership. That has to be threshed out in the proper civil action in
the RTC. But if evidence of ownership is presented in the forcible
entry or unlawful detainer case, it is only incidental and it is only
resolved to determine the issue of possession. Such declaration of
ownership is not final. The question of ownership must be litigated
in a separate action in the RTC.
Let us now proceed to the third paragraph of Section 33 as
amended by R.A. 7691:
Real Actions other then Forcible Entry and Unlawful Detainer
[3] Exclusive original jurisdiction in all civil actions which
involve title to, or possession of, real property or any interest
therein where the assessed value of the property or interest
therein does not exceed Twenty thousand pesos (P20,000.00) or,
in civil actions in Metro Manila, where such assessed value does
not exceed Fifty thousand pesos (P50,000.00) exclusive of
interest, damages of whatever kind, attorney's fees, litigation
expenses and costs: Provided, That in cases of land not declared
for tax purposes, the value of such property shall be determined
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by the assessed value of the adjacent lots. (As amended by RA
7691)
Aside from forcible entry and unlawful detainer, MTCs now
have jurisdiction over other real actions or actions involving title to
or possession, or any interest therein, like accion publiciana and
accion reinvidicatoria cases where the assessed value of the land
should not exceed P20,000. In Metro Manila, it is not exceeding
P50,000 In cases of land not declared for taxation purposes, the
value of such property shall be determined by the assessed value of
the adjacent lots.. That is the amendment brought about by RA
7691 which expanded the jurisdiction of the MTC.
An accion reivindicatoria is a suit which has for its object the
recovery of possession over the real property as owner. It involves
recovery of ownership and possession based on said ownership.
An accion publiciana is one for the recovery of possession or
the right to possess. It is also referred to as an ejectment suit after
the expiration of one year after the occurrence of the cause of
action or from the unlawful withholding of possession of the realty.
It is considered a plenary action to recover the right of possession
when dispossession is effected by means other than unlawful
detainer or forcible entry.
What is the Assessed value?
The assessed value of real property can have reference only to
the tax rolls in the municipality where the property is located, and
is contained in the tax declaration. It is elementary that the tax
declaration indicating the assessed value of the property enjoys the
presumption of regularity as it has been issued by the proper
government agency (Hilario vs. Salvador, 457 SCRA 815).
In Vda. De Barrera vs. Heirs of Legaspi, GR No. 174346, Sept.
12, 2008, the facts point to a complaint for reconveyance of
possession of real property with preliminary injunction and
damages filed in the RTC of Tangub City. One of the defenses raised
by the defendants was the court’s lack of jurisdiction over the
complaint, the assessed value of the subject property as reflected
in the uncontroverted tax declaration is only P11,160.00. The trial
court, in its decision, rejected the contention of the defendant
holding that since the complaint alleged the estimated value of the
land as P50,000.00, such allegation must prevail over the assessed
value of P11,160.00 relied upon by the defense. What determines
the nature of the action and the jurisdiction over the complaint,
said the trial court, are the facts alleged in the complaint and not
those alleged in the answer of the defendants. The CA affirmed.
On appeal by certiorari the SC held:
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“The subject land has an assessed value of P11,160.00 as
reflected in the Tax Declaration No. 7565, a common exhibit of the
parties. The bare claim of respondents that it has a value of
P50,000.00 thus fails. The case, therefore, falls within the exclusive
original jurisdiction of the municipal trial court.
It was error then for the RTC to take cognizance of the
complaint based on the allegation that “the present estimated
value of the land is P50,000.00”…The estimated value, commonly
referred to as the fair market value of the property.”
B.) DELEGATED JURISDICTION OF THE MTC
Sec. 34. Delegated Jurisdiction in Cadastral and Land
Registration Cases. - MetTCs, MTCs and MCTCs may be assigned
by the Supreme Court to hear and determine cadastral or land
registration cases covering lots where there is no controversy or
opposition, or contested lots where the value of which does not
exceed One hundred thousand pesos (P100,000.00), such value to
be ascertained by the affidavit of the claimant or by agreement of
the respective claimants if there are more than one, or from the
corresponding tax declarations of the real property. Their
decisions in these cases shall be appealable in the same manner
as decisions of the RTCs. (As amended by RA 7691)
As a rule cadastral and land registration cases fall under the
jurisdiction of the RTC.
What is the difference between a land registration proceeding
and a cadastral proceeding?
Cadastral is compulsory registration.
This is related to your study of Land, Titles and Deeds (The
Property Registration Decree). When you file a petition for land
registration, the object is to have your property registered and fall
under the Torrens System of the Land Registration.
Q: Now, what is this delegated jurisdiction all about?
A: It refers only to cadastral and land registration cases which
involve the titling of property under the Torrens system or
cadastral land registration.
Under the Property Registration Decree, only the RTC has
authority to entertain land registration and cadastral cases. But
now, Section 34 gives the Supreme Court the authority to
DELEGATE to MTCs to hear and decide land registration and
cadastral cases under the following conditions:
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1.) when there is no controversy or nobody is contesting
your petition; or
2.) even if the petition is contested where the value of the
land to be titled does not exceed P100,000.
In which case, these MTCs can decide and their decisions are
appealable directly to the CA because in exercise of delegated
jurisdiction it is acting as an RTC.
The value of the lot shall be ascertained by the affidavit of the
claimant or by agreement of the respective claimants if there are
more than one, or from the corresponding tax declaration of the
real property.
Now do not confuse this P100,000 (Section 34) with the
P20,000 under Section 33. Section 34 deals with cadastral and land
registration cases. Section 33 involves civil cases (accion publiciana,
etc.)
C.) SPECIAL JURISDICTION OF MTC
Sec. 35. Special jurisdiction in certain cases. - In the
absence of all the Regional Trial Judges in a province or city, any
Metropolitan Trial Judge, Municipal Trial Judge, Municipal Circuit
Trial Judge may hear and decide petitions for a writ of habeas
corpus or applications for bail in criminal cases in the province or
city where the absent Regional Trial Judges sit.
This is what we call special jurisdiction. It only applies to two
(2) types of cases: (1) Habeas corpus and (2) hearing of petitions
for bail.
Remember that habeas corpus is not within the jurisdiction of
the MTC. It is with the RTC. In an application for bail the RTC also
has jurisdiction because the offense may be a heinous one, but
under the law on criminal procedure you can file a petition for bail
to have your temporary freedom while the case is going on. That’s
supposed to be in the RTC.
But suppose there is no available RTC judge, all of them are
sick or all of them are attending a convention (this actually
happened in Davao in 1990) Section 35 provides that the MTC, in
the absence of RTC judges, can hear and decide on habeas corpus
case petitions and applications or petitions for bail in criminal
cases.
That is allowed because of the urgency of the situation. There
is no need for a SC authorization. However, this is only allowed in
the absence of the RTC judges. But if the RTC judge comes back, he
has to take over the petition.
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REVISED RULE ON SUMMARY PROCEDURE as amended by
A.M. 02-11-09-SC, effective November 25, 2002
Cases subject to summary procedure
(a) Forcible entry and unlawful detainer cases; and
(b) All other claims where the total claim does not exceed
P100,000.00 (outside Metro Manila), or does not exceed
P200,000.00 (Metro Manila) exclusive of interests and
costs. Probate proceedings are not covered by the rule
on summary procedure even if the gross value of the
estate does not exceed P100,000.00 or P200,000.00.
Some basic principles to be remembered in civil cases subject
to a summary procedure:
(a) Not all pleadings in an ordinary civil action are allowed in
a summary procedure. The only pleadings allowed are
(1) complaint; (2) compulsory counterclaim; (3) cross-
claim pleaded in the answer, (4) answers to these
pleadings (Sec. 3)
(b) The court in a summary procedure may dismiss the case
outright on any of the grounds for the dismissal of a civil
action (Sec. 4)
(c) Should the defendant fail to answer the complaint within
the period of ten (10) days from service of summons, the
court may motu proprio, or on motion of the plaintiff,
render judgment (not an order declaring the defendant
in default) as may be warranted by the facts alleged and
limited to what is prayed for (Sec. 6)
(d) There shall be preliminary conference held but there
shall be no trial. Instead the parties shall submit
affidavits and position papers (Secs ,8,9)
(e) Within thirty (30) days from the receipt of the last
affidavits and positions papers, or the expiration of the
period for filing the same, the court shall render
judgment (Sec. 10)
(f) As a rule a motion to dismiss is not allowed except on
either of two grounds (1) lack of jurisdiction over the
subject matter, or (2) failure to comply with the
barangay conciliation proceedings (Sec. 19(a))
(g) Although a petition for certiorari is prohibited in cases
subject to summary procedure, the Court in one case
allowed the petition because the trial court gravely
abused its discretion by indefinitely suspending the
proceedings in ejectment cases thus, acting contrary to
the purposes of the Rules on Summary Procedure. The
SC recognized that because the order of the trial court
cannot be appealed from it being an interlocutory and
since the proceedings are covered by the Rules on
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Summary Procedure, a ‘procedural void’ exists. Invoking
its power to suspend the rules to promote substantial
justice, the SC gave due course to the petition pro hac
vice because of the extraordinary circumstances of the
case. The Court observed that allowing the petition
would avoid the mischiefs sought to be curbed by the
Rules and would give spirit and life to the Rules on
Summary Procedure (Go vs. CA 297 SCRA 574).
(h) It must be emphasized that in a civil case governed by
the Rules on Summary Procedure, no hearing is
conducted. Instead, the parties are required to submit
their respective position papers (Five Star Marketing
Corporation vs. Booc, 535 SCRA 28).
Q: Now, what are the PROHIBITED documents, motions, or
pleadings under the Summary Rules?
A: The following (Under Section 19):
1.) Motion to quash except when your ground is
a.) lack of jurisdiction over the subject matter; or
b.) failure to comply with the Barangay Conciliation;
2.) Motion for bill of particulars;
3.) Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial; your remedy here is
appeal;
4.) Petition for relief from judgement;
5.) Motion for extension of time to file an affidavit;
6.) Memoranda;
7.) Petition for certiorari, mandamus, or prohibition
against any interlocutory orders issued by the court;
8.) Motion to declare the defendant in default;
9.) Dilatory motions postponements;
10.) Reply;
11.) Third-party complaints;
12.) Interventions;
Jurisdiction Over Small Claims Cases
Introduction of the Concept of Small Claims Court in the
Philippines
The idea of establishing Small Claims Courts in the Philippines
was first proposed to the Supreme Court through a study
conducted
in 1999 by Justice Josue N. Bellosillo, former Senior Associate
Justice of the Supreme Court. After observing small claims
courts
and interviewing judges of such courts in Dallas, Texas, United
States in 1999, Justice Bellosillo proposed in a Report that
courts
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can be established in the Philippines to handle exclusively
small
claims without the participation of lawyers and where
ordinary
litigants can prosecute and defend a small claims action
through
ready-made forms. He envisioned the small claims courts as
another
positive approach, in addition to mandatory pre-trial, for
solving
court congestion and delay.6 The study and report was
subsequently
endorsed for legislative action to Senator Franklin Drilon who
later
funded a project for this purpose.
At the regular session of the Fourteenth Congress, House Bill
No. 2921 entitled “An Act Establishing Small Claims Courts”
was
introduced by Congressman Jose V. Yap. Thereafter, on July 3,
2007, Senate Bill No. 800 entitled “Philippine Small Claims
Court
Act” was filed by Senator Ramon A. Revilla, Jr. and, on
September
3, 2007, the bill passed First Reading and was referred to the
Committee(s) on Justice and Human Rights and Finance. The
same
is still pending with these committees at present.
In 2007, the United States Agency for International
Development
(USAID) awarded a two-year grant to the American Bar
Association-
Rule of Law Initiative (ABA-ROLI) to pursue judicial reform
activities in the Philippines for the fiscal period October 2007
to
September 30, 2009 . In a letter to Chief Justice Reynato S.
Puno
dated October 10, 2007, ABA-ROLI proposed the
establishment of
small claims pilot courts among first level courts in different
regions
of the Philippines. The small claims pilot court project was
proposed
by ABA to USAID after consultation with various Supreme
Court
officials in conjunction with the 2000 Action Plan for Judicial
Reform.
Among the critical issues being addressed by the APJR are
case congestion and delay. The congestion of case dockets is
central
to a multitude of problems, either as cause or effect; it is
either the
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34 A.M. No. 08-8-7-SC
manifestation or the source of other difficulties. Addressing
this
concern is thus an imperative8 which is why present reforms
in
judicial systems and procedures have included the following:
1. streamlining procedural rules to eliminate provisions
that cause delay and permit dilatory tactics;
2. re-engineering the jurisdictional structure of the
courts to ensure easy geographical access to the courts
particularly by the poor litigants;
3. improving the case management system toward more
transparency, accountability and integrity of the
judicial process and for better efficiency; and
4. strengthening of the mediation mechanism to promote
early dispute resolution nationwide.This involves the
institutionalization of court-annexed mediation, and
the establishment of a Mediation Center to continually
monitor and assess the performance of the system
and provide training and research.
Notwithstanding the absence of a law at the present time
creating
small claims courts in our country, the Supreme Court through
a 2. The establishment of Criteria to Select Appropriate
program in partnership with ABA-ROLI and USAID, can
promulgate
and implement a simplified rule of procedure exclusively for
small
claims and assign a certain number of existing first level courts
to
take cognizance of small claims. This does not need legislative
action as the Court can designate several first level courts all
over
the country to jump-start the pilot project. Thus, pursuant to
its
rule-making power, the Court under the present Constitution
can
adopt a special rule of procedure to govern small claims cases
and
select pilot courts that would empower the people to bring
suits
before them pro se to resolve legal disputes involving simple
issues
of law and procedure without the need for legal
representation and
extensive judicial intervention. This system will enhance
access to
justice especially by those who cannot afford the high costs of
litigation even in cases of relatively small value.13 It is
envisioned
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that by facilitating the traffic of cases through simple and
expeditious
rules and means, our Court can improve the perception of
justice in
this country, thus giving citizens a renewed “stake” in
preserving
peace in the land. This is a hopeful message to our people that
Rule of Procedure for Small Claims Cases 35
“there is no need to despair for there is deliverance in law;
that is
a promise that has been fulfilled by law in the past; it is a
promise
law will again fulfill in the future.”14
In December 2007, the Supreme Court established a Technical
Working Group composed of the Court Administrator, the
Program
Management Office Administrator, selected judges and other
officials
of the Supreme Court and the Integrated Bar of the
Philippines to
undertake the following activities:
1. The development of Rules and Procedures to
Implement Pilot Small Claims Courts;
Regions/Judges for Pilot Small Claims Courts and
set Peso Limits for the Small Claims Courts;
3. Through the Philippine Judicial Academy, the conduct
of training programs for Judges and their personnel
participating in the Pilot Small Claims Courts project;
and
4. The employment of “Justice on Wheels” buses to
launch pilot small claims tribunals.
Rule of Procedure for Small Claims Cases 1
A.M. No. 08-8-7-SC
RULE OF PROCEDURE
FOR SMALL CLAIMS CASES
EFFECTIVE OCTOBER 1, 2008
MANILA, PHILIPPINES
SEPTEMBER 2008
RULE OF PROCEDURE
FOR SMALL CLAIMS CASES
SECTION 1. Title.—This Rule shall be known as “The Rule of
Procedure for Small Claims Cases.”
SEC. 2. Scope.—This Rule shall govern the procedure in
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actions before the Metropolitan Trial Courts, Municipal Trial
Courts
in Cities, Municipal Trial Courts and Municipal Circuit Trial
Courts
for payment of money where the value of the claim does not
exceed
One Hundred Thousand Pesos (P100,000.00) exclusive of
interest
and costs.
Explanatory Note: The purpose of a small claims process
is to provide an inexpensive and expeditious means to settle
disputes
over small amounts. For purposes of the project, the amount
has been set for claims involving amounts of not more than
P100,000.00.
The theory behind the small claims system is that ordinary
litigation fails to bring practical justice to the parties when the
disputed claim is small, because the time and expense
required by
the ordinary litigation process is so disproportionate to the
amount
involved that it discourages a just resolution of the dispute.
The
small claims process is designed to function quickly and
informally.
There are no attorneys, no formal pleadings and no strict legal
rules
of evidence. The small claims court system is not a “typical
inferior
court.” Parties are encouraged to file small claims court
actions to
resolve their minor disputes as opposed to resorting to self-
help or
forcible means to seek their remedy. (Pace v. Hillcrest Motor
Co.,
161 Cal. Rptr. 663, 664 Ct. App. 1980)
SEC. 3. Definition of Terms.—For purposes of this Rule:
(a) Plaintiff refers to the party who initiated a small
claims action. The term includes a defendant who
has filed a counterclaim against plaintiff;
(b) Defendant is the party against whom the plaintiff has
filed a small claims action. The term includes a
plaintiff against whom a defendant has filed a claim,
or a person who replies to the claim;
(c) Person is an individual, corporation, partnership,
limited liability partnership, association, or other
juridical entity endowed with personality by law;
(d) Individual is a natural person;
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(e) Motion means a party’s request, written or oral, to
the court for an order or other action. It shall
include an informal written request to the court,
such as a letter;
(f) Good cause means circumstances sufficient to justify
the requested order or other action, as determined
by the judge; and
(g) Affidavit means a written statement or declaration of
facts that are sworn or affirmed to be true.
SEC. 4. Applicability.—The Metropolitan Trial Courts,
Municipal Trial Courts in Cities, Municipal Trial Courts, and
Municipal Circuit Trial Courts shall apply this Rule in all actions
which are: (a) purely civil in nature where the claim or relief
prayed
for by the plaintiff is solely for payment or reimbursement of
sum
of money, and (b) the civil aspect of criminal actions, either
filed
before the institution of the criminal action, or reserved upon
the
filing of the criminal action in court, pursuant to Rule 111 of
the
Revised Rules Of Criminal Procedure.
These claims or demands may be:
(a) For money owed under any of the following:
1. Contract of Lease;
2. Contract of Loan;
3. Contract of Services;
4. Contract of Sale; or
5. Contract of Mortgage;
(b) For damages arising from any of the following:
1. Fault or negligence;
2. Quasi-contract; or
3. Contract;
(c) The enforcement of a barangay amicable settlement
or an arbitration award involving a money claim
covered by this Rule pursuant to Sec. 417 of Republic
Act 7160, otherwise known as the Local Government
Code of 1991.
Explanatory Note: The kinds of cases that can be filed in
Small Claims Court vary, but the case must seek money only.
For
example, a suit cannot be brought in Small Claims Court to
force
a person or business to fix a damaged good; or to demand
fulfillment
of a promised obligation which is not purely for money, or to
seek
money to compensate for pain and suffering. Some of the
kinds of
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cases which are allowed as small claims include the following:
1. Actual damage caused to vehicles, other personal
property, real property or person;
2. Payment or reimbursement for property, deposit, or
money loaned;
3. Payment for services rendered, insurance claim, rent,
commissions, or for goods sold and delivered;
4. Money claim pursuant to a contract, warranty or
agreement; and
5. Purely civil action for payment of money covered by
bounced or stopped check.
SEC. 5. Commencement of Small Claims Action.—A small
claims action is commenced by filing with the court an
accomplished
and verified Statement of Claim (Form 1-SCC) in duplicate,
accompanied by a Certification of Non-forum Shopping (Form
1-A,
SCC), and two (2) duly certified photocopies of the actionable
document/s subject of the claim, as well as the affidavits of
witnesses
and other evidence to support the claim. No evidence shall be
allowed during the hearing which was not attached to or
submitted
together with the Claim, unless good cause is shown for the
admission
of additional evidence.
No formal pleading, other than the Statement of Claim
described
in this Rule, is necessary to initiate a small claims action.
SEC. 6. Joinder of Claims.—Plaintiff may join in a single
statement of claim one or more separate small claims against
a applicable,
defendant provided that the total amount claimed, exclusive
of interest
and costs, does not exceed P100,000.00.
SEC. 7. Affidavits.—The affidavits submitted under this Rule
shall state only facts of direct personal knowledge of the
affiants
which are admissible in evidence.
A violation of this requirement shall subject the party, and the
counsel who assisted the party in the preparation of the
affidavits,
if any, to appropriate disciplinary action. The inadmissible
affidavit(s)
or portion(s) thereof shall be expunged from the record.
SEC. 8. Payment of Filing Fees.—The plaintiff shall pay the
docket and other legal fees prescribed under Rule 141 of the
Revised
Rules of Court, unless allowed to litigate as an indigent.
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A claim filed with a motion to sue as indigent (Form 6-SCC)
shall be referred to the Executive Judge for immediate action
in case
of multi-sala courts, or to the Presiding Judge of the court
hearing
the small claims case. If the motion is granted by the
Executive
Judge, the case shall be raffled off or assigned to the court
designated
to hear small claims cases. If the motion is denied, the plaintiff
shall be given five (5) days within which to pay the docket
fees,
otherwise, the case shall be dismissed without prejudice. In
no case
shall a party, even if declared an indigent, be exempt from the
payment of the P1,000.00 fee for service of summons and
processes
in civil cases.
Explanatory Note: A plaintiff may commence an action in the
small claims court by filing a Statement of Claim under oath
with
the Clerk of the first level court in person or by mail. The claim
form shall be a simple nontechnical form approved or
adopted by
the Supreme Court. The claim form shall set forth (1) the
name and
address of the defendant, if known; (2) the amount and the
basis of
the claim; (3) that the plaintiff, where possible, has demanded
payment and, in applicable cases, possession of the property;
(4)
that the defendant has failed or refused to pay, and where
has refused to surrender the property; and (5) that the
plaintiff
understands that the judgment on his or her claim will be
conclusive
and without a right of appeal. The plaintiff should attach to
the
claim all documents necessary to prove his/her right to reliefs
prayed
for. The form or accompanying instructions shall include
information
that the plaintiff (1) may not be represented by an attorney;
(2) has
no right of appeal; and (3) may ask the court to waive fees for
filing
and serving the claim on the ground that the plaintiff is
indigent
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unable to pay them, using the forms approved by the
Supreme Court
for that purpose.
SEC. 9. Dismissal of the Claim.—After the court determines
that the case falls under this Rule, it may, from an
examination of
the allegations of the Statement of Claim and such evidence
attached
thereto, by itself, dismiss the case outright on any of the
grounds
apparent from the Claim for the dismissal of a civil action.
Explanatory Note: Jurisdiction and venue requirements in
small
claims actions shall be the same as in other civil actions
provided
in the Rules of Civil Procedure. A defendant may challenge
jurisdiction or venue or court location by including these
defenses
in his Response before appearing in the scheduled hearing. In
all
cases, even if the defendant does not ask for dismissal of the
case
in the Response or appear at the hearing, the court shall
inquire into
the facts sufficiently to determine whether jurisdiction and
authority
of the court over the action are proper, and shall make its
determination accordingly.
SEC. 10. Summons and Notice of Hearing.—If no ground for
dismissal is found, the court shall forthwith issue Summons
(Form
2-SCC) on the day of receipt of the Statement of Claim,
directing
the defendant to submit a verified Response.
The court shall also issue a Notice (Form 4-SCC) to both
parties, directing them to appear before it on a specific date
and
time for hearing, with a warning that no unjustified
postponement
shall be allowed, as provided in Section 19 of this Rule.
The summons and notice to be served on the defendant shall
be accompanied by a copy of the Statement of Claim and
documents
submitted by plaintiff, and a copy of the Response (Form 3-
SCC) to
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be accomplished by the defendant. The Notice shall contain
an
express prohibition against the filing of a motion to dismiss or
any
other motion under Section 14 of this Rule.
SEC. 11. Response.—The defendant shall file with the court
and serve on the plaintiff a duly accomplished and verified
Response
within a non-extendible period of ten (10) days from receipt
of
summons. The Response shall be accompanied by certified
photocopies of documents, as well as affidavits of witnesses
and
other evidence in support thereof. No evidence shall be
allowed
during the hearing which was not attached to or submitted
together
with the Response, unless good cause is shown for the
admission of
additional evidence.
SEC. 12. Effect of Failure to File Response.—Should the
defendant fail to file his Response within the required period,
the
court by itself shall render judgment as may be warranted by
the
facts alleged in the Statement of Claim limited to what is
prayed for.
The court however, may, in its discretion, reduce the amount
of
damages for being excessive or unconscionable.
SEC. 13. Counterclaims Within the Coverage of this Rule.—
If at the time the action is commenced, the defendant
possesses a
claim against the plaintiff that (a) is within the coverage of this
Rule, exclusive of interest and costs; (b) arises out of the same
transaction or event that is the subject matter of the
plaintiff’s
claim; (c) does not require for its adjudication the joinder of
third
parties; and (d) is not the subject of another pending action,
the
claim shall be filed as a counterclaim in the Response;
otherwise,
the defendant shall be barred from suit on the counterclaim.
The defendant may also elect to file a counterclaim against
the
plaintiff that does not arise out of the same transaction or
occurrence,
provided that the amount and nature thereof are within the
coverage
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of this Rule and the prescribed docket and other legal fees are
paid.
Explanatory Note: If a defendant has a claim against a plaintiff
that exceeds the limits stated in Section 2 of this Rule, and the
claim
relates to the contract, transaction, matter, or event which is
the
subject of the plaintiff’s claim, the defendant may commence
an
action against the plaintiff in a court of competent
jurisdiction. If
said claim which is beyond the limit of money claim provided
in this
Rule is filed with the Response before the Small Claims Court,
the
latter shall dismiss the counterclaim.
SEC. 14. Prohibited Pleadings and Motions.—The following
pleadings, motions, or petitions shall not be allowed in the
cases
covered by this Rule:
(a) Motion to dismiss the complaint except on the ground
of lack of jurisdiction;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file pleadings,
affidavits, or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third-party complaints; and
(l) Interventions.
SEC. 15. Availability of Forms; Assistance by Court
Personnel.—The Clerk of Court or other court personnel shall
provide
such assistance as may be requested by a plaintiff or a
defendant
regarding the availability of forms and other information
about the
coverage, requirements as well as procedure for small claims
cases.
SEC. 16. Appearance.—The parties shall appear at the
designated date of hearing personally or through a
representative
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authorized under a Special Power of Attorney (Form 5-SCC) to
enter into an amicable settlement, to submit to Judicial
Dispute
Resolution (JDR) and to enter into stipulations or admissions
of
facts and of documentary exhibits.
SEC. 17. Appearance of Attorneys Not Allowed.—No attorney
shall appear in behalf of or represent a party at the hearing,
unless
the attorney is the plaintiff or defendant.
If the court determines that a party cannot properly present
his/
her claim or defense and needs assistance, the court may, in
its
discretion, allow another individual who is not an attorney to
assist
that party upon the latter’s consent.
Explanatory Note: Except as permitted by this section, no
attorney shall appear in a small claims action except when the
latter
shall maintain or defend an action in any of the following
capacities:
(1) By or against himself or herself;
(2) By or against a partnership in which he or she is a
general partner and in which all the partners are
attorneys; or
(3) By or against a professional corporation of which he
or she is an officer or director and of which all other
officers and directors are attorneys.
Nothing in this section shall prevent an attorney from doing
any of the following:
(1) Providing advice to a party to a small claims action,
either before or after the commencement of the action;
or
(2) Submitting an affidavit as a witness for a party in
order to state facts of which he or she has personal
knowledge and about which he or she is competent
to do so.
If the court determines that a party does not speak or
understand
English or Filipino sufficiently to comprehend the proceedings
or
give testimony, to the questions of the court, if any, and
needs
assistance in so doing, the court may permit another
individual
(other than an attorney) to assist that party. If the court
interpreter
or other competent interpreter of the language or dialect
known to
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the party is not available to aid that party in a small claims
action,
at the first hearing of the case the court shall postpone the
hearing
one time only to allow the party the opportunity to obtain
another
individual (other than an attorney) to assist that party. Any
additional
continuances shall be at the sound discretion of the court.
SEC. 18. Non-appearance of Parties.—Failure of the plaintiff
to appear shall be cause for the dismissal of the claim without
prejudice. The defendant who appears shall be entitled to
judgment
on a permissive counterclaim.
Failure of the defendant to appear shall have the same effect
as failure to file a Response under Section 12 of this Rule. This
shall
not apply where one of two or more defendants who are sued
under
a common cause of action and have pleaded a common
defense
appears at the hearing.
Failure of both parties to appear shall cause the dismissal with
prejudice of both the claim and counterclaim.
SEC. 19. Postponement When Allowed.—A request for
postponement of a hearing may be granted only upon proof
of the
physical inability of the party to appear before the court on
the
scheduled date and time. A party may avail of only one (1)
postponement.
Explanatory Note: A party may submit an oral or written
request to postpone a hearing date for good cause, as follows:
(1) If the written request is in writing, it may be made
either by letter or on a form adopted or approved by
the Supreme Court;
(2) The request shall be filed before the hearing date
and accompanied by proof of physical inability, unless
the court determines that the requesting party has
good cause to file the request on the date of hearing
itself; and
(3) If the court finds that the interests of justice would
be served by postponing the hearing, the court shall
do so and shall notify all parties by mail on the same
day of the new hearing date, time and place.
This Section does not limit the inherent power of the court to
order postponements of hearings in strictly appropriate
circumstances.
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The postponement fee of One Hundred Pesos (or as provided
in
Rule 141, Revised Rules of Court, as amended on Legal Fees)
shall
be charged and collected before the filing of a request for
postponement and rescheduling of a hearing date.
SEC. 20. Duty of the Court.—At the beginning of the court
session, the judge shall read aloud a short statement
explaining the
nature, purpose and the rule of procedure of small claims
cases.
SEC. 21. Judicial Dispute Resolution.—At the hearing, the
judge shall conduct Judicial Dispute Resolution (JDR) through
mediation, conciliation, early neutral evaluation, or any other
mode
of JDR. Any settlement (Form 7-SCC) or resolution (Form 8-
SCC)
of the dispute shall be reduced into writing, signed by the
parties
and submitted to the court for approval (Form 12-SCC).
SEC. 22. Failure of JDR.—If JDR fails and the parties agree
in writing (Form 10-SCC) that the hearing of the case shall be
presided over by the judge who conducted the JDR, the
hearing
shall so proceed in an informal and expeditious manner and
terminated
within one (1) day.
Absent such agreement, (a) in case of a multi-sala court, the
case shall, on the same day, be transmitted (Form 11-SCC) to
the
Office of the Clerk of Court for immediate referral by the
Executive
Judge to the pairing judge for hearing and decision within five
(5)
working days from referral; and (b) in case of a single sala
court,
the pairing judge shall hear and decide the case in the court of
origin
within five (5) working days from referral by the JDR judge.
Explanatory Note: In hearings before the small claims court,
witnesses shall still be sworn in. The judge shall conduct the
hearing
in an informal manner so as to do substantial justice between
the
parties. The judge shall have the discretion to admit all
evidence
which may be of probative value although not in accordance
with
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formal rules of practice, procedure, pleading or evidence
provided
in the Rules of Court, except that privileged communications
shall
not be admissible. The object of such hearings shall be to
determine
the rights of the litigants on the merits and to dispense
expeditious
justice between the parties.
An interventionist role by judges in such hearings is effective
in eliciting evidence from litigants in person. It is seen by
unrepresented parties as a “helping hand” which they
appreciate,
provided that judges avoid the danger of appearing to be
partial. By
discussing the facts of the case, judges find what common
ground
does exist between the parties. This tends to narrow the
differences
between the parties and make the final judicial decision easier
– judge is duty-bound to give the legal basis for the findings.
whereas traditional open court trials, with the presence of
lawyers
and the use of cross-examination tend to polarize the parties,
increase
antagonism and heighten the differences.
In this regard, Lord Woolf, Great Britain’s case management
expert, has observed:
“The role of the judge in small claims is not only
that of an adjudicator. It is a key safeguard of the rights
of both parties. In most cases, the judge is effectively a
substitute for a legal representative. His duty is to ascertain
the main matters at issue, to elicit the evidence, to reach
a view on the facts of the matter and to give a decision.
In some cases he may encourage the parties to settle. In
doing so he should ensure that both parties have presented
the evidence and called the witnesses germane to their
case and that he has identified and considered any issue
of law which is pertinent to the case in hand. He must
also hold the ring and ensure that each party has a fair
chance to present his own case and to challenge that of his
opponent.”
The key judicial skills in conducting such hearings are to
maintain a balance between informality and fairness, to
ensure a
level playing field and to protect the weak and the scrupulous.
In
practice, this is achieved by preventing interruptions and
parties
talking over each other, and making it clear that both parties
will
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have plenty of time to say all that they wish before the end of
the
hearing.
SEC. 23. Decision.—After the hearing, the court shall render
its decision on the same day, based on the facts established
by the
evidence (Form 13-SCC). The decision shall immediately be
entered
by the Clerk of Court in the court docket for civil cases and a
copy
thereof forthwith served on the parties.
The decision shall be final and unappealable.
Explanatory Note: Despite the relative informality of the
procedure, judgments are based upon a strict application of
the
substantive law and an objective judicial analysis of the facts.
The
The prohibition against appeals assures immediate and swift
justice.
The right to appeal is not a natural right nor a part due
process.
It is merely a statutory privilege and a procedural remedy of
statutory
origin, a remedy that may be exercised only in the manner
and in
accordance with the provisions of the law authorizing such
exercise.
The applicable provisions of the law allowing appeals from
decisions
of the first level courts are Sections 36 and 38 of B.P. Blg. 129,
as
amended, also known as “The Judiciary Reorganization Act of
1980.”
The procedure on appeal is subject to the limitations and
restrictions
provided by this Act and any such rules as the Supreme Court
may
hereafter prescribe. Sec. 36 of B.P. Blg. 129 provides an
instance
wherein the Supreme Court may adopt special procedures,
including
cases where appeal may not be allowed, to achieve an
expeditious
and inexpensive determination of particular cases requiring
summary
disposition.
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___________________________________________________
SEC. 24. Execution.—If the decision is rendered in favor of _________
the plaintiff, execution shall issue upon motion (Form 9-SCC). 2. Plaintiff is suing defendant for:
SEC. 25. Applicability of the Rules of Civil Procedure.—The CAUSE OF ACTION
Rules of Civil Procedure shall apply suppletorily insofar as they _____ Collection of Sum of Money
are _____ Damages
not inconsistent with this Rule. _____ Civil aspect of Criminal Case
SEC. 26. Effectivity.—This Rule shall take effect on October _____ Enforcement of Barangay Agreement
1, 2008 for the pilot courts designated to apply the procedure Rule of Procedure for Small Claims Cases 13
for 3. Plaintiff’s cause of action arose from and is evidenced by:
small claims cases following its publication in two newspapers ACTIONABLE DOCUMENT/S AFFIDAVIT/S
of _____ Promissory Note/Undertaking How many: _____
general circulation. _____ Contract/Agreement
_____ Receipt
_____ Others
4. The principal obligation of defendant/s amounting to
P_____________________ became due and demandable on
12 A.M. No. 08-8-7-SC ______________.
FORM 1-SCC Interest at the rate of ______% per annum/per month
REPUBLIC OF THE PHILIPPINES accrued on the principal sum due from such date of default.
_______________________________ 5. Despite repeated demands by plaintiff, the latest of which
_______________________________ was on
_______________________________ _______________, defendant has failed to pay the obligation.
__________________________, 6. _____(a) This claim has been referred to the appropriate
Plaintiff, barangay
vs. Civil Case No. ________________ authorities but no settlement was reached between the
For: ______________________ parties. A Certificate to
__________________________, File Action was issued to the plaintiff, the original of which is
Defendant. attached hereto.
x- - - - - - - - - - - - - - - - - - - - - -x _____(b) The parties are not covered by the barangay
STATEMENT OF CLAIM mandatory
Plaintiff respectfully alleges: conciliation process under the Local Government Code of the
1. The personal circumstances of the parties are as follows: Philippines.
NAME OF PLAINTIFF/S SEX AGE CIVIL STATUS Prayer
______________________ ______ _____ _________ WHEREFORE, plaintiff respectfully prays for judgment to be
INDIVIDUAL___ CORPORATION___ PARTNERSHIP___ SOLE rendered
PROPRIETORSHIP ___ ordering defendant to pay plaintiff the amount of
NAME OF P________________________, with interest at the rate of
REPRESENTATIVE:________________________________________ ____% per annum/
_ per month, from ___________, until fully paid.
ADDRESS ZIP CODE ___________________________; _____20___.
___________________________________________________ PLAINTIFF
_________ PLACE WHERE FILED
NAME OF DEFENDANTS//S SEX AGE CIVIL STATUS
______________________ ______ _____ _________
INDIVIDUAL___ CORPORATION__ _PARTNERSHIP___ SOLE FORM 1-A-SCC
PROPRIETORSHIP ___ VERIFICATION AND CERTIFICATION OF
NAME OF REPRESENTATIVE: NON-FORUM SHOPPING
________________________________________ I, _________________________________, of legal age,
ADDRESS ZIP CODE ____________________ ______________________________,
and a resident

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of ____________________
__________________________________________________ , ____________________
after having been duly sworn to in accordance with law, GREETINGS:
hereby, depose and You are hereby required, within ten (10) days from receipt of
say: this
1. That I am the _________________ in the above-entitled Summons, to file with this Court and serve on plaintiff, your
case and verified Response
have caused this ______________________________ to be to the attached Statement of Claim. The form of the required
prepared; that I read and understood its contents which are Response is
true attached hereto.
and correct of my own personal knowledge and/or based on You are required to submit with your Response copies of
authentic records; documents as
2. That I have not commenced any action or proceeding well as affidavits of any witness to stand as your evidence in
involving this case. You
the same issue in the Supreme Court, the Court of Appeals or must present the original documents on the day of the
any hearing.
other tribunal or agency; that to the best of my knowledge, no A motion to dismiss is prohibited and shall not be entertained.
such Your failure to respond within the 10-day period will authorize
action or proceeding is pending in the Supreme Court, the the Court
Court of to render judgment based solely on the Statement of Claim.
Appeals or any other tribunal or agency, and that, if I should Witness my hand under the seal of this Court, this ____ day of
learn ______,
thereafter that a similar action or proceeding has been filed or 20____, at _____________________, Philippines.
is BRANCH CLERK OF COURT
pending before these courts or tribunal or agency, I undertake
to
report that fact to the Court within five (5) days therefrom. FORM 3-SCC
IN WITNESS WHEREOF, I have hereunto set my hand this REPUBLIC OF THE PHILIPPINES
____________ day of __________________, 20 __. _______________________________
_______________________ _______________________________
Affiant _______________________________
SUBSCRIBED AND SWORN to before me this _________ day of __________________________,
_____________, 20 ___ . Plaintiff,
NOTARY PUBLIC vs. Civil Case No. ______________
(citizenship) (civil status) For: _______________________
(Name) __________________________,
Defendant.
FORM 2-SCC x- - - - - - - - - - - - - - - - - - - - - -x
REPUBLIC OF THE PHILIPPINES RESPONSE
_______________________________ Defendant/s respectfully allege/s:
_______________________________ 1. Defendant admits all the allegations in paragraph/s
_______________________________ ________ of the
__________________________, Statement of Claim.
Plaintiff, 2. Defendant specifically denies all the allegations in
vs. Civil Case No. ________________ paragraphs
For: ________________________ ________ of the Statement of Claim.
__________________________, 3. Defendant opposes the grant of the prayer in the
Defendant. Statement of Claim
x- - - - - - - - - - - - - - - - - - - - - -x for the following reasons, as supported by the attached
SUMMONS documents and affidavits:
TO: ____________________ (enumerate defenses)

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4. As the Statement of Claim is baseless, defendant is entitled representative to appear in his behalf and participate in all the
to the proceedings as
following counterclaims: if the party represented were present. For this purpose, the
_____ Actual Damages of P______________________ required authority
_____ Moral Damages of P______________________ should be evidenced by accomplishing the attached Form 5-
_____ Exemplary Damages of P_____________________ SCC (Special Power
_____ Costs of suit of Attorney).
Prayer WITNESS the HON. _________________________, Presiding
WHEREFORE, defendant respectfully prays for judgment to be Judge
rendered of this Court, this ____ day of _____________, 20___, at
dismissing the Statement of Claim, and granting the __________________________, Philippines.
counterclaims, ordering BRANCH CLERK OF COURT
plaintiff to pay defendant the following sums:
_____ Actual Damages of P______________________
_____ Moral Damages of P______________________ FORM 5-SCC
_____ Exemplary Damages of P_____________________ SPECIAL POWER OF ATTORNEY
_____ Costs of suit KNOW ALL MEN BY THESE PRESENTS:
DEFENDANT I, _______________________, of legal age, single/married,
(VERIFICATION AND CERTIFICATION with
OF NON- FORUM SHOPPING, if with permissive counterclaim) residence at ___________________________ do hereby
appoint, name and
FORM 4-SCC constitute ________________________________, likewise of
REPUBLIC OF THE PHILIPPINES legal age, singe/
_______________________________ married, with residence at
_______________________________ ________________________________ as my true
_______________________________ and legal representative to act for and in my name and stead
__________________________, and to represent
Plaintiff, me during the hearing of Civil Case No. __________, to enter
vs. Civil Case No. ______________ into amicable
For: _______________________ settlement, to submit to alternative modes of dispute
__________________________, resolution and to make
Defendant. admissions or stipulations of facts and documents without
x- - - - - - - - - - - - - - - - - - - - - -x further consultation
NOTICE OF HEARING from me.
Once issues are joined upon the filing of the defendant’s I hereby grant my representative full power and authority to
Response, this execute and
case will be called for Judicial Dispute Resolution (JDR) and perform every act necessary to render effective the power to
hearing before compromise as
the Presiding Judge of this Court on __________________ at though I myself have so performed it and hereby approving all
___________. that he may do
Failure of the plaintiff to appear at the JDR and hearing shall by virtue of these presents.
cause the In witness whereof, I hereunto set my hand this ______ day of
dismissal of the Statement of Claim, and the defendant who ____________________, 20_______, at ________________.
appears shall be _____________________________
entitled to a judgment on his counterclaim. On the other Principal
hand, failure of the _____________________
defendant to appear at the JDR and hearing shall cause the Agent
Court to render Witnesses: ________________________
judgment based solely on the Statement of Claim. ___________________________
A party may not be represented by a lawyer, but may (ACKNOWLEDGMENT)
authorize any other

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REPUBLIC OF THE PHILIPPINES

FORM 6-SCC _______________________________
REPUBLIC OF THE PHILIPPINES _______________________________
_____________________________ _______________________________
_____________________________ __________________________,
_____________________________ Plaintiff,
__________________________, vs. Civil Case No. ______________
Plaintiff, For: _______________________
vs. Civil Case No. ______________ __________________________,
For: _______________________ Defendant.
__________________________, x- - - - - - - - - - - - - - - - - - - - - -x
Defendant. MOTION FOR APPROVAL OF COMPROMISE AGREEMENT
x- - - - - - - - - - - - - - - - - - - - - -x The parties respectfully allege that:
MOTION TO PLEAD AS INDIGENT 1. Plaintiff filed this claim against defendant for:
_____________________, unto this Honorable Court, _____________ collection of sum of money
respectfully alleges _____________ damages
that: _____________ civil aspect of criminal case
1. I am a resident of ___________________; _____________ enforcement of barangay agreement
2. My gross income and that of my immediate family does not _____________ recovery of personal property
exceed 2. The parties have come to an amicable settlement and have
__________________ ; executed a
3. I do not own real property with an assessed value of more compromise agreement with the following terms and
than (amount conditions.
as provided in the Revised Rules of Court, as amended) as (copy terms and condition here)
shown by the attached 3. The parties agree that the approval of this agreement by
Certification issued by the Office of the City/Municipal the Court
Assessor and the City/ shall put an end to this litigation, except for purposes of
Municipal Treasurer’s Office; execution in case of
4. Due to financial constraint, I cannot afford to pay for the default.
expenses of WHEREFORE, premises considered, the parties respectfully
a court litigation as I do not have enough funds for food, pray that
shelter and other the court approve this agreement and render judgment on
basic necessities; the basis thereof.
5. Should the court render judgment in my favor, the amount _______________________________________, 20_______.
of the docket _______________________ ________________________
and other legal fees which I was exempted from paying shall Plaintiff Defendant
be a lien on the
judgment, unless the court orders otherwise.
WHEREFORE, premises considered, it is respectfully prayed FORM 8-SCC
that I be (Motion for voluntary dismissal of the claim and counterclaim)
exempted from the payment of docket and other legal fees as REPUBLIC OF THE PHILIPPINES
indigent pursuant _______________________________
to Section 21, Rule 3 in relation to Section 18, Rule 141 of the _______________________________
Revised Rules _______________________________
of Court. __________________________,
Other reliefs just and equitable under the premises are Plaintiff,
likewise prayed vs. Civil Case No. ______________
for. For: _______________________
PLAINTIFF __________________________,
Defendant.
FORM 7-SCC x- - - - - - - - - - - - - - - - - - - - - -x

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JOINT MOTION WHEREFORE, premises considered, it is respectfully prayed

Plaintiff and defendant, unto this Honorable Court, that a
respectfully allege writ of execution be issued to implement the judgment of the
that: Court dated
1. Plaintiff and defendant have mutually and voluntarily __________________.
settled their _______________________________________, 20_______.
claim and counterclaim to the entire satisfaction of each _____________________________
other; and Plaintiff/Defendant
2. The parties no longer have a cause of action against each NOTICE OF HEARING
other. NAME OF DEFENDANT
WHEREFORE, premises considered, plaintiff and defendant (IF FILED BY PLAINTIFF)
respectfully pray that the plaintiff’s statement of claim and NAME OF PLAINTIFF
defendant’s (IF FILED BY DEFENDANT)
counterclaim incorporated in his response be dismissed. NAME OF CLERK OF COURT.
Other reliefs just and equitable under the premises are Please be notified that the undersigned will submit the
likewise prayed foregoing motion
for. for the consideration and approval of the Court on
_______________________________________, 20_______. _________________ at
_____________________________ _______________________________________, 20_______.
____________________________ ________________________
Plaintiff Defendant Plaintiff/Defendant
To the Branch Clerk of Court:
Please submit the foregoing motion for the consideration of
the Court FORM 10-SCC
without hearing and further argument from the parties. REPUBLIC OF THE PHILIPPINES
__________________________ _______________________________
_________________________ _______________________________
Plaintiff Defendant _______________________________
__________________________,
Plaintiff,
FORM 9-SCC vs. Civil Case No. ______________
REPUBLIC OF THE PHILIPPINES For: _______________________
_______________________________ __________________________,
_______________________________ Defendant.
_______________________________ x- - - - - - - - - - - - - - - - - - - - - -x
__________________________, AGREEMENT
Plaintiff, Having failed to resolve the matter through Judicial Dispute
vs. Civil Case No. ______________ Resolution,
For: _______________________ plaintiff and defendant hereby agree that Judge
__________________________, _________________ shall
Defendant. continue with the hearing on the instant matter and hereby
x- - - - - - - - - - - - - - - - - - - - - -x waive their right to
MOTION FOR EXECUTION have a different judge hear the case.
Plaintiff/Defendant, unto this Honorable Court, respectfully _______________________________________, 20_______.
alleges that: ___________________________ _______________________
1. On _______________, a judgment was rendered by the Plaintiff Defendant
Court, the
dispositive portion of which reads:
2. The judgment is final and unappealable. FORM 11-SCC
3. The defendant/plaintiff has not complied with the (Referral to pairing judge)
judgment. REPUBLIC OF THE PHILIPPINES

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_______________________________ follows:
_______________________________ It appearing that the agreement is not contrary to law,
_______________________________ morals, good
__________________________, customs, public moral and public policy, and pursuant to
Plaintiff, Articles 2028 and
vs. Civil Case No. ______________ 2037 of the Civil Code of the Philippines, the same is hereby
For: _______________________ APPROVED and
__________________________, ADOPTED as the Decision of this court.
Defendant. The parties are hereby ordered to faithfully comply with the
x- - - - - - - - - - - - - - - - - - - - - -x terms and
ORDER conditions of the agreement.
In view of the failure of judicial dispute resolution and there _______________________________________, 20_______.
being no ________________________
agreement from the parties to let the undersigned continue JUDGE
hearing the instant
case, the record of this case is transmitted to the Office of the
Clerk of Court FORM 13 – SCC
for immediate referral by the Executive Judge to the Pairing REPUBLIC OF THE PHILIPPINES
Judge for hearing _______________________________
and decision pursuant to Section 21 of the Rule of Procedure _______________________________
for Small Claims _______________________________
Cases. __________________________,
SO ORDERED. Plaintiff,
_______________________________________, 20_______. vs. Civil Case No. ______________
______________________________ For: _______________________
JUDGE __________________________,
Defendant.
x- - - - - - - - - - - - - - - - - - - - - -x
FORM 12-SCC DECISION
REPUBLIC OF THE PHILIPPINES This is a small claims action for (state which of the claims or
_______________________________ demands
_______________________________ below is the subject of the action filed):
_______________________________ [For money owed under any of the following:
__________________________, 1. Contract of lease;
Plaintiff, 2. Contract of loan;
vs. Civil Case No. ______________ 3. Contract of services;
For: _______________________ 4. Contract of sale; or
__________________________, 5. Contract of mortgage;
Defendant. For damages arising from:
x- - - - - - - - - - - - - - - - - - - - - -x 1. Fault or negligence;
DECISION BASED ON COMPROMISE AGREEMENT 2. Quasi-contract; or
Plaintiff filed this case against defendant for 3. Contract;
_____________________ The enforcement of a barangay amicable settlement or an
in the amount of ________________________. arbitration award involving a money claim covered by this
Defendant denied plaintiff’s claim on the ground of Rule
_________________ pursuant to Section 417 of Republic Act 7160, otherwise
and set up a counterclaim for _______________________. known as
The parties, however, reached an amicable settlement and The Local Government Code of 1991].
submitted to Plaintiff alleges that (state material allegations and prayer in
the court a compromise agreement, the terms and conditions the Statement
of which are as of Claim).

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Defendant alleges that (state reasons for denial of the claim heard by the Presiding Judge
and other who conducted the JDR)
material allegations in the Response including counterclaims, Copy furnished:
if any). All parties
On (date), both parties appeared during the hearing Office of the Clerk of Court of ____________
conducted by (state
name of Judge who conducted the JDR. State whether parties
appeared RATIONALE
personally or through a specially authorized representative). of the
Considering the failure of the parties to arrive at any Proposed Rule of Procedure for Small Claims Cases
settlement of the A. Introduction
dispute, this court proceeded with the hearing of the case The most significant recurring theme of every program for
which was terminated judicial reform of the Supreme Court is the pressing need for a
on __________________. more
The issue to be resolved by this court is whether accessible, much swifter and less expensive delivery of justice.
___________________________________________________ Undeniably, the slow grind of the wheels of justice is the
__________. result of
Plaintiff’s evidence consists of: (state documents of plaintiff, a variety of factors, foremost of which is the perennial
affidavits congestion
submitted, if any, and statements made by plaintiff and of court dockets which has transformed court litigation into a
witnesses under oath protracted battle, that invariably exhausts the time, effort and
during the hearing). resources of party-litigants, especially the poor. Many
Defendant’s evidence consists of: (state documents of strategies
defendant, have been devised to unclog heavy court dockets, and one
affidavits submitted, if any, and statements made by such
defendant and witnesses approach is the use of mandatory Pre-trial and Alternative
under oath during the hearing). Dispute
This court finds that the claim of plaintiff (or defendant in a Resolution mechanisms such as mediation, arbitration and
counterclaim) conciliation. Another scheme that has been widely used in
is (state whether meritorious or devoid of merit) under many
Article/Section (state foreign legal systems but which has yet to be tried in the
the applicable provisions of law) or pursuant to established Philippines
jurisprudence (cite is the small claims case processing method used by small
applicable jurisprudence). In this case, this court found that claims
(state first the courts, often referred to as the “People’s Court,” as it comes
factual findings established by the evidence and then the legal most
conclusions). directly into contact with the citizenry of a jurisdiction.
Wherefore, the (claim/counterclaim) is (granted/denied). This Small claims courts are courts of limited jurisdiction that hear
court civil cases between private litigants. Courts authorized to try
orders ____________________ to pay to small
_______________________ the claims may also have other judicial functions, and the name
amount of (state the monetary award or damages) with by
interest of (if applicable which such a court is known varies by jurisdiction: it may be
under Civil Code and/or settled jurisprudence) until fully paid. known
SO ORDERED. by such names as county court or magistrate’s court. Small
(Date of decision.) claims
(Signature) courts can be found in Australia, Canada, Ireland, Israel, New
Presiding Judge Zealand, South Africa, Hong Kong, Singapore, the United
(or Pairing Judge in the absence Kingdom
of written agreement of the and the United States.
parties that the case shall be 29

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B. The History and the Reforms of Small Claims Court
1. In the United States1
For almost a century now, small claims courts have provided
a form of alternative dispute resolution (ADR) in the United
States.
Originating around 1912 or 1913, these courts were
established
primarily as a means for small businesses to collect money
from
borrowers through a process that was faster, less formal, and
less
expensive than traditional civil litigation.
Following the lead of the establishment of the initial small
claims court in Kansas, USA in 1912 or 1913, every state in the
United States has created some form of a small claims court
system.
Although the financial claims limits, methods of procedure,
and
overall structure vary from state to state, the concept is
essentially
the same, i.e., that relatively minor disputes, involving dollar
amounts
that are insufficient to warrant processing the case through
the
normal court procedure, justify expeditious and simplified
handling.
The consumer justice reform movements of the 1960s and
1970s brought renewed research and interest in the small
claims
courts. This movement emphasized the need for reform of
small
claims courts to facilitate the adjudication of consumer
grievances.
Although “consumer justice reformers” were concerned that
businesses and corporations were more likely to use attorneys
in
small claims courts thereby placing inexperienced individual
defendants at a disadvantage, studies showed that
defendants with
an attorney were more likely to win against plaintiffs than
unrepresented defendants, whereas plaintiffs without
attorneys did
just as well as represented plaintiffs against unrepresented
defendants.
The result was an appraisal of the need to bar attorneys and
collection agencies from the small claims courts.
Small claims courts in the United States are often considered
courts of equity and are not necessarily bound by the letter of
the
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law. These courts have flexibility to use more holistic
approaches
to problem solving and dispute resolution than what is typical.
Most judges act according to what makes sense to them, even
if this
means setting aside legal formalities. Moreover, traditional
rules of evidence and court processes do not apply. The rules of
small
claims courts emphasize conciliation and pragmatism over
winning, and rules of evidence and civil procedure have been
simplified to allow maximum access to the courts by individuals
unable to afford an attorney.
2. Small Claims Courts in Canada2
All provinces in Canada have procedures for small claims. In
general, there are two different models. In most provinces, as in
British Columbia, Alberta, and new Brunswick, small claims courts
operate independently of the superior courts. In other jurisdictions,
the small claims courts are either branches or divisions of the
superior courts
The small claims courts are meant to be an easier and less
expensive way to resolve disputes than in the superior courts.
Small
Claims Court procedure is regulated both by provincial
legislation and rules in most provinces. It is simplified and less
costly with no strict pleading requirements and formal discovery
process.
3. Small Claims Courts in England and Wales3
From early times, England had a tradition of local court where
ordinary men could pursue justice in the form of civil claims
without the aid of lawyers. Some were set up by local statutes,
others by custom. These local courts could not keep pace with the
changes in society brought about by the Industrial Revolution. By
the 1830s, the decade of great liberal reform, there was a great
public awakening to the urgent need for constitutional reform in
the administration of justice. The result was the County Courts Act
ofn 1846, described in its preamble as an “Act For The More Easy
Recovery of Small Debts and Demands in England.” It was initially a
poor man’s court. Andrew Amos, the first judge at Marylebone
County, described regular litigants as being “a great
proportion of the poorer classes, gaining their livelihoods by
bricklaying, gardening or other out of door occupations and who
subsist upon credit in the winter months, and complaints against
whom are usually issued in the summer months.” The county
court’s jurisdiction for claims brought in contract and tort gradually
increased from £50 in 1888 to £5,000 in 1984.
The purpose and structure of the county court system has in
many ways remained the same since 1846. The aim is still to make
civil justice available locally – there are now 223 county courts in
England and Wales. They have continued to be responsive to the
needs of smaller cases which, although small in terms of their
financial value, are important to the litigants involved. However,
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recent decades have seen two major changes in relation to small

claims – first, the introduction of a dedicated small claims
procedure
in 1973 and secondly, the introduction of the Civil Procedure
Rules reforms of 1998 with emphasis on proportionality.
Since January 1996, when the small claims limit in England
and Wales was trebled overnight to £3,000, district judges have
been expected to play the role of “interventionist” and assist
litigants in presenting their own cases personally at small claims
hearings.
Like adjudicators in other parts of the world, district judges in
these countries have been encouraged to intervene to an
increasing extent at small claims hearings. Such interventionism is,
indeed, vital and although there may be wide variations between
jurisdictions in the methods that are adopted to deal with small
claims, the idea of the adjudicator freely entering the arena of the
dispute to assist unrepresented litigants is fundamental in almost
all matters about small claims.

4. Small Claims Tribunals in Singapore5

The Small Claims Tribunals in Singapore have been in
operation since 1 February 1985. The Tribunals have fulfilled an
integral role in providing the community with accessible justice for
civil claims involving small amounts. Various features and programs
have been put in place to enhance access to justice for the
community, by removing barriers such as cost, delay, distance, time
and inconvenience. The Tribunals, constituted as part of the
Subordinate
Courts of Singapore, were established for the primary purpose
of providing a quick and inexpensive avenue for the resolution of
small claims arising from disputes between consumers and
suppliers. There was a need for a less expensive and less formal
forum to deal with such small claims. Hence, in 1985, the Small
Claims Tribunals Act was passed, which authorized the setting up of
one or more Tribunals to help consumers who have claims of up to
$2,000 relating to disputes arising from contracts for the sale of
goods or the provision of services.

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Rule 01 NO, Rule 1 is the general provision for the entire Rules of
Court. You look at the title, “These rules shall be known as the
GENERAL PROVISIONS ‘Rules of Court.’” This is the common denominator from the first to
the last Rule. That’s why it says there ‘special proceedings,’ ‘civil
cases’ and ‘criminal cases.’
SECTION 1. Title of the Rules. These Rules shall be known and
xxxxx
cited as the Rules of Court.

(a) A civil action is one by which a party sues another for the
The Rules of Court do not have retroactive effect. They can,
enforcement or protection of a right, or the prevention or redress
however, be made applicable to cases pending at the time of their
of a wrong.
passage and therefore are retroactive in that sense.
A civil action may either be ordinary or special. Both are
governed by the rules for ordinary civil actions, subject to the
The rule-making power of the SC has the following limitations:
specific rules prescribed for a special civil action.
1. Simplified and inexpensive procedure for the speedy
xxxxx
disposition of cases;
2. Uniform for all courts of the same grade; and
3. Shall not diminish, increase or modify substantive rights
What is an action?
(Art. VIII Sec. 5[5], 1987 Constitution.
An action is the legal and formal demand of one’s right from
another person made and insisted upon in a court of justice.
In the interest of just and expeditious proceedings, the
(Bouvier’s Law Dictionary)
Supreme Court may suspend the application of the Rules of Court
One party prosecutes another for the enforcement or
and except a case from its operation because the Rules were
protection of a right or the prevention or redress of a wrong.
precisely adopted with the primary objective of enhancing fair
trial and expeditious justice.
What is a claim?
It is a right possessed by one against another.
SEC. 2. In what courts applicable. These Rules shall apply in
The moment said claim is filed before a court, the claim is
all the courts, except as otherwise provided by the Supreme
converted into an action or suit.
Court.

Action and suit

Section 2, states in what court or courts the rules apply as it
In this jurisdiction, it is settled that the terms “action” and
says “these rules shall apply in all the courts except as otherwise
“suit” are synonymous. (Lopez v. Compania de Seguros, 16 SCRA
provided by the Supreme Court.” Meaning, applicable to all courts
855).
except when the SC say otherwise.

Civil Action and Criminal Action

For example: The SUMMARY RULES on procedure which is
applicable to some cases in the MTC.
A CIVIL ACTION is one by which a party sues another for the
enforcement or protection of a right, or the prevention or redress
Another example of when the SC says otherwise is Section 4,
of a wrong. (Sec. 3[a] Rule 1). So the purpose of a civil suit is to
that the rules shall not apply to election cases, land registration,
enforce or protect your right or to prevent or redress a wrong.
cadastral, naturalization, insolvency proceedings and other cases
not herein provided for except by analogy. This is actually not a
A criminal action “is one by which the State prosecutes a
new provision. It used to be in Rule 143, now it is in Rule 1.
person for an act or omission punishable by law” (Sec. 3*b+ Rule 1)
It has been ruled that …”proceedings are to be regarded as
Sec. 3. Cases governed. These Rules shall govern the
criminal when the purpose is primarily punishment, and civil when
procedure to be observed in actions, civil or criminal, and special
the purpose is primarily compensatory…” (People vs. Godoy @$#
proceedings.
SCRA 64).
xxxxxx

How come it mentions criminal cases and defines criminal

CLASSIFICATION OF CIVIL ACTIONS
actions when it is supposed to be 1997 Rules on Civil Procedure?

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I. As to NATURE (Section 3 [a]) clear. Both are governed by the rules on ordinary civil actions
a.) Ordinary Civil Actions subject to the specific rules.
b.) Special Civil Actions Therefore, in case of conflict between the specific rule
governing a particular type of civil action and the ordinary, then
II. As to CAUSE or FOUNDATION: you follow the specific provision. But if the rules on special civil
a.) Real Actions actions are silent, apply the ordinary rules.
b.) Personal Actions
c.) Mixed Actions Give an example of a case where in the absence of a special
provision in the rules on special civil actions the court had to apply
III. As to PLACE OF FILING the rules on ordinary civil actions by analogy. The case of
a.) Local Actions
b.) Transitory Actions AMBERTI vs. COURT OF APPEALS195 SCRA 659 [1991]

IV. As to OBJECT FACTS: This case involved a petition for certiorari (special civil
a.) Action In Personam action under Rule 65) and then before the respondent could
b.) Action In Rem answer the petition, he withdrew the petition. Later on he changed
c.) Action Quasi In Rem his mind and re-filed the petition. The question that was asked by
the SC is when you file a special civil action for certiorari and then
before the other party could answer you withdraw it, is the
I. CLASSIFICATION AS TO NATURE withdrawal with or without prejudice? Can you re-file it?
There is no rule in Rule 65 answering that question so the SC
ORDINARY CIVIL ACTIONS and SPECIAL CIVIL ACTIONS had to resort to the ordinary rules by analogy.

HELD: Certiorari is similar to appeal although it is not really an

The special civil actions are governed by Rules 62 to 71. Any appeal. And the SC looked at the law on appeal. What happens
action not among those mentioned is automatically ordinary. when you perfect your appeal and then later on you withdraw your
appeal? What will happen to the order or judgment? Rule 50 says
What are the special civil actions? that if you withdraw the appeal, the judgment appealed from will
now become final and executory. Therefore, since it is now final
Rules 62 to 71: and executory, you cannot change it anymore.
Interpleader, “Applying the foregoing rules in a supplementary manner (or
Declaratory Relief, by analogy), upon the withdrawal of a petition in a special civil
Certiorari, Prohibition, Mandamus, action before the answer or comment thereto has been filed, the
Quo Warranto, case shall stand as though no appeal has been taken, so that the
Expropriation, judgment or order of the lower court being questioned becomes
Foreclosure of Mortgage, immediately final and executory. Thus, a resolution granting the
Partition, withdrawal of such a petition is with prejudice and petitioner is
Forcible Entry, Unlawful Detainer and precluded from bringing a second action based on the same subject
Contempt. matter.”

There is a new one – Review of Final Decisions or Resolutions

of the COMELEC and COA under Rule 64, but actually it says there,
it is governed by Rule 65 which governs Certiorari.
Q: What is so important in distinguishing a special civil action
from an ordinary civil action?
A: What makes an action special is simply because of the fact
that there are some specific rules prescribed for them which are
not found in other rules. But to say that the rules on ordinary civil
actions do not apply to special civil actions is false. The law is very
Now, there are other classifications of civil actions which are
not expressly stated in Section 3. The only one stated there is
ordinary and special.
CLASSIFICATION AS TO CAUSE OR FOUNDATION:
REAL, PERSONAL or MIXED ACTIONS
Real Action
A REAL ACTION is briefly described as an action where the
issue or the subject involved is title to, ownership, possession of or

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interest over a real property like accion publiciana, forcible entry,
unlawful detainer, foreclosure of mortgage or real property,
partition of real property. (Sec. 1, R 4) (c.f. Section 19, BP 129 –
controversy relates to real property)
It is founded on privity of real estate and filed in the court of
the place where the property or any part thereof is situated.
Personal action
All other actions or, when the issue is not one of those –
meaning, it is founded on privity of contract, or on quasi-delict,
such as actions for a sum of money, or damages arising from
breach of a contract, or for the enforcement or resolution of a
contract, or for recovery of personal property, these are the
PERSONAL ACTIONS. (Casilan vs. Tomassi, 90 Phil. 765; Cachero vs.
Manila Yellow Taxicab, 101 Phil. 523; Bautista vs. Piguing, L-10006,
Oct. 31, 1957)
It is filed in the court where the plaintiff or any of the
defendants resides, at the option of the plainitff.
Mixed Action
Some textwriters give a third classification: the MIXED
ACTIONS where there is a mixture of real and personal actions.
Mixed actions are such as pertain in some degree to both real and
personal and, therefore, are properly reducible to neither of them,
being brought for the specific recovery of land and for damages
sustained in respect of such land. (Dela Cruz vs. Seminary of
Manila, 18 P{hil. 330)
Like an action for recovery of a piece of land with damages it
is a mixed action. However, it is more of real rather than personal.
If the damage is only incidental, then it is more of a real action
rather than a personal action like the case of TACAY.
In a real action realty or an interest therein is the subject
matter of the action.
However, not every action involving a real property is a real
action because the realty may only be incidental to the subject
matter of the suit. To be a “real” action, it is not enough that the
action must deal with real property. It is important that the matter
in litigation must also involve any of the following issues: title to,
ownership, possession, partition, foreclosure of mortgage or any
interest in real property.
Examples:
An action for damages to real property, while involving a real
property, does not involve any of the issues mentioned.
An action to recover possession of real property plus damages
is a real action because possession of the real property is involved.
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The aspect of damages is merely an incidental part of the main
action, i.e., recovery of possession of real property. However, an
action to recover possession of a personal property is a personal
action.
Where the allegations as well as of the complaint do not claim
ownership of the lots in question or ask for possession of the same
but instead seeks for the execution of a deed of sale by the
defendants in favor of the plaintiff, the action is a personal action.
(Adamos v. J. M. Tuazon & Co., Inc. 25 SCRA 529)
An action for specific performance is a personal action as long
as it does not involve a claim of or recovery of ownership of real
property. (Siosoco v. CA, 303 SCRA 186 citing La Tondena Distillers
v. Ponferrada, 264 SCRA 540)
However, where a complaint is denominated as one of
specific performance but nonetheless prays for the issuance of a
deed of sale for a parcel of land for the plaintiff to acquire
ownership of the land, its primary objective and nature is one to
recover the parcel of land itself and thus, is deemed a real action.
(Gochan v. Gochan, 372 SCRA 356)
If the action is denominated as one for specific performance,
but the plaintiff actually seeks for the issuance of a deed of
assignment in his favor of certain shares of stocks to regain
ownership and possession of said shares, the action is not one for
specific performance but a personal action for the recovery or
property. The docket fee therefore, should be computed based on
the value of the property and not based on the docket fee for
specific performance (National Steel Corporation vs. CA 302 SCRA
522).
Where it is alleged in the complaint that the defendant
breached the contract so that the plaintiff prays that the contract
be rescinded and that the defendant be ordered to return
possession of the hacienda to the plaintiff, the ultimate purpose or
end of the action is to recover possession of real property and not a
mere breach of contract (De Jesus vs. Coloso 1 SCRA 272)
Where the action to annul or rescind a sale of real property
has as its fundamental and prime objective the recovery of real
property, the action is real (Emergency Loan Pawnshop Inc. vs. CA
353 SCRA 89).
Where an award of a house and lot to the plaintiff was
unilaterally cancelled, an action that seeks to annul the cancellation
of the award over the said house and lot is a personal action. The
action does not involve title to ownership or possession of real
property. The nature of the action is one to compel the recognition
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of the validity of the previous award by seeking a declaration that
the cancellation is null and void. (Hernandez v. DBP, 71 SCRA 290)
An action to foreclose a real estate mortgage is a real action,
but an action to compel the mortgagee to accept payment of the
mortgage debt and to release the mortgage is a personal action.
(Hernandez v. Rural Bank of Lucena, Inc. 81 SCRA 75)
An action to annul a contract of loan and its accessory real
estate mortgage is a personal action. In a personal action, the
plaintiff seeks the recovery of personal property, the enforcement
of a contract or the recovery of damages. In contrast, in a real
action, the plaintiff seeks the recovery of real property, or, as
indicated in Section 2(a), Rule 4 of the then Rules of Court, a real
action is an action affecting title to real property or for the recovery
of possession, or for partition or condemnation of, or foreclosure
of mortgage on, real property (Chua vs. Total Office Products and
Services [Topros], Inc.,471 SCRA 500).
Although the main relief sought in the action is the delivery of
the certificate of title, said relief, in turn depends upon who,
between the parties, has a better right to the lot in question. It is
not possible for the court to decide the main relief without passing
upon the claim of the parties with respect to the title to and
possession of the lot in question. The action is a real action
(Espineli vs. Santiago 107 Phil 830).
Where the sale is fictitious, with absolutely no consideration,
it should be regarded as a non-existent contract. There being no
contract between the parties, there is nothing in truth to annul by
action. The action, therefore, cannot be an action for annulment
but one for recovery of a fishpond, a real action (Pascual vs.
PASCUAL 73 Phil. 561).
Significance of the distinction
The distinction between a real action and a personal action is
important for the purpose of determining the venue of the action.
Questions involving the propriety or impropriety of a particular
venue are resolved by initially determining the nature of the action,
i.e., if the action is personal or real.
A real action is “local”, i.e., its venue depends upon the
location of the property involved in the location. “Actions affecting
title to or possession of real property, or interest therein, shall be
commenced and tried in the proper court which has jurisdiction
over the area wherein the real property involved, or apportion
thereof is situated.” (Sec. 1 Rule 4)
A personal action is ‘transitory,’i.e., its venue depends upon
the residence of the plaintiff or the defendant at the option of the
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plaintiff. A personal action “may be commenced and tried where
the plaintiff or any of the principal plaintiffs resides or where the
defendant or any of the principal defendants resides, or in the case
of a non-resident defendant, where he may be found, at the
election of the plaintiff.” (Sec. 2 Rule 4).
Hence, if the question involves the venue of an action, the
analysis will necessarily involve the following steps:
(a) A determination whether the action is real or personal
(b) An application of the rules on venue under Rules 4.
Thus, an action for a sum of money, instituted by a resident of
Manila against a resident of Quezon City, shall be filed either in
Manila or Quezon City at the election of the plaintiff because the
action is personal.
An action to annul a sale of a land located in Baguio City
where recovery of ownership is essentially the material issue in the
case, must be filed in Baguio City. The action is a real action and
must be filed in the place where the property is situated regardless
of the residence of the parties (Emergency Loan Pawnshop Inc. vs.
CA 353 SCRA 89).
CLASSIFICATION AS TO THE PLACE OF FILING:
LOCAL ACTIONS and TRANSITORY ACTIONS
A LOCAL ACTION is an action which can only be instituted in a
particular place.
Good examples of local actions are real actions. Real actions
are also automatically local actions. They can only be instituted in
the place where the property is situated. This is already provided
by law (e.g. accion publiciana, forcible entry, unlawful detainer –
can only be filed where the land is situated.)
TRANSITORY ACTIONS are those which follow the party
wherever he may reside. (1 Am. Jur. 430) Personal actions are
transitory – its filing is based on where the plaintiff or where the
defendant resides at the option or election of the plaintiff. It is
based on the residence of the parties.
CLASSIFICATION AS TO OBJECT OR PURPOSE
ACTIONS IN PERSONAM, IN REM and QUASI IN REM
ACTIONS IN PERSONAM vs. ACTIONS IN REM
Definition
In personam action
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“If the technical object of the suit is to establish a claim
generally against some particular persons, with a judgment
which, in theory, at least, binds his body or to bar some individual
claim or objection, so that only certain persons are entitled to be
heard, the action is IN PERSONAM.” (Grey Alba vs. Dela Cruz, 17
Phil. 49; Sandejas vs. Robles, 81 Phil. 421)
An example is an action for specific performance; action for
breach of contract
In rem action
But, “if the object of the suit is to bar indifferently all who
might be minded to make an objection of any sort against the
rights sought to be established, and if anyone in the world has a
right to be heard on the strength of alleging facts which, if true,
show an inconsistent interest, the action is IN REM.” (Grey Alba vs.
Dela Cruz, 17 Phil. 49; Sandejas vs. Robles, 81 Phil. 421)
An example is a probate proceeding, cadastral proceeding.
The purpose of a proceeding in personam is to impose
through the judgment of a court, some responsibility or liability
directly upon the person of the defendant (Domagas vs. Jensen
448 SCRA 663)
Examples:
a.) An action for sum of money;
b.) An action for damages.
In an action in personam, no other than the defendant is
sought to be held liable, not the whole world.
To simplify the definition:
ACTION IN PERSONAM is one where the purpose is to bind
the parties or where any judgment that the court will render in
that case binds only the parties to the action and their privies or
their successors-in-interest.
ACTION IN REM is one where the purpose is to bind any and
everyone or where the judgment which the court will render in the
case binds not only the parties to the case but the whole world,
then the action is in rem.
To follow the language of the SC in the case of:
CHING vs. COURT OF APPEALS
181 SCRA 9
HELD: “Actions in personam and actions in rem differ in that
the former are directed against specific persons and seek personal
judgments, while the latter are directed against the thing or
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property or status of a person and seek judgments with respect
thereto as against the whole world.”
A more recent case explains the distinction between an action
in personam and action in rem, as follows:
“The rule is that: (1) a judgment in rem is binding upon the
whole world, such as a judgment in land registration case or
probate of a will; and (2) a judgment in personam is binding upon
the parties and their successors–in–interest but not upon
strangers. A judgment directing a party to deliver possession of a
property to another is in personam; it is binding only against the
parties and their successors-in-interest by title subsequent to the
commencement of the action. An action for declaration of nullity of
title and recovery of ownership of real property, or reconveyance,
is not an rem action but it is an action in personam, for it binds a
particular individual only although it concerns the right to a
tangible thing. Any judgment therein is binding only upon the
parties properly impleaded”.
Xxxx
“The settled rule is that the aim and object of an action
determine its character. Whether a proceeding is in rem, or in
personam, or quasi in rem for that matter, is determined by its
nature and purpose, and by these only. Xxx The purpose of a
proceeding in personam is to impose, through the judgment of a
court, some responsibility or liability directly upon the person of
the defendant. Xxxxx An action in personam is said to be one which
has for its object a judgment against the person, as distinguished
from a judgment against the property to determine its state. It has
been held that an action in personam is a proceeding to enforce
personal rights or obligations; such action is brought against the
person. Xxxx Actions for recovery of real property are in
personam.” (Munoz v. Yabut, Jr., GR No. 142676, June 6, 2011).
Action in personam
EXAMPLE:
An action for the Recovery of land or accion publiciana.
The case is filed by P against D and after trial the court
rendered judgment in favor of P ordering D to deliver the land to P.
But here comes X claiming the same property. Is X barred from
making his claim because the court, in the case of P vs. D already
declared that P is entitled to the property? Is X bound by that
judgment?
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A: NO, because X is not a party to that case. She cannot be
bound by a judgment where she is not a party. Hence, the action
between P and D is an action in personam.
Action in Rem
#1: Action for annulment of marriage or declaration of nullity
of marriage. Suppose the husband (H) files a case against his wife
(W) to annul their marriage. After trial, the court rendered
judgment annulling the marriage and it became final. So the parties
are now both SINGLE.
H meets another girl, A, and courted her and proposed
marriage.
Can A say the she I cannot marry H because I know you are
married and as far as I am concerned I am not bound by the
judgment of annulment in the case between P and D because she
was a not a party therein? When the court ruled in the case
between H and W that the marriage is annulled is that judgment
binding only on H and W, the parties therein?
A: No it binds the whole world or anybody.
ILLUSTRATION #2: When an illegitimate child files a case
against the father, for compulsory recognition and got a favorable
judgment his/her status as a recognized child is not only binding
on his/her father but is binding on the whole world.
Take note that an action in rem and in personam have often
been confused with the classification of real and personal action,
that an action in personam is also a personal action, or, when an
action is in rem it is also a real action.
It is wrong. The basis of the classification is different. An
action could be as to cause or basis a real action. As to object, it
could be in personam. In the same manner, it could be a personal
action but an action in rem.
ILLUSTRATION: E files a case against C to recover the
possession of a piece of land. It is a REAL action because the
subject is possession or ownership of real property. But because
the purpose is to bind only E and C it is also an action IN
PERSONAM. It is a real action as to cause, but as to object, it is in
personam.
ILLUSTRATION: P filed a case to annul his marriage with his
wife D. It is a PERSONAL action because it does not involve title to,
ownership etc., of his real property. It is about status. But it is also
IN REM because the judgment therein is binding against the whole
world.
An action for ejectment is a real action because it involves the
issue of possession of real property. It is also, however, an action in
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personam because the action is directed against a particular person
who is sought to be held liable (Sec. 1 Rule 4; Domagas vs. Jensen
448 SCRA 663)
An action for delaration of nullity of a marriage is a personal
action (Tamano vs. Ortiz 291 SCRA 584; Romualdez-Licaros vs.
Licaros 401 SCRA 762) because it is not founded on real estate. It is
also in rem action because the issue of the status of a person is one
directed against the whole world. One’s status is a matter that can
be set up against anyone in the world. On the other hand, an action
for damages is both a personal and in personam action.
An action for specific performance is an action in personam
(Jose vs. Boyon 414 SCRA 217). An action for specific performance
and/or rescission is not an action in rem (Gomez vs. CA 425 SCRA
98).
A cadastral proceeding is an action in rem (In Re Estate of
Johnson 39 Phil. 156).
A land registration proceeding is an action in rem. Hence, the
failure to give a personal notice to the owners or claimants of the
land is not a jurisdictional defect. It is the publication of such notice
that brings in the whole world as a party in the case and vests the
court with jurisdiction (Adez Realty Inc. vs. CA 212 SCRA 623; Ting
vs. Heirs of Diego Lirio 518 SCRA 263).
An action to recover real property is a real action. It is
however, also an action in personam for it binds only a particular
individual (Republic vs. CA 315 SCRA 600)
An action for reconveyance is an action in personam available
to a person whose property has been wrongfully registered under
the Torrens system in another’s name. Although the decree is
recognized as incontrovertible and no longer open to review, the
registered owner is not necessarily held free from liens. As a
remedy, an action for reconveyance is filed as an ordinary action in
the ordinary courts of justice and not with the land registration
court. Reconveyance is always available as long as the property has
not passed to an innocent third person for value. A notice of lis
pendens may thus be annotated on the certificate of title
immediately upon the institution of the action in court. The notice
of lis pendens will avoid transfer to an innocent third person for
value and preserve the claim of the real owner (Munoz v. Yabut, Jr.
citing Heirs of Eugenio Lopez, Sr. v. Enriquez, 449 SCRA 173).
An action for injunction is a personal action as well as an
action in personam, not an action in rem or qusi in rem (Kawasaki
Port Service Corporation v. Amores, 199 SCRA 230, 237. Munoz v.
Yabut Jr. also ruled that a suit for injunction, partakes of an action
in personam.
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QUASI IN REM
Text writers gave a sort of third classification as to object. This
is called action quasi in rem. “QUASI” means almost. So, ‘quasi in
rem’ is almost in rem. Actually, it is in personam but almost in rem.
Q: Define an action quasi in rem.
A proceeding to subject the interest of a named defendant
over a particular property to an obligation or lien burdening it.
Judgment is binding upon particular persons.
An action quasi in rem is actually in personam because it is
directed only against a particular individual but the purpose of the
proceeding is to subject his property to the obligation or lien
burdening it. The object of the case is the sale or other disposition
of property of the defendant over which you have a right or lien
over the property.
An action quasi in rem is one wherein an individual is named
as defendant and the purpose of the proceeding is to subject his
interest thereof to the obligation or lien burdening thje property
(Asiavest Limited vs. CA 296 SCRA 539).
The object of an action quasi in rem is the sale or disposition
of the property whether by attachment, foreclosure or any other
form of remedy (Banco Espanol-Filipino vs. Palanca 37 Phil. 921).
Examples of actions quasi in rem:
(a) Action for partition;
(b) Action for accounting.
Such actions are essentially for the purpose of affecting the
defendant’s interest in the property and not to render a judgment
against him (Valmonte vs. CA 252 SCRA 92);
© attachment;
(d)foreclosure of mortgage (Banco Espanol Filipino vs. Palanca
37 Phil. 921; Sahagun vs. CA 198 SCRA 44).
ILLUSTRATION: An action to foreclose a mortgage is the best
example of a civil action quasi in rem because there is a defendant
(mortgagor) and the object of the case is to have the property
mortgaged sold or disposed of in order to satisfy the mortgage lien
of the mortgagee. It is in personam because it is directed only
against the person who mortgaged to you but once the property is
foreclosed, practically everybody has to respect it. That’s why it is
called quasi in rem.
Or, to borrow the language of the SC in simplifying the term
quasi in rem, quasi in rem means ‘against the person in respect to
the res, against the mortgagor in respect to the thing mortgaged.’
Importance of the distinction
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It determines whether the court must acquire jurisdiction
over the person of the defendant and thus determine the mode of
serving summons.
If the action is in personam the court must acquire jurisdiction
over the person of the defendant, thru personal service of
summons. Service of summons by publication is not allowed.
But if it is in rem jurisdiction over the person of the defendant
is not required hence service of summons by publication is
sufficient.
Such is also true to quasi in rem action. What is important is
that the court acquires jurisdiction over the res.
“In an action in personam, jurisdiction over the person of the
defendant is necessary for the court to validly try and decide the
case. In a proceeding in rem or quasi in rem, jurisdiction over the
person of the defendant is not a prerequisite to confer jurisdiction
on the court provided that the court acquires jurisdiction over the
res. Jurisdiction over the res is acquired either (1) by the seizure of
the property under legal process, whereby it is brought into actual
custody of the law; or (2) as a result of the institution of legal
proceedings, in which the power of the court is recognized and
made effective.
Nonetheless, summons must be served upon the defendant
not for the purpose of vesting the court with jurisdiction but
merely for satisfying the due process requirements.
A resident defendant who does not voluntarily appear in
court, must be personally served with summons as provided under
Sec. 6 Rule 14 of the Rules of Court. If she cannot be personally
served with summons within a reasonable time, substituted service
may be effected (1) by leaving copies of the summons at the
defendant’s residence with some person of suitable age and
discretion then residing therein, or (2) by leaving the copies at
defendant’s office or regular place of business with some
competent person in charge thereof in accordance with Sec. 7 Rule
14 of the Rules of Court” (Biaco v. Philippine Countryside Rural
Bank, 515 SCRA 106).
When summons by publication may be proper in an action in
personam-
(a) In Sec. 14, Rule 14, if the identity of the defendant is
unknown or whose whereabouts are unknown,
service may, with leave of court, be effected upon
him by publication in a newspaper of general
circulation. Note the words “in any action” in said
Section 14. (Santos v. PNOC Exploration
Corporation, 566 SCRA 272, 278).
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(b) In Sec. 16 of the same Rule 14, if the resident defendant
is temporarily out of the country, he may be
served by publication with leave of court.
While the phrase, “summons by publication,” does not appear
in Sec. 16 the way it expressly appears in Sec. 14, the rule makes
reference to Sec. 15 of Rule 14 which allows summons by
publication. Note also the words, “any action” in Sec. 16 of Rule 14
making the rule applicable even to actions in personam (Sec. 16,
Rule 14 in relation to Sec. 15, Rule 14, Rules of Court; Asiavest
Limited v. CA, 296 SCRA 539).
CIVIL ACTIONS vs. SPECIAL PROCEEDINGS
Q: Define a special proceeding.
A: Rule 1, Section 3 [c]:
c) A special proceeding is a remedy by which a party seeks to
establish a status, a right, or a particular fact. (2a, R2)
Special proceedings should not be confused with a civil action.
Special Proceedings are governed by Rules 72-109 of the Rules of
Court.
Distinguish a civil action from a special proceeding.
A: The following:
1.) A CIVIL ACTION is one by which a party sues another for
the enforcement or protection of a right, or the
prevention or redress of a wrong, whereas,
A SPECIAL PROCEEDING is a remedy by which a party seeks to
establish a status, a right, or a particular fact;
2.) In a civil action, there are two (2) definite and particular
adverse parties, the party who demands a right, called a
plaintiff, and the other whom the right is sought, called a
defendant, whereas,
In a SPECIAL PROCEEDING, while there is a definite party
petitioner, there is no definite adverse party as the proceeding is
usually considered to be against the whole world;
3.) A CIVIL ACTION requires the filing of formal pleadings,
whereas
In a SPECIAL PROCEEDING, relief may be obtained by mere
application or petition;
4.) The period to appeal in CIVIL ACTIONS is generally 15
days and the requirement is the filing of a notice of
appeal, whereas
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In SPECIAL PROCEEDINGS the period to appeal is 30 days and
aside from notice of appeal, the law requires the filing of a record
on appeal.
Of course the basic distinction is found in Section 3 – a civil
action is one by which a party sues another for the enforcement or
protection of a right, or the prevention or redress of a wrong.
Whereas, a special proceeding is a remedy by which a party seeks
to establish a status, a right, or a particular fact.
The object of a civil action is to enforce or protect a right or to
prevent or redress a wrong. But the object of a special proceeding
is only to establish a status, a right or a particular fact.
If a creditor sues the debtor to collect an unpaid loan, is that a
civil action or a special proceeding? That is a civil action because
the creditor wants to enforce or protect his right to collect. The
creditor is compelling the debtor to pay. It is adversarial.
A good example of a special proceeding is a petition for
ADOPTION. It is a special proceeding because the purpose is to
establish a status of paternity and filiation between the adopter
and adopted who may not be related to each other.
What is adoption?
This is how an author describes it.
“Adoption is one of the sacred mysteries of the law. It
concerns the making of a natural person as a legitimate child of
another person without the intervention of sex. A man becomes a
father of the child he did not sire. A woman becomes the mother
of a child she did not bear. It is through the magic or fiction of the
law that adopters become parents of children unrelated to them by
blood, or if related, the relationship is one of illegitimacy.”
So you can adopt you own illegitimate child for the purpose of
improving his status. So, when you file a petition for adoption, you
are not suing somebody to enforce or protect a right or prevent or
redress a wrong. The purpose is to create a status of parent and
child between 2 people who are not related to each other.
And when you file a petition for adoption, you are not filing a
case against anybody. The case is not a fight between two parties.
There is a petitioner, the one who files, but there is no definite
defending party. But it is directed against the whole world because
once the adoption is granted, then, as far as the whole world is
concerned, they have to respect the status of the adopted as a
child of the adopter. It is in rem. Generally, special proceedings are
in rem.
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But since it is directed against the whole world, anyone in the
world can come forward and oppose the petition, hence,
publication is required. There is no particular person as defendant
but in reality, anybody in the world can come forward and oppose
it. That's the difference between a special proceeding and a civil
action.
Sec. 4. In what cases not applicable. - These Rules shall not
apply to election cases, land registration, cadastral, naturalization
and insolvency proceedings, and other cases not herein provided
for, except by analogy or in a suppletory character and whenever
practicable and convenient. (R143a)
The Rules of Court do not apply to certain proceedings in
court.
Q: What court proceedings where the Rules of Court are not
applicable?
A: Election cases, land registration cases, cadastral cases,
naturalization cases, insolvency proceedings, and other cases not
herein provided for except by analogy of for suppletory purposes.
In these cases, the Rules of Court are suppletory in character.
In case of conflict between election law and the Rules of Court,
forget the Rules of Court. But when the Election Code is silent, you
apply the Rules of Court by analogy or for suppletory purposes.
There are some election cases which fall within the
jurisdiction of the courts, not necessarily COMELEC. For example,
violation of election code where the party may be adjudged to go
to jail. That is a criminal case. That is governed by the rules on
criminal procedure. It is more on imprisonment.
Sec. 5. Commencement of an action. - A civil action is
commenced by the filing of the original complaint in court. If an
additional defendant is impleaded in a later pleading, the action is
commenced with regard to him on the date of the filing of such
later pleading, irrespective of whether the motion for its
admission, if necessary, is denied by the court. (6a)
Q: When is a court action deemed commenced?
A: A civil action is commenced by the filing of the original
complaint in court. Of course this is not really complete. The filing
of the original complaint in court must be accompanied by the
payment of the correct docket fee. A complaint is not deemed filed
until the docket fee is paid. This is important to determine the
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exact date that the action has commenced because it is from that
moment that the running of the prescriptive period is interrupted.
Civil actions are deemed commenced from the date of the
filing and docketing of the complaint, without taking into account
the issuance and service of summons (Cabrera vs. Tiano, GR No. L-
17299, July 31, 1963).
If the complete amount of the docket fee is not paid, the
prescriptive period continues to run as the complaint is deemed
not filed (Feria, 2001, p. 208)
An action can be commenced by filing the complaint by
registered mail, in which case, it is the date of mailing that is
considered as the date of filing and not the date of the receipt
thereof by the clerk of court.
The second sentence of Section 5 states that, “If an additional
defendant is impleaded in a later pleading, the action is
commenced with regard to him on the date of the filing of such
later pleading…”
Example: Today (November 19, 1997), I filed a complaint
against A. So, the action is commenced on Nov. 19, 1997. However
next month, say, December 19, if there is an additional defendant,
the date of the commencement of the action with regards to the
additional defendant is not the date when the original action is
filed, but on the date when he was included in the amended
pleading.
How do you interpret or construe the Rules of Court?
Sec. 6. Construction. - These Rules shall be liberally construed
in order to promote their objective of securing a just, speedy and
inexpensive disposition of every action and proceeding. (2a)
The purpose of Procedural Law is to hasten litigation. So you
do not interpret it to prolong a case. That is based on the principle
of liberal construction.
Cases should, as much as possible, be determined on the
merits after the parties have been given full opportunity to
ventilate their causes and defences, rather than on technicality or
some procedural imperfection. After all, technical rules of
procedure are not ends in themselves but are primarily devised to
help in the proper and expedient dispensation of justice. In
appropriate cases, therefore, the rules may be construed liberally
in order to meet and advance the cause of substantial justice (Land
Bank vs. Celad, GR No. 164876, Jan. 23, 2006)
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DE GUZMAN vs. SANDIGANBAYAN
256 SCRA 171, (en banc)
HELD: “The Rules of Court was conceived and promulgated to
set forth guidelines in the dispensation of justice but not to bind
and chain the hand that dispenses it, for otherwise, courts will be
mere slaves to or robots of technical rules, shorn of judicial
discretion. That is precisely why courts in rendering real justice
have always been, as they in fact ought to be, conscientiously
guided by the norm that when on the balance, technicalities take a
backseat against substantive rights, and not the other way around.
Truly then, technicalities, should give way to the realities of the
situation.”
So, the purpose of procedure is to help the hand that
dispenses justice and not to tie these hands. Otherwise, the courts
will become mere robots. And, as much as possible, courts should
avoid technicalities to give way to the realities of the situation.
In one case, “Lawsuits, unlike duels, are not to be won by a
rapier’s thrust.” (Alonzo vs. Villamor, 16 Phil. 315)
That’s why the SC said in another case:
SANTOS vs. COURT OF APPEALS
198 SCRA 806
HELD: Procedural “rules are not intended to hamper litigants
or complicate litigation but, indeed, to provide for a system under
which suitors may be heard in the correct form and manner and at
the prescribed time in a peaceful confrontation before a judge
whose authority they acknowledge. The other alternative is the
settlement of their conflict through the barrel of a gun.”
Meaning, the purpose of the rules is for people to fight each
other in a civilized way. If you cannot accept the judicial system,
what is your alternative? The only alternative is to shoot your
opponent. We will settle our conflict through the barrel of a gun.
For all its shortcomings and its defects, the judicial system is
still the civilized way of dealing with your opponent.
BAR QUESTION: When may lapses in the literal observance in
the Rules of Court be excused?
A: In the case of
ETHEL CASE, ET AL vs. FERNANDO JUGO, ET AL
77 Phil. 523
HELD: Lapses in the literal observance of a rule of procedure
will be overlooked:
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1.) when they do not involve public policy;
2.) when they arose from an honest mistake or unforeseen
accident;
3.) when they have not prejudiced the adverse party; and
4.) when they have not deprived the court of its authority.
One final note, while it is true that the Rules of Court should
be liberally construed as a general rule, there are certain provisions
which according to the SC, should be strictly construed because
they were intended precisely to minimize delay. These are
provisions on:
1. reglementary periods;
2.rule on forum shopping;
3.service of summons
A good example would be provisions which prescribe the time
during which certain acts are going to be done, like the filing of an
answer, because if you will disregard this, it will promote more
delay rather than expedite litigations.
Another example is the filing of a notice of appeal. These are
the provisions which are to be strictly construed because while it is
true that the Rules of Procedure are to be liberally construed, it is
not a license to completely ignore these rules. Even the SC made
the warning. Like in the cases of
ANTONIO vs. COURT OF APPEALS
167 SCRA 127
HELD: “It is the common practice of litigants who have no
excuse for not observing the procedural rules to minimize the same
as mere technicalities. Then they cry for due process. These
procedural rules are in fact intended to ensure an orderly
administration of justice precisely to guarantee the enjoyment of
substantive rights.”
LIMPOT vs. COURT OF APPEALS
170 SCRA 367
HELD: “Procedural rules are not to be belittled or dismissed
simply because their non-observance may have resulted in
prejudice to a party's substantive rights, as in this case. Like all
rules, they are required to be followed except only when for the
most persuasive of reasons they may be relaxed to relieve a litigant
of an injustice not commensurate with the degree of his
thoughtlessness in not complying with the procedure prescribed.
While it is true that a litigation is not a game of technicalities, this
does not mean that the Rules of Court may be ignored at will and
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at random to the prejudice of the orderly presentation and

assessment of the issues and their just resolution.”

This reminds me of a lawyer who did not comply with the

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

The power of the SC to promulgate rules concerning

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

Reasons which would warrant the suspension of the Rules:

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

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ORDINARY CIVIL ACTIONS
Rule 02
CAUSE OF ACTION
SECTION 1. Ordinary civil actions, basis of. - Every ordinary
civil action must be based on a cause of action. (n)
Section 1 of Rule 1 is entitled cause of action. Section 1
expresses the principle that every ordinary civil action must be
based on a cause of action. In other words, there cannot be a case
unless you have a cause of action.
Under Rule 16, one of the grounds for a motion to dismiss is
that your pleading states no cause of action.
Sec. 2. Cause of action, defined. - A cause of action is the act
or omission by which a party violates a right of another. (n)
Q: Define cause of action.
A: CAUSE OF ACTION is an act or omission by which a party
violates a right of another.
ELEMENTS OF A CAUSE OF ACTION
There are 3 main elements:
1. Existence of legal right in favor of the plaintiff by whatever
means and under whatever law it arises or is created;
2. a correlative obligation on the part of the named defendant
to respect and not to violate such right; and
3. an act or omission on the part of such defendant in
violation of the right of the plaintiff or constituting a breach of the
obligation of the defendant to the plaintiff for which the latter may
maintain action for recovery of damages or other appropriate
relief.
4.Damages suffered
Briefly stated, it is the reason why the litigation has come
about, it is the act or omission of defendant resulting in the
violation of someone’s right. (Phil. National Construction v CA, 514
SCRA 569; Agrarian Reform Beneficiaries Association v. Nicolas GR
No. 168394, Oct. 6, 2008)
There is a fourth element added by some cases and
commentators – the element of damage suffered by the plaintiff.
Even if there is violation, if there is no damage, then what
relief are you asking for? There can be no action where no damage
is sustained.
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As a matter of fact, in a recent case, the SC remarked that
wrong or injury without damage or damage without wrong does
not constitute a cause of action since damages are merely part of
the remedy allowed for the injury caused by a breach or wrong.
Injury is the illegal invasion of a legal right while damage is the
loss, hurt, or harm which results from the injury.
Cause of Action not an issue in administrative cases
While the existence of a cause of action is one that is essential
to the existence of a civil action, in administrative cases however,
the issue is not whether the complainant has a cause of action
against the respondent, but whether the respondent has breached
the norms and standards of the office. (Mutia v. Purisima, 494
SCRA 448)
Cause of Action in Specific Cases
In breach of contract cases, a cause of action does not require
an allegation of the negligence of the defendant but merely the
following elements:
a.) The existence of a contract, and
b.) The breach of the contract. (Calalas v. CA SCRA 356; FGU
Insurance Corp. v. GP Sarmeinto Trucking Corp. 386
SCRA 312)
Thus, if a carrier is sued based on a breach of contract of
carriage, negligence need not be proved by the plaintiff, negligence
not being an element of the cause of action of a suit predicated on
a breach of contract. This is true whether or not the defendant is a
public or a private carrier. However, where the defendant is a
common carrier there is an additional reason for dispensing with
proof of negligence, i.e., negligence of the common carrier is
presumed. (Art. 1735 & Art. 1756 CC)
In quasi delict, negligence, as an element, must be alleged and
proved. (Art. 2176 CC) but the negligence of those persons
described under Art. 2180 of the Civil Code, although based on
quasi delict is presumed.
Under Art. 2180, following the well-recognized doctrine of
vicarious liability, certain persons like the father, mother, guardian,
owners and managers of an establishment or enterprise, employee,
the State, and teachers or heads of establishments of arts and
trades are, under specified conditions, liable for acts of persons for
whom they are responsible.
Thus, an employer for instance, is liable for the damage
caused by his employees and household helpers acting within the
scope of their assigned tasks. The employer’s negligence in the
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selection and supervision of his employee is presumed and his
liability shall only cease if he successfully proves his observance of
the diligence required of a good father of a family to prevent
damage.
When an injury is caused to another by the negligence of the
employee there instantly arises the juris tantum presumption of
law that there was negligence on the part of the employer either in
the selection or in the supervision, or both of the employee. The
liability of the employer is direct and immediate and is not
conditioned upon a prior recourse against the negligent employee
and a prior showing of the insolvency of such employee. Therefore,
it is incumbent upon the employer to prove his exercise of
diligence of a good father of a family in the selection and
supervision of the employee (Manliclic vs. Calaunan GR No. 150157
January 25, 2007)
Where the cause of action rests on a promissory note, filing
the action before the due date of the obligation would be
premature because the obligation is one with a period. Whenever a
period is designated in an obligation, the obligation becomes
demandable only when the period arrives. Such period is presumed
to be for the benefit of both parties and of course, also of the
debtor. He cannot be charged before the due date (Art. 1196, Civil
Code) unless he loses the right to make use of the period (Art.
1198, Civil Code).
In an unlawful detainer case, the cause of action does not
accrue unless there is a demand to vacate and is not complied with.
If, however, the suit is based on expiration of the lease, notice and
demand are not required. (Labastida v. CA, 287 SCRA 662)
EXAMPLE of Cause of Action:
A borrows money from B promising to pay on a date certain.
Upon due date, A did not pay. Does B have a cause of action? Let us
examine whether the elements are present.
RIGHT - the right of the creditor to get back his money;
OBLIGATION – The defendant has the obligation to pay back
the loan under the law on contracts;
VIOLATION or delict or wrong – the account fell due and the
debtor is supposed to pay the creditor, but the former did not pay
the latter;
DAMAGE. – the creditor cannot get back his money.
So, the 4 elements are there. Of course, when you file a
complaint against somebody, you do not prepare the complaint by
enumerating the elements. In other words, you just narrate the
facts. It is up for the defendant to analyze. It is the duty of the
lawyer to analyze the complaint whether the 4 elements are
present.
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ANOTHER EXAMPLE: Damages arising from culpa aquiliana.
You are crossing the street and you are bumped by X who was
driving a car causing you injuries and being hospitalized. You also
failed to report for work.
RIGHT – it is the right of every person not to be molested. You
have the right to walk peacefully and not to be harmed;
OBLIGATION – it is the obligation of every person driving to be
careful so that he will not bump other people. You do not have to
enter into a contract with a person saying you will not bump him;
DELICT or wrong – because of your recklessness, you violated
his right by injuring him;
DAMAGE – I have to spend money in the hospital and I lost my
income.
The 4 elements are present. So there is a cause of action. In
other words, you cannot imagine a civil case where the 4 elements
are not present.
ANOTHER EXAMPLE: D borrowed money from you last year
payable in January2010 but because you are in dire need of money
you demanded payment. Suppose D does not pay can you file an
action to collect the amount from him? Do you have a cause of
action?
RIGHT – the creditor has the right to collect;
OBLIGATION – every debtor has the obligation to pay;
DAMAGE – I have not recovered the money;
DELICT or wrong – there is NO delict yet.
Why? There is no delict yet because the account is payable
next year. So, it is still premature to file a collection case now
because one element is missing. It is not based on a cause of
action and is dismissible under Rule 16.
Cause of action must be unmistakably stated Failure to state
cause of action
The mere existence of a cause of action is not sufficient for a
complaint to prosper. Even if in reality the plaintiff has a cause of
action against the defendant, the complaint may be dismissed if
the complaint or the pleading asserting the claim “states no cause
of action”. (Sec. 1*g+, Rule 16).
This means that the cause of action must unmistakably be
stated or alleged in the complaint or that all the elements of the
cause of action required by substantive law must clearly appear
from the mere reading of the complaint. To avoid an early dismissal
of the complaint, the simple dictum to be followed is: “If you have
a cause of action, then by all means, state it! State all of its
elements in your pleading!”
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Where there is a defect or an insufficiency in the statement of
the cause of action, a complaint may be dismissed not because of
the absence or a lack of a cause of action but because the
complaint “states no cause of action”. The dismissal will therefore,
be anchored on a “failure to state a cause of action.”
The failure to state a cause of action does not mean that the
plaintiff has “no cause of action.” It only means that the plaintiff’s
allegations are insufficient for the court to know that the rights of
the plaintiff were violated by the defendant. Thus, even if indeed
the plaintiff suffered injury, if the same is not set forth in the
complaint, the pleading will state no cause of action even if
factually or in reality the plaintiff has a cause of action against the
defendant.
Action distinguished from Cause of Action
An action is the suit filed in court for the enforcement or
protection of a right, or the prevention or redress of a wrong. (Sec.
3[a]. Rule 2, Rules of Court. A cause of action is the basis of the
action filed. Under the Rules of Court “every ordinary civil action
must be based on a cause of action.” (Sec. 1, R 2).
CAUSE OF ACTION vs. RIGHT OF ACTION
Another important subject in procedure is distinguishing a
cause of action from a right of action.
Q: Define right of action.
A: Right of action is the right of the plaintiff to bring an action
and to prosecute that action to final judgment. (Marquez vs.
Varela, 92 Phil. 373)
It is the right of a person to commence and prosecute an
action to obtain the relief sought.
Q: What are the ELEMENTS of a right of action?
A: There are three llelements:
1.) the plaintiff must have a good cause of action;
2.) must be instituted by the proper party; and,
3.) he/she must have performed all conditions precedent to
the filing of the action.
So, you cannot have a right of action unless you first have a
cause of action. That is why the SC said in the case of
DE GUZMAN, JR. vs. COURT OF APPEALS
192 SCRA 507
HELD: “The right of action springs from the cause of action,
but does not accrue until all the facts which constitute the cause of
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action have occurred. When there is an invasion of primary rights,
then and not until then does the adjective or remedial law become
operative, and under it arise rights of action. There can be no right
of action until there has been a wrong – a violation of a legal right –
and it is then given by the adjective law.”
So, there can be no right of action until there has been a
wrong, a violation of a legal right. There can be no right of action
unless there is first a cause of action.
And you must comply with the conditions precedent. You
cannot file a case unless you comply with certain conditions and
the best illustration of this element is the case of
PHIL. AMERICAN GENERAL INSURANCE CO. vs. SWEETLINES
212 SCRA 194
FACTS: This involves shipped cargoes from Manila to Davao
but the goods were damaged while in transit. Based on the
damaged cargoes, the consignee filed a case against the carrier.
Actually, in the bill of lading, there is a stipulation that if the
consignee wants to file a case arising from the contract of carriage
against the carrier, the consignee must first send a notice of loss to
the carrier and then if the carrier will not honor it, that is the time
the consignee can file a case before the court. Now, he went to
court directly without filing a notice of loss to the carrier.
ISSUE: Whether or not there is a right of action.
HELD: There is NO right of action because the consignee did
not comply with the conditions precedent.
“The right of action does not arise until the performance of all
conditions precedent to the action. Performance or fulfillment of
all conditions precedent upon which a right of action depends must
be sufficiently alleged, considering that the burden of proof to
show that a party has a right of action is upon the person initiating
the suit.”
“More particularly, where the contract of shipment contains a
reasonable requirement of giving notice of loss of or injury to the
goods, the giving of such notice is a condition precedent to the
action for loss or injury or the right to enforce the carrier’s
liability.”
BAR QUESTION: Distinguish a CAUSE OF ACTION from a RIGHT
OF ACTION.
A: The following are the distinctions:
1.) Cause of action is the delict or wrong committed by the
defendant, whereas
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Right of action refers to the right of the plaintiff to institute
the action;
2.) Cause of action is created by substantive law (e.g. rights
under the Civil Code), whereas
Right of action is regulated by procedural law;
“Right of action is a remedial right belonging to some persons,
while cause of action is a formal statement of the operative facts
that give rise to such remedial right.” (De Guzman vs. CA, supra)
3.) Right of action may be taken away by the running of the
statute of limitations, by estoppel or other circumstances
which do not affect at all the cause of action.
EXAMPLE: When a debtor borrows money and he does not
pay. His failure to pay is the cause of action. After 10 years, the
right to collect has prescribed and you cannot recover anything.
Actually, what is barred is his right of action, not the cause of
action because the moment he does not pay, there is already a
wrong and you cannot erase a wrong. The cause of action is not
affected by prescription. In fact, the Civil Code provides that the
obligation is converted into natural obligation, which is based on
equity rather than a right.
When we say that the action has prescribed we should mean
that what has prescribed is the right of action not the cause of
action.
Relief, Remedy and Subject Matter
Relief is the redress, protection, award or coercive measure
which the plaintiff prays the court to render in his favor as
consequence of the delict committed by the defendant while
remedy is the procedure or appropriate legal form of relief of
action which may be availed of by the plaintiff as the means to
obtain the desired relief.
Subject matter is the thing, wrongful act, contract or property
which is directly involved in the action, concerning which the wrong
has been done and with respect to which the controversy has
arisen.
SPLITTING A CAUSE OF ACTION
Sec. 3. One suit for a single cause of action. - A party may not
institute more than one suit for a single cause of action. (3a)
Section 3 is known as the rule against splitting the cause of
action.
Purpose:
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To avoid the following:
1. Multiplicity of suits;
2.Conflicting decisions; and
3.Unnecessary vexation and harassment of defendants.
This applies not only to complaints but also to counterclaims
and cross-claims.
Q: What is splitting a single cause of action?
A: Splitting a cause of action is the act of instituting two or
more suits for the same cause of action.
It is the practice of dividing one cause of action into different
parts and making each part a subject of a different complaint.
(Bachrach vs. Icariñgal, 68 Phil. 287)
In splitting a cause of action, the pleader divides a single cause
of action, claim or demand into two or more parts, brings a suit for
one of such parts with the intent to reserve the rest for another
separate action. (Quadra v. CA 497 SCRA 221)
EXAMPLE: In a suit under a promissory note, you file a case to
collect the principal; another action to collect the interest; another
action to collect attorney’s fees. So, there is only one note and you
sue me three times but there is only one cause of action. Now,
under the law, you have split your cause of action. You should file
only one case to recover the principal and the interest as well as
the attorney’s fees.
EXAMPLE: Damage (injury) suit: X, while walking was bumped
by a vehicle. He filed one case against the owner of the vehicle for
reimbursement of hospital expenses; one case to recover his
expenses for medicine; another one for doctor’s fees; then another
case for the lost income.
A single act may sometimes violate several rights of a person.
Nevertheless the plaintiff has only one cause of action regardless of
the number of rights violated. If a car owner sustains injuries to his
person and damage to his car as a result of the negligent driving of
the defendant, two rights of the plaintiff have been violated,
namely, his personal right to be safe in his person and his property
right to have his car intact and free from any damage. Under the
circumstances, the plaintiff can only file a single action for the
recovery of damages for both types of injuries. Filing an action to
recover damages to his person and later for damages to his car
would be splitting a single cause of action. This is because there is
one act of violation. If, however, a passenger in the same car was
also injured, the injuries to the passenger gives rise to a cause of
action separate and distinct from those sustained by the car owner
because distinct rights belonging to different persons have been
violated. The injured passenger may file a suit against the
defendant separate from the suit filed by the car owner.
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A cause of action for the reconveyance of title over property
does not include a cause of action for forcible entry or unlawful
detainer. They are distinct causes of action. What is involved in an
ejectment case is possession de facto or material possession. In an
action for reconveyance, the issue is ownership. (Tecson v.
Gutierez, 452 SCRA 781; de la Cruz v. CA, 133 SCRA 520).
Application of the rule against splitting a single cause of action
This rule applies not only to complaints but also to
counterclaims and cross-claims. (Mariscal v. CA, 311 SCRA 51)
Example: The act of a defendant in taking possession of the
plaintiff’s land by means of force and intimidation constitutes a
single act of dispossession but gives rise to two reliefs to the
plaintiff: (a) recovery of possession, and (b) damages arising from
the loss of possession. Both of these reliefs result from a single
wrong hence, constitute but a single cause of action. Each of them
cannot be the subject of two separate actions. IT is procedurally
erroneous for the plaintiff to file an action to recover possession
and another action for damages. Both remedies must be alleged
and claimed in only one complaint. To file a separate action for
each relief is to split a single cause of action.
Now if the defendant denies plaintiff’s allegations and avers
that the action is just plain harassment and claims for damages,
attorney’s fees and litigation" expenses, he cannot file 3
counterclaims.
The action for forcible entry should include not only the plea
for restoration of possession but also claims for damages arising
out of the forcible entry. The claim for damages cannot be filed
separately (Progressive Development Corporation, Inc. vs. CA 301
SCRA 637).
The same principle applies to an action to recover the
possession of a land. The action must also include the recovery of
the fruits already taken from the land and appropriated by the
defendant. A suit for recovery of the land and a separate suit to
recover the fruits will not be sustained. Also, when one files a
complaint for unlawful detainer on the ground of non-payment of
rentals, the complaint must include the recovery of the rentals in
arrears, such recovery being an integral part of the cause of action
for unlawful detainer.
A tenant illegally ejected from the land is entitled to two
reliefs – one for reinstatement and another for damages. Since
both reliefs arose from the same cause of action, they should be
alleged in one complaint (Gozon vs. Vda. De Barrameda 11 SCRA
376).
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An action for the recovery of taxes should also include the
demand for surcharges resulting from the delinquency in the
payment of said taxes. The non-payment of taxes gave rise to two
reliefs: (a) the recovery of the unpaid taxes; and (b) the recovery of
the surcharges resulting from non-payment of the taxes. These two
reliefs are results of a single cause of action and which should be
pursued in a single complaint (City of Bacolod vs. San Miguel
Brewery, Inc. 29 SCRA 819).
A bank cannot file a civil action against the debtor for the
collection of the debt and then subsequently file an action to
foreclose the mortgage. This would be splitting a single cause of
action (Danao vs. CA 154 SCRA 446; Industrial
Finance Corp. vs. Apostol 177 SCRA 521).
It has been held however, that an action to collect the amount
of the loan will not preclude a subsequent action for the rescission
of the mortgage based on violation of the conditions of the
mortgage (Enriquez vs. Ramos 7 SCRA 26).
Sec. 4. Splitting a single cause of action; effect of. - If two or
more suits are instituted on the basis of the same cause of action,
the filing of one or a judgment upon the merits in any one is
available as a ground for the dismissal of the others. (4a)
The remedy of the defendant is a motion to dismiss or if such
motion is not filed, to allege it in the answer as an affirmative
defense.
Q: What are the effects of splitting a cause of action?
A: Under Section 4, the following are the effects:
1.) The filing of one is available as a ground for the
dismissal of the other. This assumes a situation where
there is already another action pending between the
same parties for the same cause. This is one ground for
dismissal of a case, LITIS PENDENTIA. (Rule 16 – Motion
to Dismiss, Section 1 [e])
2.) a judgment upon the merits in any one is available as a
ground for the dismissal of the others. This refers to a
judgment that is final and executor. That is what you
call barred by prior judgment or RES ADJUDICATA, which
is also a ground for dismissal under Rule 16, Section 1
[f].
EXAMPLE: A collection case was already decided a long time
ago dismissing it because the court found that the promissory note
was a forgery. Now, you are reviving the same case – you are filing
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again. Under Section 4, the judgment in the first case years ago
would be cited as a basis for the dismissal of the second case.
Note that if the ground is pendency of another action, the
phraseology of the rule (Sec. 4 R 2) no longer confines the dismissal
to the second action. As to which action should be dismissed would
depend upon judicial discretion and the prevailing circumstances of
the case.
SINGLENESS OF A CAUSE OF ACTION
Q: How do you determine the singleness of a cause of action?
A: The singleness of a cause of action is determined by the
singleness of the delict or wrong committed by the defendant and
not by the number of remedies that the law grants the injured
party. Meaning, a single delict may give rise to two or more
possible remedies but it does not mean to say the injured party can
avail of all those remedies simultaneously or one after another.
(Bachrach vs. Icariñgal, supra; David vs. De la Cruz, L-11656, April
18, 1958)
EXAMPLE: Obligations and Contracts: A violation or a breach
of contract could give rise to a civil action for specific performance
or a civil action for rescission of contract. However, it does not
mean to say that the injured party can file both or one after the
other. Otherwise, he will be splitting his cause of action.
EXAMPLE: There is the Recto Law (on Sales) which provides
for 3 remedies of an unpaid seller of personal properties: (1)
rescind the contract of sale; (2) exact fulfillment of obligation; and
(3) foreclosure of mortgage. But even the law on Sales is very clear:
the choice of one automatically bars resort to the other because it
will be against splitting the cause of action.
EXAMPLE: Credit Transactions: A bank has two (2) possible
remedies against a debtor for non-payment of a loan secured by a
mortgaged say, piece of land: (1) foreclose the mortgage on the
land; or (2) file an action to collect the loan. Here, the bank cannot
file a case against the debtor to collect the loan and at the same
time file an action to foreclose the mortgage for it will be splitting
the cause of action. So it is either you enforce the principal contract
of loan, or, you enforce the accessory contract of mortgage. This is
what happened in the case of
DANAO vs. COURT OF APPEALS
154 SCRA 446
FACTS: The Danao spouses borrowed money from the bank,
mortgaged their property and then they failed to pay. The bank
filed a civil action to collect the loan. After filing a civil action to
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collect the loan, the bank instituted an action to foreclose the
mortgage.
HELD: “Anent real properties in particular, the Court has laid
down the rule that a mortgage creditor may institute against the
mortgage debtor either a personal action for debt or a real action
to foreclose the mortgage. In other words, he may pursue either of
the two remedies, but not both.”
“Evidently, the prior recourse of the creditor bank in filing a
civil action against the Danao spouses and subsequently resorting
to the complaint of foreclosure proceedings, are not only a
demonstration of the prohibited splitting up of a cause of action
but also of the resulting vexation and oppression to the debtor.”
RULES IN DETERMINING THE SINGLENESS OF A CAUSE OF
ACTION IN CONTRACTS WITH SEVERAL STIPULATIONS
RULE #1 (General Rule):
A contract embraces only one cause of action because it may
be violated only once, even if it contains several stipulations.
(Quioque vs. Bautista, L-13159, Feb. 28, 1962)
EXAMPLE: P enters into a contract with N which contains 3
stipulations: (#1) that next month, P will deliver to N 100 sacks of
rice; (#2) on the same date, P will also deliver to N 100 sacks of
corn; and (#3) on the same date, P will also deliver to N 100 sacks
of sugar. When the day arrived, nothing was delivered. So three
stipulations were violated.
Q: How many causes of action does N have against P?
A: ONE. The contract is only one cause of action even if it
contains several stipulations. The cause of action is not based on
the number of paragraphs violated but on the contract itself.
RULE #2 (Exception to the General Rule):
A contract which provides for several stipulations to be
performed at different times gives rise to as many causes of action
as there are violations. (Larena vs. Villanueva, 53 Phil. 923)
EXAMPLE: A loan with a promissory note where the principal
amount is payable in installment. The first installment is payable in
2008, the second installment in this year, and the third installment
is payable in 2010 without any acceleration clause. So, there is only
one contract of loan but the principal is payable in three
installments at different times.
For non- payment of the first installment, the creditor has a
cause of action and can file one case.
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Q: Next year, he did not pay the second installment, can the
creditor file another case?
A: YES, because this time it is the exception. Every installment
is one cause of action even if there is only one note. Remember
that they are to be performed at different times.
RULE #3 (Exception to the exception):
All obligations which have matured at the time of the suit
must be integrated as one cause of action in one complaint, and
those not so included would be barred. (Larena vs. Villanueva, 53
Phil. 923)
EXAMPLE: In 2008, the debtor did not pay but the creditor did
not file any case. Then this year, the second installment was not
also paid.
Q: Is the creditor correct if he files two separate actions?
A: He is wrong. When all the installment are already due and
the creditor has not filed any case for the collection of the first
installment, this time, when he files for collection of the unpaid
second installment, everything must be integrated. If you do not
file a claim for one, it is deemed barred.
So for example, if you will wait for the entire note to mature,
you cannot apply rule 2. You should only file one action and you go
back to the general rule.
Doctrine of Anticipatory Breach
RULE #4 (Exception to Rule #2)
An unqualified and positive refusal to perform
a contract, though the performance thereof is not yet due, may, if
the renunciation goes into the whole contract, be treated as a
complete breach which will entitle the injured party to bring the
action at once. (Blossom & Co. vs. Manila Gas Corp., 55 Phil. 226)
EXAMPLE: Let us suppose that in the preceding problems
when the first installment fell due the creditor demanded payment
for the first installment from the debtor but the latter refused to
pay claiming that there was no loan and the promissory note is a
forgery how many causes of action are there?
Now, in that kind of statement, he is not only repudiating the
first installment. He is repudiating the entire note. So under rule
#4, the creditor can file a case for the entire loan of because it has
been repudiated. If you only file only one for the first installment
which fell due, then another for the others, it will be useless
because he will still maintain the same position. So you do not wait
anymore for the 2nd and 3rd installments to fall due. You file only
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one case for the entire breach. There is a total breach for a
continuing obligation and there is now only one cause of action for
the entire promissory note. (Blossoms & Co. v. Manila Gas
Corporation, 55 Phil. 226) The anticipatory breach committed by
the defendant entitles the plaintiff to only one cause of action.
JOINDER OF CAUSES OF ACTION
SEC. 5. Joinder of causes of action. - A party may in one
pleading assert, in the alternative or otherwise, as many causes of
action as he may have against an opposing party, subject to the
following conditions:
xxxxx
Q: What do you mean by joinder of causes of action?
A: Joinder of causes of action is the provision of the Rules
which allows a party to join in one pleading two or more causes of
actions against the opposing party.
It is the assertion of as many causes of action as a party may
have against another in one pleading. It is the process of uniting
two or more demands or rights in one action.
Example: D is the debtor of C for P350,000.00 due on January
5, 2008. D likewise owes C P350,000.00 due on February 13, 2008.
Both debts are evidenced by distinct promissory notes. D did not
pay both debts despite demand.
How many causes of action are there? There are two because
there are two contracts and therefore two violations. So C can file
two separate actions for collection without violating the
prohibition against splitting a single cause of action.
But can C file only one action by joining the two causes of
action? Yes under this Section 5.
C may file a single suit against D for the collection of both
debts, despite the claims being actually separate causes of actions
and having arisen out of different transactions.
THE PRINCIPLE: You cannot file more than one case when you
have only one cause of action but the law allows you to file one
case for more than one cause of action.
Q: Under Section 5, is the creditor obliged to file one
complaint for the 2 promissory notes?
A: NO, because joinder of causes of action is permissive. He
may or may not.
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When the causes of action accrue in favor of the same
plaintiff and against the same defendant, i.e., there is only one
plaintiff and one defendant, it is not necessary to ask whether or
not the causes of action arose out of the same transaction or series
of transactions. This question is only relevant when there are
multiple plaintiffs or multiple defendants. In the hypothetical just
discussed in the example, is C obliged to join the causes of action
against D?
No. He may file a single suit for each of the claims if he desires
because each debt is a separate cause of action. Joinder of causes
of action is not compulsory. It is merely permissive.
ALTERNATIVE and CUMULATIVE Joinder of Causes of Action
Q: How may causes of action be joined?
A: Causes of action may be joined either: (a) alternatively or
(b) cumulatively.
An ALTERNATIVE JOINDER exists when your cause of action is
either one or the other. You are not seeking relief from both but
from either one.
A CUMULATIVE JOINDER exists when you are seeking relief for
all your causes of action.
ALTERNATIVE joinder; Example:
A is the importer of the goods that were shipped on board a
carrier. Upon reaching Cebu City, they were unloaded by the
arrastre or stevedoring operator. But when the goods were
delivered to A they were already in a damaged condition. A
complained to the arrastre which denied liability claiming that the
goods were damaged already before unloading. Then when A went
to the carrier, it passed the blame to the arrastre.
A here has two (2) possible causes of action: (1) an action
against the stevedoring operator under the contract of depositary
under the law on Credit Transaction; Or, (2) an action against the
carrier under the Law on Transportation. So there are 2 possible
causes of action.
Q: Can A file a complaint incorporating the two (arrastre and
the carrier) both as defendants?
A: YES, that is allowed. This is alternative joinder because A is
not claiming from both of them, but either one or the other.
Another Example:
C is a passenger riding on a public utility vehicle which collided
with another vehicle and she is not sure who is at fault. If the fault
lies with the other vehicle, and the driver of the bus where C was
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riding is not at fault, then her cause of action against the other
vehicle is quasi-delict. But if the fault lies with the driver of the bus
where she was riding, her cause of action is culpa contractual. So
she has 2 possible causes of action.
Q: Is it possible for C to file one complaint naming both the
drivers or both operators as defendants?
A: YES. Either of them is liable to her. That is alternative
joinder of causes of action.
CUMULATIVE JOINDER
Examples: Refer to prior illustrations
That is why the manner of joining the defendants alternatively
or otherwise should be correlated with Rule 3, Section 13 and Rule
8, Section 2:
RULE 3, SEC. 13. Alternative defendants. - Where the plaintiff
is uncertain against who of several persons he is entitled to relief,
he may join any or all of them as defendants in the alternative,
although a right to relief against one may be inconsistent with a
right of relief against the other. (13a)
RULE 8, SEC. 2. Alternative causes of action or defenses. - A
party may set forth two or more statements of a claim or defense
alternatively or hypothetically, either in one cause of action or
defense or in separate causes of action or defenses. When two or
more statements are made in the alternative and one of them if
made independently would be sufficient, the pleading is not
made insufficient by the insufficiency of one or more of the
alternative statements. (2)
Requisites for proper joinder of causes of action
Q: When is joinder of causes of action allowed?
A: Under Section 5, joinder of causes of action is allowed
under the following conditions:
a.) The party joining the causes of action shall comply with
the rules on joinder of parties;
b.) The joinder shall not include special civil actions or
actions governed by special rules;
c.) Where the causes of action are between the same
parties but pertain to different venues or jurisdictions,
the joinder may be allowed in the Regional Trial Court
provided one of the causes of action falls within the
jurisdiction of said court and the venue lies therein; and
d.) Where the claims in all the causes of action are
principally for recovery of money, the aggregate amount
claimed shall be the test of jurisdiction. (5a)
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a.) The party joining the causes of action shall comply
with the rules on joinder of parties
The rule on joinder of parties is Rule 3, Section 6 which
provides that two (2) or more persons can join as plaintiffs in one
complaint or can be joined as defendants in one complaint,
provided there is a common question of fact or law involved in
that case. In other words, before there can be a proper joinder of
causes of action there must must be a proper joinder of parties.
Proper joinder of parties requires that the right to relief should
arise out of the same transaction or series of transactions and
that there exists a common question of law or fact.
When the causes of action accrue in favor of the same
plaintiff and against the same defendant, i.e., there is only one
plaintiff and one defendant, it is not necessary to ask whether or
not the causes of actions arose of the same transaction or series of
transactions as stated beforehand. This question is only relevant
when there are multiple plaintiffs or multiple defendants. So in our
hypothetical case where D borrowed from C two separate amounts
of P350,000.00 each covered by two separate promissory notes, C
can opt to file one complaint joining together the two causes of
action arising from the violations of the promissory notes.
EXAMPLE: Two or more passengers riding on the same bus,
met an accident. All of them were injured. Every passenger who
gets injured has a cause of action separate and distinct from each
other because there are separate contracts of carriage violated. So
they decided to file a damage suit.
Q: Can they be joined in one complaint?
A: YES because there is a common question of fact or law.
They are riding on the same bus, meeting the same accident,
against the same operator. So there is a joinder of parties under
Rule 3. And if the joinder of parties under Rule 3 is proper, then
their causes of action can also be joined under Rule 2 because the
condition is: “shall comply with the rules on joinder of parties.”
Q: Suppose these passengers were riding on different buses
owned by the same operator. All of them met an accident. Well of
course the same kind of case: damage suit, breach of contract
against the same operator. Now, can their causes of action be
joined?
A: NO. They cannot be joined because there is no common
question of fact or law. The defense of the operator here is
different from his defense there. Meaning, passenger A has nothing
to do with the complaint of passenger B because there is no
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common denominator between them. So if you cannot join them
under Rule 3, the joinder of causes of action under Rule 2 is also
improper.
Distinguish joinder of causes of actions from joinder of
parties.
Joinder of causes of action refers to the procedural device
whereby a party who asserts various claims against the same or
several parties, files all his claims against them in a single
complaint. The joinder will not involve a joinder of parties when
the causes of action joined accrued in favor of the same plaintiff
against the same defendant, i.e., there is only one plaintiff against
the same defendant. This means that a joinder of causes of action
will not necessarily involve a joinder of parties.
Joinder of parties is a procedural device that may be
employed when there are various causes of actions that accrue in
favor of one or more plaintiffs against one or more defendants, i.e.,
there is a plurality of parties. A joinder of parties requires that
before parties can be joined under a single complaint the right to
relief must arise out of the same transaction or series of
transactions and there must be a common question of law or fact.
A joinder of parties may or may not be involved in a joinder of
causes of action.
b.) The joinder shall not include special civil actions
or actions governed by special rules
Assume that aside from the above claims of C against D, C
who happens to be the lessor of D wants to eject D from the
apartment occupied by D as lessee. May the action be joined with
the claims for money?
No. An action for ejectment is a special action which cannot
be joined with ordinary action. The joinder does not include special
civil actions or those governed by special rules. The reason is
confusion in the application of procedural rules would certainly
arise from the joinder of ordinary and special civil actions in a single
complaint.
Assume that C has the following causes of action against D: (a)
P1M based on a PN; (b) P1M based on torts; and (c) foreclosure of
real estate mortgage. May the causes of action be joined?
Yes, except the foreclosure of real estate mortgage, which is a
special civil action.
UNION GLASS AND CONTAINER CORP. vs. SEC
126 SCRA 31
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FACTS: (This is still a good ruling) A stockholder of a
corporation who is also the creditor of the corporation decided to
file one complaint against the corporation asserting several causes
of action, among them is his right as a stockholder under the
Corporation Code and also his right as a creditor under the Civil
Code.
SEC jurisdiction is now transferred to the
RTC in cases of Intra corporate disputes.
HELD: The joinder is improper. In the first place, one is
governed by a quasi-judicial body (SEC). So how can the RTC try a
case when the cause of action is pertaining to the SEC and it is
governed by the special rules of the SEC? So you cannot join that.
c.) Where the causes of action are between the same parties
but pertain to different venues or jurisdictions, the joinder may be
allowed in the Regional Trial Court provided one of the causes of
action falls within the jurisdiction of said court and the venue lies
therein
PROBLEM: M encroached on two parcels of land belonging to
me both located IN Cebu City. In one parcel of land, the assessed
value is only P20,000. In another parcel of land, the assessed value
is P1 million. I would like to file a case of action publiciana against
him. The first accion publiciana is triable by the MTC (P20,000). The
other accion publiciana is triable by the RTC.
Q: Can I join them?
A: YES, and it must be filed it in the RTC. The jurisdiction of
the RTC will prevail. Venue, of course, is Cebu City.
Examples of “but pertain to different venues or jurisdiction”
PROBLEM: M encroached on my land in Lapulapu with an
assessed value of P20,000. And then he encroached in another land
of mine in Cebu City with an assessed value of P1 million. You will
notice that in the Lapulapu land, the jurisdiction is in the MTC for
the case accion publiciana and the venue is Lapulapu because the
property is situated there. In the other case, the jurisdiction is in
the RTC and the venue is Cebu City.
Q: Can I file a case against M joining the 2 cases?
A: YES.
Q: Where is now the governing venue?
A: The venue of the RTC case prevails. Therefore, the case
must be filed in Cebu City.
PROBLEM: M encroached on my land in Lapulapu with an
assessed value of P1 million. And then he encroached in another
land of mine in Cebu City with an assessed value of P1 million also.
You will notice that in the Lapulapu land, the jurisdiction is RTC for
the case accion publiciana. In the other case, the jurisdiction is also
in the RTC of Cebu City. So both actions, RTC.
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Q: In which RTC will you file the case joining the causes of
action?
A: Either Lapulapu or Cebu City because both are RTCs.
PROBLEM: M encroached on my land in Lapulapu with an
assessed value of P20,000. And then he encroached in another land
of mine in Cebu City with an assessed value of P20,000 also. In the
Lapulapu land, the jurisdiction is MTC for the case accion
publiciana. In the other case, the jurisdiction is also in the MTC. So
both actions, MTC.
Q: Can I join in one complaint the 2 actions?
A: NO, because the law says provided one of the causes of
action falls within the jurisdiction of said court and the venue lies
therein. One of them belongs to the RTC. In the example, both
belong to the MTC.
PROBLEM: M encroached on my land more than one year
ago and the land has an assessed value of only P20,000. So if I will
file an accion publiciana, it has to be filed with the MTC. On the
other hand, A encroached my other parcel of land more than one
year ago and the assessed value of the land is P1 million. So my
cause of action there is also accion publiciana but triable by the
RTC. So I decided to file a case naming both of them as
defendants.
Q: Can they be joined under Section 5?
A: NO. The law allows only if it is between the same parties.
This time the parties are not the same. Plus the fact that you might
violate paragraph [a] – there is no common question of fact and
law between them.
PROBLEM: M encroached on my land in Cebu City one month
ago and then he encroached on another land of mine (assessed
value of P1 million) also located in Cebu City two years ago.
Therefore, one case is forcible entry triable by the MTC and the
latter is accion publiciana triable by the RTC.
Q: Can I join them under paragraph [c] although they belong
to MTC and RTC?
A: NO, you cannot join them because of paragraph [b] – a
forcible entry is special civil action which is also governed by the
Summary Procedure. You cannot join a special civil action. So what
is violated here is not paragraph [c] but paragraph [b].
d.) where the claims in all the causes of action are principally
for recovery of money,
the aggregate amount claimed shall be the test of jurisdiction
The last is only a repetition of the old rule: TOTALITY RULE.
There is nothing new here. So judiciary law, totality rule, basta
sums of money.
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As can be gleaned from Sec. 6(a) and (c) of the Truth in

Lending Act, the violation of the said Act gives rise to both criminal
and civil liabilities. Rule 2, Section 5 of the Rules of Court allows
these actions to be joined in one petition. (UCPB vs. Sps. Samuel
and Odette Beluso, GR No. 159912, Aug. 17, 2007).

Splitting a cause of action and joinder of causes of action

Splitting is prohibited because it causes multiplicity of suits

and double vexation on the part of the defendant while joinder is
encouraged because it minimizes multiplicity of suits and
inconvenience on the part of the parties.

SEC. 6. Misjoinder of causes of action. - Misjoinder of causes

of action is not a ground for dismissal of an action. A misjoined
cause of action may, on motion of a party or on the initiative of
the court, be severed and proceeded with separately. (n)

There is misjoinder when two (2) or more causes of action

were joined in one complaint when they should no be joined.

EXAMPLE: A case joining an accion publiciana case and a

forcible entry case which is not proper because a special civil action
(forcible entry) cannot be joined. In this case there is misjoinder of
causes of action.

Example: If an action for forcible entry is joined in one

complaint with the causes of actions based on several promissory
notes, the complaint should not be dismissed based on the
misjoinder of the forcible entry case. Instead, the cause of action
predicated on forcible entry may be severed from the complaint
upon motion of a party or by the court motu proprio and
proceeded with separately in another action.

Under Section 6, if there is misjoinder, you do not dismiss the

case. The remedy is to ask the court that the misjoined case be
severed and tried separately. Now, the counterpart, which is still
present is misjoinder of parties under Rule 3, Section 11:

RULE 3, Sec. 11. Misjoinder and non-joinder of parties. -

Neither misjoinder nor non-joinder of parties ground for dismissal
of an action. Parties may be dropped or added by order of the
court on motion of any party or on its own initiative at any stage
of the action and on such terms as are just. A claim against a
misjoined party may be severed and proceeded with separately.
(11a)

So misjoinder of parties and misjoinder of causes of action are

not grounds for dismissal of an action. Just remove the misjoined
cause of action or the misjoined party.

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Rule 03 A dead man cannot sue and he cannot be sued because he has no
more personality.
PARTIES TO CIVIL ACTIONS
B sued “Rama Eatery.” So, it is “B vs. Rama Eatery.” It is wrong.
CLASSES OF PARTIES:
Rama Eatery is not a person nor an entity authorized by law. The
correct procedure is you sue the owner because he is the real
I. Real Parties in Interest
person. But the defect is not really substantial. It is only a formal
II. Representative Parties
defect that can easily be corrected.
III. Permissive Parties
IV. Indispensable Parties
Juridical person as parties
V. Necessary Parties

The juridical persons who may be parties are those enumerated in

Sec. 1. Who may be parties; plaintiff and defendant. - Only natural
Art. 44 of the Civil Code, namely:
or juridical persons, or entities authorized by law may be parties
in a civil action. The term "plaintiff" may refer to the original
1.) The State and its political subdivisions;
claiming party, the counter-claimant, the cross-claimant, or the
2.) Other corporations, institutions and entities for public
third (fourth, etc.)-party plaintiff. The term "defendant" may
interest or purpose, created by law; and
refer to the original defending party, the defendant in a
3.) Corporations, partnerships, and associations for private
counterclaim, the cross-defendant, or other third (fourth, etc.)-
interest or purpose to which the law grants a juridical
party defendant. (1a)
personality, separate and distinct from that of each
shareholder, partner or member.
Notes:

“ENTITIES AUTHORIZED BY LAW”

There are two main categories of parties in a civil action namely,
the plaintiff and the defendant.
The best example is Section 15 of this rule.

The plaintiff is the claiming party or more appropriately, the

Section 15. Entity without juridical personality as defendant.- When
original claiming party and is the one who files the complaint. The
two or more persons not organized as an entity with juridical
term however, does not exclusively apply to the original plaintiff.
personality enter into a transaction, they may be sued under the
It may also apply to a defendant who files a counterclaim, a cross-
name by which they are generally or commonly known.
claim or third party complaint. Hence Section 1 defines “plaintiff”
In the answer of such defendant the names and addresses of the
as the claiming party, the counter-claimant, the cross-claimant or
persons composing said entity must all be revealed.
the third-party plaintiff, etc.

Thus, if A, B, C, D and E without incorporating themselves or

The defendant does not only refer to the original defending party.
without registering as a partnership, enter into transactions using
If a counterclaim is filed against the original plaintiff, the latter
the common name “Ocean Quest Corporation”, they may be sued
becomes a defendant and the former, a plaintiff in the
as such. When the defendant “corporation” answers, the names of
counterclaim. Hence, in Sec. 1, the term “defendant” refers also
A, B, C, D and E and their addresses must be revealed. Note
to a defendant in a counterclaim, the cross-defendant or the
however, that the authority to be a party under this section is
third-party defendant, etc.
confined only to being a defendant and not as a plaintiff. This is
evident from the words, “they may be sued”.
Q: Who may be parties to a civil case?
A: Only the following may be parties to a civil action:
Another example of an entity authorized by law which may not be
1.He must be either:
a natural or juridical person is a labor union or organization under
(a) natural or
the Labor Code. It is an entity authorized by law to file a case in
(b) juridical persons or
behalf of its members. Although it may not have been incorporated
(c) entities authorized by law.
under the Corporation Law but registered under the Labor Code. A
2. he must have the legal capacity to sue; and
legitimate labor organization may sue and be sued in its registered
3.he must be a real party-in-interest.
name (Art. 242 [e], Labor Code of the Philippines).
So, you cannot sue or be sued unless you are either a person or an
entity authorized by law.
What are the others?

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1.) An estate of a deceased person may be a party to an
action. (Limjoco v. Intestate Estate of Fragante, 8 Phil.
776; Nazareno v. CA 343 SCRA 637)
2.) The Roman Catholic Church may be a party and as to its
properties, the archbishop or diocese to which they
belong may be a party. (Barlin v. Ramirez 7 Phil 47;
Verzosa v. Fernandez 49 Phil. 627)
3.) A dissolved corporation may prosecute and defend suits
by or against it provided that the suits occur within 3
years after its dissolution, and the suits are in connection
with the settlement and closure of its affairs. (Sec. 122,
Corporation Code)
4. Under Sec. 21 of the Corporation Code of the Philippines, a
corporation by estoppel is precluded from denying its existence
and the members thereof can be sued and be held liable as general
partners.
5. A contract of partnership having a capital of three thousand
pesos or more but which fails to comply with the registration
requirements is nevertheless liable as a partnership to third
persons(Art. 1772 in relation to Art. 1768 Civil Code).
6. A political party incorporated under Act 1459 (now BP 68,
Corporation Code)
Remedy when a party impleaded is not authorized to be a party-
As to plaintiff:
Where the plaintiff is not a natural or a juridical person or an entity
authorized by law, a motion to dismiss may be filed on the ground
that “the plaintiff has no legal capacity to sue.” (Sec. 1*d+ R 16)
When plaintiff is not the real party in interest:
Also, if the plaintiff has capacity to sue but he is not the ‘real party
in interest’, the ground for dismissal is a ‘failure to state a cause of
action (Aguila vs. CA 319 SCRA 246; Balagtas vs. CA 317 SCRA 69)
not lack of legal capacity to sue.’
As to defendant:
Where it is the defendant who is not any of the above, the
complaint may be dismissed on the ground that the “pleading
asserting the claim states no cause of action” or “failure to state a
cause of action” (Sec. 1*g+, R 16) because there cannot be a cause
of action against one who cannot be a party to a civil action.
I. REAL PARTIES IN INTEREST
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Sec 2. Parties in interest. - A real party in interest is the party who
stands to be benefited or injured by the judgment in the suit, or
the party entitled to the avails of the suit. Unless otherwise
authorized by law or these Rules, every action must be
prosecuted or defended in the name of the real party in interest.
(2a)
Q: Who is a real party in interest?
A: A real party in interest is the party who stands to be benefited
or injured by the judgment in the suit or the party entitled to the
avails of the suit. (Section 2)
That definition is taken from the leading case of SALONGA VS.
WARNER BARNES & CO. (88 Phil. 125). That is exactly how it is
defined and that definition has been repeated through the years.
To be a real party- in- interest, the interest must be “real”, which is
present substantial interest as distinguished from a mere
expectancy or a future, contingent, subordinate or consequential
interest. (Rayo v. Metrobank, 539 SCRA 571; Fortich v. Corona 289
SCRA 624; Figuracion v. Libi 539 SCRA 50. It is an interest that is
material and direct, as distinguished from a mere incidental
interest in the question. (Samaniego v. Aguila 334 SCRA 438; Mayor
Rhustom Dagadag v. Tongnawa 450 SCRA 437).
The determination of who the real party-in-interest is requires
going back to the elements of a cause of action. Evidently the
owner of the right violated stands to be the real party-in-interest
as plaintiff and the person responsible for the violation is the real
party-in-interest as defendant.(Lee v. Romillo 161 SCRA 589). Thus,
in a suit for violation of a contract, the parties-in-interest would be
those covered by the operation of the doctrine of relativity of
contracts under Art. 1311 of the Civil Code, namely, the parties,
their assignees and heirs. Likewise in a suit for annulment of a
contract, the real parties in interest would be those who are
principally or subsidiarily bound by the contract. (Art. 1397 Civil
Code)
every action must be prosecuted or defended
in the name of the real party in interest
So a complaint is dismissible if it is not made in the name of the
real party in interest.
In an action to recover ownership over or title to a piece of land ,
you do not file a case against the tenant. He is not the real party in
interest. You must file the case against the owner of the land.
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Neither can your boyfriend file the case.
When you are riding in a common carrier which collided and you
were injured, do not file a case against the driver for damages. Your
contract is not with the driver. Your contract is with the operator.
So you file a case of culpa contractual against the owner or
operator.
GENERAL RULE: In a breach of contract, the real parties in interest
are the parties to the contract. So strangers, as a rule, have no
business suing in a contract because they are not real parties in
interest.
BALIWAG TRANSIT vs. COURT OF APPEALS
169 SCRA 649 [1989 BAR]
FACTS: A student who was riding in one of the Baliwag buses met
an accident. So, an action was filed where the parents and the
injured boy were the co-plaintiffs against Baliwag Transit. While the
case was going on, the boy entered into amicable settlement with
the bus company. Based on the settlement, Baliwag moved to
dismiss the case. The parents objected, “We are objecting because
we are also plaintiffs. We didn’t know about the settlement. We
were the ones who spent money, therefore it should not be
dismissed simply because our son is withdrawing the case.”
HELD: The parents are not the real party in interest. They were not
the passengers. The real parties in a contract of carriage are the
parties to the contract itself. “In the absence of any contract of
carriage between the transportation company and the parents of
the injured party, the parents are not real parties in interest in an
action for breach of contract.”
Of course, if the child is a minor the parents can file as
representatives but not as principal party.
EXCEPTION: When there is a stipulation in the contract favorable to
a third person (stipulation pour autrui – Art. 1311, NCC)
Example: Third-Party Liability (TPL) in insurance. A insured his car
with B for TPL. A bumped C. C can file a case against A and B to
recover from the insurance contract. In other words, while only A
and B are the parties to the insurance contract yet the third party
liability stipulation is intended to benefit a third party who may be
damaged by A while driving his car.
Also parties who have not taken part in a contract may show that
they have a real interest affected by its performance or annulment.
In other words, those who are not principally or subsidiarily
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obligated in a contract, in which they had no intervention, may
show their detriment that could result from it. Thus, Article 1313 of
the Civil Code provides that “creditors are protected in cases of
contracts intended to defraud them.” Further, Article 1381 of the
Civil Code provides that contracts entered into in fraud of creditors
may be rescinded when the creditors cannot in any manner collect
the claims due them. Thus, a creditor who is not a party to a
contract can sue to rescind the contract to redress the fraud
committed upon him.
A mere agent, who is not an assignee of the principal cannot bring
suit under a deed of sale entered into in behalf of his principal
because it is the principal, not the agent who is the real party in
interest (Uy vs. CA 314 SCRA 69). In case the action is brought
against the agent, the action must be brought against an agent
acting in his own name and for the benefit of an undisclosed
principal without joining the principal, except when the contract
involves things belonging to the principal. The real party-in-interest
is the party who would be benefited or injured by the judgment or
is the party entitled to the avails of the suit. An attorney-in-fact is
not a real party-in-interest and that there is no law permitting an
action to be brought by and against an attorney-in-fact (Carillo vs.
CA 503 SCRA 66).
SALONGA vs. WARNER BARNES
88 Phil. 125 [Bar Problem]
FACTS: A decided to go abroad but she has properties in the
Philippines. So she executed a special power of attorney in favor of
K giving the latter “full power to administer, to collect all my
money; to withdraw my money in the bank; with full power to sue
these people who owe me; with the authority to hire a lawyer; and
enter into a contract. Practically, you are my alter ego.” And then A
went abroad.
K started to manage the property. One of the tenants failed to pay
rentals. So in accordance with the authority, he hired a lawyer. In
preparation of the complaint, it was stated in the caption, “K,
plaintiff vs. L, defendant.”
ISSUE: Is the action properly filed?
HELD: NO. The real party in interest is the principal, the owner of
the property. K is only an attorney-in-fact. An attorney-in-fact
cannot use in his own name because he is not the real party in
interest. K is given the authority to sue, to manage, hire a lawyer
but not as the plaintiff because the real party in interest is A. The
complaint should be captioned as “A, plaintiff vs. L, defendant.”
Q: Suppose the caption will read: “K, as attorney-in-fact of A,
plaintiff vs. L, defendant” is the complaint properly filed?
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A: NO. This is even worse because K is admitting that he is only an
attorney-in-fact so it becomes more obvious that he is not the real
party in interest. If K wants to include his name, it should read: “A,
plaintiff, represented by K, his attorney-in-fact vs. L, defendant.”
Q: Does the law require A to come here to file the case?
A: NO. Take note that the law does not require the principal (A) to
come back to file the case because the plaintiff can invoke the
jurisdiction of the court by filing the complaint and paying the
docket fee.
Should a lawful possessor be disturbed in his possession, it is the
possessor, not necessarily the owner of the property, who can
bring the action to recover the possession. The argument that the
complaint states no cause of action because the suit was filed by a
mere possessor and not by the owner is not correct (Phil. Trust
Company vs. CA 320 SCRA 719).
Suits for corporations:
When the corporate offices have been illegally searched, the
corporate officer is not the real party in interest to question the
search. The right to contest the transgression belongs to the
corporation alone which has a personality of its own separate and
distinct from that of an officer or a stockholder. The objection to an
unlawful search and seizure is purely personal and cannot be
availed of by third persons (Stonehill vs. Diokno 20 SCRA 383).
Derivative suit:
However, even if the cause of action belongs to the corporation, if
the board refuses to sue despite demand by the stockholders to
sue and protect or vindicate corporate rights, a stockholder is
allowed by law to file a derivative suit in the corporate name. In
such a suit, the real party-in-interest is actually the corporation and
the stockholder filing the action is a mere nominal party (Asset
Privatization Trust vs. CA 300 SCRA 579)
Partnerships:
Under Art. 1768 of the Civil Code a partnership has a juridical
personality separate and distinct from that of each of the partners.
Hence, if the contract was entered into by the partnership in its
name, it is the partnership, not its officers or agents which should
be impleaded in any litigation involving property registered in its
name. A violation of this rule will result in dismissal of the
complaint for failure to state a cause of action (Aguila vs. CA 319
SCRA 345).
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Failure to include the name of a party in the pleading
The mere failure to include the name of a party in the title of the
complaint is not fatal because the Rules of Court requires the
courts to pierce the form and go into the substance and not be
misled by a false or wrong name in the pleadings. The averments
are controlling and not the title. Hence, if the body indicates the
defendant as a party to the action, his omission in the title is not
fatal (Vlasons Enterprises vs. CA 310 SCRA 26).
Rule on ‘standing’ as distinguished from the concept or ‘real party-
in-interest’
Locus standi is defined as a right of appearance in a court of justice
on a given question. IN private suits, standing is governed by the
‘real party-in-interest’ rule found in Section 2 Rule 3 of the Rules
of Court which provides that ‘every action must be prosecuted or
defended in the name of the real party-in-interest’(Baltazar vs.
Ombudsman GR No. 136433 December 6, 2006)
However, the concept of ‘standing’ because of its constitutional
underpinnings is very different from questions relating to whether
or not a particular party is a real party-in-interest. Although both
are directed towards ensuring that only certain parties can
maintain an action, the concept of standing requires an analysis
of broader policy concerns. The question as to who the real party-
in-interest is involves only a question on whether a person would
be benefitted or injured by the judgment or whether or not he is
entitled to the avails of the suit (Kilosbayan Inc. vs. Morato 246
SCRA 540).
II. REPRESENTATIVE PARTY
Sec. 3. Representatives as parties. - Where the action is allowed to
be prosecuted or defended by a representative or someone acting
in a fiduciary capacity, the beneficiary shall be included in the title
of the case and shall be deemed to be the real party in interest. A
representative may be a trustee of an express trust, a guardian,
an executor or administrator, or a party authorized by law or
these Rules. An agent acting in his own name and for the benefit
of an undisclosed principal may sue or be sued without joining the
principal except when the contract involves things belonging to
the principal. (3a)
Section 3 is consistent with Section 2 because under Section 2, you
cannot sue and be sued if you are not the real party in interest.
Section 3 allows one who is not a real party in interest to sue and
be sued in behalf of somebody else but requires the beneficiary to
be named in the Complaint being the real party in interest.
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Example: GUARDIAN. Suppose J, a minor was injured, a case for
damages can be filed in behalf of the minor. A minor cannot sue
and be sued but she is the real party in interest. The law allows the
parents to come in and also be the plaintiff. The parents are what
we call the representative party. The law still requires for the minor
to be included in the case. The law states that “the beneficiary shall
be included in the title of the case and shall be deemed to be the
real party in interest.”
In Oposa vs. Factoran GR No. 101083, 1993, minors represented by
their parents were held as real parties in interest to file an action to
annul timber license agreements issued by the state under the
following principles:
1. inter-generational responsibility;
2. inter-generational justice;
3. the right of the Filipinos to a balanced and healthful ecology; and
4. minors represent themselves and the generation to come.
Example: TRUSTEE; EXECUTOR; ADMINISTRATOR. Another example
is a trustee of an express trust, or executor or administrator of the
estate of a deceased person. When a person dies, what survives
after him is his estate which represents everything that is left
behind. This later on will be given to his heirs. But for the
meantime under the law on succession, the executor or
administrator will take charge of his property.
Q: If the estate of the deceased has some collectibles, who will file
the case?
A: The administrator or executor as the representative party. If you
want to sue the estate, you should sue the estate through the
administrator or executor.
CHING vs. COURT OF APPEALS
181 SCRA 9
FACTS: A wanted to sue D, who owes her a sum of money. The
problem is, she cannot locate D’s whereabouts. Also, A is not
certain whether D is dead or alive. So, to play it safe, what A did
was to file a case against the “defendant and/or the estate of
defendant.” A obtained a judgment against the ‘defendant and/or
the estate of defendant.’
Later on when the judgment was enforced, it turned out that D was
already dead but he has properties left behind. So, they started to
take hold of his properties. Now, the heirs of D challenged the
decision.
ISSUE: Whether or not there was a valid judgment against the
‘defendant/or the estate of the defendant.”
HELD: The decision is void. “The decision of the lower court insofar
as the deceased is concerned, is void for lack of jurisdiction over his
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person. He was not, and he could not have been validly served with
summons. He had no more civil personality. His juridical
personality, that is fitness to be subject of legal relations, was lost
through death (Arts. 37 and 42 Civil Code).”
“The same conclusion would still inevitably be reached
notwithstanding joinder of B’s estate as co-defendant. It is a well-
settled rule that an estate can sue or be sued through an executor
or administrator in his representative capacity.”
So, the Court cited Section 3. In order to bind the estate, you
should sue the executor or the administrator of his estate. So,
either way, the case cannot prosper.
The last sentence of Section 3:
An agent acting in his own name and for the benefit of an
undisclosed principal may sue or be sued without joining the
principal except when the contract involves things belonging to
the principal.
The agent cannot sue because the principal is the real party in
interest. But when an agent acts in his own name and for the
benefit of an undisclosed principal, he may sue and be sued,
EXCEPT when the contract involves things belonging to the
principal. Under the exception, the principal has really to be
included. The agent cannot file a case where the principal will lose
his property without being named as part to the case.
Sec 4. Spouses as parties. - Husband and wife shall sue or be sued
jointly, except as provided by law. (4a)
Normally, the husband and the wife should sue and be sued
together. Even if the wife borrowed money alone and you want to
sue the woman, still the husband should be included. Why? In the
property relationship between the husband and wife, they are
governed by absolute community or conjugal partnership. Whether
you like it or not, the implication of the wife is also the implication
of the husband because of the property relationship.
In the same manner, if the wife wants to collect, even if the
husband does not know anything about it, the husband should still
be named as party plaintiff, on the ground again that the income
that she can get redounds to the benefit of the conjugal
partnership.
And there were decided cases in the past where even if for
example, a wife sues without the husband, the defect is not fatal
but merely formal. The complaint should not be dismissed. All that
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is to be done is to amend the complaint impleading the husband.
(Cuyugan vs. Dizon, 76 Phil. 80)
Q: Give an exception to that general rule that husband and wife
shall sue or be sued jointly.
A: The EXCEPTIONS are:
1. in case of Complete Separation of Property (Article 145, Family
Code), and
2. under Article 111, Family Code:
Art. 111. A spouse of age may mortgage, alienate, encumber or
otherwise dispose of his or her exclusive property without the
consent of the other spouse and appear alone in court to litigate
with regard to the same. (Family Code)
3. Another is when a spouse without just cause abandons the other
or fails to comply with his or her obligations to the family with
respect to the marital, parental or property relations.
Sec 5. Minor or incompetent persons. - A minor or a person alleged
to be incompetent, may sue or be sued, with the assistance of his
father, mother, guardian, or if he has none, a guardian ad litem.
(5a)
Section 5 is related to Section 3. The minor or incompetent person
must be assisted by the parents and considered as representative
party. Incompetent persons include insane people or mentally
retarded people. They are supposed to be under the custody of
other persons, the guardians. If no guardian, the court has to
appoint a guardian called the guardian ad litem.
A person need not be judicially declared incompetent it being
sufficient that his incompetency be alleged in the corresponding
pleading.
III. PERMISSIVE PARTY
Sec 6. Permissive joinder of parties. - All persons in whom or
against whom any right to relief in respect to or arising out of the
same transaction or series of transactions is alleged to exist,
whether jointly, severally, or in the alternative, may, except as
otherwise provided in these Rules, join as plaintiffs or be joined
as defendants in one complaint, where any question of law or fact
common to all such plaintiffs or to all such defendants may arise
in the action; but the court may make such orders as may be just
to prevent any plaintiff or defendant from being embarrassed or
put to expense in connection with any proceedings in which he
may have no interest. (6)
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Section 6 is known as permissive joinder of parties. This is related
to Section 5 [a] of Rule 2 on joinder of causes of action.
Q: May two or more persons join in one complaint as
plaintiffs? Or can two or more persons be joined together as
defendants?
A: YES, under two conditions, to wit:
1.) There is a right to relief in favor of or against the parties
joined in respect to or arising out of the same
transaction or series of transactions; and
2.) There is a question of law or fact common to the parties
joined in the action.
3.) An additional condition is that such joinder is not otherwise
proscribed by the provision of the rules on jurisdiction and venue.
Series of Transactions
This pertains to transactions connected with the same subject
matter of the suit.
PROBLEM: Suppose some passengers riding a particular common
carrier are injured because of an accident. All of them want to sue
the operator of the carrier for damages arising out of the breach of
contract of carriage. Under the Law on Transportation, it is possible
for each passenger to file his own case because their causes of
action are different from each other. But can they be joined
together in one complaint against the common carrier?
A: YES because there is a common question of law or fact in the
causes of actions of the injured passengers: the evidence is
identical; the issues whether the carrier is at fault are the came;
the witnesses for both parties will be the same; the report will be
the same; the defense of the operator against one party will be the
same defense as against the other passenger. So, since there is a
common denominator on their causes of action, they can be
joined.
It would be different if the passengers were riding on different
buses belonging to the same company, and all of them met an
accident. What happened to Passenger No. 1 does not concern
Passenger No. 2. The evidence will not be the same. So, there is no
common denominator – no common question of fact. Therefore,
they cannot be joined.
PROBLEM: Suppose a story appeared in the Inquirer where 5
people were called as jueteng kings. They were allegedly involved
in jueteng. Now, the five of them want to sue the Inquirer for
damages arising from libel. Is it possible for the five (5) people
named in the article to file only one complaint against the editor
and publisher of the Inquirer?
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A: YES because it is of the same story. Their names appeared in the
same story. It is not a different issue. So there is a common
question of fact and law in their cause of action.
PROBLEM: M, while driving a car, bumped another vehicle, injuring
the driver and causing injury to other passengers. So, there are
three offended parties : the owner of the vehicle, the driver of the
vehicle , and the passenger. There are three(3) causes of action.
Can they join in one complaint against Myra, the owner of the car
which bumped them?
A: YES because there is a common question of fact and law. There
is only one accident.
Q: But suppose the three of them will file 3 separate cases against
M, can it be done?
A: yes, because it is a permissive joinder of parties, not mandatory.
Q: Why does the law encourage joinder of parties?
A: The following are the reasons:
1.) to promote convenience in trial;
2.) to prevent multiplicity of suits;
3.) to expedite the termination of the litigation; and
4.) to attain economy of procedure under which several demands
arising out of the same occurrence may be tried together thus
avoiding the repetition of evidence relating to facts common
to the general demands.
Now, take note that when there is joinder of parties, there is
automatically a joinder of causes of action. That is why one of the
conditions or limitations in joinder of causes of action is you must
observe the rule on joinder of parties. If joinder of parties is
improper under Rule 3, the joinder of causes of action is also
proper under Rule 2, Section 5
Principle: WHEN THERE IS JOINDER OF PARTIES, THERE IS ALSO A
JOINDER OF CAUSES OF ACTION. BUT THERE CAN BE A JOINDER OF
CAUSES OF ACTION WITHOUT A JOINDER OF PARTIES.
EXAMPLE: When there is only one plaintiff and one defendant:
Suppose Melissa will secure three (3) loans from me.
Q: How many causes of action do I have if M will not pay me?
A: Three
Q: Now, can I join them in one complaint?
A: Yes.
Q: Is there joinder of causes of action?
A: Yes.
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Q: Is there joinder of parties?
A: NONE, because there is only one plaintiff and one defendant.
So, there can be joinder of causes of action without joinder of
parties because there is only one plaintiff and one defendant. But if
you join parties in Rule 3, automatically, there is joinder of causes
of action. This is the relationship of these two provisions.
Finally, the last two types of parties to the action are the so-called
indispensable parties and necessary parties. (Section 7 and Section
8, respectively)
INDISPENSABLE PARTY and NECESSARY PARTIES
Sec. 7. Compulsory joinder of indispensable parties. Parties in
interest without whom no final determination can be had of an
action shall be joined either as plaintiffs or defendants. (7)
Sec. 8. Necessary party. A necessary party is one who is not
indispensable but who ought to be joined as a party if complete
relief is to be accorded as to those already parties, or for a
complete determination or settlement of the claim subject of the
action. (8a)
Notes:
An indispensable party is a real party in interest without whom no
final determination can be had of an action. (Sec. 7) Without the
presence of this party, the judgment cannot attain real finality.
(Servicewide Specialists, Inc. v. CA 318 SCRA 493; De Castro v. CA
384 SCRA 607)
(See also Lucman vs. Malawi GR No. 159794 December 19, 2006)
A person is not an indispensable party, however, if his interest in
the controversy or subject matter is separable from the interest
of the other parties, so that it will not necessarily be directly or
injuriously affected by a decree which does complete justice
between them. Also, a person is not an indispensable party if his
presence would merely permit complete relief between him and
those already parties to the action, or if he has no interest in the
subject matter of the action. It is not a sufficient reason to declare
a person to be an indispensable party that his presence will avoid
multiple litigation. In a joint obligation for instance, the interest of
one debtor is separate and distinct from that of his co-debtor and a
suit against one debtor does not make the other an indispensable
party to the suit.
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Compulsory joinder of indispensable parties
Although normally, a joinder of parties is permissive (Sec. 6 Rule 3),
the joinder of a party becomes compulsory when the one involved
is an indispensable party. Clearly, the rule directs a compulsory
joinder of indispensable parties (Sec. 7, Rule 3).
The presence of all indispensable parties is a condition sine qua
non for the existence of judicial power. It is precisely when an
indispensable party is not before the court that the action should
be dismissed. Thus, the plaintiff is mandated to implead all the
indispensable parties considering that the absence of one such
party renders all subsequent actions of the court null and void for
want of authority to act, not only as to their absent parties but
even as to those present. One who is not a party to a case is not
bound by the decision of the court; otherwise, he will be deprived
of his right to due process (Sepulveda, Sr. vs. Pelaez 450 SCRA 302).
Dismissal for failure to implead an indispensable party
It has been ruled on various occasions that since the joinder of
indispensable parties is compulsory, the action should be dismissed
when indispensable parties are not impleaded or are not before
the court. The absence of indispensable parties renders all
subsequent actions of the trial court null and void for want of
authority to act, not only as to the absent parties but even as to
those present (MWSS vs. CA 297 SCRA 287).
Need of an order to implead an indispensable party
It is noteworthy that the Court in its rulings did not hold that the
failure to join an indispensable party results in the outright
dismissal of the action. An outright dismissal is not the immediate
remedy authorized by the Rules because under the Rules a non-
joinder (or misjoinder) of parties is not a ground for dismissal of
an action. Instead, parties may be dropped or added by the court
on motion of any party or on its own initiative at any stage of the
action and on such terms as are just (Sec. 11 Rule 3). It is when the
order of the court to implead an indispensable party goes
unheeded may the case be dismissed. The court is fully clothed
with the authority to dismiss a complaint due to the fault of the
plaintiff as when, among others, he does not comply with any
order of the court (Sec. 3 Rule 17; Plasabas vs. CA GR No. 166519,
March 31, 2009). (See also Pamplona Plantation Co. vs. Tinghil
450 SCRA 421).
Effect of absence of indispensable party
In a relatively recent case, the Court held that whenever it
appears to the court in the course of a proceeding that an
indispensable party has not been joined, it is the duty of the court
to stop the trial and to order the inclusion of such party. The
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absence of an indispensable party renders all subsequent
actuations of the court null and void, for want of authority to act
not only as to the absent parties, but even as to those present.
Accordingly, the responsibility of impleading all the indispensable
parties rests on the plaintiff. The defendant does not have the
right to compel the plaintiff to prosecute the action against a party
if he does not wish to do so, but the plaintiff will have to suffer the
consequences of any error he might commit in exercising his option
(Uy vs. CA 494 SCRA 535).
Q: Distinguish indispensable from necessary party.
A: An INDISPENSABLE PARTY must be joined under any and all
conditions, his presence being a sine qua non of the exercise of
judicial power, for without him, no final determination can be had
of the action. (Borlasa vs. Polistico, 47 Phil. 345) Stated otherwise,
an indispensable party must be joined because the court cannot
proceed without him. Hence, his presence is mandatory.
A NECESSARY PARTY ought to be joined whenever possible in
order to adjudicate the whole controversy and avoid multiplicity
of suits, but if for some reason or another he cannot be joined, the
court may proceed without him and the judgment shall not
prejudice his rights. (Ibid.) His presence is not mandatory because
his interest is separable from that of the indispensable party. He
has to be joined whenever possible to afford complete relief to
those who are already parties.
A final decree can be had in a case even without a necessary party
because his interests are separable from the interest litigated in
the case (Chua v. Torres 468 SCRA 358, 367; Seno vs. Mangubat
156 SCRA 113, 119).
Q: Give examples of indispensable party.
A: In an action for partition of land, all the co-owners thereof are
indispensable parties. (De Lara vs. De Lara, 2 Phil. 294) In an action
for annulment of partition, all of the heirs must be made parties.
(Caram vs. CA, 101 Phil. 315) In an action for recovery of ownership
of land, the person who claims to be the owner of the land is the
indispensable party defendant and not the one in possession as
tenant. (Sanidad vs. Cabotaje, 5 Phil. 204; Manza vs. Santiago, 96
Phil. 938)
Q: Give examples of necessary party.
A: In an action for collection of debt instituted by the creditor
against the surety, the principal debtor is merely a necessary party.
(Vaño vs. Alo, 95 Phil. 495) In an action for recovery of debt
instituted by the creditor against the debtor, the guarantor or
surety is merely a necessary property. (Ibid.) In an action for
foreclosure of a real estate mortgage instituted by the first
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mortgagee, the second mortgagee is merely a necessary party.
(Somes vs. Gov’t of Phil., 62 Phil. 432)
REVIEW: What is the difference between a surety and a guarantor?
The liability of guarantor to the creditor is only secondary.
Meaning, the guarantor is only liable to the creditor if the principal
debtor cannot pay like when the debtor is insolvent. On the other
hand, a surety is principally liable to the creditor whether or not
the debtor can pay.
PROBLEM: In credit transactions, there is a creditor, debtor and
surety. Debtor borrowed money from the creditor, then another
acted as the surety. Now, suppose the debtor will not pay, the
creditor files now a case against the surety without the debtor. The
debtor was not included in the case.
Q: Can the case proceed even without the debtor being sued?
A: YES, the case may proceed.
Now, the surety may be ordered to pay who can sue the principal
debtor for reimbursement. Meaning, there is still a future case.
Thus, there could be no complete relief between those who are
parties. So, the debtor is a necessary party, and not indispensable.
But it is advisable to join the debtor in one case, so that when the
creditor claims from the surety, the latter can automatically claim
from the debtor. Multiplicity of suits is then, avoided.
Joint debtor
He is an indispensable party in a suit against him but a necessary
party in a suit against his co-debtor.
Solidary debtor
In a suit brought by a creditor against one solidary debtor, the
other solidary debtor is neither indispensable nor a necessary
party.
A and B are the signatories in a PN which reads: “We promise to
pay to the order of C P1M on February 27, 2009. On due date the
debtors failed to pay.
(a) May C sue A alone?
Yes. The cause of action against A is separate and distinct from the
cause of action against B. The tenor of the note discloses merely a
joint obligation. In a joint obligation the credit or debt shall be
divided into as many equal shares as there are creditors and
debtors, the credits or debts being considered distinct from each
other. (Art. 1208 CC). Being debtors in a joint obligation, the
debtors then are liable separately for P500,000.00 each.
(b) Is A in a suit against him by C a necessary or an
indispensable party? He is an indispensable party.
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Without him being impleaded as defendant, C cannot
collect the P500,000.00 share of A. Without A there
cannot be a final determination of the case against him.
(c) In the suit by C against A is B a necessary or an
indispensable party? B is not an indispensable party. C
can collect from A P500,000.00 without impleading B. He
is only a necessary party. Without B being made a party
to the action, C cannot have a complete relief, i.e., he
cannot collect his entire credit of P1M. If he desires a
complete recovery, B must be impleaded in the case
against A.
(3) In the above example, assuming that the debtors bound
themselves to pay the P1M solidarily, would B an indispensable or
necessary party to a suit by C against A? He would not be a
necessary party. Complete relief could be had by C without joining
B because the obligation is solidary. A could be ordered to pay the
entire obligation of P1M. Neither is B an indispensable party. There
could be a complete and final determination of the action for a sum
of money without B being joined.
Solidarity does not make a solidary debtor an indispensable party in
a suit filed by the creditor against another solidary debtor.
(Republic v. Sandiganbayan 173 SCRA 72; Operators Inc. v.
American Biscuit Company 154 SCRA 738)
(4) B Bought a car from S on an installment basis. A chattel
mortgage was executed on the car in favor of S to secure the
obligation. Before the payment was completed, B sold the car to D.
It was agreed between B and D that D would be responsible for the
monthly installments. D failed to pay three installments.
May S sue D alone in the foreclosure or replevin suit? He cannot. B
must be made defendant. B is an indispensable party in relation to
S. The foreclosure or replevin is premised on the default of B, the
debtor. S would have no right to foreclose the mortgage or
repossess the car without establishing the default of B unless the
obligation of B to S was assigned to D with the consent of S
thereby novating the obligation.
PROBLEM: K borrowed money from D. A is the guarantor. D filed a
case against K. She did not include the guarantor.
Q: Can the case proceed even without the guarantor?
Q: YES because the guarantor is merely a necessary party. And if
the debtor turns out to be insolvent, the creditor will now file
another case against the guarantor.
Sec. 9. Non-joinder of necessary parties to be pleaded. Whenever in
any pleading in which a claim is asserted a necessary party is not
joined, the pleader shall set forth his name, if known, and shall
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state why he is omitted. Should the court find the reason for the
omission unmeritorious, it may order the inclusion of the omitted
necessary party if jurisdiction over his person may be obtained.
The failure to comply with the order for his inclusion, without
justifiable cause, shall be deemed a waiver of the claim against
such party.
The non-inclusion of a necessary party does not prevent the court
from proceeding in the action, and the judgment rendered therein
shall be without prejudice to the rights of such necessary party.
(8a, 9a)
Duty of Pleader When a Necessary Party is not joined
While a necessary party is not indispensable to the final
determination of the action, said party ought to be joined
whenever possible. If a pleader has no intent to implead a
necessary party, the pleader is under obligation to: (a) set forth the
name of said necessary party, if known, and (b) state the reason
why the necessary party is omitted. A reason justifying the non-
joinder of a necessary party is when said party is outside the
jurisdiction of the court.
Effect of justified failure to implead a necessary party
Assuming that a necessary party cannot be impleaded, his
non-inclusion does not prevent the court from proceeding with the
action. The judgment rendered shall be without prejudice to the
rights of such necessary party.
When court may order joinder of a necessary party and effect of
failure to comply
However, if the court finds no valid reason for not impleading a
party, the court may order the inclusion of the necessary party
under Section 9. And take note that under the new rules, the
failure to comply with the order of inclusion without justifiable
cause shall be deemed a waiver of the claim against such
(necessary) party.
Marmo, et al. v. Anacay, G.R. No. 182585, November 27, 2008,
Brion, J
- When the controversy involves a property held in
common, Article 487, NCC explicitly provides that
anyone of the co-owners may bring an action in
ejectment. The term action in ejectment includes a suit
for forcible entry of unlawful detainer (De Guia v. CA,
459 Phil. 447 (2003)); action publiciana or
reinvindicatoria (Heirs of Thomas Dolleton v. Fill- Estate
Management, Inc., G.R. No. 170750, April 7, 2009;
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Amoroso v. Alegre, Jr., G.R. No. 142766, June 15, 2007;
Estreller v. Ysmael, G.R. No. 170-260, March 13, 2009;
Plasabas v. CA, G.R. No. 166519, March 31,2009).
Sec. 10. Unwilling co-plaintiff. If the consent of any party who
should be joined as plaintiff cannot be obtained, he may be made
a defendant and the reason therefor shall be stated in the
complaint. (10)
This is particularly true with INDISPENSABLE parties because the
case cannot proceed without him/her/.
EXAMPLE : There are 4 brothers and 1 sister. They have to file a
case against somebody to recover property which they believe was
owned by their parents. Then, brother 4 say to sister 1, “Let us file
a case.” But sabi ni sister 1, “Pilitin mo muna ako.” Then she says,
“Ayoko nga, hindi mo ako pinilit eh!” Meaning, all of them will
suffer because ayaw ni sister 1 mag-file ng kaso.
Q: Now, what is the remedy of the 4 brothers?
A: Under Section 10, include the one who refused as one of the
defendants. If there is unwilling plaintiff, name him as defendant
whether he likes it or not.
MISJOINDER AND NON-JOINDER OF PARTIES
Sec. 11. Misjoinder and non-joinder of parties. Neither misjoinder
nor non-joinder of parties is ground for dismissal of an action.
Parties may be dropped or added by order of the court on motion
of any party or on its own initiative at any stage of the action and
on such terms as are just. Any claim against a misjoined party may
be severed and proceeded with separately. (11a)
This is similar to Section 6 of Rule 2 – misjoinder of causes of action
is not a ground for dismissal of an action. Misjoinder or non-joinder
at parties is not a ground for a motion to dismiss because at any
stage of the case, the court can order a misjoined party to be
removed or a party not joined to be included.
Q: Do you know what ‘MISJOINDER of parties’ mean?
A: It means that two or more parties should not be joined but they
are improperly joined. A good example is, if there is no common
question of fact or law. Meaning, you do not have any business to
be here but you are joined or misjoined. That is what we call
misjoinder of parties. It is also known as “spurious class suit.”
Well, ‘NON-JOINDER’ is different. A party who should be joined was
not joined such as a necessary party.
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Q: What happens if a party is misjoined or if there is a non-joinder,
should the case be dismissed?
A: No, that is not a ground for dismissal.
Q: So what is the remedy then?
A: The remedy is to order the removal of the party who is
misjoined, or to order the inclusion of the party who should be
joined. And that is not a defect which should cause the dismissal
of the case because the court can always issue an order ordering
the removal of a misjoined party or the inclusion of joinder of a
party who should be included.
Estrella Aduan Orpiano v. Spouses Antonio C. Tomas and Myrna
U. Tomas, G.R. No. 178611. January 14, 2013
Parties; dropping of parties; remedies for joinder or misjoinder.
Under the Rules, 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. Indeed, it would have
been just for the collection court to have allowed Estrella to
prosecute her annulment case by dropping her as a party plaintiff
in the collection case, not only so that she could protect her
conjugal share, but also to prevent the interests of her co-plaintiffs
from being adversely affected by their conflicting actions in the
same case. By seeking to be dropped from the collection case,
Estrella was foregoing collection of her share in the amount that
may be due and owing from the sale. It does not imply a waiver in
any manner that affects the rights of the other heirs.
While Estrella correctly made use of the remedies available to her –
amending the complaint and filing a motion to drop her as a party –
she committed a mistake in proceeding to file the annulment case
directly after these remedies were denied her by the collection
court without first questioning or addressing the propriety of these
denials. While she may have been frustrated by the collection
court’s repeated rejection of her motions and its apparent inability
to appreciate her plight, her proper recourse nevertheless should
have been to file a petition for certiorari or otherwise question the
trial courts denial of her motion to be dropped as plaintiff, citing
just reasons which call for a ruling to the contrary. Issues arising
from joinder or misjoinder of parties are the proper subject
of certiorari.
Effect of failure to obey order of the court to add or drop a party
Even if neither misjoinder nor non-joinder is a ground of dismissal
of the action, the failure to obey the order of the court to drop or
add a party is a ground for the dismissal of the complaint under
Sec. 3, R 17.
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Q: Does it mean to say therefore, that the plaintiff has the license
to include anybody in an action? Like for example, I have a case
against somebody in the class, the trouble is in the meantime, I
cannot identify who among you who did the wrong to me. So I will
file a case against all of you. Anyway later on, I can dump you.
Now, is this allowed?
A: NO. That is not a license. What the law contemplates, according
to the SC, the party was joined in good faith believing that he was a
defendant but actually it turned out to be wrong. So, you have no
right to sue anybody just like that. That is not an excuse for suing
any party left and right. In the case of
REPUBLIC vs. SANDIGANBAYAN
173 SCRA 72 [1989]
HELD: Section 11 of Rule 3 “does not comprehend whimsical and
irrational dropping or adding of parties in a complaint. What it
really contemplates is erroneous or mistaken non-joinder and
misjoinder of parties. No one is free to join anybody in a complaint
in court only to drop him unceremoniously later at the pleasure of
the plaintiff. The rule presupposes that the original inclusion had
been made in the honest conviction that it was proper and the
subsequent dropping is requested because it turned out that such
inclusion was a mistake. And this is the reason why the rule ordains
that the dropping is ‘on such terms as are just’” (also Lim Tan Hu vs.
Ramolete 66 SCRA 425).
Note that objections to defects in parties should be made at the
earliest opportunity, i.e. the moment such defect becomes
apparent, by a Motion to Strike the Names of the Parties
impleaded. Objections to misjoinder cannot be raised for the first
time on appeal.
CLASS SUIT
SEC. 12. Class suit. When the subject matter of the controversy is
one of common or general interest to many persons so numerous
that it is impracticable to join all as parties, a number of them
which the court finds to be sufficiently numerous and
representative as to fully protect the interests of all concerned
may sue or defend for the benefit of all. Any party in interest shall
have the right to intervene to protect his individual interest. (12a)
As a GENERAL RULE, if there are several real parties in interest,
they shall be included in the case whether indispensable or
necessary. Example: There are 30 of us. The general rule is that all
parties in interest, indispensable or necessary shall be included
because under Sec. 2 “every action must be prosecuted or
defended in the name of the real party-in-interest.”
EXCEPTION to the General Rule: Class Suit.
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A class suit is an action where one or more may sue for the benefit
of all implying that the parties are so numerous and it is
impracticble to bring them all to court.
The requisites for said class action must also be complied with.
Meaning, some of you will sue to represent the rest. That is also
known as the “doctrine of virtual representation.” The concept of
a class suit was first enunciated in the old case of
BORLAZA vs. POLISTICO
47 Phil. 345
FACTS: This case has something to do with raffle. A group of people
decided to form an association which they called “Turnuhang
Polistico.” You become a member of this association by
contributing a certain sum of money. And then every Sunday after
mass, half of the collection will go to the treasurer of the
association. The other half will be raffled off. This has been going
on for months and years. The time came when the funds of the
association became very big. Some of the members, in behalf of all
the members, decided to file a case against the officers to render
an accounting of all the amounts. The real parties in interest would
be the members.
ISSUE: Is the suit filed by some members in behalf of some
members proper?
HELD: YES, because if We will require all the members to appear, it
will be quite impossible. Therefore, some members must be made
to sue but only in behalf of all the members who are not around
and it is impracticable to bring them all to the court. A number of
them may sue for the benefit of all.
An action does not become a class suit merely because it is
designated as such in the pleadings. Whether the suit is or is not a
class suit depends upon the attendant facts. (Mathay v.
Consolidatred Bank & Trust Company, 58 SCRA 559; Borlasa v.
Polistico 47 Phil. 345)
Q: What are the CONDITIONS FOR A VALID CLASS SUIT ?
A: Under Section 12, the following are the conditions of a valid
class suit:
1. The subject matter of the controversy is one of common
or general interest to many persons (such as the funds of
the association in the case of POLISTICO); and
2. The parties are so numerous that it is impracticable to
bring them all before the court;
3. The parties actually before the court are sufficiently
numerous and representatives as to fully protect the
interests of all concerned; and
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4. The representatives sue or defend for the benefit of all.
Berses v. Villanueva 25 Phil. 473; Sulo ng Bayan, Inc. v.
Araneta 72 SCRA 347)
A class suit does not require a commonality of interest in the
questions involved in the suit. What is required by the Rules is a
common or general interest in the subject matter of the litigation.
The ‘subject matter’ of the action is meant the physical, the things
real or personal, the money, lands, chattels, and the like, in
relation to the suit which is prosecuted and not the delict or
wrong committed by the defendant. It is not also a common
question of law that sustains a class suit but a common interest in
the subject matter of the controversy. (Mathay v. Consolidated &
Trust Bank 58 SCRA 559)
There is no class suit in an action filed by 400 residents initiated
through a former mayor, to recover damages sustained due to their
exposure to toxic wastes and fumes emitted by the cooking gas
plant of a corporation located in the town. Each of the plaintiffs has
a separate and distinct injury not shared by other members of the
class. Each supposed plaintiff has to prove his own injury. There is
no common or general interest in the injuries allegedly suffered by
the members of the class.
There is no class suit in an action for damages filed by the relatives
of the fatalities in a plane crash. There is no common or general
interest in the injuries or death of all passengers in the plane. Each
has a distinct and separate interest which must be proven
individually.
A class suit would not lie where each of the parties has an interest
only in the particular portion of the land he is occupying and not in
the portions individually occupied by the other defendants (Ortigas
& Company Limited Partnership v. Ruiz 148 SCRA 326, 339; Berses
v. Villanueva 25 Phil. 473).
A class suit does not lie in an action recovery of real property
where separate portions of the same parcel of land were occupied
and claimed individually by different parties to the exclusion of
each other, such that the different parties had determinable,
though undivided interest in the property in question since they do
not have a common or general interest in the subject matter of the
controversy (Mathay v. Consolidated Bank and Trust Company, 58
SCRA 559, 571-572).
There is no class suit in an action filed by associations of sugar
planters to recover damages in behalf of individual sugar planters
for an allegedly libelous article in an international magazine. There
is no common or general interest in reputation of a specific
individual. Each of the sugar planters has a separate and distinct
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reputation in the community not shared by the others. (Newsweek,
Inc. v IAC 142 SCRA 171, 176-177).
Example is a taxpayer’s suit – filed in behalf of all the taxpayers in
the Philippines. And there is no specific number of persons that is
provided by law.
Another example is a stockholder's derivative suit, though both are
subject to the other requisites of the corresponding governing law
especially on the issue of locus standi. (Regalado, p. 97)
Now, we will go to some interesting cases on class suit decided by
the Supreme Court:
SULO NG BAYAN vs. ARANETA, INC.
72 SCRA 347 [1976]
FACTS: This concerns the big property of the Araneta’s in Quezon
City. It has been the subject matter of litigation for the past years –
3 or 4 decades. It is a big track of land in Quezon City occupied by
so many people who want to acquire it. They are questioning the
title of the Araneta’s
So, Sulo (torch) ng Bayan is the association of squatters. Since the
properties of the Araneta is very big, they subdivided it. Then a
case was filed by Sulo ng Bayan Association against Araneta to
annul the title of the latter.
ISSUE #1: Whether or not the action was filed in the name of the
real in interest.
HELD: Sulo ng Bayan is not the real party in interest. It violates
Section 2 – “the action must be prosecuted and defended in the
name of the real parties in interest.” The members occupying the
land are the plaintiffs. The association is not the one occupying the
lot. So, the first question is, who should be the plaintiff? It should
be the members.
ISSUE #2: Whether or not the action was properly pleaded as a
class suit
HELD: NO. This is the more important reason why they cannot
qualify as a class suit: In a class suit, the subject matter is of
common interest to all.
To illustrate:
You are Occupant No. 1, and occupies a particular lot over which
he/she has interest in but he/she does not have interest over the
other lots which he/she does not occupy. If that is so, then the
subject matter is not of common interest. The interest of one
occupant is only on the lot he occupies.
What should be done is for all of them to sue together to cover the
entire property, for each one has a lot. So, in that case, Section 6
should be applied – permissive joinder of parties because there is a
common question of fact. This is more of permissive joinder of
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Parties rather than a class suit. That’s why you can confuse Section
6 with Section 12. But the permissive joinder of parties requires
that all should be impleaded. Unlike in a class suit, the subject
matter is of interest to everybody and we cannot all be joined
because we are so numerous.
BULIG-BULIG KITA KAMAGANAK ASSOCIATION, ET AL vs. SULPICIO
LINES
May 19, 1989
RE: Doña Paz Tragedy
FACTS: There we so many relatives who filed a case against Sulpicio
Lines and there was an attempt to file a class suit in behalf of
everyone who were drowned including those who were not
identified.
HELD: That cannot be. The survivors have no interest in the death
of other passengers. The interest in this case is individual. What
would have been proper is permissive joinder of parties because of
common question of tact or law, but not class suit.
OPOSA vs. FACTORAN
224 SCRA 12 [1993]
FACTS: Oposa et al were all minors. Some were small boys duly
represented by their parents. They filed a case against then DENR
Secretary Factoran. The prayer in the case is to order the DENR to
cancel all existing Timber License Agreements (TLA’s), to cease and
desist from proceeding, accepting, processing, renewing all
accruing new TLA’s. So, in effect, it prays for a total log ban in the
country to preserve the remaining forest all over the Philippines.
These young boys sue with their parents. They are suing in their
behalf, in behalf of the other citizens who are of their age because
they stand to suffer if the environment will be deteriorated. They
say that they are entitled to the full benefit, use and enjoyment of
the natural resources of our country’s rich tropical rainforests. They
say, the case was filed for themselves and others for the
preservation of our rainforest and we are so numerous that it is
impracticable to bring all plaintiffs to court. They say that they
represent their generations and generations yet unborn.
HELD: The civil case is indeed a class suit. The case however has a
special and novel element. The personality of the minors to sue for
the succeeding generations is based on the concept of inter-
generational responsibility insofar as a balanced and healthful
ecology is concerned. Every generation has a responsibility to
preserve the ecology. The minors’ right to a healthful environment
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constitute at the same time the performance of the obligation to
ensure the protection of the rights or the generations to come.
Q: In case of doubt, should a class suit be allowed?
A: NO. When the issue is not so clear, a class suit should not be
allowed because class suit is an exception to the general rule that
all parties should be included.
CADALIN vs. POEA ADMINISTRATOR
238 SCRA 721 [1995]
HELD: While it is true that class suit is allowed, it should be allowed
with caution because the fact that you represent others is only a
fiction of law. For all you know, those others may not want to be
represented. That is why the court is extra- cautious in allowing
class suits because they are the exceptions to the condition sine
qua non requiring joinder of all indispensable parties.
In an improperly instituted class suit, there would be no problem it
the decision secured is favorable to the plaintiffs. The problem
arises where the decision is adverse to them. In which case, the
parties who are impleaded through their self-appointed
representatives would surely plead denial of due process.
Q: Distinguish a representative suit from a class suit.
A: In the case of
LIANA’S SUPERMARKET vs. NLRC
257 SCRA 186 [May 31, 1996]
FACTS: A labor union filed a case against the employer in behalf of
hundreds of employees. Is this a representative suit or a class suit?
HELD: “What makes the situation a proper case for a class suit is
the circumstance that there is only one right or cause of action
pertaining or belonging in common to many persons, not
separately or severally to distinct individuals. The object of the
suit is to obtain relief for or against numerous persons as a group
or as an integral entity, and not as separate, distinct individuals
whose rights or liabilities are separate from and independent of
those affecting the others.”
In a representative suit, there are different causes of action
pertaining different persons.
“In the present case, there are multiple rights or causes of action
pertaining separately to several, distinct employees who are
members of respondent Union. Therefore, the applicable rule is
that provided in Rule 3 on Representative Parties. Nonetheless, as
provided for in the Labor Code, a legitimate labor organization has
the right to sue and be sued in its registered name. This authorizes
a union to file a representative suit for the benefit of its members
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in the interest of avoiding an otherwise cumbersome procedure of
joining all union members in the complaint, even if they number by
the hundreds.” For convenience, the Labor Code allows a union to
file a representative suit.
It is important to note the following:
1. CLASS SUIT
2. REPRESENTATIVE SUIT
3. DERIVATIVE SUIT – only peculiar to the corporation law
where the minority files a suit in behalf of the entire
corporation because an intra-corporate remedy is
useless or because of the failure of the board of
directors, deliberate or otherwise, to act in protection of
the corporation (Black’s 5th Ed. 399; Lim vs. Lim-Yu 352
SCRA 216).
In a derivative, suit, the cause of action belongs to the corporation
and not to the stockholder who initiates the suit. In a class suit, the
cause of action belongs to the members of the class.
Class suit and permissive joinder of parties
In a class suit there is one single cause of action pertaining to
numerous persons while in permissive joinder there are multiple
causes of action separately belonging to several persons.
ALTERNATIVE DEFENDANTS
Sec. 13. Alternative defendants. Where the plaintiff is uncertain
against who of several persons he is entitled to relief, he may join
any or all of them as defendants in the alternative, although a
right to relief against one may be inconsistent with a right of relief
against the other. (13a)
The rule on alternative defendants is also related to alternative
causes of action – even if your right against one is inconsistent with
your right to relief against the other party, you may file a suit
against the alternative defendant. (c.f. Rule 2, Section 5 – Joinder
of Causes of Action)
You filed a case against the operators of two vehicles. In effect,
your cause of action is either culpa aquiliana or culpa contractual.
Is that not inconsistent? The law says, “although a right to relief
against one may be inconsistent with a right against the other.” In
other words, even if the two causes of action are inconsistent with
each other, it is allowed.
Assume that X, a pedestrian, was injured in the collision of two
vehicles. He suffered injuries but does not know with certainty
which vehicle caused the mishap. What should X do if he wants to
sue?
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He should sue the vehicle drivers/owners in the alternative.
P sent some goods to D pursuant to a contract. The goods were
delivered to E, the known agent of D. D did not pay P. D contends
that he has not received the goods. P claims otherwise and insists
that D had received the goods. Should P sue D or should he sue E?
P should sue both but in the alternative.
Plaintiff may sue the shipping company and the arrastre operator
alternatively for the recovery of damages to goods shipped through
a maritime vessel (Rizal Surety & Insurance Company vs. Manila 70
SCRA 187).
As a matter of fact, this is the best policy because the
plaintiff is a sure winner. The only question is, who among the two
will be held liable.
Although the law is silent, if there is such a thing as “alternative
defendants,” there is no reason why the grounds for “alternative
plaintiffs” should not be allowed.
Q: May plaintiffs join in the alternative?
A: YES, plaintiffs may join in the alternative under the same
principle as alternative joinder of defendants. When several
persons are uncertain as to who among them is entitled to relief
from a certain defendant, they may join as plaintiffs in the
alternative. This is also sanctioned by the rule on permissive joinder
of parties (Pajota vs. Jante, L-6014, Feb. 8, 1955). Thus, the
principal and his agent may join as plaintiffs in the alternative
against a defendant. If the agency is proved, the relief is awarded
to the principal. If not, award is then made to the agent.
Just as the rule allows a suit against defendants in the alternative,
the rule also allows alternative causes of action and alternative
defenses (Sec. 2 Rule 8; Sec.5[b] Rule 6; Sec. 20, Rule 14)
Sec. 14. Unknown identity or name of defendant. Whenever the
identity or name of a defendant is unknown, he may be sued as
the unknown owner, heir, devisee, or by such other designation
as the case may require; when his identity or true name is
discovered, the pleading must be amended accordingly. (14)
Requisites:
1. there is a defendant;
2. his/her identity is unknown;
3.fictitious name may be used because of ignorance of defendant's
true name and said ignorance is alleged in the complaint;
4.identifying description may be used; sued as unknown owner,
heir, deviseee or other designation;
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5.amendment to the pleading when true name is discovered; and
6. defendant is the defendant being sued, not a mere additional
defendant.
Serive of summons upon a defendant whose identity is unknown
may be made by publication in a newspaper of general circulation
in accordance with Sec. 14 of Rule 14.
Q: Can you sue somebody who is unknown?
A: YES, under Section 14.
BAR PROBLEM: While L was walking on the street. He was bumped
by a car, say a Toyota Altis, 2001 model, color blue. Now, so far, he
could not determine who is the owner. If you are the lawyer of L,
how would you sue the defendant?
A: Under Section, I will sue the owner of that car as an unknown
defendant. I can place in my complaint, “L’, plaintiff, vs. the
registered owner of Honda motor vehicle with plate number so and
so.” And later if you discover the true identity of the owner, we can
amend the complaint to place the name of the defendant.
Section 14 is similar with Rule 110 in Criminal Procedure – a case
may be filed against an unknown accused.
RULE 110, SEC. 7. Name of the accused. – The complaint or
information must state the name and surname of the accused or
any appellation or nickname by which he has been or is known. If
his name cannot be ascertained, he must be described under a
fictitious name with a statement that his true name is unknown.
If the true name of the accused is thereafter disclosed by him or
appears in some other manner to the court, such true name shall
be inserted in the complaint or information and record. (7a)
ENTITY WITHOUT JURIDICAL PERSONALITY AS DEFENDANT
Sec. 15. Entity without juridical personality as defendant. When
two or more persons not organized as an entity with juridical
personality enter into a transaction, they may be sued under the
name by which they are generally or commonly known.
In the answer of such defendant, the names and addresses of the
persons composing said entity must all be revealed.
Reqisites:
1. there are two or more persons not organized as a juridical entity;
2. they enter into a transaction;
3.a wrong or delict is committed against a third person in the
course of such transactions.
Rule 1, Section 1 provides that only natural of juridical persons may
be sued.
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Entity without juridical personality as defendant. Under the old
law, this was known as suing two or more persons involved in a
business under a common name. When two or more persons
transact in a business under a common name, they may be sued
under their common name.
Q: Who are really the defendants here? A: The persons involved.
Now, it is worded in this manner: “When two or more persons not
Without
organized as an entity with juridical personality,” instead of a
‘common name.’ You cannot sue the entity because it has no
juridical personality. But you do not also know the members of that
entity, so the law allows you to file a case against the entity.
Under the second paragraph of Section 15, when the defendants
file an answer, they must file under their names as they are really
the real parties in interest. When the lawyer answers the
complaint, he is duty-bound to provide the names of all the
defendants.
Q: How do you summon this kind of defendant?
A: Rule 14, Section 8:
RULE 14, Sec. 8. Service upon entity without juridical personality.
When persons associated in an entity without juridical personality
are sued under the name by which they are generally or
commonly known, service may be effected upon all the
defendants by serving upon any one of them, or upon the person
in charge of the office or place of business maintained in such
name. But such service shall not bind individually any person
whose connection with the entity has, upon due notice, been
severed before the action was brought. (9a)
Correlate this with Rule 36, Section 6:
Sec. 6. Judgment against entity without juridical personality.
When judgment is rendered against two or more persons sued as
an entity without juridical personality, the judgment shall set out
their individual or proper names, if known. (6a)
GENERAL RULE: actions must be filed against real parties in
interest.
EXCEPTIONS: (When may an action be filed without naming all the
parties in involved?)
1. Class suit (Section 12, Rule 3);
2. Entity without juridical personality (Section 15, Rule 3);
3. Any co--owner may bring an action for ejectment (Article
487, New Civil Code)
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Instances where substitution of parties is proper
EFFECT OF DEATH OF A PARTY
Sec. 16. Death of party; duty of counsel. Whenever a party to a
pending action dies, and the claim is not thereby extinguished, it
shall be the duty of his counsel to inform the court within thirty
(30) days after such death of the fact thereof, and to give the
name and address of his legal representative or representatives.
Failure of counsel to comply with this duty shall be a ground for
disciplinary action.
The heirs of the deceased may be allowed to be substituted for
the deceased, without requiring the appointment of an executor
or administrator and the court may appoint a guardian ad litem
for the minor heirs.
The court shall forthwith order said legal representative or
representatives to appear and be substituted within a period of
thirty (30) days from notice.
If no legal representative is named by the counsel for the
deceased party, or if the one so named shall fail to appear within
the specified period, the court may order the opposing party,
within a specified time, to procure the appointment of an
executor or administrator for the estate of the deceased and the
latter shall immediately appear for and on behalf of the deceased.
The court charges in procuring such appointment, if defrayed by
the opposing party, may be recovered as costs. (16, 17a)
First of all, there are cases when a party to a pending action dies
and the claim is not thereby extinguished (this is what they called
an action which survives as we will explain later) and there are
certain actions where if a party dies, the claim is automatically
extinguished. Meaning, the death of a party causes death of the
action. But these are very few. In majority of cases when the party
dies, the case or the cause of action continues.
If the action does not survive, like the purely personal actions of
support annulment of marriage, and legal separation), the proper
action of the court is to simply dismiss the case. Substitution will
then not be required.
Examples of actions which survive the death of a party
 Actions and obligations arising from delicts survive
(Aguas v. Llamas 5 SCRA 959)
 Actions based on the tortious conduct of the defendant
survive the death of the latter. (Melgar v. Benviaje 179
SCRA 196)
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 Actions to recover real and personal property, actions to
enforce a lien thereon, and actions to recover damages
for an injury to person or property and suits based on
the alleged tortious acts of the defendant survive. (Board
of Liquidators v. Kalaw 20 SCRA 987). An action for
quieting of title with damages is an action involving real
property. It survives and the claim is not extinguished by
the death of a party. (Saligumba v. Calanog GR 143365
Dec. 4, 2008)
 An action of ejectment survives the death of a party. It
continues until judgment because the issue concerning
the illegality of the defendant’s possession is still alive,
and upon its resolution depends the corollary issue of
whether and how much damages may be recovered.
(Tanhueco v. Aguilar 33 SCRA 236; Vda de Salazar v. CA;
Florendo jr. v.Coloma 129 SCERA 304)
. Actions for the recovery of money, arising from a
contract express or implied are not extinguished by the death of
the defendant. (Sec. 20 R 3)
Duty of lawyer of the deceased
It is the duty of the lawyer of the deceased to inform the court
within 30 days after the death of the party thereof. He must
inform the court and give the name and address of his legal
representative/s (e.g. administrator or executor of the estate)
In legal ethics, the lawyer- client relationship is automatically
terminated by the death of the client because the lawyer-client
relationship is personal. Neither does he become the counsel of the
heirs of the deceased unless his services are engaged by said heirs
(Lawas vs. CA 146 SCRA 173). But procedurally, he must tell the
court and give the name of the legal representative. The latter may
re-hire the lawyer but under a new contract.
The purpose there is for substitution so that the legal
representative will be ordered substituted. And there is a new
provision under the new rules. That is, failure of the counsel to
comply with his duty shall be a ground for disciplinary action. That
is not found in the prior rule. So, the lawyer can be subjected to
disciplinary action.
Upon receipt of the notice of death, the court shall determine
whether or not the claim is extinguished by such death. If the
claim survives, the court shall order the legal representative or
representatives of the deceased to appear and be substituted for
the deceased within 30 days from notice (Sec. 16 Rule 3). The
substitution of the deceased would not be ordered by the court in
cases where the death of the party would extinguish the action
because substitution is proper only when the action survives
(Aguas vs. Llamas 5 SCRA 959)
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So the provision continues, “the heirs of the deceased may be
allowed to be substituted for the deceased without requiring the
appointment of an executor or administrator. And the court may
appoint a guardian ad litem for the minor heirs.
So, other than the legal representative, which refers to the
executor or administrator, the alternative will be to substitute the
heirs, such as the surviving children, wife or spouse.
Although there was a case decided by the SC way back in 1986 in
the case of
LAWAS vs. COURT OF APPEALS
146 SCRA 173
HELD: “The priority of substitution would be the executor or
administrator not the heirs. The heirs would only be allowed to be
substituted if there is an (1) unreasonable delay in the appointment
of administrator or executor, or (2) when the heirs resort to
extrajudicial partition. But outside of those two reason, the law
always gives priority to the administrator or executor.”
Under the rule, priority is given to the legal representative of the
deceased. That is, the executor or the administrator of his estate.
Many courts do not enforce it strictly. Normally, patay na, “O! Ito
ang heirs o!” “OK! Substitute!” Actually, that is wrong based on
LAWAS case. The priority is given to the administrator or executor.
It is only when there is unreasonable delay in the appointment, or
when the heirs resort to extrajudicial partition because there is no
more administrator or executor in extrajudicial settlement.
Lawas ruling is no longer applicable
Under the second paragraph of Sec. 16 of Rule 3 states: “ … The
heirs of the deceased may be allowed to be substituted for the
deceased, without requiring the appointment of an executor or
administrator…”
The second paragraph of the rule is plain and explicit. The heirs
may be allowed to be substituted for the deceased without
requiring the appointment of an administrator or executor.
However, if within the specified period a legal representative fails
to appear, the court may order the opposing counsel, within a
specified period, to process the appointment of an administrator or
executor who shall immediately appear for the estate of the
deceased. The previous pronouncement of the Court in Lawas v. CA
xxxxx is no longer true. Thus, the heirs do not need to first secure
the appointment of an administrator of the estate of the deceased
because the very moment of death, they stepped into the shoes of
the deceased and acquired the rights as devisee/legatee. Said heirs
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may designate one or some of them as their representative before
the trial court. (San Juan v. Cruz GR No. 167321, July 31, 2006)
Purpose and Importance of substitution of the deceased
The purpose behind the rule on substitution of parties is the
protection of the right of every party to due process. It is to
ensure that the deceased would continue to be properly
represented in the suit through the duly appointed legal
representative of the estate. (Torres v. CA 278 SCRA 793; Vda de
Salazar v. CA 250 SCRA 305)
Non-compliance with the rules on substitution of a deceased party
renders the proceedings of the trial court infirm because the court
acquired no jurisdiction over the person of the legal representative
of heirs of the deceased (Brioso v. Rili-Mariano 396 SCRA 549)
because no man should be affected by a proceeding to which he is
a stranger. A party to be affected by a personal judgment must
have a day in court and an opportunity to be heard. (Vda. De
Haberer v. CA 104 SCRA 534; Fereira v. Vda de Gonzales 104 Phil.
143; Torres v. CA 278 SCRA 793)
Note this portion in the case of:
VDA. DE SALAZAR vs. COURT OF APPEALS
250 SCRA 303 [November 23, 1995]
FACTS: This is an ejectment case. The defendant died while the
case is going on. What is the procedure? There should be
substitution. But there was no substitution in the case for ten
years, until it was decided. The court was not informed of the
death of the defendant. Until finally, there was a decision.
ISSUE: When there is failure to effectuate the substitution of heirs
before the rendition of judgment, is the judgment jurisdictionally
detective?
HELD: NO, “the judgment is valid where the heirs themselves
appeared before the trial court and participated in the
proceedings. Therein, they presented evidence in defense of the
deceased defendant. It is undeniably evident that the heirs
themselves sought their day in court and exercised their right to
due process.”
In other words, when there was a defect the heirs however cannot
use that because they themselves appeared and continued the
case. So, in effect, there was estoppel.
No requirement for service of summons
Service of summons is not required to effect a substitution.
Nothing in Sec. 16 of this Rule mandates service of summons.
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Instead of service of summons the court shall, under the authority
of the same provision, order the legal representative of the
deceased to appear and be substituted for the said deceased
within 30 days from notice.
By virtue of the same rule, it is significant to know that it is not the
amendment of the pleading, but the order of substitution and its
service that effects the substitution of the deceased by his
representative or heir.
Note: If the action does not survive (like the purely personal
actions of support, annulment of marriage, and legal separation),
the court shall simply dismiss the case. It follows then that
substitution will not be required.
EFFECT OF DEATH OF A PARTY ON MONEY CLAIMS
Now, one of the radical changes again introduced by the new rules
is the effect of the death of the defendant in a money claim –
action to collect a sum of money.
Sec. 20. Action on contractual money claims. When the action is
for recovery of money arising from contract, express or implied,
and the defendant dies before entry of final judgment in the court
in which the action was pending at the time of such death, it shall
not be dismissed but shall instead be allowed to continue until
entry of final judgment. A favorable judgment obtained by the
plaintiff therein shall be enforced in the manner especially
provided in these Rules for prosecuting claims against the estate
of a deceased person. (21a)
Requisites:
1. the action must primarily be for recovery of money, debt, or
interest therein;
2.the claim, subject of the action, arose from contract, express of
implied; and
3.defendant dies before the entry of final judgment of the court in
which the action was pending.
Under this section, the death of the defendant will not result in the
dismissal of the action. The deceased shall be substituted by his
legal representatives in the manner provided for in Sec. 16 of this
Rule 3 and the action continues until the entry of final judgment.
However, execution shall not issue in favor of the winning party.
The final judgment should be filed as a claim against the estate of
the decedent without need of proving the claim.
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The best example here is an action to collect an unpaid loan. And
while the case is pending the defendant died. What will happen to
the case? The law says: If the defendant dies before the entry of
the final judgment in the court at the time of death, it shall not be
dismissed but it shall instead be allowed to continue until entry of
final judgment.
Under the OLD RULES, the case shall be dismissed. So, the civil case
is not suspended but it will be dismissed and the creditor can file a
case against the estate of the deceased under the Rules on Special
Proceedings. But definitely the civil case dies when the defendant
dies.
Now, under the NEW RULE, the case will not be dismissed but
rather, the case will now continue until entry of final judgment.
Meaning, until it becomes final and executory.
Q: But of course, if the judgment is favorable to you (the plaintiff),
can you move to execute? Can you move to execute the decision
against the property of the defendant?
A: NO, because the law provides, “xxx a favorable judgment
obtained by the plaintiff therein shall be enforced in the manner
specially provided in these Rules for prosecuting claims against the
estate of a deceased person.”
Q: And what is that procedure?
A: YOU FILE A CLAIM against the estate under Section 5, Rule 86 of
the Rules of Court, but there will be no execution.
[Note: SEE OUTLINE AT THE LAST PART OF THIS RULE.]
Q: We are talking of death of a party in a pending civil action. While
there is a case and a party dies, what will happen to the case?
A: I will distinguish Is that an ACTION WHICH DOES NOT SURVIVE
or an ACTION WHICH SURVIVES?
1.) ACTION WHICH DOES NOT SURVIVE
An action which does not survive is an action which is abated upon
the death of a party. The case cannot go on once a party dies. And
normally, that refers to actions which are purely personal in
character like an action for annulment of marriages, an action for
declaration of the nullity of marriage or, an action for legal
separation, or an action for support. These are the cases arising
from the Family Code.
Example: The husband files a case against the wife for annulment
of marriage or legal separation. One of them dies. When one of the
parties dies, the marriage is dissolved. There is nothing to annul
because the marriage is already dissolved. So, these are the actions
which are purely personal .
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Q: So, what is the effect of the death of the party in actions which
does not survived?
A: The case is dismissed!
2.) ACTIONS WHICH SURVIVE –
2a.) CONTRACTUAL MONEY CLAIMS:
2a1.) If it is the plaintiff who dies, the case will continue. The heirs
or legal representatives will proceed. So, there is substitution.
2a2.) If it is the defendant who dies, the question is when did he
die? Before entry of final judgment or after entry? This is where
Section 20 will come in.
2a2a.) If the defendant died before entry of final judgment, you
apply Section 20 of Rule 3. Meaning, the case shall not be
dismissed but shall be allowed to continue until entry of final
judgment. And the 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, and that is Section 5 of Rule 86.
2a2b.) If the defendant died after the entry of the final judgment
but before execution (after the judgment became final but before
there could be levy or execution) you cannot move to execute.
Again, you apply Section 5 of Rule 86 which is the governing rule –
you file your judgment as a claim against the estate of the
deceased defendant. [Section 5, Rule 86] The purpose there is, so
that the creditor will share with the other creditors pro-rata in the
distribution of the estate.
2a2c) If the defendant died after levy or execution but before the
auction sale, we will now apply Section 7[c] of Rule 39:
Rule 39, Sec. 7. Execution in case of death of party. In case of the
death of party, execution may issue or be enforced in the
following manner:
xxxxxx
(c) In case of the death of the judgment obligor, after execution is
actually levied upon any of his property, the same may be sold for
the satisfaction of the judgment obligation, and the officer
making the sale shall account to the corresponding executor or
administrator for any surplus in his hands. (7a)
Meaning, if death occurs after the levy, auction sale proceeds as
scheduled. And if there is an excess, the excess shall be delivered to
the administrator or executor.
2b.) NON-CONTRACTUAL MONEY CLAIMS:
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EXAMPLE: an action for recovery of property, real or personal like
replevin, forcible entry, unlawful detainer, action publiciana, action
reinvidicatoria, or action for damages, (damages that is not the
same for transaction of money because damages arising from culpa
aquiliana is one not arising from contract.)
If a party dies in an action which survives which is a non-
contractual money claim, obviously, there is substitution of parties.
So, what are these non-contractual money claims which survive?
These are those mentioned in Section 7 of Rule 86 and Section 1 of
Rule 87. That is in the study of Special Proceedings on settlement of
the estate of a deceased person.
Note: What Section 20 says is that: before the case can be decided
and the defendant dies (in actions involving money claims) the case
shall not be dismissed but shall instead be allowed to continue until
entry of final judgment. BUT CONTINUE AGAINST WHOM? Against
the deceased? Now, to my mind, you correlate this with Section 16
--- there should still be substitution.
But assuming, there was no substitution and the heirs fought in the
case; there is waiver because the defect is procedural. Just like
what happened in the case of VDA. DE SALAZAR vs CA 250 SCRA
305). Actually, what Section 20 emphasized is that, the action shall
not be dismissed but shall continue – to emphasize that it is now
different compared with the prior RULE. But obviously, there will
always be a substitution
Sec. 17. Death or separation of a party who is a public officer.
When a public officer is a party in an action in his official capacity
and during its pendency dies, resigns, or otherwise ceases to hold
office, the action may be continued and maintained by or against
his successor if, within thirty (30) days after the successor takes
office or such time as may be granted by the court, it is
satisfactorily shown to the court by any party that there is a
substantial need for continuing or maintaining it and that the
successor adopts or continues or threatens to adopt or continue
the action of his predecessor. Before a substitution is made, the
party or officer to be affected, unless expressly assenting thereto,
shall be given reasonable notice of the application therefor and
accorded an opportunity to be heard. (18a)
Requisites:
1. public officer is a party to an action in his official capacity;
2.during the pendency of the action he either dies, resigns, or other
wise ceases to hold office;
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3.it is satisfactorily shown to the court by any party, within 30 days
after the successor takes office, that there is a substantial need for
continuing or maintaining the action;
4.that the successor adopts or continues or threatens to adopt or
continue the action of his predecessor; and
5.the party or officer affected has been given reasonable notice of
the application therefor and accorded an opportunity to be heard.
Q: What will happen to the case?
A: The following:
1.) If the successor intends to continue with the policy.
EXAMPLE: Mayor Pascua threatened to demolish the building of
Mr. Nuere as a hazard. If Mayor Pascua dies, Vice-Mayor Angeles
becomes the mayor. If Vice-Mayor Angeles who is now the mayor
says that he will continue with the demolition, he will be
substituted and he is given 30 days to comment.
2.) If the successor does not adopt the policy, the case will
be dismissed.
Sec. 18. Incompetency or incapacity. If a party becomes
incompetent or incapacitated, the court, upon motion with
notice, may allow the action to be continued by or against the
incompetent or incapacitated person assisted by his legal
guardian or guardian ad litem. (19a)
EXAMPLE: F files a case against K. While the case is pending, K
becomes insane. The case will continue but K has to be assisted by
his guardian ad litem.
This is related to Rule 3, Section 3 on representative party but in
Section 3, K should be already insane before the case is filed.
Sec. 19. Transfer of interest. In case of any transfer of interest, the
action may be continued by or against the original party, unless
the court upon motion directs the person to whom the interest is
transferred to be substituted in the action or joined with the
original party. (20)
General rule:
The rule does not consider the transferee an indispensable party.
Hence, the action may proceed without the need to imp lead him.
Exception:
When the substitution by or joinder of the transferee is ordered by
the court.
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A transferee pendent lite:
1. stands in exactly the same position as its predecessor-in-interest,
the original defendant; and
2. bound by the proceedings had in the case before the property
was transferred to it, even if not formally included as defendant.
(Herrera, vol. 1 p. 405)
The case will be dismissed if the interest of plaintiff is transferred
to defendant unless there are several plaintiffs, in which case, the
remaining plaintiffs can proceed with their own cause of action.
EXAMPLE: R files a case against L to recover a piece of land. While
the case is pending, L sold the land to E. E now assumes the risk
and takes the property subject to the outcome of the case.
Q: Can the case continue against L?
A: YES.
1.) If L loses and cannot pay, E is subsidiarily liable;
2.) L can be removed and E will be substituted; or
3.) L can stay and E will be added.
In all 3 cases, E will be bound by the judgment.
Sec. 21. Indigent party. A party may be authorized to litigate his
action, claim or defense as an indigent if the court, upon an ex
parte application and hearing, is satisfied that the party is one
who has no money or property sufficient and available for food,
shelter and basic necessities for himself and his family.
Such authority shall include an exemption from payment of
docket and other lawful fees, and of transcripts of stenographic
notes which the court may order to be furnished him. The amount
of the docket and other lawful fees which the indigent was
exempted from paying shall be a lien on any judgment rendered
in the case favorable to the indigent, unless the court otherwise
provides.
Any adverse party may contest the grant of such authority at any
time before judgment is rendered by the trial court. If the court
should determine after hearing that the party declared as an
indigent is in fact a person with sufficient income or property, the
proper docket and other lawful fees shall be assessed and
collected by the clerk of court. If payment is not made within the
time fixed by the court, execution shall issue for the payment
thereof, without prejudice to such other sanctions as the court
may impose. (22a)
the fees – file now, pay later) – the amount shall be a lien on any
favorable judgment.
The third paragraph is new. The other party may contest the claim
of the indigent if he is really an indigent or not.
Sec. 22. Notice to the Solicitor General. In any action involving the
validity of any treaty, law, ordinance, executive order,
presidential decree, rules or regulations, the court, in its
discretion, may require the appearance of the Solicitor General
who may be heard in person or through a representative duly
designated by him. (23a)
The rule is that only the Solicitor General can bring and defend
actions on behalf of the Republic of the Philippines and that actions
filed in the name of the Republic of the Philippines or its agencies
and instrumentalities, if not initiated by the Solicitor General will
be summarily dismissed. The authority of the Solicitor General is
embodied in Sec. 35(1) Chapter 12, Title III and Book IV of the
Administrative Code of 1987 (Cooperative Development Authority
vs. Dolefil Agrarian Reform Beneficiaries Cooperative 382 SCRA
552).
EXAMPLE: M files a case against K for declaration of nullity on the
ground of psychological incapacity. K alleges that Article 38 of the
Family Code is unconstitutional. So the court will rule on the
validity of the law in which case, the Solicitor General has to be
involved in the case to defend the validity of the law.
REASON: The Solicitor General is the legal counsel of the Republic
of the Philippines whose duty is to defend all the official acts of the
Government.

In criminal cases, the court assigns a counsel de officio. Under the

Constitution on Bill of Rights, no person shall be denied access to
courts by reason of poverty.

In civil cases, a plaintiff need not pay docket fee if he is an indigent

if he files an application (ex-parte application) to allow him to
litigate as an indigent litigant. But if the indigent wins, he has to pay

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Rule 4
The court may dismiss on improper venue, at its instance, in an
VENUE OF ACTIONS action covered by the rules on summary procedure. Under these
rules, the court may motu proprio dismiss a case from an
examination of the allegations of the complaint and such evidence
Q: Define venue.
as may be attached thereto on any of the grounds apparent
A: VENUE is the place, or the geographical area where an action is
therefrom. The dismissal may be made outright, which means that
to be filed and tried. In civil cases, it relates only to the place of the
the court may do so without need of waiting for the filing of a
suit and not to the jurisdiction of the court. (Manila Railroad
motion to dismiss. (Sec. 4, Rules on Summary Procedure)
Company vs. Attoryney General, 20 Phil. 523)

How venue is determined

Venue not a matter of substantive law

As said before, in order to know the venue of a particular action,

Venue is procedural and not substantive. In civil cases, venue is not
the initial step is to determine if the action is personal or real. If it is
a matter of jurisdiction. (Heirs of Pedro Lopez vs. de Castro, 324
personal, the venue is transitory hence, the venue is the residence
SCRA 591 [2000]). Venue becomes jurisdictional only in a criminal
of the plaintiff or the defendant at the option of the plaintiff. If the
case. In the latter case, where the information is filed in a place
defendant is a non-resident, the venue is the residence of the
where the offense was not committed, the information may be
plaintiff or where the non-resident defendant may be found, at the
quashed for lack of jurisdiction over the offense charged. (Sec. 3, R
election of the plaintiff.(Sec. 3)
117) This is not so in a civil case where improper venue is not
equivalent to lack of jurisdiction. Because it is merely procedural,
If the action is real, the venue is local hence, the venue is the place
the parties can waive the venue of a case.
where the real property involved, or any portion thereof, is
situated. (Sec. 1). However, when the defendant is a non-resident
Means of waiving venue:
and is not found in the Philippines, and the action affects the
1. failure to object via motion to dismiss;
personal status of the plaintiff, or any property of the defendant
2. affirmative relief sought in the court where the case is filed even
located in the Philippines, the venue is the residence of the plaintiff
if venue is improper;
or where the property or any portion thereof is situated. (Sec. 3)
3. affirmative defense in an answer;
4. voluntary submission to the court where the case is filed;
VENUE OF REAL ACTIONS
5. laches

Section 1. Venue of real actions. Actions affecting title to or

Dismissal based on improper venue
possession of real property, or interest therein, shall be
commenced and tried in the proper court which has jurisdiction
1. The trial court cannot motu proprio dismiss a case on the
over the area wherein the real property involved, or a portion
ground of improper venue. The court may motu proprio
thereof, is situated.
dismiss an action in case of lack of jurisdiction over the
Forcible entry and detainer actions shall be commenced and tried
subject matter, litis pendencia, res judicata and
in the municipal trial court of the municipality or city wherein the
prescription, but not for improper venue. (Rudolf Lietz
real property involved, or a portion thereof, is situated. (1[a],
Holdings, Inc. v. Register of Deeds of Paranaque City, 344
2[a]a)
SCRA 68; Universal Robina Corp. v. Lim GR 154338, Oct.
5, 2007)
2. Unless and until the defendant objects to the venue in a
Q: Why does the law say “tried in the proper court?”
motion to dismiss, the venue cannot be truly said to be
A: It is because proper court will now be the MTC or the RTC,
improperly laid, because the venue although technically
depending on the assessed value of the property.
wrong may be acceptable to the parties for whose
convenience the rules on venue have been devised. The
The venue is the placed where the real property or any portion
trial court cannot preempt the defendant’s prerogative
thereof is located.
to object to the improper laying of the venue by motu
If the a property is located at the boundaries of two places: file the
proprio dismissing the case. (Dacuycoy v. IAC 195 SCRA
case in either place at the option of the plaintiff.
641)

When court may motu proprio dismiss based on improper venue

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When the case involves two properties located in two different
places:
1. if the properties are the object of the same transaction, file it in
any of the two places; and
2. if they are the subjects of two distinct transactions, separate
actions whould be filed in each place unless properly joined.
VENUE OF PERSONAL ACTIONS
Sec. 2. Venue of personal actions. All other actions may be
commenced and tried where the plaintiff or any of the principal
plaintiffs resides, or where the defendant or any of the principal
defendants resides, or in the case of a non-resident defendant
where he may be found, at the election of the plaintiff. (2[b]a)
Venue of personal actions:
1.Where the plaintiff or any of the principa plaintiffs resides;
2. where the defendant or any of the principal defendants resides;
or
3. in case of a non-resident defendant but found in the Philippines,
in the place where he may be found.
Note: All at the election of the plaintiff.
Now, suppose, there are four (4) plaintiffs and 4 defendants and
the 4 plaintiffs reside in 4 different cities or municipalities. So there
are 8 choices for venue because the law says, “where the plaintiff
or any of the principal plaintiffs or where the defendant or any of
the principal defendants reside…”
NOTE: PRINCIPAL PLAINTIFF, PRINCIPAL DEFENDANT. Because
there is such a thing as nominal defendant and nominal plaintiff..
EXAMPLE of a nominal party: When a party wants to file a case to
annul an execution sale or to annul a levy, normally it impleads the
sheriff as party. But the sheriff is not the principal party but is only
a NOMINAL PARTY. So, the residence of the sheriff is not
considered the sheriff being a nominal party only.
This is the original concept of forum shopping which is legitimate
but had later been abused. That is why there is a SC case where
Justice Panganiban cited the history of forum shopping entitled
FIRST PHILIPPINE INTERNATIONAL BANK vs. CA (252 SCRA 259),
January 24, 1996)
How to distinguish real from personal action
There are instances when it is easy to distinguish whether the
action is real or personal and there are also instances when it is
difficult.
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EXAMPLE: An action for annulment of a contract of sale or
rescission of contract of sale of real property. Generally, an action
for annulment or rescission is a personal action. But suppose, I will
file a complaint to annul or rescind a contract or a deed of sale over
a parcel of land which we made one year ago which land is situated
in Mandaue City and the purpose of my action is to recover the
ownership of that land is this a real or personal action?
It is a real action because the primary object of the suit is to
recover the ownership of real property. It seems to be personal but
in reality it is a real action. So the venue is governed by Section 2.
But there are also actions which appear to be real but in reality, are
personal actions. Like what happened in the case of
LA TONDEÑA DISTILLERS INC vs. PONFERRADA
264 SCRA 540 [1996]
FACTS: A entered into a contract where she committed herself to
sell her land to B. A even placed a lis pendens on the property but
later she backed out. So B will file a case against A for specific
performance to compel her to sign the deed of sale.
ISSUE: Is this real or personal action?
HELD: It is a PERSONAL ACTION because you are not questioning
my ownership. Here, the plaintiff recognizes that the defendant is
still the owner, which is the reason why he is still filing the case to
compel him to sell.
Thus, it should be filed at the residence of the parties. “The
complaint is one for specific performance with damages. Private
respondents do not claim ownership of the lot but in fact
recognized title of defendants by annotating a notice of lis pendens.
In one case, a similar complaint for specific performance with
damages involving real property, was held to be a personal action,
which may be filed in the proper court where the party resides. Not
being an action involving title to or ownership of real property,
venue, in this case, was not improperly laid before the RTC of
Bacolod City.” (Adamos vs. Tuazon 25 SCRA 30 [1968])
Q: Where several or alternative reliefs are sought in an action, and
the reliefs prayed for are real and personal, how is venue
determined?
A: Where several or alternative reliefs are prayed for in the
complaint, the nature of the action as real or personal is
determined by the primary object of the suit or by the nature of
the principal claim. Thus, where the purpose is to nullify the title to
real property, the venue of the action is in the province where the
property lies, notwithstanding the alternative relief sought,
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recovery of damages, which is predicated upon a declaration of
nullity of the title. (Navarro vs. Lucero, 100 Phil. 146)
Where a lessee seeks to establish his right to the hacienda, which
was subsequently sold, for the purpose of gathering the crops
thereon, it is unnecessary to decide whether the crops are real or
personal property, because the principal claim is recovery of
possession of land so that he may gather the fruits thereof. (LTC vs.
Macadaeg, 57 O.G. 3317)
Now, going back to Section 2.
RESIDENCE OF THE PARTIES
Where is the residence of the parties? Because residence in law
could mean DOMICILE OR LEGAL RESIDENCE, it could be ACTUAL
OR PHYSICAL RESIDENCE.
With the exception of only one case, the word ‘residence’ and
‘venue’ has been uniformly interpreted by the SC to mean ACTUAL
or PHYSICAL RESIDENCE not legal domicile. Alright, there are so
many casesalready: CO vs. CA (70 SCRA 296); FULE vs. CA (14 SCRA
189); HERNANDEZ vs. RURAL BANK OF THE PHIL (81 SCRA 75);
RAYMOND vs. CA (166 SCRA 50); ESCUERTE vs. CA (193 3CRA 54).
EXCEPT for one case decided way back in 1956 – the case of
CORRE vs. CORRE
100 Phil 221
FACTS: An American who resides in San Francisco who came to the
Philippines rented an apartment in Manila to sue his wife who is a
Filipina. The wife is from Mindanao. And then the American
husband filed the case in Manila because he rented an apartment
in Manila.
HELD: You are not a resident of Manila. Your residence is in San
Francisco – that is your domicile. So that is to compel the American
to file the case in the residence of the wife rather than the wife
going to Manila.
So the case of CORRE is the only exception where the SC said,
“residence means domicile.” All the rest, physical! In the case of
CORRE, maybe the SC there was just trying to help the Filipina. If
we will interpret the rule on venue as physical, it is the Filipina who
will be inconvenienced.
RESIDENCE OF A CORPORATION
Under Rule 1, a corporation can sue and be sued. But what is the
residence of a corporation? Under the corporation law, the
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residence of a corporation is the place where its head or main
office is situated.
CLAVECILLA RADIO SYSTEM vs. ANTILLON
19 SCRA 39 [1967]
FACTS: Clavecilla was sued in Cagayan de Oro City. Clavecilla
questioned the venue because its head office is in Manila. The
plaintiff argued that it can be sued because it has a branch in
Cagayan.
ISSUE: Is a corporation a resident of any city or province wherein it
has an office or branch?
HELD: NO. Any person, whether natural or juridical, can only have
one residence. Therefore, a corporation cannot be allowed to file
personal actions in a place other than its principal place of business
unless such a place is also the residence of a co-plaintiff or
defendant.
The ruling in the case of ANTILLON was reiterated in the 1993 case
of YOUNG AUTO SUPPLY CO. vs. COURT OF APPEALS (223 SCRA
670)
Because the law said “where the plaintiff or any of the principal
plaintiffs..” So if the corporation is suing with someone from Cebu
City, even if its head office is in Manila, the corporation can file in
Cebu City because of the residence of my co-plaintiff or the
residence of the defendant. But outside of that, a corporation
cannot sue outside of its head office because its residence is there.
That is the case of YOUNG AUTO SUPPLY.
“OR IN THE CASE OF A NON-RESIDENT DEFENDANT WHERE HE MAY
BE FOUND”
Suppose the defendnt is not residing here in the Philippines but is
just on vacation and you want to sue him. What is now the point of
reference?
Did you notice the phrase “or in the case of a non-resident
defendants where he may be found.” Now what does that mean? It
means to say that the defendant is not actually residing in the
Philippines but he is temporarily around because he is found in the
Philippines. Example is a balikbayan who is still on vacation.
PROBLEM: Suppose a Filipino who is already residing abroad
decided to come back this Christmas for a vacation. When he
landed at the Manila Domestic Airport, you met him as your friend
and the first thing he requested you is if he could borrow some
pesos because his money is in dollars. He borrowed from you
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P15,000.00 promising to pay in a week’s time.. One week later, still
he has not paid you and obviously it seems he will not pay you. So
you decided to sue him while he is around to collect, where is the
venue of the action?
A: The law says, generally where the plaintiff resides or where the
defendant resides. The trouble is, the defendant has no residence
here because he is already residing abroad. But he is temporarily
here in the Philippines.
You can sue him where he may be found. If he decides to stay in
Cebu, that is where the proper venue rather his permanent
residence. So where he may be found is the alternative venue. The
phrase “where he may be found” means where he may be found
here in the Philippines for a non-resident defendant but
temporarily staying in the Philippines.
Q: Suppose a defendant is a non-resident and he is not even here.
Like for example, your neighbor borrowed money from you and the
nest thing you heard is that he left the country. He has already
migrated to the states. Of course you know his address there. Can
you sue him in the Philippine court, a defendant who is no longer
residing here and is not found in the Philippines?
A: NO, you cannot. Charge it to experience.
Q: Why can you not sue a person not residing here in the
Philippines and is not found here in the first place?
A: There is no way for Philippine courts to acquire jurisdiction over
his person. Otherwise, he will not be bound by the decision.
But in our discussion on the element of jurisdiction: subject matter,
person, res and issues, I told you that the res or the thing in dispute
is important because sometimes it takes the place of jurisdiction
over the person of the defendant. So even if the Philippine court
cannot acquire jurisdiction over the person of the defendant but
the subject of the controversy (res) is in the Philippines, then the
non-resident defendant can also be sued in the Philippines. The
court can now acquire jurisdiction over the res, subject and since
the res is here, the judgment can be enforced. It is not a useless
judgement anymore.
EXAMPLE: He is there but he is the owner of a piece of land here. I
want to file a case to recover ownership over the land here in the
Philippines.
Q: Can I sue the non-resident defendant?
A: YES under Section 3. Even if the person is abroad, the res of the
property in dispute is here and if he loses the case the judgment
can be enforced – transfer the property to you. So it is not a useless
judgment. That is what Section 3 is all about.
Sec. 3. Venue of actions against nonresidents. - If any of the
defendants does not reside and is not found in the Philippines,
and the action affects the personal status of the plaintiff, or any
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property of said defendant located in the Philippines, the action
may be commenced and tried in the court of the place where the
plaintiff resides, or where the property or any portion thereof is
situated or found, (2[c]a)
Q: What is the difference between the non-resident defendant in
Section 2 and the non-resident defendant in Section 3?
A: In Section 2, the non-resident defendant may be found in the
Philippines. But in Section 3, he does not reside and is not found in
the Philippines. So, physically, he is not around.
Venue of ordinary civil actions against non-residents:
1. Non-resident but found in the Philippines;
a.) for personal actions, where the plaintiff resides or where he
may be found at the election of the plaintiff;
b.) for real actions, where the property is located.
2. Non-resident not found in the Philippines
An action may be filed only when:
1.) The action affects the personal status of the plaintiff
and venue is the place where the plaiantiff resides; or
2.) The action affects the property or any portion thereof of
said defendants is located here in the Philippines, and
venue is the place where the property or any portion
thereof is located.
ACTION THAT AFFECTS THE PERSONAL STATUS OF THE PLAINTIFF
EXAMPLE: A young child was abandoned by his illegitimate father.
The illegitimate father left the Philippines for good. The son wants
to file a case against the father for compulsory recognition, at least
to improve his status.
Q: Can the child file a case for compulsory acknowledgment here in
the Philippines against the father for compulsory acknowledgment?
A: YES because the action involves the person status of the
plaintiff. The res is the status of the plaintiff who happens to be in
the Philippines.
THE ACTION AFFECTS THE PROPERTY OR ANY PORTION THEREOF
OF SAID DEFENDANTS LOCATED HERE IN THE PHILIPPINES
Example: The defendant who is already abroad owns a piece of
land located here in the Philippines and I want to recover the
ownership of the piece of land.
Q: What is the res?
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A: The res is the land which is situated here in the Philippines.
Therefore I can sue that defendant even if he is there because the
court can acquire jurisdiction over the res.
In order to validly sue in the Philippine court, a defendant who is no
longer residing here and is no longer found here, the action must
be:
1.) action in rem; or
2.) at least quasi-in rem.
In the examples given, if the action is for compulsory recognition,
that is actually an action in rem. In the suit which involves a
property here in the Philippines, at least that is an action quasi-in
rem.
But if the action is purely in personam, then there is no way by
which you can sue him. Example is an action to collect an unpaid
loan.
Q: Where is now the proper venue of the action against the non-
residents?
A: The law says where the plaintiff resides – action which affects
the personal status of defendants, where the property of the
defendant located here in the Philippines
Sec. 4. When rule not applicable. - This rule shall not apply -
a)In those cases where a specific rule or law provides otherwise;
or
b)Where the parties have validly agreed in writing before the
filing of the action on the exclusive venue thereof. (3a, 5a)
A.) IN THOSE CASES WHERE A SPECIFIC RULE OR LAW PROVIDES
OTHERWISE;
Q: What cases provide for venue of the action which may be
different from what Rule 4 says?
A: The following:
1.) A civil action arising from LIBEL under Article 360 of the
Revised Penal Code.
Libel could give rise to a civil action for damages. It is considered
under the RPC as one of the independent civil actions. The criminal
action for libel shall be filed simultaneously or separately in the RTC
of the:
a.) province or city where the libelous article is printed and
first published; or
b.) where any of the offended parties actually resides at the
time of the commission of the offense.
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If one of the offended party is a public officer, whose office is in the
City of Manila at the time of the commission of the offense, the
action shall be filed (a) in the RTC of Manila, or (b) in the RTC of the
province where he held office at the time of the commission of the
offense.
2.) Section 5 (4), Article VIII, 1987 Constitution – The SC may
order a change of venue or place of trial to avoid a
miscarriage of justice as what happened in the case of
Mayor Sanchez.
B.) WHERE THE PARTIES HAVE VALIDLY AGREED IN WRITING
BEFORE
THE FILING OF THE ACTION ON THE EXCLUSIVE VENUE THEREOF.
The parties may agree on a specific venue which could be in a place
where neither of them resides. Take note that the stipulation must
be (1) in writing; (2) made before the filing of the action and 3.
exclusive as to the venue.
While the first two rarely pose a problem, the third has been a
source of controversy in the past.
A stipulation that “any suit arising from this contract shall be filed
only in Quezon City” is exclusive in character and is clear enough to
preclude the filing of the case in any other place. In this case, the
residences of the parties are not to be considered in determining
the venue of the action.
How about a stipulation that the “parties agree to sue and be sued
in the courts of Manila?”
POLYTRADE CORP. vs. BLANCO
30 SCRA 187
FACTS: C and J are both residing here in Cebu City. J borrowed
money from C, and executed a promissory note in favor of the
latter which says, “I promise to pay C the sum of P200,000 one year
from today. In case of a suit arising from this promissory note, the
parties agree to sue and be sued in the City of Manila.”
When the note matured, J did not pay so C filed a case to collect
the unpaid loan here in Cebu City but J challenged the venue on
ground that the venue is agreed upon which is Manila. According to
C, the venue is correct because both of us are residing here in Cebu
City and under Rule 4, the venue is where I reside or you reside, at
my option.
ISSUE: Who is correct in this case?
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HELD: Plaintiff is correct notwithstanding the stipulation. Why?
When. the parties stipulated on the venue of the civil action, other
than those found in the Rule of Court, the stipulated venue is
considered merely as an ADDITION to where the parties reside.
Unless the stipulation contains RESTRICTIVE words which shows the
intention of the parties to limit the place stipulated as the exclusive
venue.
So in the second exception where there is an agreement in writing
on the exclusive venue, the word exclusive is very important as
taken in the ruling in POLYTRADE vs. BLANCO. So if the venue is not
exclusive, Rule 4 still applies and the stipulated venue is just an
additional one.
Of course, there are stipulations where you can see clearly the
intention of the parties to limit the venue. But sometimes, there
are stipulations in which it is difficult to decipher the real intention
of the parties whether exclusive or not. Examples of clear
stipulations which calls for the application of the POLYTRADE
ruling: in the City of Manila only or the suit shall be filed in the City
of Manila and in no other place.
The Polytrade doctrine was further applied in the case of
Unimasters Conglomeration Inc. v. CA 267 SCRA 759. In this case, it
was ruled that a stipulation stating that “all suits arising out of this
Agreement shall be filed with/in the proper courts of Quezon City,”
is only permissive and does not limit the venue to the Quezon City
courts. As explained the said case:
“In other words, unless the parties made very clear, by employing
categorical and suitably limiting language, that they wish the venue
of the actions between them to be laid only and exclusively at a
definite place, and to disregard the prescriptions of Rule 4,
agreements on venue are not to be regarded as mandatory or
restrictive, but merely permissive, or complementary of said
rule.xxxThere must be, to repeat, accompanying language clearly
and categorically expressing their purpose and design that actions
between them be litigated only at the place named by them,
regardless of the general precepts of Rule 4; and any doubt or
uncertainty as to the parties’ intentions must be resolved against
giving their agreement a restrictive or mandatory aspect. Any other
rule would permit of individual, subjective judicial interpretations
without stable standards, which could well result in precedents in
hopeless inconsistency.”
However, there are cases in which you cannot find the word
exclusive or the word only, and yet the SC said it seems the
intention of the parties to limit the venue as exclusive as what
happened in the 1994 case of
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GESMUNDO vs. JRB REALTY CORP
234 SCRA 153
FACTS: This involves a lease contract which contain a stipulation on
venue. Here is the language of the lease contract: “venue for all
suits, whether for breach hereof or damages or any cause between
the LESSOR and the LESSEE, and persons claiming under each, being
the courts of appropriate jurisdiction in Pasay City…”
In other words, if there is a case, they agreed to file it in the court
of Pasay City.
ISSUE: Is this intention of the parties to make Pasay City an
exclusive venue?
HELD: Pasay City is the exclusive venue. “It is true that in Polytrade
Corporation v. Blanco, a stipulation that ‘The parties agree to sue
and be sued in the City of Manila’ was held to merely provide an
additional forum in the absence of any qualifying or restrictive
words. But here, by laying in Pasay City the venue for all suits, the
parties made it plain that in no other place may they bring suit
against each other for breach contract or damages or any other
cause between them and persons claiming under each of them.” In
other words, the intention of the parties is to make Pasay City the
exclusive venue.
The following stipulations were likewise treated as merely
permissive and did not limit the venue:
a. xxxThe agreed venue for such action is Makati, Metro
Manila, Philippines (Mangila v. CA 435 Phil. 870).
b. “In case of litigation hereunder, venue shall be in the City
Court or Court of First Instance of Manila as the case
may be for determination of any and all questions arising
thereunder.” (Phil. Bank of Communications v. Trazo, GR
165500, Sug. 30, 2006)
c. “It is hereby agreed that in case of foreclosure of this
mortgage under ACT 3135, as amended, and Presidential
Decree No. 385, the auction sale shall be held at the
capital of the province, if the property is within the
territorial jurisdiction of the province concerned, or shall
be held in the city, if the property is within the territorial
jurisdiction of the city concerned”(Langkaan Realty
Development, Inc. v. UCPB GR 139427, Dec. 8, 2000)
d. “All court litigation procedures shall be conducted in the
appropriate courts of Valenzuela City, Metro Manila”
(Auction in Malinta, inc. v. Luyaben GR 173979, Feb. 12,
2007)
Examples of words with restrictive meanings are: xxx “only”,
“solely”, “exclusively in this court”, “in no other court save –“,
“particularly”, “nowhere else but/except --, or words of equal
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import xxx” (Pacific Consultants International Asia, Inc. v.
Schonfeld, GR 166920 Feb. 19, 2007)
Cases like Hoechst, Inc. v. Torres, 83 SCRA 297 and Bautista v. de
Borja 18 SCRA 474 and other rulings contrary to the Polytrade
doctrine are deemed superseded by current decisions on venue.
In Supena v. de la Rosa 334 Phil. 671, it was ruled that Hoechst had
been rendered obsolete by recent jurisprudence applying the
doctrine enunciated in Polytrade (Auction in Malinta Inc. v.
Luyaben)
This conflict was resolved in the case of PHIL. BANKING vs.
TENSUAN (228 SCRA 385) where the SC ruled that the ruling in
BAUTISTA vs. DE BORJA and HOECHST PHILS. vs. TORRES has been
rendered obsolete by the POLYTRADE ruling and subsequent cases
reiterated it. So the ruling in POLYTRADE is the correct ruling.
Forget what the SC said in the abovementioned two cases.
When stipulation would be contrary to public policy of making
courts accessible to all who may have need of their service
SWEET LINES vs. TEVES
83 SCRA 361
FACTS: This is a Cagayan de Oro case which involves Sweet Lines, a
shipping company with the head office in Cebu. The respondent
Teves is the former City Fiscal of Davao City, former Mayor and
became judge of CFI of Cagayan de Oro City.
There was a group of passenger who rode on the Sweet Lines
bound for Cebu City. During the trip, they were given a crude
treatment by the officers of the vessel. When they came back in
Cagayan de Oro City, they filed a suit for damages against Sweet
Lines. They file the case in the former CFI, now RTC, of Cagayan de
Oro City because the plaintiffs are residents of Cagayan de Oro City.
Sweet Lines filed a motion to dismiss questioning the venue of the
action because in the ticket issued by Sweet Lines, it is stipulated
that “…in case of a civil action arising from the contract of carriage,
the venue of the action shall be the City of Cebu ONLY and in no
other place.” So there is a restrictive word. Obviously the lawyers
of Sweet Lines knew about Polytrade because they moved to
dismiss the case citing this case.
Judge Teves denied the motion to dismiss the case despite the
stipulation. According to him, it is unfair. If I will dismiss the case
based on this stipulation, the aggrieved parties will be discouraged
in going to Cebu. It is very expensive and they will be
inconvenienced. But, if the case will go on in Cagayan de Oro, it will
not inconvenienced Sweet Lines because they have their branch
office, their manager and their own lawyer.
ISSUE: Whether or not Cagayan de Oro is the proper venue.
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HELD: YES. Judge Teves was correct in not dismissing the case.
First of all, the stipulation is placed in the ticket. These people
never even bothered to read this. Nakalagay na iyan diyan eh. So
either you take it or you leave it. Therefore, the passengers did not
have a hand in preparing that stipulation. So the contract is a
contract of adhesion.
Second, again for the sake of equity, to be fair that these poor
people will be compelled to go to Cebu to file a case there. They
will be discouraged. It is very expensive to go back and forth to
Cebu. Whereas, Sweet Lines has the resources, the means, the
lawyers here in Cagayan to litigate. Therefore, it would be
inequitable to compel them or to apply the stipulation there.
The ruling in SWEET LINES is an exception to POLYTRADE despite
the exclusive stipulation. The SC said that the refusal of the court to
apply it is correct. There is no grave abuse of discretion on the part
of Judge Teves.
ARQUERO vs. FLOJO
168 SCRA 54
FACTS: Arquero here is lawyer and the municipal mayor of the
municipality of Sta. Teresita, Cagayan Valley. He sent a telegram
through the RCPI branch in Cagayan addressed to a Congressman in
stating: I will go there to Manila, I will see you in your office on this
particular date.
When he went to the office of the congressman after a few days,
who was mad at him telling him “So you are here to ask for a favor
for your own but your telegram was charged collect! Arquero was
stunned and embarrassed because he paid for the telegram.
Upon his return to Cagayan, he filed an action for damages against
RCPI. But in the RCPI telegraph form, there is a stipulation that
“venue of any action shall be the court of Quezon City alone and in
no other courts.” So the venue is restrictive and RCPI filed a motion
to dismiss citing as ground improper venue.
The trial court granted the motion. Arquero went to the SC citing
the case of SWEET LINES where despite the fact of a restrictive
stipulation, SC refused to apply the POLYTRADE ruling.
HELD. The ruling in Sweet Lines vs. Teves does not apply. You are
bound by the stipulation. Why? You are a lawyer so you klnow the
implication of the stipulation signed.
Q: Distinguish JURISDICTION from VENUE.
A: The following are the distinctions:
1.) JURISDICTION refers to the authority of the court to hear
the case, whereas
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VENUE refers only to the place where the action is to be heard or

tried;

2.) JURISDICTION over the subject matter cannot he waived;

whereas
VENUE is waivable and can be subject of agreement;

3.) JURISDICTION is governed by substantive law – Judiciary

Law, BP 129; whereas
VENUE is governed by procedural law – Rule 4 of the Rules of
Court;

4.) JURISDICTION establishes a relation between the court

and the subject matter; whereas VENUE creates a
relation between the plaintiff and defendant, or
petitioner and respondent; and

5.) JURISDICTION or lack of it over the subject matter is a

ground for a motu proprio dismissal; whereas VENUE is
not except in cases subject to summary procedure.

BAR QUESTION: State in what instance the jurisdiction and venue

coincide.
A: In CRIMINAL CASES because in criminal cases, venue is territorial
jurisdiction. But in civil cases, jurisdiction and venue are two
different things. They do not coincide.

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Rule 5

UNIFORM PROCEDURE IN TRIAL COURTS

SECTION 1. Uniform Procedure – The procedure in Municipal Trial

Courts shall be the same as in the Regional Trial Courts, except (a)
where a particular provision expressly or impliedly applies only to
either of said courts, or (b) in civil cases governed by the Rule on
Summary Procedure. (n)

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

The Rules on Civil Procedure which applies to RTC are also

applicable to the MTC except when a particular provision expressly
applies only to either of said courts.

There are provisions where it is very clear and intended only to

apply to RTC or MTC. A good example of this is paragraph (a) is Rule
40 which governs appeals from MTC to RTC. It is only applicable to
MTC. It does not apply to appeals from RTC to Court of Appeals.

The second example would be in civil cases governed by Rules on

Summary Procedure. That would be the last law that we will take
up. Rules on Summary Procedure applied only to MTC. They do not
apply to RTC.

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

used in these Rules shall include Metropolitan Trial Courts,
Municipal Trial Courts in Cities, Municipal Trial Court, and
Municipal Circuit Trial Courts. (1a)

In our structure, we already illustrated the hierarchy of courts.

Metropolitan Trial Courts are only in Manila. Municipal Trial Courts
are in cities and municipalities. When the Rule says ‘Municipal Trial
Court’, it already includes Metropolitan Trial Courts, MTCC, MCTC.
So that we will not be repetitious.

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PROCEDURE IN THE REGIONAL TRIAL COURTS
Rule 6
KINDS OF PLEADINGS
SECTION 1. Pleadings Defined. Pleadings are the written
statements of the respective claims and defenses of the parties
submitted to the court for appropriate judgment. (1a)
Q: Define pleadings?
A: PLEADINGS are the written statements of the respective claims
and defenses of the parties submitted to the court for appropriate
judgment. (Section 1) Under the Rules, “pleadings” cannot be oral
because they are clearly described as “written” statements.
This is the document where a party will state his claim against the
defendant; or where the defendant will state also his defense.
Pleadings merely tell a story. You tell your story there, the other
party will tell his story.
Necessity and purpose of pleadings
1. Pleadings are necessary to invoke the jurisdiction of the court
(71 C.J.S. Pleadings). It is necessary, in order to confer jurisdiction
on a court, that the subject matter be presented for its
consideration in a mode sanctioned by law and this is done by the
filing of the complaint or other pleading. Unless a complaint or
other pleading is filed, the judgment of a court of record is void and
subject to collateral attack even though it may be a court which has
jurisdiction over the subject matter referred to in the judgment.
2. Pleadings are intended to secure a method by which the issues
may be properly laid before the court. (Santiago v. de los Santos 61
SCRA 146).
3. Pleadings are designed to present, define and narrow the issues,
to limit the proof to be submitted in the trial, to advise the court
and the adverse party of the issues and what are relied upon as the
causes of action or defense. (71 CJS)
The counterpart of pleadings in criminal procedure is information,
or the criminal complaint where a prosecutor will tell what crime
you are being accused – what you did, time, the victim, etc.
Construction of pleadings
In this jurisdiction, all pleadings shall be liberally construed so as to
do substantial justice (Concrete Aggregate Corp. v. CA 266 SCRA
88). Pleadings should receive a fair and reasonable construction in
accordance with the natural intendment of the words and language
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used and the subject matter involved. The intendment of the
pleader is the controlling factor in construing a pleading and should
be read in accordance with its substance, not its form.
While it is the rule that pleadings should be liberally construed, it
has also been ruled that a party is strictly bound by the allegations,
statements or admissions made in his pleading and cannot be
permitted to take a contradictory position. (Santiago v. de los
Santos 61 SCRA 146)
Construction of ambiguous allegations in pleadings
In case there are ambiguities in the pleadings, the same must be
construed most strongly against the pleader and that no
presumptions in his favor are to be indulged in. This rule proceeds
from the theory that it is the pleader who selects the language
used and if his pleading is open to different constructions, such
ambiguities must be at the pleader’s peril. (61 Am Jur, Pleading)
System of pleading in the Philippines
The system is the Code Pleading following the system observed in
some states of the US like California and New York. This system is
based on codified rules or written set of procedure as distinguished
from common laws procedure. (Marquez and Gutierrez Lora v.
Varela, 92 Phil. 373)
Sec. 2 – Pleadings allowed – The claims of a party are asserted in a
complaint, counterclaim, cross-claim, third (fourth, etc.) – party
complaint, or complaint-in-intervention.
The defenses of a party are alleged in the answer to the pleading
asserting a claim against him.
An answer may be responded to by a reply. (n)
Section 2 tells us what pleadings are allowed by the Rules of Court.
In a civil case, there are actually two (2) contending parties: (1) the
person suing or filing a claim; and (2) the person being sued or
defending.
Q: If you are the claimant or the plaintiff, in what pleading do you
assert your claim?
A: Complaint, counterclaim, cross-claim, third-party complaint or
fourth-party complaint, etc.
On the other hand, if you are the party sued, you also have to file
your pleading or your defense. It is known as the ANSWER. The
defenses of a party are alleged in the answer to the pleading
asserting a claim against him. If I file a complaint against you, in
response, you will file an answer.
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In the last paragraph, an answer may be responded by a REPLY. I
file a complaint. You file an answer invoking your defenses. If I
want to respond to your defenses, I will file a REPLY.
COMPLAINT ANSWER REPLY
That is the pattern.
Q: Summarizing all of them, what are the known pleadings
recognized by the law on Civil Procedure?
A: There are seven (7) types of pleadings:
1.) Complaint;
2.) Answer;
3.) Counterclaim;
4.) Cross-claim;
5.) Reply
6.) Third (Fourth, Fifth, etc.) – Party Complaint;
7.) Complaint-in-Intervention.
Pleadings allowed under the Rules on Summary Procedure
Note however, that when a case falls under the Rules on Summary
Procedure, the only pleadings allowed to be filed are:
1. Complaint;
2. Compulsory Counterclaim;
3. Cross-claim pleaded in the Answer; and
4. Answers thereto (Sec. 3 [A]II, Rules on Summary
Procedure)
Permissive Counterclaims, third-party complaints, reply and
pleadings-in-intervention are prohibited. (Sec. 9, IV)
Pleading and motion
1. the purpose of a pleading is to submit a claim or defense for
appropriate judgment while the purpose of a motion is to apply for
an order not included in the judgment;
2. a pleading may be initiatory like a complaint while a motion can
never be such as it is filed in a case that is already pending in court;
3. A pleading is always filed before judgment while a motion may
be filed after judgment;
4. There are only 9 kinds of pleadings while any application for a
relief other a judgment can be made in a motion' however, there
are only three motions which actually seek judgment namely: a.) a
motion for judgment on the pleadings (R 34); b.) a motion for
summary judgment (R 35); c.) Demurrer to Evidence
5. a pleading must be written while a motion may be oral when
made in open court or in the course of a hearing or trial.
A.) COMPLAINT
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Sec. 3. Complaint – The complaint is the pleading alleging the
plaintiff’s cause or causes of action. The names and residences of
the plaintiff and defendant must be stated in the complaint.
Q: Define complaint.
A: COMPLAINT is the pleading where the plaintiff will allege his
cause or causes of action. A complaint is also called the INITIATORY
PLEADING because it is actually the first pleading filed in court. It is
the pleading that initiates the civil action.
Rule 8 requires that it should contain a concise statement of the
ultimate facts constituting the plaintiff's cause of action not
evidentiary facts or legal conclusions.
Ultimate facts refer to the essential facts constituting the plaintiff's
cause of action.
The fact is essential if it cannot be stricken out without leaving the
statement of the cause of action insufficient.
Test of sufficiency of the facts alleged in the complaint:
Determine whether upon the averment of facts, a valid judgment
may be properly rendered.
What are not ultimate facts:
1. evidentiary or immaterial facts;
2. legal conclusions, conclusions or inferences of facts from facts
not stated, or incorrect inferences or conclusions from facts stated;
3. the details of probative matter or particulars of evidence,
statements of law, inferences and arguments;
4. an allegation that a contract is valid or void is a mere conclusion
of law.
For EXAMPLE: Mr. P wants to sue Mr. R to collect an unpaid loan.
Mr. R borrowed money from Mr. P and refused to pay. Normally, it
starts with an introduction: “Plaintiff, through counsel, respectfully
alleges that…” Then it is followed by paragraphs which are
numbered. For instance:
Illustration:
1.) Plaintiff Mr. P, of legal age, is a resident of 79 P. del
Rosario St., Cebu City; whereas defendant Mr. R also of
legal age, is a resident of 29 Pelaez St. Cebu City where
summons and other processes of this court may be
served;
2.) On Nov. 7, 2008, defendant secured a loan from plaintiff
in the sum of P30,000.00 payable within one (1) year
form said date with legal interest;
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3.) The account is already due and despite repeated
demands, defendant failed and refused to pay;
PRAYER
WHEREFORE, it is respectfully prayed that judgment be
rendered against the defendant ordering him to pay the loan of
P30,000.00 and interest in favor of the plaintiff.
Plaintiff further prays for such other reliefs as may be just and
equitable under the premises.
Your allegations must contain the four (4) elements of a Cause of
Action – the Right, the Obligation, the Delict or Wrong or Violation
of Your Right, and the Damage.
B.) ANSWER
Sec. 4 – Answer – An answer is a pleading in which a defending
party sets forth his defenses. (4a)
Q: What is the pleading where you respond?
A: It is called the ANSWER. That is where you will state your
defenses. That is why an ANSWER is called a Responsive Pleading.
Q: Why is it called “Responsive Pleading”?
A: Because it is the pleading which is filed in response to the
complaint or a pleading containing a claim. It is where you respond
to the cause of action. That is where you state your defenses.
So you can file an answer to the complaint; answer to the
counterclaim, answer to the cross-claim, etc.
It is something which is not found in Criminal Procedure.
Q: If you are charged with a crime, how do you answer?
A: By pleading guilty or not guilty. That is the answer. When you
plead guilty, and the offense is not punishable by reclusion
perpetua to death it is the end.
There is no writing of defenses, no written answer in criminal
cases. It (pleadings) only applies to civil cases where you allege
your defenses.
Q: What are the defenses under the Rules?
A: That is Section 5.
Sec. 5 – Defenses – Defenses may either be negative or
affirmative.
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A NEGATIVE DEFENSE – is the specific denial of the material fact
or facts alleged in the pleading of the claimant essential to his
cause or causes of action.
An AFFIRMATIVE DEFENSE – is an allegation of a new matter
which, while hypothetically admitting the material allegations in
the pleading of the claimant, would nevertheless prevent or bar
recovery by him.
Defenses may either be negative or affirmative.
b.) Answer; NEGATIVE DEFENSES;
Q: Define a NEGATIVE defense.
A: Paragraph [a]: Briefly, it is a defense of specific denial where you
deny the statement in the complaint and you state the facts and
the reason/s on which your denial is based. In a negative defense,
the defendant specifically denies a material fact or facts alleged in
the pleading of the claimant essential to his cause of action.
EXAMPLE: The complaint says in paragraph 2, “On November 6,
2008, defendant secured a loan from plaintiff in the amount of
P30,000.00 payable one (1) year from November 6,2008.
The defendant will say in his answer:
“Defendant specifically denies the allegation in Paragraph 2 of the
complaint. The truth of the matter being that he never secured any
loan from plaintiff because he does not even know the plaintiff and
he did not see his face before.”
That is a negative defense. You said I borrowed money from you.
“No, I don’t even know you. I have not seen you before.” He
denies the existence of the loan. That is known as the negative
defense. It is a denial of a material fact which constitutes the
plaintiff’s cause of action. That’s why it is briefly called a “Defense
of Specific Denial”.
Insufficient denial or denial amounting to admissions:
1. General denial; and
2. denial in the form of negative pregnant
Negative pregnant is a denial in such form as to imply or express an
admission of the substantial fact which apparently is controverted.
It is form of denial which really admits the important facts
contained in the allegations to which it relates.
While it is a denial in form, its substance actually has the effect of
an admission because of a too literal denial of the allegations
sought to be denied. This arises when the pleader merely repeats
the allegations in a negative form.
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In the example above, when the answer states:
"The defendant did not secure a loan from the plaintiff on Nov. 6,
2008 in the amount of P30,000.00 payable within one year."
b.) Answer; AFFIRMATIVE DEFENSES
Q: Define an AFFIRMATIVE defense.
A: In paragraph (b), it is briefly called a defense of confession and
avoidance because, while the defendant may admit the material
allegation in the complaint, however, he will plead a new matter
which will prevent a recovery by the plaintiff. I admit what you are
saying in the complaint but still you are not entitled to recover
from me.
EXAMPLE:
Defendant may say: Defendant admits the allegation in par. 2 of
the Complaint, but alleges that the action has prescribed.
He confesses to having borrowed money but avoids liability by
asserting prescription.
Examples of affirmative defenses are: fraud, statute of limitations,
release, payment, illegality, statute of frauds, estoppel, former
recovery, discharge in bankruptcy, and any other matter by way of
confession and avoidance.
Suppose, you sue me for damages arising from breach of contract.
I admit I entered into a contract but I have no obligation to comply
because the contract is null and void. Or, the contract is illegal. Or,
the stipulation is contrary to public policy, therefore, I am not
bound. I admit what you say but I am not liable because of the
illegality of the subject matter of the contract.
Or, you sue me because according to you, I entered into a contract
and I refused to comply. So, you file a case against me for specific
performance or for damages. Then I say: “It’s true that I entered
into a contract with you. It’s true I did not comply. But there is
nothing you can do because the contract is oral and the contract is
covered by the statute of frauds. In order to be enforceable, we
should have reduced it into writing. Since we never reduced it into
writing, I am not bound to comply.”
c.) COUNTERCLAIMS
Sec. 6. Counterclaim. - A counterclaim is any claim which a
defending party may have against an opposing party. (6a)
EXAMPLE: You file a case against me for damage to your car.
According to you in your complaint, while you were driving your car
along the highway carefully, I came along driving recklessly and
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bumped your car causing damages amounting to P50,000.00 for
repair. Your allegation is based on negligence on my part.
My answer is denial: “That is not true! I deny that! I was the one
driving carefully and you were driving carelessly and negligently.
Therefore, if you are the proximate cause of the accident, I’m not
liable for the damage of your car.” That’s my answer – I’m not
liable because you are negligent. Because you were the one
negligent, my car was also damaged. I am not liable for the damage
on your car. As a matter of fact, you are the one that should be
held liable to pay for the damage of my car. I am now claiming for
the damage of P50,000.00. That is called COUNTERCLAIM.
Nature of a counterclaim
A counterclaim is in the nature of a cross-complaint. Although it
may be alleged in the answer, it is not part of the answer. Upon its
filing, the same proceedings are had as in the original complaint.
For this this reason it is to be answered within ten (10) days from
service.
According to a lawyer who is fluent in Cebuano, he called it balos.
He was explaining to his client that they have counterclaim.
Therefore, there is one civil case but there are two (2) causes
involved – the main cause of action in the complaint and that in the
counterclaim. There are two (2) issues to be resolved by the court.
Q: If your complaint against me is to recover a sum of money,
should my counterclaim also involve recovery of sum of money?
A: NO. There is no such rule that these two (2) cases should be
similar in nature. (De Borja vs. De Borja, 101 Phil. 911) It is possible
for you to file case for recovery of a piece of land and my
counterclaim is recovery of damages arising from a vehicular
accident.
Q: Suppose your claim against me is One (1) Million, is it possible
that my counterclaim against you is Two (2) Million?
A: YES. There is no rule which limits my counterclaim to the same
amount you are claiming. A counterclaim need not diminish or
defeat the recovery sought by the opposing party, but may claim
relief exceeding in amount or different in kind from that sought by
the opposing party. (De Borja vs. De Borja, 101 Phil. 911)
Q: You file a case against me for recovery of unpaid loan. My
counterclaim is, rescission of partnership contract. Is the
counterclaim proper?
A: Yes although there is no connection between what you are
asking and what my answer is. But what is important is that we are
the same parties. If you will not allow me to file my counterclaim
against you, that will be another case in the future. So to avoid
multiplying suits, clogging the dockets of the court and making the
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proceedings more expensive, violating the purpose of the rules, the
parties are allowed to include all their claims against each other in
one case.
Same capacity rule
DE BORJA vs. DE BORJA
101 Phil 911
FACTS: A died, of course, what survives after that is the estate. X
was appointed as administrator or legal representative. W owes a
sum of money to the estate of A and X filed a case against W to
collect the unpaid loan. X is called the REPRESENTATIVE PARTY
under Rule 3, Section 3. W filed an answer and stated that W has a
claim against X. W filed a counterclaim against X in the case.
HELD: The counterclaim is improper. When X sued W, X is not suing
in his own personal capacity. He is acting as administrator of the
estate of A. The real plaintiff is the estate of A. X is just the legal
representative. Therefore, you cannot file a counterclaim against X
in the latter’s personal capacity when X is suing W in a
representative capacity.
The SC said that the plaintiff should be sued in a counterclaim in
the SAME CAPACITY that he is suing the defendant. That’s a
principle to remember.
PERMISSIVE & COMPULSORY COUNTERCLAIMS
Sec. 7 – Compulsory counterclaim – A compulsory counterclaim is
one which, being cognizable by the regular courts of justice, arises
out of or is connected with the transaction or occurrence
constituting the subject matter of the opposing party’s claim and
does not require for its adjudication the presence of third parties
of whom the court cannot acquire jurisdiction. Such a
counterclaim must be within the jurisdiction of the court both as
to the amount and the nature thereof, except that in the original
action before the Regional Trial Court, the counterclaim may be
considered compulsory.
Under the Rules, there are two types of counterclaim. 1)
COMPULSORY COUNTERCLAIM and, 2) PERMISSIVE
COUNTERCLAIM.
Q: How do you distinguish one from the other? When is a
counterclaim compulsory and when is it permissive?
A: The ELEMENTS of a COMPULSORY COUNTERCLAIM are found in
Section 7. If we will outline Section 7, we will see that a
counterclaim is compulsory if the following requisites are present:
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1.) It is cognizable by the regular courts of justice;
2.) It arises out of or it is connected with a transaction or
occurrence constituting a subject matter of the opposing
party’s claim;
3.) It does not require for its adjudication the presence of
third parties of whom the court cannot acquire
jurisdiction;
4.) It must be within the jurisdiction of the court, both as to
the amount and the nature thereof, except that in an
original action before the RTC, the counterclaim may be
considered compulsory regardless of the amount; and
5.) The defending party has a counterclaim at the time he
files his answer.
The fifth requisite is not found in Section 7 but in Rule 11, Section
8:
Rule 11, Sec. 8. Existing counterclaim or cross-claim. - A
compulsory counterclaim or a cross-claim that a defending party
has at the time he files his answer shall be contained therein. (8a,
R6)
Another way of saying it is, the counterclaim has already matured
at the time he files his answer. That is the fifth requisite.
Q: What happens if one of these requisites is missing?
A: If one of the five requisites is missing, the counterclaim is
permissive in nature.
Discussion of the elements
First Element: A COUNTERCLAIM TO BE COMPULSORY MUST BE
COGNIZABLE BY THE REGULAR COURTS.
In other words, if you file a complaint against me and I have a
counterclaim against you in the Labor Code, then it cannot be
classified as a compulsory claim because how can I invoke against
you a claim which is cognizable by the NLRC before the RTC?
Second Element: IT ARISES OUT OF OR IT IS CONNECTED WITH A
TRANSACTION OR OCCURRENCE CONSTITUTING A SUBJECT
MATTER OF THE OPPOSING PARTY’S CLAIM
The second requisite is the most important. A counterclaim, to be
compulsory, must arise out of or connected with the transaction or
occurrence constituting a subject matter of the opposing party
concerned. It must arise out of or is connected with a transaction
or occurrence constituting a subject matter of the opposing party’s
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claim. It must be logically related to the subject matter of the main
action.
So the rule is, if the counterclaim did not arise out of or is not
connected with the transaction or occurrence constituting the
subject matter of the opposing party’s concern, the counterclaim
must be permissive in nature.
PROBLEM: Emily filed a case against Regina for damages arising
from a vehicle collision. According to Emily, the case of the accident
is the negligence of the defendant in driving her car. Her car
bumped the car of Emily and was damaged. So, Emily is holding
Regina liable for the damage on her car. Regina denied that she
was negligent. According to Regina, “No, I am not negligent. As a
matter of fact, you (Emily) were the one negligent, and because of
that negligence, my car was also damaged. So you should be the
one to pay damages.”
Q: Is the counterclaim of Regina arising out of or is connected with
the transaction or occurrence constituting the subject matter of
the opposing party?
A: YES because we are talking of the same bumping. You bumped
my car, you say I bumped your car. So we are talking of the same
event or transaction.
PROBLEM: T files a case against me for recovery of a piece of land.
According to her, she is the owner of the land which I’m occupying.
Now, I file my answer, and then I said, “T, I spent a lot of money for
necessary expenses to preserve the land. You are also liable to
reimburse me for the expenses for the necessary improvements I
introduced on the land.” Under the law on Property, a defendant
or possessor is entitled to reimbursement for necessary
improvements and expenses. So she is trying to recover the piece
of land, I am now asking her to reimburse me for all necessary
expenses that I spent on the land.
Q: Is my counterclaim arising out of or connected with the subject
matter of your claim or not?
A: YES. We are talking of the same subject matter. Thus, the
counterclaim is compulsory.
PROBLEM: T files a case against me for recovery of a piece of land.
My counterclaim against her is damages arising from a vehicular
collision.
Q: Is my counterclaim arising out of a subject matter of your
action?
A: NO. It is completely different. Thus, that is a permissive
counterclaim.
MELITON vs. COURT OF APPEALS
216 SCRA 485
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HELD: “It has been postulated that while a number of criteria have
been advanced for the determination of whether the counterclaim
is compulsory or permissive, the one compelling test of
compulsoriness is the logical relationship between the claim
alleged in the complaint and that in the counterclaim, that is,
where conducting separate trials of the respective claims of the
parties would entail a substantial duplication of effort and time, as
where they involve many of the same factual and/or legal issues.”
Logical Relationship Test
The logical relationship test between the claim and the
counterclaim has been called: The one compelling test of
“compulsoriness.” Under this test, any claim a party has against an
opposing party that is logically related to the claim being asserted
by the opposing party, and that it is not within the exception to the
rule is a compulsory counterclaim. Its outstanding quality is
flexibility. (Tan v. Kaakbay Finance Corporation 404 SCRA 518)
Q: What is the importance of determining whether the claim is
compulsory or permissive?
A: A compulsory counterclaim must be invoked in the same action.
It cannot be the subject matter of a separate action. Unlike in
permissive counterclaim where you have the choice of invoking it
in the same case, or in a separate action, compulsory counterclaim
must be invoked in the same action otherwise it will be barred.
That is found in Rule 9, Section 2:
Rule 9, Sec. 2. Compulsory counterclaim, or cross-claim, not set up
barred. - A compulsory counter-claim or a cross-claim, not set up
shall be barred. (4a)
Let us try to apply that principle to the case cited.
PROBLEM: V files a case against me for damages arising from
vehicular collision. Her car is damaged, my car is damaged. In my
answer, I denied negligence but I did not claim from her the
damage to my vehicle. After the trial, court found the plaintiff at
fault. So, the complaint of V. This time I will file a case against her
to recover damages for the damage to my car since I was able to
prove that she was negligent and not me.
Q: What will happen to my case now?
A: My case will be dismissed because I did not raise that cause of
action as a counterclaim as it is compulsory.
PROBLEM: A files a case against me for recovery of a piece of land.
After trial, the decision is against me. The court said that I should
return the land to her. I will file a case against her. She moved to
dismiss – barred, because I should have raised that as a
counterclaim. I cannot file another case involving that cause of
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action. That is the effect of failure to raise the compulsory
counterclaim in the case filed against you.
PROBLEM: Now, suppose the counterclaim is PERMISSIVE. My
cause of action against her is damages arising against a vehicular
collision.
Q: Is the counterclaim allowed?
A: Yes, allowed.
Q: My decision is not to file a counterclaim but to file another case
against her. Is that allowed?
A: Yes, that is allowed. Meaning, I may or may not raise it as a
counterclaim because it is permissive. I am permitted to raise it as
a counterclaim but I am not obliged. I may decide to file another
action against you. That is the importance between a compulsory
counterclaim and a permissive counterclaim.
Third Requisite: IT DOES NOT REQUIRE FOR ITS ADJUDICATION
PRESENCE OF THIRD PARTIES OF WHOM THE COURT CANNOT
ACQUIRE JURISDICTION.
Meaning, if my counterclaim against you will involve the presence
of an indispensable party who is, let’s say, abroad, and therefore,
the court cannot acquire jurisdiction over him, if I don’t allege it as
counterclaim in my answer, I will not be barred from filing a
separate action.
Fourth Element: THAT THE COUNTERCLAIM MUST BE WITHIN THE
JURISDICTION OF THE COURT BOTH AS TO THE AMOUNT AND
NATURE THEREOF.
Rules:
1. A counterclaim before the MTC must be within the jurisdiction of
the said court, both as to the amount and nature thereof.
2. In an original action before the RTC, the counterclaim may be
considered compulsory regardless of the amount.
3. However, the nature of the action is always material such that
unlawful detainer cannot be set up in the RTC.
4. If a counterclaim is filed in the MTC in excess of its jurisdictional
amount, the excess is considered waived (Agustin v. Bacalan GR No.
46000, March 18, 1985)
In Calo v. Ajax In'tl GR No. 22485, March 16, 1968, the remedy
where a counterclaim is beyond the jurisdiction of the MTC is to set
off the claims and file a separate action to collect the balance.
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Q: I will file a case against you for forcible entry. I want to recover a
piece of land. Where is the jurisdiction of that case?
A: MTC.
Review: In the Law on Property, even if you are a possessor in bad
faith, you are entitled to reimbursement for necessary expenses.
The theory there is, even if he is a possessor in bad faith, the
expenses redounded to the benefit of the land owner. Anyway, you
will spend them just the same as the land owner will have to spend
for them. So it will not be fair if he is not reimbursed. That’s our
premise.
PROBLEM: Now, the defendant would like to claim for
reimbursement for the necessary expenses that he spent in my lot.
The case I filed against you is forcible entry in the MTC. Your
necessary expenses amount to P350,000.
Q: Should you raise it as a compulsory counterclaim in the forcible
entry case?
A: NO.
Q: Does it arise out of or connected with the transaction which is
the subject matter of the main action? Why not compulsory?
A: Because the MTC has no jurisdiction over the P350,000 amount
for the necessary expenses. This time, that is the missing element.
Q: How will the defendant claim reimbursement?
A: He has to file with the RTC a case for reimbursement. He cannot
use that as a counterclaim for the forcible entry case because the
MTC has no jurisdiction on a counterclaim where the amount is
over P300,000.00.
I will reverse the problem:
PROBLEM: The plaintiff filed against the defendant an action for
accion publiciana – recovery for a piece of land where the value of
the property is P1 million. So the case should be filed in the RTC.
Now, the defendant is claiming for the reimbursement of the
improvements thereon (necessary expenses) amounting to
P50,000.
Q: Should the defendant raise that as a counterclaim in the accion
publiciana case?
A: YES.
In the first example, the counterclaim is above the jurisdiction of
the MTC. This time, the amount for the counterclaim is below the
jurisdiction of the RTC. So the RTC can claim jurisdiction.
Q: How can the RTC try a counterclaim when the claim is only
P50,000?
A: It is in accordance with the exception under Section 7: “except
that in an original action before the RTC, the counterclaim may be
considered compulsory regardless of the amount.” This means that
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the main action is accion publiciana—RTC. The counterclaim is
reimbursement for necessary expenses with arose out of the same
land. Normally, the RTC cannot try that but the answer to this
question is YES.
The RTC can award a claim for damages even though the claim is
below its jurisdiction. The principle is: Since the counterclaim is
compulsory, jurisdiction over the main action automatically carries
with it jurisdiction over the compulsory counterclaim. The
compulsory counterclaim is merely incidental to the main action.
Jurisdiction of the RTC over the main action necessarily carries with
it jurisdiction over the compulsory counterclaim which is merely
ancillary.
If the main action is with the MTC, it cannot try the counterclaim
with the RTC. It is beyond its jurisdiction. It is not covered by the
exception. But if it is the main action which is within the jurisdiction
of the RTC, it can try a counterclaim which is below its jurisdiction
provided it arose out or is connected with the transaction.
That exception is not written in the prior rules but it is a recognized
exception laid down by the SC which is now written down in the
law. In the case of
MACEDA vs. COURT OF APPEALS
176 SCRA 440
HELD: “The jurisdiction of the MTC in a civil action for sum of
money is limited to a demand that does not exceed P100,000 (now
P300,000) exclusive of interest and costs. A counterclaim beyond
its jurisdiction and limit may be pleaded only by way of defense to
weaken the plaintiff’s claim, but not to obtain affirmative relief.”
Fifth Requisite: THE DEFENDING PARTY HAS A COUNTERCLAIM AT
THE
TIME HE FILES HIS ANSWER.
How can I make a claim against you which is not yet existing? Even
if all the other requisites are present, the counterclaim would still
not be compulsory because how can one invoke something now
which he can acquire in the future?
So, those are the five essential elements. You remove one, the
counterclaim becomes permissive.
Q: Again. What is the importance of distinguishing whether the
counterclaim is compulsory or permissive?
A: If the counterclaim is compulsory, the defendant is obliged
under the law to raise it as a counterclaim in the action where he is
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being sued. If he fails to invoke it, it is barred forever (Rule 9
Section 2).
If the counterclaim is permissive, the defendant has a choice of
raising it as a counterclaim in the case filed against him or he may
decide to file another action against the plaintiff, raising it as his
cause of action. It is permitted but not obliged.
Compulsory and Permissive Counterclaim compared:
1. A compulsory counterclaim arises out of or is necessarily
connected with the transaction or occurrence that is the subject
matter of the other party's claim, while a permissive counterclaim
is not;
2. A compulsory counterclaim does not require for its adjudication
the presence of third parties of whom the court cannot acquire
jurisdiction while a permissive counterclaim may require such;
3. A compulsory counterclaim is barred it not set up in the action,
while a permissive counterclaim is not;
4.A compulsory counterclaim need not be answered, no default,
while a permissive counterclaim must be answered otherwise the
defendant can be declared in default.
A plaintiff who fails or chooses not to answer a compulsory
counterclaim may not be declared in default, principally because
the issues raised in the counterclaim are deemed automatically
joined by the allegations of the complaint (Gojo v. Goyala, GR No.
26768, Oct. 30, 1970)
General rule:
A compulsory counterclaim not set up in the answer is deemed
barred.
Exceptions:
1. if it is a counterclaim which either matured or was acquired by a
party after serving his answer. In this case it may be pleaded by
filing a supplemental answer or pleading before judgment (Sec. 9 R
11);
2. When a pleader fails to set-up a counterclaim through oversight,
inadvertence, excusable negligence, or when justice requires, he
may, by leave of court, set up the counterclaim by amendment of
the pleading before judgment (Sec. 10, R 11).
The filing of a motion to dismiss and the setting up of a compulsory
counterclaim are incompatible remedies. In the event that a
defending party has a ground for dismissal and a compulsory
counterclaim, he must choose only one remedy. If he decides to file
a motion to dismiss, he cannot set up his counterclaim. But if he
opts to set up his counterclaim, he may still plead his ground for
dismissal as an affirmative defense in his answer.
COUNTERCLAIMS IN CRIMINAL CASES
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JAVIER vs. IAC
171 SCRA 605
FACTS: The Javier spouses filed a criminal case against Leon
Gutierrez Jr, under BP 22 or the Bouncing Check Law, for issuing a
bad check. The criminal case was filed before the RTC of Makati.
The complainants did not reserve the civil action. The implication is
that the claim for civil liability is deemed instituted with the
criminal case.
Gutierrez in turn filed a civil action for damages against the Javier
spouses in the RTC of Catarman, Northern Samar, where he
accused the spouses of having tricked him into signing the check.
What happened now is that he was being criminally sued in Makati
but defending himself in Catarman, Northern Samar. He is
explaining in the Samar court what he should be doing in the
Makati court.
HELD: The civil case in Samar should be dismissed. It must be in the
Makati court that Gutierrez, as accused in the criminal charge of
violation of BP 22, should explain why he issued the bouncing
check. He should explain that story in Makati and not in Samar.
This should have been done in the form of a counterclaim for
damages for the alleged deception by the Javier spouses. In fact,
the counterclaim was compulsory and should have been filed by
Gutierrez upon the implied institution of the civil action for
damages in the criminal case.
What the SC is saying is, since the civil action for damages is
impliedly instituted in the criminal case, and he wants to hold you
liable for filing this case, he should file a counterclaim against you
in the criminal case. What is unique was that for the first time in
the Philippine Procedural Law, SC laid down the rule that there is
such thing as a counterclaim in a criminal case, because, normally,
counterclaims are only recognized in civil cases. But since the civil
action is deemed instituted in the criminal case, the accused can
file a counterclaim against the offended party in the criminal
action.
The trouble in this ruling is that, it has been subjected to a lot of
criticisms by academicians – professors of Remedial Law, authors –
they criticized the ruling. It provokes more problems than answers.
A justice of the SC remarked, “I think we made a mistake (privately
ba) in the Javier ruling. Kaya it was never repeated.
The SC, in 1997, had another chance to comment on Javier in the
case of—
CABAERO vs. CANTOS
271 SCRA 392, en banc
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NOTE: Here, the Javier ruling was set aside.
HELD: “The logic and cogency of Javier notwithstanding, some
reservations and concerns were voiced out by members of the
Court during the deliberations on the present case. These were
engendered by the obvious lacuna in the Rules of Court, which
contains no express provision for the adjudication of a
counterclaim in a civil action impliedly instituted in a criminal case.”
“By the foregoing discussion, we do not imply any fault in Javier.
The real problem lies in the absence of clear-cut rules governing
the prosecution of impliedly instituted civil actions and the
necessary consequences and implications thereof. For this reason,
the counter-claim of the accused cannot be tried together with the
criminal case because, as already discussed, it will unnecessarily
complicate and confuse the criminal proceedings. Thus, the trial
court should confine itself to the criminal aspect and the possible
civil liability of the accused arising out of the crime. The counter-
claim (and cross-claim or third party complaint, if any) should be
set aside or refused cognizance without prejudice to their filing in
separate proceedings at the proper time.”
“At balance, until there are definitive rules of procedure to govern
the institution, prosecution and resolution of the civil aspect and
the consequences and implications thereof impliedly instituted in a
criminal case, trial courts should limit their jurisdiction to the civil
liability of the accused arising from the criminal case.”
This means SC admitted that the Javier doctrine put more problems
and confusions in the absence of specific rules. The counterclaim
should not be tried together in a criminal case. The trial court
should confine itself in the criminal action and that the
counterclaim should be set aside without prejudice to its right in
setting up actions in the civil action.
NOTE: The ruling in the case of CABAERO is now incorporated in
the last paragraph of Section 1, paragraph [a], Rule 111 of the 2000
Revised Criminal Procedure:
“No counterclaim, cross-claim or third-party complaint may be
filed by the accused in the criminal case, but any cause of action
which could have been the subject thereof may be litigated in a
separate civil action.”
D.) CROSS-CLAIMS
Sec. 8. Cross-claim. A cross-claim is any claim by one party against
a co-party arising out of the transaction or occurrence that is the
subject matter either of the original action or of a counterclaim
therein. Such cross-claim may include a claim that the party
against whom it is asserted is or may be liable to the cross-
claimant for all or part of a claim asserted in the action against
the cross-claimant.(7)
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A cross claim is a claim by one party against a co-party. It may be a
claim by defendant against his co-defendant arising out of the
subject matter of the main action.
Examples:
In an action for damages against the judgment creditor and the
Sheriff for having sold real property of the plaintiff, the Sheriff may
file a cross-claim against the judgment creditor for whatever
amount he may be adjudged to pay the plaintiff.
In an action against a co-signer of a promissory note one of whom
is merely an accommodation party, the latter may file a cross-claim
against the party accommodated for whatever amount he may be
adjudged to pay the plaintiff.
J and P are solidary debtors for the sum of P100,000.00 because
they signed a promissory note in favor of D to collect the sum of
P100,000.00. However, although J signed the promissory note, he
did not get a single centavo. Everything went to P. Both of them are
now sued. According to J, “Actually there is a possibility that I will
pay the P100,000 to Dean when actually I did not even get a single
centavo out of it. Everything went to P!” Therefore, J will now file a
case against P where he will allege that if J will be held liable to D, P
will reimburse him (J). So, J will also file a claim in the same action
against P.
Now, the claim filed by J against his co-defendant P is called a
CROSS-CLAIM where J is called defendant in the case filed by D and
a cross-claimant against P. P is also the defendant in the case filed
by D and a cross-defendant with respect to the cross-claim filed by
J. So that is another case which a defendant is filing against another
defendant.
Limitations on Cross-Claim
1. Must arise out of the subject matter of the complaint or
counterclaim;
2. Can be filed only against a co-party; and
3. Is proper only when the cross claimant stands to be
prejudiced by the filing of the action against him.
Purpose
To settle in a single proceeding all the claims of the different
parties in the case against each other in order to avoid multiplicity
of suits (Republic vs. Paredes, GR No. L-12548, May 20, 1960).
Take note that the cross-claim of J against P is merely an off-shoot
of the case filed by D against J and P. Meaning, it arises out of the
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same transaction or occurrence that is the subject matter of the
case filed by D against them.
PROBLEM: Suppose D files a case against J and P to collect a
promissory note signed by J and P and J alleges in his cross claim,
“Well, since we are already here, I also have a claim against P for
damages arising from a vehicular collision.”
Q: Is the cross-claim allowed in the problem?
A: NO. The cross-claim is improper. It has no connection with the
complaint of D against J and P. A counter-claim must always arise
out of a transaction or occurrence that is the subject matter of the
main action.
BAR QUESTION: Distinguish a COUNTERCLAIM from a CROSS-
CLAIM.
A: The following are the distinctions:
1.) A COUNTERCLAIM is a complaint by the defendant
against the plaintiff, whereas,
A CROSS-CLAIM is a claim by a defendant against a co-defendant;
2.) The life of the CROSS-CLAIM depends on the life of the
main action. A cross-claim is merely a consequence of
the case filed by the plaintiff against the defendants. No
main action, no cross-claim (RUIZ, JR. vs. CA, infra).
Whereas,
In a COUNTERCLAIM, you can kill the main action, still the
counterclaim survives.
3.) A COUNTERCLAIM may be asserted whether or not it
arises out of the same transaction or occurrence that is
the subject matter of the action, whereas,
A CROSS-CLAIM must always arise out of the same transaction or
occurrence that is the subject matter of the action.
Example: P case filed against J to collect a loan. J files a
COUNTERCLAIM against P to recover a piece of land. That is
allowed and that is a permissive counterclaim. But suppose D files a
case to collect a loan against J and P. J files a CROSS-CLAIM against
P to recover a piece of land.
Q: Will it be allowed?
A: Not allowed! It has no connection with the subject matter of the
main action.
Take note that a cross-claim is any claim by one party against a co-
party arising out of the transaction of occurrence that is the subject
matter of the original action or of a counterclaim therein. So, a
cross-claim may arise either out of the original action or counter-
claim therein.
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EXAMPLE: J and P file a case against D. D files his answer with a
counterclaim against the plaintiffs J and P. So J and P will now
become defendants with respect to the counterclaim filed by D. So
J now can file a cross-claim against P arising out of the
counterclaim.
HYPOTHETICAL EXAMPLE:
1.) Mortz and Charles, plaintiffs, filed a case against Jet and
Pao, defendants. There are two plaintiffs suing two
different defendants on a promissory note. Both Jet and
Pao signed the promissory note in favor of Mortz and
Charles:
COMPLAINT (Collection case – Main Action):
MORTZ and CHARLES, plaintiffs
-versus-
JET and PAO, defendants
2.) Now, according to Jet, every centavo of the loan went to
Pao. So Jet files a cross-claim against Pao:
CROSS-CLAIM ON THE MAIN ACTION
Defendant JET, now cross-claimant
-versus-
Defendant PAO, now cross-defendant
3.) Jet also says, “Actually I have a case against Mortz and
Charles because they entered my land and gathered
some of its product”. So, he filed a counterclaim against
both Mortz and Charles. In the counter-claim of Jet, the
defendants are Mortz and Charles for the accounting of
the improvements on the land:
COUNTERCLAIM OF JET
Defendant JET, now plaintiff
-versus-
Plaintiffs MORTZ and CHARLES, now co-defendants
4.) Mortz now will answer the counterclaim of Jet, “Actually,
the damages on land was not caused by me but Charles.
So Mortz files a cross-claim against co-plaintiff Charles
arising out to the counterclaim of Jet:
CROSS-CLAIM ARISING FROM THE COUNTERCLAIM OF JET
Plaintiff MORTZ, now cross-claimant
-versus-
Plaintiff CHARLES, now cross-defendant
5.) Now, according to Pao, “Actually last month, a car
owned by both of you (Mortz and Charles) bumped my
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car and that my car was damaged.” So, P filed a
counterclaim against Mortz and Charles for the damage
of the car.
COUNTERCLAIM OF PAO
Defendant PAO, now plaintiff
-versus-
Plaintiffs MORTZ and CHARLES, now defendants
6.) But Charles says, “I’m not the owner of the car but
Mortz. So he files a cross-claim against Mortz:
CROSS-CLAIM ARISING FROM THE COUNTERCLAIM OF PAO
Plaintiff CHARLES, now cross-claimant
-versus-
Plaintiff MORTZ, now cross-defendant
There are six (6) cases which are to be decided in the same action.
This rarely happens, but it is possible under the rules. The obvious
PURPOSE of these is to avoid multiplicity of suits and toward these
ends. According to the SC, the rules allow in a certain case and
even compel a petitioner to combine in one litigation these
conflicting claims most particularly when they arise out of the same
transaction. The rule does not only allow a permissive counterclaim
but the parties are even compelled to raise them in a compulsory
counter-claim.
RUIZ, JR. vs. COURT OF APPEALS
212 SCRA 660
FACTS: Dean files a case against Jet and Pao. Jet files a cross-claim
against Pao. After a while, the case against Jet and Pao was
dismissed.
ISSUE: What happens to the cross-claim of Jet against Pao?
HELD: When the main action was dismissed, the cross-action must
also be dismissed. The life of a cross-claim depends on the life of
the main action. If the main action is dismissed, the cross-claim will
have to be automatically dismissed.
“A cross-claim could not be the subject of independent
adjudication once it lost the nexus upon which its life depended.
The cross-claimants cannot claim more rights than the plaintiffs
themselves, on whose cause of action the cross-claim depended.
The dismissal of the complaint divested the cross-claimants of
whatever appealable interest they might have had before and also
made the cross-claim itself no longer viable”
Whereas, the counterclaim can exist alone without the complaint.
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EXAMPLE: Pao filed a case against Jet for the recovery of a piece of
land. Jet’s counterclaim is damages arising from a vehicular
accident. If the complaint is dismissed the counterclaim of Jet can
still remain alive even if the main action is dead.
But in a cross-claim, once the main action is dead, the cross-claim is
also automatically dead too. What is there to reimburse when the
complaint has been dismissed?
There is an opinion to the effect that the dismissal of the complaint
carries with it the dismissal of a cross-claim which is purely
defensive but not a cross claim seeking an affirmative relief.
If a cross-claim is not set up it is barred: except
1. when it is outside the jurisdiction of the court;
2. if the court cannot acquire jurisdiction over third parties whose
presence is necessary for the adjudication of said cross-claim. In
which case, the cross-claim is considered permissive;
3. cross-claim that may mature or may be acquired after service of
the answer (Riano 2007, p. 285)
COUNTER COUNTERCLAIM and COUNTER CROSS-CLAIM
Sec. 9. Counter-counterclaims and counter-cross-claims. A
counterclaim may be asserted against an original counter-
claimant.
A cross-claim may also be filed against an original cross-
claimant.(n)
Section 9 is a new provision. There is such a thing as counter-
counterclaim and counter-cross-claim. The concept of counter-
counter-claim is not new. As a matter of fact, that was asked in the
bar years ago.
EXAMPLE: C filed against you an action to collect a loan. You filed a
counterclaim against her to recover a piece of land. Of course, she
has to answer your counterclaim. But she will say, “Actually you
have been molesting me with your claim when actually you have
no right over my land.” So, she files an injunction to stop you from
molesting her. In other words, based on your counter-claim against
her to recover my land, she will file a counterclaim to stop you
from molesting her. In effect, there is counterclaim to a
counterclaim.
COUNTER-CROSS-CLAIM.
E.) REPLY
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Sec. 10. Reply. A reply is a pleading, the office or function of which
is to deny, or allege facts in denial or avoidance of new matters
alleged by way of defense in the answer and thereby join or make
issue as to such new matters. If a party does not file such reply, all
the new matters alleged in the answer are deemed controverted.
If the plaintiff wishes to interpose any claims arising out of the
new matters so alleged, such claims shall be set forth in an
amended or supplemental complaint.(11)
ILLUSTRATION: Plaintiff files a complaint against a defendant to
collect an unpaid loan. D files his answer and raises a new matter,
affirmative defense. According to the defendant, the obligation is
already paid. Plaintiff said that you have paid the other loan. In
other words, the plaintiff would like to deny or dispute the
defendant’s affirmative defense of payment.
Q: Can I file a pleading to dispute your defense?
A: Yes, that pleading is called a REPLY.
Q: How do you classify a reply?
A: It is a responsive pleading because it is the response of
the plaintiff to the affirmative defense raised in the defendant’s
answer.
An answer is a response to the complaint and the reply is a
response to the answer.
Q: Assuming that you would like to answer my reply, what
pleading would you file?
A: None. That is the last pleading. So, reply is considered as
the last pleading.
Effect of failure to file a reply
Q: Suppose I filed a complaint, you filed an answer invoking
payment. I failed to reply. What is the effect if the plaintiff fails to
reply? Is he admitting the correctness of the defense?
A: No. As a general rule, the failure to file a reply has no
effect. Section 10 says that if a party does not file such reply, all the
new matters alleged in the answer are deemed controverted.
Meaning, all the affirmative defenses raised in the answers are
automatically denied.
So, whether you file a reply or not, the defenses are deemed
automatically disputed. The filing of a reply is OPTIONAL.
Exceptions:
1. Where the answer is based on an actionable document (Sec. 8 R
8); and
2. To set up affirmative defenses in the counterclaim ((Rosario vs.
Martinez, GR No. L-4473, Sept. 30, 1952)
Note:
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Only allegations of usury in a Complaint to recover usurious
interest are deemed admitted if not denied under oath. Hence, if
the allegation of usury is contained in an answer it is not necessary
for the plaintiff to file a reply thereto in order to deny that
allegation under oath. (Regalado, p. 146)
A reply should not be confused with the answer to a counterclaim
which is also filed by the plaintiff.
Q: Give the distinctions between ANSWER TO COUNTER-CLAIM and
REPLY.
A: The following:
1.) A REPLY is a response to the defenses interposed by the
defendant in his answer, whereas
An ANSWER TO A COUNTERCLAIM is a response to a cause of
action by the defendant against the plaintiff;
2.) The filing of a REPLY is generally optional, whereas
The filing of an ANSWER TO A COUNTERCLAIM is generally
mandatory under Rule 11 because if the plaintiff fails to file an
answer to the counterclaim, he will be declared in default on the
counterclaim.
OUTLINE OF FLOW OF PLEADINGS
PLAINTIFF DEFENDANT
It is a procedural device whereby a “third party” who is neither a
party nor privy to the act or deed complained of by the plaintiff,
may be brought into the case with leave of court, by the defendant,
who acts as third-party plaintiff to enforce against such third-party
defendant a right for contribution, indemnity, subrogation or any
other relief, in respect of the plaintiff’s claim. The third-party
complaint is actually independent of and separate and distinct from
the plaintiff’s complaint. Were it not for this provision of the Rules,
it would have to be filed independently and separately from the
original complaint by the defendant against the third party.
The purpose of a third-party complaint is to enable a defending
party to obtain contribution, indemnity, subrogation or other relief
from a person not a party to the action.
EXAMPLE : A plaintiff files a case against a defendant to collect a
loan when there are two solidary debtors and one of them is
compelled to pay everything so that defendant will drag into the
picture the co-debtor for contribution or indemnity. If the two of
them were sued as defendants, all one has to do is to file a cross-
claim against his co-defendant. BUT since only one is sued, the
remedy is to avail of Section 11.
Take note that filing a third-party complaint is not a matter of right.
THERE MUST BE LEAVE OF COURT, unlike counterclaim or
cross-claim, where you do not need any motion or leave of court.

1. Complaint

2. a.) Answer There is a close relationship between a cross-claim and a third-

b.) Counterclaim party complaint because a cross-claim must arise out of the subject
3. a.) Reply to answer matter of the main action. A third-party complaint must be also
b.) Answer to related to the main action. It cannot be a cause of action which has
counterclaim no relation to the main action.
4. Reply to answer to counterclaim
EXAMPLE: The plaintiff files a case against the surety and the
principal debtor, so both of them are defendants, and the surety
seeks reimbursement for whatever amount he may be compelled
to pay the plaintiff. What kind of pleading would he file against his
F. THIRD (FOURTH, ETC.) – PARTY COMPLAINT
co-defendant (the principal debtor)? CROSS-CLAIM.
Sec. 11. Third, (fourth, etc.) - party complaint. A third (fourth, etc.)
BUT if the plaintiff files a case ONLY against the surety, because
party complaint is a claim that a defending party may, with leave
anyway the principal debtor is not an indispensable party and the
of court, file against a person not a party to the action, called the
surety would like to seek reimbursement from the person who
third (fourth, etc.) party defendant, for contribution, indemnity,
benefited from the loan, he cannot file a cross-claim against
subrogation or any other relief, in respect of his opponent's claim.
anybody because he is the lone defendant. It is possible for him to
(12a)
just file an answer. If he loses and pays the plaintiff, then he will file
another case against the principal debtor for reimbursement.
THIRD PARTY COMPLAINT is the procedure for bringing into a case
a third person who is not a party to the case.

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But if he wants everything to be resolved in the same case, what
kind of pleading will he file? He must resort a THIRD-PARTY
COMPLAINT and implead the principal debtor.
The PURPOSE of a third-party complaint is for the third party
plaintiff to ask the third party defendant for:
1.) Contribution;
2.) Indemnity;
3.) Subrogation; or
4.) any other relief in respect to the opponent’s claim.
CONTRIBUTION:
Example #1: Two debtors borrowed P100,000 from Janis (creditor)
and they shared the money 50-50. When the debt fell due, the
creditor filed a case against one of them. So, one of them is being
made to pay the P100,000. Not only his share but also his co-
solidary debtor. So if I am the one liable when actually my real
liability is only 50,000. What will I do? I will file a third party
complaint against my co-debtor for contribution.
Example #2: If Andrew and Carlo are guilty of a quasi-delict and the
injured party files an action for damages against Andrew only,
Andrew may file a third-party complaint against Carlo for
contribution, their liability being solidary (Article 2194, New Civil
Code)
INDEMNIFICATION:
Example #1: Two people signed a promissory note in favor of the
creditor. But actually the entire amount went to you and none for
me. When the note fell due, I was the one sued. So I will file a
third-party complaint against you for indemnity. You have to
return to me every centavo that I will pay the creditor.
Example #2: A surety sued for recovery of debt by the creditor may
file a third-party complaint against the principal debtor for
indemnity. (Article 2047, New Civil Code)
SUBROGATION:
Subrogation - You step into the shoes of someone else. Your
obligation is transferred to me.
EXAMPLE: Where a house is leased by a lessee and he subleased
the property to a third person who is now occupying the property.
In effect, the sub-lessee stepped into the shoes of the original
lessee. If the property is damaged and the lessor sues the lessee for
damages to his leased property, the lessee or sub-lessor can file a
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third-party complaint and have the sub-lessee for subrogation
because actually, you stepped into the shoes when you occupied
the leased property. (Articles 1651 and 1654, New Civil Code)
For ANY OTHER RELIEF IN RESPECT TO THE OPPONENTS CLAIM
EXAMPLE: When I buy the property of Mr. Cruz and after a while,
here comes Mr. Dee filing a case against me to claim ownership of
the land. But I bought it from Mr. Cruz who warranted that he is
the real owner. So I will now file third-party complaint against Mr.
Cruz to enforce his warranty – warranty against eviction. (Article
1548, New Civil Code)
Take note that there is always a connection between the main
complaint and the third-party complaint because the condition is
“contribution, indemnification, subrogation and any other relief in
respect to your opponents claim.” There is always a relation
between the third party-complaint and the main complaint against
you. Here is a bar question...
BAR QUESTION: Janis files a case against Nudj to recover an unpaid
loan. Now the reason is that Carlo also owes Nudj. Nudj says, “I
cannot pay you because there is a person who has also utang to
me. What I will pay you depends on his payment to me.” File agad
si Nudj ng third-party complaint against Carlo. Is the third-party
complaint proper?
A: NO. There is no connection between the main action and the
3rd-party complaint – the loan of Nudj to Janis and the loan of
Andrew to Nudj. Walang connection. Anong pakialam ni Janis sa
utang ni Andrew kay Nudj? Not in respect to his opponent’s claim.
BAR QUESTION: How do you determine whether a 3rd-party
complaint is proper or improper? What are the tests to determine
its propriety?
A: Case of
CAPAYAS vs. COURT OF FIRST INSTANCE
77 PHIL. 181
HELD: There are four (4) possible tests to determine the propriety
of a third-party complaint. In order for it to be allowed, it must
pass one of them. That is the reason when you file it, you need the
permission of the court to determine whether it is proper or not
and the original plaintiff may object to the propriety of the third-
party complaint.
There are the FOUR TESTS (any one will do):
1. A third-party complaint is proper if it arises out of
the same transaction on which plaintiff is based, or
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although arising out of another or different
transaction, is connected with the plaintiff's claim.
EXAMPLE: A creditor sued only one solidary debtor. So you can file
a third-party complaint for contribution. Anyway, there is only one
loan and our liability arises out of the same promissory note.
(A third-party complaint is proper if the third-party’s complaint,
although arising out of another transaction, is connected with the
plaintiff’s claim.)
EXAMPLE: The car owner is sued for culpa aquiliana for damages
arising from vehicular collision and he files a third-party complaint
against the insurance company for indemnity based on the contract
of insurance. So it is connected with plaintiff’s claim, and that is
precisely the purpose of my insurance coverage.
2. Whether the third party defendant would be liable
to the original plaintiff or to the defendant for all
or part of the plaintiff's claim against the original
defendant. Although the third party defendant's
liability arises out of another transaction.
EXAMPLE: Sublease. Roy leased his property to Eric. Eric subleased
it to Rudolph. If Roy’s property is damaged, Roy will sue Eric. But
Eric will also sue Rudolph. The sub-lessor has the right to file a
third-party complaint against the sub-lessee for the damaged
leased property which is now occupied by the sub-lessee. The
third-party defendant Rudolph would be liable to plaintiff’s (Roy’s)
claim. Rudolph will be liable to Roy for Roy’s claim against Eric
although the liability of Rudolph arises out of another transaction
(Sub-lease contract)
3. Whether the third party defendant may assert any
defense which the third party plaintiff has or may
have against plaintiff’s claim.
EXAMPLE: Tato is a registered owner of a car and then sold it to
Philip. Philip is the actual owner. However, Philip did not register
the sale to the LTO. The registered owner is si Tato lang gihapon
although he is no longer the real owner. While Philip was driving
that car it bumped the car of Lewee Tanduay. Lewee researched
the owner of the car at LTO and ang lumabas ay si Tato. So ang
ginawa ni Lewee, ang kinasuhan nya ay si Tato na walang
malay...under the law, the registered owner is liable. Of course,
when Tato got the complaint, “Wala akong alam sa sinasabi nyo,
that car is no longer mine. I sold that two years ago, I have no idea
what happened.”
So obviously, Tato arrived at the conclusion that si Philip and
nakabangga. Tato filed a third-party complaint against Philip
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because he is the real owner. When Philip got the third-party
complaint, and because he knows the story, in fact he was the one
driving, ang ginawa niya, nilabanan niya ng diretso si Lewee.
Meaning, instead of Tato fighting Lewee, Philip fought Lewee
directly. Frontal na ba. Sabi ni Philip, “I was not at fault, you
(Lewee) are at fault.” So here is a situation where Lewee sues Tato,
Tato sues Philip but Philip fights Lewee, as if he is the real
defendant, then the third party complaint must be proper. It must
be related.
Take note that there is a close similarity between a third-party
complaint and a cross-claim because as we have learned, a cross-
claim must also be related to the same action.
SAMALA vs. VICTOR
170 SCRA 453
FACTS: This case involves a vehicular accident. Philip, while riding
on a passenger jeep owned by Tato, the jeep was bumped by the
truck of Lewee, injuring Philip. Philip filed a case for damages
arising from breach of contract against Tato. Tato filed a third-party
complaint against Lewee. After trial, the court found that Tato has
not at fault. The fault is entirely against Lewee . So the action
against Tato was dismissed, but the court held that Lewee be
directly liable to Philip.
It was questioned by Lewee. Lewee claims that is should be Tato
who is liable to Philip because Philip did not sue me (Lewee), “Bakit
ako ang ma-liable hindi naman ako ang dinemanda ni Philip? So
procedurally, I am liable to Tato, Tato is liable to Philip.”
ISSUE #1: Can Lewee, a third-party defendant, be held liable
directly to Philip, the original plaintiff?
HELD: YES, that is possible. In a third-party complaint, normally
Lewee is liable to Tato. But Lewee can be made liable to Philip, or
Lewee can be made liable to both Philip and Tato because that is
covered by the phrase “OR ANY OTHER RELIEF” – so broad that it
cover a direct liability of a third party defendant to the original
plaintiff.
ISSUE #2: How can the court award damages to Philip based on the
theory of culpa aquiliana when his complaint is based on culpa
contractual? Can Lewee be held liable for culpa-contractual?
HELD: YES. That is also possible because “the primary purpose of
this rule is to avoid circuitry of action and to dispose of in one
litigation, the entire subject matter arising from a particular set of
fact it is immaterial that the third-party plaintiff asserts a cause of
action against the third party defendant on a theory different from
that asserted by the plaintiff against the defendant. It has likewise
been held that a defendant in a contract action may join as third-
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party defendants those liable to him in tort for the plaintiff’s claim
against him or directly to the plaintiff.”
Another interesting case which is to be compared with the
abovementioned case is the 1989 case of
SHEAFER vs. JUDGE OF RTC OF OLONGAPO CITY
167 SCRA 386
NOTE: This case although it refers to third-party complaint is
related to criminal procedure. This is similar to the case of JAVIER
where the issue is, is there such a thing as a counterclaim in a
criminal case where the offended party did not make a reservation.
In SHAFER, is there such a thing as a third-party complaint in a
criminal case?
FACTS: Shafer while driving his car covered by TPL, bumped
another car driven by T. T filed a criminal case against S for physical
injuries arising from reckless imprudence. T did not make any
reservation to file a separate civil action. So obviously, the claim for
civil liability is deemed instituted.
Shafer was covered by the insurance, so he filed a third-party
complaint against the insurance company insofar as the civil
liability is concerned. The insurance company questioned the
propriety of d third-party complaint in a criminal case, because
according to the insurance company, the third-party complaint is
entirely different from the criminal liability.
ISSUE: Whether or not the filing of a third-party complaint in a
criminal case is procedurally correct.
HELD: Yes, it is proper. There could be a third party complaint in a
criminal case because an offense causes two classes of injuries –
the SOCIAL and the PERSONAL injury. In this case, the civil aspect
of the criminal case is deemed impliedly instituted in the criminal
case. Shafer may raise all defenses available to him in so far as the
criminal and civil aspects are concerned. Shafer’s claim of
indemnity against the insurance company are also the claim by the
victim in the criminal claim. Therefore Shafer’s claim against the
insurance company is related to the criminal case. So similar to
Javier that an accused may also file a compulsory counterclaim in a
criminal case when there is no reservation.
BUT in the light of the ruling in the case of
CABAERO vs. CANTOS, supra
The SHAFER ruling has to be set aside for the meantime because
there is no such thing as third-party complaint in criminal cases
now. In other words, forget it in the meantime. Also, forget
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counterclaims in criminal cases even if they arose out of the main
action.
This case refers to JAVIER on whether or not there is such a thing as
a compulsory counterclaim in criminal cases. SC said, “Huwag muna
samok!” If we will allow it in criminal cases it will only complicate
and confuse the case. The attention might be divested to
counterclaims or cross-claims or third-party complaints, etc.
HELD: “The trial court should confine itself to the criminal aspect
and the possible civil liability of the accused arising out of the
crime. The counter-claim (and cross-claim or third party complaint,
if any) should be set aside or refused cognizance without prejudice
to their filing in separate proceedings at the proper time.”
We will go to the old case of
REPUBLIC vs. CENTRAL SURETY CO.
25 SCRA 641 [1968]
FACTS : Hannah filed a case against Rina for a liability amounting to
P350,000. So it was filed in RTC. Rina filed a third-party complaint
against ConCon Insurance Company for indemnity insurance but
the maximum insurance is only P50,000. The insurance company
moved to dismiss on the ground that the court has no jurisdiction
because third-party complaint is only for P50,000 which is
supposed to be within the competence of the MTC.
ISSUE: Is the insurance company correct?
HELD: NO. The insurance company is wrong. The third-party
complaint is only incidental. The third-party complaint need not be
within the jurisdiction of the RTC where the principal action is
pending because the third-party complaint is really a continuation
and an ancillary to the principal action. If the court acquires
jurisdiction over the main action, automatically, it acquires
jurisdiction over the third-party complain which is mainly a
continuation of the principal action.
Now, the same situation happened in another case. The case of
EASTERN ASSURANCE vs. CUI
105 SCRA 642
FACTS : Carol is a resident of Davao City. Cathy is a resident of
Cebu City. Carol filed a case before the RTC of Davao City against
Cathy. Cathy files a third-party complaint against Joy, a resident of
Manila. Is the venue proper?
HELD: The venue is proper because the venue of the main action is
proper. So automatically third-party complaint is also proper. The
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third-party has to yield to the jurisdiction and venue of the main
action.
Now of course, if there’s such a thing as 3rd party complaint, there
is also a 4th, 5th, 6th or 7th complaint. That is possible but
everything is with respect to his opponent’s claim.
EXAMPLE:
A B C D E
A files a B files a 3rd C files a 4th D files a 5th
complaint party party party
against B complaint complaint complaint
against C against D against E
A’s car was bumped by B. But B contented that the reason that he
bumped A’s car was because he was bumped by C and the same
goes to C, D, E. B then files a 3rd party complaint against C. C files a
4th party complaint against D. D files a 5th party complaint against
E. Meaning, pasahan, ba. They will throw the liability to the one
who did it. That is a good hypothetical example of how a fourth,
fifth, sixth party complaint can come into play.
Rule on Venue and Jurisdiction Inapplicable
Jurisdiction over the third-party complaint is but a continuation of
the main action and is a procedural device to avoid multiplicity of
suits. Because of its nature, the proscription on jurisdiction and
venue applicable to ordinary suits may not apply. (Eastern
Assurance vs. Cui, 105 SCRA 622 [1981])
Grounds for Denial of Third-Party Complaint
a. When allowance would delay resolution of the original
case or when the third-party defendant could not be
located; and
b. When extraneous matters to issue of possession would
unnecessarily clutter a case of forcible entry.(del Rosario
v. Jimenez 8 SCRA 549)
Summons on third, fourth, etc. party defendant must be served for
the court to acquire jurisdiction over his person, since he is not an
original party.
A third-party complaint is not proper in an ction for declaratory
relief (Comm. of Customs vs. Cloribel, GR No. L - 21036, June 30,
1977)
Where the trial court has jurisdiction over the main case, it also has
jurisdiction over the third-party complaint, regardless of the
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amount involved as a third-party complaint is merely auxiliary to an
is a continuation of the main action (Rep. vs. Central Surety and
Insurance Co. GR No. L 27802, Oct. 26, 1968)
Sec. 12. Bringing new parties. - When the presence of parties
other than those to the original action is required for the granting
of complete relief in the determination of a counterclaim or cross-
claim, the court shall order them to be brought in as defendants,
if jurisdiction over them can be obtained.
Distinguished from a Third-Party Complaint
A third party complaint is proper when not one of the third-party
defendants therein is a party to the main action. If one or more of
the defendants in a counterclaim or cross-claim is already a party
to the action, then the other necessary parties may be brought in
under this section.
The best example of Section 12 is the case of:
SAPUGAY vs. COURT OF APPEALS
183 SCRA 464
FACTS: Mobil Philippines filed a case against Sapugay, its gasoline
dealer. Sapugay filed an answer and interposed a counterclaim for
damages against Mobil and included Cardenas (the manager of
Mobil) who is not a plaintiff.
ISSUE: Whether or not the inclusion of Cardenas in the
counterclaim is proper where he is not a plaintiff in the Mobil case.
HELD: The inclusion of Cardenas is proper. The general rule that the
defendant cannot by a counterclaim bring into the action any claim
against persons other than the plaintiff, admits of an exception
under this provision (Section 12) – meaning, if it is necessary to
include a 3rd person in a counterclaim or cross-claim, the court can
order him to be brought in as defendants. In effect, the bringing of
Cardenas in the case is sanctioned by the Rules.
The case of SAPUGAY should not be confused with the case of:
CHAVEZ vs. SANDIGANBAYAN
198 SCRA 282
FACTS: Petitioner Francisco Chavez (former solicitor general)
represented the government for PCGG. The case arose out of PCGG
cases wherein Enrile was sued for accumulation of his ill-gotten
wealth. Enrile filed an answer to the complaint. Enrile contends
that the case is harassment suit whose mastermind was the
Solicitor General himself. Enrile files a counterclaim against Chavez.
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(Enrile’s lawyer maybe well aware of the Sapugay case the one
sued is the lawyer.) Chavez questioned such counterclaim
contending that he was not a plaintiff. Sandiganbayan denied such
contention.
HELD: The inclusion of plaintiff’s lawyer is improper.
“To allow a counterclaim against a lawyer who files a complaint for
his clients, who is merely their representative in court and not a
plaintiff or complainant in the case would lead to mischievous
consequences. A lawyer owes his client entire devotion to his
genuine interest, warm zeal in the maintenance and defense of his
rights and the exertion of his utmost learning and ability. A lawyer
cannot properly attend to his duties towards his client if, in the
same case, he is kept busy defending himself.”
Q: Is the SC suggesting that a lawyer who sued in a harassment
case can get away with it? Does that mean to say that the lawyer is
immune from suit?
A: NO, the SC does not say a lawyer enjoys a special immunity from
damage suits. However, when he acts in the name of the client, he
should not be sued in a counterclaim in the very same case where
he has filed only as a counsel and not as party. Only claims for
alleged damages or other causes of action should be filed in a
separate case. Thus, if you feel that the lawyer is acting maliciously,
you file a complaint but in a separate case. That’s why the case of
Sapugay should not be confused with Chavez.
Sec. 13. Answer to third (fourth, etc.) party complaint. - A third
(fourth, etc.)-party defendant may allege in his answer his
defenses, counterclaims or cross-claims, including such defenses
that the third (fourth, etc.)-party plaintiff may have against the
original plaintiff in respect of the latter's claim against the third-
party plaintiff. (n)
ILLUSTRATIONS:
A files a case against B
B files a 3rd party complaint against C
A vs. B; B vs. C. Normally, B will defend himself against the
complaint of A and C will defend himself in the complaint of B. That
is supposed to be the pattern. Normally, C does not file a direct
claim against A. But the law allows C in defending himself, to
answer the claim of A. The law allows him to file a direct
counterclaim against A.
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If C has the right to frontally meet the action filed by A – meaning,
C will fight A directly – if C has the right to assert any defense which
B has against A and even for C to litigate against A, then it must be
a proper third party complaint. That has happened several times.
EXAMPLE: B owns a car which was already sold to C. The trouble is
that B never registered the transaction. On the record, B is still the
registered owner. Then C, while driving the car, meets an accident
and injures A. When A looked at the record, the owner is B. So A
files a case against B. So B will file a third party complaint against
the real owner (C). Now, C can frontally meet the complaint filed by
A. That is the best example where you have the right against the
original plaintiff or even assert a counterclaim against him. As a
matter of fact, that last test is now incorporated as a new provision
(Section 13).
In the case of:
SINGAPORE AIRLINES vs. COURT OF APPEALS
243 SCRA 143 [1995]
FACTS: Aying filed a case against Bugoy. Bugoy filed a third party
complaint against and Cyle who wants to frontally meet the main
complaint filed by Aying
HELD: If that is your purpose, you have to file two (2) answers – you
file an answer to the third party complaint and you file a second
answer to the main complaint filed by Aying.
“A third-party complaint involves an action separate and distinct
from, although related to, the main complaint. A third-party
defendant who feels aggrieved by some allegations in the main
complaint should, aside from answering the third-party complaint,
also answer the main complaint.”
Normally, Cyle answers the 3rd party complaint of Bugoy and does
not answer to the complaint of Aying. But according to SINGAPORE
case, if Cyle feels aggrieved by the allegations of Aying, he should
also answer the main complaint of Aying. Practically, he shall
answer the 3rd party complaint and the main complaint.
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Rule 7

PARTS OF A PLEADING

Sec. 1 – Caption. The caption sets forth the name of the court. The
title of the action, and docket number if assigned.
The title of the action indicates the names of the parties. They
shall all be named in the original complaint or petition; but in
subsequent pleadings it shall be sufficient if the name of the first
party on each side be started with an appropriate indication when
there are other parties.
Their respective participation in the case shall be indicated.

ILLUSTRATION:

CAPTION contains the following: Republic of the Philippines

1. the name of the court; 11th Judicial Region
2. the title of the action and Regional Trial Court of Davao
3. the docket number if assigned. Branch 12

Civil Case #12345

Juan dela Cruz, For: Annulment of Contract
Plaintiff
TITLE
-versus-

Osama bin Laden

Defendant COMPLAINT

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

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

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So, there must be a caption, title. Take note, the title of the action
indicates the names of the parties. They shall all be named in the
original complaint or petition; but in the subsequent pleadings, it
shall be sufficient if the name of the first party of each side be
stated without the others. You only write the first name of plaintiff
and defendant and followed by the word ‘ET AL”.
Q: Suppose there are 20 plaintiffs and 20 defendants in the concept
of permissive joinder of parties. Now is it necessary that they shall
be named?
A: In the complaint, YES. They shall all be named. It is possible that
the title alone will reach 3 or more pages.
BUT in subsequent pleadings like the answer, reply, it is not
necessary to write the name of everybody. What the law requires is
to write the name of the first plaintiff followed by the term ‘ET AL”.
Example: Ms. Quitain, et al, plaintiffs vs. Ms. Pastor, et al,
defendants.
So the rule is, it is only in the complaint where the name of all the
parties are required to be stated, but in subsequent pleadings, no
need. But there is an EXCEPTION to this rule. There are instances
where the law does not require the name of the parties to be
stated even in the complaint.
Q: What are the instances where the law does not require the
name of the parties to be stated even in the complaint or pleading?
A: These are the following:
1.) Subsequent Pleading (e.g. answer, reply, etc.) (Section
1);
2.) Class suit (Rule 3, Section 12);
3.) When the identity or name of the defendant is unknown
(Rule 3, Section 14);
4.) When you sue an entity without judicial personality (Rule
3, Section 15);
5.) If a party is sued in his official capacity. Official
designation is sufficient. [e.g. Mr. Acelar vs. City Mayor
of Davao.] (Unabia vs. City Mayor, 99 Phil. 253)
Variance between caption and allegations in the pleading
It is not the caption of the pleading but the allegations therein
which determine the nature of the action and the court shall grant
relief warranted by the allegations and proof even if no such relief
is prayed for (Solid Homes Inc. vs. CA, 271 SCRA 157; Banco Filipino
vs. CA, 332 SCRA 241; Lorbes vs. CA 351 SCRA 716). Thus, a
complaint captioned as unlawful detainer is actually an action for
forcible entry where the allegations show that the possessor of the
land was deprived of the same by force, intimidation, strategy,
threat or stealth. Likewise, a complaint for unlawful detainer is
actually an action for collection of a sum of money where the
allegations of the complaint do not disclose that the plaintiff
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demanded upon the defendant to vacate the property but merely
demanded to pay the rentals in arrears.
In one case, while the complaint was denominated as one for
specific performance, the allegations of the complaint and the
relief prayed for actually and ultimately sought for the execution of
a deed of conveyance to effect a transfer of ownership of the
property in question. The action therefore, is a real action (Gochan
vs. Gochan, 372 SCRA 256). Also although the complaint was
denominated as one for reformation of the instrument, the
allegations of the complaint did not preclude the court from
passing upon the real issue of whether or not the transfer between
the parties was a sale or an equitable mortgage as the said issue
has been squarely raised in the complaint and had been the subject
of arguments and evidence of the parties. (Lorbes vs. CA 351 SCRA
716).
If the petitioner filed before the SC a petition captioned “Petition
for Certiorari” based on Rule 65 but the allegations show that the
issues raised are pure questions of law, the cause of action is not
one based on Rule 65 which raises issues of jurisdiction, but on
Rule 45 which raises pure questions of law. The allegations of the
pleading determine the cause of action and not the title of the
pleading (De Castro vs. Fernandez, Jr. GR No. 155041, Feb. 14,
2007)
Sec. 2. The body. - The body of the pleading sets forth its
designation, the allegations of the party's claims or defenses, the
relief prayed for, and the date of the pleading. (n)
a) Paragraphs - the allegations in the body of a pleading
shall be divided into paragraphs so numbered as to be readily
identified, each of which shall contain a statement of a single set
of circumstances so far as that can be done with convenience. A
paragraph may be referred to by its number in all succeeding
pleadings. (3a)
(b) Headings - When two or more causes of action are
joined, the statement of the first shall be prefaced by the words
"First cause of action", of the second by "second cause of action,"
and so on for the others.
(c) Relief - The pleading shall specify the relief sought, but
it may add a general prayer for such further or other relief as may
be deemed just or equitable. (3a, R6)
(d) Date - Every pleading shall be dated. (n)
In the body, you state your allegations or defenses. Then at the
end, you state the relief which we call PRAYER – what you are
asking the court: “Wherefore, it is respectfully prayed that
judgment be rendered ordering defendant to pay plaintiff his loan
of P1 million with interest of 10% p.a. from this date until fully
paid.” Then, you end up with the date of the pleading: “Davao City,
Philippines, December 10, 1997.”
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A pleading is divided into paragraphs so numbered as to be readily
identified. Normally, a complaint starts: “Plaintiff, thru counsel,
respectfully alleges that x x x.” Then first paragraph, second
paragraph and so on. The first paragraph is normally the statement
of the parties and their addresses which is required under Rule 6
where a complaint must state the names:
1. Plaintiff Juan dela Cruz is of legal age, a resident of
Davao City whereas defendant Pedro Bautista, is also of legal age
and a resident of Davao City.
2. On such and such a date, defendant secured a loan from
plaintiff in the amount of so much payable on this date.
3. The loan is now overdue but defendant still refused to
pay.
So every paragraph is numbered so that it can easily be identified
in the subsequent pleadings. So in his Answer, the defendant will
just refer to the #, “I admit the allegations in paragraph #5)
Paragraph [b] is related to Rule 2 on joinder of causes of action.
Can you file one complaint embodying two or more causes of
action? YES.
EXAMPLE: Angelo wants to file a case against Ina to collect three
unpaid promissory notes. So, there are three causes of action. The
lawyer of Angelo decided to file only one complaint collecting the
three promissory notes. Now, how should he prepare the
complaint containing the three promissory notes?
Plaintiff respectfully alleges: 1. that he is of legal age x x x.
FIRST CAUSE OF ACTION: In 1995, there was a loan secured
amounting to so much and it is not paid until now;
SECOND CAUSE OF ACTION: In 1995, there was a second
loan…became payable and is not paid.
THIRD CAUSE OF ACTION: x x x x.
So, you indicate your different causes of action. That is how you
prepare your complaint. On the other hand, the defendant will
answer:
ANSWER:
ANSWER TO THE FIRST CAUSE OF ACTION x x x,
ANSWER TO THE SECOND CAUSE OF ACTION x x x,
ANSWER TO THE THIRD CAUSE OF ACTION x x x.
Do not combine them together in one paragraph. Even in trial
when you present your exhibits, you might get confused because
you combined all the three causes of action in one paragraph. But
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with this one, the presentation is clearer, the outline is clearer and
it is more scientifically arranged than joining them in one story.
Under paragraph [c], the pleading must state the relief sought. But
it may add a general prayer for such further other relief as may be
just and equitable like yung mga pahabol na “Plaintiff prays for
such further or other relief which the court may deem just or
equitable.”
The relief or prayer, although part of the complaint, does not
constitute a part of the statement of the cause of action. It does
not also serve to limit or narrow the issues presented (UBS vs. CA
332 SCRA 534)
It is the material allegations of the complaint, not the legal
consequences made therein or the prayer that determines the
relief to which the plaintiff is entitled. (Banco Filipino vs. CA 332
SCRA 241).
It is important to remember that the court may grant a relief not
prayed for as long as the relief is warranted by the allegations of
the complaint and the proof. (Lorbes vs. CA).
Q: Is the prayer or relief part of the main action?
A: NO, it is part of the complaint or answer but it may indicate what
is the nature of the cause of action. Cause of actions are mere
allegations. Prayer is not part of the action but it is important
because it might enlighten us on the nature of the cause of action.
That is the purpose of relief or prayer.
EXAMPLE : Angelo filed a case against Ina for annulment of a
contract of sale. If you look at the caption, it is a personal action
which should be instituted in the place where the parties reside.
But if you look at the prayer: “Wherefore, it is respectfully prayed
that after trial, the deed of sale shall be annulled on the ground of
intimidation, and the ownership of the land sold to the defendant in
Digos be ordered returned.” Actually, you are trying to recover the
ownership of the land. So in other words, it is not a personal action
but a real action.
Leticia Diona, represented by her Attorney-in-fact, Marcelina
Diona v. Romeo Balangue, Sonny Balangue, Reynaldo Balangue,
and Esteban Balangue, Jr.; G.R. No. 173559. January 7, 2013
Pleadings; relief. It is settled that courts cannot grant a relief not
prayed for in the pleadings or in excess of what is being sought by
the party. They cannot also grant a relief without first ascertaining
the evidence presented in court. In Development Bank of the
Philippines v. Tecson,this Court expounded that:
Due process considerations justify this requirement, it is improper
to enter an order which exceeds the scope of relief sought by the
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pleadings, absent notice, which affords the opposing party an
opportunity to be heard with respect to the proposed relief. The
fundamental purpose of the requirement that allegations of the
complaint must provide the measure of recovery is to prevent
surprise to the defendant.
Notably, the Rules is even more strict in safeguarding the right to
due process of a defendant who was declared in default than of a
defendant who participated in trial. For instance, amendment to
conform to the evidence presented during trial is allowed the
parties under the Rules. But the same is not feasible when the
defendant is declared in default because Section 3(d), Rule 9 of the
Rules of Court comes into play and limits the relief that may be
granted by the courts to what has been prayed for in the
complaint. xxx The raison d’etre in limiting the extent of relief that
may be granted is that it cannot be presumed that the defendant
would not file an Answer and allow himself to be declared in
default had he know that the plaintiff will be accorded a relief
greater than or different in kind from that sought in the Complaint.
No doubt, the reason behind Section 3(d), Rule 9 of the Rules of
Court is to safeguard defendant’s right to due process against
unforeseen and arbitrarily issued judgment. This, to the mind of
the Court, is akin to the very essence of due process. It embodies
“the sporting idea of fair play” and forbids the grant of relief on
matters where the defendant was not given the opportunity to be
heard thereon.
Sec. 3. Signature and Address.- Every pleading must be signed by
the party or counsel representing him, stating in either case his
address which should not be a post office box.
xxxxx
Signature and address – every pleading must be signed by the party
or the counsel representing him.
A signed pleading is one that is signed either by the party himself or
his counsel. Section 3, Rule 7 is clear on this matter. It requires that
a pleading must be signed by the party or counsel representing
him. Therefore, only the signature of either the party himself or his
counsel operates to validly convert a pleading from one that is
unsigned to one that is signed. (Republic vs. Kenrick Development
Corp. 351 SCRA 716)
“It has been held that counsel’s authority and duty to sign a
pleading are personal to him.” He may not delegate it to just any
person because the signature of counsel constitutes an assurance
by him that:
1. he has read the pleading;
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2. that to the best of his knowledge, information and belief, there is
a good ground to support it; and
3. that it is not interposed for delay.
Under the Rules of Court, it is counsel alone, by affixing his
signature, who can certify to these matters.
“The preparation and signing of a pleading constitute legal work
involving practice of law which is reserved exclusively for the
members of the legal profession. Accordingly however, counsel
may delegate the signing of a pleading to another lawyer but
cannot do so in favor of one who is not. In so ruling the Court cites
The Code of Professional Responsibility, the pertinent provision on
which provides:
Rule 9.01 – A lawyer shall not delegate to any unqualified person
the performance of any task which by law may only be performed
by a member of the Bar in good standing.
“A signature by agents of a lawyer amounts to signing by
unqualified persons, something the law strongly proscribes.
Therefore, the blanket authority entrusted to just anyone is void.
Any act taken pursuant to that authority is likewise void. Hence,
there is no way it could be cured or ratified by counsel.” (Republic
vs. Kenrick Development Corp.)
Not Post Office Address, why?
Take note of the prohibition now: You must state your address
which should not be a post office box because one difficulty is that
the exact date when you claim your mail cannot be determined if it
is a P.O. box. But if it is served to his office, the exact date can
easily be determined.
IMPLIED CERTIFICATION IN A PLEADING
Section 3, second paragraph:
“The signature of counsel constitutes a certification by him that
he has read the pleading; that to the best to his knowledge,
information, and belief there is good ground to support it; and
that it is not interposed for delay.”
Q: When a lawyer signs a pleading, what is he certifying?
A: Second paragraph says, he is certifying that he has read the
pleading, that to the best of his knowledge, information and belief,
there is a good ground to support it, and it is not interposed for
delay. That is called as an IMPLIED CERTIFICATION IN A
PLEADING (Arambulo vs. Perez, 78 Phil. 387). That was already
asked in the bar once.
BAR QUESTION: What is the meaning of the phrase “Implied
Certification in a Pleading”?
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A: “Implied Certification in a Pleading” means that when a lawyer
signs a pleading he is certifying that he has read it, to the best of his
knowledge, information and belief there is a good ground to
support it, and it is not interposed for delay.
Section 3, last paragraph:
An unsigned pleading produces no legal effect. However, the
court may, in its discretion, allow such deficiency to be remedied
if it shall appear that the same was due to mere inadvertence and
not intended for delay. Counsel who deliberately files an
unsigned pleading, or signs a pleading in violation of this Rule, or
alleges scandalous or indecent matter therein, or fails to promptly
report to the court a change of his address, shall be subject to
appropriate disciplinary action. (5a)
So, when a pleading is not signed it produces no legal effect. It is as
if no pleading has been filed.
Q: Now, suppose it was just an inadvertent omission, it was not
intentional maybe because he was hurrying to file the pleading, the
lawyer had it filed when actually he has not signed it yet.
A: Well, actually if that is in good faith, the court may forgive the
counsel because the law says, “however, the court, may in its
discretion, allow such deficiency to be remedied if it shall appear
that the same was due to mere inadvertence and not intended for
delay.” Maybe, alright, you sign it now in order that it will produce
a legal effect.
However, if the lawyer files a pleading which is UNSIGNED
DELIBERATELY, then, according to the rules, he shall be subject to
appropriate disciplinary action. That is practically unethical ‘no?
Not only that, he is also subject to disciplinary action if he signs a
pleading in violation of this Rule or alleges scandalous or indecent
matter therein, or fails to promptly report to the court a change of
his address..
Now, this ground – fails to promptly report to the court a change of
his address has been inserted in 1997 Rules, this was not found in
the prior Rules perhaps to prevent delays.
Q: What do you mean by this?
A: A lawyer will file a pleading in court, he will say this is his
address, and then he moves his office without telling the court or
the opposing counsel of his new address. So, the court will be
sending notices and orders to his old address and it is returned to
sender because the lawyer already moved to another place. So, it
causes delay.
So, in order to penalize the lawyer, subject to disciplinary action, it
is his obligation to inform the court and even the opposing counsel
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about his new address so that all court orders, decisions and all
pleadings will be served on his address. I think what prompted the
SC to insert this is the fact that it has been the cause of delays in
many cases.
Disciplinary action on counsel in the following cases:
1. deliberately filing an unsigned pleading;
2. deliberately signing a pleading in violation of the Rules;
3. alleging scandalous or indecent matter in the pleading; or
4. failing to promptly report a change of his/her address.
Signature of a disjoined party
The Court rules that the absence of the signature of the person
misjoined as a party-plaintiff in either the verifification page or
certification against forum shopping is not a ground for the
dismissal of the action. There is no judicial precedent affirming or
rejecting such a view, but we are comfortable with making such a
pronouncement. A disjoined party plaintiff has no business
participating in the case as a plaintiff in the first place, and it would
make little sense to require the disjoined party in complying with
all the requirements expected of plaintiffs (Chua v. Torres GR No.
151900, Aug 30, 2005).
VERIFICATION
Sec. 4. Verification.- Except when otherwise specifically required
by law or rule, pleadings need not be under oath, verified or
accompanied by affidavit. (5)
A pleading is verified by an affidavit that the affiant has read the
pleading and that the allegations therein are true and correct of
his knowledge and belief.
A pleading required to be verified which contains a verification
based on "information and belief," or upon "knowledge,
information and belief," or lacks a proper verification, shall be
treated as an unsigned pleading. (6a)
Q: What do you understand by verification in a pleading?
A: It means that there is an affidavit accompanying the pleading
that the pleader will certify that he prepared the pleading, that all
allegations therein are true and correct. For example: In the
pleading the plaintiff will say:
I, Juan de la Cruz of legal age, after being sworn in
accordance with law, hereby say that:
I am the plaintiff in the above entitled case.
I caused the preparation of this complaint;
I read the allegations therein;
And they are true and correct of my own knowledge.
Signed
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Affiant
Subscribed and sworn to before me on this 2nd day of
October 2001, in the City of Cebu, Philippines.
Panfilo Corpuz
Notary Public
That is what you call verification of a pleading. That the pleader,
whether plaintiff or defendant, will attest that the allegations in his
complaint or in his answer are true and correct of his own
knowledge. And then, he will sign it, and then below that, there will
be the so-called “JURAT” - Subscribed and sworn to before me on
this ___ day of December 1997, in the City of Cebu, Philippines.
Then, signed by the notary public. Meaning, statements, in the
pleading are confirmed to be correct, under oath, by the
defendant. That is called, the verification of a pleading.
How is a Pleading Verified
A pleading is verified by an affidavit. This affidavit declares that:
(a) the affiant has read the pleading, and
(b) that the allegations therein are true and correct of his personal
knowledge or based on authentic records (Sec. 4 as amended by
A.M. No. 00-2-10, May 1, 2000)
Significance of a Verification
The purpose of verification is to insure good faith in the averments
of a pleading or are true and correct, not merely speculative.
(Sarmiento vs. Zaratan GR No. 167471, February 5, 2007).
Effect of lack of a verification
Lack of verification in a pleading is a formal defect, not
jurisdictional defect, and can be cured by amendment. (Phil. Bank
of Commerce vs. Macadaeg, L-14174, Oct. 31, 1960)
The absence of a verification may be corrected by requiring an
oath. The rule is in keeping with the principle that rules of
procedure are established to secure substantial justice and that
technical requirements may be dispensed with in meritorious
cases. (Pampanga Sugar Development Company, Inc. vs. NLRC 272
SCRA 737) The court may order the correction of the pleading or
act on an unverified pleading if the attending circumstances are
such that strict compliance would not fully serve substantial justice,
which after all, is the basic aim for the rules of procedure. (Robert
Development Corp. vs. Quitain 315 SCRA 150; Joson vs. Torres 290
SCRA 279)
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Q: What do you think will happen if a pleading is verified by a party
and it turns out that the allegations are false? And that he
deliberately made those allegations false and under oath.
A: Well, you know your Criminal Law. That will be a ground for the
prosecution for the crime of perjury, because that is a false
affidavit. But if the pleading is not verified, even if they are false,
there is no perjury, because perjury requires a sworn statement by
the accused.
Q: Does the law require every pleading to be verified?
A: NO. The GENERAL RULE is, pleadings need not be under oath,
EXCEPT when otherwise specifically required by law or this rule.
When the law or rules require a pleading to be verified, then it
must be verified, otherwise it is formally detective. If the law is
silent, verification is not necessary and the pleading is filed
properly.
Litigants not required to read the very same document to be filed
in court
Generally, a pleading is not required to be verified unless required
by law or by the Rules of Court. Verification, when required, is
intended to secure an assurance that the allegations of a pleading
are true and correct; are not speculative or merely imagined; and
have been made in good faith. To achieve this purpose, the
verification of a pleading is made through an affidavit or sworn
statement confirming that the affiant has read the pleading whose
allegations are true and correct of the affiant's personal knowledge
or based on authentic records.
However, the Rules do not require the litigants to read the very
same document that is to be filed before the courts; what the Rules
require is for a party to read the contents of a pleading without any
specific requirement on the form or manner in which the reading is
to be done. That a client may read the contents of a pleading
without seeing the same pleading to be actually filed with the court
is, in these days of e-mails and other technological advances in
communication not an explanation that is hard to believe. The
variance between the dates of the Petition and the Verification
does not necessarily lead to the conclusion that no verification was
made, or that the verification was false. (Sps. Valmonte v. Alcala,
GR No. 168667, July 23, 2008)
BAR QUESTION: Name as many pleadings as you can which must
be verified.
A: The following:
1.) Rule 8 – when you deny the due execution of an
actionable document;
2.) Summary Rules – all pleadings under summary rules
should be verified;
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3.) Special Civil Actions – petitions for certiorari, prohibition
and mandamus.
4.) Statement of Claim for Small Claims cases as well as the
response thereto (Secs. 5 & 11, Procedure for Small
Claims Cases)
5.) Complaint for Injunction (Sec. 4 R 58)
6.) Application for Appointment of Receiver (Sec. 1 R 59)
7.) Application for Support Pendente Lite (Sec. 1 R 69)
8.) Petition for Forcible Entry or Unlawful Detainer, the
answers thereto, and the answers to any compulsory
counterclaim and cross-claim pleaded in the answer (Sec.
4 R 70)
9.) Petition for Indirect Contempt (Sec. 4 R 71)
10.) Petition for Relief from Judgment or Order (Sec. 3 R 38)
11.) Petition for Review from the RTC to the SC (Sec. 2(c) R
41)
12.) Petition for Review from RTC to SC (Sec. 1 R 42)
13.) Petition for Review from CTA and other quasi-judicial
agencies to the CA (Sec. 5 R 43)
14.) Appeal by Certiorari Under R 45 from CA to SC (Sec. 1 R
45)
15.) Petition for Appointment of a Guardian (Sec. 2 R 93)
16.) Petition for Leave filed by Guardian to Sell or Encumber
Property of an Estate (Sec. 1 R 95)
17.) Petition for Declaration of Competency of a Ward (Sec. 1
R 97)
18.) Petition for Habeas Corpus (Sec. 3 R 102)
19.) Petition for Change of Name (Sec. 2 R 103)
20.) Petition for Voluntary Judicial Dissolution of a
Corporation (Sec. 1 R 105)
21.) Petition for Cancellation or Correction of Entries in the
Civil Registru (Sec. 1 R 108)
Q: Now, on the other hand, suppose a pleading does not require
verification but the lawyer had it verified. What is the effect?
A: There is no effect, just surplusage! A pleading in general is not
required to be verified. But I will verify it. Is there something wrong
with it? Technically, none. But if it is required to be verified and you
omit the verification, it is formally defective.
CERTIFICATION OF NON-FORUM SHOPPING
Sec. 5. Certification against forum shopping.-- The plaintiff or the
principal party shall certify under oath in the complaint or other
initiatory pleading asserting a claim for relief, or in a sworn
certification annexed thereto and simultaneously filed therewith:
a)that he has not theretofore commenced any action or filed any
claim involving the same issues in any court, tribunal or quasi-
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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 status thereof; and
c)if he should thereafter learn that the same or similar action or
claim has been filed or pending, he shall report that fact within (5)
days therefrom the court wherein his aforesaid complaint or
initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall not be
curable by mere amendment of the complaint or other initiatory
pleading but shall be cause for the dismissal of the case without
prejudice, unless otherwise provided, upon motion and after
hearing. The submission of a false certification or non-compliance
with any of the undertakings therein, shall constitute indirect
contempt of court, without the prejudice to the corresponding
administrative and criminal actions. If the acts of the party or his
counsel clearly constitute willful and deliberate forum shopping,
the same shall be ground for summary dismissal with prejudice
and shall constitute direct contempt, as well as a cause for
administrative sanctions. (n)
The certification is mandatory under Sec. 5 of Rule 7 but not
jurisdictional. (Robert Development Corp. vs. Quitain)
This rule applies as well to special civil actions since a special civil
action is governed by the rules for ordinary civil actions, subject to
the specific rules prescribed for a special civil action. Such specific
rule appears under Rule 46, Sec. 3 which requires that every
petition for certiorari to be accompanied by a sworn certification of
non-forum shopping. (Wacnang vs. Comelec, GR No. 178024 Oct.
17, 2008)
Benedicto v. Lacson, et al., G.R. No. 141508, May 5, 2010
- There is no need to state that a case was filed and
dismissed in the certificate of non-forum shopping if
dismissal is without prejudice.
- Foundation of the rule is res judicata.
Meaning of Forum Shopping
Forum Shopping; definition and nature.
Estrellla Aduan Orpiano v. Spouses Antonio C. Tomas and Myrna
U. Tomas; G.R. No. 178611. January 14, 2013
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“Forum shopping is defined as an act of a party, against whom an
adverse judgment or order has been rendered in one forum, of
seeking and possibly getting a favorable opinion in another forum,
other than by appeal or special civil action for certiorari. It may also
be the institution of two or more actions or proceedings grounded
on the same cause on the supposition that one or the other court
would make a favorable decision. x x x It is expressly prohibited xxx
because it trifles with and abuses court processes, degrades the
administration of justice, and congest our court dockets. A willful
and deliberate violation of the rule against forum shopping is a
ground for summary dismissal of the case, and may also constitute
direct contempt.”
Forum-shopping exists when the elements of litis
pendentia concur.
ELSA D. MEDADO vs. HEIRS OF THE LATE ANTONIO CONSING, as
represented by DR.SOLEDAD CONSING,
G.R. No. 186720, February 8, 2012
On the third issue, there is forum shopping when the
elements of litis pendentia are present, i.e., between actions
pending before courts, there exist: (1) identity of parties, or at least
such parties as represent the same interests in both actions,
(1) identity of rights asserted and relief prayed
for, the relief being founded on the same facts, and
(2) (3) the identity of the two preceding
particulars is such that any judgment rendered in the other action
will, regardless of which party is successful, amount to res
judicata in the action under consideration; said requisites are also
constitutive of the requisites for auter action pendant or lis
pendens.
(3)
(4) Applying the foregoing, there was clearly a
violation of the rule against forum shopping when Spouses Medado
instituted Civil Case No. 797-C for injunction notwithstanding the
pendency of Civil Case No. 00-11320 for rescission of contract and
damages.
All elements of litis pendentia are present with the filing of
the two cases. There is no dispute that there is identity of parties
representing the same interests in the two actions, both involving
the estate and heirs of the late Consing on one hand, and Spouses
Medado on the other. The rescission case names “Soledad T.
Consing, for herself and as administratrix of the estate of Antonio
Consing” as plaintiff, with “Spouses Meritus Rey and Elsa Medado,
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*PNB+ and the Register of Deeds of Cadiz City” as respondents. The
injunction case, on the other hand, was instituted by Spouses
Medado, against “(LBP) and the Heirs of the Late Antonio Consing,
as represented by Dra. Soledad Consing.” The primary litigants in
the two action, and their interests, are the same.
The two other elements are likewise satisfied. There is an
identity of
rights asserted and reliefs prayed for in the two cases, with the
reliefs being founded on the same set of facts. In both cases, the
parties claim their supposed right as owners of the subject
properties. They all anchor their claim of ownership on the deeds
of absolute sale which they had executed, and the law applicable
thereto. They assert their respective rights, with Spouses Medado
as buyers and the heirs as sellers, based on the same set of facts
that involve the deeds of sale's contents and their validity. Both
actions necessarily involve a ruling on the validity of the same
contract as against the same parties. Thus, the identity of the two
cases is such as would render the decision in the rescission case res
judicata in the injunction case, and vice versa.
It does not even matter that one action is for the
enforcement of the parties' agreements, while the other action is
for the rescission thereof. In the similar case of Victronics
Computers, Inc. v. RTC, Branch 63, Makati,we discussed:
Civil Case No. 91-2069 actually involves an action for specific
performance; it thus upholds the contract and assumes its validity.
Civil Case No. 91-2192, on the other hand, is for the nullification of
the contract on the grounds of fraud and vitiated consent. While
ostensibly the cause of action in one is opposite to that in the
other, in the final analysis, what is being determined is the
validity of the contract. x x x Thus, the identity of rights asserted
cannot be disputed. Howsoever viewed, it is beyond cavil that
regardless of the decision that would be promulgated in Civil Case
No. 91-2069, the same would constitute res judicata on Civil Case
No. 91-2192 and vice versa.(emphasis supplied)
This was further explained in Casil v. CA, where we ruled:
The Court of Appeals held that there can be no res
adjudicata because there is no identity of causes of action between
the two cases. We do not agree. In the two cases, both petitioner
and private respondent brought to fore the validity of the
agreement dated May 4, 1994. Private respondent raised this
point as an affirmative defense in her answer in the First Case. She
brought it up again in her complaint in the Second Case. A single
issue cannot be litigated in more than one forum. As held
in Mendiola vs. Court of Appeals:
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The similarity between the two causes of action is only too
glaring. The test of identity of causes of action lies not in the form
of an action but on whether the same evidence would support and
establish the former and the present causes of action. The
difference of actions in the aforesaid cases is of no moment. In Civil
Case No. 58713, the action is to enjoin PNB from foreclosing
petitioner's properties, while in Civil Case No. 60012, the action is
one to annul the auction sale over the foreclosed properties of
petitioner based on the same grounds. Notwithstanding a
difference in the forms of the two actions, the doctrine of res
judicata still applies considering that the parties were litigating for
the same thing, i.e. lands covered by TCT No. 27307, and more
importantly, the same contentions and evidence as advanced by
herein petitioner in this case were in fact used to support the
former cause of action.”
The CA was then correct in ordering the dismissal of the
complaint in Civil Case No. 797-C for violation of the rule against
forum shopping. The issue on the validity of the subject deeds of
absolute sale can best be addressed in the action for rescission, as
against the case for injunction filed by Spouses Medado. In a line
of cases, we have set the relevant factors that
courts must consider when they have to determine which case
should be dismissed, given the pendency of two actions, to wit:
(1) the date of filing, with preference generally given to the
first action filed to be retained;
(2) whether the action sought to be dismissed was filed merely
to preempt the latter action or to anticipate its filing and lay
the basis for its dismissal; and
(3) whether the action is the appropriate vehicle for litigating
the issues between the parties.
We emphasize that the rules on forum shopping are meant to
prevent such eventualities as conflicting final decisions. This Court
has consistently held that the costly consequence of forum
shopping should remind the parties to ever be mindful against
abusing court processes. In addition, the principle of res
judicata requires that stability be accorded to
judgments. Controversies once decided on the merits shall remain
in repose for there should be an end to litigation which, without
the doctrine, would be endless.
Given the foregoing grounds already warranting the denial of
this petition, we deem it no longer necessary to take any action or
to now rule on the issue of the non-joinder of the petitioner's
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husband in the petition.
Certification against forum shopping and Verification;
requirements not jurisdictional.
Sps. Eugene L. Lim and Constancia Lim v. The Court of Appeals-
Mindanao Station, et al.; G.R. No. 192615, January 30, 2013
In any case, it is settled that the requirements of verification and
certification against forum shopping are not jurisdictional.
Verification is required to secure an assurance that the allegations
in the petition have been made in good faith or are true and
correct, and not merely speculative. Non-compliance with the
verification requirement does not necessarily render the pleading
fatally defective, and is substantially complied with when signed by
one who has ample knowledge of the truth of the allegations in the
complaint or petition, and when matters alleged in the petition
have been made in good faith or are true ad correct. On the other
hand, the certification against forum shopping is required based on
the principle that a party litigant should not be allowed to pursue
simultaneous remedies in different fora. While the certification
requirement is obligatory, non-compliance or a defect in the
certificate could be cured by its subsequent correction or
submission under special circumstances or compelling reasons or
on the ground of “substantial compliance.”
Certification against forum shopping; non-compliance is not
curable by subsequent submission unless there is substantial
compliance or special circumstance.
Mary Louise Anderson v. Enrique Ho, G.R. No. 172590. January 7,
2013
In this light, the Court finds that the CA correctly dismissed
Anderson’s Petition for Review on the ground that the certificate of
non-forum shopping attached thereto was signed by Atty. Oliva on
her behalf sans any authority to do so. While the Court notes that
Anderson tried to correct this error by later submitting an SPA and
by explaining her failure to execute one prior to the filing of the
petition, this does not automatically denote substantial
compliance. It must be remembered that a defective certification is
generally not curable by its subsequent correction, and while it is
true that in some cases the Court considered such a belated
submission as substantial compliance, it did so only on sufficient
and justifiable grounds that compelled a liberal approach while
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avoiding the effective negation of the intent of the rule on non-
forum shopping.
Certification against forum shopping; SPA designating counsel to
sign must be executed if party-pleader cannot sign.
Mary Louise Anderson v. Enrique Ho, G.R. No. 172590. January 7,
2013
The need to abide by the Rules of Court and the procedural
requirements it imposes has been constantly underscored by this
Court. One of these procedural requirements is the certificate of
non-forum shopping which, time and again, has been declared as
basic, necessary and mandatory for procedural orderliness.
In Vda. De Formoso v. Philippine National Bank, the Court
reiterated the guidelines respecting non-compliance with or
submission of a defective certificate of non-forum shopping, the
relevant portions of which are as follows:
4) As to certification against forum shopping, non-compliance
therewith or a defect therein, xxx, is generally not curable by its
subsequent submission or correction thereof, unless there is a
need to relax the Rule on the ground of ‘substantial compliance or
presence of ‘special circumstances or compelling reasons’.
xxxx
6) Finally, the certification against forum shopping must be
executed by the party pleader, not by his counsel. If, however, for
reasonable or justifiable reasons, the party-pleader is unable to
sign, he must execute a Special Power of Attorney designating his
counsel of record to sign on his behalf.
The requirement that it is the petitioner, not her counsel, who
should sign the certificate of non-forum shopping is due to the fact
that a “certification is a peculiar personal representation on the
part of the principal party, an assurance given to the court or other
tribunal that there are no pending cases involving basically the
same parties, issues and causes of action. Obviously, it is the
petitioner, and not always the counsel whose professional services
have been retained for a particular case, who is in the best position
to know whether [she] actually filed or caused the filing of a
petition in that case.” Per the above guidelines, however, if a
petitioner is unable to sign a certification for reasonable or
justifiable reasons, she must execute an SPA designating her
counsel of record to sign on her behalf. A certification which had
been signed by counsel without the proper authorization is
defective and constitutes a valid cause for dismissal of the petition.
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Certification against forum shopping and Verification; ratification
by the Board of Directors.
Sps. Eugene L. Lim and Constancia Lim v. The Court of Appeals-
Mindanao Station, et al.; G.R. No. 192615, January 30, 2013
A closer look into the SPA and the Corporate Secretary’s Certificate
submitted by BPI reveals that, at the time the subject complaint
was filed on January 26, 1999, Ramos did not have the express
authority to file and sign the verification and certification against
forum shopping attached to BPI’s complaint. The SPA, which
appointed Ramos and/or Atty. Mateo G. Delegencia as BPI’s
attorneys-in-fact in the case against the petitioners, was executed
only on July 8, 2008. Even the Corporate Secretary’s Certificate that
named the officers authorized by the BPI’s Executive Committee to
grant and extend a SPA to other officers of the bank was executed
only on February 21, 2007. The Executive Committee is part of the
bank’s permanent organization and, in between meetings of BPI’s
Board of Directors, possesses and exercises all the powers of the
board in the management and direction of the bank’s affairs.
BPI’s subsequent execution of the SPA, however, constituted a
ratification of Ramos’ unauthorized representation in the collection
case filed against the petitioners. A corporation can act only
through natural persons duly authorized for the purpose or by a
specific act of its board of directors, and can also ratify the
unauthorized acts of its corporate officers. The act of ratification is
confirmation of what its agent or delegate has done without or
with insufficient authority.
In PNCC Skyway Traffic Management and Security Division Workers
Organization (PSTMSDWO) v. PNCC Skyway Corporation, we
considered the subsequent execution of a board resolution
authorizing the Union President to represent the union in a petition
filed against PNCC Skyway Corporation as an act of ratification by
the union that cured the defect in the petition’s verification and
certification against forum shopping. We held that “assuming that
Mr. Soriano (PSTMSDWO’s President) has no authority to file the
petition on February 27, 2006, the passing on June 30, 2006 of a
Board Resolution authorizing him to represent the union is deemed
a ratification of his prior execution, on February 27, 2006, of the
verification and certificate of non-forum shopping, thus curing any
defects thereof.”
Certifiction of non-forum shopping, Verification
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submission of such certification considering that although it is

obligatory, it is not jurisdictional.

ELSA D. MEDADO vs. HEIRS OF THE LATE ANTONIO CONSING, as In HLC Construction and Development Corporation v. Emily
represented by DR.SOLEDAD CONSING, Homes Subdivision Homeowners Association, it was held that the
G.R. No. 186720, February 8, 2012 signature of only one of the petitioners in the certification against
forum shopping substantially complied with [the] rules because all
the petitioners share a common interest and invoke a common
cause of action or defense.

The same leniency was applied by the Court in Cavile v. Heirs

Issues:
of Cavile, because the lone petitioner who executed the
certification of non-forum shopping was a relative and co-owner of
I. Whether or not the CA correctly admitted the
the other petitioners with whom he shares a common interest. x x
petition for certiorari filed before it, notwithstanding alleged
x
deficiencies in its verification and certification against forum
shopping;
xxx

II. Whether or not the CA correctly admitted the petition

Here, all the petitioners are immediate relatives who
for certiorari filed before it even if no motion for
share a common interest in the land sought to be reconveyed and a
reconsideration of the RTC’s Order dated March 9, 2007 was
common cause of action raising the same arguments in support
filed with the lower court; and
thereof. There was sufficient basis, therefore, for Domingo
Hernandez, Jr. to speak for and in behalf of his co-petitioners when
III. Whether or not the CA correctly held that the rule
he certified that they had not filed any action or claim in another
against forum shopping was violated by the filing of the
court or tribunal involving the same issues. Thus, the
complaint for injunction during the pendency of the action for
Verification/Certification that Hernandez, Jr. executed constitutes
rescission and damages.
substantial compliance under the Rules.[14] (citations omitted)

In their comment on the petition, the respondents also raise

Furthermore, we have consistently held that verification of a
as an issue the failure of the petitioner to join her husband as a
pleading is a formal, not a jurisdictional, requirement intended to
party to the petition, considering that the action affects conjugal
secure the assurance that the matters alleged in a pleading are true
property.
and correct. Thus, the court may simply order the correction of
unverified pleadings or act on them and waive strict compliance
Ruling:
with the rules. It is deemed substantially complied with when one
who has ample knowledge to swear to the truth of the allegations
As we ratiocinated in Heirs of Olarte v. Office of the President:
in the complaint or petition signs the verification; and when
matters alleged in the petition have been made in good faith or are
The general rule is that the certificate of non-forum
true and correct.[15] It was based on this principle that this Court
shopping must be signed by all the plaintiffs in a case and the
had also allowed herein petitioner, via our Resolution[16] dated
signature of only one of them is insufficient. However, the Court
April 22, 2009, a chance to submit a verification that complied with
has also stressed that the rules on forum shopping were designed
Section 4, Rule 7 of the Rules of Court, as amended, instead of us
to promote and facilitate the orderly administration of justice and
dismissing the petition outright.
thus should not be interpreted with such absolute literalness as to
subvert its own ultimate and legitimate objective. The rule of
substantial compliance may be availed of with respect to the
contents of the certification. This is because the requirement of
There is forum shopping when, as a result of an adverse opinion in
strict compliance with the provisions regarding the certification of
one forum, a party seeks a favorable opinion, other than by appeal
non-forum shopping merely underscores its mandatory nature in
or certiorari, in another. There can also be forum shopping when a
that the certification cannot be altogether dispensed with or its
party institutes two or more suits in different courts, either
requirements completely disregarded. Thus, under justifiable
simultaneously or successively, in order to ask the courts to rule on
circumstances, the Court has relaxed the rule requiring the
the same or related causes and/or to grant the same or

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substantially the same reliefs on the same supposition that one or
the other court would make a favorable disposition or increase a
party’s chances of obtaining a favorable decision or action.
(Huibonhoa vs. Concepcion GR 153785, August 3, 2006; Heirs of
Cesar Marasigan vs. Marasigan, GR 156078 March 14, 2008)
It is an act of a party against whom an adverse judgment has been
rendered in one forum of seeking and possibly getting a favorable
opinion in another forum, other than by appeal or the special civil
action of certiorari, or the institution of two or more actions or
proceedings grounded on the same cause on the supposition that
one or the other court would make a favorable disposition. (Sps.
Carpio vs. Rural Bank of Sto. Tomas Batangas GR 153171 May 4,
2006)
Rationale against forum shopping
The rationale against forum shopping is that a party should not be
allowed to pursue simultaneous remedies in two different fora.
Filing multiple petitions or complaints constitutes abuse of court
processes, which tends to degrade the administration of justice,
wreaks havoc upon orderly judicial procedure, and adds to the
congestion of the heavily burdened dockets of the court. Thus, the
rule proscribing forum shopping seeks to promote candor and
transparency before the courts to promote the orderly
administration of justice, prevent undue inconvenience upon the
other party, and save the precious time of the courts. It also aims
to prevent the embarrassing situation of two or more courts or
agencies rendering conflicting resolutions or decisions upon the
same issue (Huibonhoa vs. Concepcion, supra).
How to determine existence of forum shopping
To determine whether a party violated the rule against forum
shopping, the most important question to ask is whether the
elements of litis pendentia are present or whether a final judgment
in one case will result to res judicata in another. Otherwise stated,
to determine forum shopping, the test is to see whether in the two
or more cases pending, there is (a) identity of parties, (b) identity of
rights or causes of action, and (c) identity of reliefs sought
(Huibonhoa vs. Concepcion)
What is pivotal in determining whether forum shopping exists or
not is the vexation caused the courts and parties-litigants by a
party who asks different courts and/or administrative agencies to
rule on the same or related causes and/or grant the same or
substantially the same reliefs, in the process creating possibility of
conflicting decisions being rendered by the different courts and/or
administrative agencies upon the same issues (Lim vs. Vianzon GR
137187, August 3, 2006).
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Who executes the certification?
It is the plaintiff or principal party who executes the certification
under oath. (Sec. 5). The certification must be executed by the
party, not the attorney (Damasco vs. NLRC 346 SCRA 714).
It is the petitioner and not the counsel who is in the best position
to know whether he or it actually filed or caused the filing of a
petition. A Certification signed by counsel is a defective
certification and is a valid cause for dismissal (Far Eastern Shipping
Company vs. CA 297 SCRA 30). This is the general and prevailing
rule.
Liberal interpretation of the rule
It has also been held that the rules on forum shopping, which were
precisely designed to promote and facilitate the orderly
administration of justice, should not be interpreted with such
absolute literalness as to subvert its own ultimate and legitimate
objective which is the goal of all rules of procedure – that is, to
achieve substantial justice as expeditiously as possible (Great
Southern Maritime Services Corp. vs. Acuna 452 SCRA 422). Hence,
the rule is subject to the power of the SC to suspend procedural
rules and to lay down exceptions to the same.
Examples:
While a petition for certiorari is flawed where the certification of
non-forum shopping was signed only by counsel and not by the
party, this procedural lapse was overlooked by the Court in the
interest of justice (Sy Chin vs. CA 345 SCRA 673). In another case,
the fact that the parties were abroad at a time when the petition
was filed, was considered a reasonable cause to exempt the parties
from compliance with the requirement that they personally
execute the certification against forum shopping (Hamilton vs. Levy
344 SCRA 821). In De Guia vs. De Guia 356 SCRA 287, the SC went
to the extent of invoking its power to suspend the Rules by
disregarding the absence of the certification against forum
shopping in the interest of justice.
In Dar vs. Alonzo-Legato (339 SCRA 306) the Court ruled that where
the petitioners were sued jointly as “Mr. and Mrs.” over a property
in which they were alleged to have common interest, the signing of
the certification by one of the petitioners was held to be a
substantial compliance of the rule. In a subsequent ruling in the
case of Docena vs. Lapesura (355 SCRA 658), where only the
husband signed the certificate against forum shopping in a petition
involving the conjugal residence of the spouses, the SC considered
the certification as having substantially complied with the
requirements.
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In Cavile vs. Heirs of Clarita Cavile (400 SCRA 255), a similar ruling
was made where the Court held that there was substantial
compliance with the Rules where only one petitioner signed the
certification against forum shopping in behalf of all the other
petitioners being all relatives and co-owners of the properties in
dispute, and who shared a common interest in them, had a
common defense in the complaint for partition, filed the petition
collectively, and raised only one argument to defend their rights
over the properties in question.
In Bases Conversion Development Authority GR No. 144062,
November 2, 2006, while only one petitioner signed the verification
and certification, it was held that such fact is not fatal to the
petition. The Court ruled that the signature of a principal party
satisfies the requirement because under the Rules it is clear that
the certification may be signed by a principal party.
In HLC Construction and Development Corp. vs. Emily Homes
Subdivision Homeowners Association 411 SCRA 504, the Court
ruled that the signature of only one petitioner substantially
complied with the rules because all the petitioners shared a
common interest and invoked a common cause of action or
defense.
Lack of certification not cured by subsequent submission
In appeal by certiorari to the Supreme Court, the lack of
certification is generally not curable by the submission thereof
after the filing of the petition. Sec. 5, Rule 45 of the 1997 Rules
provides that failure of the petitioner to submit the required
documents that should accompany the petition, including the
certification, required in Sec. 4, Rule 45, shall be sufficient ground
for the dismissal thereof.
Exceptions
In certain exceptional circumstances, however, the Court has
allowed the belated filing of the certification. In all these cases,
there were special circumstances or compelling reasons that
justified the relaxation of the rule.
Lack of authority to sign certification
The same liberal construction applies to certifications against
forum shopping signed by the person on behalf of a corporation
which are unaccompanied by proof that said signatory is
authorized to file a petition on behalf of the corporation. A liberal
interpretation is given to the rule more so where the petitioner did
submit a certification against forum shopping, but he failed only to
show proof that the signatory was authorized to do so. In several
cases, (Shipside Incorporated vs. CA 404 SCRA 981; Ateneo de Naga
University vs. Manalo 458 SCRA 325, etc) the Court permitted the
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subsequent submission of proof of authority to sign the
certification against forum shopping.
Signing the Certification when the plaintiff is a juridical person
A juridical entity, unlike a natural person, can only perform physical
acts through properly delegated individuals. The certification
against forum shopping where the plaintiff or a principal party is a
juridical entity, like a corporation, may be executed by properly
authorized persons. This person may be the lawyer of the
corporation. As long as he is duly authorized by the corporation
and has personal knowledge of the facts required to be disclosed in
the certification against forum shopping, the certification may be
signed by the authorized lawyer (National Steel Corporation vs. CA
388 SCRA 85).
Authority to sign Certification of Non Forum Shopping
A board resolution purporting to authorize a person to sign
documents on behalf of the corporation must explicitly vest such
authority. The signing of verifications and certifications against
forum shopping is not integral to the act of filing; this may not be
deemed as necessarily included in an authorization merely to file
cases. (MCWD vs. Margarita A. Adala, GR No. 168914, July 4, 2007)
Pleadings requiring a certification
The certification against forum shopping is mandatory in filing a
complaint and other initiatory pleadings asserting a claim (Sec.5)
This initiatory pleadings include not only the 1. original complaint
but also 2.permissive counterclaim, 3. cross-claim, 4. third (fourth)-
party complaint, 5. complaint in intervention, 6. petition or any
application in which a party asserts a claim for relief. The rule does
not require a certification against forum shopping for a compulsory
counterclaim because it cannot be the subject of a separate and
independent adjudication. It is therefore, not an initiatory pleading
(UST vs. Surla, 294 SCRA 382)
It bears stressing that the Rule distinctly provides that the required
certification against forum shopping is intended to cover an
initiatory pleading, meaning an incipient application of a party
asserting a claim for relief. The answer with a counterclaim is a
responsive pleading, filed merely to counter petitioner’s complaint
that initiates the civil action and is a claim for relief that is derived
only from, or is necessarily connected with, the main action or
complaint. It is not an initiatory pleading (Sps. Carpio vs. Rural Bank
of Sto. Tomas Batangas, supra)
SANTO TOMAS UNIVERSITY HOSPITAL vs. SURLA
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294 SCRA 382 [Aug. 17, 1998]
HELD: The certification of non-forum shopping applies only to
permissive counterclaims because there is no possibility of forum
shopping in compulsory counterclaims.
“The proviso in the second paragraph of Section 5, Rule 7, of the
1997 Rules of Civil Procedure, i.e., that the violation of the anti-
forum shopping rule ‘shall not be curable by mere amendment . . .
but shall be cause for the dismissal of the case without prejudice,’
being predicated on the applicability of the need for a certification
against forum shopping, obviously does not include a claim which
cannot be independently set up.”
Effect of non-compliance
The failure to comply with the required certification is “not curable
by a mere amendment” and shall be a cause for the dismissal of
the action (Sec. 5).
The dismissal is not to be done by the court motu proprio as the
rule requires that it shall be done upon motion and after hearing
(Sec. 5)
The dismissal is, as a rule, “without prejudice” unless the order
provides otherwise (Sec. 5)
Q: What is the effect if a complaint or a third-party complaint is
filed in court without the certification on non-forum shopping?
A: That is a ground by itself for an automatic dismissal of the
complaint.
Now let’s go to the second paragraph.
Again, what is the possibility if the complaint is filed without the
certification against forum shopping? That is a ground by itself for
the dismissal of the complaint.
Q: Now, suppose I will amend the complaint because at first there
was no certification of non-forum shopping, therefore,
automatically the defect is cured. Now, is it automatic?
A: Look at the 2nd paragraph, it says, “failure to comply with the
foregoing requirements shall not be curable by mere amendment
of the complaint or other initiatory pleading, but shall be cause for
the dismissal of the case without prejudice.” In other words, the
complaint will be dismissed but you can still re-file the case with
the inclusion of the certification against forum shopping.
“Unless otherwise provided, upon the motion after hearing” –
meaning, it is now discretionary on the court to determine whether
to dismiss or not to dismiss. Of course, it is a ground for dismissal,
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but the court may say, “Okay, we will just amend it. We will not
dismiss.” But definitely, you cannot insist that because I already
amended, everything is cured. That is for the court to determine
whether to dismiss or not to dismiss. So, mere amendment does
not cure automatically the missing certification. (I don’t agree
because the unless otherwise provided appears to qualify the
dismissal without prejudice. In other words, the court can order the
dismissal with prejudice.)
I think this provision that mere amendment does not cure
automatically the missing certification for non-forum shopping was
taken by the SC from its ruling in the 1995 case of
KAVINTA vs. CASTILLO, JR.
249 SCRA 604
HELD: “The mere submission of a certification under Administrative
Circular No. 04-94 after the filing of a motion to dismiss on the
ground of non-compliance thereof does not ipso facto operate as a
substantial compliance; otherwise the Circular would lose its value
or efficacy.”
As a matter of fact, if the certification is deliberately false there are
many other sanctions – contempt, possible administrative actions
against the lawyer or criminal case for perjury.
Failure to submit certification against forum shopping and forum
shopping are two separate grounds for dismissal--
The failure to submit a certification against forum shopping is a
ground for dismissal, separate and distinct from forum shopping as
a ground for dismissal. A complaint may be dismissed for forum
shopping even if there is a certification attached and conversely, a
complaint may be dismissed for lack of the required certification
even if the party has not committed forum shopping. Compliance
with the certification against forum shopping is separate from, and
independent of, the avoidance of forum shopping itself. (Juaban vs.
Espina 548 SCRA 588, March 14, 2008).
No appeal from an order of dismissal
If a complaint is dismissed for failure to comply with required
certification, the plaintiff cannot appeal from such order. This is
because an order dismissing an action without prejudice is not
appealable. The remedy provided for under Sec. 1 of Rule 41 is to
avail of the appropriate special civil action under Rule 65 (Sec. 1[g],
Rule 41 as amended, Rules of Court.
Effect of willful and deliberate forum shopping –
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Pursuant to Sec. 5, it will result to a summary dismissal, that is,

without need of a motion to dismiss and hearing and the dismissal
is with prejudice.

Effect of submission of a false certification

It shall constitute 1. indirect contempt 2. without prejudice to the

corresponding administrative and criminal sanctions (Sec.5)

Effect of non-compliance with the undertakings

It has the same effect as the submission of a false certification

(Sec.5), hence shall constitute indirect contempt without prejudice
to the corresponding administrative and criminal sanctions (Sec. 5).

OTHER REQUIREMENTS

All pleadings, motions and papers filed in court by counsel shall

bear in addition to counsel’s current Professional Tax Receipt
Number (PTR), counsel’s current IBP official receipt number
indicating its date of issue. Pleadings motions and papers which do
not comply with this requirement may not be acted upon by the
court, without prejudice to whatever disciplinary action the court
may take against the erring counsel who shall likewise be required
to comply with the requirement within 5 days from notice. Failure
to comply with such requirement shall be a ground for further
disciplinary sanction and for contempt of court (Circular No. 10,
July 24, 1985; Bar Matter No. 287, September 26, 2000.

On November 12, 2002, the SC granted the request of the Board of

Governors of the IBP and the Sangguniang Panlalawigan of Ilocos
Norte to require all lawyers to indicate their Roll of Attorneys
Number in all papers and pleadings filed in judicial and quasi-
judicial bodies in addition to the previously required current PTR
and IBP OR. The requirement is meant to protect the public by
making it easier to detect impostors who represent themselves as
members of the Bar. Non-compliance has the same effect as failure
to indicate counsel’s IBP Receipt Number. This requirement is
directed only to lawyers and is not to be construed as precluding a
party who is not a lawyer from signing a pleading himself (Bar
Matter No. 1132, April 1, 2003)

All practicing lawyers are required to indicate in all pleadings filed

before the courts or quasi-judicial bodies, the number and date of
issue of their MCLE Certificate of Compliance or Certificate of
Exemption. Failure to disclose the information would cause the
dismissal of the case and the expunction of the pleading from the
records (Bar Matter No. 1922 En Banc Resolution, June 3, 2008).
Per En Banc Resolution of the Supre Court dated September 2,
2008, the effectivity date of the implementation was moved from
August 25, 2008 to January 1, 2009.

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Rule 8 defense become incomplete, a certain element of cause of action

disappears then it must be a statement of ultimate fact.
MANNER OF MAKING ALLEGATIONS IN PLEADINGS
Q: What are the essential elements of a cause of action?
A: The following:
Sec. 1 In general – Every pleading shall contain in a methodical
1.) Statement of the right;
and logical form, a plain, concise and direct statement of the
2.) Statement of the obligation;
ultimate facts on which the party pleading relies for his claim or
3.) Statement of the violation; and
defense, as the case may be, omitting the statement of mere
4.) Statement of damage.
evidentiary facts.
If a defense relied on is based on law, the pertinent provisions
You analyze a complaint from the first to the last paragraph, you
thereof and their applicability to him shall be clearly and concisely
find out whether the four are present.
stated.

So if the statement can be deleted and the cause of action is still

complete, then it is not a statement of ultimate fact. It is only a
Pleadings must only state the ultimate facts where one relies on his
statement of evidentiary fact.
defense or complaint. You must omit the statement of mere
evidentiary facts.
Evidentiary Facts

The ultimate facts refer to the essential facts of the claim. A fact is
Q: What are evidentiary facts?
essential if it cannot be stricken out without leaving the statement
A: Evidentiary facts are the facts which will prove the ultimate
of the cause of action insufficient (Ceroferr Realty Corporation vs.
facts. They should not be stated in the pleading. They should be
CA 376 SCRA 144). The ultimate facts are the important and
brought out during the trial. They are proper during the trial but
substantial facts which form the basis of the primary right of the
they have no place in your pleading.
plaintiff and which make up the wrongful act or omission of the
Evidentiary facts refer to those which are necessary to prove the
defendant. The ultimate facts do not refer to the details of
ultimate fact or which furnish evidence of the existence of some
probative matter or to the particulars of evidence by which the
other facts.
material elements are to be established. They are the principal,
determinate, constitutive facts, upon the existence of which, the
In the law on Evidence, ultimate facts are called factum
entire cause of action rests. (Tantuico, Jr. vs. Republic, 204 SCRA
probandum as distinguished from factum probans (evidentiary
428)
facts).

Distinguish ultimate facts from evidentiary facts.

EXAMPLE: In a land dispute, the question is: Who has been in
possession of the land for a long time? I claim I’m the one. So, I will
ULTIMATE FACTS vs. EVIDENTIARY FACTS
say, “plaintiff has been in possession of this land continuously for
the past 30 years.” That is a statement of ultimate fact because
Q: What are ultimate facts?
that shows your right – your right over the property – that you
A: Ultimate facts are those which are essential to one’s cause of
cannot be driven out.
action or defense.

Suppose the lawyer wants to impress the court that the statement
Ultimate facts refer to those which directly form the basis of the
is true, the pleading describing continuous possession for the past
right sought to be enforced or the defense relied upon. If the
30 years from 1967 to 1997. And therefore, the lawyer will now
ultimate facts are not alleged, the cause of action will be
prepare the complaint in this manner:
insufficient.

Plaintiff has been in possession of the said property continuously,

openly for the past 30 years from 1967 to 1997 as may be borne
Q: How do you determine whether a fact is essential to your cause
out by the following:
of action or defense?
He entered the property in 1967. He cleared the property by
A: The test to determine whether the fact is essential to your cause
cutting the grass. In 1968, he planted 20 coconut trees. In 1969,
of action is: if the statement in the pleading cannot be deleted
he planted 50 coconut trees. In 1970, he planted mango trees. In
because if you delete it, the statement of your cause of action or

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1971, he planted guava. He will recite everything from 1967 to
1997.
The form is wrong because you are stating evidentiary facts.
So, what should be the correct pattern?
Plaintiff has been in continuous possession of the property for 30
years from 1967 up to the present.
That is the ultimate fact.
Then, during the trial, you present the plaintiff and you ask the
plaintiff: Mr. Plaintiff, when did you occupy the property? – “1967”
– When you first occupied the property, describe it. – “Ah, bagnot!
I have to clean it. So I clean it in 1967.” – In 1968, were you still
there? – “Oh yes!” – What did you do in 1968? – “I planted coconut
trees.” – Did you pay taxes in 1968? – “Yes!” – Where’s the receipt?
– “Eto o!”
The evidentiary facts should be brought out in court not in the
pleadings, otherwise your pleading become kilometric. That is what
is meant by the phrase that you only state the ultimate facts
omitting the statement of evidentiary facts.
Another Example:
In a collection case you can just allege:
“The defendant borrowed money and then it fell due. I made
demands for him to pay, but despite repeated demands he refused
to pay.”
You do not have to state in your complaint that “when the account
fell due last November 5, I called him up by telephone. He promised
to pay in November 7 and called him again and he promised to pay
tomorrow…” Those are evidentiary facts which can be brought
forward during the trial.
Under Section 1, you state the ultimate facts on which you base
your claim or defense. How do you state the facts? Section 1 says
that statement of ultimate facts must be stated in a methodical and
logical form and you must use plain, concise and direct statements
or language. The simpler the language, the better. A pleading is
not a vehicle for you to show your mastery of the English language.
The judge might throw away your complaint for not using simple
language.
How do you present the facts? In a methodical and logical form. It
is a matter of writing style. Every person has his style of writing.
Corollarily, every person expects you to write in a methodical or
logical form. We have said earlier that a pleading actually tells a
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story. Plaintiff tells the court his story. Defendant tells his story,
too. Each presentation must be methodical and logical.
What is the first test whether you style is methodical or logical?
The best exercise is your own answer in examinations. In a
problem, you answer and you try to argue why. You try to present
your answer in a clear manner. It must be methodical and logical.
PRINCIPLE: Only ultimate facts should be alleged and not the
evidentiary facts.
Q: Apart from evidentiary facts, what are the other matters that
should not be stated in the pleading?
A: The following:
1.) Facts which are presumed by law;
2.) Conclusions of fact or law;
3.) Matters which are in the domain of judicial notice need
not be alleged.
FACTS WHICH ARE PRESUMED BY LAW
Presumptions under the law need not be alleged in a pleading.
When a fact is already presumed by law, there is no need to make
that allegation because your cause of action would still be
complete.
Example:
Negligence in culpa contractual
Q: In a case of breach of contract against an operator of the
common carrier. Do you think it is necessary for the plaintiff to
allege that the driver acted negligently? Is an allegation that the
driver of the carrier acted with negligence required?
A: NO. There must be negligence, otherwise, there would be no
cause of action. However there is no need to allege it in the
complaint because under the Civil Code, whenever there is a
breach of contract of carriage, there is a presumption of negligence
on the part of carrier. It is not for the passenger to prove that the
common carrier is negligent. It is for the common carrier to prove
that it is not negligent.
HOWEVER, In culpa aquilana, or quasi-delict, where there is no pre-
existing contract between the parties, the liability of the defendant
hinges on negligence. There must be allegation of negligence. The
defendant must be alleged to have acted negligently to hold him
liable otherwise, there is no cause of action. It becomes an
ultimate fact which should be alleged in the pleading.
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CONCLUSIONS OF FACT OR LAW
Conclusions of law or conclusions of fact must not be stated in the
pleading. A statement of fact is different from a conclusion of fact
or law.
For EXAMPLE, where plaintiff said that he is entitled to moral
damages or attorney’s fees. That is not a statement of fact but your
conclusion.
Statement of fact is to cite the basis why you are entitled – you
must state the reason why you are entitled. The statement of the
ultimate fact as distinguished from conclusion is explained in the
old case of
MATHAY vs. CONSOLIDATED BANK
58 SCRA 559
HELD: “A bare allegation that one is entitled to something is an
allegation of a conclusion. Such allegation adds nothing to the
pleading, it being necessary to plead specifically the facts upon
which such conclusion is founded.”
You must plead the facts upon which your conclusion is founded.
To say that you are entitled to something is not actually a
statement of fact but merely a conclusion of the pleader. It adds
nothing to the pleading.
For EXAMPLE:
The complaint alleges that the defendants are holding the
plaintiff’s property in Trust for the plaintiff without any explanation
of the facts from which the court could conclude whether there is a
trust or not. The SC in the case of MATHAY said that that
statement is merely a conclusion of the plaintiff. You must state
the basis of your statement that they are holding your property in
trust.
So a statement of law is not allowed although there is an exception
under the second paragraph of Section 1 which says that “if a
defense relied on is based on law, the pertinent provisions thereof
and their applicability to him shall be clearly and concisely stated.”
Sometimes a defendant when he files his answer, it is purely based
on law. He must cite the legal provision in his answer and explain
WHY it is applicable to him.
Test to Distinguish Conclusions of Law from Statement of Facts
If from the facts in evidence the result can be reached by the
process of natural reasoning adopted in the investigation of truth,
it becomes an ultimate fact to be found as such.
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If on the other hand resort must be had to artificial process of the
law in order to reach a final determination, the result is a
Conclusion of Law (herrera Vol. I)
ALLEGATION OF ALTERNATIVE CAUSES OF ACTION OR DEFENSES
Sec. 2. Alternative causes of action or defenses. - A party may
set forth two or more statements of a claim or defense
alternatively or hypothetically, either in one cause of action or
defense or in separate causes of action or defenses. When two or
more statements are made in the alternative and one of them if
made independently would be sufficient, the pleading is not
made insufficient by the insufficiency of one or more of the
alternative statements. (2)
The provision recognizes that the liability of the defendant may
possibly be based on either one of two possible causes of action.
The plaintiff, may for example, believe that the liability of the
carrier may be based either on a breach of contract of carriage or
on a quasi-delict, but he may not be certain which of the causes of
action would squarely fit the set of facts alleged in the complaint,
although he is certain that he is entitled to relief. He may therefore,
state his causes of action in the alternative. This provision in effect,
also relieves a party from being compelled to choose only one
cause of action.
Q: What happens if one cause of action is insufficient? Will it cause
the dismissal of the complaint?
A: No, the complaint will remain insofar as the sufficient cause of
action is stated. The insufficiency of one will not affect the entire
pleading if the other cause of action is insufficient.
EXAMPLE:
I read a case about a passenger who was about to board a bus. Of
course when you are a passenger and you get hurt, that is culpa
contractual. If you are not a passenger and you get hurt due to the
negligence of the driver, that is culpa aquiliana. So it depends
whether there is a contract of carriage or none.
In that case, the passenger was about to board a bus. As a matter
of fact, the left foot had already stepped on the bus. The bus
suddenly sped up. He fell. He was injured. What is the basis
against the carrier? Is there a contract or none? There is because
one foot was already on it but others say there was no contract yet.
You don’t really know whether your cause of action is culpa
contractual or culpa aquiliana. You want to claim damages but you
are not sure whether your case is based on culpa contractual or
culpa aquiliana. It’s either one of the two. It sometimes happens.
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Now, if I am the lawyer for the plaintiff and I am tortured to make
my choice, I may allege 2 possible alternative causes of action. I
will draft the complaint in such a way that I will show to the court
that my cause of action is either culpa contractual or culpa
aquilana. I will make sure that both allegations are covered. You
cannot be wrong because the law does not require you to make a
choice.
Pleading alternative causes of action normally leads to inconsistent
claims. For instance, the elements of a cause of action based on a
contractual theory are inconsistent with those of a cause of action
based on a quasi-delict. As previously discussed, a suit based on a
breach of contract of carriage for example, does not require an
allegation and proof of negligence because it is not an element of a
breach of contract suit (Calalas vs. CA 332 SCRA356; FGU Insurance
Corp. vs. GP Sarmiento Trucking Corp. 386 SCRA 312). On the other
hand, negligence as a rule, is an essential element of a suit based
on a quasi-delict (Art. 2176, Civil Code).
Under Sec. 2, this situation is permissible as long as the allegations
pleaded within a particular cause of action are consistent with the
cause of action relied upon as an alternative. Thus, if the
alternative cause of action is a breach of contract, the allegations
therein must support the facts constituting the breach of the
contract.
Alternative Defenses
Q: You are the defendant. You are confronted with the same
problem. There is a complaint against you and you have 3 possible
defenses. Am I obliged to make a choice immediately?
A: NO. The law allows the defendant to cite the 3 possible
defenses alternatively. Meaning, each is my defense or not.
No matter if your defenses are inconsistent Section 2, Rule 8 allows
the defendant to plead his defenses hypothetically or alternatively.
They may be inconsistent with each other but what is important is
each defense is consistent in itself. Meaning, each defense, when
taken alone, is a good defense. You look at them separately. Do
not compare them.
For EXAMPLE:
Plaintiff files a case against a defendant to collect an unpaid loan.
The basic allegation is that the defendant obtained a sum of money
by way of loan and never paid it. Here is defendant’s answer:
a.) “That is not true. I never borrowed any money from the
plaintiff.” That is a defense of denial.
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b.) “Assuming that I received money from the plaintiff, that
money was not a loan but plaintiff’s birthday gift to me.”
In other words, it was a donation.
c.) “Assuming that the money I received from the plaintiff
was really a loan. However, such amount was
completely paid.” Defense of payment.
So, I have 3 defenses. How can you reconcile these 3 defenses?
They are inconsistent with each other but it should not be taken
against the defendant. What is important is that each defense is
consistent in itself. Look at them separately. That is also called a
“SHOTGUN ANSWER”.
The rule allowing alternative defenses is consistent with the
omnibus motion rule which requires that all motions attacking a
pleading shall include all objections then available, and all
objections not so included shall be deemed waived (Sec. 8, Rule 15)
However, during that trial, you have to choose among them which
you think is true based on evidence. The problem is that you
choose one but it turned out that a different defense would be
correct. You cannot use that defense anymore. There is a prejudice
because during the trial, I will choose among them with the
evidence I have. I can abandon the others. And that is even
better because you might confuse the plaintiff of what really is
your defense. Thus, a lawyer should not be afraid to hypothetically
or alternatively plead defenses which are inconsistent with each
other.
That is perfectly allowed as it is alternative and during trial the
pleader may show the best one rather than not stating it in the
pleading and during the trial you waive the best defense because
according to the next rule, Rule 9, defenses or objections not
pleaded in the answer are deemed waived.
Take note that you have to correlate this topic on the related
provisions we have already taken up: For EXAMPLE:
1.) Rule 2, Section 5 – where a party may, in one pleading
state in the alternative or otherwise, as many causes of
action;
2.) Rule 3, Section 6 – on permissive joinder of parties.
When may 2 persons or more be joined as plaintiffs or
defendants and how are they joined? They are joined
jointly, severally, or alternatively; and
3.) Rule 3, Section 13 – on alternative defendants. When
you are uncertain who is the real defendant, you may
join them alternatively although the relief against one
may be inconsistent with the other.
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Remember these provisions because they are interrelated. Thus,
when you study the Rules, don’t limit yourself to a particular
provision. Look for other related provisions so you may see the
entire picture. That’s called co-relation – “You don’t only see the
tree but the entire forest.” This is very helpful in the bar exam.
HOW ALLEGATIONS IN A PLEADING ARE MADE
Q: How do you make allegations or averments in a pleading? Can
you do it in a general manner or do you need to be specific? How
do you allege your ultimate facts? Is it in particular or general
terms?
A: It depends on what matters you are alleging in your complaint –
whether it is a condition precedent, capacity to sue or be sued,
fraud, mistake, malice, judgment, or official document or act.
ALLEGATION OF A CONDITION PRECEDENT
Sec. 3. Conditions Precedent. - In any pleading, a general averment
of the performance or occurrence of all conditions precedent shall
be sufficient. (3)
Common usage refers to conditions precedent as matters which
must be complied with before a cause of action arises. When a
claim is subject to a condition precedent, the compliance of the
same must be alleged in the pleading.
Remember, that one of the elements of a right of action is that
before you can go to court, you must comply with all the conditions
precedent.
Q: When you allege compliance with the conditions precedent, is it
necessary for you to be specific what are those conditions
precedent?
A: NO. Section 3 says that in every pleading, a general averment for
the performance of all conditions precedent shall be sufficient. A
general allegation will suffice.
Examples of conditions precedent:
(a) A tender of payment is required before making a
consignation (Art. 1256 Civil Code);
(b) Exhaustion of administrative remedies is required in
certain cases before resorting to judicial action (Lopez
vs. City of Manila, 303 SCRA 448; Dy vs. CA 304 SCRA
331);
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(c) Prior resort to barangay conciliation proceedings is
necessary in certain cases (Book III, Title I, Chapter 7,
Local Government Code of 1991);
(d) Earnest efforts toward a compromise must be
undertaken when the suit is between members of the
same family and if no efforts were in fact made, the case
must be dismissed (Art. 151 Family Code);
(e) Arbitration may be a condition precedent when the
contract between the parties provides for arbitration
first before recourse to judicial remedies.
The failure to comply with a condition precedent is an independent
ground for a motion to dismiss: that a condition precedent for filing
the claim has not been complied with (Sec. 1[j], Rule 16)
A: According to Section 3, a general averment will be sufficient.
You need not specifically allege compliance of conditions
precedent. Therefore, an averment of the performance or
occurrence of all conditions precedent may be made generally and
it shall be sufficient.
ALLEGATION OF CAPACITY TO SUE OR BE SUED
Sec. 4. Capacity - Facts showing the capacity of a party to sue or to
be sued or the authority of a party to sue or to be sued in a
representative capacity or the legal existence of an organized
association of persons that is made a party, must be averred. A
party desiring to raise an issue as to the legal existence of any
party or the capacity of any party to sue or be sued in a
representative capacity, shall do so by specific denial, which shall
include such supporting particulars as are peculiarly within the
pleader's knowledge. (4)
When you file a case against somebody you must have capacity to
sue and defendant must have capacity to be sued.
Q: Is it necessary for me to say that plaintiff has capacity to sue?
And the defendant has capacity to be sued?
A: YES because Section 4 says you must show capacity to sue and
be sued. It means that capacity to sue and be sued must be averred
with particularity. A general statement of it is not sufficient. As a
matter of fact, that is the first paragraph of a complaint: “Plaintiff,
Juan dela Cruz, of legal age, single, a resident of Davao City…”
There is no presumption of capacity or incapacity to sue.
You may say, “I am suing as guardian of the plaintiff.” That is a
representative party – to sue and be sued in a representative
capacity. Can you say, “I am suing as a guardian?” NO. Neither can
you say, “I am appointed as the guardian.”
Q: How should it be done?
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A: “I am the court’s appointed guardian of the plaintiff minor
having been appointed guardian by the court in this case based on
an order.” You have to emphasize that the court appointed you.
Section 4 says, “the legal existence of an organized association of
persons that is made a party...” It means that the defendant is a
corporation existing by virtue of the Philippine Corporation Law.
There is no presumption that you are corporation. That is the
reason why facts showing capacity to sue and be sued, etc. must be
averred with particularity.
There’s a case which you will study in Corporation Law whether a
foreign corporation can sue in Philippine court. Under the law, it
can sue provided it is licensed to do business in the Philippines.
The SC emphasized that if a foreign corporation is suing somebody
in Philippine courts, the complaint must specifically allege that a
foreign corporation is doing business in the Philippines with a
license to do. Otherwise, it cannot sue.
“A party desiring to raise an issue as to the legal existence of any
party or the capacity of any party to sue or be sued in a
representative capacity, shall do so by specific denial, which shall
include such supporting particulars as are peculiarly within the
pleader's knowledge…” (section 4, 2nd sentence)
EXAMPLE: You are the plaintiff corporation with juridical capacity. I
am the defendant. Suppose I will deny your capacity to sue. I will
deny that you are a corporation licensed to do business in the
Philippines. Now, the law requires me to deny your legal capacity
and I must state the reason or basis of such denial – why you are
not of legal age, why you are not a corporation.
This is so because the law says that when you deny or when you
question the legal existence of a party or the capacity of any party
to sue and be sued, you shall do so by specific denial which shall
include such supporting particulars as are peculiarly within the
defendant’s knowledge. You cannot plead a general statement
that you deny. Your denial must be particular. You must be more
specific about what you are denying.
ALLEGATION OF FRAUD OR MISTAKE
Sec. 5. Fraud, mistake, condition of the mind.- In all averments of
fraud or mistake, the circumstances constituting fraud or mistake
must be stated with particularity. Malice, intent, knowledge or
other condition of the mind of a person may be averred generally.
(5a)
Fraud and mistake
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EXAMPLE: In annulment of a contract, fraud is one ground.
Suppose the consent was secured through fraud and plaintiff files a
case that the defendant employed fraud in obtaining his consent.
Q: Is this statement sufficient?
A: No, because the circumstances constituting fraud or mistake
must be stated with particularity. The complaint must state how
the fraud was committed. It must be described in detail how the
fraud took place.
Malice, Intent, knowledge or conditions of the mind
Q: In the second sentence, why is it that malice, intent, etc. may be
averred generally?
A: A general averment of malice or intent suffices because one
cannot describe or particularize what is in the mind of a party. I
cannot describe in detail the malice or the knowledge in your mind.
I can only say it in general terms. This is borne out of human
experience.
Fraud, on the other hand, is employed openly, by overt acts. How
you are deceived is not only in the mind. Those are manifested by
external acts. Therefore, one can describe how a fraud was
committed by the other party.
Sec. 6. Judgment. In pleading a judgment or decision of a domestic
or foreign court, judicial or quasi-judicial tribunal, or of a board or
officer, it is sufficient to aver the judgment or decision without
setting forth matter showing jurisdiction to render it. (6)
Sometimes a party invokes a judgment of a court or cite a previous
case like res adjudicata to dismiss a case.
Q: Suppose you will ask the court to dismiss the case because there
was already judgment rendered by the court years ago and you
simply say, “There was a previous judgment.” Is this sufficient?
A: YES because the law presumes that the judgment is valid. And
the presumption is that the court had jurisdiction. You do not have
to say that the court had jurisdiction over the subject matter,
issues, etc. when it tried the case years ago. So, it can be averred
generally.
Sec. 9. Official document or act. In pleading an official document
or official act, it is sufficient to aver that the document was issued
or the act done in compliance with law. (9)
One can just plead the existence of a document made by the
government. EXAMPLE: official letter of the President, or official
communication by a government agency. It is sufficient to aver that
the document was issued or an act done.
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SUMMARY:
Q: What averment or allegations in pleadings may be done
GENERALLY?
A: The following:
1.) Rule 8, Section 3– Conditions precedent;
2.) Rule 8, Section 5, 2nd sentence – Conditions of the mind;
3.) Rule 8, Section 6 – Judgment;
4.) Rule 8, Section 9 – Official document or act
Q: What averments must be done with PARTICULARITY?
A: The following:
1.) Rule 8, Section 4, first sentence – Capacity to sue and be
sued;
2.) Rule 8, Section 4, 2nd sentence – Legal existence of any
party to sue or be sued;
3.) Rule 8, Section 5, first sentence – Fraud or mistake
ACTIONABLE DOCUMENTS
Sec. 7. Action or defense based on document. Whenever an action
or defense is based upon a written instrument or document, the
substance of such instrument or document shall be set forth in
the pleading, and the original or a copy thereof shall be attached
to the pleading as an exhibit, which shall be deemed to be a part
of the pleading, or said copy may with like effect be set forth in
the pleading. (7)
Not every document that is needed in trial is actionable document.
Q: What is an actionable document?
A: An ACTIONABLE DOCUMENT is one which is the basis or the
foundation of the cause of action or defense and not merely an
evidence of the cause of action or defense. (Araneta, Inc. vs. Lyric
Film Exchange, 58 Phil. 736) It is the very heart and soul of your
cause of action or defense, not merely an evidence thereof.
So a promissory note to collect an unpaid loan is not only an
evidence of your cause of action but is it is the very cause of action
or foundation of your cause of action. On the other hand, when I
have a receipt, the receipt is not only evidence of your defense but
is the very foundation of your defense. If I would like to sue you to
annul a written contract, the contract to be rescinded or annulled is
the very cause of your action.
But in a collection case, if aside from promissory note I wrote you
several letters of demand to pay, such letters, while they are
relevant to the collection case, do not serve as the foundation of
your cause of action, although they are also important.
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Q: What is the purpose of the distinction between actionable and
non-actionable document?
A: If the document is not actionable, there is no need to follow
Section 7. If it is actionable, it must be pleaded in the manner
mentioned in Section 7. Also in Section 8, it is needed to know how
to contest the genuineness of the document.
Q: And how do you plead an actionable document under Section 7?
A: There are two (2) options:
1.) The substance of such instrument or document, shall be
set forth in the pleading and the original or a copy
thereof shall be attached as an exhibit; or
2.) The copy of the document may with like effect be
quoted in the pleading, in which case, there is no need to
attach the copy.
In the first one, there is no need to copy it. Just mention the
substance or features of the promissory note. In the second case,
the entire document must be quoted in the pleading.
EXAMPLE:
PROMISSORY NOTE:
December 31, 1997
For value received, I promise to pay “B” P1 million not later than
one year from date with 2 percent per annum.
Signed: “A”
Q: Using the above promissory note, how should the pleading be
worded?
A: Two ways of pleading of actionable document:
1.) The substance shall be set forth in the pleading and the
original or a copy thereof shall be attached to the
pleading as an exhibit, which shall be deemed as part of
the pleading. Party simply cites only important parts of
the document, then attached the document.
EXAMPLE:
COMPLAINT
1. Plaintiff B is xxx of legal age xxx; Defendant A is
xxxgayxxxx;
2. Sometime in December 31, 1997, defendant A secured
a loan from plaintiff B for a sum of P1 million payable
not later than December 31, 1998 with 2% interest per
annum. Copy of said Promissory Note hereto attached
as EXHIBIT A;
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3. The account is now overdue and despite demands of
defendant A still failed to pay B xxx.
So, the main features of the promissory note are recited in your
pleading – the date when the loan was secured, the amount, the
interest, etc. But still you have to attach a copy of the promissory
note, either xerox copy or the original.
2.) Said copy may with like effect be set forth in the
pleading. Document is quoted verbatim.
EXAMPLE:
COMPLAINT
1. Plaintiff B is xxx of legal age xxx; Defendant A
is xxxxxxx;
2. On Dec. 31, 1997 def. A secured a loan from
plaintiff B which is covered by a promissory
note worded as follows:
PROMISSORY NOTE:
December 31, 1997
For value received, I promise to pay “B” P1 million not later than
one year from date with 2 percent per annum.
Signed: “A”
3. The account is now overdue and despite
demands of defendant A still failed to pay B
xxx.
So, you copy the entire promissory note verbatim. There is no need
to attach a copy of the promissory note. That is the second way.
Q: Suppose in the first way, the promissory note was not attached.
What will happen?
A: The party violates Rule 8, Section 7. The adverse party may move
to dismiss the complaint for violation of the rules, if such document
could not be secured.
If an actionable document is properly pleaded in your pleading in
the manner mentioned in Section 7, the adverse party is now
obliged to follow Section 8 if he wants to contest such document.
Sec. 8. How to contest such documents. When an action or defense
is founded upon a written instrument, copied in or attached to
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the corresponding pleading as provided in the preceding section,
the genuineness and due execution of the instrument shall be
deemed admitted unless the adverse party, under oath,
specifically denies them, and sets forth what he claims to be the
facts; but the requirement of an oath does not apply when the
adverse party does not appear to be a party to the instrument or
when compliance with an order for an inspection of the original
instrument is refused. (8a)
Q: Does every pleading have to be under oath?
A: GENERAL RULE: NO.
EXCEPTION: Except when the law requires it. Example: Section 8,
Rule 8.
EXAMPLE: If the plaintiff sues you based on a promissory note
which is properly pleaded under Section 7 and you would like to
contest the genuineness and due execution of the note like when
the figure was altered to P20,000 instead of P1,000 only, so there
is falsification, then you must deny the genuiness and due
execution in your answer specifically and most importantly your
answer must be VERIFIED AND UNDER OATH.
To contest:
(a) You must specifically deny the genuineness and due
execution of the document under oath; and
(b) You set forth what you claim to be the facts.
If the denial is not verified and under oath, the genuineness and
due execution of the promissory note is deemed admitted.
Q: When you say “you have admitted the genuiness and due
execution of the document,” what are the specific facts that you
have deemed admitted?
A: The answer is found in the landmark case of HIBBERD vs. RHODE
(32 Phil. 476):
1.) The party whose signature it bears signed it;
2.) If signed by another, it was signed for him and with his
authority;
Q: Pretty Maya told Papa Paul that her housemate Sexy Regina
wanted to borrow money from him. Paul agreed. Maya signed the
promissory note: “Regina as principal, signed by Maya.” But
actually, Regina never ordered Maya to use her (Regina’s) name.
When the note fell due without payment, Paul sued Regina. Regina
denied agency but failed to verify her answer. What is the effect?
A: Pretty Maya becomes agent of Sexy Regina. So, the defense of
unauthorized signature is automatically out.
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3.) At the time it was signed, it was in words and figures
exactly as set out in the pleading of the party relying
upon it;
Q: Mr. Quiachon sued Mr. Tiamzon to collect a loan of P50,000 on a
promissory note. Mr. Tiamzon admitted liability but only to the
amount of P5,000. Mr. Tiamzon used falsification as a defense but
his answer was not verified. What is the effect?
A: Mr. Tiamzon admits the genuiness of the promissory note – that
it was really P50,000.
4.) The document was delivered; and
5.) The formal requisites of law, such as seal,
acknowledgement (notarization) or revenue stamp
which it lacks, are waived by it.
The SC said in HIBBERD that if you admit the genuineness and due
execution of the actionable document, defenses which are
inconsistent with genuineness and due execution are deemed
automatically waived. Meaning, any defense which denies the
genuineness or due execution of the document is deemed
automatically waived.
Q: What are the defenses which are no longer allowed once you
admit the genuineness and due execution of the actionable
document?
A: The following:
1.) The signature appearing in the document is a forgery;
2.) In case it was signed by an agent in behalf of the
corporation or partnership, or a principal, the signature
was unauthorized;
3.) The corporation was not authorized under its charter to
sign the instrument;
4.) The party charged signed it in some other capacity than
that alleged in the pleading; and
5.) It was never delivered. (Hibberd vs. Rhode, supra)
6.) The document was not in words and figures as set out in
the pleadings (Imperial Textile Mills vs. CA 183 SCRA 584)
Q: Does it mean to say that when you admit impliedly the
genuineness and due execution of the actionable document, you
have no more defense?
A: NO. What are no longer available are defenses which are
inconsistent with your own admission of the genuineness and due
execution of the actionable document like forgery, because you
cannot admit that the document is genuine and at the same time
allege that it is forged. According to the SC in HIBBERD, you may
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still invoke defenses provided the defenses are NOT inconsistent
with your admission of the authenticity of the document.
Q: What defenses may be interposed notwithstanding admission of
genuiness and due execution of an actionable document as
aforesaid?
A: In the case of HIBBERD, the following:
1.) payment;
2.) want or illegality of consideration;
3.) fraud;
4.) mistake;
5.) compromise;
6.) statute of limitation;
7.) estoppel;
8.) duress;
9.) minority; and
10.) imbecility
11.) usury
12.) statute of frauds
13.) prescription
14.) release
15.) waiver
16.) former discharge in bankruptcy
Q: May the benefit of the admission of genuineness and due
execution of an actionable document be waived? If so, in what
instances?
A: YES. In the following cases, the implied admission is deemed
waived:
1.) Where the pleader presented witnesses to prove
genuiness and due execution and the adversary proved,
without objection, the contrary. (Yu Chuck vs. Kong Li Po,
46 Phil. 608);
2.) Where the pleader fails to object to evidence
controverting the due execution. (Legarda Koh vs.
Ongsiaco, 36 Phil. 185)
In other words, the lawyer of the defendant does not remember
Section 8 and therefore the denial is improper. But the lawyer of
the plaintiff did not also remember Section 8 that when there was
evidence of forgery, he failed to object. So, the incompetence of
the both lawyers cancel each other. That is what happens if the
lawyer does not know.
WHEN DENIAL NOT UNDER OATH STILL VALID
Q: When may a simple denial suffice? Meaning, what are the
instances where the denial of the genuineness of the document,
though not under oath, is valid?
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A: Section 8 says, the requirement of an oath does not apply:
1.) When the adverse party does not appear to be a party to
the instrument;
EXAMPLE: Ms. Guadalope filed a case against Ms. Castillo based on
a contract entered by them. But before Ms. Guadalope filed the
case, Ms. Castillo died. So Ms. Guadalope filed against the heirs.
The heirs realized that the signature of Ms. Castillo in contract as
forged. Even if the answer of the heirs is not under oath, they can
still prove forgery because they are not party to the instrument.
2.) When compliance with an order for an inspection of the
original instrument is refused;
3.) When the document to be denied is not classified as an
actionable document but merely an evidentiary matter.
This is because when the document if not actionable,
there is no need to follow Section 7.
REPLY; GENERAL RULE: OPTIONAL; EXCEPTION: SECTION 8
Normally, the person who is presenting the actionable document is
the plaintiff.
PROBLEM: But suppose it is the defendant who is invoking an
actionable document for his defense. He claims to have paid the
loan and have attached a copy of the RECEIPT to his answer. The
plaintiff looks at the document and realizes that his signature in the
receipt is forged.
Q: What should the plaintiff do?
A: Based on Section 8, the plaintiff must deny the genuineness of
the receipt specifically under oath
Q: In what pleading should the plaintiff file where he will deny
under oath the genuiness and due execution of the receipt?
A: Plaintiff should file a REPLY and it must be under oath. If he will
not file a reply, the receipt is impliedly admitted to be genuine.
Q: But the plaintiff may argue that under Rule 6, Section 10 the
filing of a reply is optional. How do we reconcile it with Section 8?
A: Rule 6 is the general rule. Section 8 should prevail over Rule 6
because the former is a specific provision that applies only to
actionable document. It has been asked in the Bar:
Q: When is the filing of the reply compulsory?
A: When the defendant anchors his defense on an actionable
document and plaintiff will deny the genuineness and due
execution of such document.
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SPECIFIC DENIAL
We will relate Section 10 with Section 5 of Rule 6:
Sec. 5. Defenses. - Defenses may either be negative or affirmative.
a. A negative defense is the specific denial of the material
fact or facts alleged in the pleading of the claimant essential to his
cause or causes of action.
xxx
In an answer, defenses may either be negative or affirmative.
Q: Define negative defense.
A: Briefly, it is a defense of SPECIFIC DENIAL where the defendant
denies the statement in the complaint by stating the facts and the
reason/s on which his denial is based.
Q: How is a specific denial done?
A: Rule 8, Section 10:
Sec. 10. Specific denial. A defendant must specify each material
allegation of fact the truth of which he does not admit and,
whenever practicable, shall set forth the substance of the matters
upon which he relies to support his denial. Where a defendant
desires to deny only a part of an averment, he shall specify so
much of it as is true and material and shall deny only the
remainder. Where a defendant is without knowledge or
information sufficient to form a belief as to the truth of a material
averment made in the complaint, he shall so state, and this shall
have the effect of a denial. (10a)
Purpose of specific denial
The purpose is to make the defendant disclose the matters
alleged in the complaint which he succinctly intends to disprove
at the trial, together with the matter which he relied upon to
support the denial. The parties are compelled to lay their cards on
the table (Aquintey vs. Tibong, GR No. 166704, December 20,
2006)
Q: So what are the modes of specific denial?
A: Under Section 10, there are three (3) MODES OF SPECIFIC
DENIAL:
FIRST MODE: A defendant must specify each material allegation
of fact the truth of which he does not admit and, whenever
practicable, shall set forth the substance of the matters upon
which he relies to support his denial
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Meaning, you deny the allegation in the complaint but you must
state the basis of your denial – that it is not true because this is
what is true. So you state your own side, your own version. The
purpose there is to lay your cards on the table to make it fair to the
other side.
Q: What happens if a denial violates this first mode? Meaning, the
pleader did not set forth the substance of the matters relied upon
to support his denial.
A: That is known as GENERAL DENIAL and it will have the effect of
automatically admitting the allegations in the complaint.
Q: Suppose the pleader will say, “Defendant specifically denies the
allegations in paragraph 2,4,7…” without any further support for
the denial. Is the denial specific?
A: NO. A denial does not become specific simply because he used
the word ‘specific.’ (Cortes vs. Co Bun Kim, 90 Phil. 167) What
makes a denial specific is compliance with Section 10.
SECOND MODE: Where a defendant desires to deny only a part of
an averment, he shall specify so much of it as is true and material
and shall deny only the remainder.
Sometimes an allegation may consist of 2 or more parts. Therefore
the answer may admit part 1 but part 2 is denied. Or, the substance
of the allegation is actually admitted by the qualification there is
denied.
EXAMPLE: Plaintiff alleges that the “Defendant is in possession of
the property under litigation in bad faith.” Now, the defendant may
admit that the property is in his possession but he denies the
qualification in bad faith – possession is not in bad faith. Based on
that, the defendant should say, “Defendant admits that portion of
paragraph no. 2 that he is in possession of the property in question;
but denies that he is a possessor in bad faith” or something to that
effect.
THIRD MODE: Where a defendant is without knowledge or
information sufficient to form a belief as to the truth of a material
averment made in the complaint, he shall so state, and this shall
have the effect of a denial
Meaning, I am not in a position to admit or to deny because I have
no knowledge. How can I admit or deny something which I do not
know?
EXAMPLE: Plaintiff claims for moral damages because Defendant
destroyed his reputation. Defendant does not know that Plaintiff
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had sleepless nights, wounded feelings, serious anxiety, etc. Here,
Defendant cannot admit or deny those.
I have read pleadings where the pleader would say, “Defendant has
no knowledge or information sufficient to form a belief as to the
truth of the allegation in paragraphs 6, 7, 8, 9… of the complaint
and therefore he denies the same.” Actually, there is something
wrong there. How can you deny something that you have no
knowledge of. Just state, “I have no knowledge.” Then period! And
is has the automatic effect of a denial.
However, the SC warned that he third mode of denial should be
done in good faith. If the fact alleged is such that it is within your
knowledge, it is impossible that it is not within your knowledge,
you cannot avail of the third mode of denial. Otherwise, if you will
avail of the third mode in bad faith, your denial will be treated as
an admission. That is what happened in CAPITOL MOTORS vs.
YABUT (32 SCRA 1).
Equitable Cardnetwork, Inc. v. Capistrano, G.R. No. 180157,
February 8, 2012
- Answer with allegations of no knowledge is as a rule, not
acceptable as specific denial.
EXCEPTION: unless done in good faith.
- however, if it is coupled with assertion that the
defendant was denying the allegations regarding those
actionable documents, stating that she never applied for
membership with the card company, these reasons
cannot be ignored and they form part of the answer.
In CAPITOL MOTORS, suppose I file a case against you, “Defendant
borrowed money from plaintiff in the sum of P10,000 payable one
year from said date.” And then you say, “I have no knowledge or
information…” There is something wrong there. What you are
trying to say there is “I do not know whether I borrowed money
from you or not.”
How can that be? It is either you borrowed money or you did not!
That is why the SC said in CAPITOL MOTORS, if you borrowed
money, you say so. And if you did not, deny it. And then I will allege
there, “The defendant have made partial payments.” Then you will
say, “I have no knowledge.” My golly! You do not even know
whether you paid me? In other words, talagang evasive bah! You
are trying to be clever and evasive. And if you do that, all your
denials will be treated as admissions. That is the warning in the
third mode.
Negative Pregnant
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A negative pregnant does not qualify as a specific denial. It is
conceded to be actually an admission.
In a pleading, it is a negative implying also an affirmative and which
although is stated in a negative form really admits the allegations
to which it relates.
Example:
A complaint alleges:
“Plaintiff extended a loan to Defendant in the amount of
P500,000.00 on July 27, 2006 in Cebu City.”
The defendant in his Answer states:
“Defendant specifically denies that Plaintiff extended a loan to
Defendant in the amount of P500,000.00 on July 27, 2006 in Cebu
City.”
The answer is a mere repetition of the allegations made in the
complaint. The answer is vague as to what it really denies. Is it the
existence of the loan that is denied? Is it the amount? The date?
The place?
The effect of this kind of denial is an admission.
When a specific denial must be coupled with an oath:
(a) A denial of an actionable document (Sec. 8); and
(b) A denial of allegations of usury in a complaint to recover
usurious interest (Sec. 11)
The allegations of usury which requires a specific denial under oath
are:
(a) Allegations of usury in a complaint (not allegations of
usury in the answer), and
(b) The complaint is filed to recover usurious interests (Sec.
11, R 8)
Matters not deemed admitted by the failure to make a specific
denial:
(a) The amount of unliquidated damages (Sec.11);
(b) Conclusions in a pleading which do not have to be
denied at all because only ultimate facts need be
alleged in a pleading (Sec. 1 R 8);
(c) Non-material averments or allegations are not
deemed admitted because only material allegations
have to be denied. (Sec. 11)
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Sec. 11. Allegations not specifically denied deemed admitted.
Material averment in the complaint, other than those as to the
amount of unliquidated damages, shall be deemed admitted
when not specifically denied. Allegations of usury in a complaint
to recover usurious interest are deemed admitted if not denied
under oath. (1a, R9)
While the law says ‘material averment in the complaint,” this rule
extends to counterclaims, cross-claims and third-party complaints.
(Valdez vs. Paras, L-11474, May 13, 1959)
The reason for the rule on specific denial is that, if there is a
material averment in the complaint and was not specifically denied,
it is deemed admitted. However under Section 11, there are
averments in the complaint which are not deemed admitted even
when not specifically denied.
GENERAL RULE: Material averment in a complaint shall be deemed
admitted when not specifically denied.
EXCEPTION: Instances when averments in the complaint are not
deemed admitted even when not specifically denied:
1.) Amount of unliquidated damages;
2.) Immaterial averments (Worcester vs. Lorenzana, 56 O.G.
7932, Dec. 26, 1960)
3.) Evidentiary matters; because a party is only obliged to
aver ultimate facts; (Agaton vs. Perez, L-19548, Dec. 22,
1966)
4.) Conclusions of facts or law.
Let’s discuss the first exception – AMOUNT OF UNLIQUIDATED
DAMAGES is not deemed admitted even if not specifically denied.
So if the damages are liquidated, they are deemed admitted.
Examples of unliquidated damages are moral and exemplary
damages. Or expenses which I incurred in the hospital. Those are
unliquidated damages. They are always subject to evidence. You
have to prove how much amount you are entitled to. That is why
they are not deemed admitted even if not specifically denied.
So if you are claiming P1 million damages for sleepless nights or
besmirched reputation, and I did not specifically denied such claim,
it does not mean that you are automatically entitled to P1 million.
Hindi yan puwede. You have to present evidence that you are really
entitled to P1 million. Yaan!
On the other hand, an example of liquidated damages is an
obligation with a penal clause. For example in our contract, it is
stipulated that in case you cannot comply with your obligation, you
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will pay me P1 million. So if you failed to specifically deny it, then
you are deemed to have admitted that I am entitled to P1 million.
There is no need for computation because the amount is already in
the contract beforehand. The contract itself would show how much
I am entitled.
Section 11 also says, “Allegations of usury in a complaint to recover
usurious interest are deemed admitted if not denied under oath.”
Usury means you charge interest above the legal interest provided
by the usury law. If you want to deny my charge of usury, your
answer must be under oath. So, this is the second instance where
a denial should be verified.
NOW, I wonder why this provision is here when as early as 1983 in
the case of LIAM LAW vs. OLYMPIC SAW MILL (129 SCRA 439), that
usury is no longer existing and the SC stated in that case that the
provision of the Rules of Court in usury are deemed erased or
superseded. Obviously, the SC forgot what it said in the 1983.
(Ulyanin!!)
Sec. 12. Striking out of pleading or matter contained therein. Upon
motion made by a party before responding to a pleading or, if no
responsive pleading is permitted by these Rules, upon motion
made by a party within twenty (20) days after the service of the
pleading upon him, or upon the court's own initiative at any time,
the court may order any pleading to be stricken out or that any
sham or false, redundant, immaterial, impertinent, or scandalous
matter be stricken out therefrom. (5, R9)
Before answering, the defendant can file a motion to strike out a
pleading or a portion of a pleading. Striking a pleading means that
the pleading will be deemed erased as if it was never filed. Or if a
portion of the pleading be ordered stricken out or expunged where
a pleading or a portion thereof is sham or false, redundant,
immaterial, impertinent, or a scandalous matter is inserted in the
pleading, is deemed erased. This is related to Rule 7, Section 3,
third paragraph:
RULE 7, Sec. 3. Signature and address. x x x x
An unsigned pleading produces no legal effect. However, the
court may, in its discretion, allow such deficiency to be remedied
if it shall appear that the same was due to mere inadvertence and
not intended for delay. Counsel who deliberately files an
unsigned pleading, or signs a pleading in violation of this Rule, or
alleges scandalous or indecent matter therein, or fails to promptly
report to the court a change of his address, shall be subject to
appropriate disciplinary action.
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So, if your pleading contains scandalous or indecent matters, the
lawyer who files it may be subjected to appropriate disciplinary
actions.
Q: What if it is the reply is the one which contains scandalous
matter?
A: A motion to strike may still be filed by the defendant within 20
days after the reply.
Rule 9
EFFECT OF FAILURE TO PLEAD
Section 1. Defenses and objections not pleaded. Defenses and
objections not pleaded either in a motion to dismiss or in the
answer are deemed waived. However, when it appears from the
pleadings or the evidence on record that the court has no
jurisdiction over the subject matter, that there is another action
pending between the same parties for the same cause, or that the
action is barred by a prior judgment or by statute of limitations,
the court shall dismiss the claim. (2a)
GENERAL RULE: Defenses or objections not pleaded in a motion to
dismiss or on answer are deemed waived. If you do not plead your
defense, the same is deemed waived. The court has no jurisdiction
over the issues.
EXAMPLE: In a collection case against you, you did not raise the
defense of payment in your answer. But during the trial, you
attempted to prove that the loan has already been paid, that
cannot be done because the defense of payment is deemed waived
because you did not raise it in your answer. In other words, the
court never acquired jurisdiction over the issue.
So, there is no such thing as a surprise defense because the
defense must be pleaded. If you want to surprise the plaintiff
during the trial by not raising your defense in your answer, you will
be the one who will be surprised because the court will not allow
you. When the parties go to court, the plaintiff already knows
what are the defenses. They are already in the answer.
EXCEPTIONS:
Q: What defenses or objections can be taken cognizance of by the
court despite the fact that they are not raised in the motion to
dismiss or answer?
A: Under Section 1, Rule 9, the following:
1.) That the court has no jurisdiction over the subject
matter;
2.) That there is another action pending between the same
parties for the same cause (litis pendentia);
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3.) That the action is barred by prior judgment (res
adjudicata); and
4.) That the action is barred by statute of limitation
(prescription).
Take note that the exceptions can be raised at any time during or
after the trial, or even for the first time on appeal. In other words,
the court shall dismiss the claim if any of the foregoing grounds
appears from the pleadings or the evidence on record.
These defenses may be raised at any stage of the proceedings even
for the first time on appeal EXCEPT that lack of jurisdiction over the
subject matter may be barred by laches (Tijam vs. Sibonghanoy GR
No. L-21450, April 15, 1968).
Now, the traditional rule to remember notwithstanding the
SIBONGHANOY Doctrine, is that, when there is a defect in the
jurisdiction of the court over the subject matter, the defect can be
raised at any stage of the proceeding even for the first time on
appeal (Roxas vs. Raferty, 37 Phil. 957). This is because everything
is null and void. Jurisdiction over the subject matter cannot be
conferred by agreement between the parties, by WAIVER, by
silence of the defendant.
LITIS PENDENTIA. You file a another case while another action is
pending between the same parties for the same cause. That is
actually splitting a cause of action because there is already an
action and then you file another action. The action can be
dismissed on the ground that there is a pending action.
A pending action to annul a mortgage is not a bar to an action for
foreclosure of the same mortgage for the reason that, although the
parties are or may be the same, the rights asserted and the relief
prayed for in the two actions are dissimilar.
A plea of the pendency of a prior action (lit is pendencia) is not
available unless the prior action is of such a character that, had a
judgment been rendered therein on the merits, such a judgment
would be conclusive between the parties and could be pleaded in
bar of the second action. The rule is applicable, between the same
parties, only when the judgment to be rendered in the action first
instituted will be such that, regardless of what party is successful, it
will amount to res judicator against the second action (Hongkong
Shanghai Bank v. Aldecoa and Co., GR No. 8437, March 23, 1915).
RES ADJUDICATA. There was already a prior final judgment then
you file another case regarding the same issue. That is also splitting
a cause of action.
PRESCRIPTION is not found in the old rule but is taken from decided
cases. Among which are the cases of
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PNB vs. PEREZ (16 SCRA 279)
PEPSI COLA vs. GUANZON (172 SCRA 571)
HELD: “The rule on waiver of defenses by failure to plead in the
answer or in a motion to dismiss does not apply when the plaintiff’s
own allegations in the complaint show clearly that the action has
prescribed in such a case the court may motu propio dismiss the
case on the ground of prescription.”
Q: Can the court dismiss the action based on any of these grounds
without the filing of a motion to dismiss?
A: YES. It would seem so because the second sentence says, “When
it appears from the pleadings or the evidence on record … the
court shall dismiss the claim.” (This is an important change)
Under the 1964 Rules, one of the grounds that you can raise at any
stage of the proceeding before judgment is failure to state a cause
of action, but it disappears under the new rules. Does it mean to
say that you cannot raise it anymore? NO. It can still be raised
because it can be taken care of by another rule – Rule 33 on
Demurrer.
Sec. 2. Compulsory counterclaim, or cross-claim, not set up barred.
A compulsory counterclaim, or a cross-claim, not set up shall be
barred. (4a)
See discussions on Rule 6, Sections 7 and 8 on counterclaim and
cross-claims, respectively.
RULE ON DEFAULT
Sec. 3. Default; declaration of. If the defending party fails to
answer within the time allowed therefor, the court shall, upon
motion of the claiming party with notice to the defending party,
and proof of such failure, declare the defending party in default.
Thereupon, the court shall proceed to render judgment granting
the claimant such relief as his pleading may warrant, unless the
court in its discretion requires the claimant to submit evidence.
Such reception of evidence may be delegated to the clerk of
court. (1a, R18)
xxxxxx
A defending party is declared in DEFAULT if he fails to answer the
complaint within the time allowed therefor. The rule on answer is
found in Rule 11. And under Rule 11 as a rule, you have 15 days to
file an answer counted from the time you are furnished a copy of
the complaint together with the summons
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It is the failure of the defendant to answer within the proper
period, not his failure to appear nor failure to present evidence
which is the basis of a declaration of default.
It does not occur from the failure of the defendant to attend either
the pre-trial or the trial.
If the period to answer lapsed and there is no answer, the plaintiff
will move to declare the defendant in default on the ground of
failure to file an answer to the complaint. So, the court will issue
an order of default declaring you as a defaulted defendant.
The defendant’s non-appearance in the hearing and the failure to
adduce evidence does not constitute default when an answer has
been filed within the reglementary period. The failure of the
defendant to attend the hearings for the presentation of the
evidence of the adverse party amounts not to a default, but to a
waiver of the defendant’s right to object to the evidence presented
during the hearing and to cross-examine the witnesses presented.
However, it would not amount to a waiver of the defendant’s right
to present evidence during the trial dates scheduled for the
reception of evidence for the defense. It is error for the court to
issue an order not denominated as an order of default but provides
for the application of the effects of default as when the defendant
who has filed an answer is not allowed to present evidence
because of her absence during the presentation of evidence by the
plaintiff (Monzon Spouses Relova vs. Addio Properties, Inc. GR
1712827, September 17, 2008)
Requisites before a party may be declared in default:
1. The Court must have acquired jurisdiction over the
person of the defendant thru a valid service of summons
or voluntary appearance;
2. The defending party must have failed to file his answer
within the reglementary period or within the period
fixed by the court;
3. there must be a motion to declare the defendant in
default;
4. The defending party must be notified of the motion to
declare him in default (Sec. 3 R 9)
5. There must be a hearing of the motion to declare the
defendant in default; and
6. There must be proof of such failure to answer.
Where no defaults are allowed:
1. Annulment of marriage;
2. Declaration of nullity of marriage;
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3. Legal Separation;
4. Special Civil Actions of certiorari, prohibition and mandamus
where comment instead of an answer is required to be filed; and
5. Summary Procedure.
The required hearing is mandated by Sec. 4 of Rule 15 which states:
“Sec. 4. Hearing of motion – Except for motions which the court
may act upon without prejudicing the rights of the adverse party,
every written motion shall be set for hearing by the applicant.”
Failure to file an answer under the Rule on Summary Procedure
Under this rule, the defendant is not supposed to be declared in
default. Instead the court motu proprio, or on motion of the
plaintiff, shall render judgment (not to declare the defendant in
default) as may be warranted by the facts alleged in the complaint
and limited to what is prayed for (Sec. 6, II, 1991Rule on Summary
Procedure). This represents a principal distinction between default
in regular civil proceedings and the rule on summary procedure.
Also, under the Rule on Summary Procedure, the plaintiff is
prohibited from filing a motion to declare the defendant in default
(Sec. 19[h], 1991 Rule on Summary Procedure). This is another
significant departure from the regular rule.
Effect of a declaration/order of default
1. The party declared in default loses his standing in court.
The loss of such standing prevents him from taking part
in the trial (Sec. 3[a], Rule 9);
2. While the defendant can no longer take part in the trial,
he is nevertheless entitled to notices of subsequent
proceedings (Sec. 3[a], Rule 9)/. It is submitted that he
may participate in the trial, not as a party but as a
witness (Riano).
3. A declaration of default is not an admission of the truth
or the validity of the plaintiff’s claims (Monarch
Insurance vs. CA 333 SCRA 7 [2000]; Vlason Enterprises
Corp. vs. CA 310 SCRA 26).
Take note that the word ‘defending’ party applies not only to the
original defendant but even to the cross-defendant or defendant in
a counterclaim.
Action of the court after the declaration/order of default
It can do either of the following:
1. To proceed to render judgment, or
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2. To require the plaintiff to present his evidence ex parte.
Now, “with NOTICE to the defending party” is a new one. You must
furnish a copy to the defending party of your motion to order the
defendant in default which abrogates previous rulings.
Q: Suppose the defendant filed an answer but during the trial, he
failed to appear. May he be declared in default?
A: NO, because the ground for default is failure to file an answer.
The correct procedure is for the trial to proceed without him. (Go
Changjo vs. Roldan Sy-Changjo, 18 Phil. 405) That is what you call
EX-PARTE reception of evidence. Only one side will be heard.
Default is not an admission of the allegations in the complaint.
There was an action for reconveyance alleging that with
the use of fraud, there was acquisition of title over a property. The
defendants did not file an answer hence; an order of default was
issued. But the plaintiffs failed to prove the fraudulent act. It was
contented that the failure to answer is equivalent to an implied
admission of the allegations in the complaint. Is the contention
correct? Why?
Being in default, does not imply a waiver of rights,
except that of being heard and of presenting evidence in his
favor. It does not imply admission by the defendant of the facts
and causes of action of the plaintiff, because the codal section
requires the latter to adduce his evidence in support of his
allegations as an indispensable condition before final judgment
could be given in his favor. Nor could it be interpreted as an
admission by the defendant that the plaintiff’s causes of action
finds support in the law, or that the latter is entitled to the relief
prayed for. (Heirs of Pedro de Guzman v. Angelina Perona, et al.,
G.R. No. 152266, July 2,2010, citing Luxuria Homes, Inc. v. CA, G.R.
No. 125986, January 28, 1999, 302 SCRA 315; Delos Santos v. Dela
Cruz, 37 SCRA 55 (1971)).
Plaintiff is not automatically entitled to the relief
prayed for, once the defendants are declared in default.
Favorable relief can be granted only after the court has
ascertained that the relief is warranted by the evidence offered
and the facts proven by the presenting party. Otherwise, it would
be meaningless to require presentation of evidence if every time
the other party is declared in default, a decision would
automatically be rendered in favor of the non-defaulting party
and exactly according to the tenor of his prayer. This is not
contemplated by the Rules nor is it sanctioned by the due process
clause. (Heirs of Pedro de Guzman v. Angelina Perona, et al., G.R.
No. 152266, July 2, 2010, citing Pascua v. Florendo, 220 Phil. 588;
Gajudo v. Traders Royal Bank, 485 SCRA 108 (2005)).
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BAR QUESTION: If the defendant is declared in default for failure to
file an answer is he deemed to have admitted the allegations in the
complaint to be true and correct?
A: YES, because the law NOW says, “the court shall proceed to
render judgment granting such claimant such relief as his pleading
may warrant.” The reception of plaintiff’s evidence is already
dispensed with. That is the GENERAL RULE. That is the same as the
summary rules and judgment on the pleadings and the court can
grant the relief without presentation of evidence.
HOWEVER under Section 3, it is discretionary upon the court to
require the claimant to submit evidence. EX-PARTE RECEPTION of
evidence is OPTIONAL for the court. And such reception of
evidence may be delegated to the clerk of court. This is related to
Section 9, Rule 30:
Rule 30, Sec. 9. Judge to receive evidence; delegation to clerk of
court. The judge of the court where the case is pending shall
personally receive the evidence to be adduced by the parties.
However, in default or ex parte hearings, and in any case where
the parties agree in writing, the court may delegate the reception
of evidence to its clerk of court who is a member of the bar. The
clerk of court shall have no power to rule on objections to any
question or to the admission of exhibits, which objections shall be
resolved by the court upon submission of his report and the
transcripts within ten (10) days from termination of the hearing.
(n)
The reception of evidence maybe delegated to the clerk of court
but the clerk of court must be a lawyer, that is the condition. So if
he is not a member of the bar, he is not authorized to conduct or
hear an ex-parte reception of evidence.
SUMMARY: Steps when the defendant fails to file an answer within
the time allowed:
1.) Motion to declare defendant in default;
2.) Declaration or Order of default; and
3.) Rendition of Judgment by Default or judgment based
on the complaint of the plaintiff UNLESS court requires
the claimant to submit evidence (ex-parte presentation
of plaintiff’s evidence)
However, when should the court dispense with the ex-parte
presentation of evidence and when should it require the claimant
to submit evidence being discretionary?
According to Inigo, in cases which are simple, presentation of
evidence ex-parte can be dispensed with like collection cases.
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But in controversial cases, like recovery of a piece of land the judge
ought not automatically decide in your favor simply because of
failure to answer by the defendant. The judge may still want to
hear plaintiff’s evidence.
Q: If a defendant files an answer but did not furnish a copy of the
answer to the plaintiff, can the plaintiff move to declare the
defendant in default?
A: YES, because the answer is deemed to have not been legally
filed. It was not in accordance with the Rules of Court. (Gonzales vs.
Francisco, 49 Phil. 47) So the defendant must furnish the plaintiff a
copy of the answer because in the case of
RAMIREZ vs. COURT OF APPEALS
187 SCRA 153
HELD: “The failure to furnish a copy of the answer to the adverse
party in itself is sufficient or valid basis for defendant’s default.”
Effect of pendency of a Motion to Dismiss or for Bill of Particulars
Q: May a defendant be declared in default while a motion to
dismiss (Rule 16) or a motion for bill of particulars (Rule 12)
remains pending and undisposed of?
A: NO, because under the filing of a motion to dismiss or motion for
bill of particulars interrupts the running of the period to answer. It
will run again from the moment he receives the order denying his
motion to dismiss or for bill of particulars. (Hernandez vs. Clapis, 87
Phil. 437)
But said motions must follow the requirements otherwise they will
be treated as mere scraps of paper and will not toll the running of
the period to answer.
In the case of
DEL CASTILLO vs. AGUINALDO
212 SCRA 169 [1992]
FACTS: The defendant filed a motion to dismiss under Rule 16 but
his motion to dismiss did not contain notice of time and place of
hearing and the motion was denied. Can he file an answer after
filing the motion to dismiss?
HELD: NO. He can be ordered in default. The motion is a useless
piece of paper with no legal effect.
“Any motion that does not comply with Rule 16 should not be
accepted
for filing and if filed, is not entitled to judicial cognizance and does
not affect any reglementary period. Not having complied with the
rules, the motion to dismiss filed by the defendant did not stay the
running of the reglementary period to file an answer.”
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GOLDEN COUNTRY FARM, INC. vs. SANVAR DEV’T CORP.
214 SCRA 295 [1992]
FACTS: Because of the filing of the motion to dismiss is 15 days, the
defendant filed a motion to dismiss on the 8th day. It was denied.
So there is still 7 days to file an answer. On the 15th day, instead of
filing an answer, he filed a motion for reconsideration but such
motion was also denied. Can he still file an answer?
HELD: NO MORE. The filing of the motion to dismiss interrupted the
period to file an answer. When you receive an order, you still have
the balance to file your answer. And you did not file an answer
instead, you file a motion for reconsideration. You took the risk. So
defendant’s motion for reconsideration which merely reiterated his
ground in the motion to dismiss did not stay the running of the
period to file an answer.
Answer filed out of time may be admitted
Where there is no declaration of default, answer may be admitted
even if filed out of time. Where answer has been filed, there can be
no declaration of default anymore. (Guillerma S. Sablas vs. Esterlita
S. Sablas and Rodulfo Sablas, GR No. 144568, July 3, 2007)
(a) Effect of order of default. - A party in default shall be entitled
to notice of subsequent proceedings but not to take part in the
trial. (2a, R18)
So if you are declared in default, you cannot take part in the trial.
You lose your standing in court, you cannot cross-examine the
witness of the plaintiff assuming there is a reception of evidence.
You cannot object to his evidence. You cannot even present your
own evidence when you are in default.
Right of a party in default
He is entitled to notice of:
1. Motion to declare him in default;
2. Order declaring him in default;
3. Subsequent proceedings; and
4. Service of final orders and judgments.
Note: A defendant declared in default cannot take part in the trial,
but he cannot be disqualified from testifying as a witness in favor
of non-defaulting defendants (Cavile vs. Florendo GR No. 73039,
Oct. 9, 1987)
If the defendant was declared in default upon an original
complaint, the filing of the amended complaint results in the
withdrawal of the original complaint, hence, the defendant is
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entitled to file an answer to the amended complaint as to which he
was not in default.
Judicial discretion to admit answer filed out of time
It is within the sound discretion of the trial court to permit the
defendant to file his answer and to be heard on the merits after the
reglementary period for filing the answer expires. The Rules of
Court provides for discretion on the part of the trial court not only
to extend the time for filing an answer but also to allow an answer
to be filed after the reglementary period. It is not correct to say
that a trial court has no recourse but to declare a defending party
in default when he fails to file an answer within the required
period. In fact, the rule is that the answer should be admitted
where it is filed before a defending party is declared in default and
no prejudice is caused to the other party and that there is no
showing that the defendant intends to delay the case (Sablas vs.
Sablas GR 144568, July 3, 2007) The hornbook rule is that default
judgments are generally disfavored (Paramount Insurance Corp.,
vs. A.C. Ordonez Corporation, GR No. 175109, August 6, 2008).
Current Judicial Trend on Default
The current judicial trend is to avoid defaults and thus, courts are
enjoined to be liberal in setting aside orders of default.
(Ampeloquio vs. CA 333 SCRA 465
The issuance of orders of default should be the exception rather
than the rule and to be allowed only in clear cases of obstinate
refusal by the defendant to comply with the orders of the trial
court (Lorbes vs. CA GR 139884 February 15, 2001) because suits
should as much as possible, be decided on the merits and not on
technicalities (Samartino vs. Raon GR 131482 July 3, 2002). Thus, in
practice, an answer under oath containing the defenses of the
defendant, may under the rules on liberal interpretation, be
deemed as equivalent of an affidavit of merit.
The policy of the law is to have every litigant’s case tried on the
merits as much as possible. Hence, judgments by default are
frowned upon. A case is best decided when all contending parties
are able to ventilate their respective claims, present their
arguments and adduce evidence in support thereof. (Sablas vs.
Sablas GR 144568 July 3, 2007).
HOW TO LIFT ORDER OF DEFAULT
(b) Relief from order of default. - A party declared in default may
at any time after notice thereof and before judgment file a
motion under oath to set aside the order of default upon proper
showing that his failure to answer was due to fraud, accident,
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mistake or excusable negligence and that he has a meritorious
defense. In such case, the order of default may be set aside on
such terms and conditions as the judge may impose in the interest
of justice. (3a, R18)
Q: What is the remedy of a defendant who has been declared in
default?
A: One remedy under Section 3 paragraph [b] is that, provided
there is still no default judgment, he can still file a motion to set
aside the order of default upon a proper showing that his failure to
answer was due to F.A.M.E. (Fraud, Accident, Mistake, or Excusable
negligence) and that he has a meritorious defense. [The discussions
on FAME is in Rule 37 – New Trial or Reconsideration]
Meaning, even if you are a victim of FAME, if you have no
meritorious defense, the court will not lift the order of default.
Upon proof, the court will set aside or lift the order of default and
will give the defendant an opportunity to answer, where he will
plead his supposed meritorious defenses. In effect, he regains his
standing in court.
Q: When can the defendant avail of this remedy?
A: He may file a motion to set aside the order of default at any
time after notice thereof and before judgment.
SUMMARY: Steps the defendant should take to set aside the order
of default:
1.) File a motion to lift or set aside the order of default. The
motion must be verified and under oath;
2.) He must explain why he failed to file an answer due to
FAME; and
3.) He must also show that he has a meritorious defense.
In such a case, the order of default may be set aside on such terms
and conditions as the judge may impose in the interest of justice
(Sec. 3b)
Remedies of a defending party declared in default:
(a) Remedy after notice of order and before judgment – The
defendant must file a motion under oath to set aside the
order of default and show that (a) the failure to answer
was due to fraud, accident, mistake or excusable
negligence (FAMEN) and that (b) the defendant has a
meritorious defense, i.e., there must be an affidavit of
merit (Sec. 3[b], Rule 9); Villareal vs. CA 295 SCRA 511;
Republic vs. Sandiganbayan GR No. 148154, December
17, 2007; Republic vs. Sandiganbayan, 540 SCRA 431)
(b) Remedy after judgment and before judgment becomes
final and executor – The defendant may file a motion for
new trial under Rule 37. He may also appeal from the
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judgment as being contrary to the evidence or the law
(Talsan Enterprises, Inc. vs. Baliwag Transit, Inc. 310
SCRA 156; Lina vs. CA 135 SCRA 637)
(c) Remedy after the judgment becomes final and executory
– The defendant may file a petition for relief from
judgment under Rule 38 (Balangcad vs. Justices of the CA
GR No. 83888, February 12, 1992; Republic vs.
Sandiganbayan [supra])
(d) Where the defendant has however, been wrongly or
improvidently declared in default, the court can be
considered to have acted with grave abuse of discretion
amounting to lack of jurisdiction and when the lack of
jurisdiction is patent in the face of the judgment or from
the judicial records, he may avail of the special civil
action of certiorari under Rule 65 (Balangcad vs. Justices,
supra)
Flow Chart of Remedies from Judgment by Default
Judgment by default
Motion for New Trial or Reconsideration at any time after service
of judgment by default and within 15 (30) days therefrom
Failure to file Motion for New Trial/Reconsideration or Denial of
said Motion
Perfect Appeal from said judgment by default within the balance of
said 15 (30) day period
Failure to Appeal without defendant's fault
Petition for Relief from Judgment within 60 days from notice of
judgment but within 6 months from entry thereof
Annulment of Judgment under R 47
Implied Lifting of the Order of Default
“While it is true that there was no positive act on the part of the
court to lift the default order because there was no motion nor
order to that effect, the anti-graft court’s act of granting
respondent the opportunity to file a responsive pleading meant the
lifting of the default order on terms the court deemed proper in
the interest of justice. It was the operative act lifting the default
order and thereby reinstating the position of the original defendant
whom respondent is representing, founded on the court’s
discretionary power to set aside orders of default.
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PARTIAL DEFAULT
(c) Effect of partial default. - When a pleading asserting a claim
states a common cause of action against several defending
parties, some of whom answer and the others fail to do so, the
court shall try the case against all upon the answers thus filed and
render judgment upon the evidence presented. (4a, R18)
This presupposes that there are two or more defendants. Say, one
or some of the defendants made an answer and the others did not.
So, one or some of the defendants were declared in default, the
others were not.
EXAMPLE: Gary sued Bentong and Bayani. Bentong filed an answer.
Bayani did not. Bayani was declared in default but there can be no
judgment against Bayani in the meantime because under
paragraph [c], the case will go to trial based on the answer of
Bentong. The case will be tried against both Bentong and Bayani
based on the answer of Bentong.
The principle here is that, the answer filed by the answering
defendant will automatically benefit the non-answering defendant.
The defense of Bentong will also be Bayani’s defense. Anyway
there is a common or identical cause of action.
Effect of partial default
In all instances where a common cause of action is alleged against
several defendants, some of whom answer and the others do not,
the latter or those in default acquire a vested right not only to own
the defenses interposed in the answer of their co-defendant or co-
defendants not in default but also to expect a result of the
litigation totally common with them in kind and in amount whether
favorable or unfavorable (Remigia Grageda, et al., vs. Hon. Nimfa
Gomez and Haudiny Grageda, GR No. 169536, Sept. 21, 2007).
The best example would be a promissory note signed by both
Bentong and Bayani and they bound themselves solidarily. Both of
them were sued. Bentong answered while Bayani did not, hence he
is in default. Can there be a default judgment against Bayani? NO,
there will still be a trial based on the answer of Bentong. In effect,
Bentong will defend not only himself but also Bayani.
Q: Suppose during the trial, Bentong proved that the obligation has
been extinguished, which is also applicable to Bayani, and the
complaint is dismissed, what is the effect?
A: Both Bentong and Bayani will win the case. So Bayani will be
benefited by the answer of his co-defendant Bentong. Hence, there
is still a possibility that a defaulted defendant can win based on our
example.
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On the other hand it is absurd if the answer of Bentong will not
benefit the defaulting defendant. EXAMPLE: Gary filed a case
against Bentong and Bayani based on a promissory note on a loan
secured by both, and Bayani defaulted. Bentong answered alleging
payment. Suppose, Bentong proved such defense, the effect is both
Bentong and Bayani are absolved. If you say that Bayani should lose
because the answer of Bentong will not benefit Bayani, there will
be two conflicting decisions: “Bayani is in default and thus, should
pay the loan; and there is no more loan as far as Bentong is
concerned.” Do you mean a loan is paid and at the same time
unpaid? That’s absurd!
But take NOTE that to apply the principle, there must be a common
cause of action. If there is no common cause of action, while there
may be a trial, the answer of Bentong is only for him. After the trial,
Bentong might be absolved from liability but the defaulting
defendant Bayani will be held liable because Bentong’s answer
does not cover Bayani. That is when there is no common cause of
action. In the case of
CO vs. ACOSTA (134 SCRA 185 [1985])
reiterating the case of
LIM TANHU vs. RAMOLETE (66 SCRA 425)
FACTS: Bentong and Bayani were (solidary debtors) sued by Gary
for a loan evidenced by a promissory note. Bentong filed an answer
but Bayani defaulted. The case was tried based on Bentong’s
answer. Gary move to drop Bentong from the case but retained
Bayani, the defaulted defendant so that Gary can secure an
immediate judgement.
ISSUE: Is the motion of Gary proper?
HELD: NO. When there is a common cause against two or more
defendants, if you drop the case against one, you drop the case
against all. Selection is not allowed. To drop Bentong means that
the cause of action against him is weak. Why should one drop
somebody if a case against such person is meritorious? If such is
the fact, necessarily the cause of action against the other is also
weak the fact there is actually a common cause of action.
However, the ruling in ACOSTA should not be confused with the
ruling in
IMSON vs. COURT OF APPEALS [1996 BAR]
239 SCRA 58 [1994]
FACTS: Imson was driving a Toyota Corolla when he was bumped
by a Hino Truck causing injury to Imson and totally wreaking his car.
So he filed an action for damages against several defendants. He
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impleaded all of them – the driver, the bus company owner and the
insurance company. The insurance company filed an answer but
the owner and the driver did not. So both the owner and the driver
were declared in default.
Subsequently, lmson and the insurance company entered into a
compromise agreement wherein the latter paid him P70,000 which
was its total liability under the insurance contract but constituted
only a part of the total claim.
So when the case (between Imson and the insurance company)
was eventually dismissed because of the compromise agreement,
the bus company owner also moved to dismiss the case against him
and the driver, arguing that since they are all indispensable parties
under a common cause of action, the dismissal of the case against
the insurance company should likewise result to the dismissal of
the case against them citing the case of ACOSTA and RAMOLETE.
ISSUE #1: Is there a common cause of action among the three of
them?
HELD: The owner is wrong. There is NO common cause of action.
The cause of action against the driver is based on quasi-delict
under Article 2178 of the Civil Code. The liability against the owner
is also based on quasi-delict but on another provision of the Civil
Code – Article 2180 (the liability of the employer for the delict or
wrong of the employee) So, the liability of the owner and the driver
is based on quasi -delict but under separate provisions of the Civil
Code.
Now, the cause of action against the insurance company is not
based on quasi-delict but based on contract because he seeks to
recover liability from the insurance company based on the
third-party liability clause of the insurance contract with the
company.
So, there is no common cause of action among them.
ISSUE #2: Is the insurance company an indispensable party?
Because if it is so and he is removed from the case, the case cannot
proceed without him.
HELD: NO. The insurance company is not an indispensable party.
“It is true that all of Imson’s claims in civil case is premised on the
wrong committed by defendant truck driver. Concededly, the truck
driver is an indispensable party to the suit. The other defendants,
however, cannot be categorized as indispensable parties. They are
merely necessary parties to the case. It is easy to see that if any of
them had been impleaded as defendant (meaning, the insurance
company or the owner was impleaded), the case would still
proceed without prejudicing the party not impleaded.”
“Thus, if petitioner did not sue the insurance company, the
omission would not cause the dismissal of the suit against the other
defendants. Even without the insurer, the trial court would not lose
its competency to act completely and validly on the damage suit.
The insurer, clearly, is not an indispensable party.” It is a necessary
party.
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(d) Extent of relief to be awarded. - A judgment rendered against a
party in default shall not exceed the amount or be different in
kind from that prayed for nor award unliquidated damages. (5a,
R18)
This is what we call LIMITATIONS on a default judgment:
1.) The default judgment should not exceed the amount
prayed for in the complaint;
2.) The default judgment should not be different in kind
from that prayed for in the complaint;
3.) The default judgment should not award unliquidated
damages.
Extent of relief in a judgment by default
If the complaint seeks to recover P1 million but the evidence of the
plaintiff shows a right to recover P1.5 million, the court has no
authority to grant the latter amount despite the evidence. This is
because under the Rules, “A judgment rendered against a party in
default shall not exceed the amount or be different in kind from
that prayed for nor award unliquidated damages” (Sec. 3*d+; Vlason
vs. CA 310 SCRA 26)
Q: In the complaint, the claim is P300,000. The defendant
defaulted. The court required the plaintiff to present his evidence
and during the trial, the latter proved P500,000 total claim. Can the
court award P500,000 claim as proved?
A: NO. It should only be P300,000 as prayed for in the complaint.
Q: Suppose during the trial, only P200,000 was proved. What
should be the amount of the default judgment?
A: Only P200,000 as proved because it did not exceed the amount
prayed for in the complaint.
Therefore, the rule is, the default judgement cannot exceed the
amount prayed for in the complaint although it may be less than it.
FUNDAMENTAL REASON ON THE RULE ON DEFAULT
What is the reason behind this? You have to know the philosophy
on default to understand the reason behind paragraph [d]. Default
means the defendant failed to file an answer despite the fact that
he was properly summoned.
Q: If a defendant failed to file an answer, what may be the reasons
behind that? Why did he not file an answer?
A: In the case of LIM TOCO vs. GO FAY, (80 Phil 166), there are two
(2) possible reasons:
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1.) Defendant deliberately did not answer because he
believed that he had no good defense, and that the claim
is fair. And if he will make an answer, still he will not win
and would just incur expenses;
2.) He had a meritorious defense and he wanted to answer
but for one reason or another beyond his control, he
failed to file his answer.
Q: In the second possibility – the defendant had a defense and
wanted to file an answer but failed to file an answer, what is the
remedy of such defendant?
A: It is paragraph [b] – file a motion to lift the order of default and
state the reasons beyond one’s control – fraud, mistake, accident,
or excusable negligence (FAME) and that there is a meritorious
defense.
Now suppose he did not answer because he thinks the claim is fair
and so he will just pay. Then, the contingency is paragraph [d] –
rest assured that the judgment will not exceed the amount or be
different in kind from that prayed for. At least, you will not be
surprised.
Q: If the defendant filed an answer but failed to appear during trial,
what will happen?
A: The case will proceed and there will be a presentation of
evidence EX-PARTE.
Now if a person is declared in default, it is also possible that an Ex
Parte presentation of evidence will be ordered.
MANGELIN vs. COURT OF APPEALS
215 SCRA 230 [1992]
ISSUE: What is the difference between ex-parte presentation of
evidence by virtue of default judgment AND ex-parte presentation
of evidence by failure to appear during the trial
HELD: In reception of evidence due to DEFAULT ORDER, paragraph
[d] applies – the judgment cannot exceed the amount or be
different in kind from that prayed for in the complaint.
BUT if there’s an ex-parte reception of evidence against a
defendant who filed an answer but FAILED TO APPEAR during the
trial, the limitations in paragraph [d] does not apply. Therefore in
this case, a greater amount than that prayed for in the complaint,
or a different nature of relief may be awarded so long as the same
are proved.
“It may be pointed out that there is a difference between a
judgment against a defendant based on evidence presented ex-
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parte pursuant to a default order and one based on evidence
presented ex-parte and against a defendant who had filed an
answer but who failed to appear at the hearing. In the former,
Section 3 [d] of Rule 9 provides that the judgment against the
defendant should not exceed the amount or be different in kind
from that prayed for. In the latter, however, the award may exceed
the amount or be different in kind from that prayed for.”
This is because when there is an ex parte presentation of evidence
due top failure to appear in trial, one’s standing in court is not lost.
HE can still present evidence later to refute the plaintiff’s evidence.
He simply waived the rights attached on particular hearing but not
to all subsequent trials. In judgment by default, he actually loses his
standing in court.
They added a new (third) limitation – Unliquidated damages cannot
be awarded in default judgment. Obviously liquidated ones can be.
Q: What is the difference between UNLIQUIDATED damages and
LIQUIDATED damages?
A: UNLIQUIDATED DAMAGES are those which are still subject to
evidence before it can properly be awarded such as the
presentation of receipts in terms of actual damages, or taking of
testimonies to determine mental anguish or besmirched reputation
in cases of moral damages.
LIQUIDATED DAMAGES are those which are already fixed and proof
or evidence to establish the same are not required. An example is
an obligation with a penal clause like an agreement to construct a
house and upon failure to finish the same within a stipulated
period, the contractor is liable for P10,000 for every day of delay.
The amount is already fixed based on the contract price and the
penalty provided and such other circumstances as stipulated.
So, in an action for unliquidated damages, let the defendant be
declared in default anyway the court can never award those
damages. Because if I will zanswer, damages can be awarded. In
other words, I will win the case simply because there is no way for
the court to award the damages. And most damages are usually
those unliquidated damages.
(e) Where no defaults allowed. - If the defending party in an action
for annulment or declaration of nullity of marriage or for legal
separation fails to answer, the court shall order the prosecuting
attorney to investigate whether or not a collusion between the
parties exists, and if there is no collusion, to intervene for the
State in order to see to it that the evidence submitted is not
fabricated. (6a, R18)
This refers to marital relations referred to in the Family Code:
Annulment of marriage; Declaration of nullity of marriage; Legal
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Separation. And the policy of the State is to preserve the marriage
and not encourage break-ups.
Now, in the absence of this provision, husband and wife quarrels
and then they decide to separate. Wife will file a case for legal
separation with the agreement that the husband will not answer.
Being in default, there will be a judgement in default and in a
month’s time marriage will be severed for the meantime. The
provision then prohibits default in marital relations cases to
preserve and uphold public policy.
Relate this provision of the rule to Articles 48 and 60 of the Family
Code:
Family Code, Art. 48. In all cases of annulment or declaration of
absolute nullity of marriage, the court shall order the prosecuting
attorney or fiscal assigned to it to appear on behalf of the State to
take steps to prevent collusion between the parties and to take
care that the evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph, no judgment
shall be based upon a stipulation of facts or confession of
judgment.
Family Code, Art. 60. No decree of legal separation shall be based
upon a stipulation of facts or a confession of judgment.
In any case, the court shall order the prosecuting attorney or
fiscal assigned to it to take steps to prevent collusion between the
parties and to take care that the evidence is not fabricated or
suppressed.
Judgment by default for refusal to comply with the modes of
discovery
The rule is that a default order and consequently a default
judgment is triggered by the failure of the defending party to file
the required answer (Sec. 3 Rule 9). By way of exception, a
judgment by default may be rendered in the following cases
despite an answer having been filed:
(a) If a party refuses to obey an order requiring
him to comply with the various modes
of discovery (Sec. 3[c] Rule 29; or
(b) If a party or officer or managing agent of a
party willfully fails to appear before the
officer who is to take deposition or a
party fails to serve answers to
interrogatories. (Sec. 5 Rule 29)
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Rule 10
EXAMPLE: The plaintiff files his complaint or the defendant files his
AMENDED AND SUPPLEMENTAL PLEADINGS answer and then later on he realizes that his cause of action is
wrong or that his defense is wrong. He would like to change his
complaint or change his answer. All he has to do is amend his
Part I. AMENDMENTS
complaint or answer. The court cannot stop him from changing his
complaint or changing his answer because the purpose of litigation
Sec. 1. Amendments in general. - Pleadings may be amended by
is: the real nature of controversy will be litigated in court. You
adding or striking out an allegation or the name of any party, or
cannot normally stop the party from ventilating his real cause of
by correcting a mistake in the name of a party or a mistaken or
action or his real defense so that the rule is that amendments
inadequate allegation or description in any other respect, so that
should be liberally allowed in the furtherance of justice and that
the actual merits of the controversy may speedily be determined,
the real merits of the case will come out in court. That is what you
without regard to technicalities, and in the most expeditious and
have to remember about concept of amendments and the policy of
inexpensive manner. (1)
the rules on amendments.

TYPES OF AMENDMENTS:
Pleadings may be amended by:
1. adding an allegation of a party;
The following are the important points to remember here:
2. adding the name or substituting a party
3. striking out an allegation of a party;
FIRST, there are two types of amendment of pleadings under the
4. striking out the name of a party;
rules:
5. correcting a mistake in the name of a party; and
1.) An amendment as a matter of right; or
6. correcting a mistake or inadequate allegation or description in
2.) An amendment as a matter of judicial discretion
any other respect.

SECOND, an amendment could be

So you can amend by removing something, adding something, or
1.) a formal amendment; or
changing something by substituting another word. You can amend
2.) a substantial amendment
by removing an entire paragraph, an entire sentence, a phrase, or a
word. As a matter of fact, before reaching Rule 10, there are
These are the same classification under the Rules on Criminal
provisions where amendments have already been touched upon,
Procedure under Rule 110.
one of which is Rule 1, Section 5:

Sec. 5. Commencement of action.- A civil action is commenced by

Amendment as a MATTER OF RIGHT; and
the filing of the original complaint in court. If an additional
Amendment as a MATTER OF JUDICIAL DISCRETION
defendant is impleaded in a later pleading, the action is
commenced with regard to him on the date of the filing of such
AMENDMENT AS A MATTER OF RIGHT simply means that the party
later pleading, irrespective of whether the motion for its
has the unconditional action or right to amend his pleading. The
admission, if necessary, is denied by the court.
court has no right to prevent him from amending. The opposite
party has no right to oppose the amendment. If the court refuses
to admit the amended pleading such refusal is correctible by
mandamus.
Q: What is the policy of the law on amendments?

AMENDMENT AS A MATTER OF JUDICIAL DISCRETION simply means

A: Section 1 says that the purpose of amendment is that the actual
that the court may or may not allow the amendment. So the other
merits of the controversy may speedily be determined without
party has the right to oppose. This is also known as amendment by
regard to technicalities, and in the most expeditious and
leave of court.
inexpensive manner. According to the SC, amendments to
pleadings are favored and should be liberally allowed in order (a) to
determine every case as far as possible on its actual merits without
AMENDMENT AS A MATTER OF RIGHT
regard to technicalities, (b) to speed up the trial of cases, and (c) to
prevent unnecessary expenses. (Verzosa vs. Verzosa, L-25603, Nov.
27, 1968; Cese vs. GSIS, L-135814, Aug. 31, 1960)

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Sec. 2. Amendments as a matter of right. - A party may amend his
pleading once as a matter of right at any time before a responsive
pleading is served or, in the case of a reply, at any time within ten
(10) days after it is served. (2a)
Amendment as a matter of right at any time before a responsive
pleading is served or in case of a Reply, within 10 days after it is
served.
PROBLEM: I am the plaintiff, I file a complaint. I want to amend my
complaint. When is the amendment a matter of right?
A: At any time a responsive pleading is served to the complaint.
Meaning, at any time before the defendant has filed his answer,
the plaintiff may change his complaint at any time. He may change
it in any manner, substantially or formally.
Q: How about the defendant? Suppose he wants to change his
answer, when is his right absolute or as a matter of fact right?
A: At any time before a reply by the plaintiff is filed or before the
expiration of the period to file a reply because a reply may or may
be not be filed.
Rule applicable before the trial court not on appeal
Section 2 refers to an amendment made before the trial court, not
to amendments before the Court of Appeals. The CA is vested with
jurisdiction to admit or deny amended petitions filed before it
(Navarro vs. Vda. De Taroma, 478 SCRA 336).
Q: How about if you want to amend your reply? You cannot say
before a responsive pleading is served because there is no more
responsive pleading to the reply.
A: So under Section 2, the plaintiff can amend his reply at any time
within ten (10) days after it is served.
Before the service of a responsive pleading, a party has the
absolute right to amend his pleading, regardless of whether a new
cause of action or change in the theory is introduced (Bautista vs.
Maya-Maya Cottages, Inc. 476 SCRA 416).
Applicability of Mandamus
The court would be in error if it refuses to admit an amended
pleading when its exercise is a matter of right. This error is
correctible by mandamus (Breslin vs. Luzon Stevedoring 84 Phil.
618; Ong Peng vs. Custodio 1 SCRA 780) because the trial court’s
duty to admit an amended complaint made as a matter of right is
purely ministerial (Alpine Lending Investors vs. Corpuz 508 SCRA
45).
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Q: Is there any other instance when amendment is a matter of right
even if there is already an answer or even in the middle of the trial?
A: Yes, there is a second instance, when the amendment is
FORMAL IN NATURE as found in Section 4:
Sec. 4. Formal amendments. - A defect in the designation of the
parties and other clearly clerical or typographical errors may be
summarily corrected by the court at any stage of the action, at its
initiative or on motion, provided no prejudice is caused thereby
to the adverse party. (4a)
When the amendment is fairly formal, it can be done anytime. As a
matter of fact it can be summarily corrected by the court at any
stage of the action, upon motion or even without motion because
anyway that is a harmless correction.
NOTE: Change of amount of damages is only formal because there
is no change in the cause of action.
SUMMARY: Amendment as a matter of right:
1.) Before an answer is filed (Complaint);
2.) Before a reply is filed or before the period for filing a
reply expires (Answer);
3.) Any time within 10 days after it is served (Reply); and
4.) Formal amendment
A motion to dismiss is not a responsive pleading
If a motion to dismiss is filed, an amendment to the complaint
would still be a matter of right during the pendency of the motion
to dismiss. Such a motion is not a responsive pleading and its filing
does not preclude the exercise of the plaintiff’s right to amend his
complaint (Paeste vs. Jadrigue 94 Phil. 179; Republic vs. Ilao 4 SCRA
106; Remington Industrial Salesvs. CA 382 SCRA 499).
In a case, the defendant, instead of filing an answer filed a motion
to dismiss on the ground that the plaintiff is not a juridical person
and thus, cannot be a party to the case. The plaintiff filed a motion
to admit an amended complaint which was admitted by the trial
court. As to whether or not plaintiff could so amend his complaint
as a matter of right, the Supreme Court reiterated the rule that a
party may amend his pleading once as a matter of right at any time
before a responsive pleading is served. The Court declared that a
motion to dismiss is not a responsive pleading and so the duty of
the trial court is to admit the amended complaint. Such duty is a
ministerial one because the amendment, under the circumstances,
is a matter of right. In fact the plaintiff should not have filed a
motion to admit the amended complaint (Alpine Lending Investors
vs. Corpuz 508 SCRA 45).
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Even if the motion to dismiss is granted by the court, the plaintiff
may still amend his complaint as a matter of right before the
dismissal becomes final as long as no answer has yet been served.
(Bautista vs. Maya-Maya Cottages Inc. [supra]).
Following the above rule, an amendment to the complaint sought
to be made one month after notice of the order dismissing the
complaint can no longer be allowed because the order of dismissal
has already become final due to the failure to perfect an appeal. As
a rule, the aggrieved party must perfect his appeal within the
period as provided for by law. The rule is mandatory in character. A
party’s failure to comply with the law will result in the decision
becoming final and executory and, as such, can no longer be
modified or reversed. Thus, it is beyond the power or jurisdiction of
the court which rendered the decision or order to amend or revoke
the same after the lapse of the fifteen-day reglementary period to
file an appeal(National Mines and Allied Workers Union GR 157232,
December 10, 2007)
AMENDMENT AS A MATTER OF JUDICIAL DISCRETION
Sec. 3. Amendments by leave of court. - Except as provided in the
next preceding section, substantial amendments may be made
only upon leave of court. But such leave may be refused if it
appears to the court that the motion was made with intent to
delay. Orders of the court upon the matters provided in this
section shall be made upon motion filed in court, and after notice
to the adverse party, and an opportunity to be heard. (3a)
Q: When is an amendment a matter of judicial discretion?
A: 1.If the amendment must be substantial; and
2.the adverse party has already filed and served a copy
of his responsive pleading.
The plaintiff, for example, cannot amend his complaint by changing
his cause of action or adding a new one without leave of court
(Calo and San Jose vs. Roldan 756 Phil 445; Buenaventura vs.
Buenaventura 94 Phil. 193)
After a responsive pleading is filed, an amendment to the
complaint may be substantial and will correspondingly require a
substantial alteration in the defenses of the adverse party. The
amendment of the complaint is not only unfair to the defendant
but will cause unnecessary delay in the proceedings. Leave of court
is thus, required. On the other hand, where no responsive pleading
has yet been served, no defenses would be altered. The
amendment of the pleading will not then require leave of court
(Siasoco vs. CA 303 SCRA 186).
Amendment discretionary
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Under R 10 Sec. 3 of the 1997 Revised Rules of Court, the trial court
is accorded sound discretion to grant or deny the admission of any
proposed substantial amendments to a pleading after a responsive
pleading has been filed. Generally, where the trial court has
jurisdiction over the case, proposed amendments are denied if
such would result in delay, or would result in a change of a cause of
action or defense or change the theory of the case, or are
inconsistent with the allegations in the original complaint. (Vivian
Locsin, et al., vs. Sandiganbayan, et al., GR No. 134458, August 9,
2007)
The clear import of Sec. 3 of Rule 10 is that under the 1997 Rules,
an amendment may now be allowed by the court even if it
substantially alters the cause of action or defense (PPA vs. William
GoThong & Aboitiz [WG&A], Inc. 542 SCRA 406 [2008])
Q: Assuming that the amendment is a matter of judicial discretion,
how should the court resolve it?
A: Based on established jurisprudence, the court should always
allow the amendment because of the liberal policy of the rules.
Amendments of pleadings should be liberally allowed in order that
the real merits of the case can be ventilated in court without
regard to technicalities. So the court will always lean on allowing a
pleading to be amended. That is the liberal policy.
LIMITATIONS TO THE LIBERAL POLICY IN AMENDMENTS TO
PLEADINGS
Q: What are the limitations to this liberal policy in allowing
amendments? Meaning, when can the court refuse to allow the
amendment and when can you validly oppose it?
A: The following:
1.) when the amendment is to delay the action (Section 3);
2.) when the amendment is for the purpose of making the
complaint confer jurisdiction upon the court (Rosario vs.
Carangdang, 96 Phil. 845);
3.) when the amendment is for the purpose of curing a
premature or non-existing cause of action (Limpangco vs.
Mercado, 10 Phil. 508; Wong vs. Yatco, 99 Phil. 791)
4.) When the cause of action, defense or theory of the case
is changed.
1.) WHEN THE AMENDMENT IS TO DELAY THE ACTION
The second sentence of Section 3 says that such leave may be
refused if it appears that the motion was made with intent to
delay. Meaning, the motion to amend is dilatory. Example: a case
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is filed against the defendant based on a cause of action then
trial…trial…then the case is already about to end. Then the plaintiff
says he wants to amend his complaint and change his cause of
action. I don’t think the court will allow it. That’s too much.
Or, the defendant will say that he would like to change his defense.
I don’t think the court will agree with that situation because it
appears that the motion to amend is already dilatory. Why did it
take you one year to realize that your cause of action or your
defense is wrong? So that is a limitation where the court may
refuse to apply the principles on liberality. The liberal policy
becomes weaker or is working against you the longer you delay
your amendment because it might already be interpreted to be
dilatory.
Now if you will notice, there is another limitation found in the old
rules that is gone here, and that is : That the amendment will not
be allowed if it will SUBSTANTIALLY alter the cause of action or
defense (Torres vs. Tomacruz, 49 Phil. 913) The implication here is
that, since amendment is favored, even if you alter you cause of
action or defense, you should not prevent the other party provided
that it is not dilatory. And the definition of this limitation is a
confirmation of what the SC said in some cases like the case of
MARINI-GONZALES vs. LOOD
148 SCRA 452
HELD: “While the Rules of Court authorize the courts to disallow
amendment of pleadings when it appears that the same is made to
delay an action or that the cause of action or defense is
substantially altered thereby, the rule is not absolute.” It is
discretionary.
“Courts are not precluded from allowing amendments of pleadings
even if the same will substantially change the cause of action or
defense provided that such amendments do not result in a
substantial injury to the adverse party. This is due to the permissive
character of said rule *which provides: “may refuse”+. In fact, this
Court has ruled that amendments to pleadings are favored and
should be liberally allowed in the furtherance of justice.”
That is why these are enough reason to delete that limitation. But if
you are going to change your cause of action or defense when the
trial is almost over, hindi na puwede because that will be dilatory.
But if you want to change it before the trial, that it still allowed,
even if it is substantial in nature. That’s why this limitation
disappeared. But despite the fact that there is only one limitation
now left, it is conceded that there are still limitations not found in
the law which have remained intact.
2.) WHEN THE AMENDMENT IS FOR THE PURPOSE OF MAKING THE
COMPLAINT CONFER JURISDICTION UPON THE COURT
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Amendment to correct a jurisdictional defect before a responsive
pleading is served
A fair reading of jurisprudence recognizes the right of a pleader to
amend his complaint before a responsive pleading is served even if
its effect is to correct a jurisdictional defect. The argument that the
court cannot allow such type of amendment since the court must
first possess jurisdiction over the subject matter of the complaint
before it can act on any amendment has no application upon an
amendment that is made as a matter of right.
In one case involving a litigation over a parcel of land, the
complaint filed with the then CFI was a complaint alleging forcible
entry. The defendants filed a motion to dismiss alleging that the
court has no jurisdiction over an action for forcible entry. Without
waiting for the resolution of the motion to dismiss, the plaintiff
filed an amended complaint with new allegations which
transformed the original allegations of forcible entry into an action
for quieting of title, an action which at that time was cognizable by
the CFI. The trial court admitted the amended complaint, ordered
the defendants to answer it and denied the motion to dismiss. The
SC sustained the trial court as being consistent with the purpose
and spirit of the Rules (Gumabay vs. Baralin 77 SCRA 258).
In another case filed before the City Court of Manila to recover
unpaid rentals with a prayer that an order be issued for the
surrender of the premises by the defendant to the plaintiff, the
defendant filed a motion to dismiss on the ground that the amount
sought to be recovered is beyond the jurisdiction of the court and
that there are no allegations in the complaint showing that the
defendant was unlawfully withholding the premises from the
plaintiff. Before action could be taken on the motion to dismiss, the
plaintiff amended the complaint, to include the requisite
allegations. The court denied the motion to dismiss and the
opposition to the amended complaint. The court ruled that since
no responsive pleading was served at the time of the amendment,
the plaintiff had done so as a matter of course. Reiterating the rule
that a motion to dismiss is not a responsive pleading, the SC
sustained the trial court (Soledad vs. Mamangun 8 SCRA 110).
Amendment to correct a jurisdiction defect after a responsive
pleading is served
An amendment of the complaint to correct a jurisdictional error
cannot be validly done after a responsive pleading is served. The
amendment this time would require leave of court, a matter which
requires the exercise of sound discretion. The exercise of this
discretion requires the performance of a positive act by the court.
If it grants the amendment, it would be acting on a complaint over
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which it has no jurisdiction. Its action would be one performed
without jurisdiction.
The situation is vastly different from an amendment as a matter of
right. Here the court does not act. The admission of the
amendment is a ministerial duty of the court. It requires no positive
action from the court. Since it would not be acting in this regard, it
could not be deemed as acting without jurisdiction.
In one case, a former employee filed an action for recovery of
compensation for unpaid holiday and overtime services with the
then Court of Industrial Relations against his former employer. The
defendant filed a motion to dismiss but was denied. The
defendant-employer then filed an answer invoking as one of its
affirmative defenses lack of jurisdiction of the court over the
subject matter since the complaint did not allege the existence of
an employer-employee relationship between the parties. The
complaint alleged neither illegal dismissal nor seeks for the
reinstatement of the plaintiff. Realizing a jurisdictional error, the
plaintiff filed leave to amend his complaint and to admit an
amended pleading alleging illegal dismissal and a claim for
reinstatement. Speaking on the issue of the propriety of the
admission of the amendment, the SC ruled that a “complaint
cannot be amended to confer jurisdiction on the court in which it
was filed, if the cause of action originally set forth was not within
the court’s jurisdiction” (Campos Rueda Corp. vs. Bautista 6 SCRA
240; Rosario vs. Carandang 96 Phil. 845). Note that in Campos
Rueda, an answer has already been served and filed.
Similarly, in an action for damages filed before the then CFI against
a sheriff for an alleged illegal levy upon the property of the
plaintiff, the latter sought to amend his complaint after an answer
has been served by the defendant. The amendment was made
when the plaintiff realized that the amount alleged as damages was
below the jurisdiction of the court. The SC held that it was error to
admit the amendment because the court must first acquire
jurisdiction over the subject matter of the complaint in order to act
validly on the same including its amendment (Gaspar v. Dorado 15
SCRA 331).
In other words, if based on the original complaint the court has no
jurisdiction over the subject matter and the defendant has already
filed an answer, can I still amend the complaint so that the court
will have jurisdiction? No, that will not be allowed. So, jurisdiction
by the court cannot be conferred by amendment when the original
complaint shows that the court has no jurisdiction.
For EXAMPLE: I will file a complaint for an unpaid loan and the
amount is exactly P200,000 only. Where should I file the
complaint? MTC. But by mistake I file it in the RTC and later I
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realized that the case should have been filed in the MTC because
the jurisdiction of the RTC should be above P200,000. So I will
amend my complaint and change the complaint and say that my
claim is P100,001.00. The obvious purpose of the amendment is to
make the case fall within the jurisdiction of the RTC. According to
the SC, it cannot be done.
The rule here is when in its face, the complaint shows that the
court has no jurisdiction over the subject matter, the court has no
authority to act in the case. And if you move to amend it and ask
the court to allow the amendment, you are assuming that the court
has the authority to act on the case. But the court can’t allow it
because the court has no authority to act. So the court even is not
authorized to allow the amendment because it has no authority to
act in the first place. How can you allow something when you do
not have the authority to act?
So according to the SC, when its on very face the complaint shows
that the court has no jurisdiction, the court has only one authority
and its only authority is to dismiss the case. So with that an
amendment cannot confer jurisdiction.
3.) WHEN THE AMENDMENT IS FOR THE PURPOSE OF CURING A
PREMATURE OR NON-EXISTING CAUSE OF ACTION
Meaning, on its very face, there is no cause of action, there is no
case. There is no delict or there is no wrong. Now how can you
create a delict or wrong by amending your complaint? In effect,
you are creating something out of nothing.
Amendment to cure a failure to state a cause of action
If the complaint failed to aver the fact that certain conditions
precedent were undertaken and complied with, the failure to so
allege the same may be corrected by an amendment to the
complaint. Section 5 of Rule 10 likewise applies to situations
wherein evidence not within the issues raised in the pleadings is
presented by the parties during the trial and was not objected to.
The provision also covers situations where, to conform to evidence
not objected to by the adverse party. Thus, a complaint which fails
to state a cause of action may be cured by evidence presented
during the trial.
For example, a complaint filed by a guarantor to collect a sum of
money from the debtor fails to state a cause of action if the
complaint does not allege that the creditor of the debtor has been
paid by the guarantor even if in fact there was payment. However,
if during the course of the proceedings, evidence is offered on the
fact of payment without objection from the debtor, the defect in
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the complaint was cured by the evidence. The plaintiff may then
move for the amendment of his complaint to conform to the
evidence. (Philippine Export and Foreign Loan Guarantee
Corporation vs. Philippine Infrastructures Inc. 419 SCRA 6).
No amendment where no cause of action exists
May a complaint that lacks a cause of action at the time it was filed
be cured by the accrual of a cause of action during the pendency of
the case?
This was the basic issue raised in one significant case (Swagman
Hotels and Travel Inc vs. CA, 455 SCRA 175). When the case was
filed none of the promissory notes subject of the action was due
and demandable but two of the notes became due during the
pendency of the action.
Sec. 5 of Rule 10 allows a complaint that does not state a cause of
action to be cured by evidence presented without objection during
the trial. The trial court ruled that even if the private respondent
had no cause of action when he filed the complaint for a sum of
money and damages because none of the three promissory notes
was due yet, he could nevertheless recover on the first two
promissory notes which became due during the pendency of the
case in view of the introduction of evidence of their maturity
during the trial.
The court rules that such interpretation is erroneous. It further
said:
“Amendments of pleadings are allowed under Rule 10 of the 1997
Rules of Civil Procedure in order that the actual merits of a case
may be determined in the most expeditious and inexpensive
manner without regard to technicalities, and that all other matters
included in the case may be determined in a single proceeding,
thereby avoiding multiplicity of suits. Section 5 thereof applies to
situations wherein evidence not within the issues raised in the
pleadings is presented by the parties during the trial, and to
conform to such evidence the pleadings are subsequently amended
on motion of a party. Thus, a complaint which fails to state a cause
of action may be cured by evidence presented during the trial.
“However, the curing effect under Section 5 is applicable only if a
cause of action in fact exists at the time the complaint is filed, but
the complaint is defective for failure to allege the essential facts.
For example, if a complaint failed to allege the fulfillment of a
condition precedent upon which the cause of action depends,
evidence showing that such condition had already been fulfilled
when the complaint was filed may be presented during the trial,
and the complaint may accordingly be amended thereafter. Thus,
in Roces vs. Jalandoni, this Court upheld the trial court in taking
cognizance of an otherwise defective complaint which was later
cured by the testimony of the plaintiff during the trial. In that case,
there was in fact a cause of action and the only problem was the
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insufficiency of the allegations in the complaint. It thus follows that
a complaint whose cause of action has not yet accrued cannot be
cured or remedied by an amended or supplemental pleading
alleging the existence or accrual of a cause of action while the case
is pending. Such an action is prematurely brought and is, therefore,
a groundless suit, which should be dismissed by the court upon
proper motion seasonably filed by the defendant. The underlying
reason for this rule is that a person should not be summoned
before the public tribunals to answer for complaints which are
immature.”
BAR QUESTION: How do you distinguish a NON-EXISTENT cause of
action from IMPERFECT cause of action?
A: The following are the distinctions:
1.) In a NON-EXISTENT cause of action, there is yet no delict
or wrong committed by the defendant (Limpangco vs.
Mercado, 10 Phil. 508) whereas
In an IMPERFECT cause of action, a delict or wrong has already
been committed and alleged in the complaint, but he cause of
action is incomplete (Alto Surety vs. Aguilar, L-5625, March 16,
1945); and
2.) a NON-EXISTENT cause of action is not curable by
amendment (Limpangco vs. Mercado, 10 Phil. 508;
Surigao Mine vs. Harris, 68 Phil. 113) whereas
an IMPERFECT cause of action is curable by amendment (Alto
Surety vs. Aguilar, L-5625, March 16, 1945; Ramos vs. Gibbon, 67
Phil. 371).
BAR QUESTION: Suppose the filing of the complaint will lapse on
January 20 and I will file the complaint today so the running of the
period will be interrupted. Suppose I will amend my complaint
next month, on February. Question: Is prescription properly
interrupted? When an original complaint is amended later, when is
the prescriptive period for filing the action interrupted? Upon the
filing of the original complaint or upon the filing of the amended
complaint?
A: It DEPENDS upon the nature of the amendment:
a.) If the amendment introduces a new and different cause
of action, then the prescriptive period is deemed
interrupted upon the filing of the amended complaint;
(Ruymann vs. Dir. of Lands, 34 Phil. 428)
b.) But where the amendment has not altered or changed
the original cause of action, no different cause of action
is introduced in the amended complaint, then the
interruption of the prescriptive period retroacts on the
date of the filing of the original complaint. (Pangasinan
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Trans. CO. vs. Phil. Farming Co., 81 Phil. 273; Maniago vs.
Mallari, 52 O.G. 180, October 31, 1956)
EXAMPLE: I will file today a case for damages arising from quasi-
delict. And then one or two months from now I will amend my
complaint from damages arising from culpa aquiliana to damages
arising from culpa contractual. Is that a different cause of action?
Yes, so the prescriptive period for culpa contractual is deemed filed
next month, not this month, because that is a different cause of
action.
EXAMPLE: But suppose I file a case against you for culpa aquiliana,
and my claim is one million. Next month I amend my complaint for
damages from one million pesos to two million pesos. Did I change
my cause of action? No, it is still the same cause of action—culpa
aquiliana. Therefore, the prescriptive period is deemed interrupted
as of the date of the filing of the original complaint.
Amendment
AMENDMENTS TO PLEADINGS IN CRIMINAL CASES
Now, the classifications of amendments under the rule on criminal
procedure are the same because there is such a thing as
amendments on the criminal complaints or informations as a
matter of right on the part of the prosecution and amendments as
a matter of judicial discretion. And under the rules of criminal
procedure, an amendment can either be formal or substantially
received. There is some difference in the rules.
How do you differentiate the amendment of a pleading, under the
rules on civil procedure and the amendment of a criminal
complaint or information in criminal cases? Take note that there is
no Answer in criminal cases. The accused is not obliged to file
answer but the counterpart of answer in criminal cases is the plea,
where he pleads either guilty or not guilty.
Under the rules on criminal procedure, at anytime before the
arraignment or before he enters plea, the amendment of
information is a matter of right, either in form or in substance.
EXAMPLE: The prosecution files an information against you for
homicide and then the prosecution wants to agree to murder. Can
it be done? YES, for as long as the accused has not yet entered his
plea.
So it is almost the same as in civil cases. For as long as there is no
responsive, pleading the amendment is a matter of right whether
in substance or in form.
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Q: Now in criminal cases, AFTER the accused had already entered
his plea to the original charged, is amendment still allowed? Can
the prosecution still amend?
A: YES. But what is allowed is only formal amendment and with
leave of court. Substantial amendment is 100% prohibited in
criminal cases. But in civil cases, formal amendment is still a matter
of right hence, does not require leave of court, while substantial
amendment is discretionary.
OBJECTIONS AND DEFENSES NOT RAISED ARE DEEMED WAIVED;
EXCEPTION
Sec. 5. Amendment to conform to or authorize presentation of
evidence. - When issues not raised by the pleadings are tried with
the express or implied consent of the parties, they shall be
treated in alll respects as if they had been raised in the pleadings.
Such amendment of the pleadings as may be necessary to cause
them to conform to the evidence and to raise these issues may be
made upon motion of any party at any time, even after judgment;
but failure to amend does not affect the result of the trial of these
issues. If evidence is objected to at the trial on the ground that it
is not within the issues made by the pleadings, the court may
allow the pleadings to be amended and shall do so with liberality
if the presentation of the merits of the action and the ends of
substantial justice will be subserved thereby. The court may
grant a continuance to enable the amendment to be made. (5a)
When issues not raised in the pleadings are tried with the express
or implied consent of the parties-
1. they shall be treated as if raised in the pleadings;
2. pleadings may be amended to conform to the evidence; and
3. failure to amend does not affect the result of the trial of these
issues.
Q: May issues not raised in the pleadings be tried in court during
the trial?
A: As a GENERAL RULE, a defendant during the trial is not allowed
to prove a defense that is not raised in the pleadings based on Rule
9, Section 1. The court has no jurisdiction over the issue. That’s
why there is no such thing as surprise defense because a defense
that is not raised is deemed waived.
Q: Is there an EXCEPTION to Rule 9, Section 1? Can the rule be
relaxed?
A: YES. Section 5 is a relaxation of the rule specifically the first
sentence: “when issues not raised in the pleadings are tried with
the express or implied consent of the parties, they shall be treated
in all respects as if they had been raised in the pleadings.”
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EXAMPLE: In a collection case, the defendant in his answer raised a
defense that the money obtained from the defendants was not a
loan but a donation. During the trial, he attempted to prove that it
was a loan but it was already fully paid. So he is now proving the
defense of payment. He is practically changing his defense. If you
follow Rule 9, Section 1, that is not allowed.
But suppose the parties during the trial, the plaintiff agrees that
the defendant will prove that the obligation is paid, then it can be
done because issues now raised in the pleadings are tried with the
express consent of the parties. They shall be treated in all respects
as if they had been raised in the pleadings.
In the case of implied consent, the best example is when the
defendant attempts to prove payment and the plaintiff FAILED TO
OBJECT. So there is now an implied consent by the parties.
Therefore, the case can now be tried on the issue as if they had
been raised in the pleadings. That is what we call the principle of
estoppel. The parties are in estoppel because they expressly or
impliedly agreed to try an issue which is not raised in the pleadings.
The court will now render judgment and discuss the evidence and
discuss whether the obligation has been paid or not.
So if it happens, the decision will not jibe with the pleadings. If you
read the complaint and the answer, there is no mention of
payment but in the decision resolved the case on that issue. The
pleadings are not in harmony with the decision.
Q: So how will you harmonize the two – pleadings and the
decision?
A: The remedy according to Section 5 is to amend the pleadings.
We can amend the pleadings to make them conform to the
evidence. That is why the law says: “such amendment of the
pleadings as may be necessary to cause them to conform to the
evidence and to raise these issues may be made upon motion of
any party at any time, even after judgment.”
So even after the judgment, you can amend the pleading in order
to harmonize with the evidence. Normally, the evidence should
conform to the pleading under Rule 9. In this case, baliktad! – it is
the pleading which is being amended to conform to the evidence.
It is the exact opposite.
Normally that is for the benefit of the appellate court in case the
decision will be the case will be appealed. The CA will read the
complaint and the answer, “wala mang payment dito!” But when
you read the decision, the main issue was payment not found in
the complaint and the answer. So there might be confusion. So
amendment is necessary at anytime, even after judgment.
Amendment to conform to evidence
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The curing effect under Sec. 5 R 10 is applicable only if a cause of
action in fact exists at the time the complaint is filed. Unless the
plaintiff has a valid and subsisting cause of action at the time his
action is commenced, the defect cannot be cured or remedied by
the acquisition or accrual of one while the action is pending, and a
supplemental complaint or an amendment setting up such after
accrued cause of action is not permissible. The action in the case at
bar is prematurely brought and is, therefore, a groundless suit,
which should be dismissed by the court upon proper motion
seasonably filed by the defendant. The underlying reason for this
rule is that a person should not be summoned before the public
tribunals to answer for complaints which are premature. (Swagman
Hotels and Travel, Inc. vs. CA and Neal Christian, GR No. 161135,
April 8, 2005)
Q: But suppose the parties never bothered to amend the pleadings,
is there a valid judgment?
A: YES because the law says, “but failure to amend does not affect
the result of the trial of these issues.” So, there is a valid trial and
the court acquires jurisdiction over the issues because of their
implied or express consent. The best example is FAILURE TO
OBJECT.
“if the evidence is objected to at the trial on the ground that it was
not within the issues made by the pleadings, the court may allow
the pleadings to be amended and shall do so with liberality if the
presentation of the merits of the action and the ends of substantial
justice will be subserved thereby.”
EXAMPLE: The defendant during the trial attempted to prove the
obligation that it is paid. The lawyer of the plaintiff is alert and
objected thereby, “You cannot prove that defense because you
never raise a defense of payment in your answer.” Is the objection
correct? YES because of Rule 9, Section 1. The court affirmed the
plaintiff that one cannot prove the defense of payment because
you never raised it in your answer. There is no express or implied
consent.
Q: But the defendant said, “If that is so your honor, may we be
allowed to amend our answer so that we will now raise the
defense of payment and prove it in court?” Can the court allow the
defendant to amend his answer in the middle of the trial just to
prove a defense that is not raised?
A: The rule says YES, the court may allow the pleadings to be
amended and shall do so with liberality if the presentation of the
merits of the action and the ends of substantial justice will be
subserved thereby.
That is why you can say that the power of the court in enforcing the
Rules of Court is very wide. For example, I am the judge and the
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defendant never raised the issue of payment in his answer and he
is now rising such defense. The plaintiff’s lawyer will now object
and alleged that he cannot prove such defense for he never raised
it in his answer. The judge sustained the objection, “You cannot
prove a defense that is never raised in your answer.” Q: Is my
ruling correct? A: YES because of Rule 9, Section 1 – objections and
defenses not raised in the answer are deemed waived.
The defendant will now move to be allowed to amend the pleading
so that I raised that defense. The plaintiff will object to the
amendment. The judge will ask the plaintiff, “is the obligation
paid?” “NO. The defendant never paid it,” answered the plaintiff.
So if the defense is false, why are you afraid? Anyway, he cannot
prove it. So I will allow the amendment.
However, if the plaintiff will answer that the defendant has already
paid the obligation but that he never raised such matter in his
answer. The plaintiff now will be in bad faith. So I will allow the
amendment.
So in other words, in any way my ruling is correct because I know
how to apply the rule. So the court will allow the amendment and
shall do so with liberality… so LIBERALITY should be the rule on
amendment. Section 5 is a rule more on equity. While, Rule 9,
Section 1 is a rule of law. Section 5 is a relaxation of that law on
technicality.
The last sentence, “the court may grant a continuance to enable
the amendment to be made.” ‘Continuance’ means postponement.
It means, postponement of the case to allow the defendant to
amend his answer first.
Part II. SUPPLEMENTAL PLEADINGS
Sec. 6. Supplemental pleadings. - Upon motion of a party the court
may, upon reasonable notice and upon such terms as are just,
permit him to serve a supplemental pleading setting forth
transactions, occurrences or events which have happened since
the date of the pleading sought to be supplemented. The adverse
party may plead thereto within ten (10) days from notice of the
order admitting the supplemental pleading. (6a)
The second part of Rule 10 is on supplemental pleadings
. the use of the word “may”. This is bolstered by the express
A supplemental pleading is one which avers facts occurring after
the filing of the original pleadings and which are material to the
matured claims and/or defenses therein alleged. (Herrera vol. 1 p.
603)
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Cause of action in supplemental pleadings
The cause of action stated in the supplemental complaint must be
the same as that stated in the original complaint. Otherwise, the
court should not admit the supplemental complaint (Asset
Privatization Trust vs. CA GR No. 121171, Dec. 29, 1998)
When the cause of action in the supplemental complaint is
different from the cause of action mentioned in the original
complaint, the court should not admit the supplemental complaint
(Asset Privatization Trust vs. CA 324 SCRA 533).
As its very name denotes, a supplemental pleading only serves to
bolster or add something to the primary pleading. A supplemental
pleading exists side by side with the original. It does not replace
that which it supplements. Moreover, a supplemental pleading
assumes that the original pleading is to stand and that the issues
joined with the original pleading remained an issue to be tried in
the action. It is but a continuation of the complaint. Its usual office
is to set up new facts which justify, enlarge or change the kind of
relief with respect to the same subject matter as the controversy
referred to in the original complaint.
When the cause of action stated in the supplemental complaint is
different from the causes of action mentioned in the original
complaint’ the court should not admit the supplemental complaint;
the parties may file supplemental pleadings only to supply
deficiencies in aid of an original pleading, but not to introduce new
and independent causes of action (Young vs. Spouses Sy, 503 SCRA
151).
Answer to a supplemental pleading; not mandatory
“Section 6, Rule 10 and Section 7, Rule 11, of the Rules of Court are
relevant, thus:
Sec. 6. Supplemental pleadings. – xxxxx The adverse party may
plead thereto within ten (10) days from notice of the order
admitting the supplemental pleading.
Sec. 7. Answer to supplemental complaint. – xxxx The answer to
the complaint shall serve as the answer to the supplemental
complaint if no new or supplemental answer is filed.
“As can be gleaned from the above provisions, the filing of an
answer to the supplemental pleading is not mandatory because of
provision of the Rules that the answer to the original pleading shall
serve as the answer to the supplemental pleading if no new or
supplemental answer is filed. Thus, the court cannot declare the
respondent in default simply because the latter opted not to file
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their answer to the supplemental petition (Chan vs. Chan GR
150746, October 15, 2008).
Q: How do you distinguish an AMENDED pleading from a
SUPPLEMENTAL pleading?
A: Of course, the similarity between the two is the
existence of ORIGINAL PLEADING. The following are the
distinctions:
FIRST DISTINCTION: As to the allegations
An AMENDED pleading contains transactions, occurrences or
events which already happened at the time the original pleading
was filed and could have been raised at the original pleading, but
which the pleader failed to raise in the original pleading because,
oversight or inadvertence or inexcusable negligence. If he wants to
raise it, he must amend the pleading. Whereas,
A SUPPLEMENTAL pleading contains transactions, occurrences or
events which were not in existence at the time the original
pleading was filed but which only happened after the filing of the
original pleading and therefore, could not have been raised in the
original pleading.
That is the distinction emphasized in the New Rule – Rule 11,
Sections 9 and 10:
Rule 11, Section 9. Counterclaim or cross-claim arising after
answer. – A counterclaim or cross-claim which either matured or
was acquired by a party after serving his pleading may, with the
permission of the court, be presented as a counterclaim or cross-
claim by supplemental pleading before Judgment.
Rule 11, Section 10. Omitted counterclaim or cross-claim. – When a
pleader fails to set up a counterclaim or a cross-claim through
oversight, inadvertence, or excusable neglect, or when justice
requires, he may, by leave of court, set up the counterclaim or
cross-claim by amendment before judgment.
These provisions emphasize the difference between an amended
pleading and a supplemental pleading – how do you raise a
counterclaim or cross-claim which was not raised earlier? Is it by
amending the pleading or by filing a supplemental pleading ? And
that applies also to an answer where the defense or the
transaction or the cause of action supervened later.
SECOND DISTINCTION: As to effect
In an AMENDED pleading, the amended pleading supersedes the
original pleading. The original pleading is deemed erased. The
amended substitutes the original. So from the viewpoint of the law,
the original pleading no longer exists. Whereas,
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When a SUPPLEMENTAL pleading is filed, it does not supersede the
original pleading. In effect, there are now two (2) pleadings which
stand side by side in the case – the original and the supplemental
pleadings.
EXAMPLE: Mortz borrowed from Nanding P200,000 payable in 2
yearly installments. Mortz failed to pay the first installment.
Nanding filed a case. While the case is pending, the other
installment became due. Nanding will now file a supplemental
pleading and as a result, there will be two (2) complaints for
P100,000 each.
Rule in EVIDENCE: In an amended pleading, all your admissions and
evidence no longer exist because remember under the rules on
Evidence, any admission that you make in your pleading binds you
under the doctrine of judicial admission where the evidence need
not be given - as if it is taken judicial notice of. The rule is, if a
pleading is amended and the amended pleading does not contain
the admissions contained in the original pleading, the judicial
admission is now converted into an extra-judicial admission and
therefore the court will no longer take judicial notice of that.
But if I want to bring it to the attention of the court an admission
which is not found there (in the amended pleading), I have to
formally offer in evidence the original pleading. Normally, you do
not offer in evidence a pleading because the court takes judicial
notice of everything stated in there. But if the original pleading is
now superseded, the original must be offered in evidence to prove
an admission found in the original but not anymore in the amended
one. That principle in now found in Section 8:
Section 8. Effect of amended pleadings. - An amended pleading
supersedes the pleading that it amends. However, admissions in
superseded pleadings may be received in evidence against the
pleader; and claims and defenses alleged therein not
incorporated in the amended pleading shall be deemed waived.
That is related to the rule in evidence that what need not be
proved: judicial notice, judicial admissions.
THIRD DISTINCTION: The filing of an AMENDED pleading could be a
matter of right or of judicial discretion under Sections 2 and 3;
whereas
The filing of a SUPPLEMENTAL pleading is always a matter of
judicial discretion under Section 6. There is always leave of court.
Now, let us cite cases which are relevant to our topic on
supplemental pleadings.
LEOBRERA vs. COURT OF APPEALS
170 SCRA 711
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FACTS: Karen went to the bank and obtained a loan – housing loan.
A promissory note was issued payable next year. After few
months, Karen went back to the bank and secured a second loan –
agricultural loan with another promissory note.
When the first note became due, Karen failed to pay. So the bank
sued Karen on the first promissory note. When the case was still
going on, the second loan became due. So the bank sought to file a
supplemental complaint against Karen to collect the second loan.
The maturity of the second loan happened after the filing of the
first pleading sought to be supplemented.
ISSUE: Is there a proper supplemental complaint?
HELD: NO. It is improper. Although the plaintiff and the defendant
are the same, there are two separate loans independent of each
other as a matter of fact the stipulations are not identical. It
cannot be the subject matter of a supplemental complaint. In this
case, there are many types of loans secured in different terms and
conditions.
“A supplemental complaint must be based on matters arising
subsequent to the original complaint RELATED to the claim
presented therein and FOUNDED on the same cause of action.” It
cannot be used to try of another matter or a new cause of action.
A good EXAMPLE for a supplemental complaint is when I borrow
money from you for P600,000 payable in three installments. First
installment is on February for P200,000; second installment is on
April; and the last installment is on June for the last P200,000.
There is no acceleration clause. When the first installment fell due,
I did not pay. So the plaintiff filed a case against me to collect the
first installment. In April, the case is still not yet decided. In fact
the second installment again fell due. Plaintiff moved to file for the
supplemental pleading. While the two cases are still pending, the
last installment fell due and again there is failure to pay, so there is
another supplemental complaint.
Q: Is that proper?
A: YES because these are not two separate loans but one loan and
the installments are interrelated.
SUPERCLEAN SERVICES INC. vs. COURT OF APPEALS
258 SCRA 165 [1996]
FACTS: Superclean Service Corp. is a company engaged in janitorial
services. A government corporation, the Home Development and
Mutual Fund (HDMF) sought a public bidding on who will be the
company who shall provide janitorial services to the offices of the
HDMF for the year 1990.
Superclean won as it was the lowest bidder. It was suppose to start
providing the service for the year 1990. However, the HDMF
refused to honor the award. So, on November 8, 1989, Superclean
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filed in the RTC of Manila a complaint for mandamus and certiorari
against HDMF alleging that at public bidding for janitorial services
for the year 1990, it won as the lowest bidder but HDMF refused
without just cause, to award the contract to 'hem,
The problem was that 1990 already ended and the case was still
on-going. So it was already rendered moot and academic. What
Superclean did was to file a supplemental complaint in 1991
alleging that because the contract of service was the furnishing of
janitorial services for the year 1990, the delay in the decision of the
case has rendered the case moot and academic without Superclean
obtaining complete relief to redress the wrong committed against
it by HDMF which relied now consists of unrealized profits,
exemplary damages and attorney’s fees.
So, money claim na lang dahil moot and academic na eh. Instead of
pursuing its prayer for mandamus, Superclean sought the payment
of damages to it.
ISSUE: Is the filing of supplemental complaint proper in order to
seek a different relief in view of developments rendering the
original complaint impossible of attainment?
HELD: “The transaction, occurrence or event happening since the
filing of the pleading, which is sought to be supplemented, must be
pleaded in aid of a party's right of defense as the case may be.
*That’s the purpose of the supplemental pleading – in aid of the
party’s cause of action or defense+ But in the case at bar, the
supervening event is not invoked for that purpose but to justify the
new relief sought.”
“To begin with, what was alleged as a supervening event causing
damage to Superclean was the fact that the year for which the
contract should have been made had passed without the resolution
of the case. The supervening event was cited not to reinforce or aid
the original demand, which was for the execution of a contract in
petitioner's favor, but to say that, precisely because of it,
petitioner's demand could no longer be enforced, thus justifying
petitioner in changing the relief sought to one for recovery of
damages. This being the case, petitioner's remedy was not to
supplement, but rather to amend its complaint.” You are actually
changing the relief so that the correct remedy is not a
supplemental complaint but an amended complaint.
“Be that as it may, the so-called Supplemental Complaint filed by
petitioner should simply be treated as embodying amendments to
the original complaint or petitioner may be required to file an
amended complaint.” So, meaning, you call it a supplemental
complaint, the court will call it as an amended complaint or the
other alternative, require him to file an amended complaint.
Sec. 7. Filing of amended pleadings. - When any pleading is
amended, a new copy of the entire pleading, incorporating the
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amendments, which shall be indicated by appropriate marks, shall
be filed. (7a)
When a party files an amended pleading, the amendments should
be indicated by appropriated marks, normally, the amended
portion is underlined.
EXAMPLE: A party would to insert an entirely new paragraph. That
paragraph would be underlined. The purpose for such marking is
for the court and the opposing party to immediately see and detect
the amendment. If no appropriated mark is provided the court and
the lawyer has to compare everything, paragraph by paragraph,
sentence by sentence, line by line. Now, if there are underlines, the
court will just concentrate on the underlined portion. This is for
convenience for the parties and the court.
An amendment which merely supplements and amplifies facts
originally alleged in the complaint relates back to the date of the
commencement of the action and is not barred by the Statute of
Limitations which expired after service of the original complaint.
(Verzosa vs. CA, GR No. 119511-13, Nov. 24, 1998)
Section 8. Effect of amended pleadings. - An amended pleading
supersedes the pleading that it amends. However, admissions in
superseded pleadings may be received in evidence against the
pleader; and claims and defenses alleged therein not
incorporated in the amended pleading shall be deemed waived.
(Section 8: See discussion on Section 6 on distinctions between an
amended and supplemental pleading; second distinction)
Effect of Amended Pleading
1. An amended pleading supersedes the pleading that it amends;
2. Admissions in the superseded pleading can still be received in
evidence against the pleader;
3. Claims or defenses alleged therein but not incorporated or
reiterated in the amended pleading are deemed waived.
Note: Admission in a superseded pleading is an extrajudicial
admission and may be proved by the party relying thereon by
formal offer in evidence. (Regalado p. 193)
Some authors though are of the opinion that admissions in
superseded pleadings need not be offered in evidence pursuant to
Sec. 4 R 129.
The first sentence is one of the distinctions between an amended
pleading and a supplement pleading. From procedural viewpoint,
the original pleading is already non-existent. The court will no
longer consider anything stated there.
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EXAMPLE: You say something favorable to me. However, in his
amended pleading, he removes such statement, so that the court
will not consider it anymore. Such statement is out of the picture.
Now, if you want to bring to the attention of the court the
statement found in the original pleading, you must offer the
original pleading in evidence to consider it all over again. This rule
will be considered in the study of EVIDENCE.
It has been held however, that the original complaint is deemed
superseded and abandoned by the amendatory complaint only if
the latter introduces a new or different cause of action (Verzosa vs.
CA 299 SCRA 100).
Effect of amendment on admissions made in the original pleading
Admissions made in the original pleadings cease to be judicial
admissions (Ching vs. CA 331 SCRA 16). They are to be considered
as extrajudicial admissions (Bastida vs. Menzi & Co., Inc., 58 Phil.
188; Torres vs. CA 131 SCRA 224). “However, admissions in
superseded pleadings may be received in evidence against the
pleader…” (Sec. 8 Rule 10) and in order to be utilized as
extrajudicial admissions, they must, in order to have such effect, be
formally offered in evidence (Ching vs. CA, 331 SCRA 16).
When summons not required after complaint is amended
Although the original pleading is deemed superseded by the
pleading that amends it, it does not ipso facto follow that the
service of new summons is required. Where the defendants have
already appeared before the trial court by virtue of a summons in
the original complaint, the amended complaint may be served
upon them without need of another summons, even if new causes
of action are alleged. A court’s jurisdiction continues until the case
is finally terminated once it is acquired. Conversely, when the
defendants have not yet appeared in court, new summons on the
amended complaint must be served on them. It is not the change
of the cause of action that gives rise to the need to serve another
summons for the amended complaint but rather the acquisition of
jurisdiction over the persons of the defendants. If the trial court
has not yet acquired jurisdiction over them, a new summons for
the amended complaint is required (Vlason Enterprises vs. CA 310
SCRA 26).
However, where a new defendant is impleaded, summons must be
served upon him so that the court may acquire jurisdiction over his
person because logically, the new defendant cannot be deemed to
have already appeared by virtue of summons under the original
complaint inn which he was not yet a [arty (Arcenas vs. CA 299
SCRA 733).
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Rule 11
WHEN TO FILE RESPONSIVE PLEADINGS
What are discussed in this rule are periods. The question when a
defendant wants to file an answer is, “How many days does he
have?” There must be a deadline. Rule 11 applies to all persons –
natural and juridical such as a corporation.
SECTION 1. Answer to the complaint. The defendant shall file his
answer to the complaint within fifteen (l5) days after service of
summons, unless a different period is fixed by the court. (1a)
Under Section 1, Rule 22 the act itself from which the designated
period of time where the case will run is to be excluded. Meaning,
when you receive the summons, you count one but today is
excluded and of course the last day is included. And if the last day
is the next working day, it is done on the next business day. Here,
there is an automatic extension.
Rule 22, Sec. 2. Effect of interruption. Should an act be done which
effectively interrupts the running of the period, the allowable
period after such interruption shall start to run on the day after
notice of the cessation of the cause thereof.
The day of the act that caused the interruption shall be excluded
in the computation of the period. (n)

Section 1 is the GENERAL RULE – the defendant has a period of 15

Alright, a good example of this is the period to file an answer which
days after service of summons within which to file his answer. The
is 15 days and then you filed a motion to dismiss under Rule 16
procedure is when a plaintiff files a complaint in court, the court
somewhere in between. Now, what is the principle to be
will issue summons (which is the counterpart of warrant of arrest
remembered here?
in criminal cases). The sheriff of the court will look for the
defendant and serve him a copy of the complaint. From that day
The filing of the motion to dismiss will now interrupt the running of
on, the defendant has 15 days to file his answer.
the 15-day period. And when your motion is denied, if you receive
the order of the denial now, you continue computing the balance
The rules says, “unless a different period is fixed by the court.” That
within the remaining period to file your answer.
would be the EXCEPTION to the 15-day period to file answer. Now,
when are these instances when the court may fix a different
Now, some people can’t understand this second sentence – “The
period? They are those mentioned in Rule 14, Sections 14, 15, and
day of the act that caused the interruption shall be excluded in the
16 –these are instances when service of summons by publication is
computation of the period.” The meaning of this is exemplified in
prescribed.
the case of LABITAD vs. CA (July 17, 1995). For EXAMPLE:

Let’s give example to the general rule. EXAMPLE: If the defendant is

We will assume that on November 30 (end of the month), you were
served with a copy of the complaint and summons today (January
served with summons by the court. So you have 15 days to file your
13,1998), the last day to file an answer will be January 28, 1998.
answer from November 30. Let us say, on December 10, you filed a
Just add 15 days to January 13.
motion to dismiss under Rule 16. So, the remaining of the period to
file an answer is interrupted. And let us say on December 15 or 5
In computing the period, you follow the rule known as “exclude the
days thereafter, your motion was denied, you receive a copy of the
first, include the last day rule” under Article 13 of the New Civil
order of denial.
Code. I think you know how to apply that. When you receive the
complaint today or when you are summoned today, you start
My QUESTION is, how many days more do you have or left to file
counting the period tomorrow. Such rule is also found in Section 1
your answer? Five days?
of Rule 22 on Computation of Time:

How many days did you consume?

Rule 22, Sec. 1. How to compute time. - In computing any period of
time prescribed or allowed by these Rules, or by order of the
From November 30 to December 10 = 10 days, and from December
court, or by any applicable statute, the day of the act or event
10 to December 15 = not counted. And you still have 5 days, so
from which the designated period of time begins to run is to be
December 20.
excluded and the date of performance included. If the last day of
the period, as thus computed, falls on a Saturday, a Sunday, or a
Now if you ask majority of lawyers here, they will give the same an-
legal holiday in the place where the court sits, the time shall not
swer. BUT according to LABITAD, that computation is wrong. You
run until the next working day. (n)
actually have six (6) days.

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So your deadline to file you notice to appeal is December 21. Why? b.) On the other hand, if the foreign corporation does not
have any designated resident agent in the Philippines,
Now, when did you file your motion? December 10. Therefore, then under the Corporation Code, the summons shall be
December 10 is not counted because it is already interrupted. served to the government official designated by law to
receive the same, who is duty bound to transmit it to the
So actually, you did not consume 10 days but only 9 days. That is head office of the corporation abroad. And the
the explanation of the SC in the case of LABITAD – the day you filed corporation now has 30 days from receipt of summons
your motion to dismiss is already excluded. So you only count to file its answer.
December 1 to 9. This is the illustration of the sentence “the day
the act which caused the interruption is excluded in the So it is either 15 or 30 days.
computation of t tie period.”
Q: Now, who is this proper government official designated by law
to receive summons?
ILLUSTRATION: A: Generally, it is the Secretary of the Department of Trade and
Industry. But for some types of business, the law may designate
any other official. Like the foreign corporation to be sued is a
November 30 December 10 December 15 December 21 foreign insurance company (e.g. Sun Life of Canada), under
Insurance Code, you serve it to the Insurance Commissioner. Or if it
Defendant Defendant Motion to Deadline to
is a foreign bank which has branch here, you serve the summons to
received filed a Motion Dismiss is file the
the Superintendent of the Bangko Sentral ng Pilipinas.
Summons to Dismiss denied. Answer

Summary

Alright, let’s go back to Rule 11:

Answer to a Complaint
1. Within 15 days after service of summons, unless a different
period is fixed by the Court;
Sec. 2. Answer of a defendant foreign private juridical entity.
Where the defendant is a foreign private juridical entity and
2. In case the defendant is a foreign private juridical entity:
service of summons is made on the government official
a. If it has a resident agent - within 15 days after service of
designated by law to receive the same, the answer shall be filed
summons to him;
within thirty (30) days after receipt of summons by such entity.
b. if it has no resident agent, but it has an agent or officer in the
(2a)
Philippines - within 15 days after service of summons to said agent
or officer;
c. if it has no resident agent, nor agent nor officer - in which case
The defendant here is a foreign private juridical entity, meaning, a
service of summons is to be made on the proper government office
foreign corporation doing business in the Philippines. In the first
(now the SEC) which will then send a copy thereof by registered
place, one cannot sue a foreign private corporation which is not
mail within 10 days to the home office of the foreign private
doing business in the Philippines because there is no way that the
corporation - within 30 days after receipt of summons by the home
court can acquire jurisdiction over the person of such corporation.
office of the foreign private entity.
If the foreign private corporation is doing business in the
Philippines, then one can sue it here in the Philippines. EXAMPLES:
3. In case of service of summons by publication - within the time
Sun Life of Canada; China Airlines (CAL), Cathay Pacific, etc.
specified in the order granting leave to serve summons by
publication, which shall not be less than 60 days after notice (R 14,
Q: Now, what is the period to answer when the defendant is a
Sec. 15; and
foreign private corporation doing business in the Philippines?
A: It DEPENDS:
4. In case of a non-resident defendant on whom extraterritorial
a.) When the foreign corporation has a designated resident
service of summons is made, the period to answer should be at
agent, the summons shall be served to the resident
least 60 days.
agent, and he has 15 days to answer, just like any
defendant in Section 1.
The court may extend the time to file the pleadings but may not
shorten them (Except in Quo Warranto proceedings)

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Sec.3. Answer to amended complaint. Where the plaintiff files an
amended complaint as a matter of right, the defendant shall
answer the same within fifteen (l5) days after being served with a
copy thereof.
Where its filing is not a matter of right, the defendant shall
answer the amended complaint within ten (10) days from notice
of the order admitting the same. An answer earlier filed may
serve as the answer to the amended complaint if no new answer
is filed.
This Rule shall apply to the answer to an amended counterclaim,
amended cross-claim, amended third (fourth, etc.) party
complaint, and amended complaint-in-intervention. (3a)
Now, what is the period to file an answer to an amended
complaint?
Under Section 3, there are two (2) periods – first paragraph, 15
days; second paragraph, 10 days. Now what is the difference?
1. If the filing of an amended complaint is a matter of right - within
15 days from service of the amended complaint.
2. If the filing of an amended complaint is not a matter of right -
within 10 days counted from notice of the court order admitting
the same.
The Rule shall apply to the answer to an amended counterclaim,
amended cross-claim; amended third (fourth, fifth, etc. ) party
complaint and amended complaint-in-intervention.
If no new Answer is filed, answer to original pleading shall be
deemed as answer to the amended pleading.
Suppose the complaint is amended as a matter of right because
defendant has not yet filed an answer, meaning, the complaint is
served on you and even before you answer it was amended and
another complaint is served, then you have 15 days to file your
answer counted from the day of service of the amended complaint.
So forget the original period and you have 15 days all over again.
But suppose the defendant has already answered the original
complaint and then the plaintiff decides to amend his complaint
which under the previous rule, is a matter of judicial discretion.
Now, suppose the court issued an order admitting the amended
complaint and the defendant is furnished a copy of the order
admitting the amended complaint, if he wants to answer the
amended complaint, he has 10 days to do it and not 15 days. The
10-day period will be counted from service of the order admitting
the amended complaint, not from the service of the amended
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complaint because the same may not be admitted. You wait for the
order of the court admitting the amended complaint.
So, there are two (2) periods to file an answer to an amended
complaint.
Q: Suppose I will not file an answer to the amended complaint. I
filed an answer to the original complaint but I did not file an
answer to the amended complaint, can I be declared in default?
A: NO, because Section 3 provides that the answer earlier filed may
serve as an answer to the amended complaint if no answer is filed.
Like when the amendment is only formal, why will I answer? In
other words, my defenses to the original complaint are still
applicable.
So the principle is: if no answer is filed to the amended complaint,
the answer to the original complaint automatically serves as the
answer to the amended complaint and therefore the defendant
cannot be declared in default.
Alright, the third paragraph of Section 3 is new. It includes
amended counterclaims, amended cross-claims.
Sec.4. Answer to counterclaim or cross-claim. A counterclaim or
cross-claim must be answered within ten (l0) days from service.
(4)
Now, if you answer a counterclaim or cross-claim, you have Section
4. The period to file an answer to a counterclaim or cross-claim is
only ten (10) days from the time it is served.
Q: What happens if the plaintiff does not answer the counterclaim
of the defendant?
A: He can be declared in default on the counterclaim. He has still
standing to prove his cause of action in the main case but he loses
his standing to defend himself in the counterclaim.
Q: Are there instances where an answer to a counterclaim is
optional? Meaning, the plaintiff does not answer and he cannot be
declared in default.
A: YES, that is when the counterclaim is so intertwined with the
main action – they are so intertwined that if the plaintiff would
answer the counterclaim, it would only be a repetition of what he
said in his complaint. In this case, even if the plaintiff will not
answer, he cannot be declared in default.
EXAMPLE: The plaintiff filed a case against the defendant for
damages arising from a vehicular collision. According to the
plaintiff, because of the negligence of the defendant, the plaintiff’s
vehicle was damaged amounting to that much. So the cause is
quasi-delict. Now in his answer, defendant says no and he denied
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the liability and he files a counterclaim saying, “As a matter of fact,
it is the plaintiff who is negligent. And since my vehicle was
damaged, I am now claiming damages against him.”
So practically, the issue on negligence is being thrown back. Now,
the plaintiff did not answer the counterclaim, can he be declared in
default?
NO, because if you require the plaintiff to file an answer, what will
he say? The same, “NO, you were the one at fault!”He will just be
repeating what he already alleged.
Sec. 5. Answer to third (fourth, etc.)- party complaint. The time to
answer a third (fourth, etc.)- party complaint shall be governed by
the same rule as the answer to the complaint. (5a)
Sec. 6. Reply. A reply may be filed within ten (l0) days from service
of the pleading responded to. (6)
The third-party defendant is served with summons just like the
original defendant. Hence, he also has 15, 30 or 60 days from
service of summons, as the case may be, to file his answer.
If you want to file a reply, you have ten (10) days to file. But as a
general rule, the filing of a reply is optional.
Sec. 7. Answer to supplemental complaint. A supplemental
complaint may be answered within ten (10) days from notice of
the order admitting the same, unless a different period is fixed by
the court. The answer to the complaint shall serve as the answer
to the supplemental complaint if no new or supplemental answer
is filed. (n)
It follows the same rule as in Section 3, second paragraph. A
supplemental complaint may be answered in ten (10) days. The
computation is again from notice of the order admitting the same
unless a different period is fixed by the court.
Suppose I will not answer the supplemental complaint? The same
principle – the answer to the original complaint shall serve as the
answer to the supplemental complaint. So it follows the same
principle as the amended complaint in the second paragraph of
Section 3.
Sec. 8. Existing counterclaim or cross-claim. A compulsory
counterclaim or a cross-claim that a defending party has at the
time he files his answer shall be contained therein. (8a, R6)
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One of the requisites to make a counterclaim compulsory is that
the defending party has the counterclaim at the time he files his
answer. This is related with Section 7, Rule 6.
Sec. 9. Counterclaim or cross-claim arising after answer. A
counterclaim or a cross-claim which either matured or was
acquired by a party after serving his pleading may, with the
permission of the court, be presented as a counterclaim or a
cross-claim by supplemental pleading before judgment. (9, R6)
Sec. 10. Omitted counterclaim or cross-claim. When a pleader fails
to set up a counterclaim or a cross-claim through oversight,
inadvertence, or excusable neglect, or when justice requires, he
may, by leave of court, set up the counterclaim or cross-claim by
amendment before judgment. (3a, R9)
We already discussed this before. As a matter of fact, Sections 9
and 10 illustrates the distinction between an amended pleading to
a supplemental pleading.
If the counterclaim or cross-claim was acquired by a party after
serving his pleading, he may raise it by way of supplemental
pleading. But if a pleader fails to set up a counterclaim or a cross-
claim which is already matured when he filed his pleading due to
oversight inadvertence or excusable neglect, then he may raise it
by way of amended pleading before judgment. Leave of court is
necessary.
Sec. 11. Extension of time to plead. Upon motion and on such
terms as may be just, the court may extend the time to plead
provided in these Rules.
The court may also, upon like terms, allow an answer or other
pleading to be filed after the time fixed by these Rules. (7)
Requisites:
1. There must be a motion;
2. With service of such motion to other party; and
3. On such terms as may be just.
The period to file is 15 or 10 days, but the general rule is 15 days.
Q: Now, is the 15-day period extendible?
A: YES, upon motion and on such terms as may be just, the court
may extend the time to plead.
Normally, the lawyer will file a motion for extension of time to
answer on the 15th, the 14th, or the 13th day. That’s very
common. The common reason of the lawyers for the extension is
pressure of work. Others are because of the traditional mañana
habit. We usually act during the deadline.
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Take note that when you file your motion for extension, do it
within the original 15-day period. Do not file your motion on the
16th day because there is nothing to extend. So the extension is
usually filed within the 15-day period.

Q: Now what happens if the lawyer fails to file such a motion? So

the 15 days already expired, then on the 18th, he will now file an
answer. Now what should the lawyer do?
A: The lawyer can use the second paragraph, “The court may also,
upon like terms, allow an answer or other pleading to be filed after
the time fixed by these Rules.” The correct motion is “MOTION TO
ADMIT LATE ANSWER.”

EXAMPLE: The deadline is 3 days ago. I failed to file my answer but

now it is ready. So, “motion to admit belated answer.”

Normally, the courts here are liberal in allowing extensions. The

general rule is that the court frowns on default. As such as possible
both sides must be heard. So in the spirit of liberality, courts are
usually liberal in allowing these extensions in time to file answers.

SUMMARY OF TIME TO FILE RESPONSIVE PLEADINGS

PLEADING
PERIOD

1.) Answer 15 days

2.) Answer of a private foreign corporation

a.) with designated Philippine representative 15 days
b.) no designated Philippine 30 days representative

3.) Answer to an amended complaint

a.) if as a matter of right 15 days
b.) if as a matter of judicial discretion 10 days

4.) Answer to counterclaim or cross-claim 10 days

5.) Answer to third (fourth, etc.) party complaint 15 days

6.) Reply 10 days

7.) Answer to supplemental complaint 10 days

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Rule 12 movant may be deprived of the opportunity to submit an

intelligent responsive pleading.
BILL OF PARTICULARS
When not proper

Section 1. When applied for; purpose. Before responding to a

1. Since the purpose of the motion for bill of particulars is to allow
pleading, a party may move for a definite statement or for a bill of
the movant to properly prepare his own pleading, it would be
particulars of any matter which is not averred with sufficient
erroneous for the motion to ask the court to order the adverse
definiteness or particularity to enable him properly to prepare his
party to disclose or to set forth in his pleading the evidences relied
responsive pleading. If the pleading is a reply, the motion must be
upon for his cause of action or defense. These are matters
filed within ten (10) days from service thereof. Such motion shall
obtainable by the various modes of discovery. Besides under Sec. 1
point out the defects complained of, the paragraphs wherein they
of Rule 8, pleadings are meant to contain only a direct statement of
are contained, and the details desired. (1a)
the ultimate facts which constitute the party’s claims or defenses.
Matters of evidentiary facts are to be omitted.
Q: Define Bill of Particulars.
A: A bill of particulars is a more definite statement of any matter
2. It would likewise not be proper for a motion for a bill of
which is not averred with sufficient definiteness or particularity in a
particulars to call for the production of the particulars constituting
pleading so as to enable the opposing party to prepare his
malice, intent, knowledge, or condition of the mind which, under
responsive pleading. (Section 1)
Sec. 5 Rule 8, may be averred generally. To require a pleader to do
so would be to require the statement of evidentiary facts in a
When filed
pleading.
The motion shall be filed before responding to a pleading. Hence, it
It would not however, be incorrect to move for a bill of particulars
must be filed within the period granted by the Rules (R11) for the
to require the averment of the particular circumstances of fraud or
filing of a responsive pleading.
mistake. Under Sec. 5 Rule 8, such matters must be alleged with
particularity.
The motion shall point out:
1. The defects complained of;
3. A motion for bill of particulars to require a pleader to set forth
2. The paragraphs wherein they are contained; and
matters showing the jurisdiction of the court to render its
3. The details desired.
judgment is not proper. The provisions of Sec. 6 Rule 8 are clear: In
pleading a judgment it is sufficient to aver the same generally.
The motion must comply with the requirements for motions under
Secs 4, 5, and 6 of R 15. Otherwise the motion will not suspend the
In Republic vs. Sandiganbayan 540 SCRA 431, the Court ruled that
period to answer (Filipino Fabricator vs. Magsino, GR No. 47574,
an allegation that the “defendant acted” ‘in unlawful concert’ with
Jan. 29, 1988).
the other defendant in illegally amassing assets, property and funds
in amounts disproportionate to the latter’s income”, is a proper
Purpose
subject of a motion for bill of particulars. Plaintiff is bound to clarify
To aid in the preparation of a responsive pleading
the specific nature, manner and extent of the alleged collaboration
between the defendants. The allegation in the complaint does not
The purpose of the motion is to seek an order from which court
actually state the ultimate facts to show the alleged “unlawful
directing the pleader to submit a bill of particulars which avers
concert”. Allegations couched in general terms are not statements
matters with “sufficient definiteness or particularity” to enable the
of ultimate facts.
movant to prepare his responsive pleading (Sec. 1), not to enable
the movant to prepare for trial. Where the purpose of the movant
An action cannot be dismissed on the ground that the complaint is
is to enable him to prepare for trial, the appropriate remedy is to
vague or indefinite. The remedy of the defendant is to move for a
avail of the discovery procedures from Rules 23 to 29 and even of a
bill of particulars or avail of the proper mode of discovery. (Galeon
pre-trial under Rule 18.
vs. Galeon GR No. L-30380, Feb. 28, 1973)

In less technical terms, a function of a bill of particulars is to clarify

Necessary that complaint states a cause of action
the allegations in the pleading so an adverse party may be
informed with certainty of the exact character of a cause of action
As long as the allegations of a complaint make out a cause of
or a defense. Without the clarifications sought by the motion, the
action, the ambiguity in some allegations of the complaint or the

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failure to allege facts with sufficient particularity does not justify
the filing of a motion to dismiss. The proper remedy is to file a
motion for a bill of particulars.
To which pleadings directed
It must be made clear that a motion for a bill of particulars is not
directed only to a complaint. It is a motion that applies to any
pleading which in the perception of the movant contains
ambiguous allegations.
EXAMPLE: The plaintiff filed a complaint against you and you are
now furnished with a copy by the lawyer of the plaintiff. So, you
have to file your answer. You have to understand what the cause
of action is all about. So you read the complaint – you notice that
the allegations are vague, ambiguous, and uncertain. So, you
cannot understand the allegations. So, you have a hard time
preparing your answer. Now, you do not want to answer
something that you cannot understand.
Q: So what is your remedy?
A: The remedy is, instead of answering, you file a motion for a bill
of particulars and according to Section 1, your motion will point out
the defects complained of, the paragraphs where they are
contained and the details desired. Because according to you, the
allegations are not averred with sufficient definiteness or
particularity to enable you properly to prepare your responsive
pleading that is what it is all about.
So the defendant resorts to the Bill of Particulars if the allegations
of ultimate facts in the complaint are vague and ambiguous that
the defendant will have difficulty in preparing his answer. So, he
can not understand and will ask for more details to clear the
ambiguities. He will file a motion for Bill of Particulars, citing the
defects and ask for the details, because how can he prepare an
answer if he does not understand the complaint?
BAR QUESTION: Suppose a complaint is ambiguous, uncertain,
indefinite or vague, can the defendant file a motion to dismiss?
A: NO! A complaint cannot be dismissed simply because it is vague,
ambiguous. (Pañgan vs. Evening News, L-13308, Oct. 29, 1960) The
correct remedy is for the defendant to file a motion for bill of
particulars, which will ask for more details on these vague portions
of the complaint. (Amoro vs. Sumaguit, L-14986, July 31, 1962)
According to the SC in the case of
TAN vs. SANDIGANBAYAN
180 SCRA 34 [1989]
HELD: “The proper office of a bill of particulars is to inform the
opposite party and the court of the precise nature and character of
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the cause of action the pleader has attempted to set forth, and
thereby to guide his adversary in his preparations for trial and
reasonably protect him against surprise at the trial. It complements
the rule on pleadings in general, that is, that the complaint should
consist of a concise statement of the ultimate facts.”
“Its primary objective is to apprise the adverse party of what the
plaintiff wants — to preclude the latter from springing a surprise
attack later.”
According to the SC, the primary purpose of the bill of particulars is
to apprise the adverse party of what a plaintiff wants. To preclude
the latter from springing a surprise attack later. Why? Because the
plaintiff may deliberately make his allegations vague, to confuse
you – to mislead you – because you might adopt a different
interpretation. If the interpretation turns out to be different, your
defenses might be wrong. So, he deliberately makes his complaint
ambiguous. Now, the other party should thwart that by asking for
a bill of particulars to compel the plaintiff to make the allegations
of his cause of action clearer. So, that is what the bill of particulars
is all about.
Now, we will go to a specific situation and let’s find out whether
the defendant could file for a bill of particulars.
PROBLEM: Now, suppose the pleader says in his complaint that he
has been in the possession of the litigated property continuously
for forty (40) years. The defendant flied a motion for a bill of
particulars, “The allegations is very broad, very general, very vague.
Please tell by way of particulars what are the improvements you
introduced for the past 40 years. I would like to ask for these
details to clarify your allegations that you have been in continuous
possession of the land for 40 years.”
Q: Is that a proper motion for a Bill of Particulars?
A: NO, because it is asking for evidentiary matters. In the first place,
the plaintiff has no obligation to state the evidentiary matters in his
complaint. It should only state ultimate facts. So, it is not allowed in
the pleading. You cannot ask for that by way of particulars.
So, what is sought to be remedied are vague and ambiguous
statements of ultimate facts. But you cannot use it to fish for
evidentiary matters. Evidentiary facts cannot be the subject of a
motion for a bill of particulars.
Q: But is it not fair that before trial I should know your evidentiary
matters?
A: I believe it is fair for the defendant to compel the plaintiff to
reveal the details of his ultimate facts but not under Rule 12. You
better avail of the modes of discovery under Rule 23, depositions,
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request for admission, etc. But you cannot convert Rule 12 into a
modes of discovery. Each rule has its own functions.
So, let’s give a good example of an instance, where the defendant
can rightfully ask for more specifics or particulars.
EXAMPLE: The plaintiff will sue the defendant for annulment of
contract on the ground that the defendant employed FRAUD in
getting the consent of the plaintiff. The plaintiff said, “He got my
consent to the contract by fraud.” The defendant filed a motion for
a bill of particulars: “That the defendant employed fraud in getting
plaintiff’s consent is vague, So, I’m asking the plaintiff should give
more specifics. How did I fool you? In what way did I employ fraud?
In what way was the fraud exercised?”
Q: Now, is the motion for a bill of particulars meritorious?
A: YES, because allegations of fraud must be stated with
particularity. So, you go back in Rule 8, Section 5:
Rule 8, Sec. 5 Fraud, mistake, condition of the mind.—In all
averments of fraud or mistake, the circumstances constituting
fraud or mistake must be stated with particularity. x x x
We already studied that provision. Therefore, if the allegation of
the plaintiff is simply that the defendant employed fraud, that
allegation is not sufficient because under Rule 8, it must be stated
with particularity. Therefore, if it is not stated with particularity,
the remedy of the defendant is to file a motion for a bill of
particulars under Rule 12.
Q: Suppose, it is the answer which is vague. Suppose ang answer
malabo. It is the other way around. It is the defendant’s answer
which is vague or uncertain. Can the plaintiff file a motion for bill of
particulars to compel he defendant to clarify or to particularize his
vague answer?
A: YES, because the plaintiff can say, “I cannot file my reply. I mean,
I want to file a reply but I can’t file a reply unless I understand what
is your defense.” So it works both ways.
Q: Suppose, it is the reply of the plaintiff to the answer which is
vague or ambiguous. Can the defendant file a motion for bill of
particulars to clarify the vague reply?
A: YES. According to Section 1, the motion is to be filed within 10
days. So even if the reply is vague, it can still be the subject of the
bill of particulars within 10 days because there is no more
responsive pleadings there.
So, every pleading which is vague the other party can always
compel you to make it clearer.
Q: Is this remedy available in criminal cases?
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A: YES. If it is the information which is vague, you cannot
understand the allegations in the information, you cannot plead,
“Paano, I cannot enter a plea of guilty or not guilty kasi hindi ko
maintindihan eh” the accused can file a motion for bill of
particulars to require the prosecution to clarify vague portions of a
complaint or information.
There is an identical provision in Rule 116, Section 9 of the Rules on
Criminal Procedure.
RULE 116, SEC. 9. Bill of particulars. – The accused may, before
arraignment, move for a bill of particulars to enable him properly
to plead and prepare for trial. The motion shall specify the alleged
defects of the complaint or information and the details desired.
(10a)
The concept is the same. If the allegations in the information are
also vague and ambiguous, “I cannot understand it, so I cannot
intelligently enter my plea.” The accused, before arraignment, can
move for a bill of particulars to enable him to prepare properly for
the trial. Then he must specify the defects.
CINCO vs. SANDIGANBAYAN (criminal case)
202 SCRA 726 [1991]
FACTS: A motion for bill of particulars was filed by the lawyer of the
respondent in the fiscal’s office when the case was under
preliminary investigation. (In preliminary investigation, you are
given the affidavit of the complainant and his witnesses. And then
you are given 10 days to submit your counter-affidavits.) Here, the
affidavit is vague according to the accused, so he is filing a bill of
particulars. He wanted to compel the complainant to make his
affidavit clearer.
ISSUE: Is Section 9 applicable when the case is still in the fiscal’s
office for preliminary investigation?
HELD: NO. It is only applicable when the case is already in court for
trial or arraignment.
But suppose during the preliminary investigation, “I cannot
understand what the complainant is saying in his affidavit?” The SC
said, that is simple! If you cannot understand what the complainant
is saying in his affidavit, chances are, the fiscal also will not
understand it. And consequently, he will dismiss the case. Eh di
mas maganda! Wag ka na lang mag-reklamo! [tanga!]
Sec. 2. Action by the court. Upon the filing of the motion, the clerk
of court must immediately bring it to the attention of the court
which may either deny or grant it outright, or allow the parties
the opportunity to be heard. (n)
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So pag-file mo ng motion for bill of particulars, the clerk has the
obligation to bring it immediately to the attention of the court and
the court can deny or grant the motion immediately. But of course,
it is up to the court to call for a hearing or not.
Q: Now, what do you think is the reason behind that? Why do you
think is this provision here, which is not found in the old rules?
A: Many lawyers have abused Rule 12.
In what way? A complaint is filed but even if the allegations are
clear he will file a motion for bill of particulars claiming that he
cannot understand. Then, he will set the motion for hearing 2
weeks from now. Then the motion is denied because it has no
merit, then, and only then will he file an answer. In other words,
the defendant has succeeded in delaying the period for filing an
answer by pretending that he cannot understand.
So in order to prevent that kind of dilatory tactic, when the motion
is filed, the court is now authorized to immediately act on the
motion without delaying the filing of the answer. That is the reason
why this provision was inserted because the filing of the motion for
bill of particulars can cause delay.
Action of the court
Upon receipt of the motion which the clerk of court must
immediately bring to the attention of the court, the latter has three
possible options, namely, (a) to deny the motion outright, (b) to
grant the motion outright, or (c) to hold a hearing on the motion.
Sec. 3. Compliance with order. If the motion is granted, either in
whole or in part, the compliance therewith must be effected
within ten (l0) days from notice of the order, unless a different
period is fixed by the court. The bill of particulars or a more
definite statement ordered by the court may be filed either in a
separate or in an amended pleading, serving a copy thereof on
the adverse party. (n)
Q: Suppose the court grants the motion and the defendant or the
plaintiff will be required to submit the bill of particulars. How will
you comply with the order to file a bill of particulars?
A: There are two (2) ways:
1.) Just submit the details of the vague paragraphs; or
2.) Amend the whole pleading and clarify the vague
paragraphs
Period to comply with the order granting the motion - 10 days from
notice of order unless a different period is fixed by the court.
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The Bill of Particulars may be filed either in a separate or in an
amended pleading serving a copy thereof to the adverse party.
Sec. 4. Effect of non-compliance. If the order is not obeyed, or in
case of insufficient compliance therewith, the court may order the
striking out of the pleading or the portions thereof to which the
order was directed or make such other order as it deems just.
(1[c]a)
Effect of Non-Compliance
1. If the order is not obeyed or in case of insufficient compliance,
therewith, the court:
a. may order the striking out of the pleading or the portion thereof
to which the order is directed; or
b. make such order as it may deem just.
2. If the plaintiff fails to obey, his complaint may be dismissed with
prejudice unless otherwise ordered by the court (R 12, Sec. 4; R 17,
Sec. 3);
3. If defendant fails to obey, his answer will be stricken off and his
counterclaim dismissed, and he will be declared in default upon
motion of the plaintiff (R 12, Sec. 4; R 17, Sec. 4; R 9, Sec. 3)
Q: Alright, suppose the motion is granted, the court ordered the
plaintiff to submit a bill of particulars. The plaintiff refused to
comply with the order. What is now the remedy?
A: The court may order the striking out of the pleading or portions
thereof which is the object of the bill of particulars. Like, when you
do not want to clarify your complaint, the judge will now issue an
order to strike out the entire complaint. It is as if the complaint was
never filed. Practically, your complaint was dismissed. In effect your
complaint was dismissed because if the complaint was ordered
stricken out, then it is equivalent to dismissal of the case itself.
Sec. 5. Stay of period to file responsive pleading. After service of
the bill of particulars or of a more definite pleading, or after
notice of denial of his motion, the moving party may file his
responsive pleading within the period to which he was entitled at
the time of filing his motion, which shall not be less than five (5)
days in any event. (1[b]a)
Effects of Motion
1. If the motion is granted, in whole or in part, the movant can wait
until the bill of particulars is served on him by the opposing party
and then he will have the balance of the reglementary period
within which to file his responsive pleading; and
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2. If his motion is denied, he will still have such balance of the

reglementary period to file his responsive pleading, counted from
service of the order denying his motion.

Note: In either case he shall have no less than 5 days to file his
responsive pleading.

ILLUSTRATION: I have 15 days to file an answer. On the 8th day, I

filed a motion for a bill of particulars. On the 8th day, the running
of the period automatically stops and then after several days, you
receive the order. For example, denying your motion, you still have
7 days to go because the period during which your motion was
pending will not be counted as the 15 day period was interrupted.

Q: Suppose, you file your motion for a bill of particulars on the 14th
day and your motion is denied. You received the order today. How
many days more to file an answer?
A: Five (5) days. You are guaranteed a minimum of 5 days.

Therefore, if a defendant filed the motion for bill of particulars

within 15 days, he cannot be declared in default. The plaintiff
cannot declare the defendant in default for failure to file an answer
because 15 days had already lapsed. It will be interrupted by the
filing of the motion and the period commences to run again from
the time he received the bill of particulars or the order denying his
motion but not less than 5 days in any event.

Sec. 6. Bill a part of pleading. A bill of particulars becomes part of

the pleading for which it is intended. (1[a]a)

When you file a bill of particulars clarifying the paragraphs in the

complaint which are vague, the bill of particulars becomes part of
the complaint with its supplements.

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Rule 13
FILING AND SERVICE OF PLEADINGS,
JUDGMENTS AND OTHER PAPERS
Section 1. Coverage. This Rule shall govern the filing of all
pleadings and other papers, as well as the service thereof, except
those for which a different mode of service is prescribed. (n)
As a general rule, service of all pleadings is governed by Rule 13. So,
this rule governs pleadings “except those for which a different
mode of service is prescribed.” An example of the exception is the
service of complaint which is governed by Rule 14. So Rule 13
applies to all pleadings except complaint.
What is the difference between filing and service of pleadings?
Section 2:
Sec. 2. Filing and service, defined. Filing is the act of presenting the
pleading or other paper to the clerk of court.
Service is the act of providing a party with a copy of the pleading
or paper concerned. If any party has appeared by counsel, service
upon him shall be made upon his counsel or one of them, unless
service upon the party himself is ordered by the court. Where one
counsel appears for several parties, he shall only be entitled to
one copy of any paper served upon him by the opposite side. (2a)
When you say FILING, you present the pleading or other papers to
the office of the clerk of court. When you say SERVICE, you furnish
a copy of the pleading or paper concerned to a party, or if he is
represented by a lawyer, you must furnish a copy of the pleading to
the lawyer.
The GENERAL RULE, when a party is represented by a lawyer, the
service should be to the lawyer and not to the party. Service to a
party is not valid. What is valid is service to the counsel. Service to
the lawyer binds the party. But service to the party does not bind
the lawyer and the party, unless the court orders direct service to
the party.
If a party has not appeared by counsel, then common reason
suggests that service must be made upon him.
It has been held that notice or service made upon a party who is
represented by counsel is a nullity. As a rule, notice to the client
and not to his counsel of record is not notice in law unless for
instance when the court or tribunal orders service upon the party
or when the technical defect in the manner of notice is waived
(Heirs of Benjamin Mendoza vs CA GR 170247, September 17,
2008).
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Service upon the parties’ counsel of record is tantamount to service
upon the parties themselves, but service upon the parties
themselves is not considered service upon their lawyers. The
reason is simple – the parties, generally, have no formal education
or knowledge of the rules of procedure, specifically, the mechanics
of an appeal or availment of legal remedies; thus, they may also be
unaware of the rights and duties of a litigant relative to the receipt
of a decision. More importantly, it is best for the courts to deal only
with one person in the interest of orderly procedure – either the
lawyer retained by the party or the party himself if he does not
intend to hire a lawyer (De los Santos vs. Elizalde GR 141810 &
141812, February 2, 2007; Hernandez vs. Clapis, 87 Phil. 437; Javier
Logging Corp. vs. Mardo, L-28188, Aug. 27, 1968)
There was even a case when the client volunteered to get the copy
of the decision. But he party failed to give it to his lawyer. Is the
lawyer bound, or is the party also bound? NO, because the rule is
service to lawyer binds the client and not the other way around.
So, to avoid all these problems, there must be a uniform rule
UNLESS, the law says, SERVICE UPON THE PARTY HIMSELF IS
ORDERED BY THE COURT.
Example is in the case of
RETONI, JR. vs. COURT OF APPEALS
218 SCRA 468 [1993]
HELD: “Usually, service is ordered upon the party himself, instead
of upon his attorney, [1] when it is doubtful who the attorney for
such party is, or [2] when he cannot be located or [3] when the
party is directed to do something personally, as when he is ordered
to show cause.”
There are rare circumstances however where service to the lawyer
does not bind the client. These are cases of negligence; where the
lawyer is in bad faith for gross negligence; where he deliberately
prejudiced his client. So it is unfair that the party may be bound by
the service to the lawyer because of those circumstances. One such
instance happened in the case of
BAYOG vs. NATINO
258 SCRA 378 [1996]
HELD: “Notice to the lawyer who appears to have been
unconscionably irresponsible cannot be considered as notice to his
client. The application to the given case of the doctrine that notice
to counsel is notice to parties should be looked into and adopted,
according to the surrounding circumstances; otherwise, in the
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court’s desire to make a short cut of the proceedings, it might
foster, wittingly or unwittingly, dangerous collusions to the
detriment of justice. It would then be easy for one lawyer to sell
one’s rights down the river, by just alleging that he just forgot
every process of the court affecting his clients, because he was so
busy.”
Q: Now, if there are 5 defendants in the same case and there is
only one (1) lawyer for all, is the lawyer entitled to 5 copies also?
A: NO, the lawyer is not entitled to 5 copies but only one (1). Last
sentence, “Where one counsel appears for several parties, he shall
only be entitled to one copy of any paper served upon him by the
opposite side.” But if the 5 defendants are represented by different
lawyers, that is another story. Every lawyer has to be furnished a
copy.
Q: Suppose you are represented by three or more lawyers should
every lawyer be served a copy?
A: NO, service on one is sufficient. Section 2 says, “…service shall
be made upon his counsel or one of them…” Service to one is
service to all. You can do it if you want to but service on one will
suffice.
A. FILING OF PLEADINGS, JUDGMENTS AND OTHER PAPERS
Now, how do you file pleadings? Section 3:
Sec. 3. Manner of filing. The filing of pleadings, appearances,
motions, notices, orders, judgments and all other papers shall be
made by presenting the original copies thereof, plainly indicated
as such, personally to the clerk of court or by sending them by
registered mail. In the first case, the clerk of court shall endorse
on the pleading the date and hour of filing. In the second case,
the date of the mailing of motions, pleadings, or any other papers
or payments or deposits, as shown by the post office stamp on
the envelope or the registry receipt, shall be considered as the
date of their filing, payment, or deposit in court. The envelope
shall be attached to the record of the case. (1a)
Now, judgments. It must be filed. Why will the court file its own
judgment before itself? Actually, the judge has to file his decision
before the court. Read Rule 36, Section 1:
Rule 36, Section 1. Rendition of judgments and final orders. A
judgment or final order determining the merits of the case shall
be in writing personally and directly prepared by the judge,
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stating clearly and distinctly the facts and the law on which it is
based, signed by him, and filed with the clerk of the court. (1a)
So, the judge has to file his own decision to make it official.
Under Section 3, there are two (2) modes of filing – either
1.) Personal by presenting the original copy of the pleading,
notice, appearance, motion, order or judgment,
personally to the clerk of court; or
2.) by registered mail
First Mode of Filing: PERSONAL FILING
This mode of filing is done personally to the clerk of court. You go
to the court and the court will mark it RECEIVED on January 15,
1998, 9:00 a.m. Then, that is deemed filed. That is personal filing.
Section 3 says, “…by presenting the original copies thereof, plainly
indicated as such personally to the clerk of court…” There was a
lawyer before who referred to me. He said he filed a complaint. -
There are many copies of it. The court will usually receive 2 or 3
copies – 1 for itself, 1 for the defendant to be served with
summons.
Second Mode of Filing: FILING BY REGISTERED MAIL
The other mode is by registered mail. It is not ordinary mail. It is
filing through the registry service and made by depositing the
pleading in the post office and not through any other means of
transmission.
If a private carrier is availed of by the party, the date of actual
receipt by the court of such pleading and not the date of delivery to
the private carrier, is deemed to be the date of the filing of that
pleading (Benguet Electric Cooperative Inc. vs. NLRC, GR No. 89070
May 18, 1992)
Q: What is the importance of registered mail on filing of pleadings
and motions in court?
A: The importance is the rule that in registered mails, the date of
filing is the date of mailing. If you send the pleading through the
Post Office by registered mail, the date of filing is not the date on
which the letter reached the court but on the day that you mailed
it. So the date on the envelope is officially the date of filing.
Q: Now, suppose I will file my pleading not by registered mail but
through messengerial service like LBC or JRS Express delivery, or by
ordinary mail? What is the rule if instead of the registered service
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of the Post Office, you availed the private messengerial service or
by ordinary mail?
A: The mailing in such cases is considered as personal filing and the
pleading is not deemed filed until it is received by the court itself.
When it is by registered mail, the date of mailing as shown by the
Post Office stamp is considered as the date of filing. The envelope
is attached. The post office is automatically a representative of the
court for the purpose of filing. In other words, the law treats the
messengerial company only as your process helper. That is why in
the 1994 case of
INDUSTRIAL TIMBER CORP. vs. NLRC
233 SCRA 597 [1994]
HELD: “Where a pleading is filed by ordinary mail or by private
messengerial service, it is deemed filed on the day it is actually
received by the court, not on the day it was mailed or delivered to
the messengerial service.”
What about filing by FAX machine? In the case of
GARVIDA vs. SALES, JR.
April 18, 1997
HELD: “Filing a pleading by facsimile transmission is NOT
sanctioned by the Rules of Court. A facsimile is not a genuine and
authentic pleading. It is, at best, an exact copy preserving all the
marks of an original. Without the original, there is no way of
determining on its face whether the facsimile pleading is genuine
and authentic and was originally signed by the party and his
counsel. It may, in fact, be a sham pleading.”
Q: Now, how do you prove that really the pleading was filed?
A: Section 12. This is a new rule on how to prove that a pleading is
filed –
Sec. 12. Proof of filing. The filing of a pleading or paper shall be
proved by its existence in the record of the case. If it is not in the
record, but is claimed to have been filed personally, the filing
shall be proved by the written or stamped acknowledgment of its
filing by the clerk of court on a copy of the same; if filed by
registered mail, by the registry receipt and by the affidavit of the
person who did the mailing, containing a full statement of the
date and place of depositing the mail in the post office in a sealed
envelope addressed to the court, with postage fully prepaid, and
with instructions to the postmaster to return the mail to the
sender after ten (10) days if not delivered. (n)
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Q: Suppose I filed it in court PERSONALLY, but it is not there,
therefore, there is no showing that I filed it in court personally. So
how do I prove it?
A: Just show your copy which is duly stamped and received by the
court. Definitely, the fault is not yours but with the clerk of court.
Q: If filed by REGISTERED MAIL. Suppose the court has no copy of
it, it had been lost between the post office and the court?
A: Prove it by presenting the registry receipt and the affidavit of the
server, a. containing a full statement of the date and place of
depositing the mail in the post office in a sealed envelope
addressed to the court;
b. with postage fully paid and
c. with instructions to the postmaster to return the mail to the
sender after 10 days if undelivered.
It must be stressed that the affidavit is very important.
B. SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS
Sec. 4. Papers required to be filed and served. Every judgment,
resolution, order, pleading subsequent to the complaint, written
motion, notice, appearance, demand, offer of judgment or similar
papers shall be filed with the court, and served upon the parties
affected. (2a)
Under the law, before you file, there must be service to the
opposing party’s counsel. And all documents, as a rule, shall be
filed to the court and served to the parties affected. Or, all
pleadings SUBSEQUENT to the complaint…. Why subsequent’?
Meaning, answer, counterclaim, cross-claim.
Q: Do you mean to tell me the complaint does not have to be
served to the defendant by the plaintiff?
A: Of course not! It is the sheriff who will serve it to the defendant.
So, the plaintiff does not really have to go to the defendant to
serve the complaint. The complaint is brought to the court because
the summons will be issued.
But if you are the defendant’s lawyer, you go directly to the
plaintiff’s lawyer to serve the answer because an answer is a
pleading ‘subsequent’ to the complaint. Moreover, the manner of
serving complaint is not governed by 13 but by Rule 14.
Alright, every paper is required to be filed and served. Some people
do not understand this – “Every judgment, resolution, order… shall
be filed with the court and served to the parties...” Well of course,
with respect to pleadings, motions, etc., you file and serve because
there must be proof of service to the adverse party.
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Sec. 5. Modes of service. Service of pleadings, motions, notices,
orders, judgments and other papers shall be made either
personally or by mail. (3a)
Q: How do you SERVE a pleading to the opposite party?
A: Either:
1.) personally (Sec. 6)or
2.) by mail (Sec. 7); or
3.) Substituted service under Section 8 in case of failure of
the personal service or by registered mail
PERSONAL SERVICE OF PLEADINGS
Sec. 6. Personal service. Service of the papers may be made by
delivering personally a copy to the party or his counsel, or by
leaving it in his office with his clerk or with a person having
charge thereof. If no person is found in his office, or his office is
not known, or he has no office, then by leaving the copy, between
the hours of eight in the morning and six in the evening, at the
party's or counsel's residence, if known, with a person of
sufficient age and discretion then residing therein. (4a)
Personal service under Section 6 is the preferred mode of service
(Sec. 11; Uy vs. Medina 342 SCRA 393).
If another mode is used, the service must be accompanied by a
written explanation why the service or filing was not done
personally. Exempt from his explanation are papers emanating
from the court. A violation of this explanation requirement may be
cause for the paper to be considered as not having been filed.
In Marinduque Mining and Industrial Corporation, GR 161219,
October 6, 2008, petitioners maintain that the trial court should
have considered the notice of appeal as not filed at all because
respondent (NAPOCOR) failed to comply with the rule under Sec.
11 requiring that the service and filing of pleadings and other
papers shall be done personally. On the other hand, respondent
argues that the rules allow resort to other modes of service and
filing as long as the pleading was accompanied by a written
explanation why service or filing was not done personally.
Respondent maintains that it complied with the rules because the
notice of appeal contained an explanation why it resorted to
service and filing by registered mail – due to lack of manpower to
effect personal service.
The Court held:
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“Under Sec. 11, Rule 13 of the Rules, personal service of pleadings
and other papers is the general rule while resort to the other
modes of service and filing is the exception. When recourse is
made to the other modes, a written explanation why service or
filing was not done personally becomes indispensable. If no
explanation is offered to justify resorting to the other modes, the
discretionary power of the court to expunge the pleading comes
into play.
In this case, NAPOCOR complied with the Rules. NAPOCOR’s notice
of appeal was served and filed by registered mail – due to lack of
manpower to effect personal service. This explanation is acceptable
for it satisfactorily shows why personal service was not practicable.
(Citing Solar Team Entertainment, Inc. vs. Ricafort, 355 Phil. 404;
Public Estates Authority vs. Caoibes, 371 Phil. 688).
How are pleadings served personally?
Personal service is made by: (a) delivering a copy of the papers
served personally to the party or his counsel, or (b) by leaving the
papers in his office with his clerk or a person having charge thereof.
If no person is found in the office, or his office is not known or he
has no office, (c) then by leaving a copy of the papers at the party’s
or counsel’s residence, if known, with a person of sufficient age and
discretion residing therein between eight in the morning and six in
the evening. (Sec. 6)
Now, let us go to some cases on personal service. The case of
PLDT vs. NLRC
128 SCRA 402 [1984]
FACTS: The office of the lawyer is on the 9th floor of a building in
Makati. So, siguro, sira iyong elevator, gikapoy iyong process
server, what he did was, he left the copy of the judgment to the
receiving station at the ground floor.
ISSUE: Was there a valid service?
HELD: NO. The address of the lawyer is at the 9th floor. So, you
serve it on the 9th floor and not at the ground floor with somebody
who is not even connected with the law office.
“Notices to counsel should properly be sent to the address of
record in the absence of due notice to the court of change of
address. The service of decision at the ground floor of a party’s
building and not at the address of record of the party’s counsel on
record at the 9th floor of the building cannot be considered a valid
service.”
“Service upon a lawyer must be effected at the exact given address
of the lawyer and not in the vicinity or at a general receiving
section for an entire multi-storied building with many offices.”
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But the case of PLDT should not be confused with what happened
in the case of
PCI BANK vs. ORTIZ
150 SCRA 680 [1987]
FACTS: This time, the office of the lawyer is located on the
5th floor. And again, the habit of the process server is that instead
of going to the 5th floor, he would just approach the receiving
station on the ground floor. Now, of course the receiving clerk,
everytime the lawyer passes by, gave it to the lawyer. And the
lawyer here did not question the practice.
Now, when a decision against PCI Bank was served, the lawyer
claimed they are not bound because there was no proper service.
ISSUE: Was there proper service?
HELD: While is true that the service was improper, but the trouble
is, it was going on for some time and you are not complaining. So,
the ground floor becomes your adopted address.
“They cannot now disown this adopted address to relieve them
from the effects of their negligence, complacency or inattention.
Service, therefore, of the notice of judgment at the ground floor of
the building, should be deemed as effective service.”
So, the judgment became final. There was no appeal. Those are
examples of personal service.
In one case, service of the COA resolution was made to the resident
corporate auditor of the petitioner DBP. The auditor holds office in
the premises of petitioner DBP and is actually an employee of the
COA assigned to DBP by COA.
Respondent COA contends that the service of the COA resolution to
petitioner’s resident corporate auditor is tantamount to a service
upon the petitioner itself. Petitioner, on the other hand, argues
that the resident corporate auditor is not its employee but that of
the respondent.
The SC agreed with the contention of the DBP that the resident
corporate auditor of the DBP is neither an official nor an employee
of the DBP. He does not come within the definition of “clerk or
person having charge” of the office that may be validly served with
a copy of the resolution of the respondent as contemplated by the
Rules. In fact, the resident corporate auditor is an extension of the
respondent COA and no department of the petitioner was actually
served with a copy of the resolution. (DBP v.COA GR 166933 August
10, 2006).
Q: So, when is personal service complete?
A: It is completed upon actual delivery.
a. By handling a copy to defendant; or
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b. tendering him a copy if he refuses.
Sec. 10. Completeness of service. Personal service is complete
upon actual delivery. Service by ordinary mail is complete upon
the expiration of ten (10) days after mailing, unless the court
otherwise provides. Service by registered mail is complete upon
actual receipt by the addressee, or after five (5) days from the
date he received the first notice of the postmaster, whichever
date is earlier. (8a)
SERVICE OF PLEADINGS BY MAIL
Sec. 7. Service by mail. Service by registered mail shall be made by
depositing the copy in the office, in a sealed envelope, plainly
addressed to the party or his counsel at his office, if known,
otherwise at his residence, if known, with postage fully pre-paid,
and with instructions to the postmaster to return the mail to the
sender after ten (l0) days if undelivered. If no registry service is
available in the locality of either the sender or the addressee,
service may be done by ordinary mail. (5a; as amended by En Banc
Resolution, Feb. 17, 1998)
Now, SERVICE BY MAIL. You can also serve your pleadings by mail.
You will notice this time although the law prefers service by
registered mail, however, the last sentence of Section 7 says, “If no
registry service is available in the locality of either the sender or the
addressee, service may be done by ordinary mail.”
Take note, comparing Section 7 with Section 3, service by ordinary
mail may be allowed for purposes of service (Section 7), but for
purposes of filing (Section 3), the law does not recognize the
ordinary mail. If you do it, it will be treated as personal filing. In
ordinary mail, the date of receipt is considered the date of filing
not the date of mailing.
Q: Now, when is service by mail deemed complete?
A: Section 10:
Sec. 10. Completeness of service. xxxxxx Service by ordinary mail is
complete upon the expiration of ten (10) days after mailing,
unless the court otherwise provides.
Service by registered mail is complete upon actual receipt by the
addressee, or after five (5) days from the date he received the
first notice of the postmaster,xxx
Note: whichever date is earlier. (8a)
So that is for the people who refuse to claim their mail even if they
are already notified. He knows it is an order he expects to be
adverse so he will try to defeat the service by not claiming it. NO,
you are at a disadvantage because after the expiration of so many
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days, service is deemed completed. That is what you call
CONSTRUCTIVE SERVICE. So, a party or a lawyer cannot defeat the
process of the law by simply not claiming his mail. You can be
bound by a decision which you never read. That is constructive
service.
SUBSTITUTED SERVICE OF PLEADINGS
Sec. 8. Substituted service. If service of pleadings, motions,
notices, resolutions, orders and other papers cannot be made
under the two preceding sections, the office and place of
residence of the party or his counsel being unknown, service may
be made by delivering the copy to the clerk of court, with proof of
failure of both personal service and service by mail. The service is
complete at the time of such delivery. (6a)
This mode is availed of only when there is failure to effect service
personally or by mail. This failure occurs when the office and
residence of the party or counsel is unknown (Sec. 8).
Substituted service is effected by delivering the copy to the clerk of
court, with proof of failure of both personal service and service by
mail (Sec. 8).
Affidavit of service
How to prove service Endorsement of the clerk of court
Sec. 13. Proof of service. Proof of personal service shall consist of a
written admission of the party served, or the official return of the
server, or the affidavit of the party serving, containing a full
statement of the date, place and manner of service. If the service
is by ordinary mail, proof thereof shall consist of an affidavit of
the person mailing of facts showing compliance with section 7 of
this Rule. If service is made by registered mail, proof shall be
made by such affidavit and the registry receipt issued by the
mailing office. The registry return card shall be filed immediately
upon its receipt by the sender, or in lieu thereof the unclaimed
letter together with the certified or sworn copy of the notice
given by the postmaster to the addressee. (10a)
Q: How do you prove that you furnished the opposing lawyer a
copy by PERSONAL SERVICE?
A: It is
a. through the written admission of the party served as admitted
that he had been furnished with a copy.
b. The other alternative is that you file the affidavit of your
employee, or messenger, that he served the copy in the office of so
and so. (containing full statement of facts).
c. Or, the official return of the server for judgments, orders, etc.,
from the court.
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The procedure is that there is a pleading and in the last portion
there is that part which states:
Copy received : January 16, 1998
By : (Signed) Atty. X
Counsel of
Plaintiff
Q: If it is by ORDINARY MAIL, how do you prove in court that you
served a copy?
A: If it is ordinary mail, proof thereof shall consist of an affidavit of
the person mailing of facts showing compliance with Section 7.
Q: If it is by REGISTERED MAIL, how do you prove in court that you
served a copy?
A: If service is made by registered mail, proof shall consist of
a. the affidavit of the mailer and
b. the registry receipt issued by the mailing office.
The registry return card shall be filed immediately upon its receipt
by the sender. Or, in lieu thereof, of the unclaimed letter together
with the certified or sworn copy of the notice given by the
postmaster – that is a constructive service.
Now in practice among lawyers when we serve by registered mail,
we only attach the original in the registry receipt and there is a
quotation there in the original pleading, “Copy sent by registered
mail, this 17th day of January, 1998 to Atty. Juan dela Cruz, counsel
for the plaintiff per registry receipt no. 123 hereto attached,” and
nobody complains.
But in reality, the law does not allow that. There must be an
affidavit of the person who mailed it. The surrender of a registry
receipt alone is not sufficient because if you send the registry
receipt, it is not reflected to whom that letter is addressed so how
will the court know that the registry receipt really corresponded to
the pleading that you mailed? It might be another letter like a love
letter for your girlfriend or a letter to your creditor. The registry
receipt will not indicate kung ano ang na-mailed to his address. But
we just allow it because it is too tedious – everytime you file,
affidavit?!!
But take note, the CA and the SC enforce this strictly. Even if you
mail a petition at may nakalagay na “Copy sent by registered mail”
without the affidavit, outright dismissal yan for lack of proof of
service. The SC and the CA are very strict about this requirement.
SERVICE OF DECISIONS, ORDERS, ETC.
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Sec. 9. Service of judgments, final orders or resolutions. Judgments,
final orders or resolutions shall be served either personally or by
registered mail. When a party summoned by publication has
failed to appear in the action, judgments, final orders or
resolutions against him shall be served upon him also by
publication at the expense of the prevailing party. (7a)
There are three (3) modes again of serving court orders or
judgments to parties:
1.) personally;
2.) registered mail; or
3.) service by publication, if a party is summoned by
publication and has failed to appear in the action.
Note: No substituted service
Court orders or judgments orders have to be served also, either
personally or by registered mail. That’s why if you go to the court,
there are employees there who are called process servers.
Everyday, they go around from law office to law office to serve
court orders, notices and judgments. And that is personal service.
But if the lawyer is a Manila lawyer, or is out of town, chances are
the clerk of court will apply registered mail.
Under Section 9, there is a third mode of service of court orders
and judgments and that is service by publication. That is if the
parties were summoned by publication under Rule 14 and they did
not appear. The judgment is also served to them by publication at
the expense of the prevailing party.
Registered return card should
be sworn to by post master
Sec. 11. Priorities in modes of service and filing. Whenever
practicable, the service and filing of pleadings and other papers
shall be done personally. Except with respect to papers
emanating from the court, a resort to other modes must be
accompanied by a written explanation why the service or filing
was not done personally. A violation of this Rule may be cause to
consider the paper as not filed. (n)
That is a radical provision. In other words, there are two (2) ways of
service and filing: personal or by mail. And the law says, personal
service is preferred to mail. Meaning, personal service is prioritized.
Q: Suppose you served the opposing counsel by mail.
A: The law requires that you must give an explanation why you
resorted to mail and not to personal service.
Q: Suppose I will file it without any explanation.
A: The law says, “A violation of this rule may be cause to consider
the paper as not filed.” And that is a very radical rule..
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For EXAMPLE: the opposing counsel is in Manila, and the case is in
Davao. He will mail to you the pleading or motion and then, include
the following: “Explanation: I have to resort to registered mail
because it is expensive for me to resort to personal service. It is
expensive if I will send my messenger to Davao just to serve
whereas if I send by registered mail, it will only cost me P5.00.”
They have to state that.
Now, I think the purpose of this new provision has been provoked
by some malpractices of the lawyers. There were some instances
before which have been confirmed especially in Metro Manila. The
opposing counsel is holding office just across the street and he will
send a motion to be received today. Instead of serving you, he will
mail it. They will deliberately do it because it could not reach you
on time. I think if you do that, I will not consider your motion.
Take note that courts are not covered by Section 11. It only applies
to lawyers and parties. The court does not have to explain why it
resorted to registered mail because Section 11 says, “Whenever
practicable, the service and filing of pleadings and other papers
shall be done personally EXCEPT WITH RESPECT TO PAPERS
EMANATING FROM THE COURT.”
So the court is not obliged to give any explanation, only the parties
and their lawyers.
SOLAR TEAM ENTERTAINMENT vs. RICAFORT
293 SCRA 661 [August 5, 1998] J. Davide
FACTS: Solar Team filed before the RTC a complaint against Felix
Co. Summons and copies of the complaint were forthwith served
on Co. Co then filed his answer. A copy thereof was furnished
counsel for Solar Team by registered mail; however, the pleading
did not contain any written explanation as to why service was not
made personally upon Solar Team, as required by Section 11 of
Rule 13.
Solar Team filed a motion to expunge the answer and to declare Co
in default, alleging therein that Co did not observe the mandate of
Section 11. RTC issued an order stating that under Section 11 of
Rule 13, it is within the discretion of the RTC whether to consider
the pleading as filed or not, and denying, for lack of merit, Solar
Team’s motion to expunge.
HELD: “Pursuant to Section 11 of Rule 13, service and filing of
pleadings and other papers MUST, whenever practicable, be done
personally; and if made through other modes, the party concerned
must provide a written explanation as to why the service or filing
was not done personally. Note that Section 11 refers to BOTH
service of pleadings and other papers on the adverse party or his
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counsel as provided for in Sections 6, 7 and 8; and to the filing of
pleadings and other papers in court.”
“Personal service will do away with the practice of some lawyers
who, wanting to appear clever, resort to the following less than
ethical practices: serving or filing pleadings by mail to catch
opposing counsel off-guard, thus leaving the latter with little or no
time to prepare, for instance, responsive pleadings or an
opposition; or, upon receiving notice from the post office that the
registered parcel containing the pleading of or other paper from
the adverse party may be claimed, unduly procrastinating before
claiming the parcel, or, worse, not claiming it at all, thereby causing
undue delay in the disposition of such pleading or other papers.”
“If only to underscore the mandatory nature of this innovation to
our set of adjective rules requiring personal service whenever
practicable, Section 11 then gives the court the discretion to
consider a pleading or paper as not filed if the other modes of
service or filing were resorted to and no written explanation was
made as to why personal service was not done in the first place.
The exercise of discretion must, necessarily, consider the
practicability of personal service, for Section 11 itself begins with
the clause ‘whenever practicable.’”
“We thus take this opportunity to clarify that under Section 11:
Personal service and filing is the GENERAL RULE, and resort to
other modes of service and filing, the EXCEPTION. Henceforth,
whenever personal service or filing is practicable, in light of the
circumstances of time, place and person, personal service or filing
is mandatory. Only when personal service or filing is not practicable
may resort to other modes be had, which must then be
accompanied by a written explanation as to why personal service
or filing was not practicable to begin with.”
“Of course, proximity would seem to make personal service most
practicable, but exceptions may nonetheless apply such as when:
the adverse party or opposing counsel to be served with a pleading
seldom reports to office and no employee is regularly present to
receive pleadings, or service is done on the last day of the
reglementary period and the office of the adverse party or
opposing counsel to be served is closed, for whatever reason.”
“However in view of the proximity between the offices of opposing
counsel and the absence of any attendant explanation as to why
personal service of the answer was not effected, indubitably, Co’s
counsel violated Section 11 and the motion to expunge was prima
facie meritorious. However, the grant or denial of said motion
nevertheless remained within the sound exercise of the RTC's
discretion.”
“To Our mind, if motions to expunge or strike out pleadings for
violation of Section 11 were to be indiscriminately resolved under
Section 6 of Rule 1, then Section 11 would become meaningless
and its sound purpose negated. Nevertheless, We sustain the
challenged ruling of the RTC, but for reasons other than those
provided for in the challenged order.”
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“The 1997 Rules of Civil Procedure took effect only on 1 Jul 1997,
while the answer was filed only on 8 Aug 1997, or on the 39th day
following the effectivity of the 1997 Rules. Hence, Co’s counsel may
not have been fully aware of the requirements and ramifications of
Section 11. It has been several months since the 1997 Rules of Civil
Procedure took effect. In the interim, this Court has generally
accommodated parties and counsel who failed to comply with the
requirement of a written explanation whenever personal service or
filing was not practicable, guided, in the exercise of our discretion,
by the primary objective of Section 11, the importance of the
subject matter of the case, the issues involved and the prima facie
merit of the challenged pleading.”
“However, as we have in the past, for the guidance of the Bench
and Bar, strictest compliance with Section 11 of Rule 13 is
mandated one month from promulgation of this Decision.”
“WHEREFORE, the instant petition is DISMISSED considering that
while the justification for the denial of the motion to expunge the
answer (with counterclaims) may not necessarily be correct, yet,
for the reasons above stated, the violation of Section 11 of Rule 13
may be condoned.”
Sec. 13. Proof of service. Proof of personal service shall consist of a
written admission of the party served, or the official return of the
server, or the affidavit of the party serving, containing a full
statement of the date, place and manner of service. If the service
is by ordinary mail, proof thereof shall consist of an affidavit of
the person mailing of facts showing compliance with section 7 of
this Rule. If service is made by registered mail, proof shall be
made by such affidavit and the registry receipt issued by the
mailing office. The registry return card shall be filed immediately
upon its receipt by the sender, or in lieu thereof the unclaimed
letter together with the certified or sworn copy of the notice
given by the postmaster to the addressee. (10a)
This has been discussed already.
Let’s go to this topic of CONSTRUCTIVE SERVICE that if the
registered mail was not received and therefore you want to avail of
the rules on constructive service – it is deemed served upon the
expiration of so many days. What you will file in court is the
unclaimed letter together with a certified or sworn copy of the
notice given by the postmaster to the addressee.
Let us see what happened in the case of
JOHNSON AND JOHNSON PHILS. vs. COURT OF APPEALS
201 SCRA 768 [1991]
FACTS: The CA served Johnson and Johnson Philippines a
decision in an envelope by registered mail. After a while, the same
envelope was returned to the CA. On the face of the envelope, it as
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written, “Return to Sender, Unclaimed.” On the back of the
envelope, there is an annotation “Return to CA”.
With that, the CA applied the rule on constructive service –
considered the decision as already served. Johnson and Johnson
Philippines questioned it. It never received any notice from the
post office. But according to the CA, it is very obvious. It is there in
the envelope still sealed.
ISSUE: Is there proper application of the rules on constructive
service?
HELD: There is NO constructive service because there is no
certification by the postmaster that is claimed. This is what the law
requires not just a one sentence statement. One cannot even
ascertain who wrote the statement. Certification should include
the details of delivery and not just state that notice was issued.
“A certification from the postmaster would be the best evidence to
prove that the notice has been validly sent. The mailman may also
testify that the notice was actually delivered. The postmaster
should certify not only that the notice was issued or sent but also
as to how, when and to whom the delivery thereof was made.”
“There is nothing in the records of the present case showing how,
when and to whom the delivery of the registry notices of the
subject registered mail of petitioner was made and whether said
notices were received by the petitioner. The envelope containing
the unclaimed mail merely bore the notation “RETURN TO SENDER:
UNCLAIMED” on the face thereof and “Return to: Court of Appeals”
at the back. The respondent court should not have relied on these
notations to support the presumption of constructive service.”
The case of JOHNSON was reiterated in
SANTOS vs. COURT OF APPEALS
293 SCRA 147 [Sept. 3, 1998]
FACTS: Jesus Santos, was sued for damages on by Omar
Yapchiongco before the CFI. CFI dismissed the complaint for lack of
merit. CA reversed and declared Santos liable for damages.
On 15 June 1995, the decision of the CA was sent by registered mail
to Santos’ counsel, Atty. Magno. On the same day, the
corresponding notice of registered mail was sent to him. The mail
remained unclaimed and consequently returned to the sender.
After 3 notices, the decision was returned to the sender for the
same reason.
On 27 September 1995, a notice of change of name and address of
law firm was sent by Atty. Magno to CA. On 28 March 1996, the
same decision of CA was sent anew by registered mail to Atty.
Magno at his present address which he finally received on 3 April
1996. On 17 April 1996, Magno withdrew his appearance as
counsel for Santos.
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On 18 April 1996, Santos’ new counsel, Atty. Lemuel Santos,
entered his appearance and moved for reconsideration of CA's
decision of 6 June 1995. Yapchiongco opposed the motion on the
ground that the period for its filing had already expired.
HELD: “The rule on service by registered mail contemplates 2
situations: (1.) Actual service - the completeness of which is
determined upon receipt by the addressee of the registered mail;
(2.) Constructive service - the completeness of which is determined
upon the expiration of 5 days from the date of first notice of the
postmaster without the addressee having claimed the registered
mail.”
“For completeness of constructive service, there must be
conclusive proof that Santos’s former counsel or somebody acting
on his behalf was duly notified or had actually received the notice,
referring to the postmaster's certification to that effect.”
“Here, Santos failed to present such proof before CA but only did
so in the present proceedings. Clearly then, proof should always be
available to the post office not only of whether or not the notices
of registered mail have been reported delivered by the letter
carrier but also of how or to whom and when such delivery has
been made.”
“Consequently, it cannot be too much to expect that when the post
office makes a certification regarding delivery of registered mail,
such certification should include the data not only as to whether or
not the corresponding notices were issued or sent but also as to
how, when and to whom the delivery thereof was made.
Accordingly, the certification in the case at bar that the first and
second notices addressed to Atty. Magno had been "issued" can
hardly suffice the requirements of equity and justice. It was
incumbent upon the post office to further certify that said notices
were reportedly received.”
This last section, Section 14, has something to do with real actions,
land titles – notice of lis pendens.
Sec. 14. Notice of lis pendens. In an action affecting the title or the
right of possession of real property, the plaintiff and the
defendant, when affirmative relief is claimed in his answer, may
record in the office of the registry of deeds of the province in
which the property is situated a notice of the pendency of the
action. Said notice shall contain the names of the parties and the
object of the action or defense, and a description of the property
in that province affected thereby. Only from the time of filing
such notice for record shall a purchaser, or encumbrancer of the
property affected thereby, be deemed to have constructive notice
of the pendency of the action, and only of its pendency against
the parties designated by their real names
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The notice of lis pendens hereinabove mentioned may be
cancelled only upon order of the court, after proper showing that
the notice is for the purpose of molesting the adverse party, or
that it is not necessary to protect the rights of the party who
caused it to be recorded. (24a, R14)
This used to be in Rule 14 of the 1964 Rules of Court where it was
misplaced. I do not know why notice of lis pendens which refers to
lands, titles and deeds appears under the rules on Summons. It was
misplaced so they place it under Rule 13 which is also misplaced.
NOTICE OF LIS PENDENS is a notice of pending action or litigation
between the parties involving title to or right of possession over
real property.
Requisites:
1/ Action affects the title or the right of possession of a real
property;
2. Affirmative relief is claimed;
3. Notice shall contain the name of the parties and the object of
the action or defense and a description of the property affected
thereby; and
4. Action in rem (AFP Mutual Benefit Association, Inc. vs. CA GR No.
104769, March 3, 2000)
This serves as a warning to all persons that a particular real
property is in litigation, and that one who acquires an interest over
said property does so at his own risk, or that he gambles on the
result of the litigation over said property (Lee Tek Sheng vs. CA, GR
No. 115402, July 15, 1998)
It may involve actions that deal not only with the title or possession
of a real property, but even with the use or occupation thereof.
(Ake hernudd, Gosta Jansbo, Hans ryngelsson, Peter Lofgren and
Jordana Holdings Corporation, for itself and on behalf of San Remo
Development Corp. Inc., vs. Lars E. Lofgren, Liza Salcedo-Lofgren,
Leosyl Salcedo and San Remo Development, Inc., GR No. 140337,
Sept. 27, 2007).
The defendant may also record a notice of lis pen dens when he
claims an affirmative relief in the answer.
This is part of the Property Registration Law. The essence of notice
of lis pendens is a notice against the whole world against sale or
mortgage of the property under litigation. And whoever deals with
it is accepting the risk. Anybody who buys it is gambling on the
outcome of the case. He cannot claim he is the mortgagee or buyer
in good faith because there is a notice.
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I will file a case for recovery of a piece of land and the title is in
your name. There is a danger that you will sell the land to others
who know nothing about the case. So if I win the case and try to
recover it to the buyer, the buyer will say he bought the land in
good faith, “I did not know that there is a pending action
concerning this land.” And under the law, he is protected because
he is a buyer in good faith and for value. This is if there is no notice
of lis pendens. The other risk is that the owner of the land will
mortgage his property.
A person buying a property with a notice of lis pendens is buying it
subject to the outcome of the case. So you are gambling.
Now, as GENERAL RULE, the one who registers a notice of lis
pendens is the plaintiff. Exception:
Q: Under Section 14, can the defendant register a notice of lis
pendens?
A: YES. The law states that “The plaintiff and the defendant may
register when affirmative relief is claimed in this answer.” In such
case, a defendant may register and normally it is done when there
is a counterclaim. The defendant is also interposing a defense with
the same property.
Take note that the action in this case affects the right of possession
over real property.
Q: How is a notice of lis pendens cancelled?
A: GENERAL RULE: The notice of lis pendens under the rules cannot
be removed without the order from the court and generally the
court cannot issue the order until the case is finished or until the
final issue of the case is determined.
EXCEPTION: But in some rare instances, the SC has authorized the
cancellation of the notice of lis pendens even when the case is not
yet terminated. One of which is contemplated under Section 14:
“After proper showing that the notice is: *a+ For the purpose of
molesting the adverse party; or [b] It is not necessary to protect the
rights of the party who caused it to be recorded.” In the case of
ROXAS vs. DY
233 SCRA 643 [1993]
FACTS : Plaintiff filed a case against the defendant to recover a
piece of land registered in the name and possessed by the
defendant. The case has been going on for more than 1 year, the
plaintiff has been presenting evidence he plaintiff has not yet
shown that he has right over the land.
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HELD: So there is no more basis of notice of lis pendens because

your purpose is to harass the defendant for over a year litigation
without showing right over the land.
“While a notice of lis pendens cannot ordinarily be cancelled for as
long as the action is pending and unresolved, the proper court has
the authority to determine whether to cancel it under peculiar
circumstances, e.g., where the evidence so far presented by the
plaintiff does not bear out the main allegations in the complaint.”

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Rule 14 Service of summons is required even if the defendant is aware of

the filing of the action against him. His knowledge of the existence
SUMMONS of a case is not one of the modes by which a court acquired
jurisdiction over the person of the defendant (Haban vs. Vamenta,
33 SCRpersonal
Section 1. Clerk to issue summons. Upon the filing of the complaint
and the payment of the requisite legal fees, the clerk of court
Effect of Non-Service
shall forthwith issue the corresponding summons to the
Unless the defendant voluntarily submits to the jurisdiction of the
defendants. (1a)
court, non-service or irregular service of summons renders null and
void all subsequent proceedings and issuances in the action from
Summons is the writ by which the defendant is notified of the
the order of default up to and including the judgment by default
action brought against him (Cano-Gutierrez vs. Gutierrez, 341 SCRA
and the order of execution.
670; Guanzon vs. Arradaza 510 SCRA 309).

The non-service or invalidity of service of summons may be a

Summons in civil cases is the counterpart of warrant of arrest in
ground for dismissal for lack of jurisdiction over the person of the
criminal cases. Under the Rules on Criminal Procedure, when an
defending party.
information is filed in court, the judge will issue a warrant of arrest.
In civil cases, when a complaint is filed in court, the court will issue
Note: Where the defendant has already been served with
what is known as a summons under Section 1.
summons on the original complaint, no further summons is
required on the amended complaint if it does not introduce new
The issuance of summons is not discretionary on the part of the
causes of action. (Ong Peng vs. Custodio, GR No. 14911, March 25,
court or the clerk of court but is a mandatory requirement. Section
1961)
1 directs that the clerk of court shall issue the corresponding
summons to the defendant upon (a) the filing of the complaint, and
But where the defendant was declared in default on the original
(b) the payment of the requisite legal fees. The use of the term
complaint and the plaintiff subsequently filed an amended
“shall” leaves no doubt as to the mandatory character of service of
complaint, new summons must be served on the defendant on the
summons.
amended complaint as the original complaint was deemed
withdrawn upon such amendment (Atkins vs. Domingo GR No. L-
Purpose of summons
19565, March 24, 1923)

Jurisdiction over the person of the defendant in a civil case is

General Rule:
acquired either by his voluntary appearance or service of summons
When an additional defendant is joined, summons must be served
upon him (Minucher vs. CA GR No. 142963, Feb. 11, 2003)
upon him.

Exceptions:
Actions in personam
1. When the administrator of a deceased party defendant
substitutes the deceased;
In action in personam, the purpose of summons is not only
2. Where upon the death of the original defendant his heirs are
a. to notify the defendant of the action against him
made parties; and
b.but also to acquire jurisdiction over his person (Umandap vs.
3. In cases of substitution of the deceased under Sec. 16 R 3
Sabio, Jr. 339 SCRA 243).

Note: In these instances, the service of the order of substitution is

The mere filing of the complaint does not enable the court to
sufficient.
acquire jurisdiction over the person of the defendant. By the filing
of the complaint and the payment of the required filing and docket
In actions in rem or quasi in rem
fees, the court acquires jurisdiction only over the person of the
In an action in rem or quasi in rem, jurisdiction over the defendant
plaintiff, not over the person of the defendant. Acquisition of
is not mandatory and the court acquires jurisdiction over an action
jurisdiction over the latter is accomplished by a valid service of
as long as it acquires jurisdiction over the res. The purpose of
summons upon him assuming he does not make a prior voluntary
summons in these actions is not the acquisition of jurisdiction over
appearance in the action. Service of summons logically follows the
the defendant but mainly to satisfy the constitutional requirements
filing of the complaint.
of due process (Gomez vs. CA 420 SCRA 98; Biaco vs. Phil.

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Countryside Rural Bank 515 SCRA 106; PCI Bank v. Alejandro 533
SCRA 738).
Uniformity of the rules on summons
The rules on summons apply with equal force in actions before the
RTC and first level courts. This is because the procedure in the first
level shall be the same as in the second level except (a) where a
particular provision expressly or impliedly applies only to either of
said courts, or (b) in civil cases governed by the Rules on Summary
Procedure (Sec. 1, Rule 5).
Section 2 states the contents of a summons:
Sec. 2. Contents. The summons shall be directed to the defendant,
signed by the clerk of court under seal, and contain: (a) the name
of the court and the names of the parties to the action; (b) a
direction that the defendant answer within the time fixed by
these Rules; (c) a notice that unless the defendant so answers,
plaintiff will take judgment by default and may be granted the
relief applied for.
A copy of the complaint and order for appointment of guardian ad
litem, if any, shall be attached to the original and each copy of the
summons. (3a)
Service of summons without copy of the complaint
Is the defendant bound to comply with the summons where service
was made without attaching a copy of the complaint?
In Pagalaran vs. Bal-latan 13 Phil. 135, the defendant was served
summons but without a copy of the complaint. She did not appear
and file her answer as ordered. The trial court then issued an order
declaring her in default. A principal issue raised in the SC was
whether or not the proceedings in the trial court should be
annulled on the ground that the defendant had never been
summoned pursuant to the Rules because she was not served a
copy of the complaint.
The SC, while admitting that the service of summons was
defective, treated the defect as having been waived by the
defendant’s failure to seasonably challenge the trial court’s
jurisdiction over her person. She should have appeared to
challenge the jurisdiction of the court.
Q: If a complaint is amended and an additional defendant is
included, is there a necessity of issuing new summons on the
additional defendant?
A: YES. When an additional defendant is included in the
action, summons must be served upon him for the purpose of
enabling the court to acquire jurisdiction over his person. The case
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is commenced against the additional defendant upon the
amendment in the complaint (Fetalino vs. Sanz, 44 Phil. 691)
Q: Suppose a defendant, who has already been summoned,
died, and there was substitution of party (under Rule 3), his legal
representative was substituted in his place, is there a necessity of
issuing new summons on the substituted defendant?
A: NO. The order of the court ordering him to be
substituted is already sufficient. Anyway he is only a continuation
of the personality of the original defendant. Just serve the copy of
the order, where he is ordered to be substituted. (Fetalino vs. Sanz,
44 Phil. 691)
BAR QUESTION: If a defendant is served with summons and later
on the complaint is amended by the plaintiff, is there a necessity
that another summons be issued and served based on the
amended complaint? Or is the summons of the original complaint
sufficient?
ANS: It depends on whether the amendment was made before or
after defendant’s appearance in the action:
Q: What do you mean by the phrase “appearance in the action”?
A: The best example is, whether the defendant files an answer to
the complaint. Appearance in civil cases does not mean that you
are there and show your face to the judge. That is not the meaning
of the word “appearance”. Appearance means filing something in
court which would show that the court has jurisdiction over your
person, like the filing of an answer. When the defendant filed an
answer through his lawyer, there is now appearance of the
defendant.
a.) If the defendant has not filed answer to the original
complaint there must be another summons issued on
the amended complaint. A new summons must be
served all over again based on the amended complaint.
(Atkins, Kroll & Co. vs. Domingo, 44 Phil. 680)
b.) If the defendant has already filed an answer to the
original complaint or he has already appeared in the
action, and after that the complaint is amended, there is
no need of issuing new summons on the amended
complaint. (Ibid; Ong Peng vs. Custodio, L-14911, March
1961)
Q: Connecting the question with Rule 11 (on periods to file
pleadings), suppose the defendant was served with summons on
the original complaint and before he could answer, there is now an
amended complaint, so there will be new summons on the
amended complaint, what is the period to file an answer?
A: The period to file an answer is 15 days all over again.
There will be another period of 15 days to file an answer to the
amended complaint upon receipt of the amended complaint and
the summons.
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Q: Suppose the defendant has already filed an answer to the
original complaint and after that there is an amended complaint,
what must the plaintiff do?
A: This time, there is no need of summons. All that the plaintiff has
to do is to furnish the defendant a copy of the amended complaint
together with the motion to admit it. Just serve the defendant a
copy of the amended complaint with a copy of the order admitting
the filing of the amended complaint.
Q: Suppose that the court allowed the admission of the amended
complaint, what is the period for the defendant to file an answer to
the amended complaint?
A: Going back to Rule 11, ten (10) days only. Ten (10) days, not
from the receipt of the amended complaint, but from receipt of the
order allowing the amended complaint.
Appearance in an action is best manifested by the filing of an
answer by the defendant. However, according to the SC in the case
of:
PAN ASIATIC TRAVEL CORP. vs. COURT OF APPEALS
164 SCRA 623
HELD: Appearance in the action is not only limited to the filing of an
answer. When defendant files a motion for extension of time to
file his answer, that is already an appearance in the action. If a
defendant files a motion for Bill Of Particulars under Rule 12, that is
already considered as an appearance in the action.
SEC. 3 By whom served – the summons may be served by the
sheriff, his deputy, or other proper court officers, or for justifiable
reasons by any suitable person authorized by the court issuing the
summons (5a)
Q: Who can serve summons? Who are authorized by law to serve
summons?
A: Under Section 3, the following:
1.) Sheriff;
2.) Deputy sheriff;
3.) Other proper court officer (court employees); or
4.) For justifiable reasons, by any suitable person authorized
by the court issuing the summons.
Note: The enumeration is exclusive
NOTE: Policemen cannot validly serve summons unless authorized
by court. (Sequito vs. Letrondo, L-11580, July 20, 1959)
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EXAMPLE: I will sue somebody who is living on top of Mt. Apo. I
don’t think the sheriff would like to go there. But there are people
who go there, like the natives. So Barangay Captain Acelar will be
asked to be deputized by the court to serve and he will be taught
how to do it. So, he will become a sort of special court officer for
that purpose. But there must be a court order.
SEQUITO vs. LETRONDO
L-11580, July 20, 1959
FACTS: The summons was served by a policeman in a remote area
and the question that was asked is whether he is authorized.
HELD: NO, he is not authorized. The policeman is not a sheriff, he is
not a deputy sheriff, and he is not a proper court officer. He
belongs to the PNP. And PNP is under the executive branch and
not a part of the judiciary.
However, there is no problem if he is the only one in that area
whom we can depend on. All you have to do is get a court order
deputizing the police officer. So he will fall under no. 3. But
without such court order, he is not among those mentioned in
Section 3.
Q: When summons is served, must it be on a weekday and not on
Saturday, Sunday, or holiday, and must be within office hours? Can
you challenge the validity of the service of summons on the ground
that it was not effected on a working day or during office hours?
A: In the case of
LAUS vs. COURT OF APPEALS
214 SCRA 688
HELD: The service of summons is valid because the service of
summons is MINISTERIAL. Service of summons may be made at
night as well as during the day, or even on a Sunday or holiday
because of its ministerial character.
SEC. 4 Return – When the service has been completed, the server
shall, within five (5) days therefrom, serve a copy of the return,
personally or by registered mail, to the plaintiff’s counsel and
shall return the summons to the clerk who issued it, accompanied
by proof of service (6a)
The person who served the summons is the sheriff or his deputy.
After that, it is the duty of the sheriff to inform the court what has
happened – was he able to serve the copy of the complaint,
together with the summons to the defendant? If so, on what day?
The duty of the sheriff after service of summons is that he should
make a report to the court as to what happened. That is what is
called a sheriff's return. EXAMPLE: “Respectfully returned to the
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court with the information that defendant was personally served
with summons on this date and on this time as shown by his
signature on the face of this original copy.” Or, “Respectfully
returned to the court with the information that defendant cannot
be served with summons because the defendant had already moved
from the address indicated in the complaint and therefore he
cannot be located.”
There must be a report because that will determine when the
period to file an answer will start to run. Or, if he failed to serve it
for one reason or another, like for example, the defendant is no
longer residing in that place and you cannot find him, at least you
must also return the summons to the court and make a report that
you cannot serve the summons. That is what you call the Sheriff’s
Return under Section 4, Rule 14.
He must also furnish a copy of his report to the plaintiff’s lawyer so
that the plaintiff’s lawyer can determine what is the deadline for
the defendant to file his answer.
SEC. 5 Issuance of Alias Summons – if a summons is returned
without being served on any or all of the defendants, the server
shall also serve a copy of the return on the plaintiff’s counsel,
stating the reasons for the failure of service, within five (5) days
therefrom, in such case, or if the summons has been lost, the
clerk, on demand of the plaintiff, may issue an alias summons (4a)
Now Section 5 contains this new requirement that the serving
officer shall also serve a copy of the return on the plaintiff's counsel
stating the reasons for the failure of service within 5 days
therefrom. They should tell the lawyer what happened so that if
the summons was not served, the lawyer can file a motion for
issuance of an alias summons, like he cannot serve the summons
because the defendant is not already in the address given. It will
then be the problem of the plaintiff and his lawyer to locate the
new address of the defendant or counsel and file said motion.
Alias summons is one issued when the original has not produced
it's effects because of a defect in form or in the manner of service,
and when issued supersedes the first writ.
Q: What happens if the summons is returned unserved on any or all
of the defendants?
A: The server shall serve also a copy of the return on the plaintiff’s
counsel, stating the reasons for the failure of service
Q: For what purpose?
A: So that the plaintiff’s lawyer will have to look now for the
defendant and once he finds the correct address, he has to inform
the court of the new address so that a new summons can be issued
on the new address. The second summons is what lawyers call an
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ALIAS SUMMONS – if the first summons was lost, upon being
informed, the clerk of court will issue another summons known as
an ALIAS SUMMONS.
MODES OF SERVICE OF SUMMONS TO INDIVIDUAL DEFENDANTS:
Now let’s go to the general modes on service of summons. This is a
very important portion of Rule 14.
Q: How is summons served?
A: There are three (3) modes of service of summons (on individual
defendant):
1.) Section 6 – Service in person on defendant;
2.) Section 7 – Substituted service (Section 7); and
3.) Sections 14, 15, 16 – Service by publication;
First Mode: SERVICE IN PERSON (Section 6)
SEC. 6. Service in person on defendant – Whenever practicable, the
summons shall be served by handing a copy thereof to the
defendant in person, or if he refuses to receive and sign for it, by
tendering it to him (7a)
Q: How is service in person done?
A: It is effected by (a) handing a copy thereof to the defendant in
person, or (b) if he refuses to receive and sign for it, by tendering it
to him. The summons must be served in person. This is literal, the
summons must be served upon the defendant himself not to
anybody else.
Q: Do you have to serve it to the defendant in his office or in his
house?
A: NO. You can serve it wherever he may be found. And the law
does not care where to do it.
EXAMPLE: I am the sheriff. I’m looking for you to serve summons in
a case and while walking along New York Street, I saw you inside a
restaurant. I entered the restaurant and served the summons
there. Then you say, “Not here. Give it to me at home”. Under the
law, service is in person. There is no need for me to go to your
house. I can serve the summons wherever I find you.
Q: Now suppose, normally, you give the copy and you ask him to
sign the original summons but he refuses, what will I do?
A: I will write here in my return that I saw you, I offered but you
refused. That is enough. Under the law, you are served. The court
has already acquired jurisdiction over your person.
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The common impression of laymen is if it is not received then there
is no proper service. No, that is of course false. You cannot defeat
a court process by refusing to accept it. And under the law, from
that moment, you are bound.
Now, under the 1964 rules, this mode of service of summons was
called PERSONAL SERVICE. Under the 1997 Rules, the ’personal
service’ was changed to ‘SERVICE IN PERSON’. They just changed
the words so that it cannot be confused with Rule 13 because in
Rule 13, there is also personal service. But that is not service of
summons but service of pleadings, motions, etc. To avoid
confusion, personal service was changed to service in person.
Because service under Rule 13 is also personal service to the
secretary but here in Rule 14, it is literal. Service in person on the
defendant
Service of summons in actions in personam/Service in person
preferred
In an action strictly in personam, service in person on the
defendant is the preferred mode of service (Hamilton vs. Levy 344
SCRA 821). This is done by handing a copy thereof to the defendant
in person. If he refuses to receive and sign for it, the remedy of the
server is to tender the summons to the defendant. If the defendant
refuses the service, the server should not resort to substituted
service immediately. He must “tender” the summons to him.
Tender of summons is not a separate mode of service. It is a part of
service in person.
Substituted service when proper
If the defendant cannot be served in person within a reasonable
time, only then may substituted service under Sec. 7 be availed of.
The sheriff or server must first exert all efforts to serve the
defendant in person. If this effort fails, then substituted service can
be made. This effort must be stated in the proof of service. This is
required because substituted service is in derogation of the usual
mode of service (Laus vs. CA 219 SCRA 688; Umandap vs. Sabio, Jr.
339 SCRA 243; Samartino vs. Raon 383 SCRA 66; Hamilton vs. Levy
344 SCRA 821.
Second Mode: SUBSTITUTED SERVICE (Section 7)
What is substituted service?
SEC. 7 Substituted Service – If, for justifiable causes, the
defendant cannot be served within reasonable time as provided
in the preceding section, service may be effected (a) by leaving
copies of the summons at the defendant’s residence with some
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person of suitable age and discretion then residing therein, or (b)
by leaving the copies at defendant’s office or regular place of
business with some competent person in charge thereof (8a)
If the defendant cannot be served personally or in person under
Section 6, the sheriff may resort to what is known as SUBSTITUTED
SERVICE OF SUMMONS under Section 7. This time, you can course
it to somebody else. The place is important and the person to
whom you will serve it.
On service in person under Section 6, it is immaterial where you
find the defendant. What is important is it is served in person.
But if you want resort to substituted service under Section 7), you
better have to do it by leaving copies of the summons:
1.) at the defendant’s residence with some person of
suitable age and discretion residing therein; or
2.) in his office or regular place of business with some
competent person in charge thereof, like the manager or
the foreman.
But note the condition: “If, for justifiable causes, the defendant
cannot be served within reasonable time as provided in the
preceding section xxx.”
So, if the server cannot serve you the summons personally,
because he cannot find you despite several attempts, then he can
serve it on your wife or child, who is around, or the housemaid or
houseboy, provided they are of suitable age and discretion.
For substituted service of summons to be valid, it is necessary to
establish the following:
1. The impossibility of the personal service of summons within a
reasonable time;
2. The efforts exerted to locate the person to be served; and
3. Service upon a person of sufficient age and discretion residing in
the same place as defendant or some competent person in charge
of his office or regular place of business.
In substituted service, the sheriff's return must show that an effort
or attempt was exerted to personally serve the summons on the
defendant and that the same failed. (Sps. Venturanza vs. CA GR.
No. 77760, Dedc. 11, 1987)
Within a reasonable time has been interpreted to contemplate a
period of time longer than that demarcated by the word “prompt”
and presupposes that a prior attempt at personal service had failed
(Laus vs. CA 219 SCRA 688).
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The case of Manotoc vs. CA 499 SCRA 21, is more specific:
“….Reasonable time is defined as so much time as is necessary
under the circumstances for a reasonably prudent and diligent man
to do, conveniently, what the contract or duty requires that should
be done….Under the Rules, the service of summons has no set
period….Since the defendant is expected to try to avoid and evade
service of summons, the sheriff must be resourceful, persevering,
canny, and diligent in serving the process on the defendant.” For
substituted service to be available there must be several attempts
by the sheriff to personally serve the summons within a reasonable
period…”Several attempts” means at least three (3) tries,
preferably on at least two different dates. In addition the sheriff
must cite why such efforts were unsuccessful. It is only then that
impossibility of service can be confirmed or accepted.
“The Sheriff must describe in the Return of Summons the facts and
circumstances surrounding the attempted personal service (citing
Domagas vs. Jensen, 448 SCRA 663). The efforts made to find the
defendant and the reason behind the failure must be clearly
narrated in detail in the Return. The date and time of the attempts
on personal service, the inquiries made to locate the defendant,
the name/s of the alleged occupants of the alleged residence or
house of the defendant and all other acts done, though futile, to
serve the summons on the defendant must be specified in the
Return to justify substituted service….”
A mere general claim or statement in the Sheriff’s Return that the
server had made “several attempts” to serve the summons,
without making reference to the details of facts and circumstances
surrounding such attempts, does not comply with the rules on
substituted service (Manotoc vs. CA, supra). A Return which merely
states the alleged whereabouts of the defendants without
indicating that such information was verified and without
specifying the efforts exerted to serve the summons is not enough
for compliance. So is a mere general statement that such efforts
were made (Jose vs. Boyon 414 SCRA 216).
“A person of suitable age and discretion” defined
“A person of suitable age and discretion is one who has attained
the full age of full legal capacity (18 years old) and is considered to
have enough discernment to understand the importance of
summons. The Manotoc case explains:
“Discretion is defined as the ability to make decisions which
represent a responsible choice and for which an understanding of
what is lawful, right or wise may be presupposed. Thus, to be of
sufficient age and discretion, such person must know how to read
and understand English to comprehend the import of the
summons, and fully realize the need to deliver the summons and
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complaint to the defendant at the earliest possible time for the
person to take appropriate action. Thus, the person must have a
‘relation of confidence’ to the defendant, ensuring that the latter
would receive or at least be notified of the receipt of summons.
The sheriff must therefore, determine if the person found in the
alleged dwelling or residence of defendant is of legal age, what the
recipient’s relationship with the defendant is, and whether said
person comprehends the significance of the receipt of the
summons and his duty to deliver it to the defendant or at least
notify the defendant of said receipt of summons. These matters
must be clearly and specifically described in the Return of
Summons.”
“A competent person in charge of the office or regular place of
business” defined
“A competent person in charge of the office or regular place of
business” must be the one managing the office or business of
defendant, such as the president or manager; and such individual
must have sufficient knowledge to understand the obligation of the
defendant in the summons, its importance, and the prejudicial
effects arising from inaction on the summons. Again, the details
must be contained in the Return (Manotoc vs. CA)
It is not necessary that the person in charge of the defendant’s
regular place of business be specifically authorized to receive the
summons. It is enough that he appears to be in charge (Guanzon v.
Arradaza 510 SCRA 309).
Effect when substituted service is valid but defendant failed to
actually receive summons
Where the substituted service has been validly served, its validity is
not affected by the defendant’s failure to actually receive the
summons from the person with whom the summons had been left.
It is immaterial that the defendant does not in fact receive actual
notice. The rule does not require the sheriff or any authorized
server to verify that the summons left in the defendant’s residence
or office was actually delivered to the defendant (Montalban vs.
Maximo, supra).
The proof of service of summons must (a) indicate the impossibility
of service of summons within a reasonable time; (b) specify the
efforts exerted to locate the defendant; and (c) state that the
summons was served upon a person of sufficient age and discretion
who is residing in the address, or who is in charge of the officer or
regular place of business of the defendant. It is likewise required
that the pertinent facts proving these circumstances be stated in
the proof of service or in the officer’s return. The failure to comply
faithfully, strictly and fully with all the foregoing requirements of
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substituted service renders the service of summons ineffective
(Jose vs. Bayon 414 SCRA 216; Miranda vs. CA 326 SCRA 278).
Service of summons to resident defendant but temporarily out –
Substituted service in addition to service by publication under
Section 16 in relation to Sec. 15
In a suit in personam against a resident of the Philippines
temporarily absent from the country, the defendant may be served
by substituted service because a man temporarily out of the
country leaves a definite place of residence or a dwelling where he
is bound to return. He also leaves his affairs to someone who
protects his interests and communicates with him on matters
affecting his affairs or business (Montalban vs. Maximo 22 SCRA
1070; Valmonte vs. CA 252 SCRA 92).
If the defendant is out of the country, he cannot be expectedly
served within a reasonable time. The fact that “for justifiable
causes, the defendant cannot be served within a reasonable time,”
constitutes the operative fact that triggers the application of
substituted service. This mode of service in the case of a resident
temporarily absent from the country is, of course, in addition to the
summons by publication authorized by Sec. 16 in relation to Sec. 15
of this Rule.
An ineffective substituted service has certain adverse effects. First,
the period to file a motion to dismiss for lack of jurisdiction over
the defendant’s person does not commence to run since the court
has no jurisdiction to adjudicate the controversy as to him, unless
he voluntarily submits to the jurisdiction of the court (Laus vs. CA
219 SCRA 688). Second, the trial court does not acquire jurisdiction
over the person of the defendant (Laus vs.CA 219 SCRA 688;
Litonjua vs. CA 80 SCRA 246).
When defendant prevents service of summons
What if diligent efforts were undertaken by the Sheriff to serve
summons upon the defendant but he was prevented from effecting
such service by the defendant himself?
In one case, the Sheriff was forced to serve the summons upon the
subdivision security guard because he was refused entry therein
upon instruction of the defendant.
The SC ruled:
“We have ruled that the statutory requirements of substituted
service must be followed strictly, faithfully, and fully and any
substituted service other than that authorized by the Rules is
considered ineffective (Paluwagan ng Bayan Savings Bank vs. King
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GR 78252, April 12, 1989, 172 SCRA 60). However, we frown upon
an overly strict application of the Rules. It is the spirit, rather than
the letter of the procedural rules, that governs.
“In his Return, the sheriff declared that he was refused entry by the
security guard in the subdivision. The latter informed him that
petitioner prohibits him from allowing anybody to proceed to her
residence whenever she is out. Obviously, it was impossible for the
sheriff to effect personal or substituted service of summons upon
petitioner. We note that she failed to controvert the sheriff’s
declaration. Nor did she deny having received the summons
through the security guard.
“Considering her strict instruction to the security guard, she must
bear its consequences. Thus, we agree with the trial court that
summons has been properly served upon petitioner and that it has
acquired jurisdiction over her.
The summons was therefore, properly served” (Robinson vs.
Miralles 510 SCRA 678).
SEQUITO vs. LETRONDO
L-11580, July 20, 1959
FACTS: Summons was served by the sheriff on the defendant’s
daughter, a 12-year old and a grade four pupil. The child threw the
summons away. The father did not receive the summons, and he
was declared in default.
HELD: The service of summons is void because defendant’s
daughter, under the circumstances, is not a person of suitable
discretion.
Q: Suppose, the sheriff goes to the defendant’s house and says, “Is
this the residence of Mr. Juan dela Cruz?” “Yes.” “Is he around?”
“No, he left for work, but he will be back 5 hours from now.” The
sheriff left the summons to the wife, sufficient of age and
discretion. In other words, the sheriff resorted to substituted
service of summons under Section 7. Is there a valid substituted
service of summons? Can a sheriff resort to Section 7 (substituted
service) immediately?
A: NO. Section 7 cannot be applied unless you attempt Section 6
(Service in person). The sheriff has to try several times to reach the
defendant in person. Sheriff is not allowed to resort to substituted
service without attempting service in person several times.
Q: So what is the condition?
A: Substituted service of summons can only be applied by the
sheriff if there is failure of personal service within reasonable time
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for justifiable causes [under Rule 14, Section 7]. So if the wife says,
“come back tomorrow,” so you have to come back tomorrow and
you cannot yet serve substituted service of summons.
Q: But suppose, the sheriff has gone to your house 5 times,
everytime he goes there you are not around, is substituted service
of summons allowed?
A: YES. I will now serve it on you (through your wife) and that is
valid. The law prefers service in person than substituted.
Substituted service according to SC, should only be resorted to if
there is failure of personal service within reasonable time for
justifiable causes. (Mapa vs. CA, 214 SCRA 417)
MAPA vs. COURT OF APPEALS
214 SCRA 417
HELD: If a sheriff resorts to substituted service under Section 7 and
when he makes his return, his return must specify that “I have tried
many times to resort to personal service, but he cannot do it”. He
must outline his efforts to apply Section 6, otherwise the return is
defective.
“Impossibility of prompt service should be shown by stating the
efforts failed. This statement should be made in the proof of
service. This is necessary because substituted service is in
derogation of the usual method of service.”
Now, of course, if I tried several times to serve you personally but I
failed, and then I make a return but I did not explain, there is still a
valid service but you must explain in court. There is a presumption
that you did not exert efforts. To make it a complete return, you
must outline several attempts to make personal service.
[Substituted service of summons may still be considered as VALID
even if the sheriff failed to state in his return of the facts of the
impossibility of prompt service if the server subsequently explains
in court, by giving testimony, the facts why he resorted to a
substituted service. The plaintiff should not be made to suffer for
the lapses committed by an officer of the court]
TOYOTA CUBAO INC. vs. COURT OF APPEALS
October 23, 1997
HELD: “A law prescribing the manner in which the service of
summons should be effected is jurisdictional in character and its
proper observance is what dictates the court’s ability to take
cognizance of the litigation before it. Compliance therewith must
appear affirmatively in the return. It must be so as substitute
service is a mode that departs or deviates from the standard rule.
Substitute service must be used only in the way prescribed, and
under circumstances authorized by law.”
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DISTINCTIONS BETWEEN SERVICE OF PLEADINGS [RULE 13]
AND SERVICE OF SUMMONS [RULE 14]
Now, do not confuse substituted service of summons under Rule 14
with substituted service of pleadings, orders and other papers
under Rule 13.
Let us read Section 6, Rule 13:
Rule 13, SEC. 6. Personal service. - Service of the papers may be
made by delivering personally a copy to the party or his counsel,
or by leaving it in his office with his clerk or with a person having
charge thereof. If no person is found in his office, or his office is
not known, or he has no office, then by leaving the copy, between
the hours of eight in the morning and six in the evening, at the
party's or counsel's residence, if known, with a person of
sufficient age and discretion then residing therein. (4a)
FIRST DISTINCTION: In Rule 13, that is known as personal service.
In Rule 14, that is known as substituted service. Service of
summons is governed by a different rule (Rule 14) from service of
pleadings, judgments and other papers (Rule 13).
Now, what is substituted service in Rule 13? Let us go back to
Section 8, Rule 13.
Rule 13, SEC. 8. Substituted service. - If service of pleadings,
motions, notices, resolutions, orders and other papers cannot be
made under the two preceding sections, the office and place of
residence of the party or his counsel being unknown, service may
be made by delivering the copy to the clerk of court, with proof of
failure of both personal service and service by mail. The service is
complete at the time of such delivery. (6a)
SECOND DISTINCTION: In Rule 14, substituted service means if you
cannot serve the defendant in person, then you serve the
summons at the residence of the defendant with some person of
suitable age and discretion residing therein or by leaving copies at
the defendant’s office or regular place of business with some
competent person in charge thereof. That is substituted service of
summons under Rule 14.
But in Rule 13, substituted service of other pleadings, judgments,
orders, etc., if personal service or service by registered mail have
failed, then serve it on the clerk of court. And that is known as
substituted service.
In Rule 14, there is NO such thing as service of summons through
registered mail. So how can a summons be served to a defendant
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in Manila? The Davao sheriff will mail the summons to the Manila
sheriff who will serve the summons to the defendant in Manila.
So, there is a difference in meaning. Substituted service of
summons in Rule 14 is different from substituted service of
pleadings, judgments and other papers in Rule 13.
Third Mode: SERVICE OF SUMMONS BY PUBLICATION : (Sections
14, 15, and 16)
SERVICE BY PUBLICATION UNDER SECTION 14
(Suing an Unknown Defendant)
Going back to Section 9, Rule 13:
Rule 13, SEC. 9. Service of judgments, final orders or resolutions. -
Judgments, final orders or resolutions shall be served either
personally or by registered mail. When a party summoned by
publication has failed to appear in the action, judgments, final
orders or resolutions against him shall be served upon him also by
publication at the expense of the prevailing party. (7a)
Under Rule 13, when a party summoned by publication has failed
to appear in the action, meaning the defendant failed to file an
answer, the decision can also be served upon him by publication.
As a rule summons by publication is available only in actions in rem
or quasi in rem. It is not available as a means of acquiring
jurisdiction over the person of the defendant in an action in
personam.
Against a resident, the recognized mode of service is service in
person on the defendant under Sec. 6. In a case where the
defendant cannot be served within a reasonable time, substituted
service will apply (Sec. 7), but not summons by publication which is
permissible however, under the conditions set forth in Sec. 14
(where the identity or whereabouts of the defendant are unknown)
and in Section 16 (when the defendant is a resident temporarily
out of the Philippines).
Against a non-resident, jurisdiction is acquired over the defendant
by service upon his person while said defendant is within the
Philippines. As once held, when the defendant is a non-resident,
personal service of summons in the state is essential to the
acquisition of jurisdiction over him (Banco de Brasil vs. CA 333
SCRA 545). This is in fact the only way of acquiring jurisdiction over
his person if he does not voluntarily appear in the action. Summons
by publication against a non-resident in an action in personam is
not a proper mode of service.
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Purpose of summons by publication
Publication is a notice to the whole world that the proceeding has
for its object to bar indefinitely all who might be minded to make
an objection of any sort against the right sought to be established.
It is the publication of such notice that brings in the whole world as
a party in the case and vests the court with jurisdiction to hear and
decide it (Cynthia Alaban vs. CA 470 SCRA 697). Publication is
likewise not a mode of service in an action in personam against a
defendant except under certain situations (Sections 14 and 16).
Q: What are the instances where a defendant may be served with
summons by publication?
A: Sections 14, 15 & 16 of Rule 14.
And the first one is service upon defendant whose identity or
whereabouts are unknown. That is what you call suing an
unknown defendant. Or, the defendant is known but his
whereabouts are not known. But definitely, he is in the Philippines.
That is the important condition. So, let us read Section 14:
Sec. 14. Service upon defendant whose identity or whereabouts are
unknown. In any action where the defendant is designated as an
unknown owner, or the like, or whenever his whereabouts are
unknown and cannot be ascertained by diligent inquiry, service
may, by leave of court, be effected upon him by publication in a
newspaper of general circulation and in such places and for such
time as the court may order. (16a)
Under this provision, service of summons is allowed:
1.) where the defendant is designated as unknown owner.
Well, we have discussed that in Rule 3 – when you file a
case against an unknown defendant is allowed. But of
course, he is unknown, you have no idea where he is
staying; and
2.) where the defendant is known but his whereabouts are
unknown and cannot be ascertained by diligent inquiry.
Take note that to avail of summons by publication, there must be
leave of court. You must file a motion, under Rule 14, for
permission to have defendant summoned by publication and the
court will issue an order allowing the defendant be served with
summons by publication where the complaint and the summons be
ordered published. The service may be effected upon him by
publication in a newspaper of general circulation and in such places
and for such time as the court may order.
Section 14 allows service of summons by publication, if the
whereabouts of the defendant is unknown, after diligent inquiry
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and with leave of court. However, Section 17 requires that the
application for leave to effect service by publication must be
accompanied by a motion in writing, supported by an affidavit
setting forth the grounds for the application (Pacana-Gonzales vs.
CA, GR No. 150908, Jan. 21, 2005)
“Of general circulation and in such places and for such time as the
court may order.” Hindi naman kailangan sa Daily Inquirer. Puwede
man sa local paper, ba. For example, sabihin mo: “We learned that
he is in Cebu pero saan sa Cebu, we do not know.” The court may
order the publication to be published in a local newspaper of
general circulation in Cebu. Of course, kasama diyan ang
complaint. How many times? Bahala na ang court. Say, tatlong
issues. So, every Monday for three weeks. Basta the presumption
is mabasa yan ng defendant or at least somebody who must have
read it will inform the defendant. So, the law requires that you
must file a motion and ask the court to allow service of summons
by publication.
Now, one thing that you have to remember is, the whereabouts of
the defendant is unknown, but he is in the Philippines. That is the
condition. If he is in the United States, this will not apply. What is
contemplated by Section 14 is that the address of the defendant is
unknown but it is positive that he is in the Philippines.
“In any action”
The rule that service by publication does not apply in in personam
cases is no longer applicable under Rule 14.
Prior rule
ILLUSTRATION: Suppose your friend borrowed money from you.
Never paid you and just disappeared and the last time you heard,
he is residing somewhere in General Santos City. So you wanted to
sue by having the summons under Section 14 because his exact
whereabouts is unknown. So you file a motion for leave to serve
summons by publication under this rule. The question is, should the
court allow it? Of course the tendency is to say “yes” because his
whereabouts is unknown and cannot be ascertained by diligent
inquiry.
Q: Now what kind of an action is an action to collect an unpaid loan
where the defendant cannot be located anymore?
A: That is an action in personam.
Q: If the defendant is in the Philippines and his whereabouts is
unknown and the action is in personam, can the plaintiff resort to
service summons by publication?
A: In the cases of
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FONTANILLA vs. DOMINGUEZ
73 Phil. 579
HELD: In this case, SC said service of summons is possible even if
the action is in personam because service by publication when the
whereabouts of the defendant is unknown is allowed whether the
case is in personam or in rem. It is proper in all actions without
distinction provided, the defendant is residing in the Philippines but
his identity is unknown or his address cannot be ascertained.
So if we will follow this case what will be our answer? YES, because
it is allowed in any action without distinction.
PANTALEON vs. ASUNCION
105 Phil 755
HELD: NO, because service of summons by publication under this
section is allowed only where the action is in rem or quasi in rem,
not in personam. In order to bind the defendant there must be
service of summons on him. Personal, he must know. But in
actions in rem quasi in rem, pwede.
“It is a well settled rule in constitutional law that an action in
personam, personal service of summons within the Philippines
(forum) is essential in the acquisition of jurisdiction over the person
of the defendant who does not voluntarily submit himself to the
authority of the court.”
In other words, summons by publication is not consistent with the
due process clause of the bill of rights because it confers court
jurisdiction over said defendant who is not in the Philippines. So
service of summons by publication of the defendant who cannot be
found in the Philippines will be violative of the due process clause
that he must be informed personally. He must be given a chance
under due process – to be deprived of his property with due
process of law. So if we will follow the ruling in this case, the
answer would be NO because the action is in personam (collection
case). So nag-conflict na.
CITIZEN’S INSURANCE SURETY vs. MELENCIO-HERRERA
38 SCRA 369
ISSUE: What is the remedy if you are a creditor and you want to sue
your debtor and serve summons by publication but you cannot do
it because your case is in personam?
HELD: (Reiterates Pantaleon vs. Asuncion) You convert your case
from in personam to in rem or quasi in rem. How? If you cannot
find the defendant but he has properties left, you can have that
properties attached under Rule 57, Section 1 so that you can
acquire a lien over said properties. Now that it is attached, civil
action is converted from in personam to quasi in rem because you
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already acquire a lien over the property so it is quasi in rem. You
can now ask the court to effect summons by publication..
“The proper recourse for a creditor in the same situation as
petitioner is to locate properties, real or personal, of the resident
defendant debtor with unknown address and cause them to be
attached under Rule 57, Sec. l(f), in which case, the enactment
converts the action into a proceeding in rem or quasi in rem and
the summons by publication may then accordingly be deemed valid
and effective.” So kahit isang bisekleta para lang ma-convert ang
action.
MAGDALENA ESTATE INC. vs. NIETO
125 SCRA 758
SC traced the history of this question…we reiterate CITIZEN and
PANTALEON, the action must be in rem or quasi in rem. [That is
why just read this case because it is a complete summary of what
the SC said earlier. And of course after it, from time to time, this
issue re-surfaces.]
CONSOLIDATED PLYWOOD vs. BREVA
166 SCRA 589 (Davao case)
HELD: Judge Breva fell into the error of allowing service of
summons by publication by allowing it in an ordinary collection
case. SC said you cannot do that, the action must be in rem or
quasi in rem. Therefore the default judgment was rendered null
and void because of lack of proper service of summons to the
defendant.
Q: What is the important doctrine based from the foregoing cases?
A: The SC said that Section 14 can only be availed of when the
action is in rem or quasi in rem. If the action is in personam, like of
collection of a sum of money, service of summons by publication to
the defendant is improper. The action should be action in rem or
quasi in rem.
Q: Therefore if your action is in personam, like collection of an
unpaid obligation, and you cannot find the defendant and you want
to avail of Section 14, what is you remedy?
A: As explained by the SC, you convert the action to in rem or quasi
in rem. How? By looking for any property of the said defendant and
have it attached under Rule 57 [i], the last ground for attachment.
Now, your action is converted to quasi in rem. You can now file a
motion for service of summons by publication. (Pantaleon vs.
Asuncion, 105 Phil. 765; Citizen’s Surety & Insurance Co., vs.
Melencio-Herrera, 38 SCRA 369; Magdalena Estate, Inc. vs. Nieto,
125 SCRA 758; Plywood Industries vs Breva, 166 SCRA 589)
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In all these cases, the SC ruled that to validly serve summons by
publication on a defendant who is in the Philippines but whose
name is not known or whereabouts is not known, the action must
be in rem or quasi in rem.
Present rule
But a minor insignificant amendment to Section 14 has cast doubt
on the validity of those doctrine. Why? You read the opening of
Section 14: “In any action…” you notice, “in any action where the
defendant is designated as an unknown… ” You look at the old
rules. Can you find the phrase “in any action”? You look and
compare it. Let us look the 1964 Rules:
1964 Rules, Rule 14, SEC. 16 “Whenever the defendant is
designated as an unknown owner, or the like, or whenever the
address of a defendant is unknown and cannot be ascertained by
diligent inquiry, service may, by leave of court be effected upon
him by publication in a newspaper of general circulation and in
such places and for such time as the court may order.”
In other words, there is a case and the defendant is unknown, but
what kind of cases? It is not stated there (Section 16, old rules).
Kaya nga, it was clarified in the cases of MAGDALENA ESTATE,
PANTALEON, etc. that the action must be in rem or quasi in rem.
But look at the new rule on Section 14 – “in any action.” What does
that mean – na puwede na ang action in personam? Is the intention
of this clause to abrogate the previous ruling in PANTALEON,
MAGDALENA ESTATE, CONSOLIDATE PLYWOOD? If that is the
intention, we are going back to the original ruling laid down in the
earlier case of FONTANILLA vs. DOMINGUEZ which preceded all the
other cases.
In the FONTANILLA case, the SC said that service of summons by
publication is proper in all actions without distinctions provided the
defendant is residing in the Philippines but he is unknown or his
address cannot be ascertained. But the FONTANILLA ruling was
abrogated by PANTALEON vs. ASUNCION, CITIZEN’S SURETY,
MAGDALENA ESTATE cases. That is why to me, this is a very
controversial issue whether Section 14 of Rule 14 applies only to
cases in rem or quasi in rem in these decisions or it is now
obsolete, or it is now applicable whether in personam or in rem or
quasi in rem.
BALTAZAR vs. COURT OF APPEALS
December 8, 1988
FACTS: Good Earth Enterprises, a domestic corporation was sued.
Sheriff went to the address of the corporation but the corporation
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was no longer there. It moved to another place. Subsequently, the
sheriff returned the summons to the court. Plaintiff Baltazar filed a
motion for leave to serve the summons and a copy of the
complaint upon defendant Good Earth by publication
ISSUE: Can there be a proper service by publication in this case?
HELD: NO. Service by Publication (Section 14) will not apply
because there was no diligent inquiry made by the sheriff.
“Under Section 14, therefore, petitioner must show that the
address of Good Earth was ‘unknown’ and that such address could
not be ascertained by diligent inquiry. More importantly, We do
not believe that the acts of the sheriff satisfied the standard of
‘diligent inquiry’ established by Section 14 of Rule 14. The sheriff
should have known what every law school student knows, that
Good Earth being a domestic corporation must have been
registered with the Securities and Exchange Commission and that
the SEC records would, therefore, reveal not just the correct
address of the corporate headquarters of Good Earth but also the
addresses of its directors and other officers.”
Pertinent rulings of the Court
Summons by way of publication may with leave of court be availed
of where a defendant involved in any action (in rem, quasi in rem
and in personal) is designated as an unknown owner or whenever
his whereabouts are unknown and cannot be ascertained. The
summons shall be effected through publication in a newspaper of
general circulation and in such places and for such time as the
court sets.
In Santos vs. PNOC GR No. 170943, Sept. 23, 2008) the Supreme
Court held that the in rem/in personam distinction was significant
under the old rule because it was silent as to the kind of action to
which the rule was applicable. Because of this silence, the court
limited the application of the old rule to in rem actions only. This
has been changed. The present rule expressly states that it applied
to any action where the defendant is designated as unknown
owner, or the like, or whenever his whereabouts are unknown and
cannot be ascertained by diligent inquiry. Thus, it now applies to
any action, whether in personam, in rem or quasi in rem.
If property is attached and later the defendant appears (and
voluntarily submits to the jurisdiction of the court), the case
becomes mainly a suit in personam ( Villareal vs. CA GR No.
107314, Sept. 17, 1998)
SERVICE BY PUBLICATION UNDER SECTION 15
(Extraterritorial Service)
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When the defendant is not residing in the Philippines and he is not
physically around he must be served with summons even if he is
abroad and that is what is called extraterritorial service. We go
back to the basic question:
Q: Can you sue in the Philippines a defendant who is not residing in
the Philippines and who is not around physically?
A: NO, you cannot because there is no way for the court to acquire
jurisdiction over his person EXCEPT when action is in rem or quasi
in rem, like when the action is the personal status of the plaintiff
who is in the Philippines or the properties of the defendant are in
the Philippines. And the venue is where the plaintiff resides or
where the property is situated. That is found in Section 3, Rule 4:
Rule 4, SEC. 3. Venue of actions against nonresidents – If any of the
defendants do not reside and is not found in the Philippines, and
the action affects the personal status of the plaintiff or any
property of said defendant located in the Philippines, the action
may be commenced and tried in the court of the place where the
plaintiff resides, or where the property or any portion thereof is
situated or found.
Q: If the defendant who is not around and is not residing in the
Philippines can be sued under Rule 4, how will you serve
summons?
A: This is answered by Section 15:
Sec. 15. Extraterritorial service. When the defendant does not
reside and is not found in the Philippines, and the action affects
the personal status of the plaintiff or relates to, or the subject of
which is, property within the Philippines, in which the defendant
has or claims a lien or interest, actual or contingent, or in which
the relief demanded consists, wholly or in part, in excluding the
defendant from any interest therein, or the property of the
defendant has been attached within the Philippines, service may,
by leave of court, be effected out of the Philippines by personal
service as under section 16; 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)
Judgment must also be serve by
publication
Extraterritorial service of summons under this Section 15 applies
when he following requisites concur:
(a) the defendant is a non-resident;
(b) he is not found in the Philippines; and
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(c) the action against him is either in rem or quasi in rem
(Jose vs. Boyon 414 SCRA 216).
A fundamental concept to be remembered in extraterritorial
service of summons is that it does not apply to a defendant who is
a resident of the Philippines. It does not also apply to an action in
personam (Kawasaki Port Service Corporation vs. Amores 199 SCRA
230; Banco do Brasil vs. CA 333 SCRA 545 [2000]) .
The possible exception to this rule is provided for under Sec. 16
(residents temporarily out of the Philippines) where service may,
by leave of court, be effected out of the Philippines as under the
preceding section.” The preceding section is Section 15. Note also
that Sec. 16 refers to “any action”, hence, either in rem or in
personam.
Q: In what instances can you sue in the Philippine courts a
defendant who does not reside and is not found in the Philippines?
The other way of asking is, when may a defendant be sued and
served with summons by extraterritorial service?
A: Let us break up Section 15. There are four (4) instances when a
defendant who does not reside and is not found in the Philippines
may be sued and summons served by extraterritorial service,
provided the case is in rem or quasi in rem:
1.) the action affects the personal status of the plaintiff;
EXAMPLE: A child left behind files a case against his father for
compulsory recognition or acknowledgement at least to improve
his status because the res is the status of the plaintiff.
2.) when the action relates to or the subject of which is,
property within the Philippines, in which the defendant
has or claims a lien or interest, actual or contingent;
3.) when the action relates to or the subject of which is,
property within the Philippines in which the relief
demanded consists, wholly or in part, in excluding the
defendant from any interest therein; or
4.) When the property of the defendant has been attached
within the Philippines – that is the MAGDALENA case.
NOTE: The action must be either action in rem or quasi in rem. So
an action in personam can never be filed against a non-resident
defendant. That is the similarity between Section 14 and 15 on the
assumption of the ruling in the MAGDALENA is still intact. Even if
the defendant is not in the Philippines, the action must be in rem
or quasi in rem. That is their similarity – the action must be
classified as in rem or quasi in rem. That is if we follow the
MAGDALENA ESTATE ruling.
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It must be noted that extra-territorial service of summons or
summons by publication applies only when the action is in rem or
quasi in rem. The first is an action against the thing itself instead of
against the defendant's person; in the latter, an individual is named
as defendant and the purpose is to subject the individual's interest
in a piece of property to the obligation or loan burdening it. An
action for specific performance is an action in personam, hence
summons by publication is improper. (Sps. Jose vs. Sps. Boyon, GR
No. 147369, Oct. 23, 2003).
Q: What is the difference between Section 14 and Section 15?
A: The difference between Section 14 and 15 is that in Section 14,
the defendant is in the country but his exact whereabouts is
unknown, whereas in Section 15, he is really out of the country and
is no longer residing here.
MODES OF EXTRATERRITORIAL SERVICE
Q: How do you serve summons for such a defendant in Sect. 15?
A: Service may, with leave of court, be effected in the Philippines:
a.) By personal service under Section 6;
b.) by publication in a newspaper of general circulation in
such places and for such time as the court may order, in
which case a copy of the summons and order of the
court shall be sent by registered mail to the last known
address of the defendant; or
c.) In any other manner the court may deem sufficient.
(Carriaga vs. Malaya, 143 SCRA 441)
a.) modes of extraterritorial service; PERSONAL SERVICE
c.f. Section 6 Rule 14 – Sheriff, deputy sheriff, officer of the court,
other persons authorized by court with valid order. The court will
order that he will be served with summons just like in Section 6.
We will ask the court to allow summons to be served outside the
Philippines by personal service by sending the sheriff to America.
Bigyan siya ng visa, round trip ticket with pocket money. That is
personal service. But that is very expensive. That could be done
pero impractical.
Or, I would like to sue a defendant who is there. I have a friend
who is a balikbayan and he knows where that defendant is residing.
So I will ask the court that the defendant who is residing in
California be served with summons personally through this person.
As if he is deputized or he can send the summons to the Philippine
embassy with a request for an employee of the embassy to serve
the summons personally.
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The personal service using the procedure in Sec. 6 will not have the
effect of acquiring jurisdiction over the non-resident defendant
even if the summons and the copy of the complaint are personally
served and received by him in the country where he may be found.
This is because of the rule that a non-resident defendant who
refuses to come to the country voluntarily remains beyond the
personal processes of the court which therefore, cannot acquire
jurisdiction over him (Banco Espanol-Filipino vs. Palanca 37 Phil.
921; Perkins vs. Dizon 69 Phil. 186). Besides in a proceeding in rem
or quasi in rem, jurisdiction over the person of the defendant is not
a prerequisite to confer jurisdiction on the court provided that the
court acquires jurisdiction over the res. Nevertheless, summons is
served upon the defendant not for the purpose of vesting the court
with jurisdiction over the person of the defendant but merely for
satisfying the due process requirement (Asiavest Limited vs. CA 296
SCRA 539). Compliance with due process is actually the underlying
purpose of all modes of extraterritorial service.
b.) modes of extraterritorial service; BY PUBLICATION IN A
NEWSPAPER OF GENERAL CIRCULATION IN SUCH PLACES AND
FOR SUCH TIME AS THE COURT MAY ORDER, IN WHICH CASE A
COPY OF THE SUMMONS AND ORDER OF THE COURT SHALL BE
SENT BY REGISTERED MAIL TO THE LAST KNOWN ADDRESS OF
THE DEFENDANT
The second manner is by publication which is similar to Section 14.
The court will order the summons and complaint to be published in
a newspaper of general circulation in such places and for such time
as the court may order. In which case a copy of the summons and
order of the court shall be sent by registered mail to the last known
address of the defendant.
So, aside from publication, another copy will be sent by registered
mail to his last known address.
SAHAGUN vs. COURT OF APPEALS
198 SCRA 44
FACTS: Defendant is residing permanently in LA, this is an action in
rem. By leave of court, summons was served through publication
by ordering to be published for 3 weeks in the Philippine Daily
Inquirer. Another copy will be sent to his last address. Here
defendant questioned the publication. According to him,
publication should be in a newspaper in LA, not the Philippines.
How can I be expected to read it when it is published in the
Philippines, nobody will bring it to my attention. But if it is
published here, the probability that I read it is stronger or my
neighbor will bring it to my attention.
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ISSUE #1: Is the contention of the defendant correct?
HELD: NO, he is wrong because nothing in the law requires the
publication to be in a foreign newspaper. What it says is a
newspaper of general circulation in such places and for such time
as the court may order. Well, if the court will order that it should
be published in a newspaper in LA, puwede rin. If it orders that it
should be in a local newspaper, puwede rin because the law does
not say ‘only such places’.
ISSUE #2: What would happen if we will follow the argument of the
defendant which is wrong?
HELD: Another reason why the defendant is wrong is, if we will
require courts to order the publication in a foreign newspaper,
then we will require the court to have a list of all the newspaper in
LA and our courts will be required to know the rules and rates of
publication in LA and suppose the same thing happens to a
defendant in San Francisco, the courts are required to have a list,
rules and rates of publication in said place. And you can imagine if
we have to do that in every city in every country in the world.
Imagine the trouble? It is requiring the court too much.
“In fine, while there is no prohibition against availing of a foreign
newspaper in extraterritorial service of summons, neither should
such publication in a local newspaper of general circulation be
altogether interdicted since, after all, the rule specifically
authorizes the same to be made in such places and for such time as
the court concerned may order. If the trial court should be required
to resort to publication in a foreign newspaper it must have at hand
not only the name and availability of such newspaper or periodical.
We can very well anticipate the plethora of problems that would
arise if the same question on nonresident defendants is replicated
in the other countries of the world.”
ISSUE #3: Is extraterritorial service of summons under Section 15 a
mode of acquiring jurisdiction over the person of the defendant?
HELD: NO, even if you will publish the summons a hundred times in
a newspaper, still the Philippine court will not acquire jurisdiction
over the person of the defendant because it is simply out of the
country. Even if he is served with summons, our processes have no
effect outside Philippine territory.
Actually, there is no need to acquire jurisdiction over the person of
the defendant. What is important is that res is in the country so we
can enforce the judgment so that ownership may be transferred to
plaintiff. So, hindi kailangan ang jurisdiction over his person.
ISSUE #4: What is then the purpose of the requirement of
publication? Why will I be required to publish but just the same the
court will not acquire jurisdiction over his person?
HELD: The purpose of publication is to comply with the
requirement of due process. He should be informed before he loses
his property. Remember that he has properties in the Philippines
which you can want to take away form him. Remember the
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principle that if there is no way for the court to acquire jurisdiction
over the person of the defendant, the substitute is jurisdiction over
the res, and the res is property here. So, the judgment will not be
useless and it can be enforced. But at least, the owner who is
abroad should be informed about it.
“Service of summons on a nonresident defendant who is not found
in the country is required, not for purposes of physically acquiring
jurisdiction over his person but simply in pursuance of the
requirements of fair play, so that he may be informed of the
pendency of the action against him and the possibility that
property in the Philippines belonging to him or in which he has an
interest may be subjected to a judgment in favor of a resident, and
that he may thereby be accorded an opportunity to defend in the
action, if he be so minded. The only relief that may be granted in
such an action against such a nonresident defendant, who does not
choose to submit himself to the jurisdiction of the Philippine court,
is limited to the res.”
That is why also in the case of SAHAGUN, the SC emphasized that if
the summons is served by publication, any judgment that the court
can render is only good for the res. But if he submits now to the
jurisdiction of the court by filing an answer or by hiring a lawyer in
the country, the court can now render also a judgment in
personam against him. But if he will not submit, ok lang because
anyway, the res is here. *bahala siya… kung san siya masaya, ti
suportahan ta!]
EXAMPLE: I will file a case against a non-resident defendant for
recovery of a piece of land and damages. Well, the claim for
recovery of land is in rem. The claim for damages is in personam.
He is summoned by publication and based on the SAHAGUN ruling,
the court can only render judgment insofar as the land is
concerned. It cannot render judgment on the damages because
that is in personam. But if he files an answer, he is now submitting
his person to the jurisdiction of the court. There could now be a
valid judgment not only on the res but also on the damages. That
was the explanation in the case of SAHAGUN.
The relief is limited to the res so there could be no relief for
damages unless he voluntarily submits himself to the jurisdiction of
the court.
c.) modes of extraterritorial service; IN ANY OTHER MANNER
WHICH THE COURT MAY DEEM SUFFICIENT
That is a very general term. A good example of that was what
happened in the case of
CARRIAGA, JR. vs. MALAYA
143 SCRA 441
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FACTS: Plaintiff files a case against his father in the US who has no
intention of coming back in the Philippines, for compulsory
acknowledgement or recognition as an illegitimate child. And he is
suing as an indigent litigant.
Suppose the court will say, “Do you know the address of your
father in the U.S.?” Plaintiff, “Yes, and I even know the zip code.”
Judge, “If we will mail the complaint and the summons by
registered mail in the post office, that will cost you P15 to P30.
Kaya mo ba?” Plaintiff, “Siguro. I will raise that amount.”
That is what happened in the case of MALAYA. They mailed the
summons abroad and the defendant received it. The defendant
questioned.
ISSUE: Is there a valid service of summons under Section 15
through registered mail?
HELD: YES. It would fall under “In any other manner the court may
deem sufficient.” And that is what exactly happened in this case at
bar where the court allowed the service of summons abroad by a
registered mail. Of course, the defendant received the letter but
still challenged the jurisdiction of the court, the manner of service
of summons on the ground that it is not by personal service or
publication but by registered mail.
And since the defendant has received the summons, due process
has been served and the case can now proceed.
So in other words, it is very queer. The SC said extraterritorial
service of summons by registered mail may fall under the third
mode of service under Section 17 (now, Section 15) “In any other
manner the court may deem sufficient.” There is no denial of due
process to be informed because you were informed so you cannot
resort to technicality.
Q: Is there such a thing as service of summons by registered mail
under Rule 14?
A: NONE. Only personal service or by publication. Unlike in Rule 13,
when you serve and file a pleading there is such a thing as service
by registered mail.
Q: But how come in MALAYA case it is allowed?
A: Because it was considered as falling under the general phrase,
“In any other manner the court may deem sufficient” not because
it is allowed but the court considered it as deemed covered under
the phrase.
Q: If the court allows service of summons abroad, then what is the
period to file an answer?
A: The non-resident is given not less than 60 days to file an answer.
It is given a longer period in order to give him more time. This is
related with Section 1 rule 11: “The defendant shall file his answer
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to the complaint within 15 days after service of summons, UNLESS
a different period is fixed by the court.”
And take note that under Section 17, there must be a motion to
effect service of summons by publication.
Sec. 17. Leave of court. Any application to the court under this
Rule for leave to effect service in any manner for which leave of
court is necessary shall be made by motion in writing, supported
by affidavit of the plaintiff or some person on his behalf, setting
forth the grounds for the application. (19)
He must file a motion under Section 17 to effect service of
summons by publication. The court will then issue an order.
Now in 1996, there was a case decided by the SC on the
extraterritorial service of summons. The case of
VALMONTE vs. COURT OF APPEALS
252 SCRA 92 [1996] J. Mendoza
FACTS: Here, the defendant is Lourdes Valmonte who is a foreign
resident. She is residing abroad. Her husband, Alfredo Valmonte,
who is also her attorney, has a law office in the Philippines. He is
Atty. Valmonte – yung mga Valmonte sa checkpoint cases in
Constitutional law. He is an activist-lawyer. So, his wife is residing
abroad but he is here, because he is practicing in the Philippines.
Now, the sister of Mrs. Valmonte filed a case against her for
partition of real property. You know that you have to implead all
the co-owners. The summons intended for Lourdes was served on
her husband in the latter’s law office because anyway, the husband
is here.
ISSUE : Was there a valid service of summons on Lourdes
Valmonte?
HELD: There is NONE. There was no valid service of summons.
REASON #1: First of all, the case at bar is an action for partition and
accounting under Rule 69. So, it is an action quasi in rem. Since this
is an action quasi in rem and Lourdes Valmonte is a non-resident
who is not found in the Philippines, summons on her must be in
accordance with Rule 14, Section 15. So you must follow the modes
of service under Section 15 because the action is quasi in rem.
In this case, the service of summons was not effected personally
because it was served on the husband. There was also no
publication. The only possibility is the third one, “in any other
manner the court may deem sufficient.”
But the third mode applies only when you are serving the summons
abroad. You cannot apply this when you are serving the summons
in the Philippines. So it does not also fall under the third mode. This
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mode of service, like the first two, must be made outside of the
Philippines such as through the Philippine Embassy in the foreign
country where the defendant resides.
REASON #2: Under Section 17, leave of court is required when
serving summons by publication. There must be a motion where
the court will direct that the summons be served in that manner.
In this case, was there any motion filed here? Wala man ba. Was
there any order of the court authorizing it? Wala rin. So it does not
comply with Sections 15 and 17.
REASON #3: The third most important reason is that, when the
defendant is a non-resident and being served abroad under Section
15, the law guarantees a minimum of sixty (60) days to answer the
complaint pursuant to Section 15.
And here, she was only given fifteen (15) days to file the answer.
Therefore, there was an erroneous computation of the period to
answer.
“Finally, and most importantly, because there was no order
granting such leave, Lourdes Valmonte was not given ample time
to file her Answer which, according to the rules, shall be not less
than sixty (60) days after notice. It must be noted that the period to
file an Answer in an action against a resident defendant differs
from the period given in an action filed against a nonresident
defendant who is not found in the Philippines. In the former, the
period is fifteen (15) days from service of summons, while in the
latter, it is at least sixty (60) days from notice.”
So those are the three main reasons cited by the SC on why
there was improper service of summons on Lourdes Valmonte
under the rules.
SERVICE OF SUMMONS BY PUBLICATION UNDER SECTION 16
Sec. 16. Residents temporarily out of the Philippines. When any
action is commenced against a defendant who ordinarily resides
within the Philippines, but who is temporarily out of it, service
may, by leave of court, be also effected out of the Philippines, as
under the preceding section. (18a)
In an action in personam, personal service of summons or, if this is
not possible and he cannot be personally served, substituted
service, as provided in Sec. 7, Rule 14 of the Rules of Court, is
essential for the acquisition by the court of jurisdiction over the
person of a defendant who does not voluntarily submit himself to
the authority of the court. If the defendant cannot be served a
summons because he is temporarily abroad, but is otherwise a
Philippine resident, service of summons may, by leave of court, be
made by publication. Otherwise stated, a resident defendant in an
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action in personam, who cannot be personally served a summons,
may be summoned either by means of substituted service in
accordance with Section 7, Rule 14 of the Rules of Court, or by
publication as provided in Sections 15 and 16 of the same Rule.
In all of these cases, it should be noted, defendant must be a
resident of the Philippines, otherwise an action in personam cannot
be brought because jurisdiction over his person is essential to make
a binding decision.
On the other hand, if the action is in rem or quasi in rem,
jurisdiction over the person of the defendant is not essential for
giving the court jurisdiction so long as the court acquires
jurisdiction over the res. If the defendant is a non resident and he is
not found in the country, summons may be served extraterritorially
in accordance with Sec. 15, Rule 14 of the Rules of Court.
There are only four instances wherein a defendant who is a non-
resident and is not found in the country may be served a summons
by extraterritorial service, to wit: (1) when the action affects the
personal status of the plaintiff; (2) when the action relates to, or
the subject of which is property within the Philippines, on which
the defendant claims a lien or an interest, actual or contingent; (3)
when the relief demanded in such action consists, wholly or in part,
in excluding the defendant from any interest in property located in
the Philippines; and (4) when the defendant non-resident's
property has been attached within the Philippines. In these
instances, service of summons may be effected by (a) personal
service out of the country, with leave of court; (b) publication, also
with leave of court; or (c) any other manner the court may deem
sufficient.
In such cases, what gives the court jurisdiction in an action in rem
or quasi in rem is that it has jurisdiction over the res, i.e., the
personal status of the plaintiff who is domiciled in the Philippines
or the property litigated or attached. Service of summons in the
manner provided in Section 15, Rule 14 of the Rules of Court is not
for the purpose of vesting the court with jurisdiction, but for
complying with the requirements of fair play or due process, so
that the defendant will be informed of the pendency of the action
against him; and the possibility that property in the Philippines
belonging to him, or in which he has an interest, might be
subjected to a judgment in favor of the plaintiff and he can thereby
take steps to protect his interest if he is so minded. (Regner v.
Logarta, GR No. 168747, Oct. 27, 2007).
Summary:
A. Defendant is a resident but identity or whereabouts unknown
(Sec. 14)....in any action (in rem, in personam, quasi in rem) ....
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summons may be served by publication in a newspaper of general
circulation with leave of court;
B. Defendant is a non-resident and not found in the Philippines
(Sec. 15) ... only in rem and quasi in rem ( 1.affects the personal
status of plaintiff; 2. relates to or the subject of which is property
located in the Philippines in which defendant has a lien or interest;
or 3. demands a relief which consists wholly or in part in excluding
the defendant from any interest in any property in the Philippines;
or 4. property of defendant has been attached in the Philippines)
.... service is extraterritorial (a) with leave of court serve outside
the Philippines by personal service; or (b) with leave of court serve
by publication in a newspaper of general circulation in which case a
copy of the summons and order the court must also be sent by
registered mail to the last known address of defendant; or (3) any
other manner the court deem sufficient.
C. Defendant is a resident but temporarily out of the Philippines
(Section 16) .... any action .... By substituted service or with leave of
court, personal service out of the Philippines or by publication as
under extraterritorial service.
Note: In all these cases, it should be noted that defendant must be
a resident of the Philippines, otherwise, an action in personam
cannot be brought because jurisdiction over his person is essential
to make a binding decision (Belen vs. Chavez, GR No. 175334,
March 28, 2008).
Like in the case of an unknown defendant or one whose
whereabouts are unknown, the rule affecting residents who are
temporarily out of the Philippines applies in any action.
Let it be noted that summons by publication may be effected
against the defendant because publication is one of the modes of
service of summons under Sec. 15. But this rule authorizing
summons by publication appears superfluous and unnecessary.
Without such provision, a resident defendant temporarily outside
of the Philippines may still be served through the substituted
service under Sec. 7. This is because even if he is abroad, he has a
residence in the Philippines or a place of business and because
certainly, he cannot be served within a reasonable period because
of his absence in the Philippines, this absence would now trigger
the application of the rule on substituted service of summons
(Montalban vs. Maximo).
Q: What is the main difference between defendant in Section 15
and in Section 16?
A: In section 15, defendant is residing abroad and not even found in
the Philippines, while in Section 16 defendant is residing in the
Philippines but temporarily out of the Philippines.
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EXAMPLE: Suppose Ms. Torres is in a world tour. She is considered
a resident defendant temporarily out of the Philippines. I can sue
her but it will take months before she comes back. The problem is,
your action will already prescribe.
Q: How will you serve summons to him?
A: According to Section 16, you can serve summons just like in
Section 15 – through personal service, by publication, and in any
other manner the court may deem sufficient. So one option is to
wait for him to come back and then serve the summons personally.
One of the leading cases on this type of defendant was in the old
case of:
MONTALBAN vs. MAXIMO
22 SCRA 1070
FACTS: In this case, the defendant is residing in the Philippines but
on a world tour and he will be out for so many months. Naga-tour
ba! It was at that time when the summons was served in his
residence. Well of course, he is not there. But there was somebody
left in the house. So, the sheriff said, “Who are you?” And the
person said that he is the one in charge here. “When is your boss
coming back?” Mga four or five months pa.
So, the sheriff served upon the person in charge the summons. So,
the sheriff resorted to substituted service under Section 7. And
there was a default judgment. Pagbalik ng tao, defaulted na siya,
meron ng execution. So he questioned the service of summons
because under Section 16, in relation to Section 15, summons must
be served with leave of court by personal, publication or in any
other manner.
ISSUE #1: Can substituted service of summons be applied to a
defendant who is residing in the Philippines but temporarily out?
HELD: YES. Substituted service is also applicable. Unlike Section 15
where the defendant has no residence here, you have a residence
man. The sheriff resorted to substituted service by leaving it to the
person in charge, a person of sufficient age and discretion because
for justifiable reasons, substituted service is also applicable even if
the defendant is outside of the Philippines.
It is true that personal service of summons is preferred. But if the
personal service cannot be effected within a reasonable time, the
sheriff can resort to substituted service. And in your case, the
sheriff cannot serve personally because you will be out of the
country for the next four or five months. So the sheriff has to resort
to substituted service.
ISSUE #2: Second, sabi niya, “Equity na lang. That is unfair, eh,
because I really had no knowledge about the case. I failed to
answer because you see, during the five months when I was
abroad, I never had the opportunity to call up the one I left behind.
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So there was no opportunity for me to ask him what has been
happening there. He has also no opportunity to tell me about what
happened because he does not know where I was. So I only learned
about it after five months. So in the name of equity please set aside
the judgment.”
HELD: In the name of equity, we will not set aside the judgment.
You did not even bother to call and tell the person left where you
were. When you called up perhaps the person left could notify you
about the summons. You are very irresponsible! What kind of a
person are you? You will leave for abroad and you will not even
bother to call up to find out what is going on. So, wala!
So the case of MONTALBAN provides that the service of summons
under Section 16 on the defendant doesn’t prevent the application
of Section 7 in addition to Section 15. Summons can be served
abroad just like in Section 15 but it does not mean to say that you
cannot apply Section 7 because anyway it does not say MUST, it
uses MAY.
And one thing that you will notice in Section 16 is that the action is
IN PERSONAM. It is purely an action for damages. So in Section 16,
when residents are temporarily outside of the Philippines, there
could be also substituted service of summons in addition to Section
15 and the action could be in personam as distinguished from
Sections 14 and 15 where the action must be in rem or quasi in
rem.
So the action in Section 16 need not be an action in rem or quasi in
rem because he is actually residing in the Philippines and only
temporarily out.
SERVICE OF SUMMONS IN EXCEPTIONAL CASES
1.) SERVICE OF SUMMONS UPON AN ENTITY WITHOUT JURIDICAL
PERSONALITY
Sec. 8. Service upon entity without juridical personality. When
persons associated in an entity without juridical personality are
sued under the name by which they are generally or commonly
known, service may be effected upon all the defendants by
serving upon any one of them, or upon the person in charge of
the office or place of business maintained in such name. But such
service shall not bind individually any person whose connection
with the entity has, upon due notice, been severed before the
action was brought. (9a)
Section 8 is related to Rule 3, Section 15:
Rule 3, Sec. 15. Entity without juridical personality as defendant.
When two or more persons not organized as an entity with
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juridical personality enter into a transaction, they may be sued
under the name by which they are generally or commonly known.
In the answer of such defendant, the names and addresses of the
persons composing said entity must all be revealed. (15a)
Q: Since you can sue someone without juridical personality, how do
serve summons upon him?
A: Under Section 8, by serving summons upon anyone of them, that
is sufficient. Service upon any of those defendants is service for
the entire entity already. You may also serve summons upon the
person in charge of the office of the place of business. He may not
necessarily be the owner but in-charge of the office, he can be
served with summons.
2.) SERVICE OF SUMMONS UPON SOMEBODY WHO IS A PRISONER
Sec. 9. Service upon prisoners. When the defendant is a prisoner
confined in a jail or institution, service shall be effected upon him
by the officer having the management of such jail or institution
who is deemed deputized as a special sheriff for said purpose.
(12a)
Q: How do you serve summons to somebody who is a prisoner?
A: Under Section 9, summons shall be served through the person
in-charge of the jail like the jail warden. The jail warden is
automatically considered as deputized to serve it to the prisoner. It
is not necessary for the court officer to go into the jail and look for
the prisoner.
3.) SERVICE OF SUMMONS UPON MINORS AND INCOMPETENTS
Sec. 10. Service upon minors and incompetents. When the
defendant is a minor, insane or otherwise an incompetent, service
shall be made upon him personally and on his legal guardian if he
has one, or if none, upon his guardian ad litem whose
appointment shall be applied for by the plaintiff. In the case of a
minor, service may also be made on his father or mother. (10a,
11a)
Relate this to Rule 3, Section 3 on Representatives as Parties –
trustee of a trust, guardian, administrator, etc.
Q: When you sue a minor or an insane, how is summons served?
A: You serve the summons to the father or mother in the case of
minor. For a legal guardian, in the case of incompetent people or
to the minor himself.
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Q: The law says that “service shall be made upon him (the minor)
personally” when he may not understand what it is all about? Baka
itatapon lang niya iyon.
A: Because under Rule 3, he is the real party in interest.
4.) WHEN SERVICE OF SUMMONS ON DOMESTIC PRIVATE
JURIDICAL ENTITY.
Sec. 11. Service upon domestic private juridical entity. When the
defendant is a corporation, partnership or association organized
under the laws of the Philippines with a juridical personality,
service may be made on the president, managing partner, general
manager, corporate secretary, treasurer, or in-house counsel.
(13a)
What do you mean by domestic? A corporation or association
organized under Philippine laws.
Now, how do you serve summons to a corporation? Actually, they
have no physical existence, they only exist by legal friction.
Ordinarily summons must be served to a human being, to
somebody who is supposed to be the representatives. Therefore,
common sense will tell that in case of a corporation, you have to
serve the summons through people who run the corporation.
Q: To whom do you serve summons if it is a corporation?
A: In the case of a corporation, summons is served upon its officers.
Q: Who are these officers?
A: President, managing partner, general manager, corporate
secretary, treasurer, in-house counsel.
PRESIDENT. Sometimes, the president of a corporation is called the
Chief Executive Officer or CEO.
MANAGING PARTNER. This is in case of a partnership.
GENERAL MANAGER. Under the prior law, the word there is simply
“manager.” Now they added the word “general.” But even in the
old law, the word “manager” is interpreted as general manager. In
a corporation, there are so many managers like branch managers.
General manager is the over-all manager of the corporation
throughout the Philippines. He is usually based in the head office.
CORPORATE SECRETARY. The prior law only used the word
“secretary” but it has been interpreted as corporate secretary, not
the typist secretary. The corporate secretary is the custodian of
the records of the corporation. He is also a stockholder, because
you cannot be a corporate secretary unless you are a stockholder.
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The new law has already emphasized ‘corporate secretary.’ Before
illiterate sheriffs used to serve summons on secretary-typist.
TREASURER. The prior law says “cashier” now they have changed
the word to ‘treasurer.’ It is because treasurer is actually an officer
also. He is just like a budget secretary of the government. Cashiers
are ordinary employees which is more on clerical works.
IN-HOUSE COUNSEL. He is the lawyer of the company. He is
actually employed by the corporation. He takes care of the legal
problems. In Manila, for instance, most of the corporations there
have in-house counsels. Not so much here in Davao. Like Ayala
Corporation in Manila, they have internal legal counsel more or less
10 while Bank of Philippine Island has around 15. But these
corporations hire lawyers from the outside when it comes to
sensitive cases. They are referred as external legal counsel.
In the fairly recent case of Paramount Insurance Corp. vs. A.C.
Ordonez Corporation GR 175109 August 6, 2008 the Court
reiterated the rule that Sec. 11 sets out an exclusive enumeration
of the officers who can receive summons on behalf of the
corporation and that service of summons to someone other than
those enumerated is not valid. The Court further emphasized that
the argument of substantial compliance is no longer compelling.
Declared the Court:
“We have ruled that the new rule … is restricted, limited and
exclusive … Had the Rules of Court Revision Committee intended to
liberalize the rule on service of summons, it could have done so in
clear and concise language. Absent a manifest intention to
liberalize the rule, strict compliance with Section 11, Rule 14 of the
1997 Rules of Civil Procedure is required.”
The rule that summons may be served on internal legal counsel,
although appearing for the first time in the 1997 rules, is actually
an old rule. It has been ruled already in some cases that service of
summons upon an in-house counsel of a corporation is valid. It
binds the corporation under the ruling in the case of PHILIPPINE
OIL MKTG. CORP. vs. MARINE DEV’T CORP. (117 SCRA 879) and
FAR CORPORATION vs. FRANCISCO(145 SCRA 197) that the in-
house counsel if served with summons, there is a valid service,
because anyway, if you serve it to the general manager or the
President, chances are it will also be referred to him kay siya man
ang abogado. So the in-house counsel is new and it confirms what
the SC said.
Two (2) Persons in the OLD RULE not mentioned in the new rules:
But here is the change. In the previous law, you can serve the
summons on any of the directors of the corporation – MEMBERS of
the BOARD ba. Now, wala na yan ngayon. I think the only member
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of the Board here is the Corporate Secretary. So, the directors,
hindi na puwede.
But here is the most radical change. The word ‘AGENT,’ nawala na!
Did you notice under the old law, there is agent. The word agent
was so broad and so general that the SC has actually included there
so many people.
Like in the case of R TRANSPORT CORPORATION vs. CA, (241 SCRA
77 [1995]), the summons was served to the Operations Manager of
the corporation and the SC said the service was valid because he is
considered as an agent.
In the 1993 case of GESULGON vs. NLRC (219 SCRA 561), the
summons was served on the Assistant General Manager of the
corporation and the SC said that the service was valid because he is
an agent.
In the case of FAR CORPORATION vs. FRANCISCO (146 SCRA 197),
the summons was served on the Chief of Finance and
Administrative Section of the corporation and the SC said that he
will fall under the word agent.
In the cases of DELTA MOTORS vs. MASAGUN (70 SCRA 598) and
ATM TRUCKING vs. BUENCAMINO (124 SCRA 434) the service of
summon an employee employed in a corporation does not bind the
corporation because an ordinary employee who is not an officer is
not considered as agent.
However, there are cases were the service of summons to an
ordinary employee who is not an officer was valid. Among which
are:
The case of SUMMIT TRADING vs. ABENDANO (135 SCRA 397
[1985]), the summons was served on the confidential secretary of
the President and the SC said the service is valid. She is
qualified as agent.
And in the cases of J AND J CORPORATION vs. CA (158 SCRA 466),
reiterated in the case of GOLDEN FARMS vs. SUN BAR
DEVELOPMENT CORPORATION (214 SCRA 295), the summons was
served on a mere clerk of the corporation. So, he is not even an
officer. But the clerk gave it to the President. The SC said that the
defect is cured. The clerk could be considered as an agent. The
need for speedy justice must prevail over technicality. So, the word
‘agent’ has become very broad and it practically covers all
corporate officers who are presumed to be responsible.
Now, in the 1997 rules, the word ‘agent’ disappeared. And the law
is very clear: President, managing partner, general manager,
corporate secretary, treasurer, in-house counsel.
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Now, suppose you will serve it to the Branch manager? Of course
the corporation will say that there is no valid service of summons.
OK, it is void. But look at the case of GESULGON, etc. But that is
under the 1964 rules when you are deemed to be an agent. But
now, it is very specific. The intention of the new rules is to limit the
service to anyone of these. That is why they removed the word
‘agent.’
And if that interpretation prevails that the intention of the rules is
to limit to these people, it is now very difficult to sue a corporation
based in Makati if you are here in Davao because your summons
has to be coursed through them. And these people are not here!
The President is not here; The General Manager, etc. They are all
based in the head office. Corporate Secretary, treasure, in-house
counsel – Doon man ang opisina nila ba. The ones based here are
branch managers and they are now disqualified. If that is the
intention of the law, my golly! That is another headache!
It can be argued both sides eh. Despite this, we should stick to the
principle that technicalities should not give way.
Suppose I will serve it on the Branch Manager. He forwarded it to
their President in Manila. Eh ano pa ngayon ang reklano ninyo?
Anyway you already acquired it, you learned about it. Can you
insist that the court has no jurisdiction when actually you are well
aware already of the suit? You can say, let us go to reality. But it
can also be argued under the old law. Precisely, if the intention is
to make everybody a responsible officer, then the word ‘agent’
should have been retained. The intention of the law is to limit only
to these people. So, both sides can be defended.
Section 11 thus becomes another controversial provision. Whether
this change has abrogated GESULGON, FAR EAST CORP., SUMMIT
TRADING na pwede. All those doctrines have now been rendered
obsolete because of this change. All those cases were decided
based on the word ‘agent’ – are they agents? At least there is
basis, eh. Now, the word ‘agent’ is no longer there. That is why this
is a controversial provision.
E.B. VILLAROSA LTD vs. BENITO
312 SCRA 65 [Aug. 6, 1999]
FACTS: E.B. Villarosa & Partners is a limited partnership with
principal office address at 102 Juan Luna St., Davao City and with
branch offices at Parañaque and Cagayan de Oro City (CDO).
Villarosa and Imperial Development (ID) executed an Agreement
wherein Villarosa agreed to develop certain parcels of land in CDO
belonging to ID into a housing subdivision. ID, filed a Complaint for
Breach of Contract and Damages against Villarosa before the RTC
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allegedly for failure of the latter to comply with its contractual
obligation.
Summons, together with the complaint, were served upon
Villarosa, through its Branch Manager Wendell Sabulbero at the
address at CDO but the Sheriff’s Return of Service stated that the
summons was duly served "E.B. Villarosa & Partner thru its Branch
Manager at their new office Villa Gonzalo, CDO, and evidenced by
the signature on the face of the original copy of the summons."
Villarosa prayed for the dismissal of the complaint on the ground of
improper service of summons and for lack of jurisdiction over the
person of the defendant. Villarosa contends that the RTC did not
acquire jurisdiction over its person since the summons was
improperly served upon its employee in its branch office at CDO
who is not one of those persons named in Sec. 11, Rule 14 upon
whom service of summons may be made. ID filed a Motion to
Declare Villarosa in Default alleging that Villarosa has failed to file
an Answer despite its receipt allegedly on May 5, 1998 of the
summons and the complaint, as shown in the Sheriff's Return.
HELD: “We agree with Villarosa. Earlier cases have uphold service
of summons upon a construction project manager; a corporation's
assistant manager; ordinary clerk of a corporation; private
secretary of corporate executives; retained counsel; officials who
had charge or control of the operations of the corporation, like the
assistant general manager; or the corporation's Chief Finance and
Administrative Office. In these cases, these persons were
considered as "agent" within the contemplation of the old rule.”
“Notably, under the new Rules, service of summons upon an
AGENT of the corporation is NO LONGER authorized.”
“The designation of persons or officers who are authorized to
accept summons for a domestic corporation or partnership is now
limited and more clearly specified in Section 11, Rule 14. The rule
now states "general manager" instead of only "manager";
"corporate secretary" instead of "secretary"; and "treasurer"
instead of "cashier." The phrase "agent, or any of its directors" is
conspicuously deleted in the new rule.”
“A strict compliance with the mode of service is necessary to confer
jurisdiction of the court over a corporation. The officer upon whom
service is made must be one who is named in the statute;
otherwise the service is insufficient. . . The liberal construction rule
cannot be invoked and utilized as a substitute for the plain legal
requirements as to the manner in which summons should be
served on a domestic corporation. .”
“Service of summons upon persons other than those mentioned in
Section 13 of Rule 14 (old rule) has been held as improper.
Accordingly, we rule that the service of summons upon the branch
manager of Villarosa at its branch office at CDO, instead of upon
the GM at its principal office at Davao City is improper.
Consequently, the RTC did not acquire jurisdiction over the person
of Villarosa. The fact that Villarosa filed a belated motion to dismiss
did not operate to confer jurisdiction upon its person. There is no
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question that the Villarosa’s voluntary appearance in the action is
equivalent to service of summons.”
“Before, the rule was that a party may challenge the jurisdiction of
the court over his person by making a special appearance through a
motion to dismiss and if in the same motion, the movant raised
other grounds or invoked affirmative relief which necessarily
involves the exercise of the jurisdiction of the court, the party is
deemed to have submitted himself to the jurisdiction of the court.
This doctrine has been abandoned in the case of La Naval Drug
Corporation vs. CA which became the basis of the adoption of a
new provision in Section 20 of Rule 14.”
“Section 20 now provides that the inclusion in a motion to dismiss
of other grounds aside from lack of jurisdiction over the person of
the defendant shall not be deemed a voluntary appearance. The
emplacement of this rule clearly underscores the purpose to
enforce strict enforcement of the rules on summons. Accordingly,
the filing of a motion to dismiss, whether or not belatedly filed by
the defendant, his authorized agent or attorney, precisely objecting
to the jurisdiction of the court over the person of the defendant
can by no means be deemed a submission to the jurisdiction of the
court.”
“There being no proper service of summons, the trial court cannot
take cognizance of a case for lack of jurisdiction over the person of
the defendant. Any proceeding undertaken by the trial court will
consequently be null and void.”
“WHEREFORE, the petition is hereby GRANTED. The assailed Orders
of the public respondent trial court are ANNULLED and SET ASIDE.”
5.) SERVICE OF SUMMONS UPON FOREIGN PRIVATE JURIDICAL
ENTITY
Sec. 12. Service upon foreign private juridical entity. When the
defendant is a foreign private juridical entity which has
transacted business in the Philippines, service may be made on its
resident agent designated in accordance with law for that
purpose, or, if there be no such agent, on the government official
designated by law to that effect, or on any of its officers or agents
within the Philippines. (14a)
Q: What is the difference between corporation or entity in Section
11 and Section 12?
A: The entity or corporation under Section 11 is domestic while
under Section 12, the corporation is a foreign corporation but
doing business in the Philippines because the law says, when the
defendant is a foreign private juridical entity which transacted
business in the Philippines…”
When a foreign corporation is not doing business in the Philippines,
it cannot be sued, just like a non-resident defendant. The best
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example of a foreign corporation doing business in the Philippines
are air line companies, foreign banks.
Q: To whom do you serve summons in this case?
A: Well, that is already touched in Rule 11, Section 2. If it has a
designated resident agent, you must serve it to him. If it has none,
then to the appropriate Philippine government officer who will
transmit it to the head office.
Q: What is the period to file answer?
A: Under Rule 11, Section 2, the period to file an answer is longer if
summons is served on a government official designated by law for
that purpose, the period is 30 days. But if the foreign corporation
has a designated resident agent in the Philippines and summons is
served on him, the period to answer is only 15 days just like any
other defendant.
NORTHWEST ORIENT AIRLINES vs. COURT OF APPEALS
241 SCRA 192 [1995]
HELD: When there is a designated resident agent to receive
summons, service of summons to that person is exclusive. He is
the only one to be served with summons in behalf of the
corporation sued. So, if there is a designated agent, siya lang. He is
the only person authorized to receive the summons.
“If a foreign corporation has designated an agent to receive
summons the designation is exclusive. Service of summons is
without force and gives to a court no jurisdiction unless made upon
him.”
BALTAZAR vs. COURT OF APPEALS
168 SCRA 354 [1988]
FACTS: The summons was to be served on the corporation at an
address. But when the sheriff went to that address, he was told by
the security guard that the corporation was no longer holding
office there. Lumipat na sa ibang lugar. Therefore, we do not know
already.
So, ni-report niya, “Hindi ko makita.” Therefore, the plaintiff filed a
motion in court to be allowed to serve summons by publication
under Section 14 when the whereabouts of the defendant is
unknown. So there was service of summons by publication.
ISSUE: Was there a valid service of summons by publication?
HELD: There was NONE. The deputy sheriff should have known
what every law school student knows! – that defendant, being a
domestic corporation must have been registered with the SEC and
that the SEC records would therefore reveal, not just the correct
address of the corporate headquarters of the defendant, but also
the address of its officers.
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A litigant or process server who has not gone through the records
of the SEC cannot claim to have carried out the ‘diligent inquiry’
required under the law for valid service of summons by publication
upon a domestic corporation.”
So there was no diligent inquiry. You should have gone to the SEC
and look at the records kung saan lumipat. Also with the address of
the officers like the President, you can go to his place and serve the
summons to him. So there was improper service of summons by
publication. Another case was
REBULIDO vs. COURT OF APPEALS
170 SCRA 800
FACTS: A corporation committed a wrong and then pagdemanda,
dissolved na. When the action was filed, the corporation was
already dissolved – wala ng juridical personality.
ISSUE #1: Can you still sue a dissolved corporation?
HELD: YES. Otherwise, if we will say that a corporation which is
already dissolved can no longer be sued, it is very easy for a
corporation to avoid liability by simply dissolving itself after it
commits a wrong.
And secondly, under the Corporation Law, even if you are already
dissolved, there is still a period for winding up where you can
collect. So, it is still functioning. And to say that it is already
dissolved or that it is no longer functioning is not also true.
ISSUE #2: If that is so, to whom will you now serve the summons?
HELD: You serve it on the last set of officers. The same people
mentioned – there must be a last President or a last Corporate
Secretary, etc. They are the people who whom summons should be
served.
When a corporation was placed under a Voting Trust Agreement
(VTA), the summons should be served on the trustee. The President
has no more personality – that is an exception to Section 11. So,
when a corporation is placed under VTA, the summons should be
served on the person in whose favor the VTA was executed
because the officers of the corporation have no more personality
to manage the affairs of the corporation.
FOREIGN ENTITY TRANSACTING BUSINESS IN THE PHILIPPINES
Finally, going back to foreign private juridical entity, take note that
under the law, the foreign private juridical entity is one doing
business in the Philippines. So, if a foreign corporation is not doing
business in the Philippines, it cannot be sued, just like a non-
resident defendant because the court can never acquire
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jurisdiction over that person or foreign corporation. We know that
‘no?
And the perennial debate is, when is a foreign private corporation
doing or not doing any business in the Philippines? I think the
Corporation Law has so many cases along that line.
EXAMPLE: A Filipino businessman wanted to buy machines where
there is only one manufacturer and supplier which is a corporation
in Europe. This corporation has no office in the Philippines. The
Filipino businessman contracted with the foreign corporation. He
ordered machineries. The foreign corporation sent its people to
deliver the machineries. They stayed in the Philippines for a while
to check the machines and to teach the Filipinos how to run it.
Q: Now, can that corporation be used in the Philippine courts?
A: NO, because that foreign corporation is not doing business in the
Philippines. Section 12 does not refer to a foreign corporation with
a single isolated, casual transaction. In the cases of
PACIFIC MICRONISIAN LINE, INC. vs. DEL ROSARIO
G.R. No. L-7154. October 23, 1954
HELD: “‘Doing business’ is construed to mean such continuity of
conduct and intention to establish a continuous business. An
isolated transaction, or transactions which are occasional,
incidental or casual and which do not evince intent to conduct
continuous business do not constitute ‘doing business in the
Philippines.’”
“In order that a foreign corporation may be regarded as doing
business in the Philippines, there must be continuity of conduct
and intention to establish a continuous business, such as the
appointment of a local agent, and not one of a temporary
character.”
FAR EAST INTERNATIONAL vs. NANKAI KOGYO CO., LTD.
November 30, 1962
HELD: “Where a single act or transaction of a foreign corporation is
not merely incidental or casual, but is of such character as distinctly
to indicate a purpose on the part of the corporation to do other
business in the Philippines, and to make the Philippines a base of
operations for the conduct of a part of the corporation’s ordinary
business, the corporation may be said to be ‘doing business in the
Philippines.’”
So, under the rules, a foreign corporation not doing business in the
Philippines cannot be sued. If it enters into a contract with a
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Filipino business man, it is not actually doing business. Isa lang eh!
So, technically, that foreign corporation cannot be sued in the
Philippines. Your remedy is to go to Europe and sue that
corporation there. In the case of
LINGER AND FISCHER vs. IAC
125 SCRA 522
FACTS: A Philippine corporation entered into a contract with a
foreign corporation and then their agreement says the foreign
corporation agrees to be sued in the Philippines. So practically,
puwede. And the problem now is, to whom will you serve the
summons?
When a foreign corporation not doing business in he Philippines
agrees to be sued in the Philippines, how do you serve summons?
Is Section 12 applicable?
HELD: NO, Section 12 is not applicable because in Section 12, the
premise is, the foreign private corporation is doing business in the
Philippines. So Section 12 does not apply. So, how shall we serve
the summons?
In the first place, the foreign corporation, which cannot be sued,
agrees to be sued. Their agreement is similar to venue where we
can agree on the venue of the case. Now, since it is not doing
business, it is more accurate to apply the rules on Section 15 on
extraterritorial service of summons on a non-resident defendant
who is not physically here.
So, summons should be served not in accordance with Section 12
but in accordance with Section 15 on extraterritorial service.
6.) SERVICE OF SUMMONS UPON PUBLIC CORPORATION
Sec. 13. Service upon public corporations. When the defendant is
the Republic of the Philippines, service may be effected on the
Solicitor General; in case of a province, city or municipality, or like
public corporations, service may be effected on its executive
head, or on such other officer or officers as the law or the court
may direct. (10a)
An example of a public corporation is the Republic of the
Philippines. As a rule, they cannot be sued. But in cases where it
can be sued, summons may be effected on the Solicitor General
being the representative of the Republic.
Kung provinces, cities or municipalities, like the City of Davao,
service may be effected on the executive heads such as the
provincial governor, municipal or city mayor.
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Summons may also be effected on “such other officer or officers as
the law or the court may direct.” So the court may order that the
summons be served on the city legal officer. Here, there is still a
valid service of summons.
Summary of Service of Summons on Different Entities
A. Entity without juridical personality (Sec. 8) .... upon any or all the
defendants being sued under common name; or person in charge
of the office.
B. Minors and incompetents (Section 10) .... in case of minors: by
serving upon the minor regardless of age, and upon his legal
guardian or also upon either of his parents. .... in case of
incompetents - by serving on him personally and upon his legal
guardian, but not upon his parents, unless they are his legal
guardians.... In any event, if the minor or incompetent has no legal
guardian, the plaintiff must obtain the appointment of a guardian
ad litem for him.
C. Prisoner (Section 9) .... Serve on officer having management of
the jail or prison (warden).
D. Domestic private juridical entity (Section 11) ..... to the
president, managing partner,, general manager, corporate
secretary, treasurer, or in house counsel. Note that service upon a
person other than those mentioned is invalid and does not bind the
corporation. the enumeration is exclusive.
E. Defendant is a foreign private juridical entity (Section 12) ....
Serve on the resident agent; or if none, on the government official
designated by law; or any officer or agent of the corporation within
the Philippines.
F. Public corporation (Section 13) .... In case defendant is the
Republic of the Philippines by serving upon the Solicitor General; In
case of province, city or municipality or like corporations, by
serving on its executive head or on such other officer or officers as
the law or the court may direct.
Sec. 18. Proof of service. The proof of service of a summons shall
be made in writing by the server and shall set forth the manner,
place, and date of service; shall specify any papers which have
been served with the process and the name of the person who
received the same; and shall be sworn to when made by a person
other than a sheriff or his deputy. (20)
This is called a SHERIFF’S RETURN where the sheriff will state the
manner (personal or substituted, publication); place and date; to
whom served. Then you specify that you serve also the complaint.
Name of person who received the same.
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APPEARANCE precisely to question the jurisdiction of the court

Q: Must the return be sworn to?
A: NO NEED, except when made by a person other than a sheriff or
his deputy. Remember that summons can be served by other
person authorized by the court to do so.
Sec. 19. Proof of service by publication. If the service has been
made by publication, service may be proved by the affidavit of
the printer, his foreman or principal clerk, or of the editor,
business or advertising manager, to which affidavit a copy of the
publication shall be attached, and by an affidavit showing the
deposit of a copy of the summons and order for publication in the
post office, postage prepaid, directed to the defendant by
registered mail to his last known address. (21)
VOLUNTARY AND SPECIAL APPEARANCE
over his person.
A special appearance is not indicative of the intention to submit to
the jurisdiction of the court. Otherwise, it becomes absurd if I will
file a motion to dismiss questioning the jurisdiction of the court
over my person and then the court will say, “Well, by filing the
motion to dismiss, you are also voluntarily submitting to the
jurisdiction of the court.” Definitely, that is not the appearance
contemplated by Section 20.
Now, the second sentence, “The inclusion in a motion to dismiss of
other grounds aside from lack of jurisdiction over the person of the
defendant shall not be deemed a voluntary appearance.” What is
the meaning of that? Well, that principle is taken from the ruling of
the SC in the leading case of LA NAVAL DRUG CORPORATION vs. CA,
236 SCRA 28, which we will discuss more in detail when we reach
Rule 16 on Motion to Dismiss.

Sec. 20. Voluntary appearance. The defendant's voluntary

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

The first mode of acquiring jurisdiction over the person of the

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

Voluntary appearance is not necessarily an answer. Like a motion

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

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

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

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

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

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

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

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Rule 15 2.) Motion for Judgment on the Pleadings (Rule 34); and
3.) Motion for Summary Judgment (Rule 35).
MOTIONS

Q: What are the requisites of a valid motion.

What is a motion? Define a motion.
A: They are found from Section 2 to Section 6:

SECTION 1. Motion defined. A motion is an application for relief

Sec. 2. Motions must be in writing. All motions shall be in writing
other than by a pleading. (1a)
except those made in open court or in the course of a hearing or
trial. (2a)
Kinds of Motions

As a rule, all motions must be in writing, “except those made in

1. Motion Ex Parte is made without the presence or a notification
open court or in the course of a hearing or trial” because for
to the other party because the question generally presented is not
example, during the trial, pagtingin mo sa relo, quarter to twelve
debatable, like a Motion for Extension of Time to File Pleadings;
na. So you can move orally for continuance. And the judge will not
require you to have that typed pa. There is no more time to do
2. Motion of Course is where a movant is entitled to the relief or
that. Anyway, it is officially recorded.
remedy sought as a matter of discretion on the part of the court;

Sec. 3. Contents. A motion shall state the relief sought to be

3. Litigated Motion is one made with notice to the adverse party to
obtained and the grounds upon which it is based, and if required
give an opportunity to oppose, like a Motion to Dismiss);
by these Rules or necessary to prove facts alleged therein, shall be
accompanied by supporting affidavits and other papers. (3a)
4. Special Motion is a one addressed to the discretion of the court.

Contents of a Motion:
General rule: A motion cannot pray for judgment.
1. the relief sought to be obtained;
2. the ground upon which it is based; and
In a motion, the party is asking the court for a favor other than
3. if required by the Rules or necessary to prove facts alleged
what is contained in the pleading. Usually, the main relief is prayed
therein, shall be accompanied by supporting affidavit and other
for in the pleading, like “Judgment be rendered in favor of the
papers.
plaintiff,” or, “The complaint be dismissed.” That is what you pray
in your complaint or in your answer.
So a motion shall state the relief sought to be obtained and the
grounds upon which it is based. For example, you move to
A pleading however is directly related to the cause of action or the
postpone the trial next week because you client is still abroad. So
defense. But a motion prays for something else. In a motion, you
you cite the ground/s upon which it is based.
are asking for another relief other than the main cause of action or
the main defense. Example is a motion to postpone trial or a
Q: Is it necessary that a motion be accompanied by supporting
motion for extension of time to file answer. You do not do that by a
affidavits and other papers?
complaint but by way of a motion because you are praying for a
A: No, unless required by the Rules or necessary to prove facts
relief other than by a pleading.
alleged therein.

Pleadings are limited to those enumerated in Rule 6 such as

Q: Give an example of a motion where supporting affidavits are
complaint, answer, cross-claim, counterclaim, etc. But if you look
required by the Rules.
at a motion, it looks like a pleading. In form, it looks exactly like a
A: A motion for new trial or motion to lift order of default on the
pleading but under the law, it is not a pleading.
ground of fraud, accident, mistake of excusable negligence. Under
Rule 37, Section 2, in order for a motion for new trial on that
However, there are three (3) well known EXCEPTIONS to this.
ground to be valid, there must Be Affidavit Of Merits. If there is no
Meaning you are praying, by way of a motion, for a relief which
affidavit of merits, the motion will be denied.
normally should be prayed for in a pleading such as a motion is
praying for a judgment already. The exceptions are:
And if necessary to prove facts alleged therein, then, the motion
must be accompanied by affidavit and other supporting papers.
1.) Motion for Judgment to the Demurrer to Evidence (Rule
Example is when you are moving for the postponement of the trial
33);

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

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

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

EXAMPLE: Under the OLD rules, if you want to file an amended

compliant, there are two (2) Options under the old rules. The first
option is to file a motion for leave to file amended complaint. And
when it is granted, that is the time for to you file your amended
complaint. The second option is you file your amended complaint
together with the motion to admitted it.

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

Under the PRESENT RULE, when you file a motion, the pleading to
be admitted must already be included in your motion.

Sec. 10. Form. The Rules applicable to pleadings shall apply to

written motions so far as concerns caption, designation,
signature, and other matters of form. (9a)

The rule on pleadings also applies to written motion as far as

caption, designation, signature and other matters of court. So in
appearance there is difference between the appearance of a
pleading and the appearance of a motion. But definitely, a motion
is not a pleading although it looks like a pleading.

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Rule 16 However the admission extends only to material and relevant

allegations.
MOTION TO DISMISS
If for instance the plaintiff files an action for damages against the
defendant who files a motion to dismiss, the defendant in effect
Even when the allegations in the complaint are now clear enough
says that even assuming the facts to be true as alleged by the
to enable the defendant to file his responsive pleading because the
plaintiff, the latter has failed to show that he has a right to relief
adverse party has already submitted a bill of particulars, the
because his action has prescribed or because the court where the
defendant need not file his answer immediately. He may first
action was filed has no jurisdiction over the subject matter of the
explore the possibility of filing a motion to dismiss under Rule 16. If
complaint.
there is no ground for a motion to dismiss, he has to file his
answer.
Omnibus motion

While the filing of a motion to dismiss is not prohibited, the remedy

When a motion to dismiss is filed, all grounds available at the time
being an integral part of the Rules of Court, the current policy of
the motion is filed must be invoked in the motion. This is required
the SC is not to encourage the filing of such motion but to instead
under the “omnibus motion rule.” Grounds not so invoked are
file an answer to the complaint. Thus, effective August 26, 2004,
deemed waived. The grounds not waived however, are lack of
within one day from receipt of the complaint, summons shall
jurisdiction over the subject matter, litis pendencia, res judicata
contain a reminder to the defendant to observe restraint in filing a
and prescription (Sec. 8 Rule 15; Sec. 1 Rule 9)
motion to dismiss and instead allege the grounds thereof as
defenses in the answer (A.M. No. 03-1-09-SC, July 13, 2004).
The above rule applies only when a motion to dismiss is filed.
Where no motion to dismiss is filed, the grounds for a motion to
Motion to dismiss is the counterpart of motion to quash (Rule 117)
dismiss may be availed of as affirmative defenses in the answer
in criminal procedure. In criminal procedure, before the
(Sec. 6 Rule 16). No defense is waived because no motion to
arraignment or before entering a plea the accused may instead file
dismiss was filed. There is indeed an unmistakable difference in the
what is known as motion to quash. The proceedings are quashed
legal effects between filing and not filing a motion to dismiss in
on the ground that: (1) the court has no jurisdiction over the
relation to waiver of defenses.
subject matter of the case or over the person of the accused; (2)
the person who filed it has no authority to do so; (3) the complaint
If no motion to dismiss has been filed, any of the grounds for
or information charges more than one offense; (4) because of
dismissal provided in the Rules may be pleaded as an affirmative
double jeopardy; or (5) the criminal liability has already been
defense in the answer, and in the discretion of the court, a
extinguished.
preliminary hearing may be had thereon as if a motion to dismiss
had been filed. Based on the foregoing, a preliminary hearing
A motion to dismiss is not a responsive pleading.
undeniably is subject to the discretion of the trial court. The trial
court’s order granting or dispensing with the need for a preliminary
Hypothetical admissions of a motion to dismiss
hearing may not be corrected by certiorari absent any showing that
the trial court had acted without jurisdiction or in excess thereof or
A motion to dismiss hypothetically admits the truth of the factual
with such grave abuse of discretion as would amount to lack of
allegations of the complaint (Peltan Development Inc., vs. CA 270
jurisdiction (Misamis Occidental II Cooperative, Inc. vs. David 468
SCRA 82; Cuarto vs. De Luna 22 SCRA 459). The admission extends
SCRA 63).
only to such matters of fact that have been sufficiently pleaded and
not to mere epithets charging fraud, allegations of legal conclusions
Section 1. Grounds. Within the time for but before filing the
or erroneous statements of law, inference from facts not stated,
answer to the complaint or pleading asserting a claim, a motion
matters of evidence or irrelevant matters (De Dios vs. Bristol
to dismiss may be made on any of the following grounds:
Laboratories, 55 SCRA 349) Only deemed hypothetically admitted
xxxxx
are material allegations, not conclusions. An allegation that a
contract is an “equitable mortgage” is a conclusion and not a
General rule: A court may not motu proprio dismiss a case unless a
material allegation. Hence, it is not deemed admitted by the
motion to that effect is filed by a party thereto.
motion to dismiss (Dalandan vs. Julio 10 SCRA 4000).

Exceptions:
A motion to dismiss generally partakes the nature of a demurrer. It
hypothetically admits the allegations stated in the complaint.

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1. Those cases where the court may dismiss a case motu proprio
(Sec. 1, R 9 “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.”);
2. Sec. 3 R 17 (Failure to prosecute); and
3. Rule on Summary Procedure (Sec. 4, 1991 Revised Rules on
Summary Procedure.
Types of Dismissal of Action
1. Upon Motion to Dismiss before Answer under Rule 16;
2. Upon Motion to Dismiss under Rule 17;
a. upon notice by plaintiff;
b. upon motion by plaintiff; or
c. due to fault of plaintiff.
3. Motion to dismiss called a demurrer to evidence after plaintiff
has completed the presentation of his evidence under Rule 33; and
4. Dismissal of an appeal.
Q: When do you file a motion to dismiss?
A: Within the time for but before filing the answer. So, within 15
days instead of filing an answer the law allows the defendant to file
instead a motion to dismiss. The principle is within 15 days from
receipt of the summons and the complaint, the defendant should
file an answer or in lieu of an answer he may instead file a motion
to dismiss based on the grounds enumerated in section 1.
A motion to dismiss that is filed after the answer has been filed, is
considered filed out of time and the defending party is stopped
from filing the motion to dismiss (Philville vs. Javier 477 SCRA 533).
This is only a general rule.
Note however, that a motion to dismiss may be filed even after the
filing of the answer and will not be considered filed out of time if
the ground raised in the motion is either of the following:
(a) Lack of jurisdiction over the subject matter;
(b) Litis pendencia;
(c) Res judicata; or
(d) Prescription (Sec. 1 Rule 9).
Under said rule, when any of the above grounds appears from the
pleadings or from the evidence on record, the court shall dismiss
the claim. The authority given to the court is, from the tenor of the
rule, not only mandatory but also subject to a motu proprio
dismissal. Since the ground for dismissal may appear from the
evidence, it is obvious that the dismissal may be made during the
trial and this means, even after the answer has been filed.
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Now, a motion to dismiss is available not only for the purpose of
dismissing the complaint but also for dismissing a counterclaim, a
cross-claim, a third party complaint because the laws says “before
filing the answer to the complaint or pleading asserting a claim.” A
claim can be asserted not only in a compliant but also in other
pleading such as counterclaims, etc.
First Ground: [a] THAT THE COURT HAS NO JURISDICTION OVER THE
PERSON OF THE DEFENDING PARTY
Q: When will that happen?
A: When there is absence of summons or improper service of
summons.
Now based on decided cases, it would seem that this is one of the
weakest grounds for a motion to dismiss – “the court has not
acquired jurisdiction over the person” – for there are many
exceptions. There are many waivers. Because of the rule of waiver
the court may acquire jurisdiction over your person in some other
capacity.
EXAMPLE: You are improperly served with summons but you file a
motion for bill of particulars or you file a motion for extension of
time to file for an answer then you voluntarily appears before the
court and the court acquires jurisdiction over your person and you
cannot any more file a motion to dismiss. The principle is that the
moment you file a motion for bill of particulars or you file a motion
for extension of time, in effect you have already submitted to the
jurisdiction of the court. If there was any defect in the service of
summons, it was already cured.
EXAMPLE: Now, suppose the summons was served on a nine-year
old boy who is presumed to be responsible. When his father
arrived, the boy told his father that somebody came in and left this.
So in other words the father actually got the summons. Now,
suppose the father will file a motion to dismiss on the ground that
the court never acquired jurisdiction over the person because the
summons was improperly served. Do you think it will prosper?
There are cases in the SC which says even if the summons was not
properly served, if actually it came to the attention of the
defendant, the defect is cured. Because if you say I will not answer
for the summons is improper that is more of a technicality. You are
being technical. Actually you have received the summons. In other
words, there are cases along that line. That is why this ground may
no longer be available to you because of those instances.
LINGER AND FISHER vs. IAC
125 SCRA 522
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FACTS: The sheriff served the summons improperly on the
defendant. And the defendant filed a motion to dismiss on the
ground that the court has no jurisdiction over his person.
HELD: Defendant assumed that the sheriff made a mistake. Why
should we dismiss the complaint? It is not the fault of the plaintiff.
If the sheriff does not know how to do it, the fault lies on the
sheriff and the sheriff is an employee of the court, not an agent of
the plaintiff. Why should the court blame the plaintiff? If that is
what happens we will not dismiss the case. We will instead issue an
alias summons and direct the sheriff to serve it properly.
With all these decided cases, it would seem that the objection of
no jurisdiction over the person of the defending party is getting
weaker and weaker because of so many exceptions such as: (1)
waiver; (2) voluntary appearance; (3) improper service but the
defendant came to know about it so you cannot rely on the
technicality and (4) then you have the case of Linger.
FAR CORPORATION vs. FRANCISCO
146 SCRA 197
HELD: This case reiterated the ruling in LINGER where the SC said
again, if the sheriff did not know how to serve the summons, why
should the plaintiff’s complaint be dismissed when it is not his
fault. The correct procedure is for the court to issue another
summons and direct that the sheriff should serve it properly.
On the other hand, there was a conflict before in jurisprudence on
this question:
Q: Suppose I will file a motion to dismiss. Assuming that there is a
ground of lack of jurisdiction over my person and venue is
improper. Meaning, I will cite 2, 3 or 4 grounds. Is that possible?
LA NAVAL DRUG CORPORATION vs. COURT OF APPEALS
236 SCRA 78 [en banc]
HELD: When you file a motion to dismiss citing lack of Jurisdiction
over your person together with other grounds, there is no waiver
of the defect of lack of jurisdiction. So, you can file a motion to
dismiss on that ground together with other grounds. There is no
more waiver. The inclusion in a motion to dismiss of other grounds
aside from lack of jurisdiction over the person of the defendant
shall not be deemed a voluntary appearance.
Obviously the ruling in NAVAL is incorporated in the Rules of Court.
Let’s go back to Rule 14 Section 20:
Sec. 20. Voluntary appearance. - The defendant's voluntary
appearance in the action shall be equivalent to service of
summons. The inclusion in a motion to dismiss of other grounds
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aside from lack of jurisdiction over the person of the defendant
shall not be deemed a voluntary appearance. (23a)
Second Ground: [b] THAT THE COURT HAS NO JURISDICTION OVER
THE SUBJECT MATTER OF THE CLAIM.
That is one of the most important grounds for a motion to dismiss.
EXAMPLE: An action for unlawful detainer is field in the RTC and
your ground is, the court has no jurisdiction over the subject
matter. Or, an action for annulment of marriage is filed in the MTC.
Now, I will file a motion to dismiss because the court has no
jurisdiction over the subject matter.
Important principles re determination of jurisdiction over the
subject matter:
FIRST PRINCIPLE: Jurisdiction over the subject matter is
determined by the allegations in the complaint .
Q: How do we determine whether a court has a jurisdiction or not
over a particular case?
A: By reading the compliant, we will know what the subject matter
of the action is and the knowledge of the subject matter or nature
of the action will lead to a determination of whether or not it is
within the jurisdiction of the court where it is filed..
So the principle to remember is, jurisdiction over the subject
matter of the case is determined by the allegations in the
complaint not by the allegation of the defendant in his motion to
dismiss or answer.
SECOND PRINCIPLE: When a defendant files a motion to dismiss
on the ground that the court has no jurisdiction over the subject
matter, the defendant hypothetically admits all the allegations in
the complaint to be true. The defendant in the meantime, is not
allowed to present evidence that the court has no jurisdiction.
Everything must be decided on the face of the complaint only.
EXAMPLE: A filed a complaint against B before the RTC of Davao
City to recover an unpaid loan of P350,000. By going over the
complaint, does the RTC have jurisdiction? YES. But here comes the
defendant filing a motion to dismiss under Rule 16 alleging that “it
is not P350,000 but only P250,000. Therefore, the court has no
jurisdiction over the subject matter.” So the court is confronted
with this situation.
Q: What will the court do? Should the court deny the motion to
dismiss?
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A: YES because jurisdiction over the subject matter is determined
by the allegations in the complaint. They are not determined by the
allegations of the defendant in his motion to dismiss.
An examination of the allegations will show that it is an action
capable of pecuniary estimation and in this kind of cases
jurisdiction is determined by the amount claimed exclusive of
damages, interest, attorney’s fees, etc.
But suppose it is really P250,000 only and in the course of the trial,
even plaintiff’s own evidence shows that the loan is only P250,000.
If that is so, if that becomes apparent in the middle of the trial,
Vannie Kolotski will now move to dismiss on the ground that the
lack of jurisdiction has now become apparent. Anyway, you have
not waived that defect. You can raise that anytime. But at the start
of the case, whatever the complaint says, that is assumed to be
true for the moment, if the ground is lack of jurisdiction. So, what is
the principle there? Jurisdiction over the subject matter is
determined purely by the allegations in the complaint.
THIRD PRINCIPLE: Jurisdiction over the subject matter, once
acquired by the court upon the filing of the complaint, the court
retains the jurisdiction over that case until that case is
terminated. Any subsequent development or any subsequent
amendment of the law will no longer deprive the court of its
jurisdiction.
A perfect EXAMPLE is what happened with the effectivity of the law
expanding the jurisdiction of the MTC under RA 7691. The
jurisdiction of the MTC under the old law is P20,000 lang eh. So, if
your claim is above P20,000, RTC na. And there were several cases
pending in court already being tried – P 30,000, P 40,000 in the
RTC. Then in April 1994, the jurisdiction of the MTC was increased
to P100,000. What happens now to all those cases which were only
P21,000 or P20,000? Shall the RTC dismiss all of them or the RTC
will finish it? Jurisdiction over the subject matter once acquired
continues until the case is finished or terminated. That is the
principle to remember.
An EXCEPTION there is when the new statute is intended to be
curative in character – to cure the defect under the old law – then
the rule on adherence of jurisdiction does not apply.
That was best exemplified by a situation years ago when there was
a controversy as to whether a claim for moral and exemplary
damages filed by an employee against the employer for oppressive
act of terminating him can be granted by the Labor Arbiter.
Definitely, reinstatement and backwages can be granted by the
Labor Arbiter. The jurisprudence at that time when it was still
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unsettled was, the claim for moral damages should be settled in
the RTC, not by the Labor Arbiter. However, where these cases for
damages related to employer-employee relationship, were still
pending in the RTC, the law was changed. The Labor Arbiter now
was given jurisdiction to award damages.
So what happens to the cases for damages now pending in the
RTC? Should they be transferred to the Labor Arbiter? It we follow
the rule that jurisdiction once acquired continues, the answer is,
the RTC should continue trying the case for damages and the Labor
Arbiter continue to try the cases for backwages and reinstatement.
But that is practically splitting the case into two parts.
So obviously, the intention of the law granting the Labor Arbiter
the jurisdiction is to cure the error. So, what happened? All those
cases filed in the RTC were ordered transferred to the Labor Arbiter
as an exception to the rule on adherence to jurisdiction.
FOURTH PRINCIPLE: Lack of jurisdiction over the subject matter is
not waived if not raised in a motion to dismiss, thus, may be
raised:
1) In the answer;
2) In the course of the trial;
3) After the trial;
4) After the judgment; or even
5) For the first time on appeal.
All right, let’s go to the basics:
Q: Can the issue of lack of jurisdiction over the subject matter be
raised in the middle of the trial?
A: YES, there is no waiver.
Q: Suppose there is already a decision by the trial court, can you
still raise the issue of lack of jurisdiction? Why?
A: YES. The decision is deemed void because all along the court has
no authority to try. So the trial is void. The judgment is void. As a
matter of fact it can be raised at any stage of the proceeding even
for the first time on appeal. That is the rule.
Now, that rule has somehow weakened or diluted by the ruling in
TIJAM vs. SIBONGHANOY
23 SCRA 29 [1968]
FACTS: In this case, a complaint for collection cognizable by the
inferior court was filed in the CFI. The jurisdiction was not
questioned. The CFI issued a writ of preliminary attachment but
was dissolved when the defendant filed a counterbond thru a
surety. After trial, the court rendered a judgment against the
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defendants. That decision became final and a motion for execution
was filed and granted. When implemented, the writ of execution
was unsatisfied so the plaintiff moved that the writ be executed
against the counterbond. The surety filed an opposition and sought
to be relieved from liability. The motion was denied on ground that
the surety was not notified. Plaintiff then filed a second motion for
execution against the counterbond notifying the surety this time.
Since the surety failed to oppose the motion was granted. The
surety moved to quash the writ against the counterbond but was
denied. The surety went to the Court of Appeals which affirmed the
order. The surety filed a motion for extension of time to file a
motion to for reconsideration which the CA granted. However,
instead of filing a motion for reconsideration the surety filed this
time a motion to dismiss on ground that the CFI did not have
jurisdiction over the subject matter. Instead of deciding the CA
certified the case to the Supreme Court because the issue raised is
purely legal.
RULING:
“The facts of the case show that from the time the Surety became a
quasi-party on July 31, 1948, it could have raised the question of
the lack of jurisdiction of the Court of First Instance of Cebu to take
cognizance of the present action by reason of the sum of money
involved which, according to the law then in force, was within the
original exclusive jurisdiction of inferior courts. It failed to do so.
Instead, at several stages of the proceedings, in the court a quo as
well as in the CA, it invoked the jurisdiction of said courts to obtain
affirmative reliefs and submitted its case for a final adjudication on
the merits. It was only after an adverse decision was rendered by
the CA that it finally woke up to raise the question of jurisdiction.
Were we to sanction such conduct on its part we would in effect be
declaring as useless all the proceedings had in the present case
since it was commenced on July 19, 1948 and compel the judgment
creditors to go up their Calvary once more. The inequity and
unfairness of this is not only patent but revolting.”
In other words, while jurisdiction as a rule, may be raised at any
stage of the proceedings (Panganiban vs. CA, 321SCRA 51, 59
[1999]), a party may be stopped from raising such questions if he
has actively taken part in the very proceedings which he questions,
belatedly objecting to the court’s jurisdiction in the event that the
judgment or order subsequently rendered is adverse to him. (Alday
v. FGU Insurance Corporation, 350 SCRA 113, 120 [2001]).
In general sense, estoppel by laches is failure or neglect for an
unreasonable and unexplained length of time to do what ought to
have been done earlier. The failure to act warrants the
presumption that one has abandoned his right or that he had
acquiesced to the correctness and fairness of what has been
resolved. The doctrine of estoppel is based on public policy
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intended to discourage stale claims. Estoppel is not a question of
time unlike the statute of limitations. It is rather based on the
inequity or unfairness of permitting a claim to be asserted at a
time such claim is presumed to have been abandoned. (Sps.
Guillermo Agbada and Maxima Agbada v. Inter-Urban Developers,
Inc. GR 144029, Sept. 19,2002)
But the ruling in SIBONGHANOY is not intended to be the rule. It is
not intended to overrule the rule that lack of jurisdiction over the
subject matter can be raised at any stage of the proceeding. The
ruling in the SIBONGHANOY is only to be applied in exceptional
situations
SEAFDEC – AGRICULTURE DEPARTMENT vs. NRLC
206 SCRA 283 [1992]
HELD: “A rule, that had been settled by unquestioned acceptance
and upheld in decisions so numerous to cite is that the jurisdiction
of a court over the subject matter of the action is a matter of law
and may not be conferred by consent or agreement of the parties.
The lack of jurisdiction of a court may be raised at any stage of the
proceedings, even on appeal.”
“This doctrine has been qualified by recent pronouncements which
stemmed principally from the ruling in the cited case of
SIBONGHANOY. It is to be regretted, however, that the holding in
said case had been applied to situations which were obviously not
contemplated therein. The exceptional circumstances involved in
SIBONGHANOY which justified the departure from the accepted
concept of non-waivability of objection to jurisdiction has been
ignored and, instead a blanket doctrine had been repeatedly
upheld that rendered the supposed ruling in SIBONGHANOY not as
the exception, but rather the general rule, virtually overthrowing
altogether the time-honored principle that the issue of jurisdiction
is not lost by waiver or by estoppel.” (Calimlim vs. Ramirez, G.R. No.
L-34362, 118 SCRA 399 [1982]).
DE LEON vs. COURT OF APPEALS
245 SCRA 166
HELD: “In the past, the principle of estoppel has been used by the
courts to avoid a clear case of injustice. Its use as a defense to a
jurisdictional error is more of an exception rather than the rule.
The circumstances outlining estoppel must be unequivocal and
intentional, for it is an exception to standard legal norms and is
generally applied only in highly exceptional and justifiable cases.”
The fact pattern common among those cases wherein the Court
invoked estoppel to prevent a party from questioning jurisdiction
is a party’s active participation in all stages of a case, including
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invoking the authority of the court in seeking affirmative relief
and questioning the court’s jurisdiction only after receiving a
ruling or decision adverse to his case for the purpose of annulling
everything done in the trial in which he has actively participated.
As clearly pointed out in Lao vs. Republic 479 SCRA 439: “A party
who has invoked the jurisdiction of the court over a particular
matter to secure affirmative relief cannot be permitted to
afterwards deny the same jurisdiction to escape liability.”
The Supreme Court frowns upon the undesirable practice of
submitting one’s case for decision, and then accepting the
judgment only if favorable, but attacking it for lack of jurisdiction if
it is not (Bank of the Philippine Islands vs. ALS Management and
Development Corporation, 427 SCRA 564).
Third Ground: [c] THAT VENUE IS IMPROPERLY LAID
Here, there is no compliance with Rule 4 – the action is filed in the
place other than the proper venue under Rule 4.
Q: Suppose you file a motion to dismiss on the ground of improper
venue, but your motion to dismiss is erroneously denied. What is
your remedy?
A: Your remedy is to resort to the special civil action of prohibition
under Rule 65. And you should resort to it immediately because if
you will file your answer and go to trial, in effect, you will be
waiving the objection. The objection must be pursued diligently.
That was the pronouncement in the case of Pangasinan
Transportation Co. v. Yatco (21 SCRA 658).
Fourth Ground: [d] THAT THE PLAINTIFF HAS NO LEGAL CAPACITY
TO SUE;
Q: Give an example when the plaintiff has no legal capacity to sue.
A: A minor will file a case without being assisted by his parents or
guardian. Or, a person will file a case in behalf of a minor claiming
that he is a guardian when in fact he is not. He is not the parent of
the child. He is not also appointed by the court.
According to the SC, when you say that the plaintiff lacks legal
capacity to sue, there are two (2) possible meanings. It means any
of the following:
1.) when the plaintiff does not possess the necessary
qualifications to appear at the trial such as when the
plaintiff is not in the full exercise of his civil rights like
when he is a minor, or insane; and
2.) when the plaintiff does not have the character or
representation which he claims like he claims to be a
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guardian when in reality he is not. (Lunsod vs. Ortega, 46
Phil. 664)
EXAMPLE: I will sue you as the guardian of a minor – guardian ad
litem. But actually, you will challenge my being a guardian. There is
no court order according to you. So, I might be of age but I have no
legal capacity to sue because I do not have the representation
which I claim I have.
Q: (Bar question) Distinguish lack of legal capacity to sue from lack
of legal personality to sue.
A: The former refers to disability of the plaintiff while the latter to
the fact that the plaintiff is not a real party in interest, in which
case, the ground for dismissal would be that the complaint states
no cause of action (Gonzales vs. Alegarbes, 99 Phil 213; Casimiro vs.
Roque, 98 Phil. 880)
ILLUSTRATION:
In lack of legal capacity to sue, you are referring to a disability of
the plaintiff, like he is a minor; or he is insane or incapacitated.
In lack of legal personality to sue – going back to Rule 3, when you
are appointed as agent or attorney-in-fact of somebody to manage
his property and to file suit in his behalf – while you have the
authority to file cases, it does not mean to say that you should sue
in your own name because the real party in interest is the principal,
not the agent.
So if the agent files an action in his own name, rather than that of
the principal, what you are going to say is, you are not the real
party in interest. You are not challenging his age or disability but
you are challenging his being placed as plaintiff when actually he is
only the attorney-in-fact or agent. In effect, when you raise this
ground, actually that would fall more under paragraph [g] – that
the pleading asserting the claim states no cause of action because
there is no cause of action in favor of the agent. The cause of action
is in the principal.
Fifth Ground: [e] THAT THERE IS ANOTHER ACTION PENDING
BETWEEN THE SAME PARTIES FOR THE SAME CAUSE;
Now, this is one of the most important grounds for a motion to
dismiss. This is popularly known as the ground of lis pendens. Now,
do not confuse this with the notice of lis pendens that we discussed
in Rule 13. That is the notice that you annotate on the title of the
property when you are filing a case for its recovery although the
meaning is the same because lis pendens is Latin for pending
litigation.
So the essence is that there is a case filed against you and then
while it is pending, another case is filed against you by the same
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party based on the same cause of action. So what will you do? I
have to move to dismiss one case. I will allege that there is already
another action pending between the same parties for the same
cause. So in effect, what you are saying is the plaintiff is guilty of
splitting his cause of action and this ground has also been
mentioned in Rule 2, Section 4:
Rule 2, Sec. 4. Splitting a single cause of action; effect of. - If two or
more suits are instituted on the basis of the same cause of action,
the filing of one or a judgment upon the merits in any one is
available as a ground for the dismissal of the others. (4a)
So the filing of one case is available as a ground for the dismissal of
the other. Now, such ground is stated under Rule 16 – that there is
another action pending between the same parties for the same
cause. The other legal term for it aside from the ground of lis
pendens is the ground of litis pendentia. It means the same thing.
That’s why when you read some SC cases, the SC cites either one of
the two terms. There is another foreign term although it is less
used, the ground of action pendant.
LITIS PENDENTIA viz a viz FORUM-SHOPPING
Now, you come analyze that when the other party files two cases
against you, at the same time – what is the correct ground for
dismissal? Litis pendentia or forum-shopping? Is there a
relationship between forum- shopping and litis pendentia? When I
file two identical cases in two courts, am I not also forum-
shopping?
One of the most intelligent discussion on this topic was the case of
FIRST PHILIPPINE INTERNATIONAL BANK vs. CA (252 SCRA 259),
January 24, 1996, penned for the Third Division by Justice Artemio
Panganiban.
FIRST PHILIPPINE INTERNATIONAL BANK vs. COURT OF APPEALS
252 SCRA 259, January 24, 1996
Third Division, J. Artemio Panganiban.
HELD: “Forum-shopping originated as a concept in private
international law, where non-resident litigants are given the option
to choose the forum or place wherein to bring their suit for various
reasons or excuses, including to secure procedural advantages, to
annoy and harass the defendant, to avoid overcrowded dockets, or
to select a more friendly venue. To combat these less than
honorable excuses, the principle of forum non conveniens was
developed whereby a court, in conflicts of law cases, may refuse
impositions on its jurisdiction where it is not the most ‘convenient’
or available forum and the parties are not precluded from seeking
remedies elsewhere.”
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“In the Philippines, forum shopping has acquired a connotation
encompassing not only a choice of venues, as it was originally
understood in conflicts of laws, but also to a choice of remedies.”
“As to the first (CHOICE OF VENUES), the Rules of Court, for
example, allow a plaintiff to commence personal actions "where
the defendant or any of the defendants resides or may be found, or
where the plaintiff or any of the plaintiffs resides, at the election of
the plaintiff" (Rule 4, Sec. 2 *b+).”
That is forum- shopping.
Where will you file personal action? – where the plaintiff or any of
the principal plaintiff resides, or, where the defendant or any of the
defendants resides. So, mamili ka! If I am the lawyer kung saan
pabor, doon ako mag-file, and that is forum- shopping.
But that is legitimate forum- shopping because that is allowed by
law.
“As to remedies, aggrieved parties, for example, are given a choice
of pursuing civil liabilities independently of the criminal, arising
from the same set of facts. A passenger of a public utility vehicle
involved in a vehicular accident may sue on culpa contractual, culpa
aquiliana or culpa criminal — each remedy being available
independently of the others — although he cannot recover more
than once.” (First Philippine International Bank vs. CA, supra.)
That is in effect forum- shopping. If I am the offended party, shall I
prosecute the civil aspect in the criminal action or shall I file an
independent civil action or reserve the right? Nasa iyo man iyan
ba! In effect, you shop for a forum.
That is also forum- shopping. But that is legitimate forum-
shopping.
“In either of these situations (choice of venue or choice of remedy),
the litigant actually shops for a forum of his action. This was the
original concept of the term forum shopping” which is perfectly a
valid act.
Prohibited form of forum shopping
“Eventually, however, instead of actually making a choice of the
forum of their actions, litigants, through the encouragement of
their lawyers, file their actions in all available courts, or invoke all
relevant remedies simultaneously. This practice had not only
resulted in conflicting, adjudications among different courts and
consequent confusion inimical to an orderly administration of
justice. It had created extreme inconvenience to some of the
parties to the action.”
“Thus, ‘forum shopping’ had acquired a different concept – which is
unethical professional legal practice. And this necessitated or had
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given rise to the formulation of rules and canons discouraging or
altogether prohibiting the practice.”
“What therefore originally started both in conflicts of laws and in
our domestic law as a legitimate device for solving problems has
been abused and misused to assure scheming litigants of dubious
reliefs.”
“Consequently, where a litigant or one representing the same
interest or person sues the same party against whom another
action or actions for the alleged violation of the same right and the
enforcement of the same relief is/are still pending, the defense of
litis pendentia in one case is a bar to the others; and, a final
judgment in one would constitute res judicata and thus would
cause the dismissal of the rest. In either case, forum shopping
could be cited by the other party as a ground to ask for summary
dismissal of the two or more complaints or petitions, and for the
imposition of the other sanctions, which are direct contempt of
court, criminal prosecution, and disciplinary action against the
erring lawyer.” (First Philippine International Bank vs. CA, supra.)
So, what is the difference between forum shopping and litis
pendentia? Actually, there is no difference. Mas maganda pa nga
i-dalawa mo – litis pendentia and forum shopping. Ano ang effect?
Sabihin mo, litis pendentia – one will be dismissed, the other will
remain alive. In forum shopping naman, parehong patay iyan. The
court will dismiss both. I-disciplinary action pa ang abogado. There
is no contempt of court in litis pendentia.
Another case, also penned by Justice Panganiban in the same year,
1996, where he also made a statement that forum shopping and
litis pendentia are almost identical is the case of
EMPLOYEES COMPENSATION COMMISSION vs. COURT OF
APPEALS
257 SCRA 717, June 28, 1996.
HELD: Forum-shopping exists where the elements of litis pendencia
are present. The test therefore in determining the presence of
forum-shopping is whether in the two (or more case) pending,
there is identity of (a) parties, (b) rights or causes of action and (c)
reliefs sought. Forum-shopping does not require a literal identity of
parties. It is sufficient that there is identity of interests
represented.
When there is already adjudication on the merits in one case to be
more accurate, RES ADJUDICATA should be alleged, and not forum
shopping as a defense because the decision in the previous case
had already become final and executory. So, when there is already
a judgment in the previous case to be exact that should be res
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judicata. But when there is no decision yet, that is litis pendentia
and forum shopping.
ELEMENTS OF LITIS PENDENTIA
Q: What are the requisites of litis pendentia as a ground for a
motion to dismiss?
A: There are four (4) requisites:
1.) Identity of parties between the two actions, or at least
such as represent the same interest in both actions;
In the 2 actions, the parties are the same – the same plaintiff, same
defendant. Literally, they may not be the same but the persons
who are filing the second case are persons who are actually doing it
on your behalf. So they also represent the same interest.
2.) Substantial Identity of rights asserted or cause of action
and relief prayed for;
The rights asserted are the same. The relief prayed for in both
actions are the same.
3.) The relief must be founded on the same facts;
So same basis; same evidence.
4.) The identity in these particulars should be such that any
judgment which may be rendered on the other action
will, regardless of which party is successful, amount to
res adjudicata in the action under consideration.
(Olayvar vs. Olayvar, 98 Phil. 52; Sapul vs. Siva, 57 O.G.
1040, Feb. 6, 1961; Pampanga Bus Co. vs. Ocefemia, L-
21793, Oct. 20, 1966) In other words, the principle of res
adjudicata will apply.
It is applicable between the same parties only when the judgment
to be rendered in the action first instituted will be such that
regardless of which party is successful, it will amount to res judicata
against the second action. (HSBC vs. Aldecoa & Co., GR No. L 8437
March 23, 1915)
CASE: The husband filed an action for legal separation on the
ground of adultery of his wife. In the same action, the wife
demanded, in a counterclaim, maintenance and support for her
and her children. Subsequently, the wife filed an independent
action for support against her husband. Will the second action
prosper?
A: NO, the issue of support having been raised in the first action as
a counterclaim, it cannot be made an issue in a subsequent
independent action. Hence, the independent action for support
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should be dismissed on the ground of lis pendens, all the other
requisites being present. (Olayvar vs. Olayvar, supra)
Litis Pendentia; Fourth Element: THE IDENTITY IN THESE
PARTICULARS SHOULD BE SUCH THAT ANY JUDGMENT WHICH MAY
BE RENDERED ON THE OTHER ACTION WILL, REGARDLESS OF
WHICH PARITY IS SUCCESSFUL, AMOUNT TO RES ADJUDICATA IN
THE ACTION UNDER CONSIDERATION.
Now, out of these requisites the last one is the most important –
the identity of parties, rights, relief and facts should be such that
any judgment which the court will render in the other action will
automatically be res adjudicata in the present action.
TAMBUNTING vs. ONG
L-2284, August 11, 1950
FACTS: It involves a case between a mortgagor and a mortgagee.
Mortgagor filed a case against the mortgagee. The nature of the
action is annulment of mortgage contract – annulment of real
estate mortgage. While their action was pending, the mortgagee
filed another action against the mortgagor and the action is
foreclosure of the same mortgage.
Now, the mortgagor, the plaintiff in the first case, filed a motion to
dismiss the second case on the ground of litis pendentia on his
argument that suppose I win in this case of annulment of mortgage
and the mortgage contract is annulled, what are you foreclosing?
There is nothing to foreclose. So the second action for foreclosure
will have as basis if the mortgage contract is annulled in the first
case. So there being litis pendencia, the second case should be
dismissed.
HELD: It is true that the second case will have no more leg to stand
on if the mortgagor will win the first case, that is if you win. Eh
paano kung talo ka? Suppose the first case of annulment of
mortgage contract is dismissed? So the mortgage contract is valid,
with more reason the mortgagee has the right to foreclose.
Therefore, the fourth requisite is missing because the fourth
requisite is regardless of who wins in the first case, it will bar the
second case. But here, the second case would be barred if the
mortgagor wins but if the mortgagee wins, the second case will not
be barred. So the fourth element is not present. There is no litis
pendencia in this case.
FRANCISCO vs. VDA. DE BLAS
93 Phil. 1
FACTS: Jayhan filed a case against Jessa for recovery of a piece of
land – accion publiciana. According to Jayhan, she is the owner of
the land occupied by Jessa, so Jessa should surrender the land to
him. Of course, Jessa will deny that.
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While the action was pending, Jessa naman filed another case
against Jayhan for quieting of title (that your title be in effect
confirmed as valid so that you will not be molested anymore by the
plaintiff). So in effect, Jessa is asking the court to declare him as the
real owner and is therefore entitled to possess the property.
ISSUE: Is there litis pendencia? Can both cases prosper?
HELD: Alright, let’s analyze. Suppose Jayhan wins the case for
recovery, the court in effect is saying that Jayhan is the real owner,
that practically render moot and academic because practically if
Jayhan wins the first case, the action of Jessa for quieting of title
will fail because the owner pala is Jayhan. In other words, if Jayhan
wins the first case, it will bar the second.
Now, suppose Jessa will win in the first case, the court in effect is
saying that Jayhan is not entitled to possess, she is not the owner,
Jessa is the owner. In effect, the title of Jessa is automatically
granted, rendering unnecessary the second case. So, that is a
perfect example of litis pendentia – “whoever wins in the first case
will bar the second. This is an illustration of the fourth requisite.”
So in this case, there is litis pendentia.
Which case should be dismissed?
A motion to dismiss may be filed in either suit, not necessarily in
the one instituted first.
TEODORO vs. MIRASOL
99 Phil. 150
FACTS: There was a lease contract between the lessor and the
lessee and they were already quarreling. According to the lessor,
“Mr. Lessee, I would like to remind you that our contract is only
good up to April. So 3 months from now, expired na. you better
look for a place to transfer because I’m not going to renew the
lease contract.”
But the lessee insisted that contract will be valid until next year yet.
The lessor asserted that the contract is only good up to April. They
already have a quarrel as to whether that contract is only good up
to April or until next year.
Now, what happens, the lessor pre-empted the filing by the lessee
of an ejectment case by filing immediately an action for declaratory
relief under Rule 63 on the issue on whether the contract will
expire by April or next year pa. The case dragged on and April came
and of course the contention of the lessor is that the contract has
expired. So he filed an unlawful detainer on the ground that the
lease contract has expired.
Is there litis pendentia?
If there is, which case should be dismissed?
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HELD: The dismissal of the first action would be proper. Why? What
is the ground for dismissal? – that there is another action pending
between the same parties for the same cause. The law does not say
that there is another prior action pending. So, in litis pendentia,
either one can be dismissed. It does not necessarily follow that the
first one will be dismissed or the second one. Either one will be
dismissed.
Now, the most exhaustive discussion on this issue on which case
should be dismissed when there is litis pendentia was the 1993
case of:
VICTRONICS COMPUTERS INC. vs. RTC BRANCH 63 OF MAKATI
217 SCRA 517
HELD: As a general rule, it should be the second case that should be
dismissed by applying the principle of priority in time and the Latin
maxim of qui prior est tempore ochor estiore (he who is before in
time is the better law). Priority in time gives preference in law. And
that is common sense. Just like in Labor Law – last in, first out –
kung huli kang dumating, you are the last to be employed. Kung
termination, unahin ka rin, last ka eh. So that’s the general rule.
But the general rule is not true all the time just like what happened
in the case of TEODORO VS. MIRASOL where the first case was
ordered dismissed. Also in the case of RAMOS VS. PERALTA (98
Phil)
Q: What was the principle used in the case of TEODORO and
RAMOS in sustaining the dismissal of the first case instead of the
second?
A: The criterion which was applied by the SC was: What is the more
appropriate action to remain. In the case of TEODORO, since we
are talking about ejectment here, the unlawful detainer case is the
more appropriate action to remain rather than the first
(declaratory relief). It is not a question of which case was filed first
but which action should stay for the good of the parties. The same
thing happened in the case of
ROA MAGSAYSAY vs. MAGSAYSAY
98 SCRA 592
HELD: In this case there was also a conflict on which case should be
dismissed and which case should remain. The trial court ordered
the dismissal of the first case by applying another criterion – the
criterion of interest of justice. In applying this standard, the court
should ask which case is in a better position to serve the interest of
justice or which case should remain to serve the interest of justice
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taking into account the nature of the controversy, the comparative
accessibility of the court to the parties and other similar factors.
So, the general rule is: dismiss the second case, let the first case
remain based on the rule on priority in time. But sometimes, the SC
ruled that it is better that the first case is dismissed by using the
standard of (1) more appropriate action or (2) interest of justice.
And the SC said, it will boil down to this – was the first action filed
in good faith or bad faith? In the case of TEODORO, it was obvious
that the first action was filed by the lessee in bad faith because the
lessee knew that by April, the lessor will file the action to eject. Of
course, meron man siyang depensa. His defense will be the
contract will expire next year pa but siguro he believes in the
principle of priority in time, the best defense is an offense. So,
inunahan ko siya. So, may defense in the unlawful detainer case
was converted into a cause of action. Instead of using his argument
as a defense in his answer to the unlawful detainer, he converted it
into a cause of action. So, We will dismiss you. That was what
happened in TEODORO. So, more or less, that is the explanation
given by the SC in VICTRONICS case.
Now, in a case the SC again touched on this criteria about litis
pendentia. Practically, it is a reiteration of VICTRONICS COMPUTERS
case. I am referring to the case of
ALLIED BANKING CORP. vs. CA
259 SCRA 371, July 26, 1996
HELD: Justice Mendoza summarized the principle in this manner:
Given, therefore, the pendency of two actions, the following are
the relevant considerations in determining which action should be
dismissed:
(1) the date of filing, with preference generally given to the
first action filed to be retained – that is the priority in
time rule;
(2) whether the action sought to be dismissed was filed
merely to preempt the later action or to anticipate its
filing and lay the basis for its dismissal – that is the
TEODORO vs. MIRASOL case – the action is filed merely
as an anticipating action; and
(3) whether the action is the appropriate vehicle for
litigating the issues between the parties.
So that is practically again the summary of VICTRONICS
COMPUTERS case.
PAMPANGA BUS CO. (PAMBUSCO) vs. OCEFEMIA
18 SCRA 407
NOTE: This problem was already asked in the Bar.
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FACTS: Cholo is a resident of Manila; Lew is a resident of Davao.
There was contract between them. Cholo filed a case against Lew
on lets say, January 5 in Manila where he resides, based on that
contract. The venue is proper because the plaintiff is a resident of
Manila.
Now, let’s say on January 10, Lew not knowing about the Manila
case filed an identical action against Cholo in Davao City. So hindi
alam ni Lew na mayroon na palang kaso. So dalawa na. And then on
January 15, Lew received summons in Manila case. By January 20,
Cholo filed a motion to dismiss the Davao case on the ground of
litis pendentia.
According to Lew, there is no litis pendentia because when I filed
may case against Cholo, there is no pending action to talk about
because hindi ko alam. I received the summons very much later.
ISSUE: Was there litis pendentia? Is Lew correct?
HELD: There was litis pendentia. Lew is wrong. Why? When does an
action, become pending? An action becomes pending upon the
filing of a case in court and the payment of docket fee. The actions
does not become pending only from the time you receive the
summons. It is pending form the moment it was filed. Therefore
when it was filed on January 5, it is already pending although you
did not know about it. That is the reasoning in this case.
ANDERSONS GROUP vs. COURT OF APPEALS
G.R. No. 114928; January 21, 1997
FACTS: Willy Denate entered into an agency agreement with AG as
its commission agent for the sale of wines and liquors in Davao
City, Davao provinces and North Cotabato. On November 18, 1991,
Denate filed a civil action for collection of sum of money against AG
before the RTC Davao.
Denate alleged that he was entitled to the amount of P882,107.95,
representing commissions from AG but that AG had maliciously
failed and refused to pay the same. On December 19, 1991, AG
likewise filed a complaint for collection of sum of money with
damages against Denate with the RTC Kalookan City. AG alleged
that Denate still owed it the sum of P1,618,467.98 after deducting
commissions and remittances. Denate filed a Motion to dismiss the
case with the Kalookan RTC on the ground that there was another
action pending between the same parties for the same cause of
action, citing the case earlier filed with the RTC of Davao City.
AG filed its opposition to the Motion to Dismiss on the ground that
the RTC of Davao had not acquired jurisdiction over it.
RTC of Kalookan City ruled that: “the Davao case involves the same
parties, and involves substantial identity in the case of action and
reliefs sought, as in the instant case however, jurisdiction over the
parties has already been acquired by the RTC Kaloocan, as Denate
received the summons as early as Jan 8, 1992, and AG. On the
other hand, the summons in the Davao case has not yet been
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served as of Apr 21, 1992, the date of the hearing of the instant
motion, so much so that the said Davao Court has not yet acquired
jurisdiction over the parties.” The CA reversed.
ISSUE: Should the action in the Kalookan RTC be dismissed on the
ground of lis pendens?
HELD: YES. “Lis pendens as a ground for the dismissal of a civil
action refers to that situation wherein another action is pending
between the same parties for the same cause of action. To
constitute the defense of lis pendens, it must appear that not only
are the parties in the two actions the same but there is substantial
identity in the cause of action and relief sought.”
“Further, it is required that the identity be such that any judgment
which may be rendered in the other would, regardless of which
party is successful, amount to res judicata on the case on hand. All
these requisites are present in the instant case: 1.)The parties in
the Davao and Caloocan cases are the same; 2.) They are suing
each other for sums of money which arose from their contract of
agency; 3.) The relief prayed for is based on the same facts and
there is identity of rights asserted; 4.) Any judgment rendered in
one case would amount to res judicata in the other.”
“In conceptualizing lis pendens, we have said that like res judicata
as a doctrine, litis pendentia is a sanction of public policy against
multiplicity of suits. The principle upon which a plea of another
action pending is sustained is that the latter action is deemed
unnecessary and vexatious.”
“AG asserts that the Davao Court had not yet acquired jurisdiction
over the parties as the summons had not been served as of April
21, 1992 and it claims that pendency of a case, as contemplated by
the law on lis pendens, presupposes a valid service of summons.”
“This argument is untenable. A civil action is commenced by filing a
complaint with the court. The phraseology adopted in the Rules of
Court merely states that another action pending between the same
parties for the same cause is a ground for motion to dismiss. As
worded, the rule does not contemplate that there be a prior
pending action, since it is enough that there is a pending action.
Neither is it required that the party be served with summons
before lis pendens should apply. The rule of lis pendens refers to
another action. An action starts only upon the filing of a complaint
in court.”
“It must be emphasized that the rule on litis pendentia does not
require that the later case should yield to the earlier. The criterion
used in determining which case should be abated is which is the
more appropriate action or which court would be in a better
position to serve the interests of justice. Applying these criteria,
and considering that both cases involve a sum of money collected
in and around Davao, the Davao Court would be in a better position
to hear and try the case, as the witnesses and evidence would be
coming from said area.”
“WHEREFORE, the decision of the CA is hereby AFFIRMED.”
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Sixth Ground: [f] THAT THE CAUSE OF ACTION IS BARRED BY A
PRIOR JUDGMENT OR BY THE STATUTE OF LIMITATIONS;
Actually there are two grounds here:
1.) Barred by prior judgment (RES ADJUDICATA) and
2.) Barred by statute of limitations.
BARRED BY PRIOR JUDGMENT OR RES JUDICATA. This is also
related to splitting of a cause of action. The only difference is: there
is already a judgment in the first action which has become final and
executory. That is why, you have to go back to Rule 2, Section 4 –
what is the effect of splitting a cause of action? The pendency of
one case or judgment in one case is a ground f or the dismissal of
the other.
So, if there is a case on appeal, the proper ground for dismissal
would be litis pendentia rather than res adjudicata because the
case is still pending before the CA – the judgment is not yet final.
Res judicata as a ground for dismissal is based on two grounds,
namely:
(1) Public policy and necessity, which makes it to be the
interest of the State that there should be an end to
litigation – republicae ut sit litium; and
(2) The hardship on the individual of being vexed twice for
the same cause – nemo debet bis vexari et eadem causa.
A conflicting doctrine would subject the public peace and
quiet to the will and dereliction of individuals and prefer
the regalement of the litigious on the part of the suitors
to the preservation of the public tranquility and
happiness (Fels, Inc. vs. Province of Batangas GR No.
168557, February 19, 2007).
Accordingly, courts will simply refuse to reopen what has been
decided. They will not allow the same parties or their privies to
litigate anew a question once it has been considered and decided
with finality. Litigation must end and terminate sometime and
somewhere. The effective and efficient administration of justice
requires that once a judgment has become final, the prevailing
party should not be deprived of the fruits of the verdict by
subsequent suits on the same issues filed by the same parties
(ibid).
Concepts of res judicata
(1) Bar by prior judgment, and
(2) Conclusiveness of judgment (Heirs of Wenceslao
Tabia vs. CA GR Nos. 129377 & 129399 February 22,
2007).
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Bar by prior judgment- the prior judgment bars the prosecution of
a second action upon the same claim, demand or cause of action.
Conclusiveness of judgment states that a fact or question which
was in issue in a former suit and was there judicially passed upon
and determined by a court of competent jurisdiction, is conclusively
settled by the judgment therein as far as the parties to that action
and actions in privity with them are concerned and cannot be again
litigated in a any future action between such parties or their privies,
in the same court or any other court of concurrent jurisdiction on
either the same or different cause of action, while the judgment
remains unreversed by proper authority (Moraga vs. Spouses Somo
501 SCRA 118).
Elements of res judicata
(1) The former judgment must be final;
(2) The court which rendered it had jurisdiction over the
subject matter and the parties;
(3) The judgment must be on the merits; and
(4) There must be between the first and second actions,
identity of parties, subject matter and causes of
action.(PCI Leasing & Finance, Inc. Vs. Sps George M. Dai
and Divina Dai GR No. 148980, Sept. 21, 2007)
City of Cebu v. Apolonio M. Dedamo, Jr.; G.R. No. 172852. January
30, 2013
Res judicata; conclusiveness of judgment. A perusal of the
allegations in the present case evidently shows that the petitioner
broaches the issues similarly raised and already resolved in G.R. No.
172942.
Under the principle of conclusiveness of judgment, when a right or
fact has been judicially tried and determined by a court of
competent jurisdiction, or when an opportunity for such trial has
been given, the judgment of the court, as long as it remains
unreversed, should be conclusive upon the parties and those in
privity with them. Stated differently, conclusiveness of judgment
bars the re-litigation in a second case of a fact or question already
settled in a previous case.
The adjudication in G.R. No. 172942 has become binding and
conclusive on the petitioner who can no longer question the
respondent’s entitlement to the 12% legal interest awarded by the
CA. The Court’s determination in G.R. No. 172942 on the reckoning
point of the 12% legal interest is likewise binding on the petitioner
who cannot re-litigate the said matter anew through the present
recourse.
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Thus, the judgment in G.R. No. 172942 bars the present case as the
relief sought in the latter is inextricably related to the ruling in the
former.
Philippine National Bank, substituted by Tranche 1 (SPV-AMC),
Inc. v. Rina Parayno Lim and Puerto Azul Land, Inc., G.R. No.
171677. January 30, 2013
Res judicata; elements. In Heirs of Maximino Derla v. Heirs of
Catalina Derla Vda. de Hipolito, we enumerated the following as
the elements of res judicata:
a) The former judgment or order must be final;
b) It must be a judgment or order on the merits, that is, it was
rendered after a consideration of the evidence or stipulations
submitted by the parties at the trial of the case;
c) It must have been rendered by a court having jurisdiction over
the subject matter and the parties; and
i) There must be, between the first and second
actions, identity of parties, of subject matter and of cause of action.
This requisite is satisfied if the two (2) actions are substantially
between the same parties.
ii)
In the case at bar, the validity of the subject mortgage between
PALI and PNB was the primary issue raised by the parties and
resolved by the RTC after the conclusion of a full-blown trial. On
September 10, 2004, the issue was finally laid to rest.
A final and executory judgment, no matter how erroneous, cannot
be changed even by this Court. Inevitably, res judicata operates to
bar PALI and PNB from raising the same issue lest there will be no
end to litigation.
Winston F. Garcia, in his capacity as President and General
Manager of the GSIS v. Court of Appeals and Rudy C. Tesoro, G.R.
No. 169005. January 28, 2013
Res judicata; effect of minute resolutions. In Alonso, we declared
that a “minute resolution may amount to a final action on the case
but it is not a precedent.” However, we continued to state that “it
can not bind non-parties to the action.” Corollary thereto, we can
conclude that a minute resolution, while not a precedent relative
to strangers to an action, nonetheless binds the parties therein,
and calls for res judicata’s application.
Nationwide Security and Allied Services, Inc. v. Valderama is
instructive anent the effects of the issuance of a minute
resolution, viz:
It is true that, although contained in a minute resolution, our
dismissal of the petition was a disposition of the merits of the case.
When we dismissed the petition, we effectively affirmed the CA
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ruling being questioned. As a result, our ruling in that case has
already become final. x x x
With respect to the same subject matter and the same issues
concerning the same parties, it constitutes res judicata. However, if
other parties or another subject matter (even with the same
parties and issues) is involved, the minute resolution is not binding
precedent. x x x (Underlining ours)
It is therefore clear from the above that for purposes of the
application of res judicata, minute resolutions issued by this Court
are as much precedents as promulgated decisions, hence, binding
upon the parties to the action
The application of the doctrine of res judicata does not require
absolute identity of parties but merely substantial identity of
parties. There is substantial identity of parties when there is
community of interest or privity of interest between a party in the
first and a party in the second even if the first case did not implead
the latter (Fels, Inc. vs. Province of Batangas, supra).
The doctrine of res judicata applies to quasi-judicial proceedings
(Heirs of Wenceslao Tabia vs. CA, saupra), but there is no res
judicata in criminal proceedings.
Thus, the argument that the dismissal of a case during preliminary
investigation bars a further reinvestigation because of the doctrine
of res judicata, is untenable. Even if the argument were to be
expanded to contemplate “res judicata in prison grey” or the
criminal law concept of double jeopardy, the reinvestigation cannot
be barred by reason of double jeopardy. The dismissal of a case
during preliminary investigation does not constitute double
jeopardy, preliminary investigation not being part of the trial
(Trinidad vs. Office of the Ombudsman GR 166038 December 4,
2007).
Note: there can be res judicata without a trial, such as in a
judgment on the pleadings (Rule 34); a Summary Judgment (Rule
35); or an order of dismissal under Section 3 of Rule 17.
BARRED BY STATUE OF LIMITATIONS. Prescription. Filed out of
time.
A motion to dismiss on the ground of prescription will be given due
course only if the complaint shows on it's face that the action has
already prescribed.
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Prescription and laches
1. Prescription is concerned with the fact of delay while laches is
concerned with the effect of delay;
2. Prescription is a matter of time while laches is a matter of equity;
3. Prescription is statutory while laches is not;
4. Prescription applies at law, laches in equity;
5. Prescription is based on fixed time while laches is not.
If the person claiming to be the owner of the property is in actual
possession thereof, the right to seek reconveyance, which in effect
seeks to quiet title to the property, does not prescribe. One who is
in actual possession of a piece of land claiming to be the owner
thereof may wait until his possession is disturbed or his title is
attacked before taking steps to vindicate his right. (Heirs of Marcela
Salonga Bituin vs. teofilo Caoleng, Sr. GR No. 15756, Aug. 10, 2007)
The grounds on motion to dismiss are waivable based on Rule 9,
Section 1 – defenses and objections not pleaded whether in a
motion to dismiss or in the answer are deemed waived. HOWEVER
when it appears from the pleadings or the evidence on record:
1.) that the court has no jurisdiction over the subject matter
(Rule 16, Section 1 [b]);
2.) that there is another action pending between the same
parties for the same cause (Rule 16, Section 1 [e]); or
3.) that the action is barred by a prior judgment (Rule 16,
Section 1 [f]); or
4.) that the action is barred statute of limitations (Rule 16,
Section 1 [f]), the court shall dismiss the claim.
Seventh Ground: [g] THAT THE PLEADING ASSERTING THE CLAIM
STATES NO CAUSE OF ACTION;
That is also an important one – the pleading asserting the claim
does not state a cause of action. In most cases, it is the defendant
who files a motion to dismiss citing this ground.
When the ground for the dismissal is that the complaint states no
cause of action, such fact can be determined only from the facts
alleged in the complaint.
It is beside the point whether or not the allegations in the
complaint are true, for with a motion to dismiss a complaint based
on lack of cause of action, the movant only hypothetically admits
the truth of the facts alleged in the complaint; that is, assuming
arguendo that the facts alleged are true, those allegations are
insufficient for the court to render a valid judgment upon the same
in accordance with the prayer of the complaint. (Universal
Aquarius, Inc., et al., vs. Q.C. Human Resources Management
Corporation, GR No. 155990, Sept. 12, 2007)
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Remember that under Rule 2, Section 1, every civil action must be
based on a cause of action. Therefore, the four (4) elements of
cause of action must be alleged. If one element is missing, there is
no cause of action and it is now a ground for dismissal.
I think the language of the previous rule is: The complaint states no
cause of action. That is the ‘64 Rules. But 1997 Rules: The pleading
asserting the claim states no cause of action. This is broader
because the pleading which does not state a cause of action could
be a complaint, counter-claim, cross-clam or third-party complaint.
So, it is broader.
Q: How will you know that the pleading (e.g. complaint) states or
does not state a cause of action?
A: The principle to remember is: Whether the pleading states a
cause of action or not is determined only by allegations in the
pleading. The rule is similar to on the ground of lack of jurisdiction
under paragraph [b].
Failure to state a cause of action and not lack or absence of cause
of action is the ground for a motion to dismiss. The former means
there is insufficiency in the allegations in the pleading. The latter
means that there is insufficiency in the factual basis of the action.
Effect of action on motion to dismiss and corresponding remedy
1. Order granting a motion to dismiss is a final order (without
prejudice) -- remedy is to refile;
2. Order granting the motion with prejudice -- remedy is appeal;
3. Order denying the motion to dismiss is interlocutory - - file
answer and proceed with the trial. If the decision is adverse, appeal
therefrom and raise as error the denial of the motion to dismiss. If
there is grave abuse of discretion amounting to lack or excess of
jurisdiction, certiorari or prohibition may lie under Rule 65.
The defendant is not allowed to say that the plaintiff has no cause
of action because what he is saying in his complaint is not true and
this is what is true. No, that will not lie. You have to hypothetically
admit again.
What is the rule? When a defendant files a motion to dismiss under
this ground, he hypothetically admits the truth of all the allegation
raised in the complaint. And he is posing this question: “Assuming
for the sake of argument that everything contained in your
complaint or pleading is really correct, are you entitled to the relief
prayed for?”
If the answer is YES, then it states a cause of action. If the answer is
NO, even then there is something wrong in the complaint. It still
states no cause of action. Therefore, when the defendant disputes
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the truth of the allegations of the complaint, the correct move is to
file an answer and not a motion to dismiss. He cannot dispute the
allegation in the pleading thru a motion to dismiss because he
hypothetically admits them.
That is why the SC said in the case of
MUNICIPALITY OF BIÑAN vs. GARCIA
180 SCRA 576 [1989]
HELD: The lack of cause of action is not a ground for the dismissal
of an action under Rule 16. The ground is the failure of the
complaint to state a cause of action which is obviously not the
same as the plaintiff not having a cause of action. The lack of cause
of action becomes evident during the course of the trial but
whether the complaint states a cause of action is only limited to
what the complaint says.
So, my complaint may state a cause of action when in reality
it does not. At that moment, you cannot dismiss it.
Now, of course the rule that a defendant who files a motion to
dismiss hypothetically admits all the allegations in the complaint, as
explained by the SC, refer only to material allegations of ultimate
facts. If those are evidentiary facts or conclusions of fact or law,
they are not admitted, for in the first place, they have no place in
the pleading.
That is the ruling in the 1990 case of
RAVA DEV'T CORP. vs. COURT OF APPEALS
211 SCRA 144 [1992]
HELD: “The hypothetical admission is however limited to the
relevant and material facts well pleaded in the complaint and
inferences fairly deductible therefrom. The admission does not
extend to conclusions or interpretations of law; nor does it cover
allegations of fact the falsity of which is subject to judicial notice.”
Meaning, you allege there something which is 100% false and the
court knows it, but you filed a motion to dismiss, are you deemed
to hypothetically admit something which everybody knows is false?
NO. When you file a motion to dismiss, you are deemed to admit
everything there is true except matters which are 100% false and
which the court itself knows to be false, or the conclusions of the
pleader because in the first place, conclusions have no place in the
pleading.
ROSITA TAN vs. COURT OF APPEALS
295 SCRA 247 [Sept. 9, 1998]
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FACTS: The controversy centers on 2 parcels of land in Manila
previously owned by one Alejandro Tan Keh and which were then
covered by TCT 35656. Fernando Tan Kiat claimed that he bought
the land from Tan Keh in 1954, but was unable to effect immediate
transfer of title in his favor in view of his foreign nationality at the
time of the sale. Nonetheless, as an assurance in good faith of the
sales agreement, Tan Keh turned over to Kiat the owner's duplicate
copy of TCT 35656 and, in addition, executed a lease contract in
favor of Kiat for 40 years.
However, in 1958, Tan Keh sold the subject properties to Remigio
Tan, his brother and father of Rosita Tan, with the understanding
that the land are to be held in trust by Remigio for the benefit of
Kiat and that Remigio would execute the proper documents of
transfer in favor of Kiat should Kiat at anytime demand recovery of
land.
TCT 35656 was thus cancelled and in lieu thereof TCT 53284 was
issued in the name of Remigio. Another contract of lease was
executed by Tan Keh and Remigio in favor of Kiat to further
safeguard Kiat's interest on the land, but Kiat never paid any rental
and no demand whatsoever for the payment thereof had been
made on him.
Remigio was killed in 1968. At his wake, Rosita was reminded of
Kiat's ownership of the land and she promised to transfer the land
to Kiat who by then had already acquired Filipino citizenship by
naturalization.
Rosita, however, never made good their promise to convey the
land despite repeated demands by Kiat. In fact, Rosita had the land
fraudulently transferred to her name under TCT 117898. Thus, the
filing of the complaint for recovery of property.
On Nov 10, 1993, Rosita filed a Motion To Dismiss the complaint,
claiming that: the complaint stated no cause of action; the cause of
action has long prescribed; the cause of action has long been
barred by a prior judgment; and, the claim has been waived,
abandoned and/or extinguished by laches and estoppel.
The RTC issued an order dismissing Kiat's complaint, acceding to all
the grounds set forth by Rosita in her motion to dismiss. CA set
aside the dismissal and ordered the remand of the case for further
proceedings.
HELD: There is merit in the petition. “There being no trust, express
or implied, established in favor of Kiat, the only transaction that
can be gleaned from the allegations in the complaint is a double
sale, the controlling provision for which is Art. 1544 of the Civil
Code. Kiat alleged that he bought the subject properties from Tan
Keh in 1954 but nonetheless failed to present any document
evidencing the same, while Remigio, as the other buyer, had in his
name TCT 53284 duly registered on Oct 13, 1958.”
“Remigio, beyond doubt, was the buyer entitled to the subject
properties since the prevailing rule is that in the double sale of real
property, the buyer who is in possession of a Torrens title and had
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the deed of sale registered must prevail. Rosita is in possession of
TCT 117898 which evidences her ownership of land. Kiat relies
simply on the allegation that he is entitled to the properties by
virtue of a sale between him and Tan Keh who is now dead.
Obviously, Kiat will rely on parol evidence which, under the
circumstances obtaining, cannot be allowed without violating the
"Dead Man's Statute" found in Sec. 23, Rule 130. Clearly then, from
a reading of the complaint itself, the complaint indeed does not
spell out any cause of action.”
“We also agree with Rosita's submission that Kiat's cause of action
has prescribed. TCT 53284 in the name of Remigio was registered
on Oct 13, 1958, while TCT 117898 in the name of Rosita, was
issued on Apr 21, 1975. Kiat filed his complaint on Oct 18, 1993. CA
held that the 10-year prescriptive period for the reconveyance of
property based on an implied trust cannot apply in this case since
Kiat was in actual possession of the subject properties.”
“However, Kiat's occupation of the land was never in the concept
of an owner since he was a mere lessee who is estopped from
denying the title of Remigio as owner-lessor. It thus becomes
evident that the filing of Kiat's complaint in 1993 — 35 years after
TCT 53284 in the name of Remigio was registered and 18 years
after the issuance of TCT 117898 in the name of Rosita — was way
beyond the 10-year time limit within which reconveyance of
property based on an implied trust should be instituted. Kiat's
cause of action, assuming that it exists, has clearly prescribed.”
“Finally, Kiat is guilty of laches. Kiat's possession of the land cannot
be made the basis to deflect the effects of laches because he is a
mere lessee who, to repeat, cannot assert any adverse claim of
ownership over the subject properties against the lessor-owner.
What ought to be in focus is that, Kiat was not able to effect the
transfer of title over the subject properties in his favor upon his
purchase thereof from Tan Keh in 1954 because he was still a
foreigner at that time. But Kiat later on claimed that he was already
a Filipino national when he reminded Rosita of his ownership of the
subject properties during Remigio s wake sometime in 1968.”
“It may be reasonably deduced from these allegations that Kiat
acquired Filipino citizenship by naturalization, thus entitling him to
own properties in the 1960's, more or less. His mistake, if it is one,
is that he tarried for 30 years before formally laying claim to the
subject properties before the court. Considerable delay in asserting
one's right before a court of justice is strongly persuasive of the
lack of merit of his claim, since it is human nature for a person to
enforce his right when the same is threatened or invaded. Thus,
Kiat is estopped by laches from questioning the ownership of the
land.”
“WHEREFORE, the assailed decision of CA is SET ASIDE, and a new
one is rendered DISMISSING Fernando Tan Kiat's complaint.”
Q: Now, is there an exception to the rule that when the court
determines whether there is a cause of action or not, the court
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cannot look at the evidence – all must be based on the complaint
and there should be no appreciation of any evidence?
A: Based on the EXCEPTION in the case of
SANTIAGO vs. PIONEER SAVINGS & LOAN BANK
157 SCRA 100 [1987]
FACTS: The plaintiff filed a complaint against defendant with a
prayer for a preliminary injunction. So, it is not only a complaint but
plaintiff applied for a provisional remedy. And under the law in
provisional remedy, that must be heard immediately because that
is urgent, eh! And in a preliminary injunction, there must be a
hearing because preliminary injunction cannot be granted ex parte.
So even before the answer could be filed, there was a hearing on
the application for preliminary injunction and the plaintiff already
presented evidence on his cause of action. After the hearing, now
comes the defendant moving to dismiss the entire case because
there is no cause of action based on the evidence you presented.
Plaintiff: No, the cause of action is determined only based on the
allegations in the complaint and you do not look at the evidence.
HELD: That is the general rule. If nag-present ka na ng ebidensiya in
the preliminary injunction, the court can now determine whether
there is a cause of action also based on the evidence. So that is the
exception because there has been a reception of evidence ahead of
a motion to dismiss.
“It is true that the determination of the sufficiency of a cause of
action must be limited to the facts alleged in the Complaint and no
other should be considered. However, where a hearing was held
and documentary evidence was presented, not on the Motion to
Dismiss but on the question of granting or denying an application
for a Writ of Preliminary Injunction, a motion to dismiss for
insufficiency of cause of action will be granted if documentary
evidence admitted by stipulation disclosing facts sufficient to
defeat the claim which authorizes the court to go beyond
disclosure in the complaint.”
So that would be the exception: where evidence has already been
presented in the main cause of action because of the application
for preliminary injunction.
Eight Ground: [h]THAT THE CLAIM OR DEMAND SET FORTH IN THE
PLAINTIFF'S PLEADING HAS BEEN PAID, WAIVED, ABANDONED, OR
OTHERWISE EXTINGUISHED;
Under Obligations and Contracts, the modes of extinguishing
obligation are Payment, Performance, Condonation,
Compensation, Remission, etc. So if I have already paid a sum of
money and you are filing a case to collect such amount, I can file a
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motion to dismiss on the ground that the claim or demand set forth
in the complaint has already been paid or otherwise extinguished.
Laches as a ground for a motion to dismiss
In one case, in reversing the RTC’s order of dismissal, the CA held
that laches could not be a ground to dismiss a complaint since it is
not one of the grounds for the dismissal of a civil action under
Section 1 of Rule 16 of the Rules of Court. The SC categorically held
that the CA “is not entirely correct.” Under paragraph (h) of Sec. 1
of Rule 16, one of the grounds for the dismissal is where a claim or
demand set forth in the plaintiff’s pleading has been paid, waived,
abandoned, or otherwise extinguished. The Court declared:
“The language of the rule, particularly on the relation of the words
“abandoned” and “otherwise extinguished” to the phrase “claim or
demand deemed set forth in the plaintiff’s pleading” is broad
enough to include within its ambit the defense of bar by laches.
However, when a party moves for the dismissal of the complaint
based on laches, the trial court must set a hearing on the motion
where the parties shall submit not only their arguments on the
questions of law but also their evidence on the questions of fact
involved. Thus, being factual in nature, the elements of laches must
be proved or disproved through the presentation of evidence by
the parties (Pineda vs. Heirs of Eliseo Guevara, GR 143188 February
14, 2007).
Ninth Ground: [i] THAT THE CLAIM ON WHICH THE ACTION IS
FOUNDED IS
UNENFORCEABLE UNDER THE PROVISIONS OF THE STATUTE OF
FRAUDS
Under the Statute of Frauds or Article 1403 of the Civil Code certain
contracts are unenforceable if not made in writing. They are valid
contracts, only that they are unenforceable because they were not
reduced into writing.
EXAMPLES of Statute of Frauds under Article 1403:
1.) a contract that by its terms is not to be performed within
one year from the making of such contract;
2.) a special promise to answer for the debt, default, or
miscarriage of another;
3.) an agreement made in consideration of marriage, other
than a mutual promise to marry;
4.) an agreement for the sale of goods, chattels or things in
action, at a price not less than five hundred pesos…;
5.) an agreement for the leasing for a longer period than
one year, or for the sale of real property or an interest
therein;
6.) a representation as to the credit of a third person.
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Tenth Ground: [j] THAT A CONDITION PRECEDENT FOR FILING THE
CLAIM
HAS NOT BEEN COMPLIED WITH.
Meaning, the law requires something to be done before going to
court and if you file the case in court immediately without
complying with that condition precedent, then the defendant can
move for dismissal of the complaint.
EXAMPLES:
1.) Failure to exhaust administrative remedies;
2.) Failure to undergo Barangay Conciliation;
For parties residing in the same city, one must first settle or
compromise the suit at the barangay level before raising the action
3.) Article 151 of the Family Code contemplates suit
between family members.
It must be alleged in the complaint that earnest efforts towards a
compromise is made between: husband and wife, parents and
children, ascendants and descendants, brothers and sisters,
whether full or half blood. So you are not allowed to file a case
directly between family members in order to preserve the family as
a basic social institution being the foundation of the nation.
So it should appear form a verified complaint or petition that
earnest efforts toward a compromise have been made, but the
same have failed. If it is shown that no such efforts were in fact
made, the case must be dismissed.
Q: What about a suit against a nephew?
A: Article 151 will not apply. One can file directly to the court
because even though he is your relative he is not a member of your
family.
Q: How about a suit against a brother and a stranger?
A: There is no need for the requirement of earnest efforts. It is a
mixed case, there is already a stranger included.
Now, under the last sentence of Article 151, “This rule shall not
apply to cases which may not be the subject of compromise under
the Civil Code.” This refers to Article 2035 of the New Civil Code:
Art. 2035. No compromise upon the following questions shall be
valid:
1. The civil status of persons;
2. The validity of a marriage or a legal separation;
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3. Any ground for legal separation;
4. Future support;
5. The jurisdiction of courts;
6. Future legitime.
Under the 1964 Rules, this last ground (non-compliance with a
condition precedent requirement) is not found therein. However,
there is a ground that is no longer found in the present Rules of
Court, that the suit between members of the family and that no
earnest efforts towards a compromise has been made, this was
stated as the last ground. It does not mean, however, that it can
no longer be applied. This has been incorporated under paragraph
[j] of the new rules. It is already a broader ground.
Sec. 2. Hearing of motion. At the hearing of the motion, the
parties shall submit their arguments on the questions of law and
their evidence on the questions of fact involved except those not
available at that time. Should the case go to trial, the evidence
presented during the hearing shall automatically be part of the
evidence of the party presenting the same. (n)
During the hearing of a motion to dismiss, the movant is allowed to
present evidence to prove his claim. Like for example: the venue is
not properly laid or the action is already extinguished by payment
or the action is already barred by a prior judgment.
GENERAL RULE: On hearing on a motion to dismiss, the defendant
is allowed to present evidence to prove the ground for his
dismissal.
EXCEPTION: He is not allowed when the grounds are:
1.) Lack of jurisdiction over the subject matter (paragraph
[b]); or
2.) The pleading asserting the claim states no cause of
action (paragraph [g])
When these are the grounds invoked, the defendant is not allowed
to present evidence because you are hypothetically admitting all
the allegations in the complaint as true and correct. You are not
allowed to dispute or deny those allegations. It shall be based
purely on the allegations of the complaint so you are not allowed
to prove that those allegations are not true.
And should the case go to trial, the evidence presented shall
automatically form part of the evidence of the party presenting the
same. There is no need to present those evidence again during the
trial because the evidence during the hearing is automatically part
of the evidence during the trial. This is similar to the rule on Bail in
Criminal Procedure.
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Sec. 3. Resolution of motion. After the hearing, the court may
dismiss the action or claim, deny the motion, or order the
amendment of the pleading.
The court shall not defer the resolution of the motion for the
reason that the ground relied upon is not indubitable.
In every case, the resolution shall state clearly and distinctly the
reasons therefor. (3a)
Q: How will the court rule on the motion to dismiss?
A: The following:
1.) The court will dismiss the action. (motion is granted);
2.) The court will deny the motion (proceed to trial); or
3.) The court will order the amendment of the pleading
In resolving a motion to dismiss, the court is required to give
reasons for its resolution.
Sps. Eugene L. Lim and Constancia Lim v. The Court of Appeals-
Mindanao Station, et al.; G.R. No. 192615. January 30, 2013
Motion to dismiss; remedy against denial is not appeal; denial may
be assailed through a petition for certiorari. The denial of a motion
to dismiss, as an interlocutory order, cannot be the subject of an
appeal until a final judgment or order is rendered in the main case.
An aggrieved party, however, may assail an interlocutory order
through a petition for certiorari but only when it is shown that the
court acted without or in excess of jurisdiction or with grave abuse
of discretion.
When the court orders the amendment of the pleading, in effect
the motion to dismiss is also denied. So, the rule is when the
ground for the dismissal can be cured by amending the complaint,
do not dismiss but require the party to amend the complaint. That
is a polite way of denying your motion to dismiss.
Like for example, the cause of action is imperfectly stated, kulang
ng allegation ba. So the plaintiff would say: “Your Honor, we will
add one sentence para makumpleto.” Sabi ng judge: “No! no! no!
We will dismiss.” No, the judge cannot do that. Curable yon eh!
And amendment of the pleading is favored.
Q: Suppose the plaintiff filed a complaint and the defendant files a
motion to dismiss, can the plaintiff still amend his complaint?
Otherwise stated, can the plaintiff still amend his complaint when
there is already a motion to dismiss?
A: Ah YES! Because it is the right of the plaintiff to amend his
complaint before a responsive pleading is served upon him. And a
motion to dismiss is not a responsive pleading. It is not even a
pleading (Guirao vs. Ver, April 29, 1966) The responsive pleading to
the complaint is the Answer.
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Q: Now, suppose there is already an order of dismissal in which the
court has already ordered the dismissal of the case, because it does
not state the cause of action of the complaint. Plaintiff: “Alright!
Motion to amend the complaint to state the cause of action and set
aside the order of dismissal.” Can that still be done at that stage
where there is already an order of dismissal?
A: YES! Provided the order of dismissal has not yet become final
and executory because the rule is absolute: for as long as there is
still no responsive pleading, the right of the plaintiff to amend his
complaint is a matter of right.
The second paragraph of the section “The court shall not defer the
resolution…” is an amendment of the previous rule. Under the
previous rule, the court had four options: 1) grant the motion; 2)
deny; 3)order amendment; and 4) defer the resolution for the
reason that the ground relied upon is not indubitable. What does it
mean?
‘Indubitable’ means without a doubt, thus the ground was not
without a doubt, it is doubtful, it is not indubitable. EXAMPLE:
Defendant filed a motion to dismiss the case and the court
analyzed the ground. After analyzing, the court is not sure. The
ground seems to be valid but the court also doubts. Parang 50-50
ba.
Now the previous rule allows the court not to act—it will not act, it
will not deny. The court will just postpone the resolution of the
motion to dismiss, until the trial, because the ground is doubtful.
In the course of the trial, the court may realize whether the ground
is correct or not. When the ground becomes clearer, the court may
say, “All right, I will grant the motion”. That was allowed under the
previous rule.
NOW, that is not allowed anymore. The court really has to act on
the motion: either grant it, deny it, or order the amendment.
Even under the previous rule, there were already instances where
the SC said that the courts should not postpone the resolution,
especially when the ground of dismissal is lack of jurisdiction over
the subject matter, or that the complaint states no cause of action.
Why? The court only has to read the complaint and there is no
need of presentation of evidence to rule on the motion. There
were decided cases along that line, and obviously that reasoning
predominated the committee.
The last paragraph is self-explanatory, whether the Court denies or
grants the Motion, it must support its Order.
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Sec. 4. Time to plead. If the motion is denied, the movant shall file
his answer within the balance of the period prescribed by Rule 11
to which he was entitled at the time of serving his motion, but not
less than five (5) days in any event, computed from his receipt of
the notice of the denial. If the pleading is ordered to be amended,
he shall file his answer within the period prescribed by Rule 11
counted from service of the amended pleading, unless the court
provides a longer period. (4a)
Q: Suppose defendant files a motion to dismiss and the court
granted the motion. The case is dismissed. What happens to the
case?
A: It’s the end of the case. The defendant has no more problem
because the case has been ordered dismissed.
Q: Suppose the court denies the motion to dismiss?
A: Defendant is now obliged to file his answer. Under Rule 11, he
has within the balance of the 15 days but not less than 5 days to
file his answer.
Q: But instead of filing his answer, he files a motion to dismiss. Like
for example, after consuming 8 days, he files a motion to dismiss,
the running of the period stops. After a while, he receives an order
denying his motion. How many more days does he have?
A: Seven (7) days only. He must file his answer within the
remaining balance of the period.
This is a radical departure from the previous Rule. Under the 1964
Rules, when you file a motion to dismiss on the eight day, and the
motion is denied, you have 15 days all over again to file an answer.
NOW, no more – you only have the remaining balance of the 15-
day period.
Q: Now, suppose you file your motion to dismiss on the 13th day,
so, two days to go. If your motion is denied, do you only have two
days to file your Answer?
A: NO. You are entitled to not less than five (5) days. This is
identical with Rule 12, Section 5 on Bills of Particular:
Rule 12, Sec. 5. Stay of period to file responsive pleading. - After
service of the bill of particulars or of a more definite pleading, or
after notice of denial of his motion, the moving party may file his
responsive pleading with the period to which he was entitled at
the time of filing his motion, which shall not be less than five (5)
days in any event. (1[b]a)
As a rule, the filing of an answer, going through the usual trial
process, and the filing of a timely appeal from an adverse judgment
are the proper remedies against a denial of a motion to dismiss.
The filing of an appeal from an order denying a motion to dismiss is
not the remedy prescribed by existing rules. The order of denial,
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being interlocutory, is not appealable by express provision of
Section 1(b), Rule 41.
Where the judgment or final order is not appealable, like an
interlocutory order, Rule 41 declares that the “aggrieved party may
file an appropriate civil action under Rule 65.” The remedy
therefore, would be certiorari, prohibition or mandamus. This
remedy however, is predicated upon an allegation and a showing
that the denial of the motion was tainted with grave abuse of
discretion amounting to lack of jurisdiction where the remedy
chosen is either certiorari or prohibition or both. In case the
remedy chosen is mandamus, there must be a showing that the
respondent court unlawfully neglected the performance of an act
which the law specifically enjoins. Without such showing, Rule 65
cannot be availed of as a remedy.
Jurisprudence declares:
“An order denying a motion to dismiss is an interlocutory order
which neither terminates nor finally disposes of a case, as it leaves
something to be done by the court before the case is finally
decided on the merits. As such, the general rule is that the denial of
a motion to dismiss cannot be questioned in a special civil action
for certiorari which is a remedy designed to correct errors of
jurisdiction and not errors of judgment. Neither can a denial of a
motion to dismiss be the subject of an appeal unless and until a
final judgment or order is rendered. In order to justify the grant of
the extraordinary remedy of certiorari, the denial of the motion to
dismiss must have been tainted with grave abuse of discretion
amounting to lack or excess of jurisdiction (Douglas Lu Ym vs.
Gertrudes Nabua 451 SCRA 298).
Sec. 5. Effect of dismissal. Subject to the right of appeal, an order
granting a motion to dismiss based on paragraphs (f), (h) and (i) of
section 1 hereof shall bar the refiling of the same action or claim.
(n)
Remedies of the plaintiff if the motion to dismiss is granted
If the motion to dismiss is granted, the complaint is dismissed.
Since the dismissal is final and not interlocutory in character, the
plaintiff has several options.
Depending upon the ground for the dismissal of the action, the
plaintiff may simply refile the complaint. For instance, if the ground
was anchored on improper venue, the plaintiff may file the action
in the proper venue.
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He may appeal from the order of dismissal where the ground relied
upon is one which bars the refiling of the complaint like res
judicata, prescription, extinguishment of the obligation or violation
of the statute of frauds (Sec. 5). Since the complaint cannot be
refiled, the dismissal is with prejudice. Under Section 1(g) of Rule
41, it is an order dismissing an action without prejudice which
cannot be appealed from. Conversely, where the dismissal is with
prejudice, an appeal from the order of dismissal is not precluded.
However, where the ground for dismissal for instance, is the failure
of the complaint to state a cause of action, the plaintiff may simply
file the complaint anew but since the dismissal is without prejudice
to its refiling, the order of dismissal cannot be appealed from under
the terms of Section 1(h) of Rule 41 of the Rules of Court.
Where the ground for dismissal is lack of jurisdiction over the
subject matter, the dismissal is without prejudice to the refiling of
the complaint. Following the tenor of Sec. 1(g) of Rule 41, an order
dismissing a complaint for lack of jurisdiction over the subject
matter is a dismissal without prejudice and hence, no appeal may
be had from that order. Despite Section 1 of Rule 41, appeal may
nevertheless be taken from the order dismissing an action for lack
of jurisdiction over the subject matter in a situation contemplated
under Section 8 of Rule 40. This provision specifically allows, by
necessary implication, an appeal from orders dismissing cases on
the ground of lack of jurisdiction over the subject matter. The tenor
of Section 8 of Rule 40 therefore, operates to furnish an exception
to the general rule enunciated in Section 1 of Rule 41. This situation
applies in dismissal made in the MTC and not to a dismissal in the
RTC.
The plaintiff may also avail of a petition for certiorari. This remedy
is available if the court gravely abuses its discretion in a manner
amounting to lack of jurisdiction and is the appropriate remedy in
those instances when the dismissal is without prejudice (Sec. 1,
Rule 41).
Normally, when the motion to dismiss is granted, it does not
prevent the plaintiff from re-filing the case. Like for example, the
case is dismissed for lack of jurisdiction over the subject matter. I
can re-file that in the proper court. Or, suppose the case is
dismissed for improper venue, so I will file it in the proper venue.
But there is a new provision, that is, if the ground for a motion to
dismiss are the following you cannot re-file it anymore. That is:
paragraphs [f], [h] and [i]. Ano iyon? Prior judgment, res judicata,
statute of limitations, prescription of the claim or statute of frauds.
Tama man ba! common sense lang yan eh! Kaya nga na-dismiss eh
kasi res judicata na, tapos magpa-file ka na naman ng panibago?
Hindi na puwede yan. Or, it is already dismissed because the
obligation has already been paid, then you will file? That cannot be
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done anymore. So, in other words, it is res judicata already. So to
summarize:
GENERAL RULE: A case that has been dismissed can be re-filed.
EXCEPTIONS: When the case was dismissed on the following
grounds:
1.) That the cause of action is barred by a prior judgment or
by the statute of limitations;
2.) That the claim or demand set forth in the plaintiff’s
pleading has been paid, waived, abandoned or otherwise
extinguished; or
3.) That the claim on which the action is founded is
unenforceable under the provisions of the Statute of
Frauds.
Q: For example, the court says: “Your action is barred by res
judicata.” But actually, the court is wrong, what is your REMEDY?
A: Your remedy is to appeal from the order of dismissal, but not to
re-file the case because that would already be res adjudicata. That
is common sense.
Sec. 6. Pleading grounds as affirmative defenses. If no motion to
dismiss has been filed, any of the grounds for dismissal provided
for in this Rule may be pleaded as an affirmative defense in the
answer and, in the discretion of the court, a preliminary hearing
may be had thereon as if a motion to dismiss had been filed. (5a)
The dismissal of the complaint under this section shall be without
prejudice to the prosecution in the same or separate action of a
counterclaim pleaded in the answer. (n)
Q: For example, I’m a defendant, I receive a complaint and I believe
I have a ground for a Motion to Dismiss under Section 1 from [a] to
[j]. I will not file a motion to dismiss, instead, I will file an answer, is
that allowed?
A: Yes, because it is OPTIONAL for a defendant to file a motion to
dismiss. And I can file my answer and a ground for dismissal can be
raised as an affirmative defense.
So the grounds for a motion to dismiss are convertible. Instead of
filing a motion to dismiss, I will allege the grounds as affirmative
defenses, like—no cause of action, litis pendentia, res adjudicata,
payment, statute of frauds, prescription…
Now, if you will file an answer raising the ground for a motion to
dismiss as an affirmative defense, then you are prolonging the
agony because if the court has no jurisdiction, or there is improper
venue or whatever it is, if you file a motion to dismiss in the first
place and you are sustained, then tapos na sana!
Under Section 6, after filing of such answer, the defendant can ask
for a preliminary hearing on his affirmative defenses as if a motion
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to dismiss has been filed. Meaning, this should be heard ahead.
And if the court grants the preliminary hearing, you can move your
affirmative defenses ahead and if you correct, the court will dismiss
the case. So, it has the same effect as if you file a motion to
dismiss. That is why a preliminary hearing may be had as a motion
to dismiss.
Now, you ask me why should the defendant do this? Why file an
answer and then preliminary hearing?
Because this is a matter of strategy on trial technique. If I will file a
motion to dismiss which is not a responsive pleading, the plaintiff
may amend the complaint, and I cannot prevent him from
amending because the amendment is still a matter of right at that
moment.
That follows the general principle in trial technique. Do not expose
your adversary’s mistake when he is in a position to correct them.
When the point is reached when he cannot anymore correct the
error, then, expose it. That is the advice in trial technique.
The second paragraph of Section 6 is new:
The dismissal of the complaint under this section shall be without
prejudice to the prosecution in the same or separate action of a
counterclaim pleaded in the answer. (n)
Note: If the defendant would want to file a counterclaim, he should
not file a motion to dismiss. Instead, he should allege the grounds
of a motion to dismiss as affirmative defenses in his answer with a
counterclaim. A preliminary hearing may be had thereon, and in
the event the complaint is dismissed, the defendant can prosecute
his counterclaim pursuant to said second paragraph.
Q: Suppose I will file an answer with affirmative defenses and with
a counterclaim. If the court dismisses the complaint, what happens
to my counterclaim?
A: Under the NEW RULES, there are two possibilities:
1.) The defendant can still prosecute his counterclaim in a
separate action; or
2.) The defendant can dismiss the complaint but the
counterclaim remains alive.
In the OLD RULES, when the main case is dismissed, the
counterclaim is automatically dismissed, lalo na ‘yong compulsory.
If the defendant moved to dismiss the case, in effect he was also
moving to dismiss his counterclaim. That is what the SC said in the
case of
INT’L CONTAINER TERMINAL SERVICES vs. COURT OF APPEALS
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214 SCRA 456 [OBSOLETE!]

HELD: “A compulsory counterclaim is so intertwined with the

complaint that it would not remain pending for independent
adjudication by the court after the dismissal of the complaint which
had provoked the counterclaim in the first place. As a
consequence, the dismissal of the complaint operated also to
dismiss the counterclaim questioning the complaint. When
defendant moved to dismiss the main action, he also moved, in
effect, for the dismissal of the counterclaim.”

That is the prior rule. That ruling is already OBSOLETE because of

this new paragraph, “The dismissal of the complaint under this
section shall be without prejudice to the prosecution in the same or
separate action of a counterclaim pleaded in the answer.”

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Rule 17 merely confirms a dismissal already effected by the filing of the

notice of dismissal. Since the order issued by the court merely
DISMISSAL OF ACTIONS confirms the dismissal, it follows that the court does not have to
approve the dismissal because it has no discretion on the matter.
Before an answer or a motion for summary judgment has been
Section 1. Dismissal upon notice by plaintiff. A complaint may be
served upon the plaintiff, the dismissal by the plaintiff by the filing
dismissed by the plaintiff by filing a notice of dismissal at any time
of a notice is a matter of right. The dismissal occurs as of the date
before service of the answer or of a motion for summary
the notice is filed by the plaintiff and not the date the court issues
judgment. Upon such notice being filed, the court shall issue an
the order confirming the dismissal.
order confirming the dismissal. Unless otherwise stated in the
notice, the dismissal is without prejudice, except that a notice
Under the rules on civil procedure, there are two types of
operates as an adjudication upon the merits when filed by a
dismissal:
plaintiff who has once dismissed in a competent court an action
1. Dismissal with prejudice – the case can no longer be re-filed;
based on or including the same claim. (1a)
2. Dismissal without prejudice –the case can be re-filed.

Q: Can a plaintiff file a complaint and later change his mind and
Q: Is the dismissal under Section 1 with or without prejudice?
withdraw? Meaning, can he dismiss his own complaint?
A: GENERAL RULE: The dismissal is WITHOUT PREJUDICE. The case
A: YES. And it is a matter of right.
can be re-filed.

Q: How?
Exceptions:
A: By filing a NOTICE OF DISMISSAL, not a motion, at ANY TIME
The dismissal will however, be with prejudice in any of the
BEFORE service of the answer or a motion for Summary Judgment.
following conditions:
Meaning, for as long as the defendant has not yet filed his answer
or a motion for summary judgment, the plaintiff has the right to
1.) When in the notice of dismissal itself, the plaintiff
dismiss his own complaint by simply sending the court what is
himself stated that he is dismissing his own complaint
known as a notice of dismissal.
with prejudice; OR
2.) When a notice operates as an adjudication upon the
This is similar to Rule 10 on amendments. When is amendment a
merits when filed by a plaintiff who has once dismissed
matter of right? For as long as there is no answer yet amendment is
in a competent court an action based on or including the
a matter of right.
same claim. This is the TWO-DISMISSAL RULE.

If the plaintiff files a notice of dismissal providing therein a reason

When the dismissal as a matter of right ceases
that prevents the refiling of the complaint, the dismissal must be
deemed one with prejudice even if the notice does not state that
Under the clear terms of Section 1, the dismissal as a matter of
the dismissal is with prejudice. This happens when for instance, the
right ceases when an answer or a motion for summary judgment is
notice provides that the plaintiff recognizes the fact of prescription
served on the plaintiff and not when the answer or the motion is
or extinguishment of the obligation of the defendant or for reasons
filed with the court. Thus, if a notice of dismissal is filed by the
stated in Sec. 5 of Rule 16 as when the action is barred by res
plaintiff even after an answer has been filed in court but before the
judicata.
responsive pleading has been served on the plaintiff, the notice of
dismissal is still a matter of right.
ILLUSTRATION (Two-Dismissal Rule): I borrowed money from Mr.
Castaños and I did not pay him. So he filed a case against me to
Withdrawal not automatic upon filing of notice of dismissal in court
collect the unpaid loan. Upon receipt of the summons, I approach
Mr. Castaños, “Huwag mo nalang ituloy ang kaso mo, babayaran
Take note that upon filing of the notice of dismissal, the court shall
kita. I will not file an Answer, hindi nalang ako kukuha ng lawyer. I-
issue an order confirming the dismissal. The reason is that, the
dismiss mo na lang iyan, babayaran kita next month, wala lang
withdrawal is not automatic. Withdrawal does not take effect until
akong kuwarta ngayon. I will refund you for the filing fee”.
confirmed by the court. This is in keeping with the respect due to
Ngayon, payag siya. He will send a notice to the court dismissing
the court.
his complaint. The case is dismissed, without prejudice.
After one month, I did not pay again. So nagalit si Mr. Castaños, he
It is not the order confirming the dismissal which operates to
re-filed the same complaint, pangalawa na. I now receive another
dismiss the complaint. As the name of the order implies, said order

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summons. So, lapit ako sa kanya, “Bakit mo fi-nile kaagad?” “Eh,
sabi mo, after one month magbabayad ka.” “Wala lang akong
kuwarta, next month pa dadating ang kuwarta ko. I-dismiss mo na
ULI yan. Basta, promise, next month, bayad na talaga ako. Isauli ko
ang ginasta mo sa filing fee.” Tapos, naatik na naman siya. So he
files a notice of dismissal again, doble. The same case was
dismissed twice. He availed of the dismissal in Section 1 twice.
After next month, hindi na naman ako nagbayad. So nagalit na
naman siya. So he filed the same case for the third time. I receive
the summons. You know what I will do? I will file a motion to
dismiss the case because the second dismissal is automatically with
prejudice.
Two-dismissal rule
The two-dismissal rule applies when the plaintiff has (a) twice
dismissed actions, (b) based on or including the same claim, (c) in a
court of competent jurisdiction. The second notice of dismissal will
bar the refiling of the action because it will operate as an
adjudication of the claim upon the merits. In other words, the claim
may only be filed twice, the first being the claim embodied in the
original complaint. If the refiled claim or complaint is dismissed
again through a second notice of dismissal, that second notice
triggers the application of the two-dismissal rule and the dismissal
is to be deemed one with prejudice because it is considered as an
adjudication upon the merits.
For the above rule to apply, the complaints must have been
dismissed in a court of competent jurisdiction. To illustrate:
PP files in the RTC an action to collect P300,000.00 from DD. The
complaint was dismissed when PP immediately filed a notice of
dismissal. The same claim was again filed in the MTC. Before DD
served either an answer or a motion for summary judgment, PP
filed a notice of dismissal. Does the two-dismissal rule apply?
It does not. The first court, the RTC was not a court of competent
jurisdiction because the claim was below its jurisdictional amount.
Q: Suppose you file a complaint against Mr. Cruz and you
immediately changed your mind and had it dismissed under Section
1. And then after having dismissed, you changed again your mind
and you want to re-file the action. Now, How do you re-file the
action? Do you file another complaint again?
A: That was answered in the case of
ORTIGAS AND CO. LTD PARTNERSHIP vs. VELASCO
234 SCRA 455 [1994]
HELD: It DEPENDS on whether the order of dismissal has already
become final.
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a.) If within 15 days from the time it is ordered dismissed, all
that you have to do is to ask the court to set aside the
order of dismissal and re-vive the case because the order
of dismissal have not yet become final.
b.) However, if the order of the court dismissing the
complaint based on your own notice has become final
after 15 days, then the only way you can revive it is to
file an entirely new action.
Sec. 2. Dismissal upon motion of plaintiff. Except as provided in the
preceding section, a complaint shall not be dismissed at the
plaintiff's instance save upon approval of the court and upon such
terms and conditions as the court deems proper. If a counterclaim
has been pleaded by a defendant prior to the service upon him of
the plaintiff's motion for dismissal, the dismissal shall be limited
to the complaint. The dismissal shall be without prejudice to the
right of the defendant to prosecute his counterclaim in a separate
action unless within fifteen (15) days from notice of the motion
he manifests his preference to have his counterclaim resolved in
the same action. Unless otherwise specified in the order, a
dismissal under this paragraph shall be without prejudice. A class
suit shall not be dismissed or compromised without the approval
of the court. (2a)
Dismissal upon motion/Discretionary dismissal
Q: If the defendant has already filed an answer or a motion for
summary judgment, may the complaint still be dismissed by the
plaintiff?
A: YES, but it is already upon the approval of the court and upon
such terms and conditions as the court deems proper. Meaning,
the dismissal under Section 2 by the plaintiff is no longer a matter
of right because the defendant has already filed an answer or a
motion for summary judgment.
Effect of dismissal upon a counterclaim already pleaded
If a counterclaim has been pleaded by the defendant prior to the
service upon him of the plaintiff's motion for dismissal, the
dismissal shall be limited to the complaint.
Q: Suppose I file a case against you and you file an answer with
counterclaim, and I filed a notice dismissing my own complaint. Can
it be done? What happens to the counterclaim?
A: Yes it can be done but the dismissal of the complaint DOES NOT
necessarily mean the dismissal of the counterclaim whether
compulsory or permissive. So a compulsory counterclaim remains
despite the dismissal of the complaint. The dismissal shall be
limited to the complaint.
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Such dismissal shall be without prejudice to the right of the
defendant to either:
1. prosecute his counterclaim in a separate action or
2. in the same action. Should he choose to have his counterclaim
resolved in the same action, he must notify the court of his
preference within fifteen (15) days from notice of the plaintiff’s
motion to dismiss.
Should he opt to prosecute his counterclaim in a separate action,
the court should render the corresponding order granting and
reserving his right to prosecute his claim in a separate complaint.
A similar rule is adopted in Sec. 6 Rule 16 and Sec. 3 of Rule 17,
wherein the dismissal of the complaint does not carry with it the
dismissal of the counterclaim/. The same provision also grants the
defendant a choice in the prosecution of his counterclaim.
These alternative remedies of the defendant are available to him
regardless of whether his counterclaim is compulsory or
permissive.
Q: Now, suppose the complaint is dismissed under Section 2 upon
initiative of the plaintiff, can he re-file the case?
A: The rule is the same as Section 1 – the dismissal of the complaint
under Section 2 shall be without prejudice.
Except:
1. when otherwise stated in the motion to dismiss, or
2. unless otherwise specified in the order of dismissal.
So, the dismissal under Sections 1 and 2 is generally without
prejudice.
Court approval necessary in the dismissal or compromise of a class
suit
The last sentence says, “A class suit shall not be dismissed or
compromised without the approval of the court.” When you file a
class suit, you are not only fighting for yourself – you are fighting
for the others. So, you cannot just withdraw it on your own or else,
you will cause prejudice to everybody. So, in order to prevent the
person who filed it from prejudicing the right of the members of
the class suit, it cannot be dismissed or compromised without the
approval of the court.
Sec. 3. Dismissal due to fault of plaintiff. If, for no justifiable cause,
the plaintiff fails to appear on the date of the presentation of his
evidence in chief on the complaint, or to prosecute his action for
an unreasonable length of time, or to comply with these Rules or
any order of the court, the complaint may be dismissed upon
motion of the defendant or upon the court's own motion, without
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prejudice to the right of the defendant to prosecute his
counterclaim in the same or in a separate action. This dismissal
shall have the effect of an adjudication upon the merits, unless
otherwise declared by the court. (3a)
Q: What are the grounds for the dismissal of the case under Section
3?
A: The following are the grounds for the dismissal of a case under
Section 3:
1.) The plaintiff fails to appear, for no justifiable cause, on
the date of the presentation of his evidence-in-chief on
the complaint;
2.) The plaintiff fails to prosecute his action for an
unreasonable length of time (Nolle Prosequi);
3.) The plaintiff fails to comply with the Rules of Court or
4.) The plaintiff fails to comply with any order of the court
for no justifiable reason or cause.
First Ground: THE PLAINTIFF FAILS TO APPEAR ON THE DATE OF THE
PRESENTATION OF HIS EVIDENCE-IN-CHIEF ON THE COMPLAINT
Evidence-in-chief is the main evidence of the plaintiff to prove his
cause of action.
So if the plaintiff fails to appear on the date of the presentation of
his evidence-in-chief on the complaint, the case can be dismissed.
In other words, the plaintiff's failure to appear at the trial after he
has presented his evidence and rested his case does not warrant
the dismissal of the case on the ground of failure to prosecute. This
has been taken from the ruling of the SC in the case of:
JALOVER vs. YTORIAGA
80 SCRA 100 [1977]
FACTS: Plaintiff appeared during the trial and presented his
evidence and then he rested. And then during the hearing of the
presentation of the defendant’s evidence, plaintiff failed to appear.
And since he failed to appear during trial, the court dismissed the
case.
HELD: The dismissal is WRONG. Why dismiss the case when he has
already presented his evidence? It is tantamount to deciding the
case against the plaintiff without considering the evidence that he
has presented. What is the remedy then?
What the court should do is to proceed with the presentation of
the defendant’s evidence without the plaintiff. Do not dismiss the
case the plaintiff has already presented his evidence.
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That is why the language in the old rule is ‘failure to prosecute’ or
another term is ‘non-suited’. But the rules of court now want to
avoid the word ‘non-suited’ because it carries a different meaning.
If plaintiff fails to appear on the date of the presentation of his
evidence-in-chief, but he arrived a little bit late, or he failed to
appear because he failed to receive the notice setting it, that is
different because the law says, “for no justifiable cause.” If I am
late but a few minutes only, that is not a good basis to dismiss the
case forever. There is no intentional failure not to appear. In which
case, if there is an order of dismissal, it should be set aside because
the condition is “for no justifiable cause.”
If it was the defendant who failed to appear without justifiable
cause, the plaintiff should move that the trial shall proceed ex-
parte. But definitely, the defendant cannot be declared in default
because he already filed an answer.
Second Ground: FAILURE OF PLAINTIFF TO PROSECUTE HIS ACTION
FOR UNREASONABLE LENGTH OF TIME.
EXAMPLE: Maybe every time his case is called to trial, he appears
but he is not ready and so he postpones. The next hearing, he
postpones again. That’s one interpretation.
Another interpretation of “failure to prosecute” the complaint is
filed, answer if filed, the case has not been set for pre-trial, the
plaintiff did not take the initiative to have the case set for pre-trial.
For more than one year, the case has not been set for pre-trial and
the plaintiff is not moving.
Or, the case cannot be tried because the defendant cannot be
summoned. The court keeps asking the plaintiff for the correct
address of the defendant. And for more than one year, the plaintiff
cannot supply the court of the correct address of the defendant.
The judge cannot have the case docketed in court forever.
Third Ground: FAILURE TO COMPLY WITH THE RULES OF COURT OR
ANY ORDER OF THE COURT.
EXAMPLE: The court says, “Plaintiff, you are hereby directed to
amend the complaint.” Plaintiff refuses to amend. The court will
dismiss the case.
Remember that case I cited where the complaint was filed in the
name of for example, “PANINGKAMOT STORE vs. SO and SO.” The
SC said that PANINGKAMOT STORE cannot be the plaintiff; it is not
a person. It is only the name of the business establishment. Only
natural person or juridical persons may be subject of the suit.
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Sabi naman ng SC, but do not dismiss. Give the plaintiff a chance to
amend in order to reflect the owner of the store. So the court
directs the plaintiff to amend. Ayaw mo i-amend ha? This time
i-dismiss ko for failure to comply with the court’s order.
Other Examples: Amend the pleading, submit a bill of particulars or
certification of non-forum shopping.
Now, Section 3 says, “…may be dismissed upon motion of the
defendant or upon the court’s own motion (motu propio).”
Dismissal generally upon motion; exceptions
Q: As a general rule, can a court dismiss a complaint without any
motion made by the defendant?
A: GENERAL RULE: The court should not dismiss the case upon its
own initiative, because the grounds for dismissal are waivable. If
the defendant fails to move for dismissal, he is waiving the defect.
Q: Give the EXCEPTIONS (When may the court dismiss the
complaint motu propio?).
A: The following
1. Section 3, Rule 17 (Plaintiff’s fault);
2. When on its face, the complaint shows that the court has
no jurisdiction over the subject matter;
3. When there is litis pendentia; or res adjudicata; or when
the action has prescribed;
4. Under the Summary Rules, the court is empowered to
dismiss immediately without any motion.
Effect of dismissal under Sec. 3 on the counterclaim
Take note of what the law says, if the complaint is dismissed under
Section 3, it is without prejudice to the right of the defendant to
prosecute his counterclaim in the same or separate action. Again,
the dismissal of the main action or complaint does not mean the
dismissal of the counterclaim. This is the same with Section 2.
Read Pinga vs. Heirs of Santiago GR 170354, June 30, 2006.
Dismissal is adjudication upon the merits
Q: If the complaint is dismissed under Section 3, can it still be re-
filed?
A: NO, the dismissal this time shall have the effect of adjudication
upon the merits. Meaning, res adjudicata applies, as if the case has
already been decided. Therefore the elements of res adjudicata
should also be present. The dismissal is with prejudice unless
otherwise declared by the court.
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GENERAL RULE: Dismissal due to the fault of the plaintiff is with
prejudice.
EXCEPTION: Unless the court provides otherwise or if the court has
not yet acquired jurisdiction over the person of the defendant.
(Herrera vol. 1 p. 798)
EXAMPLE: When the case was called for trial, plaintiff did not
appear. Defendant moved to dismiss under Section 3. The court
dismissed the case. Can the case be re-filed? NO, the dismissal is
with prejudice. (General Rule)
Suppose the court will say, “For non-appearance of the plaintiff,
the complaint is dismissed without prejudice.” Can the case be re-
filed? YES. (Exception)
On the other hand, one of the interesting cases on this (the effect
of res adjudicata – because when we say res adjudicata, it had to
be correlated with the elements of res adjudicata in Rule 39) is the
case of
Sec. 4. Dismissal of counterclaim, cross-claim, or third-party
complaint. The provisions of this Rule shall apply to the dismissal
of any counterclaim, cross-claim, or third-party complaint. A
voluntary dismissal by the claimant by notice as in section 1 of
this Rule, shall be made before a responsive pleading or a motion
for summary judgment is served or, if there is none, before the
introduction of evidence at the trial or hearing. (4a)
It means that the rules apply to dismissal of cross-claim,
counterclaim, or third-party complaint – at any time before an
answer is filed against a counterclaim, cross-claim or third-party
complaint, plaintiff may dismiss his claim under Section 1, Rule 17.
A dismissal or discontinuance of an action operates to annul
orders, rulings or judgments previously made in the case, as well as
all proceedings had in connection therewith and renders all
pleading ineffective. (Servicewide Specialist, Inc. vs. CA GR No.
110597, May 8, 1996)

REPUBLIC PLANTERS BANK (RBP) vs. MOLINA

166 SCRA 39 [1988]

FACTS: The RPB filed a case against the defendant for a sum of
money. Defendant cannot be summoned because his whereabouts
is now unknown. Several attempts made by the plaintiff to look for
him failed. After a while the court dismissed the complaint for
RBP’s failure to prosecute. And the order of dismissal was silent.
So, following Section 3, the dismissal is with prejudice.

Then later on, the plaintiff (RPB) discovered the whereabouts of

the defendant. The RPB re-filed the compliant. Defendant moved
to dismiss because when the first complaint was dismissed and the
order of dismissal was silent then the dismissal has the effect of an
adjudication on the merits.

HELD: Since We are talking of res adjudicata, let us correlate it with

the elements of res adjudicata under Rule 39.
One of the elements of res adjudicata is: When the case is
terminated, the court has jurisdiction over the case both as to the
person and the subject matter;
In the case of RPB, the court never acquired jurisdiction over the
person of the defendant because he was never served with
summons. Therefore, such dismissal did not have the effect of res
adjudicata.

Meaning, Section 3 presupposes that the court acquired

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

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Rule 18 the last pleading joining the issues has been served and filed
(Administrative Circular No. 3-99, January 15, 1999). If the plaintiff
PRE-TRIAL fails to file said motion within the given period, the branch clerk of
court shall issue a notice of pre-trial (A.M. No. 03-1-09-SC, July 13,
Pre-trial is a mandatory conference and personal confrontation
2004).
before the judge between the parties and their respective counsel.

Meaning of “last pleading”.

Pre-trial is mandatory in civil cases (Sec. 2; Interlining Corporation
vs. Philippine Trust Company 378 SCRA 521; Tiu vs. Middleton 310
The last permissible pleading that a party can file is the reply to the
SCRA 580). It is a procedural device held prior to the trial for the
answer to the last pleading asserting a claim. The claim could be
court to consider the purposes enumerated in Section 2.
the original complaint, the counterclaim, the cross-claim or the 3rd
Party Complaint. If an answer is filed and served in response to
It is mandatory for the trial court to conduct pre-trial in civil cases
these claims, the pleading in response to these answers is the reply
in order to realize the paramount objective of simplifying,
(Sarmiento vs. Juan 120 SCRA 403) which is to be filed within 10
abbreviating, and expediting trial. In light of these objectives, the
days from the service of the pleading responded to (Sec. 6 R 11).
parties are mandatorily required to submit their respective pre-trial
briefs. Failure of the parties to do so is a ground for dismissal of the
When the last pleading has not yet been served and filed, the case
action with prejudice, unless otherwise ordered by the court. (Dr.
is not yet ready for pre-trial (Pioneer Insurance & Surety
Emmanuel Vera vs. Ernesto F. Rigor and CA, GR No. 147377, August
Corporation v. Hontanosas 78 SCRA 439). However, the “last
10, 2007)
pleading” need not be literally construed as one having been
served and filed. For purposes of the pre-trial, the expiration of the
In all criminal cases cognizable by the Sandiganbayan, First Level
period for filing the last pleading without it having been served and
and Second Level courts,pre-trial is also mandatory (Sec. 1 R 118).
filed is sufficient (Sarmiento v. Juan, supra).

A pre-trial conference is likewise mandatory in both civil and

criminal cases under the Rules on Summary Procedure (Sec. 7, Sec.
Sec. 2. Nature and purpose. The pre-trial is mandatory. The court
14, 1991 Rule on Summary Procedure).
shall consider:
(a) The possibility of an amicable settlement or of a submission to
Referral to the Philippine Mediation Center
alternative modes of dispute resolution;
(b) The simplification of the issues;
At the start of the preliminary conference, the judge is mandated
(c) The necessity or desirability of amendments to the pleadings;
to refer the parties and/or their counsels to the mediation unit of
(d) The possibility of obtaining stipulations or admissions of facts
the Philippine Mediation Center (PMC) for purposes of mediation.
and of documents to avoid unnecessary proof;
If mediation fails, the judge will schedule the continuance of the
(e) The limitation of the number of witnesses;
preliminary conference. This rule applies to Metro Manila, Cebu,
(f) The advisability of a preliminary reference of issues to a
Davao City and other places where Philippine Mediation Center
commissioner;
Units may be further organized and designated (Administrative
(g) The propriety of rendering judgment on the pleadings, or
Circular No. 20–2002, March 24, 2002; Administrative Circular No.
summary judgment, or of dismissing the action should a valid
50-2005, April 26, 2005).
ground therefor be found to exist;
(h) The advisability or necessity of suspending the proceedings;
How is pre-trial called?
and
(i) Such other matters as may aid in the prompt disposition of the
Section 1. When conducted. After the last pleading has been
action. (1a, R20)
served and filed, it shall be the duty of the plaintiff to promptly
move ex parte that the case be set for pre-trial. (5a, R20)

(a) THE POSSIBILITY OF AN AMICABLE SETTLEMENT OR OF A

In civil actions, after the last pleading has been filed (Reply or
SUBMISSION TO ALTERNATIVE MODES OF DISPUTE
Answer) the plaintiff is duty bound to move promptly and ex parte
RESOLUTION
that the case be set for pre-trial.
The ex-parte motion to set case for pre-trial is to be made by the
Judgment; compromise agreement.
plaintiff after the last pleading that has been served and filed (Sec.
1). Specifically, the motion is to be filed within five (5) days after

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Land Bank of the Philippines v. Heirs of Spouses Jorja Rigor
Soriano and Magin Soriano, G.R. No. 178312. January 30, 2013
There is no question that the foregoing Agreement was a
compromise that the parties freely and voluntarily entered into for
the purpose of finally settling their dispute in this case. Under
Article 2028 of the Civil Code, a compromise is a contract whereby
the parties, by making reciprocal concessions, avoid a litigation or
put an end to one already commenced. Accordingly, a compromise
is either judicial, if the objective is to put an end to a pending
litigation, or extrajudicial, if the objective is to avoid a litigation. As
a contract, a compromise is perfected by mutual consent.
However, a judicial compromise, while immediately binding
between the parties upon its execution, is not executory until it is
approved by the court and reduced to a judgment. The validity of a
compromise is dependent upon its compliance with the requisites
and principles of contracts dictated by law. Also, the terms and
conditions of a compromise must not be contrary to law, morals,
good customs, public policy and public order.
Remember that the policy of the law in civil cases is settlement to
save time and expense.
There was an article where it says that one of the best gauge of a
good lawyer is not that he has many cases, but that he knows how
to settle a case because he saves his client from a lot of trouble.
While a bad lawyer is one whose cases always end up in trial – he
has many cases and he does not have the time anymore to study
each cases. So, he ends up inefficient.
As a matter of fact, even Abraham Lincoln who was a lawyer and
became one of the best presidents of the United State, gave an
advice to lawyers: “Discourage litigation. Persuade your neighbors
to compromise whenever you can. Point out to them how the
nominal winner is often a real loser in fees, expenses and waste of
time. As a peacemaker, the lawyer has a superior opportunity of
being a good man there will still be business enough.” Meaning, if
you are a lawyer, you have a strong influence to convince your
client to settle the problem with his opponent. You do not have to
worry about losing fees for there are still cases to come. Even if you
will come out the winner in the case, you are still the loser in terms
of waste of time, money and effort.
“…of a submission to alternative modes of dispute resolution.” –
how to dispose of the case without passing to court, ba. This is
similar to voluntary arbitration in the Labor Code – mas mabilis!.
Kung sa court yan, matatagalan pa yan. Example is a controversy in
the construction industry. Pagawa ka ng building. You quarrel with
your contractor whether the building is properly constructed or
not. That kind of dispute has to pass through arbitration like
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contractors. They will be the one to judge because they are
experts in construction. So it is faster. Anong malay ng judges sa
engineering? So, yan ang tinatawag na alternative modes of
dispute resolution.
Now, assuming that the parties cannot settle at the pre-trial stage,
does it mean to say that the pre-trial was a failure? NO, go to [b] to
[i] on other ways to hasten the trial.
(b) THE SIMPLIFICATION OF THE ISSUES
Based on the answers filed, issue will be simplified or
lessened/reduced to the most important and relevant ones.
(c) THE NECESSITY OR DESIRABILITY OF AMENDING THE
PLEADINGS;
Take note that there is already a complaint and answer and yet
during the pre-trial, the parties can still amend their complaint or
answer. That means that amendments of pleadings are favored
even at this stage. Amendment is necessary which is favored by
the liberality principle, to adjudicate the case upon proper merits.
INSURANCE CO. OF NORTH AMERICA vs. REPUBLIC
21 SCRA 887
BAR PROBLEM: Suppose A sued B. After pre-trial, it was
determined that there was a necessity for amending the complaint.
It was amended. Is there a need for a new pre-trial for the
amended complaint?
ANS: Where a pre-trial has already been had, the fact that an
amended complaint is filed, does not mean the need for a new pre-
trial. Pre-trial is not mandatory. Exception to this is when the
parties agree to conduct another pre-trial.
(d) STIPULATION OF FACTS
Stipulation of facts means we can agree on some facts and there is
no need of proving them in court because we already agreed. Such
will hasten the trial because matters validly agreed upon can be
dispensed with (e.g., size of the land, improvements thereon,
stipulations, due execution of documents, etc.)
Now, while the law encourages stipulation of facts, courts cannot
compel the parties to do stipulate facts under the threat of
dismissal. In the 1988 case of:
FILOIL MARKETING CORP. vs. DY PAC & CO.
160 SCRA 333
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HELD: There is no law which compulsorily requires litigants to
stipulate at pre-trial on the facts and issues that may possibly crop
up in a particular case, upon pain of dismissal of such case. The
process of securing admissions whether of facts or evidence is
essentially voluntary, since stipulations of facts, like contracts, bind
the parties thereto who are not allowed to controvert statements
made therein.
When the parties are unable to arrive at a stipulation of agreed
facts, the court must close the pre-trial and proceed with the trial
of the case.
(e) THE LIMITATION OF THE NUMBER OF WITNESSES;
During the pre-trial if there is no settlement, the court will ask,
“Mr. Plaintiff, how many witnesses will you present?” The plaintiff
will say that he will present one hundred witnesses. So the court
will start asking, “Why so many? Will it be possible to limit the
number of witnesses from 100 to 15 or 10? Anyway, what one
witness will say will just be the same as what the other witness will
say.”
That is allowed and that is part of the pre-trial because it will be
shortened if the number of witnesses will be reduced in number.
(f) THE ADVISABILITY OF A PRELIMINARY REFERENCE OF ISSUES TO
A COMMISSIONER;
This refer to Rule 32 the title of which is “Trial by Commissioners.”
A commissioner is a person who may be appointed by a judge to
assist the court in determining certain issues.
EXAMPLE: Two people dealing with each other ended up suing
each other because according to plaintiff, “You secured these
amounts from me and ito lang ang binayad mo. So, may utang ka
pa.” But defendant said, “No, no, no! Based on my record, overpaid
pa ako.” That can happen where there has be confusion already on
the invoices and receipts. Now, if we will try this case in court it will
take time because you have to present to the judge every receipt,
every invoice. And these invoices may number by hundreds. And
what is worse is that the judge is not an accountant so he will have
a hard time reconciling these receipts and invoices.
Suppose the judge will say, “Alright, since this is a matter of
accounting, I will appoint a CPA to assist me. You can choose
whoever this accountant or he may be appointed by this court.
Then you go to him and present all your documents. And then he
will now analyze and then submit to me his findings. Based on his
findings we will find out whether the defendant still owes the
plaintiff or there is no more utang.”
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That is what you call, reference of issues to a commissioner. That
will shorten the proceedings because if the judge will go over the
documents one by one it will take time.
EXAMPLE: A boundary dispute between two neighboring
landowners. Plaintiff says, “Your fence has already encroached on
my property.” Defendant answers, “No, no, no. This is the
boundary.” So bakbakan na naman kayo. The court will ask,” Is it
true you encroached on his property?” How will the court know
that? I think that is very technical. It is a geodetic engineer
surveyor to resolve the issue. He will plot the measurement and
then he will submit a sketch. Then we will find out if there is an
encroachment or not.
As far as the judge is concerned, he does not know anything about
description of the land, he is not a surveyor, not a geodetic
engineer. So it will be faster if a geodetic engineer surveyor will be
appointed. What do you call this surveyor? He is a commissioner.
(g) THE PROPRIETY OF RENDERING JUDGMENT ON THE PLEADINGS,
OR SUMMARY JUDGMENT, OR OF DISMISSING THE ACTION
SHOULD A VALID GROUND THEREFORE BE FOUND TO EXIST;
Q: What do you mean by judgment on the pleadings? What do you
mean by summary judgment?
A: That was already mentioned under Rule 17, Section 1. But we
will not take them up because they will be taken up when we reach
Rule 34 and 35. Judgment on the pleadings or summary judgment
are remedies or procedure devised under the Rules of court for the
speedy determination of a civil case. It is one way of speedily
terminating a civil case.
The court, during a pre-trial, is authorized to render a judgment on
the pleadings or a summary judgment if there is a ground. In the
same manner, the court may order the dismissal of the action
should a valid ground therefor be found to exist because it is
possible that based on the complaint, there is no ground to dismiss
but in the course of pre-trial, the plaintiff may admit something
which turns out to be a ground for dismissal.
EXAMPLE: According to the plaintiff, the defendant borrowed
money from him three years ago and did not pay. But during the
pre-trial, defendant said, “Actually, judge, hindi man yan three
years ago. That was thirty years ago!” Plaintiff answered,
“Actually, judge, totoo yan.” So judge said, “My golly, the action
has prescribed so I will order the dismissal.” These things can come
out in the pre-trial.
(h) THE ADVISABILITY OR NECESSITY OF SUSPENDING THE
PROCEEDINGS;
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This means that the case will be suspended, nothing will happen in
the meantime. Hindi naman dismissed. The case will just be held
in abeyance.
EXAMPLE: Suppose the parties will say, “Judge, so far we cannot
settle. But maybe if you will give us one or two months we will be
able to come up with a solution. We will meet once every three
days para mag-istorya.” I think that is a good ground. In other
words, pwede pa silang mag-areglo, o sige! Because the law
encourages amicable settlement.
Q: Is there a provision in the Rules on the suspension of
proceedings in relation to what we are talking about now? What
are the possible grounds for suspending the proceedings in a civil
case?
A: Rule 20, Section 8 on suspension of actions.
Sec. 8. Suspension of actions. - The suspension of actions shall be
governed by the provisions of the Civil Code. (n)
Actually, Section 8 points to Article 2030 of the New Civil Code:
Art. 2030. Every civil action or proceeding shall be suspended:
1. If willingness to discuss a possible compromise is
expressed by one or both parties; or
2. If it appears that one of the parties, before the
commencement of the action or proceeding, offered to discuss a
possible compromise but the other party refused the offer.
The duration and terms of the suspension of the civil action or
proceeding and similar matters shall be governed by such
provisions of the rules of court as the Supreme Court shall
promulgate. Said rules of court shall likewise provide for the
appointment and duties of amicable compounders.
So a civil action may be suspended if at any time one of the parties
offered to discuss a possible compromise because the policy of the
law is to have civil cases settled between the parties amicably. Let
the parties talk among themselves to come up with the possibility
of amicable settlement even if one of the parties refuse to accept
such an offer.
(i) SUCH OTHER MATTERS AS MAY AID IN THE PROMPT
DISPOSITION OF THE ACTION.
That is very broad – any other matter which will hasten the case.
Anything under the sun can fall under this.
PURPOSE OF A PRE-TRIAL
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A review of Section 2 will show that the primary purpose of a pre-
trial is how to end the case immediately because of amicable
settlement. If the parties can settle, then there is no need to
proceed to trial. But if for valid or serious reason they cannot
settle, because the court can only encourage and not force a
settlement, then they shall proceed with the pre-trial to find out if
we can have the case tried speedily and decided immediately by
talking about other things like amending the pleadings, stipulation
of facts, admission of documents to avoid unnecessary proofs,
limitation in the number of witnesses. So if we cannot settle, we
can talk of other things to speedily terminate the case. Instead of
trying the case for two years, we can probably finish in six months.
DEVELOPMENT BANK vs. COURT OF APPEALS
169 SCRA 409
NOTE: This case penned by Justice Narvasa, is practically all about
pre-trial. It is actually the bible on pre-trial. And this is what
exactly Justice Narvasa said:
HELD: “Everyone knows that a pre-trial in civil actions is mandatory,
and has been so since January 1, 1964 (effectivity of the Revised
Rules of Court). Yet to this day its place in the scheme of things is
not fully appreciated, and it receives but perfunctory treatment in
many courts [Meaning, it is only complied with for the sake of
compliance.] Some courts consider it a mere technicality, serving
no useful purpose save perhaps, occasionally to furnish ground for
non-suiting the plaintiff, or declaring a defendant in default, or,
wistfully, to bring about a compromise. The pre-trial device is not
thus put to full use. Hence it has failed in the main to accomplish
the chief objective for it: the simplification, abbreviation and
expedition of the trial, if not indeed its dispensation. This is a great
pity, because the objective is attainable, and with not much
difficulty, if the device were more intelligently and extensively
handled.”
The Supreme Court noted the inability of trial judges to properly
apply and appreciate the value of Rule 18.
Sec. 3. Notice of pre-trial. The notice of pre-trial shall be served on
counsel, or on the party who has no counsel. The counsel served
with such notice is charged with the duty of notifying the party
represented by him. (n)
This is in compliance with Rule 13. Notice should be served on
counsel or to the party who has no counsel. Under the PRIOR RULE,
the procedure was, there must be notice to lawyer and notice to
the party but NOW, to simplify the job of the court processor, the
rule is, notice to the counsel is now notice to the party.
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Notice is so important that it would be grave abuse of discretion for
the court for example, to allow the plaintiff to present his evidence
ex parte for failure of the defendant to appear before the pre-trial
who did not receive through his counsel a notice of pre-trial.
Accordingly, there is no legal basis for a court to consider a party
notified of the pre-trial and to consider that there is no longer a
need to send notice of pre-trial merely because it was his counsel
who suggested the date of pre-trial (Agulto v. Tecson 476 SCRA
395)
ARCILLA vs. ARCILLA
138 SCRA 560
FACTS: There was a pre-trial conference on July 29, where all the
parties are notified through their lawyers pursuant to Section 3.
They appeared but somehow the pre-trial was terminated on July
29. The court decided to reset the pre-trial on Oct. 2. The parties
agreed. Normally, the procedure is, when that happens, there will
be another written notice. There should be another written notice
sent to the lawyers and parties.
In this case, no such written notice was issued. On Oct. 2, the
defendant did not appear. With that, he was declared to have lost
his rights to present his side. He was considered in default. He
questioned the order on the ground that he did not receive any
notice on the Oct. 2 pre-trial conference. Therefore, all subsequent
proceedings, including the judgment rendered against the
defendant were void. Is he correct?
HELD: “At first blush, petitioner’s aforesaid contention appears
very tenable, for indeed it is settled that a declaration of default, in
the absence of a notice of pre-trial constitutes denial of due
process. But a deeper examination of the pleadings and the record
of the case would show that petitioner was present during the pre
trial conference on July 29, 1975 when the lower court re-set the
pre-trial to October 2, 1975. On the said date, however, although
notified, both petitioner and his counsel did not appear, hence, the
declaration of default.”
So when the lower court reset the pre-trial on Oct. 2, the
defendant although ratified VERBALLY earlier, he failed to appear
that is why he was penalized under Section 5. When the court
reset the pre-trial, he agreed. He already knew. Notification need
not be too technical. Despite the lack of a written notice, the
defendant was penalized in the ARCILLA case.
Under the present rules the court cannot declare anymore an
answering defendant in default if he fails to appear during the pre-
trial conference despite due notice. The consequence of such non-
appearance is that the plaintiff will be allowed to present ex-parte.
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Sec. 4. Appearance of parties. It shall be the duty of the parties
and their counsel to appear at the pre-trial. The non-appearance
of a party may be excused only if a valid cause is shown therefor
or if a representative shall appear in his behalf fully authorized in
writing to enter into an amicable settlement, to submit to
alternative modes of dispute resolution, and to enter into
stipulations or admissions of facts and of documents. (n)
There must be notice of pre-trial which will be issued after you
comply with Section 1. Then there will be a schedule. The notice
will be served upon the counsel or upon a party, assuming that he
is not represented by a lawyer. The counsel served with such notice
is charged with the duty of notifying the party represented by him.
Appearance of parties and counsel
And under Section 4, it shall be the duty of both the parties and
their counsel to appear at the trial. Meaning, the appearance of
the lawyer alone unless he is duly clothed with pre-trial authority
from his client.
Section 3 says “a counsel served with such notice is charged with
the duty of notifying the party represented by him.” That is new
provision. The OLD LAW is, based on decided cases, aside from
notice to the lawyer, there must be another notice to the party. So
if you notify the lawyer but you did not send a separate notice to
the party and therefore the party did not appear, you cannot take
it against him. Under Rule 13, notice to lawyer is notice to party,
except in pre-trial, sabi ng SC. That is the old jurisprudence –
OBSOLETE!
But the PRESENT RULE is: Notice to lawyer is notice to party.
Q: Is it possible for a party who will not appear at a pre-trial but his
appearance is not necessary?
A: YES, Section 4, if a valid cause is shown like, he got sick. Or, if a
representative shall appear in his behalf duly authorized in writing
to enter into an amicable settlement, to submit to alternative
modes of dispute resolution, etc.
Meaning, you can delegate somebody who has a written authority.
Sometimes it is the lawyer who is given the Power of Attorney
authorizing him to enter into an amicable settlement. Otherwise,
you will see in the next section what is the effect if you fail to
appear in a pre-trial.
Q: Suppose one of the parties in the case is a CORPORATION. A
corporation cannot appear because it has no physical existence.
Who is authorized to appear in a pre-trial in order to enter into an
amicable settlement? Are the managers or vice-president,
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authorized to appear in a pre-trial in behalf of the bank which is a
party to the case?
A: NO! Even the president or the chairman of the board has no
power.
Q: Who can bind a Corporation?
A: Only the Board of Directors has the authority to bind a
corporation.
Q: If there will be a pre-trial of a case involving one of the banks in
Manila but the case is in Davao, am I saying that everytime there is
a pre-trial all the members of the Board will fly to Davao to attend
the pre-trial and pass a resolution inside the courtroom?
A: No. The Board can pass a resolution naming the person who will
represent the corporation. So, the manager for example, can
appear in the pre-trial provided he is authorized through a board
resolution.
Again, the RULE is: Both the lawyer and the party should appear in
the pre-trial because the first purpose of pre-trial is the possibility
of an amicable settlement and the lawyer alone has no authority to
enter into an amicable settlement.
Non- appearance of counsel or a party may be EXCUSED only if:
1. a valid cause is shown therefor and
2. A representative shall appear in his behalf fully authorized in
writing (e.g. SPA) to:
a. enter into an amicable settlement;
b. submit to alternative modes of dispute resolution; and
c. enter into stipulations or admissions of facts and of documents.
Note: written authority must be in the form of a Special Power of
Attorney. If the party is a corporation the SPA must be supported
by a board resolution (Riano, 2007, p. 306)
Note: The mere presentation of such written authroity is not
sufficient, but must be complemented by a showing of valid cause
for the non-appearance of the party himsel.
Q: If it is a corporation, what is that authority?
A: It is a board resolution because only the board of directors has
the authority to bind the corporation.
EFFECTS OF FAILURE TO APPEAR IN PRE-TRIAL
Sec. 5. Effect of failure to appear. The failure of the plaintiff to
appear when so required pursuant to the next preceding section
shall be cause for dismissal of the action. The dismissal shall be
with prejudice, unless otherwise ordered by the court. A similar
failure on the part of the defendant shall be cause to allow the
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plaintiff to present his evidence ex parte and the court to render
judgment on the basis thereof. (2a, R20)
Q: What happens if it is the plaintiff who failed to appear in the
pre-trial?
If the PLAINTIFF fails to appear, his case will be dismissed for not
appearing. And as a rule, the dismissal is with prejudice except
when the court orders otherwise. It has the same effect as Rule 17,
Section 3: Failure to appear during the trial for the presentation of
his evidence-in-chief. So, if the plaintiff fails to appear during the
trial when it is his turn to present his evidence, under Rule 17, his
case shall be dismissed and generally the dismissal is with
prejudice, or an adjudication upon the merits. (Res Adjudicata
applies).
The old rule was that the plaintiff will be declared non- suited.
NOW, it shall be a cause for dismissal of the action.
Q: Is there any difference between non-suited and dismissal of
action?
A: There is suppose to be a difference based on the case of
BA FINANCE CORP. vs. COURT OF APPEALS
224 SCRA 163 [OBSOLETE!]
HELD: When the defendant moves to dismiss the case, then you are
also killing your counterclaim. If you are, the defendant you should
not move for the dismissal. You only move to declare the plaintiff
as non-suited because when the plaintiff is non-suited, he is bared
from proving his cause of action but the case is not dismissed. Since
the case is not dismissed, it is like the plaintiff who is in default.
It does not anymore apply because now, you can have the case
dismissed but your counterclaim is still alive. So, the ruling in BA
FINANCE CORP. is now OBSOLETE.
What is the remedy of the plaintiff in case of dismissal for his
failure to appear?
Since the dismissal is with prejudice or an adjudication upon the
merits of the case, the remedy of the plaintiff is to appeal from the
order of dismissal. An order dismissing an action with prejudice is
appealable. Under the rules, it is only when the dismissal is without
prejudice that appeal cannot be availed of (Sec. 1[g] R 41). Since
appeal is available, certiorari is not the remedy because the
application of a petition for certiorari under Rule 65 of the Rules is
conditioned upon the absence of appeal or any plain, speedy and
adequate remedy (Sec. 1 R 65).
Effect of failure of the defendant to appear
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Q: What happens if it is the defendant who failed to appear in the
pre-trial?
A: If it is the DEFENDANT who failed to appear, the law says, it shall
be a cause to allow the plaintiff to present his evidence ex-parte
and for the court to render judgment on the basis thereof.
You will notice that if it is the defendant who failed to appear
under the old law, he will be considered as in default. NOW, the
word ‘default’ is avoided. The non-appearance of defendant during
the pre-trial is not a ground to declare him in default. Instead the
rule says, “it shall be a cause to allow the plaintiff to present his
evidence ex parte and the court to render judgment on the basis
thereof.” That is the same effect as the old rule.
Q: Why is the new rules avoiding the word ‘default’?
A: Because, strictly you cannot really have the defendant declared
in default when he has filed an answer.
Q: Defendant failed to appear in the pre-trial. Plaintiff was allowed
to present his evidence ex parte. Now, what is the REMEDY of the
defendant? Because if you look at Rule 9 on default, the proper
motion for the defendant in default is to file a motion to lift the
order of default on the ground of F.A.M.E. and that he has a
meritorious defense. Is that also the remedy for the defendant who
failed to appear in the pre-trial?
A: NO, that is the case of
JUNGCO vs. COURT OF APPEALS
179 SCRA 213 [1989]
HELD: Under Rule 9 on default, if you are declared in default, you
only file a motion to lift the order of default and you have to allege
that you have a meritorious defense. But in Rule 18, when you file a
motion, it is a simply a motion for reconsideration where you will
state the reason why you failed to appear and ask that the order be
reconsidered and that the judgment be set aside.
Under Rule 18, there is no use to say that you have a meritorious
because you have already filed an answer. The defense is already
there. Unlike in defaulted defendant, the court has no idea what is
your answer kaya nga you must convince the court that you have a
meritorious defense.
So a simple MOTION FOR RECONSIDERATION is sufficient.
Appeal not available
The order of the court allowing the plaintiff to present evidence ex-
parte does not dispose of the case with finality. The order is
therefore, merely interlocutory hence, not appealable. Under Sec.
1© of Rule 41, no appeal may be taken from an interlocutory
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order. The defendant who feels aggrieved by the order may move
for the reconsideration of the order and if the denial is tainted with
grave abuse of discretion, he may file a petition for certiorari.
Q: Assuming that the plaintiff is already presenting evidence, and
the defendant filed a motion for reconsideration. The court
reconsidered and recalled the plaintiff’s ex-parte presentation of
evidence. Do they have to go back to pre-trial.
A: GENERAL RULE: NO. (DBP vs. CA, 169 SCRA 409)
EXCEPTION: YOUNG vs. CA, 204 SCRA 584
General Rule: DEVELOPMENT BANK vs. COURT OF APPEALS
169 SCRA 409 [1989]
HELD: When a pre-trial is terminated, you do not go back to it. The
court shall let the plaintiff continue and just let the defendant
cross-examine the plaintiff’s witnesses. As a general rule a second
pre-trial cannot be granted, the remedy instead is to go to trial.
Exception: YOUNG vs. COURT OF APPEALS
204 SCRA 584 [1991]
HELD: “The pre-trial stage is completed after a party had been
ordered non-suited and the complaint is dismissed or after the
court allows the plaintiff to present his evidence ex-parte. The
order lifting it does not revert the action to its pre-trial stage, or
authorize, much less, a second pre-trial UNLESS the parties
themselves had voluntarily agreed that the case be set anew for
pre-trial. Neither the Rules nor the doctrine bars the parties from
agreeing, after such lifting, to hold a pre-trial and to effectively
accomplish its objectives.”
PRE-TRIAL BRIEF
Sec. 6. Pre-trial brief. The parties shall file with the court and serve
on the adverse party, in such manner as shall ensure their receipt
thereof at least three (3) days before the date of the pre-trial,
their respective pre-trial briefs which shall contain, among others:
(a) A statement of their willingness to enter into amicable
settlement or alternative modes of dispute resolution, indicating
the desired terms thereof;
(b) A summary of admitted facts and proposed stipulation of
facts;
(c) The issues to be tried or resolved;
(d) The documents or exhibits to be presented, stating the
purpose thereof;
(e) A manifestation of their having availed or their intention to
avail themselves of discovery procedures or referral to
commissioners; and
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(f) The number and names of the witnesses, and the substance of
their respective testimonies.
Failure to file the pre-trial brief shall have the same effect as
failure to appear at the pre-trial. (n)
This is a new provision not found in the 1964 Rules. However, the
requirement of a pre-trial brief is not new because this was a
requirement in SC Circular No. 1-89 which was issued on January
19, 1989. The submission of pre-trial briefs by lawyers has been
required by that Circular. This circular is now incorporated.
Take note that at least three (3) days before the date of pre-trial
the parties’ lawyers should file pre-trial briefs to be furnished with
each other. In that brief, you summarize everything covered by
your pleadings. It contains cause of action, defenses, etc. The
court, instead of reading the pleadings and answer, only the
document where you condensed everything will be read. It
contains: Cause of action; defenses; issued to be tried; admitted
facts; facts you believe should be stipulated; the documents or
exhibits you would like to present; or who are the witnesses and
what are they going to testify, etc. That’s a summary of everything
that is going to happen from the beginning of the trial up to the
end.
Importance of identification and marking of evidence
It is vital to have documents and exhibits identified and marked
during the pre-trial. The current rule establishes the policy that no
evidence shall be presented and offered during the trial in support
of a party’s evidence-in-chief other than those that had been
earlier identified and pre-marked during the pre-trial, except if
allowed by the court for good cause shown (A.M. No. 03-1-09-SC,
July 13, 2004)
Legal effect of representations and statements in the pre-trial brief
The parties are bound by the representations and statements in
their respective pre-trial briefs (A.M. 03-1-09-SC, July 13, 2004).
Hence, such representations and statements are in the nature of
judicial admissions in relation to Sec. 4 R 129)
Effect of failure to file a pre-trial brief
Last paragraph, “Failure to file the pre-trial brief shall have the
same effect as failure to appear at the pre-trial conference.” So, if it
is the PLAINTIFF who failed to file a pre-trial brief, his complaint
may be ordered dismissed. If it is the DEFENDANT who failed to file
a pre-trial brief, that would be a cause for the court to allow the
plaintiff to present his evidence ex-parte.
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The dismissal of the complaint for failure to file pre-trial brief is
discretionary on the part of the trial court (Ramos v. Spouses
Lavendia, GR 176706, October 8, 2008).
Q: Up to this point, let us try to summarize. What are the instances
where the PLAINTIFF may be penalized by the court with a
dismissal of his complaint?
A: In the following instances:
1.) Where plaintiff fails to appear during the presentation of
his evidence-in-chief to prove his cause of action (Rule
17, Section 3);
2.) Failure to appear in the pre-trial conference (Rule 18,
Section 5);
3.) Failure to file a pre-trial brief (Rule 18, Section 6)
Q: On the other hand, when would the DEFENDANT be penalized
by the penalty that plaintiff be allowed to present his evidence ex
parte and judgment be rendered based purely on such evidence?
A: In the following instances:
1.) Failure to file an answer under Rule 9 on Default;
2.) Failure to appear in a pre-trial conference (Rule 18,
Section 5);
3.) Failure to file a pre-trial brief (Rule 18, Section 6)
No termination of pre-trial for failure to settle
The judge should not allow the termination of pre-trial simply
because of the manifestation of the parties that they cannot settle
the case. Instead, he should expose the parties to the advantages
of pre-trial. He must also be mindful that there are important
aspects of the pre-trial that ought to be taken up to expedite the
disposition of the case (A.M. No. 03-1-09-SC July 13, 2004).
If all efforts to settle fail, the trail judge shall endeavor to achieve
the other purposes of a pre-trial like, among others, obtaining
admissions or stipulations of fact. To obtain admissions, the judge
shall ask the parties to submit whatever depositions have been
taken under R 23 and the answers to written interrogatories under
R 25 and the answers to request for admission by the adverse party
under R 26. He may also require the production of documents or
things requested by a party under R 27 and the results of the
physical and mental examination under R 28 (ibid).
Principles involved in Compromise Agreements
The authority to compromise a litigation is not mandatorily
required to be in writing. The vital thing is that the authority was
made expressly. The authority to compromise if not in writing may
be established by evidence.
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Compromise agreements entered into without authority are not
void but unenforceable and may be ratified (Lim Pin vs/ Liao Tan,
GR No. L-47740, July 20, 1982)
The court shall ask the parties to agree on the specific dates for
continuous trial, adhere to the case flow chart determined by the
court and use the time frame for each stage in setting the trial
dates. Adherence to the One Day Examination of Witness Rule shall
be required where the witness shall be fully examined in one day
only, subject to the court’s discretion during the trial on whether or
not to extend the examination for justifiable reasons. Where no
settlement has been effected, the court shall follow the Most
Important Witness Rule, where the court shall determine the most
important witnesses and limit the number of such witnesses and
require the parties and/or counsels to submit to the branch clerk of
court the names, addresses and contact numbers of the witnesses
to be summoned by subpoena. Note however, that the court may
also refer the case to a trial by commissioner under R 32 (ibid).
Questions are to be asked by the judge
During the pre-trial, the judge shall be the one to ask questions on
issues raised by the parties and all questions or comments by
counsel or parties must be directed to the judge to avoid hostilities
between the parties (ibid).
Sec. 7. Record of pre-trial. The proceedings in the pre-trial shall be
recorded. Upon the termination thereof, the court shall issue an
order which shall recite in detail the matters taken up in the
conference, the action taken thereon, the amendments allowed
to the pleadings, and the agreements or admissions made by the
parties as to any of the matters considered. Should the action
proceed to trial, the order shall explicitly define and limit the
issues to be tried. The contents of the order shall control the
subsequent course of the action, unless modified before trial to
prevent manifest injustice. (5a, R20)
A pre-trial conference although it is less formal than a trial, that’s
why in most cases, pre-trial is not done in open court but inside the
chamber of the judge where the atmosphere is more relaxed
because you are going to talk about settlement, eh. However, do
not believe that that is just a decoration. That is an official
proceeding. Everything there is recorded. According to section 7,
after a pre-trial conference is terminated, the court will issue what
is known as pre-trial order. That is now expressly required by the
rules.
Pre-Trial Order
This order of the court is issued upon the termination of the pre-
trial. Under A.M. No. 03-109-SC dated July 13, 2004, the pre-trial
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order shall be issued within ten (10) days after the termination of
the pre-trial. This order recites in detail the following:
(a). A statement of the nature of the case;
(b) The matters taken up in the conference;
(c) the action taken thereon;
(d) the amendments allowed to the pleadings; and
(e) the agreements or admissions made by the parties as to any of
the matters considered (Sec. 7) including testimonial and
documentary evidence. These admissions embodied in the pre-trial
order are binding upon the parties and conclusive upon them
(Heirs of Conahap v. Regana 458 SCRA 741).
(f) the issues involved, factual and legal;
(g) number of witnesses; and
(h) the dates of trial.
Another important point to remember about the pre-trial order is
stated in the rule thus: “Should the action proceed to trial, the
order shall explicitly define and limit the issues to be tried. The
contents of the order shall control the subsequent course of the
action, unless modified before trial to prevent manifest injustice.”
The other exceptions are:
1. issues impliedly included in the issues stated or inferable
therefrom by necessary implication (Velasco vs. Apostol, GR No.
44588, May 9, 1989) and
2. amendment to conform to evidence under Rule 10 Sec. 5)
A party is deemed to have waived the delimitations in a pre-trial
order if he failed to object to the introduction of evidence on an
issue outside of the pre-trial order, as well as in cross-examining
the witness in regard to said evidence.
It may be an ordinary sentence but the effect of that is terrible.
Suppose here is the complaint and it is answered. Based on the
complaint and the answer, you can determine the issues based on
the admissions and denials in the answer. For instance, there are
five issues, they are to be stated in a pre-trial brief. During the pre-
trial conference, the court may reject other issues which are not
important with the agreement of the parties. Thus, there may be
only one real issue like whether or not the loan has been paid. The
court may then issue a pre-trial order containing such issue. The
defendant may have also several defenses in his answer. After the
pre-trial order is issued, such order should be followed. Forget the
complaint and the answer.
In effect, the complaint and the answer has already been
superseded by the pre-trial order. This section in effect says that
the pre-trial order supersedes the pleadings.
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That is why the case of DBP vs. CA, supra, where the Court through
Justice Narvasa, emphasized the importance of a pre-trial. The
Court noted that if there is a pre-trial order because the judge
followed Rule 18 religiously, during the trial the judge will not have
a hard time in determining what is the issue to be resolved. And
babasahin lang niya ay ang pre-trial order. Everything is to be
based there. Without the pre-trial order, you will still have to look
at the pleadings of both parties. The pre-trial order is a very
important piece of document.
There was a case years ago, Plaintiff vs. Defendant. Banggaan ba.
In a vehicular collision, the plaintiff is claiming damages from the
defendant. His allegations naturally would point out that all fault
and negligence is caused by the defendant. As usual, when the
defendant files his answer, he is denying that. As a matter of fact,
he will claim that the one negligent is the plaintiff. Chances are,
since his vehicle was also damaged, the defendant will file a
counterclaim. So, pasahan yan!
What happened in the pre-trial conference is that, the lawyers
were asked to define the issues. The plaintiff’s lawyer asked the
defendant’s lawyer to define the issues: “ (1.) Is the plaintiff liable
for actual damages on defendant’s counterclaim? (2.) Is the
plaintiff liable to the defendant on his counterclaim for exemplary
damages? (3.) Is plaintiff liable to the defendant on his
counterclaim for attorney’s fees and expenses for the litigation?”
So, those were the issues. The plaintiff’s lawyer, siguro hindi
nakikinig ba. Judge asked, “O, do you agree panyeros?” Yes, Okay.
When the pre-trial order was issued, those issues were contained.
Where’s the defendant’s liability to the plaintiff? Wala na! The
issue is whether or not the plaintiff is liable to the defendant.
During the trial, the plaintiff presented his evidence to prove the
defendant’s liability. The defendant’s lawyer objected on the
ground that there was no issue contained in the order on the
liability of the defendant. The only issue is whether plaintiff is
liable to the defendant. Naisahan ang plaintiff… akala kasi niya ang
pre-trial order is not important.
(Dean did not know how the case ended, but commented: “The
plaintiff asked for the amendment of the pre-trial order because
this is a manifest injustice. Plaintiff is the one suing and how he is
to be held liable. Now, if I were the judge, I will really modify
because it’s unfair no! You are the one suing and now you end up
as a defendant. But I will stress to the plaintiff na huwag kang
tatanga-tanga sa pre-trial! [gago!])
Now, an example of the last sentence of Section 7 – “UNLESS
modified before trial to prevent manifest injustice – is the case of
SESE vs. IAC (152 SCRA 585 [1987]) where even if the pre-trial order
does not recite the issue, it can still be proven. Under Section 5 of
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Rule 10, even if an issue was not raised I n a pre-trial order and no
one objected to the issue raised, it can be tried and later the pre-
trial order can be amended to conform with issue/s raised.
Pre-Trial in civil and criminal cases compared:
1. The pre-trial in a civil case is set when the plaintiff moves
ex-parte to set the case for pre-trial (Sec. 1 R 18). The PT
in a criminal case is ordered by the court and no motion
to set case for pre-trial is required from either party (Sec.
R 118);
2. The motion to set case for PT in a civil case is made after
the last pleading has been served and filed but in a
criminal case, the PT is ordered by the court after
arraignment and within 30 days from the date the court
acquires jurisdiction over the person of the accused;
3. The PT in a civil case considers the possibility of an
amicable settlement as an important objective (Sec. 2 R
18) but in a criminal case it does not generally consider
such possibility as a purpose of PT (Sec. 1 R 118);
4. In a civil case, the agreements and admissions made are
not required to be signed by both the parties and their
counsels. Under the Rules, they are instead to be
contained in the record of PT and the PT order (Sec. 7 R.
18. However, A.M. No. 03-1-09-SC date July 13, 2004
now requires the [proceedings during the preliminary
conference to be recorded in the “Minutes of
Preliminary Conference” to be signed by both parties
and /or counsel. The rule allows either the party or his
counsel to sign the minutes.
In a criminal case, there is a stricter procedure required. All
agreements or admissions made or entered during the PT
conference shall be reduced in writing and signed by both the
accused and counsel, otherwise, they cannot be used against the
accused (Sec. 2 R 118)
5. The sanctions for non-appearance in a PT are imposed
upon the plaintiff and the defendant in a civil case (Sec. 4
R 18) but in criminal cases, the sanctions are imposed
upon the counsel for the accused or the prosecutor (Sec.
3 R 118)
6. A PT brief is specifically required to be submitted in a
civil case (Sec. 6 but not in a criminal case.
Preliminary Conference under the Revised Rules on Summary
Procedure
1. Under the said rules, a preliminary conference shall be
held not later than 30 days after the last answer is filed.
Here, the rules on PT in ordinary cases shall apply except
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when inconsistent with the rules on summary procedure

(Sec. 7, II);
2. The failure of the plaintiff to appear in the conference
shall be cause for dismissal of the complaint and the
defendant who appears in the absence of the plaintiff
shall be entitled to judgment on his counterclaim. All
cross-claims shall be dismissed (ibid)
3. Within 5 days from the termination of the conference,
the court shall issue an order stating the matters taken
up in the conference (Sec. 8 II)

Outline

Pre- Trial

A. If no Settlement is reached

The court will issue an order indicating the agreements made by

the parties; amendments to the pleadings; schedule of trial.

Trial will then follow

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

judgment based on said compromise agreement.

C. If there is failure to appear

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

dismiss the case.

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

plaintiff ex parte.

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

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

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KATARUNGANG PAMBARANGAY
For now, we will leave the rules on civil procedure. We will go to
another law which is also connected with the study on civil
procedure. This is the Barangay Conciliation Law. It is appropriate
to discuss what the law is all about because under Rule 18 on pre-
trial, you will notice it has emphasized that the primary purpose of
a pre-trial is the possibility of amicable settlement. That is usually
encouraged. No case may reach the trial stage without passing
through the Pre-trial Rule. We have to exhaust all avenues and
settlement.
There is a law known as the BARANGAY CONCILIATION LAW which
mandate that before an action can be filed by an individual
complainant against another individual defendant, both of them
are residing in the same city or municipality, there should be a prior
attempt to conciliate in the barangay level – under the rules, the
barangay of the defendant. And if the action if filed without
observing that procedure, the action is dismissible.
Suppose a case will be filed in court, according to the SC, the
plaintiff must allege in a complaint that before filing the case he
exerted or complied with the Baranagay Law. It is a condition
precedent. Normally, after you exhaust in the barangay level but is
not successful, the Barangay Chairman will issue a certification to
file an action. That should be stated in the complaint.
According to the SC in the case of VDA. DE BORROMEO vs. PUGOY
(126 SCRA 217), the failure of a complaint to allege compliance
with the requirement of the barangay law is fatal. He must make an
allegation that before filing his complaint, he complied with the
barangay law. Otherwise, his complaint will be ordered dismissed.
If the action is filed without observing that procedure, the action is
dismissible. But as clarified by the SC in many cases, among them
are EBOL vs. AMIN (125 SCRA 438)and GONZALES vs. CA (151 SCRA
289) the defect is NOT JURISDICTIONAL. You do not say the court
has no jurisdiction.
The ground for dismissal is more on PREMATURITY OF THE ACTION.
You can cite the new ground now as “the condition precedent
required by law has not been observed.” Actually, it will also affect
the cause of action- Based on decided cases, there must be an
allegation in the complaint that before filing a case, there has been
an attempt to undergo a conciliation in the barangay level.
Now, this law used to be the Katarungang Pambarangay Law, PD
1508. However, it was superseded on January 1, 1992 by RA 7160,
otherwise known as the Local Government Code Of 1991 (LGC).
The Barangay Conciliation requirement is now embodied in RA
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7160. The barangay requirement is found in Sections 399-422 and
also Section 515. It is around 25 sections of the law.
To help you, the SC in 1993 issued Administrative Circular No. 14-
93 where the SC tried to condense the important requirements of
the law – who are covered and who are not. It is addressed to all
RTC and MTC judges. Subject: Guidelines on the Katarungang
Pambarangay conciliation Procedure to prevent circumvention on
the Revised Katarungang Pambarangay Law.
We will summarize the law and discuss some important features.
Under the law, you cannot file a case against somebody without
attempting to settle matters before the barangay level.
SOME IMPORTANT FEATURES OF THE BARANGAY CONCILIATION
LAW:
The law applies only when you are suing somebody who resides in
the same city or municipality where you reside. Or in the event of
different municipalities, they are adjacent. So when two towns are
near each other, you are suing somebody there, the law will apply.
Generally, when you (from Davao City) sue somebody from General
Santos City, the law is inapplicable because it is a different city.
The law will not apply if one of the parties in the dispute is a
juridical person – i.e. corporation. It only applies to suits between
natural persons.
Under the law, it is the barangay where the defendant resides
which is the venue for conciliation. If the
dispute arose in a workplace or in school, the venue is the barangay
where the workplace or the school is located.
Q: If I’m from Sasa and you are from Toril, but we are residing in
the same city, which barangay is the proper venue?
A: Under the law, it is the barangay where the defendant resides,
unless the dispute arose in a workplace or in school.
If the dispute refers to REAL property, it is where the property is
situated. If the dispute refers to Real Property (e.g. land), and I’m
from Matina, and you are from Sasa, but the case involves a land in
Toril, then the correct venue is the place where the land is situated
– i.e. the barangay in Toril.
When you say, both the parties reside in the same city or
municipality, what do you mean by RESIDENCE? The same
interpretation as laid down by the SC in
GARCES vs. COURT OF APPEALS
162 SCRA 504
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FACTS: Garces lives in Cavite but works in Malate. He rented an
apartment in Malate and stays there on weekends.
HELD: For purposes of the Barangay Law, Garces is a resident of
Malate. The word ‘RESIDES’ refers to actual or physical residence,
not domicile.
In the case of
BEJER vs. COURT OF APPEALS
169 SCRA 566
FACTS: Andre lives in Laguna but has a house in Manila where his
children live.
ISSUE: Is Andre a residence of Manila?
HELD: NO, because Andre is not a registered in the barangay as a
voter. Physical presence alone is not sufficient. So, the SC added
another qualification, that residence is determined by membership
in the barangay. Therefore, even if you are in that area but you are
not a member of the barangay, you are not a resident thereof.
This is because “the primary purpose of the law is to provide the
conciliation mechanism, as an alternative to litigations in dispute
settlement, to members of the corresponding barangays who are
actually residing therein. Residence alone, without membership, in
said barangays would not be an accurate and reliable criterion,
considering that such residence may be actual but be merely
temporary, transient or categorized into other permutations as in
the case of a house guest or a sojourner on a visit of a day or two.”
“On the other hand, mere membership in a barangay, without
actual residence therein, should not suffice since absentee
membership would not subserve the avowed purpose of the law
for lack of the common bond and sense of belonging generally
fostered in members of an identified aggroupment.”
Q: Suppose the defendant will not show up everytime he is called.
A: That is now a ground for the barangay captain to issue a
certificate to file an action. The defendant cannot complain later
that there is non-compliance of the barangay law. The defendant
cannot use his own default to profit it. That was the ruling in SAN
MIGUEL VILLAGE SCHOOL vs. PUNDOGAR (173 SCRA 704).
Take note that the barangay cannot decide. It can only convince
the party to settle. A barangay court has no power to make
decisions. But if you agree to something and in case you failed to
comply with your agreement, that can be enforced by the
barangay. But actually, the decision came from you, and not from
the barangay court.
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There are other interesting cases under the Barangay Law. In the
1989 case of
RAMOS vs . COURT OF APPEALS
174 SCRA 690
FACTS: This case originated in barangay Lanang, Davao City. The
parties failed to agree before the barangay captain. He tried to
convince them to settle, but they refused to settle. With that, the
barangay captain issued a certificate to file an action. So the case
was filed in the RTC. The defendant questioned the procedure.
HELD: The procedure is wrong. The case cannot be filed. Under the
Barangay Law which is now incorporated in 410-d of the Local
Government Code, the correct procedure for this is, if the barangay
captain cannot effect settlement, he should throw the case to the
Pangkat, the Lupon. If the barangay captain cannot settle, the next
step is the Lupong Tagapamayapa. So, you cannot immediately
issue a certification to file action
BUT the ruling in RAMOS seems to have been CHANGED already in
the light of the new Local Government Code. In the 1995 case of
DIU vs. COURT OF APPEALS
251 SCRA 472 [1995]
FACTS: What happened here is exactly similar to what happened to
the case of RAMOS. When the barangay captain could not effect a
settlement, he issued certificate to file action. That was
questioned. It was not referred to the Lupon. Therefore, it was
premature, citing Section 410-d of the LGC.
HELD: The SC cited a new section in the LGC which is Section 412
which seems to give the barangay captain the authority to issue a
certificate without necessarily referring anymore to the Lupon.
“While no pangkat was constituted, it is not denied that the parties
met at the office of the barangay chairman for possible settlement.
The efforts of the barangay chairman, however, proved futile as no
agreement was reached. Although no pangkat was formed, we
believe that there was substantial compliance with the law. It is
noteworthy that under Section 412 of the Local Government Code,
the confrontation before the lupon chairman OR the pangkat is
sufficient compliance with the pre-condition for filing the case in
court.”
“This is true notwithstanding the mandate of Section 410(b) of the
same law that the barangay chairman shall constitute a pangkat if
he fails in his mediation efforts. Section 410(b) should be construed
together with Section 412. On this score, it is significant that the
barangay chairman or punong barangay is himself the chairman of
the lupon under the Local Government Code.”
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Anyway, if we look to the pangkat under the LGC, the chairman of
the lupon is also the barangay captain. So, either one or the other
will do. So, the case of DIU has effectively set aside the ruling in
RAMOS.
CANDIDO vs. MACAPAGAL
221 SCRA 328 [1993]
FACTS: Here, plaintiff Eltor files a case against defendants Jenny,
Gemma, and Jayce. Eltor and Jenny reside in Davao City. So they
(Eltor and Jenny) are covered by the law. But Gemma and Jayce
reside in General City. So there is no problem with Gemma and
Jayce because there is no need to effect conciliation. But how
about Jenny? Should the case be dismissed against Jenny if there
was no prior barangay conciliation between Jenny and Eltor?
HELD: NO. The fact that Eltor and Jenny reside in the same
municipality does not justify compulsory conciliation WHERE the
other defendants reside in different municipalities or cities.
So, it would seem na pag nahaluan na ng iba, you are not also
covered anymore. That seems to be the implication. That seems to
jive with another ruling of the SC on the issue of “members of the
same family” because under the law, if the plaintiff and defendant
are members of the same family, they cannot also file a case
against each other without conciliation. But if there is a stranger
included, the requirement will not apply.
July 15, 1993
ADMINISTRATIVE CIRCULAR NO. 14-93
Subject : Guidelines on the Katarungang Pambarangay
conciliation procedure to prevent circumvention of the Revised
Katarungang Pambarangay Law (Sections 399-422, chapter VII,
Title I, Book III, R.A. 7160, otherwise known as the Local
Government Code of 1991).
To : All Regional Trial Courts, Metropolitan Trial Courts, Municipal
Trial Courts and Municipal Circuit Trial Courts
The Revised Katarungang Pambarangay Law under R.A. 7160,
otherwise known as the Local Government Code of 1991,
effective on January 1, 1992, and which repealed P.D. 1508,
introduced substantial changes not only in the authority granted
to the Lupon Tagapamayapa but also in the procedure to be
observed in the settlement of disputes within the authority of the
Lupon. cd i
In order that the laudable purpose of the law may not subverted
and its effectiveness undermined by indiscriminate, improper
and/or premature issuance of certifications to file actions in court
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by the Lupon or Pangkat Secretaries, attested by the
Lupon/Pangkat Chairmen, respectively, the following guidelines
are hereby issued for the information of trial court judges in cases
brought before them coming from the Barangays:
I. All disputes are subject to Barangay conciliation pursuant to the
Revised Katarungang Pambarangay Law (formerly P.D. 1508,
repealed and now replaced by Secs. 399-422, Chapter VII, Title I,
Book III, and Sec. 515, Title I, Book IV, R.A. 7160, otherwise known
as the Local Government Code of 1991), and prior recourse
thereto is a pre-condition before filing a complaint in court or any
government offices, EXCEPT in the following disputes:
1. Where one party is the government, or any subdivision
or instrumentality thereof;
2. Where one party is a public officer or employee, and
the dispute relates to the performance of his official
functions;
3. Where the dispute involves real properties located in
different cities and municipalities, unless the parties
thereto agree to submit their difference to amicable
settlement by an appropriate Lupon;
4. Any complaint by or against corporations, partnerships
or juridical entities, since only individuals shall be
parties to Barangay conciliation proceedings either
as complainants or respondents (Sec. 1, Rule VI,
Katarungang Pambarangay Rules);
NOTE: Only natural persons can undergo barangay conciliation.
5. Disputes involving parties who actually reside in
barangays of different cities or municipalities,
except where such barangay units adjoin each other
and the parties thereto agree to submit their
differences to amicable settlement by an
appropriate Lupon;
6. Offenses for which the law prescribes a maximum
penalty of imprisonment exceeding one (1) year or
a fine over five thousand pesos (P5,000.00);
7. Offenses where there is no private offended party;
8. Disputes where urgent legal action is necessary to
prevent injustice from being committed or further
continued, specifically the following:
NOTE: “Urgently.” A good example in civil action is where the
action is coupled with a provisional remedy such as preliminary
injunction, attachment, replevin or support. Or, actions which may
be barred by the statute of limitations.
a.) Criminal cases where accused is under police custody or
detention (See Sec. 412 (b)(1), Revised Katarungang
Pambarangay Law);
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b.) Petitions for habeas corpus by a person illegally
deprived of his rightful custody over another or a
person illegally deprived of his liberty or one acting in
his behalf;
c.) Actions coupled with provisional remedies such as
preliminary injunction, attachment, delivery of personal
property and support during the pendency of the
action; and
d.) Actions which may be barred by the Statute of
Limitations.
9. Any class of disputes which the
President may determine in the interest of justice or
upon the recommendation of the Secretary of Justice;
10. Where the dispute arises from the
Comprehensive Agrarian Reform Law (CARL) (Secs. 46 &
47, R.A. 6657);
11. Labor disputes or controversies arising
from employer-employee relations (Montoya vs.
Escayo, et al., 171 SCRA 442; Art. 226, Labor Code, as
amended, which grants original and exclusive
jurisdiction over conciliation and mediation of disputes,
grievances or problems to certain offices of the
Department of Labor and Employment);
NOTE: In the case of Montoya vs. Escayo (171 SCRA 442), the
conciliation there is in the Department of Labor.
12. Actions to annul judgment upon a
compromise, which may be filed
directly in court (See Sanchez vs.
Tupaz, 158 SCRA 459).
II. Under the provisions of R.A. 7160 on Katarungang
Pambarangay conciliation, as implemented by the Katarungang
Pambarangay Rules and Regulations promulgated by the
Secretary of Justice, the certification for filing a complaint in court
or any government office shall be issued by Barangay authorities
only upon compliance with the following requirements: aisa dc
1.) Issued by the Lupon Secretary and
attested by the Lupon Chairman (Punong Barangay),
certifying that a confrontation of the parties has taken
place and that a conciliation or settlement has been
reached, but the same has been subsequently
repudiated (Sec. 412, Revised Katarungang
Pambarangay Law; Sec. 2[h], Rule III, Katarungang
Pambarangay Rules);
2.) Issued by the Pangkat Secretary and
attested by the Pangkat Chairman, certifying that:
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a. a confrontation of the parties took
place but no conciliation/settlement has been reached
(Sec. 4[f], Rule III, Katarungang Pambarangay Rules; or
b. that no personal confrontation took
place before the Pangkat through no fault of the
complainant (Sec. 4[f], Rule III, Katarungang
Pambarangay Rules).
3.) Issued by the Punong Barangay, as
requested by the proper party on the ground of failure
of settlement where the dispute involves members of
the same indigenous cultural community, which shall
be settled in accordance with the customs and
traditions of that particular cultural community, or
where one or more of the parties to the aforesaid
dispute belong to the minority and the parties
mutually agreed to submit their dispute to the
indigenous system of amicable settlement, and there
has been no settlement as certified by the datu or
tribal leader or elder to the Punong Barangay of the
place of settlement (Secs. 1, 4, & 5, Rule IX,
Katarungang Pambarangay Rules); and
4.) If mediation or conciliation efforts
before the Punong Barangay proved unsuccessful,
there having been no agreement to arbitrate (Sec. 410
[b], Revised Rule Katarungang Pambarangay Lay; Sec.
1, c, (1), Rule III, Katarungang Pambarangay Rules), or
where the respondent fails to appear at the mediation
proceeding before the Punong Barangay (3rd par. Sec.
8, a, Rule VI, Katarungang Pambarangay Rules), the
Punong Barangay shall not cause the issuance of this
stage of a certification to file action, because it is now
mandatory for him to constitute the Pangkat before
whom mediation, conciliation, or arbitration
proceedings shall be held.
III. All complaints and/or informations filed or raffled to your
sala/branch of the Regional Trial Court, Metropolitan Trial Court
or Municipal Trial Court shall be carefully read and scrutinized to
determine if there has been compliance with prior Barangay
conciliation procedure under the Revised Katarungang
Pambarangay Law and its Implementing Rules and Regulations, as
a pre-condition to judicial action, particularly whether the
certification to file action attached to the records of the case
comply with the requirements hereinabove enumerated in par. II;
IV. A case filed in court without compliance with prior
Barangay conciliation which is a pre-condition for formal
adjudication (Sec. 412[a] of the Revised Katarungang
Pambarangay Law)
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1.) may be dismissed upon motion of

defendant/s, not for lack of jurisdiction of
the court but for failure to state a cause of
action or prematurity (Royales vs. IAC, 127
SCRA 470; Gonzales vs. CA, 151 SCRA 289),
or
2.) the court may suspend proceedings upon
petition of any party under Sec. 1, Rule 21
of the Rules of Court; and refer the case
motu propio to the appropriate Barangay
authority, applying by analogy Sec. 408[g],
2nd par., of the Revised Katarungang
Pambarangay Law which reads as follows:
"The Court in which non-criminal cases not falling within the
authority of the Lupon under this Code are filed may at any time
before trial, motu proprio refer the case to the Lupon concerned
for amicable settlement.

Strict observance of these guidelines is enjoined. This

Administrative Circular shall be effective immediately.

Manila, Philippines. July 15, 1993.

(Sgd.) ANDRES R. NARVASA

Chief Justice

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Rule 19 Q: Leo sues only Rucel. What is the remedy of Rucel to protect
herself?
INTERVENTION A: Rucel should file a THIRD-PARTY COMPLAINT against Rayda.

Q: What if Rucel does not file a third party complaint against

Q: Define intervention.
Rayda? What can Rayda do to be able to join the case?
A: An INTERVENTION is proceeding in a suit or action in which a
A: Rayda can, with leave of court, INTERVENE under Rule 19. The
third person, not a party to the case, is permitted by the court to
initiative should come from her.
make himself a party to the case. (33 C.J.S. 447)

So an intervention is related to a third-party complaint. It is a

Intervention is a legal proceeding by which a person who is not a
process by which a stranger or a third party is included in a case,
party to the action is permitted by the court to become a party by
but with the difference that in a third-party complaint, it is the
intervening in a pending action after meeting the conditions and
party who brought you in. While in intervention, the initiative
requirements set by the Rules of Court. This third person who
comes from the third person and he is known as the intervenor.
intervened is one who is not originally impleaded in the action
And the process of entering is called intervention. And take note
(First Philippine Holdings Corporation v. Sandiganbayan 253 SCRA
that a person cannot simply intervene for the sake of intervening.
30)
There must be a legal ground for intervention which can be found
in Section 1:
It is a remedy by which a third party, not originally impleaded in the
proceedings, becomes a litigant therein to enable him to protect or
preserve a right or interest which may be affected by such
Section 1. Who may intervene. A person who has a legal interest in
proceeding (Office of the Ombudsman v. Samaniego GR 175573,
the matter in litigation, or in the success of either of the parties,
Sept. 11, 2008).
or an interest against both, or is so situated as to be adversely
affected by a distribution or other disposition of property in the
Intervention is never an independent proceeding but is ancillary
custody of the court or of an officer thereof may, with leave of
and supplemental to an existing litigation. Its purpose is to enable a
court, be allowed to intervene in the action. The court shall
stranger to an action to become a party to protect his interest
consider whether or not the intervention will unduly delay or
(Santiago Land Development Corporation v. CA 267 SCRA 79).
prejudice the adjudication of the rights of the original parties, and
whether or not the intervenor's rights may be fully protected in a
An intervention cannot alter the nature of the action and the issues
separate proceeding. (2[a], [b]a, R12)
already joined (Castro v. David 100 Phil. 454).

Q: What are the grounds for intervention?

Intervention in an action is neither compulsory nor mandatory but
A: The following are the GROUNDS for intervention:
only optional and permissive (Mabayo Farms Inc. v. CA GR 140058
1.) The intervenor has a legal interest on the matter under
August 1, 2002)Hence, the court has full measure of discretion in
litigation;
permitting or disallowing the same (Yau v. Manila Banking
2.) The intervenor has a legal interest in the success of
Corporation GR 126731 July 11, 2002).
either of the parties;
3.) The intervenor has a legal interest against both; or
This discretion however, must be exercised judiciously and only
4.) The Intervenor is so situated as to be adversely affected
after consideration of all the circumstances obtaining in the case.
by a distribution or other disposition of property in the
Thus, where the substantial interest of the movant in the subject
custody of the court or of an officer thereof.
matter is undisputed, a denial of a motion to intervene is an
injustice (Mago v. CA GR No. 115624 Feb. 25, 1999).
Intervention is never an independent proceeding but is ancillary
and supplemental to an existing litigation. Hence, the final
EXAMPLE: Leo – creditor; Rucel – debtor; Rayda – surety. Rucel and
dismissal of the principal action results in the denial of the pending
Rayda signed a promissory note in favor of Leo.
motion for intervention.

Q: Leo sues Rucel and Rayda. What pleading should Rucel file to
Exception:
protect herself?
A: Rucel should file a CROSS-CLAIM against her co-party Rayda.
The intervenor in a pending case is entitled to be heard like any
other party. A claim in intervention that seeks affirmative relief

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prevents a plaintiff from taking a voluntary dismissal of the main
action. Where a complaint in intervention was filed before
plaintiff's action had been expressly dismissed, the intervenor's
complaint was not subject to dismissal on the ground that no
action was pending, since dismissal of plaintiff's action did not
affect the rights of the intervenor or affect the dismissal of
intervenor's complaint. (Metro Bank vs. Presiding Judge, RTC
Manila Branch 39, GR No. 89909, Sept. 21, 1990)
Denial of motion to intervene does not constitute res judicata.
Remedy of the intervenor is to file a separate action. (Asuncion vs.
Pineda GR No. L-47924, July 31, 1989)
Factors to be considered by the court:
1. whether or not the intervention will unduly delay or prejudice
the adjudication of the rights of the original parties; and
2. whether or not the intervenor's rights may be fully protected in a
separate proceeding.
First Ground: THE INTERVENOR HAS A LEGAL INTEREST ON THE
MATTER UNDER LITIGATION;
Meaning of legal interest
The legal interest must be one that is actual and material, direct
and of an immediate character, not merely contingent or expectant
so that the intervenor will either gain or lose by the direct legal
operation of the judgment. Thus, when the title to the property has
been already declared void by final judgment, intervention will not
revive or reinstate the movant’s title derived from the title
declared void (Firestone Ceramics v. CA 313 SCRA 522; Office of the
Ombudsman v. Samaniego).
The assignee of the property who assumed payment of whatever
amount may be finally adjudged against the assignor may intervene
in a proceeding involving the execution of the property pursuant to
a judgment (Robles v. Timario 6 SCRA 380).
In an action for foreclosure of mortgage, the alleged owners of the
land sought to be foreclosed may intervene (Roxas v. Dinglasan 28
SCRA 430).
EXAMPLE #1: Tarzan died survived by his children. Chita is
appointed as administrator of his estate. Chita filed a case to
recover a piece of land which he believes belongs to the deceased.
The children would like to intervene.
Q: Do children have the legal personality or the right to intervene
involving the estate of Tarzan?
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A: YES, because they have a legal interest in the matter in litigation.
If the case will succeed they will be richer. The property will go to
them. (Dais vs. CFI of Capiz, 51 Phil. 396)
EXAMPLE #2: Suppose Victor filed a case against Ping to recover a
piece of land. Victor’s children (Mary, Rose and Ador) would like to
intervene contending that when their father (Victor) would die in
the future, their inheritance is affected.
Q: Can the children of Victor intervene?
A: NO. They cannot intervene the legal interest they are claiming is
contingent, expectant – there is no assurance that your father will
die ahead of you. The interest referred to by the law is an interest
that is direct immediate, actual existing interest as distinguished
from expectant, inchoate or contingent interest. (Garcia vs. David,
67 Phil. 279)
How do you distinguish the second example from the first case? In
the first case, the father is dead and you inherit the property.
Technically, the property belongs to you. So the right of the heirs
over the property litigated by the administrator is not expectant or
inchoate.
Second Ground: THE INTERVENOR HAS A LEGAL INTEREST IN THE
SUCCESS OF EITHER OF THE PARTIES;
So you are interested in the plaintiff winning or the defendant
winning.
EXAMPLE : In an action filed by the creditor against the surety only
to recover the debt of the principal debtor without impleading the
principal debtor. The principal debtor may intervene if he would
like to join forces with the surety.
Third Ground: THE INTERVENOR HAS AN INTEREST AGAINST BOTH
PARTIES;
I am not interested in the victory of either the plaintiff or the
defendant. I am interested with my victory against both. So it
becomes a three-cornered fight.
EXAMPLE: Steven Spielberg filed a case against Ridley Scott who
has the right to possess the property and then here I come – I will
intervene. I am the one, not both of you, who has the right over the
property. Wala kayong lahat!!! Mga ungas!! So bakbakan na iyon. I
have a better right against both of you.
Fourth Ground: THE INTERVENOR IS SO SITUATED AS TO BE
ADVERSELY AFFECTED BY A DISTRIBUTION OR OTHER DISPOSITION
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OF PROPERTY IN THE CUSTODY OF THE COURT OR OF AN OFFICER
THEREOF.
EXAMPLE: Sonny secures a writ of preliminary attachment against
Gemma but the property attached preliminarily happens to be my
property. So I can move to intervene because I am adversely
affected by the distribution.
Can you not file a third-party claim if your property is wrongfully
attached? YES you can, but that is not the only remedy. The law
allows the third person to file an intervention in the main action.
INTERVENTION, NOT A RIGHT
Q: Is the intervention a right or a privilege?
A: NO. It is discretionary. A motion for intervention must be filed by
the intervenor. And under Section 1, the court may or may not
grant the motion - the court shall consider a.) whether or not the
intervention will unduly delay or prejudice the adjudication of the
rights of the original parties and b.) whether or not, the
intervenor’s rights maybe fully protected in a separate proceeding.
For example, the case between the original parties is about to end,
the trial of the case is about to end and at that point, you will have
to intervene. If you intervene, we will start all over again. So, it
will be dilatory. But even if you will not be allowed to intervene,
the court may say that you can file your case in the future. You can
file a separate action later against the parties.
WHEN AND HOW TO FILE
Sec. 2. Time to intervene. The motion to intervene may be filed at
any time before rendition of judgment by the trial court. A copy
of the pleading-in-intervention shall be attached to the motion
and served on the original parties.
Sec. 3. Pleadings-in-intervention. The intervenor shall file a
complaint-in-intervention if he asserts a claim against either or all
of the original parties, or an answer-in-intervention if he unites
with the defending party in resisting a claim against the latter.
(2[c]a, R12)
Q: When do you move to intervene?
A: Under Section 2, at any time before rendition of judgment by the
trial court. So, you cannot intervene when there is already a
decision.
Requisites for Intervention
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The following requisites must be complied with before a non-party
may intervene in a pending action:
(a) There must be a motion for intervention filed before
rendition of judgment by the trial court. A motion is
necessary because leave of court is required before a
person may be allowed to intervene (Section 1);
(b) The movant must show in his motion that he has a (1)
legal interest in (a) matter in litigation, (b) the success of
either of the parties in the action, or (c) against both
parties, or d)That the movant is so situated as to be
adversely affected by a distribution or other disposition
of property in the custody of the court or of an officer
thereof (Sec.1)
After rendition of judgment, a motion to intervene is barred, even
if the judgment itself recognizes the right of the movant. The
remedy of the movant is to file a separate action.
Exceptions:
1. with respect to indispensable parties, intervention may be
allowed even on appeal (Falcasantos vs. Falcasantos GR No. L-4627,
May 13, 1952;
2. when the intervenor is the Republic (Lim vs. Pacquing, GR No.
115044, Jan. 27, 1995);
3. Intervention may be allowed after judgment where necessary to
protect some interest which cannot otherwise be protected; and
for the purpose of preserving the intervenor's right to appeal
(Herrera vol. 1 p. 847)
4. Class suit (Section 12, Rule 3)
Rule 3, Sec. 12. Class suit. - When the subject matter of the
controversy is one of common or general interest to many
persons so numerous that it is impracticable to join all as parties,
a number of them which the court finds to be sufficiently
numerous and representative as to fully protect the interests of
all concerned may sue or defend for the benefit of all. Any party
in interest shall have the right to intervene to protect his
individual interest. (12a)
 Did you notice that last sentence? “Any party in interest
shall have the right to intervene.” So, in other words, in a
class suit and you are already included, law says, you
have the right to intervene in so far as your individual
interest is concerned. So, that would be another
instance where intervention seems to be a matter of
right rather than a matter of discretion.
That the intervention must not unduly delay or prejudice the
adjudication of the rights of the original parties and that the
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intevenor’s rights may not be fully protected in a separate
proceeding (Mabayo Farms Inc., v. CA GR 140058 August 1, 2002).
And when you file a motion to intervene, the pleading-in-
intervention that you want to file should already be included. Now,
under the old procedure, first, you file a motion to intervene. After
filing your motion and your motion is granted, then you file your
pleading in intervention. So, motion first before pleading. That was
the old rule.
NOW, the copy of the pleading and intervention shall be attached
to the motion and served on the original parties. That is also in
consonance with Rule 15 Section 9 on motions in general.
Rule 15, Sec. 9. Motion for leave. - A motion for leave to file a
pleading or motion shall be accompanied by the pleading or
motion sought to be admitted. (n)
So, in other words, when you file a motion for leave, the pleading
must already be included in your motion. An example is a motion
to intervene where it must already be accompanied by the
pleading-in-intervention.
Now, what are these PLEADINGS-IN-INTERVENTION? It’s there in
Section 3. It’s either a complaint-in-intervention or an answer-in-
intervention. So it DEPENDS:
If you are joining forces with the plaintiff, or you are asserting a
claim against both, then you file a COMPLAINT-IN-INTERVENTION.
If you are uniting with the defendant to resist the plaintiff, you file
an ANSWER-IN-INTERVENTION.
So, these are among the pleadings recognized by the rules. Let’s
try to go back to the basic. What are the types of pleadings
allowed by the rules of court? Rule 6, Section 2:
Sec. 2. Pleadings allowed. The claims of a party are asserted in a
complaint, counterclaim, cross-claim, third (fourth, etc.) party
complaint, or complaint-in-intervention.
xxxxx
Actually a complaint-in-intervention is the pleading referred to
now in Rule 19.
Sec. 4. Answer to complaint-in-intervention. The answer to the
complaint-in -intervention shall be filed within fifteen (15) days
from notice of the order admitting the same, unless a different
period is fixed by the court. (2[d]a, R12)
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In other words, just like any other complaint, it should be answered
within 15 days. A complaint-in-intervention must be answered
within fifteen (15) days from notice of the order admitting the
same, unless a different period is fixed by the court. So you have 15
days.
Remedies from denial of intervention:
1. appeal, or
2. mandamus, if there is grave abuse of discretion
3. certiorari, if there is improper granting of intervention.
Q: Now, suppose there is an amendment of a complaint-in-
intervention. What is the period to answer?
A: Let us go back to Rule 11, Section 3:
Sec. 3. Answer to amended complaint. Where the plaintiff files an
amended complaint as a matter of right, the defendant shall
answer the same within fifteen (l5) days after being served with a
copy thereof.
Where its filing is not a matter of right, the defendant shall
answer the amended complaint within ten (10) days from notice
of the order admitting the same. An answer earlier filed may
serve as the answer to the amended complaint if no new answer
is filed.
This Rule shall apply to the answer to an amended counterclaim,
amended cross-claim, amended third (fourth, etc.) party
complaint, and amended complaint-in-intervention. (3a)
Q: What is the period to answer an amended complaint-in-
intervention?
A: It is either 10 or 15 days just like answering an ordinary
amended complaint.
DISMISSAL OF THE MAIN ACTION; EFFECT ON INTERVENTION
There is a case between Pches and John. Tommy intervened while
the case is going on. Suppose the case was dismissed either by the
court or the plaintiff withdrew it. Can the intervention proceed
independently? Can it proceed when there is no more main action?
In the case of
BIG COUNTRY RANCH CORP. vs. COURT OF APPEALS
227 SCRA 161 [1993]
HELD: An intervention is merely collateral or accessory or ancillary
to the principal action and not an independent proceeding. It is an
interlocutory proceeding dependent on or subsidiary to the case
between the original parties. Where the main action ceases to
exist, there is no pending proceeding wherein the intervention
maybe based. If the main action dies, the intervention dies also.
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BUT there is another answer given by the SC in the case of:
METROPOLITAN BANK AND TRUST CO. vs. PRESIDING JUDGE, RTC
OF MANILA
189 SCRA 820 [1990]
HELD: When the intervention is granted and the main action is
withdrawn or dismissed, it would be unfair to dismiss the
intervention. So the intervention proceeds notwithstanding the
withdrawal of the main action.
“The simple fact that the trial court properly dismissed plaintiffs
action does not require dismissal of the action of the intervenor. An
intervenor has the right to claim the benefit of the original suit and
to prosecute it to judgment. The right cannot be defeated by
dismissal of the suit by the plaintiff. Where a complaint in
intervention was filed before plaintiff’s action had been expressly
dismissed, the intervenor’s complaint was .not subject to dismissal
on the ground that no action was pending.”
So how do you reconcile these conflicting decisions now? Well, I
think it DEPENDS on the ground for intervention. To illustrate:
EXAMPLE #1: The creditor files a case against the surety. The
debtor intervened. So, he is joining the surety. Then creditor
withdrew the complaint. What will happen to the intervention?
The intervention cannot go on because the intervention is actually
to assist the surety. So, if the complaint against the surety is
dismissed, wala ng utang. There is no more basis to assist the
surety. (BIG COUNTRY ruling)
EXAMPLE #2: But suppose Pches filed a case against John claiming
that she has a superior right to posses a piece of land. And then
Tommy will intervene also claiming that he has the superior right to
possess. So the three of them will fight. And then later, Pches will
withdraw the case. What will happen to Tommy’s intervention?
The dismissal of the main action does not mean that Tommy
cannot prove his right against John. The intervention should
continue. Bahala ka kung nag-withdraw ka, basta ako I will
continue. I will claim that the land is mine. (METROBANK ruling)
It depends on what kind of intervention you are talking about.
Now, an intervention may be confused with another procedure
under Rule 3, Section 19 on Transfer of Interest. For example:
When a property under litigation is sold and there is a notice of lis
pendens, the person who buys is called the TRANSFEREE PENDENTE
LITE. In the case of
SANTIAGO LAND CORP. vs. COURT OF APPEALS
January 28, 1997
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FACTS: Rose brought an action against a bank to enforce an alleged
right to redeem certain real properties foreclosed by the bank.
With notice of the pending civil action, Leo purchased from the
bank one of the properties subject of the litigation. So Leo is now
called the TRANSFEREE PENDENTE LITE. And later, Leo filed a
motion to intervene. Rose opposed Leo’s motion for intervention.
ISSUE: Does a transferee pendente lite of the property in litigation
have a right to intervene?
HELD: The SC here made a distinction between the rights of a
transferee pendente lite (Rule 3, Section 19) and an intervenor
(Rule 19).
“The purpose of Rule 19 on intervention is to enable a stranger to
an action to become a party to protect his interest and for the
court incidentally to settle all conflicting claims. On the other hand,
the purpose of Rule 3, Section 19 is to provide for the substitution
of the transferee pendente lite precisely because he is not a
stranger but a successor-in-interest of the transferor, who is a party
to the action. As such, a transferee’s title to the property is subject
to the incidents and results of the pending litigation and is in no
better position than the vendor in whose shoes he now stands.”
“As such, he stands exactly in the shoes of his predecessor in
interest, the original defendant, and is bound by the proceedings
had in the case before the property was transferred to him. He is a
proper, but not an indispensable, party as he would, in any event,
have been bound by the judgment against his predecessor.”
“How then can it legally be possible for a transferee pendente lite
to still intervene when, for all intents and purposes, the law already
considers him joined or substituted in the pending action,
commencing at the exact moment when the transfer of interest is
perfected between the original party-transferor and the transferee
pendente lite? And this even if the transferee is not formally joined
as a party in the action. Because the transferee pendente lite
simply takes the place of the transferor, he is barred from
presenting a new or different claim.”
“On the other hand, one who intervenes has a choice not to
intervene and thus not to be concluded by any judgment that may
be rendered between the original parties to the action.”
Meaning, if you are a TRANSFEREE PENDENTE LITE, there is no
need for you to intervene because you are already a (necessary)
party. On the other hand, an INTERVENOR can decide whether or
not he wants to join to be bound by the judgment of the main case.
So that is the ruling in SANTIAGO LAND.
There is another case on the issue again of intervention. The case
of
FIRST PHILIPPINE HOLDINGS CORP. vs. SANDIGANBAYAN
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253 SCRA 30 [February 1, 1996]

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

ISSUE: Is a writ of MANDAMUS available to compel a trial court to

grant a motion for intervention?

HELD: “As provided under Rule 19, Section 1, intervention shall be

allowed in the exercise of discretion by a court. Ordinarily,
mandamus will not prosper to compel a discretionary act. But
where there is gross abuse of discretion, manifest injustice or
palpable excess of authority equivalent to denial of a settled right
to which petitioner is entitled, and there is no other plain, speedy
and adequate remedy, the writ shall issue.”

Procedure for Intervention

1. The intervenor shall file a motion for

intervention attaching thereto his pleading-in-
intervention. The pleading to be filed depends
upon the purpose of the intervention. If the
purpose is to assert a claim against either or
all of the original parties, the pleading shall be
called a complaint-in-intervention; If the
pleading seek to unite with the defending
party in resisting a claim against the latter, he
shall file an answer-in-intervention (Sec. 3);
2. The motion and the pleading shall be served
upon the original parties;
3. The answer to the complaint-in-intervention
shall be filed within 15 days from notice of the
order admitting the same, unless a different
period is fixed by the courts (Sec. 4)

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Rule 20

CALENDAR OF CASES

Section 1. Calendar of cases. The clerk of court, under the direct

supervision of the judge, shall keep a calendar of cases for pre-
trial, for trial, those whose trials were adjourned or postponed,
and those with motions to set for hearing. Preference shall be
given to habeas corpus cases, election cases, special civil actions,
and those so required by law. (1[a], R22)

The clerk of court has a calendar of cases – cases for pre-trial, trial
cases, which were postponed. When will be the continuation of
the trial? May scheduling yan eh. Of course, the law says,
preference shall be given to certain type of cases like habeas
corpus. It is very important because that involves the freedom of
an individual.

Sec. 2. Assignment of cases. The assignment of cases to the

different branches of a court shall be done exclusively by raffle.
The assignment shall be done in open session of which adequate
notice shall be given so as to afford interested parties the
opportunity to be present. (7a, R22)

For example, in Davao City, there are more than 10 branches.

Now, when you file a case, how will we determine whether the
case will be assigned to Judge Malcampo or Judge Quitain or Judge
Torres? Raffle ‘yan. Niraraffle ‘yan. I remember the ordinary
raffling day in Davao City is every Tuesday. They raffle the cases.
All representatives of the different branches are there and then
they have a system of raffling. Which case will go to you? Para
hindi ka makapili. So, that is how cases are assigned.

So, pag-raffle ng kaso, there should be adequate notice to the

parties. This is one section where the clerk of court had a hard time
applying it. Do you know why?

Because the present practice, pag-file mo ng kaso, they will

immediately raffle it and then i-assign na sa branch. The branch
clerk of court will now issue the summons. Meaning, by the time it
reaches the defendant, naka-assign na. Suppose the defendant will
object, “When that raffling was done, I was not notified. I will
question the raffle because it would seem that the requirement is
that the plaintiff and the defendant should be notified of the
raffling.” Yaan!

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Rule 21 d) any Justice of the Supreme Court or of the Court of Appeals in

any case or investigation pending within the Philippines.
SUBPOENA When application for a subpoena to a prisoner is made, the judge
or officer shall examine and study carefully such application to
determine whether the same is made for a valid purpose.
Section 1. Subpoena and subpoena duces tecum. Subpoena is a
No prisoner sentenced to death, reclusion perpetua or life
process directed to a person requiring him to attend and to testify
imprisonment and who is confined in any penal institution shall
at the hearing or the trial of an action, or at any investigation
be brought outside the said penal institution for appearance or
conducted by competent authority, or for the taking of his
attendance in any court unless authorized by the Supreme Court.
deposition. It may also require him to bring with him any books,
(2a, R23)
documents, or other things under his control, in which case it is
called a subpoena duces tecum. (1a, R23)
Q: Who are authorized to issue subpoena?
A: The following:
Rule 21 applies to both civil and criminal cases.
1. The court before whom the witness is required to
attend – the most common is the court where the court
Q: What are the types of subpoena under the law?
is pending;
A: The following are the types of subpoena:
1.) Subpoena Ad Testificandum; and
2. The place where the deposition is to be taken – we will
2.) Subpoena Duces Tecum
discuss that when we reach Rule 23;

Now, the first one is commonly known as subpoena for short. So,
3. The officer or body authorized by law to do so in
when you say that refers to the first one.
connection with investigations conducted by said officer
or body – Now, even administrative bodies or quasi-
Q: Define Subpoena Ad Testificandum.
judicial officers are authorized to issue subpoena like
A: SUBPOENA AD TESTIFICANDUM is a process directed to a person
the Labor Arbiter in connection with investigation
requiring him to attend and to testify at the hearing or trial of an
conducted by said officer or body;
action, or at any investigation conducted by competent authority,
or for the taking of his deposition. So you are required to appear
4. Any Justice of the Supreme Court or of the Court of
there and testify in court.
Appeals in any case or investigation pending within the
Philippines – So, practically any justice can issue a
Q: Define Subpoena Duces Tecum.
subpoena to attend a particular case although it is not
A: SUBPOENA DUCES TECUM is a process directed to a person
before the SC. They are empowered to issue a
where it requires him to bring with him any books, documents or
subpoena.
other things under his control. So, in other words we are more
interested in his documents, which are in his custody. Whereas in
Q: Can you subpoena a PRISONER to appear in court?
ad testificandum, we are more interested in his oral testimony.
A: YES, but the law says that the judge should be very careful to
find out whether it is issued for a valid purpose because there is a
Now, take note that a subpoena is a process which requires a
risk. If a prisoner is going to be brought out in jail because he has
witness to testify not only during the hearing or the trial of his case
to testify in a case, that might be an occasion for him to escape.
but also any investigation conducted by “competent authority” like
So, the court should be very careful about that. The court should
quasi-judicial bodies such as the Labor Arbiter or the Senate Blue
have to find out whether it is necessary.
Ribbon Committee. Now, under Section 1, you may wonder what
do you mean by subpoena “for the taking of his deposition”? That
And take note, “No person sentenced to death, reclusion perpetua,
because that will clearer when we reach Rule 23. So we will just
or life imprisonment and who is confined in a penal institution shall
reserve talking deposition when we reach Rule 23.
be brought outside the said penal institution for appearance or
attendance in any court unless authorized by the Supreme Court.”
This is something new.
Sec. 2. By whom issued. The subpoena may be issued by:
a) the court before whom the witness is required to attend;
I think this last paragraph is from the case of former Congressman
b) the court of the place where the deposition is to be taken;
Nicanor de Guzman of Nueva Ecija who was convicted of gun
c) the officer or body authorized by law to do so in connection
running. He was sentenced in Muntinlupa then one day, because of
with investigations conducted by said officer or body; or

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subpoena to testify in his hometown, he was escorted in his
hometown to attend the fiesta and then I think he just used that as
an excuse to attend the fiesta. And that was attacked by the media
– why was he allowed to leave the national penitentiary when he is
sentenced to reclusion perpetua? So, this paragraph now appears.
You cannot remove him from any National Penal institution
without authority of the SC.
Sec. 3. Form and contents. A subpoena shall state the name of the
court and the title of the action or investigation, shall be directed
to the person whose attendance is required, and in the case of a
subpoena duces tecum, it shall also contain a reasonable
description of the books, documents or things demanded which
must appear to the court prima facie relevant. (3a, R23)
Now, actually that is simple. You are required to testify on this
date or time or you are required to bring with you the following
documents, which was described in the subpoena duces tecum.
Now, can a subpoena be quashed? To quash means to have it
dissolved. What are the grounds to quash a subpoena? Section 4:
Sec. 4. Quashing a subpoena. The court may quash a subpoena
duces tecum upon motion promptly made and, in any event, at or
before the time specified therein if it is unreasonable and
oppressive, or the relevancy of the books, documents or things
does not appear, or if the person in whose behalf the subpoena is
issued fails to advance the reasonable cost of the production
thereof.
The court may quash a subpoena ad testificandum on the ground
that the witness is not bound thereby. In either case, the
subpoena may be quashed on the ground that the witness fees
and kilometrage allowed by these Rules were not tendered when
the subpoena was served. (4a, R23)
GROUNDS TO QUASH SUBPOENA DUCES TECUM
To quash there must be motion filed.
Q: What are the grounds for quashing a subpoena duces tecum?
A: The following are the grounds:
1.) If the subpoena duces tecum is unreasonable and
oppressive;
2.) The relevancy of the books, things or documents does
not appear;
3.) the person in whose behalf the subpoena is issued fails
to advance the reasonable cost for the production
thereof.
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First Ground: IF THE SUBPOENA DUCES TECUM IS UNREASONABLE
AND OPPRESSIVE
Well, the best example is if it violates Section 3 – it does not
contain a reasonable description of the book, documents or things
demanded.
EXAMPLE: I will subpoena a business man to a business company,
“Mr. Manager you are required to bring to court all your ledgers, all
your receipts, and all your documents from 1990 to the present.”
My golly! That would involve how many truck loads. Meaning, it
would involve bringing to court thousand of documents. So, it
becomes unreasonable and oppressive. The subpoena duces tecum
should be more specific.
Second Ground: THE RELEVANCY OF THE BOOKS OR DOCUMENTS
DOES NOT APPEAR
Meaning, there appears to be no connection between the
documents which are being sought, and the issues in the case.
Example, in a collection case, you were required to bring your birth
certificate, marriage contract, etc. My golly! Anong pakialam ng
mga niyan sa collection case?
Third Ground: THE PERSON IN WHOSE BEHALF THE SUBPOENA IS
ISSUED FAILS TO ADVANCE THE REASONABLE PRODUCTION
THEREOF
This is a very common situation:
A bank received his subpoena duces tecum, “Present to court the
ledger of the return check of somebody.” And this check was issued
and send to you four years ago. Do you know the inconvenience
when a company is asked to bring to court documents especially
‘yung matagal na? Practically, the company has to assign the
employee out of his usual job. He is pulled out from his usual job
to look for these in the archives. Isa-isahin niya iyan. Maybe it will
take him two or three days to locate and then he will be required
to go to court where you will miss your work because you will be in
court and yet the person who demand the subpoena duces tecum
has never been bothered to pay service fee for that. Meaning,
dapat magbayad siya reasonable cost.
Of course, the law does not say how much. Sa gobyerno nga
papirma ka lang diyan ng isang pirma bayad ka na ng service fee.
How much more in the private sector, where you are requiring a
company to look for a document? He is the one to look and then
somebody will go to court. He will not be reporting for job and yet
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you have not even offered anything to the company. We
experienced this many times subpoena duces tecum, and then the
manager of the bank will say, “do we have to comply with these?”
Well, you do not want to comply. Puwede man.
When you received the subpoena duces tecum, may bayad ba? Did
the person offer any amount for the trouble in looking for these
documents and in going to court? “Wala.” Okay, we will move to
quash. In other words, sometimes companies and banks just
waived this. Sige lang, bayaan mo na. Maliit na bagay lang iyan.
But it is a ground for quashing a subpoena.
GROUND TO QUASH SUBPOENA AD TESTIFICANDUM
Q: How do you quash a subpoena ad testificandum?
A: The court may quash a subpoena ad testificandum on the
ground that the witness is not bound thereby.
Q: When is a witness not bound by a subpoena?
A: The best answer is Section 10 of this rule – if your residence is
more than 100 kilometers from the place of trial. So, you cannot
subpoena someone from Cebu to come to Davao because that is
more than 100 kms. But suppose you are willing to pay for his
transportation? Never mind, even if he is willing to pay the
transportation. Pag ayaw niya, wala kang magagawa because it is
more than 100 kms.
In either case, the subpoena may be quashed for failure to tender
the witness fees and kilometrage allowed by the Rules.
In either case, whether subpoena duces tecum or ad
testificandum, the last sentence says, “You must also tender the
witness fees and kilometrage allowed by this rules.” Ano ba ‘yang
witness fees? I think that’s Rule 141, ‘yun bang pamasahe. There is
a computation there. How much you have to pay the witness for
his transportation and witness fees. That is different from the
reasonable cost and reproduction in the first paragraph. So, these
are the grounds for questioning a subpoena.
Sec. 5. Subpoena for depositions. Proof of service of a notice to
take a deposition, as provided in sections 15 and 25 of Rule 23,
shall constitute sufficient authorization for the issuance of
subpoenas for the persons named in said notice by the clerk of
the court of the place in which the deposition is to be taken. The
clerk shall not, however, issue a subpoena duces tecum to any
such person without an order of the court. (5a, R23)
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Now, let’s us skip Section 5 for the meantime because that is
deposition.
Sec. 6. Service. Service of a subpoena shall be made in the same
manner as personal or substituted service of summons. The
original shall be exhibited and a copy thereof delivered to the
person on whom it is served, tendering to him the fees for one
day’s attendance and the kilometrage allowed by these Rules,
except that, when a subpoena is issued by or on behalf of the
Republic of the Philippines or an officer or agency thereof, the
tender need not be made. The service must be made so as to
allow the witness a reasonable time for preparation and travel to
the place of attendance. If the subpoena is duces tecum, the
reasonable cost of producing the books, documents or things
demanded shall also be tendered. (6a, R23)
The first sentence says, “Service of the subpoena shall be made in
the same manner as personal or substituted service of summons.”
That is a new provision. So, the mode of service of summons,
personal or substituted is also the manner of serving subpoena. So
there is now a substituted service of subpoena. You can leave it to
the wife.
1. The original shall be exhibited and a copy thereof be delivered to
the person on whom it is served;
2. tendering to him the fees for one day's attendance or
kilometrage allowed by the Rules; except that, when a subpoena is
issued by or on behalf of the Republic of the Philippines or an
officer or agency thereof, the tender need not be made;
3. the service must be made so as to allow the witness a reasonable
time for preparation and travel to the place of attendance; and
4. if the subpoena is duces mecum, the reasonable cost of
producing the books, documents, or things demanded shall also be
tendered.
Under the old rule, it says there, the subpoena shall be served
personally to the witness. There is no such thing as substituted
service of subpoena because in most cases, when you subpoena
somebody, you go to the house, the witness is not there but the
wife is there. So sabihin mo, “Ibigay mo na lang sa husband mo
ito.” That is substituted service of subpoena. You must serve it
personally to the witness. There is no such thing as substituted
service of subpoena Under the prior rule.
But NOW, the rule has changed because Section 6 is very clear: “It
shall be made in the same manner as personal or substituted
service of summons.” Alright.
And take note that You exhibit it to the witness. Then bayaran mo
‘yong kanyang pamasahe. You must serve the subpoena with a
reasonable time to me to allow him to travel. It’s very unbecoming
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that the witness be serve a subpoena today and he is suppose to
testify tomorrow. Suppose he has other commitments, bigyan mo
siya ng time. And of course, as we discussed earlier, the reasonable
cost of producing the books, documents or things demanded shall
also be rendered.
Sec. 7. Personal appearance in court. A person present in court
before a judicial officer may be required to testify as if he were in
attendance upon a subpoena issued by such court or officer. (10,
R23)
GENERAL RULE: You cannot be compelled to testify if you have not
been served with a subpoena.
EXCEPTION: Section 7 – a person present in court before a judicial
officer maybe required to testify as if he is under subpoena.
EXAMPLE: During the trial, Mr. Pogi is there. Gusto niyang makinig
eh. Audience lang siya. And then the lawyer will say, “Our first
witness is Mr. Pogi.” Sabi niya “Uy, uy, wala koy labot diri. I was
not under subpoena.” NO, You can be compelled because you are
present in court. Any person present inside the courtroom can be
compelled to testify as if he is under subpoena.
So, if Mr. Pogi believes he will be called and ayaw niya, huwag
siyang sumipot sa court. Huwag kang magtingin-tingin doon. It
happened several times. There was an instance I wanted to call a
witness several times to surprise him. If I will have him subpoena,
baka makabantay. Alam din niya. And then I’ll talk to him. “O
punta ka bukas ha? Sigurado ha.” In other words, I’ll have to trick
him into going into courtroom and then once inside, my first
witness is that guy. Wala kang magawa. Because any person
present in court can be compelled to testify because if I will have
him subpoena, he will be forewarn. So I do not want to forewarn
him.
FAILURE TO APPEAR; CONSEQUENCES
Q: How do you compel a witness to attend? Meaning, a witness
was subpoena and he did not show up. What are the
consequences of defying a subpoena?
A: The consequences are found in Sections 8 and 9.
Sec. 8. Compelling attendance. In case of failure of a witness to
attend, the court or judge issuing the subpoena, upon proof of the
service thereof and of the failure of the witness, may issue a
warrant to the sheriff of the province, or his deputy, to arrest the
witness and bring him before the court or officer where his
attendance is required, and the cost of such warrant and seizure
of such witness shall be paid by the witness if the court issuing it
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shall determine that his failure to answer the subpoena was
willful and without just excuse. (11, R23)
Sec. 9. Contempt. Failure by any person without adequate cause
to obey a subpoena served upon him shall be deemed a contempt
of the court from which the subpoena is issued. If the subpoena
was not issued by a court, the disobedience thereto shall be
punished in accordance with the applicable law or Rule. (12a,
R23)
Q: What are the consequences if the witness refuses to appear
after he was subpoenaed>
A: The following:
1.) You can ask the court to issue a warrant for his arrest
and to make him pay the cost of such warrant and
seizure, if the court should determine that his
disobedience was willful and without just cause. (Section
8) That’s what you call a warrant to arrest a recalcitrant
witness.
2.) Declare him in contempt of court for failure to obey the
subpoena (Section 9)
ENFORCEABILITY OF SUBPOENA
Sec. 10. Exceptions. The provisions of sections 8 and 9 of this Rule
shall not apply to a witness who resides more than one hundred
(100) kilometers from his residence to the place where he is to
testify by the ordinary course of travel, or to a detention prisoner
if no permission of the court in which his case is pending was
obtained. (9a, R23)
Provisions regarding the compelling of attendance (Sec. 8) and
contempt (Sec. 9) do not apply where:
1. the witness resides more than 100 kilometers from his residence
to the place where he is to testify by the ordinary course of travel
(Viatory right).
Note: This refers only to civil and not to criminal cases (Ganorga vs.
Quitain GR No. 891, July 21, 1977)
2. Permission of the court in which the detention prisoner's case is
pending was not obtained.
Although, this 100-km distance does not apply if it is a criminal case
where the accused would like to seek the compulsory process
issued to secure the attendance of witnesses in his behalf because
that is a superior right.
That is how the SC interpreted it in the case of PEOPLE vs.
MONTEJO (21 SCRA 722 [1965]), reiterated in GENORGA vs.
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QUITAIN (78 SCRA 94) that the 50-km (now 100-km) limitation
applies only to civil cases, but not to criminal cases, especially if the
person to be subpoenaed is a defense witness because of the
constitutional right of the accused which is a right which cannot be
curtailed by the Rules of Court.

SUMMONS vs. SUBPOENA

Q: Distinguish SUBPOENA from SUMMONS.

A: The following are the distinctions:

1.) SUBPOENA is directed to a witness; whereas

SUMMONS is directed to a defendant in a civil case;

2.) In SUBPOENA, the witness is directed to appear in court

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

3.) In SUBPOENA, the witness will be declared in contempt

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

4.)
SUBPOENA applicable to both criminal and civil case;
whereas
SUMMONS applies only to civil cases.

5.)In SUBPOENA, there is a 100-km limitation of its

enforceability; whereas
In SUMMONS, there is no distance limitation.

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Rule 22
For example: A motion to dismiss is filed on the 7th day (instead of
COMPUTATION OF TIME filing an answer). Then after several weeks, the court denied the
motion to dismiss and he received the order of denial.
Section 1. How to compute time. In computing any period of time
Q: So how many days more to go?
prescribed or allowed by these Rules, or by order of the court, or
A: Meron pa siyang eight (8) days to go. But the minimum
by any applicable statute, the day of the act or event from which
guaranteed is five(5) days under Rule 12 and 16.
the designated period of time begins to run is to be excluded and
the date of performance included. If the last day of the period, as
Now, what is the meaning of the last sentence “The day of the act
thus computed, falls on a Saturday, a Sunday, or a legal holiday in
that cause the interruption shall be excluded in the computation of
the place where the court sits, the time shall not run until the
the period.” Let’s try to illustrate that:
next working day. (n)

FACTS:
January 31 – defendant is served with summons
This is what is known as “EXCLUDE THE FIRST AND INCLUDE THE
February 8 – defendant files a motion to dismiss
LAST DAY” rule. That is how it has always been done even before
February 15 – defendant receives order denying motion to dismiss
this new rule. However, it was not expressed, there is nothing in
the previous rules mentioning that rule but that was really the rule
Q: What is the deadline for defendant to file his answer?
followed.
A: The 15-day period started to run on January 31. From January
31 to February 8, he consumed 8 days. From February 8 to 15, not
So, if you received the summons today, for example and you have
counted because interrupted man by motion to dismiss. Then, on
15 days to answer, you start counting 1(one) tomorrow, not today
February 15, he received the order denying his motion to dismiss.
because the day of the act or event from which the designated
period of time begins to run is to be excluded.
So the remaining balance of the 15-day period starts to run again.
And 15 minus 8 is equal to 7. Therefore, February 15 + 7 = February
Q: Now what happens if the last day to answer falls on a Saturday,
22. That is how you arrive at your (WRONG) answer.
Sunday or a legal holiday?
A: The last day is automatically the next working day.
Now, I’m sure if you ask majority of lawyers and judges with that
kind of problem, they will give the same answer. But the answer is
WRONG. Why?
So at least, the new rules now embody the rule of computation of
time.
Q: How many days did he consume from January 31 to February 8?
A: Hindi naman 8 days eh. 7 days lang because the filing of the
motion to dismiss has interrupted.
Sec. 2. Effect of interruption. Should an act be done which
effectively interrupts the running of the period, the allowable
So when you file the motion to dismiss on February 8, interrupted
period after such interruption shall start to run on the day after
na. So February 8 is not counted. So you consumed 7 days only.
notice of the cessation of the cause thereof.
Yaaaannnn…….
The day of the act that caused the interruption shall be excluded
in the computation of the period. (n)
Therefore, if he consumed 7 days, he has 8 days pa from February
15 to file. So the deadline is February 23. Yaaaannnn! Because the
law says: “The day of the act that caused the interruption shall be
EXAMPLE: The defendant received the summons and the complaint
excluded in the computation of the period.” The act that caused
on a certain day. He has 15 days to file his answer. An example of
the interruption is the filing of the motion to dismiss and it was
an act in between which effectively interrupts the running of the
filed on February 8. So, February 8 is already excluded in the
15-day period is when the defendant files a motion to dismiss
computation of the period.
instead of filing an answer, or a motion for a bill of particulars. In
which case, the running of the 15-day period stops. And since it is
Take note of that, that is a very important point because it may
stopped, you cannot declare the defendant in default.
mean the answer is filed on time or out of time. Kahit sa appeal,
Q: Now, when will it start to run again?
applicable din ito. That’s why that provision may sound very
A: It will start to run again when the defendant receives a court
innocent but it is a very important provision.
order denying his motion to dismiss.

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Any extension of time to file the required pleading should be

counted from the expiration of the period regardless of the fact
that the said due date is a Saturday, Sunday or legal holiday. (AM
No. 00-2-14-SC, as explained in Luz vs. National Amnesty
Commission, GR No. 1597028, Seept. 24, 2004)

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Rule 23
The modes of discovery are designed to serve as an additional
DEPOSITIONS PENDING ACTION device aside from a pre-trial, to narrow and clarify the basic issues
between the parties, to ascertain the facts relative to the issues
and to enable the parties to obtain the fullest possible knowledge
A civil case is not a case of technicalities. The rules do not want
of the issues and facts before civil trials and thus prevent the said
surprises in civil cases. You lay your cards on the table. You do not
trials to be carried on in the dark. It is intended to make certain
keep your opponent searching in the dark and that principle is
that all issues necessary to the disposition of a case are properly
manifested in so many rules.
raised. Thus, to obviate the element of surprise, parties are
expected to disclose at a pre-trial conference all issues of law and
Example, when a defendant resorts to a specific denial, he is
fact and that they intend to raise at the trial, except such as may
obliged not only to deny the allegations in the complaint but also
involve privileged or impeaching matters (Tinio v. Manzano 307
the facts that are denied. It is not fair to state that my version is
SCRA 460; Mercader v. DBP 332 SCRA 82).
false, without stating your version. And if you do not make specific
denial, there is a general denial, an implied admission.
Note: Modes of discovery are intended to be cumulative and not
alternative nor mutually exclusive.
You cannot also deliberately confuse the defendant by making
ambiguous ultimate facts in the complaint to confuse him. He has
Discovery is not mandatory but failure to avail carries sanctions in
the right to clarify the allegation by motion for bill of particulars.
Rules 25 and 26.

There is also the rule that objections or defenses not pleaded in the
BAR QUESTION: How do you distinguish Bill of Particulars from
motion to dismiss or in an answer are generally waived. So, if you
Modes of Discovery?
do not invoke the defense because you want to surprise the
A: Bill of Particulars is Rule 12, when you compel the party to clarify
plaintiff, you will be the one who will be surprised because the
vague statements of ultimate facts, but it is not an instrument to
courts will not allow you. There is no such thing as surprise defense
compel the other party to reveal evidentiary facts. The Modes of
because under Rule 9, defenses not raised are deemed waived.
Discovery are intended to compel the other party to reveal his
These provisions of the rules indicate the principle: LAY YOUR
evidence and evidentiary facts.
CARDS ON THE TABLE.

Duty of the court in relation to the modes of discovery

BUT there is still an element of surprise whether you like it or not
because I’m obliged to state my cause of action or defense but I’m
The modes of discovery are considered by the SC as vital
not obliged to state the facts supporting that defense because the
components of case management in pre-trial courts. Hence, aside
rules even say, evidentiary matters should not be alleged in the
from preparing the summons within one (1) day from the receipt of
pleading but is only proved in the trial.
the complaint, the court is required to issue an order requiring the
parties to avail of interrogatories to parties under Rule 25 and
A motion for bill of particulars is not a vehicle to fish for evidentiary
request for admission by adverse party under Rule 26 or at their
facts. So, in that sense there is still an element of surprise – you do
discretion make use of depositions under Rule 23 or other
not know my evidence until the trial or pre-trial.
measures under Rules 27 and 28 within five (5) days from the filing
of the answer. A copy of this order shall be served upon the
Q: But if you want to avoid any surprise, is there a way of knowing
defendant together with the summons. A copy of the order shall
then?
also be served upon the plaintiff (A.M. No. 03-1-09-SC, July 13,
A: YES. The correct remedy is to apply the modes of discovery.
2004).

Meaning of discovery
There are actually five (5) Modes of Discovery:

In general, a discovery is a device employed by a party to obtain

1. DEPOSITIONS – (a) pending action (Rule 23) and (b)
information about relevant matters on the case from the adverse
before action or pending appeal (Rule 24);
party in preparation for the trial. (Riano 2007, p. 310)
2. WRITTEN INTERROGATORIES TO PARTIES (Rule 25);
As contemplated in the Rules, the device may be used by all the
3. REQUEST FOR ADMISSION OF ADVERSE PARTIES (Rule
parties to the case.
26);

Purpose of discovery

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4. PRODUCTION OR INSPECTION OF DOCUMENTS AND
THINGS (Rule 27); and
5. PHYSICAL AND MENTAL EXAMINATION OF PERSONS
(Rule 28)
First Mode: Rule 23: DEPOSITION PENDING ACTION
This mode is the most popular among the five. Deposition has two
(2) types – deposition pending action (Rule 23) and depositions
before action or pending appeal (Rule 24). But actually Rule 24 is
not new because that is Rule 134 (Perpetuation of Testimony).
EXAMPLE: You are my opponent and I know you have 2 witnesses,
A and B. Now, of course, if A and B will testify, how will they
testify, that I do not know. But I want to know exactly what they
will say during the trial, including you.
Q: How do I apply Rule 23?
A: I will take your deposition. Meaning, I will take your testimony in
advance by compelling you to appear before someone whom we
call a Deposition Officer – the judge, or any judge, or even a notary
public - who can administer oath. And then before him, I will be
asking now questions and you have to answer under oath. Your
answers will then be recorded including that of your witnesses.
Therefore, during the trial, when you or your witnesses will testify,
there is no more surprise testimony that you can give me because I
already heard you in advance. You cannot contradict your answer.
This is what you call deposition taking.
Now, if I can do that to you, you can also do that to me. The
defendant can also use that against the plaintiff.
Q: How do you define deposition?
A: DEPOSITION is the written testimony of a witness given in the
course of a judicial proceeding, in advance of the trial or hearing,
upon oral examination or in response to written interrogatories,
and where an opportunity is given for cross-examination. (16 Am.
Jur. 699)
The Rules of Court and jurisprudence do not restrict a deposition to
the sole function of being a mode of discovery before trial. Under
certain conditions for certain limited purposes, it may be taken
even after trial has commenced and may be used without the
deponent being actually called to the witness stand.
Depositions may be used for the trial or for the hearing of a motion
or an interlocutory proceeding as provided in Section 4, Rule 23.
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(Jonathan Landoil International Co., Inc. vs. Sps Mangudadatu, GR
No. 155010, August 16, 2004).
When I take the deposition of somebody, my opponent has the
right to cross-examine the same witness. So practically, it’s a dress
rehearsal for the trial when I ask questions, my opponent can ask
questions also. The questioning of the witnesses is done the way it
is done during the trial. The witness of the opponent has to
undergo the same procedure in the rules of evidence. That is
Section 3:
Sec. 3. Examination and cross-examination. Examination and cross-
examination of deponents may proceed as permitted at the trial
under sections 3 to 18 of Rule 132. (3a, R24)
Q: Distinguish a deposition from an affidavit.
A: Affidavit is also a sworn statement of a witness but the
statement is taken ex-- parte (no cross--examination). But in
deposition there is cross--examination, there is a confrontation as if
he is already testifying in court.
Affidavits are not admissible in evidence except in cases governed
by the Rule on Summary Procedure or in ordinary cases subject to
cross-examination.
Depositions are intended as a means to compel disclosure of facts
resting in the knowledge of a party or other person, which are
relevant in a suit/proceeding.
Classification of Depositions
1. Depositions on oral examination and depisitions upon written
interrogatories;
2. depositions de bene esse - those taken for purposes of a pending
action (R 23); and
3. Depositions in perpetua rei memoriam - those taken to
perpetuate evidence for purposes of an anticipated action or
further proceedings in a case on appeal (R 24)
Section 1. Depositions pending action, when may be taken. By
leave of court after jurisdiction has been obtained over any
defendant or over property which is the subject of the action, or
without such leave after an answer has been served, the
testimony of any person, whether a party or not, may be taken, at
the instance of any party, by deposition upon oral examination or
written interrogatories. The attendance of witnesses may be
compelled by the use of a subpoena as provided in Rule 21.
Depositions shall be taken only in accordance with these Rules.
The deposition of a person confined in prison may be taken only
by leave of court on such terms as the court prescribes. (1a, R24)
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Deposition-taking under Section 1 presupposes that there is a
pending civil case, thus, the title is depositions pending action.
There is an existing civil case and I would like to take the deposition
of certain people.
Q: When there is a pending action, is it necessary that leave of
court or permission should be sought for deposition to be allowed?
A: The rule is, it DEPENDS if there is already an answer or no
answer:
A. With leave of court
1. after jurisdiction has been obtained over any defendant or over
the property which is the subject of the action but before an
answer has been filed.
Reason: Leave of court is necessary because the issues are not yet
joined and the disputed facts are not yet clear.
2. Deposition of a person confined in prison.
B. Without leave of Court
After answer and deponent is not confined in prison.
In one case, petitioners contend that they have not yet served an
answer to respondents because the answers that they have filed
were made ex abundanti cautela. In other words, they do not
consider the answers they filed in court and served on respondents
as answers contemplated under the Rules of Court on the ground
that same were filed ex abundanti cautela. They contend that since
they had not yet filed an answer, any deposition must be made
with leave of court.
The court found the contention untenable and ruled:
“We find petitioners’ contention to be untenable. Ex abundanti
cautela means “out of abundant caution” or “to be on the safe
side”. An answer ex abundanti cautela does not make their answers
less an answer. A cursory look at the answers filed by petitioners
shows that they contain their respective defenses. An answer is a
pleading in which a defending party sets forth his defenses and the
failure to file one within the time allowed therefore may cause a
defending party to be declared in default. Thus, petitioners,
knowing fully well the effect of the non-filing of an answer, filed
their answers despite the pendency of their appeal with the Court
of Appeals on the denial of their motion to dismiss.” (Rosete v. Lim
GR No. 136051, June 8, 2006)
Q: Whose deposition can you take?
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A: The law says, you can take the testimony of any person whether
a party or not at the instance of any party.
EXAMPLE: I will file a case against Mr. A. Can I take the depositions
of his witnesses? Yes, including Mr. A’s deposition. I can also take
the deposition of my own witnesses, even my own deposition. At
least, before I die, nakuha na yung testimony ko. So I can take the
deposition of anybody in the world. That’s why the law says, “the
testimony of any person whether a party or not may be taken at the
instance of any party.” And of course, Mr. A can also do what I was
allowed to do.
Q: When you take deposition of this person, what do you call him?
A: The accurate term is that, he is called ‘DEPONENT.’ Some people
call him witness.
Q: What are the modes of deposition taking?
A: Under the law, there are two (2) recognized modes:
1.) Deposition upon oral examination; and
2.) Deposition upon written interrogatories
The deposition upon oral examination is more popular because it is
just like how you question a witness in court: Questions and
answers, then it is recorded. And then later on, the other counsel
would ask his questions and answer. Deposition upon written
interrogatories should not be confused with Rule 25 because the
former is governed by Rule 23. Although they use the same words.
Now, as we shall see, there must be a deposition officer and under
the law, even a notary public is qualified to act as deposition officer
because he can administer oaths.
Deposition taking has a counterpart in criminal procedure. c.f. Rule
119, Sections 12,13 and 15.
Q: Suppose I would like to take the deposition of Ms. A before a
notary public whose office is located along San Pedro Street.
How can I force Ms. A to go to the office of that notary public? Can
I force her?
A: If Ms. A is in court, the court can force you by subpoena. But I
can also compel Ms. A to attend this questioning for the purpose of
deposition. Section 1 says, “the attendance of witnesses may be
compelled by the use of a subpoena as provided in Rule 21.”
Rule 21, Section 1. Subpoena and subpoena duces tecum.
Subpoena is a process directed to a person requiring him to
attend and to testify at the hearing or the trial of an action, or at
any investigation conducted by competent authority, or for the
taking of his deposition. It may also require him to bring with him
any books, documents, or other things under his control, in which
case it is called a subpoena duces tecum. (1a, R23)
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PROBLEM: Your case is in Davao but your witness is in Cebu. You
asked your witness to come here in Davao to help you and you are
even willing to shoulder her transportation, but she refuses.
Q: Can you ask the court in Davao to issue a subpoena compelling
such witness to come here and testify even if the distance is
more than 100 kilometers?
A: NO, because of Section 10 of Rule 21. The remedy is you go to
Cebu and get a deposition officer and take her deposition.
Q: How can I compel her to go to the office of the notary public in
Cebu for the purpose of the deposition?
A: You can get a subpoena from the Cebu court and that is allowed
under Rule 21, Section 2 [b] and under Rule 21, Section 5:
Rule 21, Sec. 2. By whom issued. The subpoena may be issued by:
xxxxx
b) the court of the place where the deposition is to be taken;
xxxxx
Sec. 5. Subpoena for depositions. Proof of service of a notice to
take a deposition, as provided in sections 15 and 25 of Rule 23,
shall constitute sufficient authorization for the issuance of
subpoenas for the persons named in said notice by the clerk of
the court of the place in which the deposition is to be taken. The
clerk shall not, however, issue a subpoena duces tecum to any
such person without an order of the court. (5a, R23)
In other words, I will send the notice to my opponent, “I am going
to take the deposition of my witness in Cebu.” And based on that
notice, I will go to Cebu and ask the clerk of court of the RTC of
Cebu to issue a subpoena based on the notice to take deposition on
the Davao case. And under the Rules, the Cebu RTC has to issue a
subpoena even if the case is not pending in that (Cebu) court
because this is only deposition. Kaya nga under Rule 21, Section 2
[b], a subpoena may be issued by the court of the place where the
deposition is to be taken.
There was an instance before, a Manila lawyer who wanted to take
the deposition of somebody in Davao. Then he applied for a
subpoena to require the deponent to appear before a notary public
here. At least, tama siya doon. Ang mistake niya, he applied for a
subpoena in the Manila court where the case is pending and the
judge there, maybe he did not read Rule 21, issued a subpoena
addressed to the person in Davao to appear before the notary
public in Davao and the witness did not appear. So the lawyer
realized na mali siya. So he had to do it all over again in Davao, not
in Manila. The subpoena has no more effect beyond 100
kilometers. It should be filed not where the case is pending but at
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the court of the place where the deposition is to be taken. In other
words, the error was corrected, but can you imagine the waste of
time and effort.
Generally, depositions are taken at the start of the case before the
trial. But in the case of
DASMARIÑAS GARMENTS, INC. vs. REYES
225 SCRA 622 [1993]
ISSUE: Whether or not deposition taking is only allowed before the
action comes to trial. Can you still resort to deposition under Rule
23 when the trial is already ongoing or it is only at the pre-trial?
HELD: “Depositions may be taken at any time after the institution
of any action, whenever necessary or convenient. There is no rule
that limits deposition-taking only to the period of pre-trial or
before it; no prohibition against the taking of depositions after pre-
trial. Indeed, the law authorizes the taking of depositions of
witnesses before or after an appeal is taken from the judgment of a
Regional Trial Court to perpetuate their testimony for use in the
event of further proceedings in the said court and EVEN during the
process of execution of a final and executory judgment.”
Meaning, deposition taking is even allowed as part of the execution
where the trial is already terminated. This is called with another
name in Rule 39 on execution, satisfaction or effects of judgments.
(c.f. Rule 39, Sections 36, 37 and 38)
What can be the subject matter of deposition taking? Section 2:
Sec. 2. Scope of examination. Unless otherwise ordered by the
court as provided by section 16 or 18 of this Rule, the deponent
may be examined regarding any matter, not privileged, which is
relevant to the subject of the pending action, whether relating to
the claim or defense of any other party, including the existence,
description, nature, custody, condition, and location of any books,
documents, or other tangible things and the identity and location
of persons having knowledge of relevant facts. (2, R24)
Q: When you take the deposition of a deponent what can you ask?
What matters may be inquired into?
A: The law says, the deponent may be examined regarding any
matter whether related to the claim or defense of a party.
Example: Suppose if there is a case between me and somebody and
I suspect Pedro knows something about the facts but I am
not sure, so I will take his deposition. I will start asking questions to
Pedro wherein practically I’m groping in the dark. I just start asking
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questions left and right hoping that, I may stumble into something
about the case.
Q: Is that allowed? Pataka lang ba ang style of asking questions.
A: YES, it is allowed. Precisely, the mode of discovery is a fishing
expedition in the hope that you will discover something in the
course of a questioning. If I already know a fact, there is nothing to
discover. It is very broad that I may discover something in the
course of questioning. You can ask the deponent any matter
related to the claim or defense but there are limitations.
LIMITATIONS IN DEPOSITION TAKING
Q: What are the limitations or prohibitions in deposition taking?
A: The following are the limitations in Deposition Taking:
1.) The matter inquired into is not privileged either under
the rules on evidence or special law;
2.) The matter inquired into is relevant to the subject of the
pending action;
3.) The court may issue orders to protect the parties and its
deponents under Sections 16 or 18.
FIRST LIMITATION: That the matter inquired into is not privileged.
There are things which you cannot compel a person to reveal in
court. EXAMPLE: You cannot compel the wife to reveal in court
what her husband told her in confidence during their marriage.
That is known as the marital privileged communication rule (Rule
130, Section 24 [a]).
Other privileged communications: Lawyer-Client communication
rule (Rule 130, Section 24 [b]); Physician-Patient communication
rule (Rule 130, Section 24 [c]); Priest-Penitent communication rule
(Rule 130, Section 24 [d]). Or, business trade secrets such as the
formula of your product.
So, if you cannot ask that in a trial, you cannot also ask that in a
deposition taking.
SECOND LIMITATION: The matter inquired into is relevant to the
pending action.
While deposition taking authorizes a fishing expedition, you are not
allowed however, to go beyond the topic. EXAMPLE: You will ask
the witness about an incident which happened and she was
supposed to be there. “Where were you on this date?” “I was
there.” “Who was with you?” “I was with my boyfriend.” “When did
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he become your boyfriend?” or “How often do you date each
other?” or “What’s his favorite color? Malaki ba ang tiyan niya?”
My golly! Those questions are irrelevant. Anong pakialam niyan sa
topic? Walang connection ba!
THIRD LIMITATION: The court may issue orders to protect the
parties and
its deponents under Sections 16 or 18 of this Rule.
While it is true that leave of court is not necessary anymore, you
have to remember that it is related to a pending case and the court
has control over the case. That is why, while leave of court is not
necessary, any party who is aggrieved can go to court and
complain. And the court is authorized to issue orders to protect the
parties and its deponents under Sections 16 or 18 of this Rule.
Scope of examination in deposition
1. matter which is relevant to the subject of the pending action;
2. not privileged; and
3. not restricted by a protective order (Secs. 16 and 18)
Q: In what proceedings can a deposition be used?
A: It can be used later during the trial of the case, or in supporting
or opposing a motion. A good example is the remedy of summary
judgment under Rule 35. Under this Rule, a party can file a motion
for summary judgment to demonstrate that the party has no cause
of action. In that sense, I will support my motions with affidavit,
depositions or documents.
USE OF DEPOSITIONS
Sec. 4. Use of depositions. At the trial or upon the hearing of a
motion or an interlocutory proceeding, any part or all of a
deposition, so far as admissible under the rules of evidence, may
be used against any party who was present or represented at the
taking of the deposition or who had due notice thereof, in
accordance with any one of the following provisions:
xxxxx
Where the witness is available to testify and the situation is not
one of those excepted under Section 4, his deposition is
inadmissible in evidence and he should be made to testify.
Q: In what proceedings may a deposition be used?
A: The following:
1.) At the trial;
2.) Upon a hearing of a motion; or
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3.) Upon a hearing of interlocutory proceeding (e.g.
issuance of a writ of preliminary injunction or
attachment)
Q: Against whom may a deposition be used?
A: Against the following:
1.) against any party who was present; or
2.) against a party who was represented at the taking of the
deposition; or
3.) against a party who did not appear or represented but
was duly notified of the scheduled deposition taking.
So, the procedure for deposition taking is first, to notify the other
party of the date, place and time of the deposition taking of a
person. The other party is free to go there and participate. So if a
person appeared and participated, he is bound by the deposition. If
he fails to appear but sent a representative, the same effect – the
person is bound. Suppose a person received the notice and never
bothered to go or participate, he is still bound because the law
says, for as long as you are notified, you are bound.
So whether you will come or not, you are bound by the deposition
taking. In this case, you might as well show up.
Summary of use:
1. Deponent is any person - - - can be used by any party to
contradict or impeach the testimony of said deponent;
2. deponent is a party or any one who at the time of the deposition
was an officer, director or managing agent of a public or private
corporation, partnership, or association which is a party - - - can be
used by any party for any purpose;
3. deponent is a witness, whether or not a party - - - can be used by
any party for any purpose under any of the following 5 instances:
a. the witness is dead;
b. the witness resides more than 100 kilometers from the place of
trial or hearing, or is out of the Philippines. Unless it appears that
his absence was procured by the party offering the deposition;
c. the witness is unable to testify because of age, sickness,
infirmity, or imprisonment;
d. the party offering the deposition has been unable to procure the
attendance of the witness by subpoena; or
e. upon application and notice, that such exceptional circumstances
exist as to make it desirable in the interest of justice.
Note: Certiorari will not lie against an order admitting or rejecting a
deposition in evidence. The remedy is an appeal from the
judgment.
The reason is because it is merely an error of law not grave abuse
of discretion.
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(a) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of deponent as a
witness;
EXAMPLE: I will take the deposition of Mr. Malaki as a possible
witness. After listening to his testimony, his testimony is in my
favor. I tell the court during trial that my next witness is Mr. Malaki
but since he is busy and his deposition is taken beforehand, I will
no longer present him but instead I will present as evidence his
deposition to take the place of his oral testimony in court.
Q: Is that allowed? Can a deposition substitute for his oral
testimony?
A: NO, a deposition can only be used for the purpose of
contradicting or impeaching the testimony of deponent as a
witness. It does not exempt the witness from testifying in court. It
is only a means of knowing what the witness will testify.
When you take the deposition of a witness, you are already assured
that this will be his story. If I asked you the same question in court,
naturally he will have the same answer. So there are no more
surprises. If I am asking a question identical to my deposition, I
expect the answer to be identical during the trial.
Q: Suppose the witness during the trial will reverse his testimony.
His testimony in the deposition is favorable to me but during the
trial, pabor naman sa kalaban.
A: I can now use his deposition to destroy him. I will impeach him
by showing that the witness is not reliable. To IMPEACH the
testimony of a witness is to destroy his credibility. I will offer in
evidence the deposition for impeachment purposes. This is known
as PRIOR INCONSISTENT STATEMENT under the rules on evidence.
They cannot change story during the trial because I can impeach
them.
Therefore, a deposition is not a substitute for the testimony of the
witness in court. You still have to present him in court. He has to
testify all over again but at least you already have a guideline. So, if
he deviates from the deposition, you can impeach him using the
deposition taken under oath earlier.
(b) The deposition of a party or of any one who at the time of
taking the deposition was an officer, director, or managing agent
of a public or private corporation, partnership, or association
which is a party may be used by an adverse party for any purpose;
Q: What is the difference between paragraphs [a] and [b]?
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A: The following:
1.) In paragraph [a], it is the deposition of a WITNESS and
not a party, while
In paragraph [b], it is the deposition of the PARTY himself.
2.) In paragraph [a], the deposition of witness can be used
only for contradicting or impeaching the testimony of
deponent as a witness, while
In paragraph [b], the deposition of a party can be used for any
purpose. So it is broader than the first.
ILLUSTRATION: Suppose I will take the deposition of my opponent
(adverse party) and I have already a record of his testimony.
During the trial if he testifies contrary to the deposition, I could use
it to impeach him. But suppose the deposition is in my favor, I
could present the deposition as an admission in my favor. I could
use it as evidence against my opponent. Therefore, I can use it as
evidence or I can use it as a tool to impeach or contradict the other
party.
In other words, the deposition of a mere WITNESS is for strict
purpose (for impeachment only) and the deposition of an ADVERSE
PARTY is for any purposes because I can use it to impeach or I can
use it as evidence. And if a witness say something in my favor, I
cannot use it as evidence. I have to ask the witness to repeat his
statement in court. But if it is a party, I can use it as evidence
already under the rule on admission of evidence that the act or
declaration of a PARTY maybe used as evidence against him (Rule
130, Section 26). So, that is the difference between deposition of a
party and a witness.
Q: Suppose the adverse party is a corporation
A: Under paragraph [b], you can take the deposition of any of its
officers, directors, or managing agent of the corporation.
(c) The deposition of a witness, whether or not a party, may be
used by any party for any purpose if the court finds: (1) that the
witness is dead; or (2) that the witness resides at a distance more
than one hundred (100) kilometers from the place of trial or
hearing, or is out of the Philippines, unless it appears that his
absence was procured by the party offering the deposition; or (3)
that the witness is unable to attend or testify because of age,
sickness, infirmity, or imprisonment; or (4) that the party offering
the deposition has been unable to procure the attendance of the
witness by subpoena; or (5) upon application and notice, that
such exceptional circumstances exist as to make it desirable, in
the interest of justice and with due regard to the importance of
presenting the testimony of witnesses orally in open court, to
allow the deposition to be used; and
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Paragraph [c] is an exception to paragraph [a]. Paragraph [a]
applies only to a deposition of a witness for contradicting or
impeaching his testimony. It is only in paragraph [b] which applies
the use of deposition for any purpose but it refers to the deposition
of the adverse party.
Now, paragraph [c] allows the use of the deposition of a WITNESS
for any purpose.
DEATH
Q: I will take the deposition of Juan who is my witness. During the
trial, my next witness is Juan. Do I have to present Juan or only his
testimony in the deposition as evidence?
A: I have to present my witness Juan because under paragraph [a],
the deposition is only good for impeachment purposes but not a
replacement for his oral testimony.
Q: Suppose, when I’m about to present Juan during the trial, a day
before that he died. So, I have no more witness. Can I now present
his testimony in the deposition as evidence?
A: YES. Under the law, his deposition will take the place of his oral
testimony because he is dead. However, if he is alive, apply
paragraph [a] – you cannot substitute his deposition to his oral
testimony.
Now, it is true that when you take the deposition of your own
witness, you are supplying the other party a means to impeach the
testimony of your witness. But if you look at paragraph [c], it is also
important to take the deposition of your witnesses. The purpose is
just in case your witness will die before he can testify in court. At
least, kung nakuha mo na ang deposition niya earlier, masuwerte
ka.
THE WITNESS RESIDES AT A DISTANCE MORE THAN ONE HUNDRED
(100) KILOMETERS FROM THE PLACE OF TRIAL OR HEARING, OR IS
OUT OF THE PHILIPPINES
EXAMPLE: My witness is from Cebu. Under the rule on subpoena, I
cannot compel him to come to Davao and testify in a case because
of the 100-kilometer rule. The remedy is to go to Cebu and take his
deposition there. When the case in Davao is called, I will tell the
court that my next witness is from Cebu and the distance from
Davao is more than 100 kilometers. So I have no choice but to take
his deposition there. In this case, I can offer as evidence his
deposition to take the place of his oral testimony. And that is
allowed as exception to paragraph [a].
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And if your witness is leaving for abroad, you might as well take the
deposition before it is too late, or you might end up without any
witness. That is the advantage of paragraph [c].
WITNESS NOT FOUND
So, if I am unable to procure the attendance of my witness by
subpoena means that the witness can no longer be found. His
whereabouts is already unknown but I was able to take his
deposition earlier.
(d) If only part of a deposition is offered in evidence by a party,
the adverse party may require him to introduce all of it which is
relevant to the part introduced, and any party may introduce any
other parts.
ILLUSTRATION: Suppose I will take the deposition of Juan dela Cruz.
The first part is in my favor but when he was cross-examined by the
other party, he clarified his answers and turned out that his original
answers were not really in my favor.
So there are two parts of the deposition: PART ONE, in the general
questions, the answers seem to be in my favor; PART TWO, when
the questions are specific, it turned out that it was not in my favor.
So if I am the lawyer what I will offer is the part one as my evidence
because it is in favor of my client. The other party will present the
other part.
In evidence, the party is not obliged to offer in evidence documents
which are against his cause. It is now the job of the other lawyer to
offer the other part thereof (c.f. Section 17, Rule 132). So if this is
so, the picture created will only be half of the whole picture.
Q: Is this unethical as it is suppressing the truth?
A: No, I am not suppressing the truth. Lawyers are not allowed to
lie. Nowhere in the Legal Ethics is it being espoused that lawyers
are told to lie. In fact, a lawyer must be honest and true for the
administration of justice. It is the lawyer of the other side who has
the absolute right to complete the picture by offering the other
half. I am not under obligation to help the other side. A lawyer has
no obligation to present everything. He is only under the obligation
to support the interest of my client. What is unethical is when you
present something against the interest of your client.
Q: Is it not twisting the truth?
A: NO. Twisting the truth is changing the facts. I am not changing
the facts of the story. I am only presenting one side of the story.
But definitely the other party is not precluded from testifying to
present the other half of the story. If the other party fails to
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present the other half of the story, that is their problem. Do not
blame me.
Sec. 5. Effect of substitution of parties. Substitution of parties does
not affect the right to use depositions previously taken; and,
when an action has been dismissed and another action involving
the same subject is afterward brought between the same parties
or their representatives or successors in interest, all depositions
lawfully taken and duly filed in the former action may be used in
the latter as if originally taken therefor. (5, R24)
Q: Plaintiff filed a case against defendant. Depositions were taken.
Later, one of the parties died and there was substitution. Is there a
need of taking depositions again? Will the deposition already taken
be also applicable to the same case although the parties are now
different?
A: YES. The substitution of parties does not affect the right to use
depositions previously taken.
Q: Jolina files a case against Maya and depositions were taken.
Later, the case is dismissed without prejudice. Jolina re-filed the
case. Is it necessary for depositions to be taken all over again?
A: NO NEED. The depositions taken in the dismissed case will still
apply to the new case. There is no need of repeating the whole
process.
Sec. 6. Objections to admissibility. Subject to the provisions of
section 29 of this Rule, objection may be made at the trial or
hearing to receiving in evidence any deposition or part thereof for
any reason which would require the exclusion of the evidence if
the witness were then present and testifying. (6, R24)
Q: Can you object to the evidence which is being offered during the
deposition taking?
A: YES, however the deposition officer cannot rule but the
objection is recorded. It is the judge who will rule on the objection
later during the trial.
Sec. 7. Effect of taking depositions. A party shall not be deemed to
make a person his own witness for any purpose by taking his
deposition. (7, R24)
We know that deposition taking is a fishing expedition. If after
taking a witness deposition, he knows nothing, then he is useless as
a witness to me. You are not my witness.
If after taking your deposition, it turns out that everything you say
is against me, am I bound by your testimony? NO. In fact, it is the
other party who will use you as his witness. But definitely, you are
not my witness.
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General rule:
A party shall not be deemed to make a person his own witness for
any purpose by taking his deposition because depositions are taken
for discovery and not for use as evidence.
Exception:
If a party offers the deposition in evidence, then he is deemed to
have made the deponent his witness (Sec. 8)
Exception to the exception
Unless the deposition is that of an opposing party or the deposition
is used to impeach or contradict the deponent (sec. 8).
Sec. 8. Effect of using depositions. The introduction in evidence of
the deposition or any part thereof for any purpose other than
that of contradicting or impeaching the deponent makes the
deponent the witness of the party introducing the deposition, but
this shall not apply to the use by an adverse party of a deposition
as described in paragraph (b) of section 4 of this Rule. (8, R24)
Sec. 9. Rebutting deposition. At the trial or hearing, any party may
rebut any relevant evidence contained in a deposition whether
introduced by him or by any other party. (9, R24)
It is just like a witness in court. If a witness says something in court,
you can always prove that that is not true. If it is a deposition, the
same thing – you can always rebut the truth of what he said in his
deposition.
BEFORE WHOM DEPOSITIONS ARE TAKEN
If the deposition is to be taken WITHIN THE PHILIPPINES, who are
authorized to act as deposition officer? Section 10:
Sec. 10. Persons before whom depositions may be taken within the
Philippines. Within the Philippines, depositions may be taken
before any judge, notary public, or the person referred to in
section 14 hereof. (10a, R24)
Q: If the deposition taking is in the Philippines, who are these
persons before whom depositions are taken?
A: The following:
1.) ANY JUDGE. So, it is not necessary the judge acting on
the case. In fact, you can request a judge in Manila to be
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the deposition officer and he will not be the one to
decide. He is only the deposition officer;
2.) NOTARY PUBLIC. A notary public is authorized by law to
administer oath. Take note that not all lawyers are
notary public. To be a notary public, you have to apply
for commission in the court of the place where you are
practicing. If you are a notary public for Davao City, you
cannot be a notary public in any other place. And usually,
a commission for notary public is only good for 2 years.
After 2 years, you have to re-apply.
3.) PERSON REFERRED TO IN SECTION 14:
Sec. 14. Stipulations regarding taking of depositions. If the parties
so stipulate in writing, depositions may be taken before any
person authorized to administer oaths, at any time or place, in
accordance with these Rules, and when so taken may be used like
other depositions. (24a, R24)
So, the parties may stipulate in writing that the deposition officer
may not be a judge or a notary public. It can be other person who is
authorized to administer oath such as prosecutors, clerk of court
who is a lawyer, labor arbiters, etc. Anyway, they are also
authorized to administer oaths.
If the deposition is to be taken ABROAD, who are authorized to act
as deposition officer? Section 11:
Sec. 11. Persons before whom depositions may be taken in foreign
countries. In a foreign state or country, depositions may be taken
(a) on notice before a secretary of embassy or legation, consul
general, consul, vice-consul, or consular agent of the Republic of
the Philippines; (b) before such person or officer as may be
appointed by commission or under letters rogatory; or (c) the
person referred to in section 14 hereof. (11a, R24)
The amendment here again is the persons referred to under
Section 14.
So, a secretary of the Philippine embassy or consulate abroad is
authorized to act as deposition officer, as well as the consul
general, vice-consul, although on a SC circular, if the judge will
authorize the taking of deposition abroad, because this time leave
of court is required, you course it to the Department of Foreign
Affairs. The parties are not supposed to communicate directly to
the Philippine Embassy.
Q: How about in places where we do not have embassy?
A: Those with country where we do not have diplomatic relations,
you have to avail of [b]. So in this case, the person who is authorize
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to take the deposition may be the one who is authorized by
commission, or if not by commission, by letters rogatory.
What do you mean by commission or a letters rogatory? Section
12:
Sec. 12. Commission or letters rogatory. A commission or letters
rogatory shall be issued only when necessary or convenient, on
application and notice, and on such terms and with such direction
as are just and appropriate. Officers may be designated in notices
or commissions either by name or descriptive title and letters
rogatory may be addressed to the appropriate judicial authority
in the foreign country. (12a, R24)
By COMMISSION, somebody other than Philippine consul… like in
Taiwan, we have Philippine Trade Department in Taiwan because
of our trade relations. The court will issue a commission to the
head of the trade mission there to act as deposition officer. Or any
other person appointed by the judge by court order.
A COMMISSION may be defined as an instrument issued by a court
of justice, or other competent tribunal, to authorize a person to
take depositions, or do any other act by authority of such court or
tribunal.
So, suppose I would like to take the deposition of somebody who is
staying in Afghanistan where we have no consulate but I know of a
Filipino lawyer who resides there. I will request the court that this
Filipino lawyer abroad be authorized to take the deposition of a
person there. If the court agrees, it will issue what is known as a
commission.
But suppose none at all, the court will send letters rogatory
addressed to the court of a foreign country.
Q: Define letters rogatory.
A: LETTERS ROGATORY is an instrument whereby the foreign court
is informed of the pendency of the case and the name of the
foreign witnesses, and is requested to cause their depositions to be
taken in due course of law, for the furtherance of justice, with an
offer on the party of the court making the request, to do the like
for the other, in a similar case. (Ballentine’s Law Dict., 2nd Ed., p.
744)
It is an instrument sent in the name and by the authority of a judge
or court to another, requesting the latter to cause to be examined,
upon interrogatories filed in a case pending before the former, a
witness who is within the jurisdiction of the judge or court to
whom such letters are addressed. (Feria, 2001, p. 518)
EXAMPLE: The case is in Davao. W lives in North Korea. P should file
a motion in court for the court to issue a letters rogatory. The judge
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will make a formal communication to the court in Pyongyang to
please take W’s deposition with the following request: to mail back
the answer and offer to return the favor. If the request is ignored,
there is nothing that we can do. But normally, they comply.
So, letters rogatory is a request to the appropriate foreign judicial
authority to take the deposition of a witness who is in their
jurisdiction and please send us a copy and we assure you in the
future, if you have the same problem, we will reciprocate.
That is international law. Deposition can be understood by the
officer in other country because it is internationally known. If the
officer in the foreign country will not do it, we have no choice
because it is only a request.
Distinctions between commission and letters rogatory
1. A comission is issued to a non-judicial foreign officer who will
directly take the testimony while letters are issued to the
appropriate judicial officer of the foreign country who will direct
somebody in said foreign country to take down testimony.
2. The applicable rules of procedure for commission are those of
the requesting court while for letters, are those of the foreign
country requested to act;
3. Commission is resorted to if permission of the foreign country is
given while the latter is resorted to if the execution of the
commission is refused in the foreign country;
4. Leave of court is not necessary for commission but necessary for
letters.
The SC defined again commission and letters rogatory and
distinguished one from the other in the case of
DASMARIÑAS GARMENTS, INC. vs. REYES
225 SCRA 622 [1993]
ISSUE #1: Distinguish a commission from letters rogatory.
HELD: “A COMMISSION may be defined as an instrument issued by
a court of justice, or other competent tribunal, to authorize a
person to take depositions, or do any other act by authority of such
court or tribunal.”
“LETTERS ROGATORY, on the other hand, may be defined as an
instrument sent in the name and by the authority of a judge or
court to another, requesting the latter to cause to be examined,
upon interrogatories filed in a cause pending before the former, a
witness who is within the jurisdiction of the judge or court to
whom such letters are addressed.”
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“A COMMISSION is addressed to officers designated either by
name or descriptive title, while LETTERS ROGATORY are addressed
to some appropriate judicial authority in the foreign state.”
“Noteworthy in this connection is the indication in the Rules that
letters rogatory may be applied for and issued only after a
commission has been ‘returned unexecuted’ as is apparent from
Form 21 of the Judicial Standard Forms appended to the (1964)
Rules of Court.” So as a matter of practice, the court should first
resort to commission. You must allege that the commission has
been returned unexecuted before resorting to letters rogatory.
ISSUE #2: Petitioner however prevent the carrying out of the
commission on the ground that the deposition-taking will take
place in a foreign jurisdiction not recognized by the Philippines in
view of its one-China policy. Can a deposition be taken in Taiwan
where the Philippines has no diplomatic relations because of the
one-Chine policy?
HELD: YES. What matters is that the deposition is taken before a
Philippine official acting by authority of the Philippine Department
of Foreign Affairs and in virtue of a commission duly issued by the
Philippine Court.
Sec. 13. Disqualification by interest. No deposition shall be taken
before a person who is a relative within the sixth degree of
consanguinity or affinity, or employee or counsel of any of the
parties; or who is a relative within the same degree, or employee
of such counsel; or who is financially interested in the action.
(13a, R24)
You are disqualified to act as deposition officer if you are related to
any of the parties or the lawyer. You get somebody who is not
related.
Sec. 15. Deposition upon oral examination; notice; time and place.
A party desiring to take the deposition of any person upon oral
examination shall give reasonable notice in writing to every other
party to the action. The notice shall state the time and place for
taking the deposition and the name and address of each person to
be examined, if known, and if the name is not known, a general
description sufficient to identify him or the particular class or
group to which he belongs. On motion of any party upon whom
the notice is served, the court may for cause shown enlarge or
shorten the time. (15, R24)
There are 2 types of deposition taking: (1) deposition upon oral
examination and (2) deposition upon written interrogatories. The
former is governed by Section 15 which is the most popular:
Question-answer and everything is recorded.
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Take note that before deposition is taken, there should be notice to
the adverse party. The notice shall state the time and place for
taking the deposition and the name and address of each person to
be examined.
The last sentence, “On motion of any party upon whom the noticed
is served, the court may for cause shown enlarge or shorten the
time.” Suppose you will send me a notice that you are going to
take the deposition of a witness from February 1 to 20 morning and
afternoon. Twenty days is too much. I can go to court and
complain. That should be reduced. The court may come in and
enlarge or shorten the time. The court may also do this even if
leave of court is not required.
Sec. 16. Orders for the protection of parties and deponents. After
notice is served for taking a deposition by oral examination, upon
motion seasonably made by any party or by the person to be
examined and for good cause shown, the court in which the
action is pending may make an order that the deposition shall not
be taken, or that it may be taken only at some designated place
other than that stated in the notice, or that it may be taken only
on written interrogatories, or that certain matters shall not be
inquired into, or that the scope of the examination shall be held
with no one present except the parties to the action and their
officers or counsel, or that after being sealed the deposition shall
be opened only by order of the court, or that secret processes,
developments, or research need not be disclosed, or that the
parties shall simultaneously file specified documents or
information enclosed in sealed envelopes to be opened as
directed by the court; or the court may make any other order
which justice requires to protect the party or witness from
annoyance, embarrassment, or oppression. (16a, R24)
While it is true that leave of court is not necessary anymore, you
have to remember that it is related to a pending case and the court
has control over the case. That is why, while leave of court is not
necessary, any party who is aggrieved can go to court and
complain. Deposition is purely your concern provided nobody
would come here and complain. That is one of the limitations of
deposition taking.
Q: What orders may court issue for the protection of parties and
deponents; when may orders be issued; what court has power to
issue the orders?
A: After notice is served for taking a deposition by oral
examination, upon motion seasonably made by any party or by the
person to be examined and for good cause shown, the court in
which the action is pending may issue the following orders:
1.) That the deposition shall not be taken;
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2.) That it may be taken only at some designated place
other than that stated in the notice;
3.) That it may be taken only on written interrogatories;
4.) That certain matters shall not be inquired into;
5.) That the scope of the examination shall be held with no
one present except the parties to the action and their
officers or counsel;
6.) That after being sealed the deposition shall be opened
only by order of the court;
7.) That secret processes, developments, or research need
not be disclosed;
8.) That the parties shall simultaneously file specified
documents or information enclosed in sealed envelopes
to be opened as directed by the court;
9.) The court may make any other order which justice
requires to protect the party or witness from annoyance,
embarrassment, or oppression. (Section 16)
Sec. 18. Motion to terminate or limit examination. At any time
during the taking of the deposition, on motion or petition of any
party or of the deponent and upon a showing that the
examination is being conducted in bad faith or in such manner as
unreasonably to annoy, embarrass, or oppress the deponent or
party, the court in which the action is pending or the Regional
Trial Court of the place where the deposition is being taken may
order the officer conducting the examination to cease forthwith
from taking the deposition, or may limit the scope and manner of
the taking of the deposition, as provided in section 16 of this Rule.
If the order made terminates the examination, it shall be resumed
thereafter only upon the order of the court in which the action is
pending. Upon demand of the objecting party or deponent, the
taking of the deposition shall be suspended for the time
necessary to make a notice for an order. In granting or refusing
such order, the court may impose upon either party or upon the
witness the requirement to pay such costs or expenses as the
court may deem reasonable. (18a, R24)
Section 16 and 18 are similar. They both talk about the power of
the court to control the deposition taking. Section 16 is about
protective orders BEFORE deposition taking. Section 18 talks about
protective orders DURING the deposition taking where the court
may stop or limit the deposition taking.
A motion to terminate or limit examination may be filed:
1. any time during the taking of the deposition;
2. on motion or petition of any party or of the deponent; and
3. upon showing that the examination is conducted in:
a. bad faith;
b. in such manner as unreasonably to annoy, embarrass, or oppress
the deponent or party.
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When the constitutional privilege against self-incrimination is
invoked by the deponent or his counsel, the trial court may stop
the examination (Isabela Sugar Co. vs. Macadaeg GR No. L-5924,
Oct. 28, 1953)
Protection Order (Section 16) and Motion to Terminate or Limit
Examination (Section 18)
1. The first provides protection to the party or witness before the
taking of the deposition, while the latter provides such protection
during the taking of the testimony;
2. Motion for issuance of the first is filed with the court in which
the action is pending while the latter motion or petition is filed in
the court in which the action is pending or the RTC of the place
where the deposition is being taken.
Sec. 17. Record of examination; oath; objections. The officer before
whom the deposition is to be taken shall put the witness on oath
and shall personally, or by some one acting under his direction
and in his presence, record the testimony of the witness. The
testimony shall be taken stenographically unless the parties agree
otherwise. All objections made at the time of the examination to
the qualifications of the officer taking the deposition, or to the
manner of taking it, or to the evidence presented, or to the
conduct of any party, and any other objection to the proceedings,
shall be noted by the officer upon the deposition. Evidence
objected to shall be taken subject to the objections. In lieu of
participating in the oral examination, parties served with notice
of taking a deposition may transmit written interrogatories to the
officers, who shall propound them to the witness and record the
answers verbatim. (17, R24)
Q: How is deposition in oral examination taken?
A: It must be under oath. The testimony will be taken by the
stenographer. And objections must be recorded. Evidence objected
to shall be taken subject to the objections.
Q: Can the deposition officer make a ruling on the objection/s?
A: NO. He cannot. But the objection will be noted and the
deponent must answer. Later on, if that deposition is offered as
evidence in court, the court will now rule on the objection. If the
objection is overruled, the answer as recorded remains. If the
objection is sustained, the answer as recorded is erased as if it was
never answered. That is the meaning of “evidence objected to shall
be taken subject to the objections.”
So, the deposition officer cannot make a ruling on the objection. It
is only the judge of the court where the case is pending who will
make the ruling on it.
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Take note that answers to depositions not objected to cannot be
objected to in court during the trial, UNLESS the objection is based
on a new ground which only come up after the deposition.
Sec. 19. Submission to witness; changes; signing. When the
testimony is fully transcribed, the deposition shall be submitted
to the witness for examination and shall be read to or by him,
unless such examination and reading are waived by the witness
and by the parties. Any changes in form or substance which the
witness desires to make shall be entered upon the deposition by
the officer with a statement of the reasons given by the witness
for making them. The deposition shall then be signed by the
witness, unless the parties by stipulation waive the signing or the
witness is ill or cannot be found or refuses to sign. If the
deposition is not signed by the witness, the officer shall sign it
and state on the record the fact of the waiver or of the illness or
absence of the witness or the fact of the refusal to sign together
with the reason given therefor, if any, and the deposition may
then be used as fully as though signed, unless on a motion to
suppress under section 29 (f) of this Rule, the court holds that the
reasons given for the refusal to sign require rejection of the
deposition in whole or in part. (19a, R24)
So after the deposition of the deponent is taken, the deposition
officer shall submit the deposition to the deponent for
examination. He may change his answers but he must state the
reason for the change. And he signs it, unless the parties by
stipulation waive the signing, or the witness is ill, or cannot be
found or refuses to sign. In the latter cases, the deposition will be
signed by the deposition officer.
Sec. 20. Certification and filing by officer. The officer shall certify
on the deposition that the witness was duly sworn to by him and
that the deposition is a true record of the testimony given by the
witness. He shall then securely seal the deposition in an envelope
indorsed with the title of the action and marked "Deposition of
(here insert the name of witness)" and shall promptly file it with
the court in which the action is pending or send it by registered
mail to the clerk thereof for filing. (20, R24)
Sec. 21. Notice of filing. The officer taking the deposition shall give
prompt notice of its filing to all the parties. (21, R24)
Sec. 22. Furnishing copies. Upon payment of reasonable charges
therefor, the officer shall furnish a copy of the deposition to any
party or to the deponent. (22, R24)
Any party can ask for a copy of the deposition upon payment of
reasonable charges therefor.
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Sec. 23. Failure to attend of party giving notice. If the party giving
the notice of the taking of a deposition fails to attend and
proceed therewith and another attends in person or by counsel
pursuant to the notice, the court may order the party giving the
notice to pay such other party the amount of the reasonable
expenses incurred by him and his counsel in so attending,
including reasonable attorney’s fees. (23a, R24)
Suppose the opposing counsel is from Manila was notified of the
schedule of the taking of a deposition of a witness in Davao. And he
came over. But the deposition did not proceed because the party
sending the notice did not show up. So he caused the other party a
lot of inconvenience. The Manila lawyer can file a motion in court
to ask for reimbursement of all his expenses in this case.
Sec. 24. Failure of party giving notice to serve subpoena. If the
party giving the notice of the taking of a deposition of a witness
fails to serve a subpoena upon him and the witness because of
such failure does not attend, and if another party attends in
person or by counsel because he expects the deposition of that
witness to be taken, the court may order the party giving the
notice to pay to such other party the amount of the reasonable
expenses incurred by him and his counsel in so attending,
including reasonable attorney’s fees. (24a, R24)
Suppose the opposing counsel is from Manila was notified of the
schedule of the taking of a deposition of a witness in Davao. And he
came over. The party sending the notice is also present. But this
time it is the witness who is absent because the party sending the
notice forgot to have the witness subpoenaed. Again, the Manila
lawyer can file a motion in court to ask for reimbursement of all his
expenses.
Sec. 25. Deposition upon written interrogatories; service of notice
and of interrogatories. A party desiring to take the deposition of
any person upon written interrogatories shall serve them upon
every other party with a notice stating the name and address of
the person who is to answer them and the name or descriptive
title and address of the officer before whom the deposition is to
be taken. Within ten (10) days thereafter, a party so served may
serve cross-interrogatories upon the party proposing to take the
deposition. Within five (5) days thereafter, the latter may serve
re-direct interrogatories upon a party who has served cross-
interrogatories. Within three (3) days after being served with re-
direct interrogatories, a party may serve recross-interrogatories
upon the party proposing to take the deposition. (25, R24)
The difference between a deposition upon oral examination and
written interrogatories is that in oral examination, the questions
and the answers are oral.
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In deposition upon written interrogatories, the questions are
prepared already in advance and that is direct interrogatories. And
then they furnish you a copy and after receiving it, you may also,
within 10 days, prepare your questions or cross-interrogatories and
you also furnish them copies of it. And based on that, they can ask
further questions. If they are now sufficient, the deposition officer
shall compound the question one by one but every question
requires an answer.
Practically, there is no personal confrontation of the witness. If
your witness is abroad, it is very expensive for you to go there and
conduct an oral examination. So, the practical means is only
deposition upon written interrogatories.
Sec. 26. Officers to take responses and prepare record. A copy of
the notice and copies of all interrogatories served shall be
delivered by the party taking the deposition to the officer
designated in the notice, who shall proceed promptly, in the
manner provided by sections 17, 19 and 20 of this Rule, to take
the testimony of the witness in response to the interrogatories
and to prepare, certify, and file or mail the deposition, attaching
thereto the copy of the notice and the interrogatories received by
him. (26, R24)
Sec. 27. Notice of filing and furnishing copies. When a deposition
upon interrogatories is filed, the officer taking it shall promptly
give notice thereof to all the parties, and may furnish copies to
them or to the deponent upon payment of reasonable charges
therefor. (27, R24)
Sec. 28. Orders for the protection of parties and deponents. After
the service of the interrogatories and prior to the taking of the
testimony of the deponent, the court in which the action is
pending, on motion promptly made by a party or a deponent, and
for good cause shown, may make any order specified in sections
15, 16 and 18 of this Rule which is appropriate and just or an
order that the deposition shall not be taken before the officer
designated in the notice or that it shall not be taken except upon
oral examination. (28, R24)
So the protections provided under Sections 15, 16 and 18 are also
applicable in oral examinations.
Are the mistakes in deposition taking fatal?
Sec. 29. Effects of errors and irregularities in depositions.
(a) As to notice.- All errors and irregularities in the notice for
taking a deposition are waived unless written objection is
promptly served upon the party giving the notice.
(b) As to disqualification of officer.- Objection to taking a
deposition because of disqualification of the officer before whom
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it is to be taken is waived unless made before the taking of the
deposition begins or as soon thereafter as the disqualification
becomes known or could be discovered with reasonable diligence.
(c) As to competency or relevancy of evidence.- Objections to the
competency of a witness or the competency, relevancy, or
materiality of testimony are not waived by failure to make them
before or during the taking of the deposition, unless the ground
of the objection is one which might have been obviated or
removed if presented at that time.
(d) As to oral examination and other particulars.- Errors and
irregularities occurring at the oral examination in the manner of
taking the deposition, in the form of the questions or answers, in
the oath or affirmation, or in the conduct of the parties and errors
of any kind which might be obviated, removed, or cured if
promptly prosecuted, are waived unless reasonable objection
thereto is made at the taking of the deposition.
(e) As to form of written interrogatories.- Objections to the form of
written interrogatories submitted under sections 25 and 26 of this
Rule are waived unless served in writing upon the party
propounding them within the time allowed for serving succeeding
cross or other interrogatories and within three (3) days after
service of the last interrogatories authorized.
(f) As to manner of preparation.- Errors and irregularities in the
manner in which the testimony is transcribed or the deposition is
prepared, signed, certified, sealed, indorsed, transmitted, filed, or
otherwise dealt with by the officer under sections 17, 19, 20 and
26 of this Rule are waived unless a motion to suppress the
deposition or some part thereof is made with reasonable
promptness after such defect is, or with due diligence might have
been, ascertained. (29a, R24)
So, if you will notice, majority of all the errors are waived if
objection thereto is not promptly made.
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Rule 24
DEPOSITIONS BEFORE ACTION
OR PENDING APPEAL
TWO TYPES OF DEPOSITION TAKING:
1.) Deposition Pending Action (Rule 23) and
2.) Deposition Before Action or Pending Appeal (Rule 24)
In Rule 23, you take a testimony or deposition of people in relation
to a pending case. There is already a pending case in court, so
everything is based on a pending action.
The next rule (Rule 24) is deposition before a case is filed. That is
why it is called Depositions Before Action. Actually, the concept of
depositions before action is not really new. This is also found in the
Rules prior to 1997 but was found in another rule. It was called
Perpetuation of Testimony (Rule 134 of the old Rules of Court).
What the new rules did was simply to transfer Rule 134 to Rule 24.
A deposition before action and a deposition pending appeal are
referred to as perpetuation of testimony or perpetua rei
memoriam because their objective is to perpetuate the testimony
of a witness for future use.
Depositions under this Rule are also taken conditionally to be used
at the trial only in case the deponent is not available.
Depositions under this Rule do not prove the existence of any right
or facts of the facts which they relate, as it can be controverted at
the trial in the same manner as though no perpetuation of
testimony was ever had.
However, in the absence of any objection to its taking, and even if
the deponent did not testify at the hearing, the perpetuated
testimony constitutes prima facie proof of facts referred to in the
deposition.
For example, the petitioner has a cause of action which has not yet
accrued. In such a case, inasmuch as he cannot bring the action
until the cause of action accrues, he may perpetuate his testimony
or that of another person (Feria, 2001 p. 534)
EXAMPLE: Suppose there is a case which I would like to file against
B. But for the moment I cannot file it yet. I intend to file a case
against him. So there is an expected case between us in the future
only there are certain things that I still have to do. But if I file a
case against B, I have some witnesses who are all ready like A and
C. But the trouble is, I learned lately that A will die soon. He has
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cancer and C will have to leave for abroad, never to come back.
Definitely, if I will file the case, there are no more witnesses
available.
Q: Is there a way of taking testimony or deposition in advance even
before wala pang kaso?
A: YES, by applying Rule 24. I will file a petition before the court
known as Petition to Perpetuate the Testimony of A and C. Well,
even if there is as yet no case, I will just file a petition under Rule
24. If I can prove really that the testimony would be relevant or
important the court will issue an order allowing me to take
deposition in advance.
Section 1. Depositions before action; petition. A person who
desires to perpetuate his own testimony or that of another
person regarding any matter that may be cognizable in any court
of the Philippines, may file a verified petition in the court of the
place of the residence of any expected adverse party. (1a, R134)
A petition may be filed by any person:
1. who wants to perpetuate his own testimony; or
2. who wants to perpetuate the testimony of another person.
It may be availed only in civil cases and not in criminal cases.
Q: Where will you file it?
A: In the court of the place of the residence of any expected
adverse party because there is still no case. So you have to file an
independent petition under Rule 24
Sec. 2. Contents of petition. The petition shall be entitled in the
name of the petitioner and shall show: (a) that the petitioner
expects to be a party to an action in a court of the Philippines but
is presently unable to bring it or cause it to be brought; (b) the
subject matter of the expected action and his interest therein; (c)
the facts which he desires to establish by the proposed testimony
and his reasons for desiring to perpetuate it; (d) the names or a
description of the persons he expects will be adverse parties and
their addresses so far as known; and (e) the names and addresses
of the persons to be examined and the substance of the
testimony which he expects to elicit from each, and shall ask for
an order authorizing the petitioner to take the depositions of the
persons to be examined named in the petition for the purpose of
perpetuating their testimony. (2, R134)
The petition shall be verified and shall be filed in the place of
residence of any expected adverse party. It shall contain the
matters set forth in Sec. 2 of Rule 24.
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Sec. 3. Notice and service. The petitioner shall serve a notice upon
each person named in the petition as an expected adverse party,
together with a copy of the petition, stating that the petitioner
will apply to the court, at a time and place named therein, for the
order described in the petition. At least twenty (20) days before
the date of the hearing, the court shall cause notice thereof to be
served on the parties and prospective deponents in the manner
provided for service of summons. (3a, R134)
1. The petitioner shall serve a notice upon each person named in
the petition as an expected adverse party, together with a copy of
the petition stating that the petitioner will apply to the court, at
the time and place stated therein;
2. At least 20 days before the date of hearing, the court shall cause
notice thereof to be served on the parties and prospective
deponents in the manner provided for in the service of summons.
Sec. 4. Order and examination. If the court is satisfied that the
perpetuation of the testimony may prevent a failure or delay of
justice, it shall make an order designating or describing the
persons whose deposition may be taken and specifying the
subject matter of the examination and whether the depositions
shall be taken upon oral examination or written interrogatories.
The depositions may then be taken in accordance with Rule 23
before the hearing. (4a, R134)
If the petition is granted, the court will now allow the deposition of
these people to be taken and they are taken simply by following
Rule 23.
Sec. 5. Reference to court. For the purpose of applying Rule 23 to
depositions for perpetuating testimony, each reference therein to
the court in which the action is pending shall be deemed to refer
to the court in which the petition for such deposition was filed.
(5a, R134)
Rule 23 says, “the court in which the action is pending.” But there is
still no pending action here. So it automatically refers to the court
in which the petition for the perpetuation was filed.
Sec. 6. Use of deposition. If a deposition to perpetuate testimony
is taken under this Rule, or if, although not so taken, it would be
admissible in evidence, it may be used in any action involving the
same subject matter subsequently brought in accordance with the
provisions of sections 4 and 5 of Rule 23. (6a, R134)
If deposition is taken under this Rule, it may be used in any action
involving the same subject matter subsequently brought.
Q: How do you use the perpetuation of testimony?
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A: The same uses of an ordinary deposition – for impeachment, for
any other purpose like the witness is already dead – the same
under Rule 23. So the rule under Rule 23 is also applicable to Rule
24.
Sec. 7. Depositions pending appeal. If an appeal has been taken
from a judgment of a court, including the Court of Appeals in
proper cases, or before the taking of an appeal if the time
therefor has not expired, the court in which the judgment was
rendered may allow the taking of depositions of witnesses to
perpetuate their testimony for use in the event of further
proceedings in the said court. In such case the party who desires
to perpetuate the testimony may make a motion in the said court
for leave to take the depositions, upon the same notice and
service thereof as if the action was pending therein. The motion
shall state (a) the names and addresses of the persons to be
examined and the substance of the testimony which he expects to
elicit from each; and (b) the reason for perpetuating their
testimony. If the court finds that the perpetuation of the
testimony is proper to avoid a failure or delay of justice, it may
make an order allowing the depositions to be taken, and
thereupon the depositions may be taken and used in the same
manner and under the same conditions as are prescribed in these
Rules for depositions taken in pending actions. (7a, R134)
Depositions are taken pending appeal with the view to their being
used in the event of further proceedings in the court of origin or
appellate court.
For example, a party may perpetuate the testimony of a witness
which was objected by the adverse party and ruled out by the
court. If the appellate court should reverse the decision/order of
the lower court, it could admt the deposition as additional
evidence or remand the case back to the lower court for such
admission in accordance with Sections 4 and 5 of Rule 23 (Feria
2001, p. 537)
Q: What is deposition PENDING APPEAL?
A: Obviously, there is a case already on appeal. So how do you
apply Rule 24 under this kind of situation?
EXAMPLE: There is a case between K and B. K lost. After he
received a copy of the decision, he discovered a material witness
whom he failed to present. So this is a newly discovered evidence
(NDE). Had K known of his existence, he would have won the case.
So, K will file a motion for new trial based on NDE. If his motion is
granted, there will be new trial.
But, if his motion is denied, K will appeal. While waiting for the
decision of the court, the witness tells him that he will be leaving
for Afghanistan and will come back no more. So, K will use Section
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7. He will file a motion asking to take the deposition of a witness

pending appeal in the event that his motion for new trial is granted,
because the witness has to go and cannot wait for the new trial.

So in the event that if I win the appeal, the case will go back. I can
present the testimony because by that time he may already be
dead. In effect, para na ring deposition before appeal. So it is also
perpetuating the testimony of a possible witness, in the event the
appeal is decided in your favor. That’s why it is called deposition
pending appeal.

1.) Depositions – pending action, no answer REQUIRED

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

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under Rule 25 and direct him to answer the following

interrogatories:

According to your answer, you already paid, please answer the

following questions:
Q1: When did you pay?
Q2: Place?
Q3: Who was present when you paid?

Or

Q1: Mr. Frudo, you have been in continuous possession of this

piece of land for 30 years, would you kindly narrate the
Rule 25 improvements that you introduced in the property?
Q2: What year did you introduce them?
INTERROGATORIES TO PARTIES Q3: Who are your witnesses? etc…

Now, under Rule 25, you are obliged to answer me also in writing.
Q: Going back to Rule 23, what are the modes of deposition taking?
Then you sign your answer and you swear to the truth of it. So I
A: The following:
will ask you directing a question – How will you prove this? Who
(1) Deposition upon oral examination; and
are your witnesses? I will compel you to reveal the evidentiary
(2) Deposition upon written interrogatories.
facts. And that process is called written interrogatories to parties.
Di para na ring deposition?

Purpose of written interrogatories:

I can also ask the same questions through deposition taking under
To elicit facts from any adverse party (answers may also be used as
Rule 23. Why do I have to resort to Rule 25? The trouble is under
admissions of the adverse party).
Rule 23, I need a deposition officer and I will have to course
everything to him. In Rule 25, there is no need of a deposition
Written interrogatories and the answers thereto must both be filed
officer. I will ask you a question and you will answer me. Both are
and served. Hence, the answers may constitute as judicial
done directly. So, less expensive.
admissions (Sec. 4, R 129)

But take note, under Rule 25, you can only ask questions to your
Rule 25 should not be confused with Rule 23, Section 25 – or
opponent. You cannot ask questions to a stranger. Unlike in Rule
Deposition Upon Written Interrogatories.
23, you can take the deposition of any person whether a party or
not. In Rule 25, the questioning is direct. Plaintiff questions the
In written interrogatories under Rule 23, questions are already
defendant, defendant questions the plaintiff. So, these are the
prepared beforehand and they are going to be submitted to a
differences between deposition upon written interrogatories and
deposition officer who will propound the questions to the
interrogatories to parties.
deponent and record the answers under oath. EXAMPLE is, if you
want to take the deposition of somebody abroad through a
Q: Distinguish INTERROGATORIES TO PARTIES (Rule 25) from
deposition officer abroad. Of course, it would be very expensive to
DEPOSITION UPON WRITTEN INTERROGATORIES (Rule 23).
go there and conduct an oral examination. So, the best thing is to
A: The following are the distinctions:
resort to deposition upon written interrogatories under Rule 23.

1.) (Procedure) Under Rule 23 on Depositions upon written

That is not the same as interrogatories to parties under this rule.
interrogatories, the deposition is taken before a
We are going to distinguish one from the other later.
deposition officer; whereas
Under Rule 25 on Interrogatories to Parties, there is no deposition
Interrogatories mean written questions. EXAMPLE: I file a case
officer;
against Frudo. Frudo filed an answer and of course, he has his
affirmative defenses which are statements of ultimate facts. alang
2.) (Procedure) Under Rule 23 on Depositions upon written
details, no evidentiary facts. But I am interested to find out what
interrogatories, questions are prepared beforehand.
are these evidentiary facts I will write a letter addressed to Frudo

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They are submitted to the deposition officer who will ask
the deponent the questions and he will record the
answers.; whereas
Under Rule 25 on Interrogatories to Parties, the questioning is
direct. Plaintiff questions defendant, defendant questions the
plaintiff. There is no third person who will intervene; and
3.) (Deponent) Under Rule 23 on Depositions upon written
interrogatories, the deposition of any person may be
taken, whether he is a party or not, may be taken;
whereas
Rule 25 on Interrogatories to Parties applies to parties only. You
can send interrogatories only to parties. You cannot ask question to
a stranger.
4.) (Scope) Under deposition upon written interrogatories (Sec. 25
R 23), there is direct, cross, re-direct, re-cross examination but
under this rule there is only one set of interrogatories.
5. (Period to answer) Under Rule 23, there is no fixed time while
under this rule the party concerned has 15 days to answer unless
extended or reduced by the court.
SEC. 1. Interrogatories to parties; service, thereof – Under the same
conditions specified in section 1 of Rule 23, any party desiring to
elicit material and relevant facts from any adverse parties shall
file and serve upon the latter written interrogatories to be
answered by the party served or, if the party served is a public or
private corporation or a partnership or association, by any officer
thereof competent to testify in its behalf.
Q: Is leave of court necessary to apply Rule 25? Do I have to apply
for a court permission before I can send interrogatories to parties?
A: IT DEPENDS. The Rule says “under the same conditions specified
in Section 1 of Rule 23.” So the manner of resorting to
interrogatories are done under the same conditions for taking of
depositions.
1. Without leave of court if an answer has already been served:
2. With leave of court If no answer has been served, although the
court has already acquired jurisdiction over the defendant. That is
the same under the rule on deposition. The reason is that, at that
time, the issues are not yet joined and the disputed facts are not
yet clear.
SEC. 2. Answer to Interrogatories - The interrogatories shall be
answered fully in writing and shall be signed and sworn to by the
person making them. The party upon whom the interrogatories
have been served shall file and serve a copy of the answers on the
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party submitting the interrogatories within fifteen (15) days after
service thereof, unless the courts, on motion and for good cause
shown, extends or shortens the time. (2a)
The interrogatories shall be answered fully in writing and shall be
signed and sworn to by the person making them.
Answers cannot be made by an agent or attorney; answers not
made by the parties are nullities (Herrera vol. 2 p. 44)
A judgment by default may be rendered against a party who fails to
answer written interrogatories.
SEC. 3. Objections to Interrogatories – Objections to any
interrogatories may be presented to the court within ten (10)
days after service thereof, with notice as in case of a motion; and
answers shall be deferred until the objections are resolved, which
shall be at as early a time as is practicable. (3a)
Q: Suppose you do not want to answer my questions because you
believe my questions are improper, you want to object to my
questions, what is your remedy?
A: You go to the court where the case is pending and object. Let the
court decide whether you will have to answer or not.
SEC. 4. Number of Interrogatories - No party may, without leave of
court, serve more than one set of interrogatories to be answered
by the same party. (4)
Only one set of interrogatories by the same party is allowed. Leave
of court is necessary for succeeding sets of interrogatories.
It means, I send to you interrogatories and I thought tapos na.
Then I remembered kulang pa pala iyon, so another set – ahh hindi
na pwede! Dapat once lang unless the court allows me to send to
you another set.
So, as a general rule, when you send questions to your opponent,
you better compile. Lahat ng gusto mong itanong, itanong mo na
because no party is given, as a rule, the privilege of securing more
than one set of interrogatories.
SEC. 5. Scope and Use of Interrogatories - Interrogatories may
relate to any matters that can be inquired into under section 2 of
Rule 23, and the answers may be used for the same purposes
provided in section 4 of the same Rule (5a)
Scope of the interrogatories
Q: What kind of questions can you ask under Rule 25 to your
opponent?
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A: The same questions that you can ask in Rule 23 section 2:
1.) anything that is related to the claim or defense provided
it is relevant; and
2.) it is not privileged.
Use of the answers to interrogatories
Q: Suppose there are already answers to the interrogatories given
by your opponent, how do you use those answers?
A: They have the same uses under Rule 23 Section 4 – you can use
it for impeachment, or any other purpose like to prove an
admission already made by the adverse party.
Since answers to interrogatories may be used for the same
purposes as depositions, they may also be the basis of a summary
judgment under Rule 35.
SEC. 6. Effect of Failure to serve written interrogatories – Unless
thereafter allowed by the court for good cause shown and to
prevent a failure of justice, a party not served with written
interrogatories may not be compelled by the adverse party to give
the testimony in open court, or to give a deposition pending
appeal (n)
This is entirely a new section. It has no counterpart in the old rules.
Now, this is a very controversial section. Actually, you will not
understand this until you study Evidence where you can compel the
adverse party to testify. This is actually related to Rule 132, Sec. 10
(e) of the Rules of Evidence.
Unless a party has been served written interrogatories, he may not
be compelled by the adverse party:
1. to give testimony in open court; or
2. Give a deposition pending appeal.
The only exception is when the court allows it for good cause
shown and to prevent a failure of justice.
Note: The sanction adopted by the Rules is not one of compulsion
in the sense that the party is being compelled to avail of the
discovery mechanics, but one of negation by depriving him of
evidentiary sources which would otherwise have been accessible to
him.
This is related to the rule on Evidence particularly Rule 132, Section
10 [e]:
Rule 132, Sec. 10. Leading and misleading questions. – A question
which suggests to the witness the answer which the examining
party desires is a leading question. It is not allowed except:
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xxxxxx
xxxxxx
(e) of a witness who is an adverse party or an officer, director, or
managing agent of a public or private corporation or of a
partnership or association which is an adverse party.
xxxxxx
Rule 132, Section 10 [e] is the provision in the Rules which
authorizes a party to call the adverse party to the witness stand. A
party may call the adverse party to the witness stand and
interrogate him by leading questions – as an element of surprise. I
can call my opponent to the witness stand and he cannot refuse.
I can conduct direct examination on the adverse party and I am
entitled under the Rules to ask leading questions as if he is under
cross-examination because he is the adverse party. He is not
actually my witness. The purpose here is to actually secure
admissions from him while he is in the witness stand because
anything that he says against me does not bind me even if I were
the one who called him to the witness stand. But anything he might
say that is against himself binds him.
Under Section 6, if I intend during the trial to call him to the
witness stand, I am obliged to send him ahead written
interrogatories. I have to follow Rule 25. Now, if I do not send
written interrogatories to him, then I have no right to call him to
the witness stand. That is why Section 6 is a very radical provision.
So, if I am the lawyer of a party, then binigla mo ako dahil there is
really that element of surprise as it has happened several times
before. The lawyer is caught by surprise when the opposing party
says that it would present the adverse party to the witness stand.
The lawyer is then caught off-guard as he has not talked to his
client yet.
Ngayon, may panlaban ka na. Pag-binigla ka, you can counter it by
arguing that written interrogatories were not sent under Rule 25.
Hence, you can object to the opposing counsel’s motion to call
your client to the witness stand.
This practically compels the lawyers to avail of the modes of
discovery because if you will not compel him, chances are Filipino
lawyers do not make much use of the modes of discovery. So now,
if the opposing counsel suddenly sends interrogatories to you, the
he must be planning to call you in the witness stand later.
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Rule 26
At any time after the issues have been joined (after the responsive
ADMISSION BY ADVERSE PARTY pleading has been served).

Q: So, what will you request the other party to admit?

Rule 26 is also known as REQUEST FOR ADMISSION. Admission by
A: 1. The genuineness of any material and relevant document
adverse party or request for admission is similar to interrogatories.
described in and exhibited with the request and/or of
You send questions to your opponent and he’s bound to answer in
2. the truth of any material and relevant matter of fact
writing within 15 days under oath but the framing of the questions
set forth in the request orin the request; or
are different.
3. a matter of fact not related to any documents may be
presented to the other party for admission or denial.
In a request for admission, you are requiring the opposing party to
admit the truth or authenticity of certain documents. For example:
Q: When do you apply this mode of discovery?
“Do you admit the genuineness of the documents marked as Annex
A: “At anytime after issues have been joined.” Meaning, there is
A?” We are talking here of DOCUMENTS which are NOT
already an answer.
ACTIONABLE because if the document is actionable then it has to
be pleaded properly.
Q: Is LEAVE OF COURT required under Rule 26?
A: It is totally UNNECESSARY but a request for admission under
In other words, if I have 20 documents, to find out whether you will
Rule 26 can only be started according to Section 1, “At any time
admit them or not, I will send you a copy and ask, “Do you admit
after issues have been joined.” So it presupposes that there is
the genuineness of this? Do you admit the truth?”
already an answer. Unlike in interrogatories, you can do it even
before an answer is served provided there is leave of court. This is
So, the main difference between Rule 26 and Rule 25 is in the
the second difference between Rule 25 and Rule 26.
framing of the question. If the question is framed in such a way
that the premise is laid down and I ask you whether or not you
Request for admission and actionable document
admit, then the question is proper under Rule 26. BUT if the
question if framed in such a way that it is not answerable by yes or
The former is proper when the genuineness of an evidentiary
no, then apply Rule 25.
document is sought to be admitted. If not denied under oath, its
genuineness is deemed impliedly admitted. Essentially it is a mode
Example: Suppose my question is like this – “who was with you?”
of discovery; while the latter must be attached to the complaint or
That is proper under Rule 25. Pero sabi ko, “A and B were with you,
copied therein. Its genuineness and due execution is deemed
admitted?” That is Rule 26. Kaya nga the way the questions were
impliedly admitted unless specifically denied under oath, by the
framed determines wohat kind of mode of discover are you going
adverse party.
to apply.

Sec. 2. Implied admission. Each of the matters of which an

admission is requested shall be deemed admitted unless, within a
Section 1. Request for admission. At any time after issues have
period designated in the request, which shall not be less than
been joined, a party may file and serve upon any other party a
fifteen (15) days after service thereof, or within such further time
written request for the admission by the latter of the genuineness
as the court may allow on motion, the party to whom the request
of any material and relevant document described in and exhibited
is directed files and serves upon the party requesting the
with the request or of the truth of any material and relevant
admission a sworn statement either denying specifically the
matter of fact set forth in the request. Copies of the documents
matters of which an admission is requested or setting forth in
shall be delivered with the request unless copies have already
detail the reasons why he cannot truthfully either admit or deny
been furnished. (1a)
those matters.
Objections to any request for admission shall be submitted to the
court by the party requested within the period for and prior to
Purpose of written request for admission:
the filing of his sworn statement as contemplated in the
To expedite trial and relieve the parties of the costs of proving facts
preceding paragraph and his compliance therewith shall be
which will not be disputed on trial and the truth of which can be
deferred until such objections are resolved, which resolution shall
ascertained by reasonable inquiry.
be made as early as practicable.(2a)

When request may be made:

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

Let’s go to some interesting cases on request for admission. 2. A request must always be directed to the party whose
admission is sought, but the latter may delegate to his
REBONERIA vs. COURT OF APPEALS lawyer the right to answer the request. Such is valid so
216 SCRA 627 [1992] long as there is a valid authorization.

FACTS: A request for admission was sent by a party (Plaintiff) to the

lawyer of the defendant (because anyway, under Rule 13, the
general rule is that everything should be coursed through the
lawyer) So, the request was sent to the lawyer. Since there was no
response, can there be an implied admission?

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

the party, we should address it to him, and not to the lawyer. A
request for admission should be served upon the party, not his
counsel. The general rule under Rule 13 cannot apply where the
law expressly provides that notice must be served upon a definite
person.
In such cases, service must be made directly upon the person
mentioned in the law and upon no other in order for the notice to
be valid.

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

PSCFC FINANCING CORP. vs. COURT OF APPEALS

216 SCRA 838 [1992]

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

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

admission as it was the lawyer who made the reply ?

HELD : YES, because under the Rules, a client can always act
through the lawyer and he is bound by the actuations of his lawyer.
This is practically the rule on Agency. If we will say that the lawyer
has no authority even if ordered by the client , then we are altering
the Rules on Agency and also the rule that the lawyer can always
act in behalf of his client.
And assuming that a lawyer is not authorized to make the
complaint, then why is the adverse party the one complaining? It is
the client who has the authority to impugn the acts of his lawyer
and not the adverse party. Timang!!

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

637)

NOTE: Rule 27 is not the same as Rule 21 on subpoena duces

tecum. Therefore, the next question is:

Q: Distinguish Production or Inspection of Documents or Things

under Rule 27 from Subpoena duces tecum under Rule 21.
A: The following are the distinctions:

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

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

2.) Rule 27 is limited to parties in the action, whereas

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

3.) The order under Rule 27 is issued only upon motion with
notice to the adverse party, whereas
A subpoena duces tecum under Rule 21 may be issued upon an ex-
parte application.

Section 24 of Rule 130 draws the types of disqualifications by

reason of privileged communication, to wit:
(a) Communications between husband and wife;
(b) Communications between attorney and client;
(c) Communication between physician and patient;
(d) Communication between priest and penitent;
(e) Public officers and public interest.

There are, however, other privileged matters that are not

mentioned by Rule 130. Among them are the following:
(a) Editors may not be compelled to disclose the
source of published news;
(b) Voters may not be compelled to disclose for whom
they voted;
(c) Trade secrets;
(d) Information contained in tax census returns; and
(e) Bank deposits.

Case:
Air Philippines vs. Pennswell, Inc. GR No. 172835, December 13,
2007

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Rule 28 physical or medical examination by a doctor to test

whether the allegation is true or not;
PHYSICAL AND MENTAL EXAMINATION OF PERSONS c.) annulment of contract on the ground of insanity at the
time of execution (lack of consent);
d.) Physical disability due to quasi-delicts (e.g. vehicular
This is the fifth and last mode of discovery.
accident). If I am the defendant and I believe that you
are merely exaggerating the extent of your injury so that
This mode of discovery is available in an action in which the mental
your claim for damages will be higher, and diskumpiyado
or physical condition of a party is in controversy.
ako sa doctor mo, I will ask the court to issue an order
for you to undergo physical examination by another
So in order to even things, I will have to request you to submit to a
doctor, so that we will know whether your claim is really
neutral doctor or psychiatrist for a physical or mental examination.
valid or not.
So the court will issue an order. For example, damage suit in
e.) the mental condition of a party is in controversy in
damage cases, the plaintiff may be exaggerating his injuries.
proceedings for guardianship over an imbecile or insane
person, while the physical condition of a party is
The only way to confirm it is to have another doctor examine him
generally involved in physical injuries cases.
to find out whether his injury is really genuine or sinadya may be
for the purpose of securing a bigger mount of damages. Remember
Since the results of the examination are intended to be made
the joke which we mentioned in Evidence about the plaintiff who
public, the same are not covered by the physician-patient privilege
met an accident na na-dislocate yung shoulder, so permanent ang
(Sec. 24b, R 130).
injury. So when he testified in court, he was asked to raise his arm
– higher, higher please! No more – the injury is permanent.
Q: Give the requisites of physical and mental examination of
persons under Rule 28:
Sabi ng court, “So that was after the accident. What about before
A: The following are the requisites:
the injury? How high can you raise you arm?” A, ganito o! So there
1.) The physical or mental condition must be a subject of
is no more need for a physical examination because he has already
controversy of the action;
demonstrated it (he was just exaggerating his injury).
2.) A motion showing good cause must be filed; and
3.) Notice of the motion must be given to the party to be
SEC. 1. When Examination may be ordered – In an action in which
examined and to all other parties;
the mental or physical condition of a party is in controversy, the
4.) the motion shall specify the time, place, manner,
court in which the action is pending may in its discretion order
conditions, and scope of the examination and the person
him to submit a physical or mental examination by a physician (1)
or persons by whom it is made.

SEC. 2. Order for examination – The order for examination may be

Sec. 3. Report of findings. - If requested by the party examined,
made only upon motion for good cause shown and upon notice to
the party causing the examination to be made shall deliver to him
the party to be examined and to all other parties, and shall
a copy of a detailed written report of the examining physician
specify the time, place, manner, conditions, and scope of the
setting out his findings and conclusions. After such request and
examination and the person or persons by whom it is to be made.
delivery, the party causing the examination to be made shall be
(2)
entitled upon request to receive from the party examined a like
report of any examination, previously or thereafter made, of the
Rule 28 applies in all actions where the mental or
same mental or physical condition. If the party examined refuses
physical condition of a party is in question or controversy.
to deliver such report, the court on motion and notice may make
EXAMPLES:
an order requiring delivery on such terms as are just, and if a
physician fails or refuses to make such a report the court may
a.) Declaration of nullity of marriage on the ground
exclude his testimony if offered at the trial. (3a)
psychological incapacity. Under the Family Code,
however, the state of psychological incapacity must not
Sec. 4. Waiver of privilege. - By requesting and obtaining a report
have been existing only now for the first time. It must
of the examination so ordered or by taking the deposition of the
have existed at the time of the marriage;
examiner, the party examined waives any privilege he may have
b.) annulment of marriage on the ground of impotency. The
in that action or any other involving the same controversy,
court can issue an order to subject the party to undergo
regarding the testimony of every other person who has examined

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or may thereafter examine him in respect of the same mental or

physical examination. (4)

Where the party examined requests and obtains a report on the

results of the examination, the consequences are:

1. he has to furnish the other party a copy of the report of any

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

Example: Maya is subjected to examination by a doctor upon

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

The doctor cannot be compelled to relay what the patient told her.
So if the doctor refuses to deliver such report, then under Section
3, he cannot testify. He cannot give evidence.

Also, once a party asks for a report of the examination, he

automatically waives the privilege of physician-patient relationship.
So if Maya does not want to waive the privilege, she should not ask
a copy of the report of the physician.

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

court required? Not required?
A: In the following cases:

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Rule 29 proponent of the question may prefer. The proponent may

thereafter apply to the proper court of the place where the
REFUSAL TO COMPLY WITH MODES OF DISCOVERY deposition is being taken, for an order to compel an answer. The
same procedure may be availed of when a party or a witness
refuses to answer any interrogatory submitted under Rules 23 or
Rule 29 forms part of the study of the modes of discovery. The
25.
policy on modes of discovery is that it is allowed and encouraged to
If the application is granted, the court shall require the refusing
determine, at an earlier time, essential issues and to promote
party or deponent to answer the question or interrogatory and if
settlement or expeditious trial.
it also finds that the refusal to answer was without substantial
justification, it may require the refusing party or deponent or the
REPUBLIC vs. SANDIGANBAYAN
counsel advising the refusal, or both of them, to pay the
204 SCRA 212
proponent the amount of the reasonable expenses incurred in
obtaining the order, including attorney's fees.
HELD: “It appears to the Court that among far too many lawyers
If the application is denied and the court finds that it was filed
(and not a few judges), there is, if not a regrettable unfamiliarity
without substantial justification, the court may require the
and even outright ignorance about the nature, purposes and
proponent or the counsel advising the filing of the application, or
operation of the modes of discovery, at least a strong yet
both of them, to pay to the refusing party or deponent the
unreasoned and unreasonable disinclination to resort to them—
amount of the reasonable expenses incurred in opposing the
which is a great pity for the intelligent and adequate use of the
application, including attorney's fees. (1a)
deposition-discovery mechanism, coupled with pre-trial procedure,
could, as the experience of other jurisdictions convincingly
demonstrates, effectively shorten the period of litigation and speed
SEC. 2. Contempt of court. - If a party or other witness refuses to
up adjudication.”
be sworn or refuses to answer any question after being directed
“Evidentiary matters may be inquired into and learned by the
to do so by the court of the place in which the deposition is being
parties before the trial. The desideratum is that civil trials should
taken, the refusal may be considered a contempt of that court.
not be carried on in the dark. The Rules of Court make this ideal
(2a)
possible through the deposition-discovery mechanism set forth.
The experience in other jurisdictions has been that ample discovery
SEC. 3. Other consequences. - If any party or an officer or
before trial, under proper regulation, accomplished one of the
managing agent of a party refuses to obey an order made under
most necessary ends of modern procedure: it not only eliminates
section 1 of this Rule requiring him to answer designated
unessential issues from trials thereby shortening them
questions, or an order under Rule 27 to produce any document or
considerably, but also requires parties to play the game with the
other thing for inspection, copying, or photographing or to permit
cards on the table so that the possibility of fair settlement before
it to be done, or to permit entry upon land or other property, or
trial is measurably increased.”
an order made under Rule 28 requiring him to submit to a
“The various modes or instruments of discovery are meant to serve
physical or mental examination, the court may make such orders
(1) as a device, along with the pre-trial hearing under Rule 18, to
in regard to the refusal as are just, and among others the
narrow and clarify the basic issues between the parties, and (2) as a
following:
device for ascertaining the facts relative to those issues.”
(a) An order that the matters regarding which the
“Hence, the deposition-discovery rules are to be accorded a broad
questions were asked, or the character or description of the thing
and liberal treatment. No longer can the time-honored cry of
or land, or the contents of the paper, or the physical or mental
‘fishing expedition’ serve to preclude a party from inquiring into
condition of the party, or any other designated facts shall be
the facts underlying his opponent’s case. Mutual knowledge of all
taken to be established for the purposes of the action in
the relevant facts gathered by both parties is essential to proper
accordance with the claim of the party obtaining the order;
litigation. To that end, either party may compel the other to
(b) An order refusing to allow the disobedient party to
disgorge whatever facts he has ill his possession. The deposition-
support or oppose designated claims or defenses or prohibiting
discovery procedure simply advances the stage at which the
him from introducing in evidence designated documents or things
disclosure can be compelled from the time of trial to the period
or items of testimony, or from introducing evidence of physical or
preceding it, thus reducing the possibility, of surprise.”
mental condition;
(c) An order striking out pleadings or parts thereof, or
SEC. 1. Refusal to answer. - If a party or other deponent refuses
staying further proceedings until the order is obeyed, or
to answer any question upon oral examination, the examination
dismissing the action or proceeding or any part thereof, or
may be completed on other matters or adjourned as the

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

well the circumstances of each case and to make their considered
determination thereafter (Zepeda vs. China Banking Corporation)

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

considered in default even if such defendant has already filed an
answer?
A: The following are the instances:
1.) Failure to appear at the pre-trial conference (Rule 18);
and
2.) Failure to cooperate in the mode of discovery (Section 5,
Rule 29).

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Rule 30
A civil case may be adjudicated upon without the need for a trial in
TRIAL any of the following cases:

(a) Where the pleadings of the parties tender no issue at all,

Section 1. Notice of trial. Upon entry of a case in the trial calendar,
a judgment on the pleadings may be directed by the
the clerk shall notify the parties of the date of its trial in such
court (Rule 34).
manner as shall ensure his receipt of that notice at least five (5)
(b) Where from the pleadings, affidavits, depositions and
days before such date. (2a, R22)
other papers, there is actually no genuine issue, the
court may render a summary judgment (Rule 35);
Of course, after the Pre-trial, the next step now is trial. And it is the
(c) Where the parties have entered into a compromise
duty of the clerk of court to send notices to the parties about the
agreement either during the pre-trial or while the trial is
date of the trial in such manner as shall insure his receipt of that
in progress (Rule 18; Art. 2028 NCC);
notice at least five (5) days before such date. But actually in real
(d) Where the complaint has been dismissed with prejudice
practice, it will even take more than a month to give you ample
(Sec. 5 R 16; Sec. 3 R 17; Sec. 5, last par. R 7);
time to prepare for it.
(e) Where the case falls under the operation of the Rules on
Summary Procedure; and
Now, it is mandatory that the notice should reach the party or its
(f) Where the parties agree in writing, upon the facts
lawyer at least five (5) days before such date.
involved in the litigation, and submit the case for
judgment on the facts agreed upon, without the
introduction of evidence. If, however, there is no
Q: Define trial.
agreement as to all the facts in the case, trial may be
A: TRIAL is an examination before a competent tribunal of the facts
held only as to the disputed facts (Sec. 6 R 30).
or law put in issue in a case, for the purpose of determining such
g) when there is a judgment on confession.
issue. (Ballentine’s Law Dict., 2nd Ed., p. 1299)
It is the judicial process of investigating and determining the legal
Sec. 2. Adjournments and postponements. A court may adjourn a
controversies, starting with the production of evidence by the
trial from day to day, and to any stated time, as the expeditious
plaintiff and ending with his closing arguments (Acosta v. People 5
and convenient transaction of business may require, but shall
SCRA 774).
have no power to adjourn a trial for a longer period than one
In a trial, there is always an issue where we cannot agree.
month for each adjournment, nor more than three months in all,
Therefore, the purpose of a trial is for the court to resolve that
except when authorized in writing by the Court Administrator,
issue.
Supreme Court. (3a, R22)

Trial and Hearing

“A court may adjourn a trial from day to day” means that if the trial
is not finished on the scheduled date, that will be postponed on
The terms “trial” and “hearing” are sometimes interchangeably
another day. That is how trials are being conducted. It is by
used. There is however, a marked difference between these terms.
staggered basis. That is what you call adjournment. But everything
Trial refers to the stage of presentation of evidence and other
is recorded anyway. If you look at the transcript of stenographic
processes; it is the period for the presentation of evidence by both
notes, it would seem that the trial is continuous because
parties.A hearing is a broader term. It is not confined to the trial
everything unfolds there. But actually, these occurred on different
and presentation of the evidence because it actually embraces
dates.
several stages in the litigation. It includes the pre-trial and the
determination of granting or denying a motion (Trocio v. Labayo 53
Now, Section 2 also provides that no party shall be allowed a
SCRA 97). Hearing does not necessarily imply presentation of
postponement of more than one (1) month per postponement and
evidence in open court but the parties are afforded the opportunity
not more than three (3) postponements in all. As a GENERAL RULE:
to be heard.
Not more than one (1) month for each adjournment BUT only for a
maximum of three (3) months in all or not beyond 90 days except
when authorized in writing by the court administrator of the
General rule: when an issue exists, trial is necessary. Decisions
Supreme Court.
should not be made without trial.

When trial is not necessary

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And that jives with the SC Circular 3-90 which contains a mandatory
continuous trial for 90 days. In other words, the case must
terminate in 90 days.
The ONLY EXCEPTION is when authorized in writing by the court
administrator. Meaning, the judge can go to the court
administrator to allow the court to go beyond the period allowed
by law.
Sec. 3. Requisites of motion to postpone trial for absence of
evidence. A motion to postpone a trial on the ground of absence
of evidence can be granted only upon affidavit showing the
materiality or relevancy of such evidence, and that due diligence
has been used to procure it. But if the adverse party admits the
facts to be given in evidence, even if he objects or reserves the
right to their admissibility, the trial shall not be postponed. (4a,
R22; Cir. No. 39-98)
Generally, there are two main reasons why parties ask for
postponement. One is, (1) absence of evidence like when the
witness is not available or the document is not available, or (2)
somebody is sick – either the party or counsel is sick.
Requisites:
1. A motion for postponement stating the ground relied upon must
be filed; and
2. the motion must be supported by an affidavit showing:
a. the materiality and relevancy of such evidence; and
b. that due diligence has been used to procure it.
If the adverse party admits the facts to be given in evidence, the
trial will not be postponed even if he objects or reserves the right
to object to their admissibility (Feria, Civil Procedure Annotated
Vol. 1, p. 565)
Note: This section does not apply to criminal cases as the rule on
postponements in criminal cases is governed by Sec. 2 R 119.
Now, of course the requirements of the Rules are really strict
although courts and lawyers are very liberal on this. First of all, if
you want to postpone a trial on the ground of absence of evidence,
there must be a verified affidavit. The affidavit must show the
materiality or relevancy of the evidence which is not available and
that due diligence was used to procure it. In other words, you tried
your best to secure it earlier.
Now, what is the meaning of the second sentence: “If the adverse
party admits the facts to be given in evidence, even if he objects or
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reserves the right to their admissibility, the trial shall not be
postponed”?
EXAMPLE:
LAWYER: “We are asking for postponement because our witness is
not present. He is not available and his testimony will be very
material.”
ADVERSE PARTY: “Alright, what is going to be his testimony? What
will he testify about in court?
LAWYER: “Well, this is his testimony …. he will prove this or he will
prove that….”
ADVERSE PARTY: “OK. Admitted. I admit that if he is here, this is
what he will say, Although I may object to the admissibility of such
testimony.”
Meaning, the other party may admit the evidence but object to its
admissibility. That is two different things – admitting the evidence
but objecting to its admissibility in court. Meaning, objecting to the
admissibility of the witness in court. Just like under the
Constitution, if a confession is made by a suspect without being
afforded with the Miranda warnings, such confession is not
admissible. But such confession is evidence. Only, it is inadmissible.
So, I admit that, although I reserve my right to its admissibility.
Then in such case, you have no more reason for postponement
because in the first place, there is no need to present your witness
because the other party already admitted what will be the
substance of his testimony.
Sec. 4. Requisites of motion to postpone trial for illness of party or
counsel. A motion to postpone a trial on the ground of illness of a
party or counsel may be granted if it appears upon affidavit or
sworn certification that the presence of such party or counsel at
the trial is indispensable and that the character of his illness is
such as to render his non-attendance excusable. (5a, R22)
Requisites:
1. A motion for postponement stating the ground relied upon must
be filed; and
2. the motion must be supported by an affidavit or sworn
certification showing:
a. the presence of such party or counsel at the trial is
indispensable; and
b. that the character of his illness is such as to render his non-
attendance excusable.
Postponements are addressed to the sound discretion of the court.
In the absence of grave abuse of discretion, it cannot be controlled
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by mandamus (Olsen vs. Fressel & Co., GR No. 12955, Nov. 8,
1917).
The same thing for illness (2nd ground). Kung may sakit, there must
be affidavit or sworn statement. So you must have a sworn medical
certificate and that the presence of such party or counsel is
indispensable and the character of his witness is such as to render
his non-attendance excusable.
Now, of course the SC has already stated in some cases that when
the sickness is sudden and unexpected such as caused by an
accident, you cannot require on the spot a medical certificate.
Meaning, how can I produce something if he got sick only an hour
ago? So, the court should take that into consideration. They cannot
object to the requirement of medical certificate.
So, a motion for postponement which is not verified upon the
ground of illness of a party or counsel without a medical certificate
should be granted if it appears that the claim of the movant is
meritorious.
Normally, we just say that if the other party insists on a medical
certificate, we will submit it this afternoon or tomorrow because
there are things in which we cannot get a medical certification on
time unless he has been sick for so long.
In the ultimate analysis, what is the policy of the SC on
postponements? Motions for postponements are always
addressed to the sound discretion of the court (Casilan vs.
Gancayco, 56 O.G. 2799, March 28, 1960; People vs. Martinez, 57
O.G. 7923, Oct. 30, 1961).
So if the motion for postponement is denied or granted or either
way, it is so hard to have it overturn because the SC will always give
way to the discretion and rarely will it happen in court where it will
interfere without discretion unless there is grave abuse of
discretion.
ORDER OF THE TRIAL
The order of trial in civil cases is a little bit more complicated
compared to criminal cases.
Sec. 5. Order of trial. Subject to the provisions of section 2 of Rule
31, and unless the court for special reasons otherwise directs, the
trial shall be limited to the issues stated in the pre-trial order and
shall proceed as follows:
(a) The plaintiff shall adduce evidence in support of his complaint;
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(b) The defendant shall then adduce evidence in support of his
defense, counterclaim, cross-claim and third-party complaint;
(c) The third-party defendant, if any, shall adduce evidence of his
defense, counterclaim, cross-claim and fourth-party complaint;
(d) The fourth-party, and so forth, if any, shall adduce evidence of
the material facts pleaded by them;
(e) The parties against whom any counterclaim or cross-claim has
been pleaded, shall adduce evidence in support of their defense,
in the order to be prescribed by the court;
(f) The parties may then respectively adduce rebutting evidence
only, unless the court, for good reasons and in the furtherance of
justice, permits them to adduce evidence upon their original case;
and
(g) Upon admission of the evidence, the case shall be deemed
submitted for decision, unless the court directs the parties to
argue or to submit their respective memoranda or any further
pleadings.
If several defendants or third-party defendants, and so forth,
having separate defenses appear by different counsel, the court
shall determine the relative order of presentation of their
evidence. (1a, R30)
Take note that the law says “the trial shall be limited to the issues
stated in the pre-trial order.” That is now emphasized under the
Rule 30. That jives with Rule 18, Section 7 on what is the
importance of a pre-trial order:
Sec. 7. Record of pre-trial. - The proceedings in the pre-trial shall
be recorded. Upon the termination thereof, the court shall issue
an order which shall recite in detail the matters taken up in the
conference, the action taken thereon, the amendments allowed
to the pleadings, and the agreements or admissions made by the
parties as to any of the matters considered. Should the action
proceed to trial, the order shall explicitly define and limit the
issues to be tried. The contents of the order shall control the
subsequent course of the action, unless modified before trial to
prevent manifest injustice. (5a, R20)
The pre-trial order shall limit the issues and shall control the
subsequent course of the action. We already emphasized that the
pre-trial order prevails over the pleadings. The pre-trial order has
the effect of superseding the complaint and the answer. Whatever
issues are stated in the pre-trial order shall be the issues to be tried
during the hearing on the case.
Now going back to Rule 30, that is now emphasized. The trial shall
be limited to the issues stated in the pre-trial order. So, the pre-
trial order will be a very important document to determine what
are the issues to be tried.
Q: How will the trial proceed? In what order?
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A: Section 5, paragraphs [a] to [g], including the last paragraph of
Section 5.
Q: What is the reason for the rule prescribing an order of trial?
A: The reason is for orderly procedure, which must be followed if
injurious surprises and annoying delays in the administration of
justice are to be avoided. Evidence cannot be given piece-meal.
(Dir. of Lands vs. Archbishop of Manila, 41 Phil. 120)
You will notice the order of trial in civil cases follows more or less
the same pattern with the trial in criminal case. The pattern is the
same although there may be cross-claims, third (fourth, etc.) party
complaints, especially when there are more than one defendant.
BASIC PATTERN (No cross-claim, counterclaim or 3rd-party
complaint, etc.):
1.) Plaintiff presents evidence to prove his claim or cause of
action. That is what you call EVIDENCE IN CHIEF, also
called as the MAIN EVIDENCE; (paragraph [a])
2.) Defendant presents evidence in chief or main evidence
to prove his defense – negative or affirmative defense;
(paragraph [b]),
3.) Plaintiff will present what we call REBUTTAL EVIDENCE to
rebut defendant’s main evidence. (paragraph *f+)
4.) Defendant is given the chance to present rebuttal
evidence to rebut the rebuttal of evidence of the
plaintiff. In legal parlance, we call that SUR-REBUTTAL
evidence; (paragraph [f])
5.) ARGUMENTS. Normally, it is what we call the filing of
MEMORANDUM (written arguments) – the parties will
submit their respective memoranda, unless the case will
be submitted for decision without arguments or
memorandum. (paragraph [g])
So, normally, that is the basic pattern of the order of trial. Now,
plaintiff presents evidence ahead, after him defendant presents
evidence to prove his defense.
Now, in the case of
YU vs. MAPAYO
44 SCRA 163
FACTS: The plaintiff filed a complaint against the defendant to
collect a loan which, according to the plaintiff, the defendant has
not paid. The defendant filed an answer admitting the loan but ang
kanyang affirmative defense is, the obligation is paid.
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During the trial, the plaintiff said that he is no longer going to
present any evidence to prove his cause of action because anyway,
the defendant has admitted the obligation; and since the
defendant is the one invoking payment, it is, therefore, his burden
to prove payment.
The trial court agreed with the plaintiff, “Yes. Alright defendant,
you present evidence that the obligation is paid. Anyway, you are
admitting that you borrowed money.”
Now, according to the defendant, the procedure is improper the
order of the trial being altered, “Why will the defendant prove his
defenses ahead. The plaintiff is supposed to present evidence bago
ako. Bakit uunahin ako?” That is the objection of the defendant.
ISSUE: Can the defendant present his evidence first?
HELD: AH YES! Anyway, by admitting the obligation, you are
invoking the affirmative defense of payment. So, it is incumbent
upon you to prove that it is paid.
Under Rule 16, the defendant is not obliged to file a motion to
dismiss. That is optional. In fact, the defendant is allowed, instead
of filing a motion to dismiss, to file an answer invoking the ground
for a motion to dismiss as an affirmative defense. And then the
defendant could even ask for a preliminary hearing for his
affirmative defenses as if a motion to dismiss has been filed.
Therefore, in the hearing for a motion to dismiss, the defendant is
now converting his defense into a ground for a motion to dismiss.
In which case, the affirmative defense will be heard ahead of the
main action. So, that is allowed under Rule 16.
So, there is nothing basically wrong with an affirmative defense
being heard ahead of the plaintiff, especially when the plaintiff has
nothing to prove anymore.
Well, of course that is more apparent in criminal procedure. In the
order of trial in criminal procedure, the court may even direct the
accused to present evidence ahead of the prosecution when the
accused is already admitting the facts constituting the crime but
only invokes a defense such as self-defense – when you are
accused of homicide and your defense is that you acted in
self-defense. So, wala ng i-prove ang prosecution. Automatically,
you are admitting that you killed the victim. The burden now is
shifted to you to justify the killing. That’s what they call “TRIAL IN
REVERSE.”
So, in criminal cases where the law authorizes a reversed trial
where the accused is directed to present evidence ahead of the
prosecution, there is no reason why the same procedure cannot
also apply in civil cases. That is the essence of the MAPAYO ruling.
So, more or less, that is the deviation from the normal order of
trial.
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Section 5 [f]: The parties may then respectively adduce rebutting
evidence only, unless the court, for good reasons and in the
furtherance of justice, permits them to adduce evidence upon
their original case;
Paragraph 5 (f) is actually presentation of rebuttal evidence.
Q: What is the difference between the evidence mentioned in
paragraph [f] and the evidence mentioned in paragraphs [a] and
[b]?
A: Paragraphs [a] and [b] refer to what we call EVIDENCE IN CHIEF
to prove your main cause of action or your defense. In paragraph
[f], the evidence is not evidence in chief but REBUTTAL EVIDENCE
to dispute the side of the other party.
Q: Is a party allowed to present evidence in chief in the rebuttal
stage?
A: GENERAL RULE: NO, because paragraph [f] provides that the
parties may then respectively adduce rebutting evidence only. In
other words, you do not go back to paragraphs [a] and [b]. If you
have evidence to prove your cause of action or defense, you should
have done it earlier.
So generally, evidence in chief is not allowed during the rebuttal
stage. But there is an exception: EXCEPTION: “Unless the court, for
good reasons and in the furtherance of justice permits them to
adduce evidence upon their original case.” Meaning, it permits
them to adduce evidence in chief. But you need the permission of
the court because normally, you should have done that under
paragraphs [a] and [b] and not in paragraph [f].
Q: Give instances when the court may allow the party to present
additional evidence in chief during rebuttal to prove his cause of
action.
A: In the following instances:
1.) When it is newly discovered;
2.) When the evidence was omitted through inadvertence
or mistake;
3.) When the purpose is to correct evidence previously
offered; (Lopez v s. Liboro, 81 Phil. 429)
4.) When the additional evidence offered is material and not
merely cumulative or impeaching (64 C.J. 160-163)
Those are the possible instances when the court in the interest of
justice may allow the parties to present evidence in chief during
the rebuttal stage which is normally not allowed.
And that is what I saw exactly years ago how this paragraph [f]
operates. There was case here we were watching before. There
was a veteran trial lawyer from Manila who tried a case here. I
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think it was a damage suit against KLM Royal Airlines for breach of
contract of carriage because some of the passengers were from
Davao City. Alright when they are already in the rebuttal stage, the
lawyer for the Airlines was presenting evidence and the counsel for
the plaintiff argued, “Objection Your Honor, it is not rebuttal
evidence. It is evidence in chief which he is presenting. So it is not
proper during this stage.”
And the trial court agreed, “Yes, it is improper. The evidence in chief
should have been presented earlier. Therefore, objection is
sustained.” Lawyer for the Airlines, “So, you honor, may we move
for a reconsideration because we believe it is rebuttal evidence and
it is very important.” So, balik na naman sila sa argument. And then
the court said, “The motion for reconsideration is denied, you are
not allowed.”
So, patay siya. And it’s really true that what was presented was
evidence in chief and not rebuttal evidence. So, hindi siya ba
makalusot or hindi siya makapasok. So, for a while, he closed his
eyes and said, “Your Honor, in the interest of justice may we be
allowed to present evidence in chief for the rebuttal stage.” And the
court said granted, “Sure pare basta ikaw! *Mas OK pa sa
ALRIGHT+!” So pasok na naman!
In other words, saan niya kinuha ito? When I looked at the Rules,
iyon pala! He knows how to invoke it. In other words, you can see
the skill of a veteran lawyer. The rules are at his fingertips. So, that
is how I saw this provision operates.
Section 5 [g]: Upon admission of the evidence, the case shall be
deemed submitted for decision, unless the court directs the
parties to argue or to submit their respective memoranda or any
further pleadings.
Now, of course, pag tapos na kayo, main evidence and rebuttal,
tapos na ang kaso. Meaning, the case is ready for decision. But
normally, the lawyer of the parties would say, “We would like to
argue.” And the argument is normally not oral but in writing where
you will be asked to file what you call MEMORANDUM.
A MEMORANDUM is practically a thesis where you will summarize
your position and you argue why you should win. That is where
you cite evidence. You convince the court that you have proven
your cause of action or defense. Then you cite the testimonies, the
exhibits, the transcripts and of course, the argument, the
jurisprudence, the law. That is where you argue. You do not argue
in your pleading. Pleadings, complaint, answer is not the time to
argue. There, you only state the facts. You argue after the trial
where you interpret now the evidence and convince the court.
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Summary of trial and judgment
1. Plaintiff presents evidence
2. Defendant presents evidence to support his
defense/counterclaim/cross claim/3rd-party complaint;
3. Third-party defendant presents evidence;
4. Parties against whom a counterclaim or cross claim is pleaded
presents evidence in their defense;
5. Rebuttal evidence by parties;
6. Decision
When defendant files a demurrer to evidence
However, defendant can file a demurrer to evidence after the
plaintiff has completed its presentation of evidence and rested its
case.
When this happens the court has the following options:
1. To grant the motion and issues an order of dismissal; or
2. To deny the motion and continue the hearing following the
steps.
In both cases, before rendering a decision, the court may allow the
parties to:
1. present oral arguments or;
2. submit memoranda.
Note: Subject to Section 2 of Rule 31 and unless the court for
special reasons, otherwise directs, the trial shall be limited to the
issues stated in the pre-trial order.
Sec. 6. Agreed statement of facts. The parties to any action may
agree, in writing, upon the facts involved in the litigation, and
submit the case for judgment on the facts agreed upon, without
the introduction of evidence.
If the parties agree only on some of the facts in issue, the trial
shall be held as to the disputed facts in such order as the court
shall prescribe. (2a, R30)
Alright, why do the parties present evidence 1, 2, 3, 4. What is the
purpose there? To prove facts. Normally, we cannot agree on the
facts. I say something and you will say that is not true and this is
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what happened. So, normally, cases arise because of the issue of
what happened.
Q: Now, is there a possibility that the court will decide whether
there is trial or no more evidence?
A: YES! If the parties agree in writing upon the facts involved in the
litigation and they will submit the agreed facts or the case for
decision. That is what we call JUDGEMENT ON AGREED STATEMENT
OF FACTS or the more popular term: JUDGEMENT BASED ON
STIPULATION OF FACTS.
EXAMPLE: The plaintiff and the defendant agree on all the facts.
“These are the facts,” sabi ng plaintiff. Then sabi ng defendant,
“Yes, I agree those are the facts.” Now if we agree on the facts,
there is nothing more to prove. And what we are now quarreling is
who should win based on the facts agreed upon. So, ano ngayon
ang kaso? That is purely a legal question. There is nothing to prove
because everything is admitted. They disagree only on the
conclusion.
So, with that, par. 1, 2, 3, 4 all these steps are useless. There is
nothing to prove. In which case, we will go immediately to step no.
5. So, if the parties agree in writing upon the facts involved in the
litigation and they will submit the agreed facts for decision, that is
JUDGEMENT BASED ON STIPULATION OF FACTS which is
encouraged by the law. This is one of the purposes of Pre-Trial
(Rule 18, Section 2 [d]) where the parties are encouraged to
stipulate on facts, because really, it would save a lot of time.
The best example of agreed facts would be examination problems.
The facts are already given – this is what happened. You cannot
change that anymore. And you will be asked, “DECIDE: Is A correct
or is B correct.” So in other words, you simply apply the law. You
do not apply anymore the issue of what happened because it is
already agreed. Your answer would be similar to a JUDGMENT
BASED ON STIPULATION OF FACTS.
Q: Why is an agreed statement of facts sufficient basis for a
judgment?
A: The reason is that an agreed statement of facts is conclusive on
the parties, as well as on the court. Neither of the parties may
withdraw from the agreement, nor may the court ignore the same.
(McGuire vs. Manufactures Life Ins. Co., 87 Phil. 370)
Q: Now suppose they can agree on some facts but they cannot
agree on others.
A: There is no problem. You can have a partial stipulation of facts
and then we can try the rest with respect to the other disputed
facts.
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That is why the second paragraph says, “If the parties agree only on
some of the facts in issue, the trial shall be held as to the disputed
facts in such order as the court shall prescribe.” At least, it would
still be faster because the disputed facts are now limited. Rather
than proving ten (10) issues of facts, it will be reduced to 3 or 4.
So, the trial would still be faster.
Note: If no evidence is presented and the case is submitted for
decision on an agreement of the parties, the court should render
judgment in accordance with said agreement. The court cannot
impose upon the parties a judgment different from their
compromise agreement.
However, the compromise agreement must not be contrary to law,
morals, good customs, public order and public policy (Philippine
Bank of Communications vs. Echiverri, GR No. L-41795, Aug. 29,
1980)
Stipulation of facts (SOF) are not permitted in actions for
annulment of marriage and for legal separation.
SOF in civil and criminal cases
1. SOF in civil cases may be signed by the counsel alone who has a
special power of attorney while in criminal cases it should be
signed by both the counsel and the accused;
2. In civil cases the SOF may be made orally or in writing while in
criminal cases it must always be in writing.
The court is not bound to find out what happened when the parties
already agreed on what happened. EXAMPLE: The parties will
stipulate, “This case involves a piece of land with an area of 50
hectares, planted with coconut trees of about 5,000.” So, parties
agreed and then the court says, “No, I do not believe you. It might
be more than 59 hectares.” NO. When the parties agree, sundin
mo yan because they themselves agree on the facts. You only
determine the facts if they cannot agree. That is why the court is
bound by the stipulations made by the parties.
Sec. 7. Statement of judge. During the hearing or trial of a case any
statement made by the judge with reference to the case, or to
any of the parties, witnesses or counsel, shall be made of record
in the stenographic notes. (3a, R30)
Take note that the trial is a formal court proceeding. Everything is
recorded there – the statement of parties, their lawyers, including
the statement of the judge. Any statement made by the judge with
reference to the case or to any of the parties, witnesses, or counsel
shall be made of record in the stenographic notes.
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Sec. 8. Suspension of actions. The suspension of actions shall be
governed by the provisions of the Civil Code. (n)
This is mentioned in Rule 18, Section 2 [h] which discusses the
possibility of suspension of the proceedings. Meaning, huwag
munang gumalaw ang kaso – in suspended animation baah!
Q: And what is the possible good legal ground for the parties to ask
for suspension of the hearing? Meaning, held in abeyance ba.
What would be the best possible ground?
A: The best possible ground is the one mentioned in Article 2030 of
the New Civil Code:
Art. 2030. Every civil action or proceeding shall be suspended:
1. If willingness to discuss a possible compromise is expressed by
one or both parties; or
2. If it appears that one of the parties, before the commencement
of the action or proceeding, offered to discuss a possible
compromise but the other party refused the offer.
The duration and terms of the suspension of the civil action or
proceeding and similar matters shall be governed by such
provisions of the rules of court as the Supreme Court shall
promulgate. Said rules of court shall likewise provide for the
appointment and duties of amicable compounders. (n)
According to Article 2030 of the civil code, if at anytime while the
case is going on, one of the parties would like to discuss a POSSIBLE
AMICABLE SETTLEMENT OR COMPROMISE, they can ask for the
suspension of proceedings. Why? The court of the law favors
compromises or amicable settlements in civil cases.
So at anytime that one party expresses its desire to settle, even in
the middle of the case, the court is authorized to suspend the
action to give the parties opportunity to settle because of the
policy of the law to encourage the parties to settle amicably.
That is why even former U.S. President Lincoln, who is more
remembered as president rather than as a lawyer, was quoted,
“Discourage litigation. Persuade your neighbor to compromise
whenever you can. Point out to them how the nominal winner is
often the real loser in fees, expenses and waste of time. As a
peace-maker [Long Live the PeaceMakers!], the lawyer has the
superior opportunity of being a good man. There would still be
business enough.”
Meaning, aregluhin ba hanggang maari, you better settle. When
you settle, nobody is loser and nobody is winner. Both of you win.
Walang masakit ang loob ba. And marami pang negosyo, marami
pang kaso. Do not make such money out of one case. If you can
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settle, i-settle muna. Huwag mong sabihing “sayang iyong income”
dahil marami pang kaso na darating. That was what he said.
Now, of course, what happens if the party cannot agree to settle?
Well, the procedure is, let the trial go on. That is why in the 1992
case of
GOLDLOOP PROPERTIES, INC. vs. COURT OF APPEALS
212 SCRA 498 [1992]
FACTS: The parties in a civil action manifested the possibility of
submitting amicable settlement. The court gave them 15 days to
submit their compromise agreement. 15 days passed, no amicable
settlement was submitted by the parties. With that, the court
dismissed the case.
ISSUE: Was the court correct in dismissing the case when the
parties cannot settle?
HELD: The dismissal is WRONG. “Since there is nothing in the Rules
that imposes the sanction of dismissal for failing to submit a
compromise agreement, then it is obvious that the dismissal of the
complaint on the basis thereof amounts no less to a gross
procedural infirmity. While a compromise is encouraged, very
strongly in fact, failure to consummate one does not warrant any
procedural sanction, much less an authority to jettison a civil
complaint. What the court should have done was to continue the
action.”
In other words, why should you dismiss the complaint when the
parties cannot settle? By that, technically, natalo ang plaintiff. Kung
hindi magkaareglo, then go on with the trial. You have no authority
to dismiss the case simply because the parties cannot settle.
However, there are certain matters which cannot be the subject of
compromise. Practically, compromise is allowed on anything under
the sun, except certain matters such as those mentioned in Article
2035.
Q: What are the matters that cannot be the subject of
compromise?
A: Under the Article 2035, New Civil Code, the following:
(1) The civil status of persons; (whether
legitimate or illegitimate)
(2) The validity of a marriage or a legal
separation; (w/n a marriage settlement
exists)
(3) Any ground for legal separation;
(4) Future support; (always depends on the
means of the party giving support)
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(5) The jurisdiction of courts;
(6) Future legitime.
So you cannot agree on these. You cannot compromise as a
legitimate when in fact you are illegitimate. Where is the basis of
that? You cannot compromise that the marriage is valid when in
fact it is not, or it is null and void. These things cannot be the
subject of agreement.
Sec. 9. Judge to receive evidence; delegation to clerk of court. The
judge of the court where the case is pending shall personally
receive the evidence to be adduced by the parties. However, in
default or ex parte hearings, and in any case where the parties
agree in writing, the court may delegate the reception of evidence
to its clerk of court who is a member of the bar. The clerk of court
shall have no power to rule on objections to any question or to
the admission of exhibits, which objections shall be resolved by
the court upon submission of his report and the transcripts within
ten (10) days from termination of the hearing. (n)
General rule:
The judge shall personally receive and resolve the evidence to be
adduced by the parties.
However, the reception of such evidence may be delegated under
the following conditions:
1. the delegation may be made only in defaults or ex-parte
hearings; and in any case where the parties agree in writing;
2. the reception of evidence shall be made only by the clerk of
court, who is a member of the bar, of that court;
3. said clerk shall have no power to rule on objections to any
question or to admission of evidence or exhibits; and
4. he shall submit his report and transcripts of the proceedings,
together with the objections to be resolved by the court within 10
days from the termination of the hearing.
The Rules now expressly allows the court to delegate the reception
of evidence to the clerk of court who must be a member of the bar.
Thereby confirming the doctrine in GOTINGCO vs. CFI OF NEGROS
OCCIDENTAL and junking forever the ruling in LIM TANHU vs.
REMOLETE because in the case of REMOLETE, it was ruled that the
judge cannot delegate the reception of evidence to the clerk of
court. Now, puwede na.
A good example is DEFAULT. But actually, it could also be a case
where the parties agreed in writing or other cases where it can be
heard ex-parte other than default. Because there are many cases
na to my mind that the judge does not really need to be there
listening.
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Like for example, a petition for the issuance of lost or transfer of

certificate – yung titulo mo nawala – your title is lost or you
misplaced it and you will prove na nawala. That should be heard in
court but to my mind that is not a controversy, eh because there is
only one party there. So it is possible for the court to delegate that
to the clerk of court in order that they (judges) can attend to other
controversial cases.

Now, please connect this provision with Section 3 of Rule 9 on

Default:

Sec. 3. Default; declaration of. - If the defending party fails to

answer within the time allowed therefor, the court shall, upon
motion of the claiming party with notice to the defending party,
and proof of such failure, declare the defending party in default.
Thereupon, the court shall proceed to render judgment granting
the claimant such relief as his pleading may warrant, unless the
court, in its discretion requires the claimant to submit evidence.
Such reception of evidence may be delegated to the clerk of
court. (1a, R18)

So in default hearing, it is now the discretion of the court either to

conduct an ex-parte reception of evidence which can be delegated
to the clerk of court, or the court may render judgment based on
the pleadings. So, it is optional.

Now, to my mind, kung ang case is a collection case or any other

cases which are simple, pag na-default ang defendant, puwede na
decision dayon. Pero kung controversial cases, do not render
judgment based on the pleadings. You better conduct an ex-parte
reception of evidence and you may delegate the reception of
evidence to the clerk of court.

Yun iyong mga out of ordinary cases which are really controversial
where the court should require the presentation of evidence. Pero
yong mga kaso na not so complicated, no need of reception of
evidence in order to expedite the process of adjudication.

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Rule 31
(a) Upon motion of a party with notice to the other party/ies, or at
CONSOLIDATION OR SEVERANCE the instance of the Justice to whom any of the related cases is
assigned, upon notice to the parties, consolidation shall ensue
when the cases involve the same parties and/or related questions
SECTION 1. Consolidation. - When actions involving a common
of fact and/or law.
question of law or fact are pending before the court, it may order
(b) Consolidated cases shall pertain to the Justice –
a joint hearing or trial of any or all the matters in issue in the
(1) To whom the case with the lowest docket number is assigned, if
actions; it may order all the actions consolidated; and it may
they are of the same kind;
make such orders concerning proceedings therein as may tend to
(2) To whom the criminal case with the lowest number is assigned,
avoid unnecessary costs or delay. (1)
if two or more of the cases are criminal and the others are civil or
special;
Consolidation involves several actions having a common question
(3) To whom the criminal case is assigned and the other are civil or
of law or fact which may be jointly tried.
special; and
(4) To whom the civil case is assigned, or to whom the civil case
DEUTSCHE BANK AG vs. COURT OF APPEALS and STEEL CORPORATION OF THEPHILIPPINES
with the lowest docket number is assigned, if the cases involved
are civil and special.
(c) Notice of the consolidation and replacement shall be given to
G.R. No. 193065 , February 27, 2012.
the Raffle Staff and the Judicial Records Division. (Emphasis and
underscoring supplied)
A moot and academic case is one that ceases to present a
justiciable controversy by virtue of supervening events, so that a
declaration thereon would be of no practical use or value.
As can be gleaned from the aforequoted provision, for
Generally, courts decline jurisdiction over such case or dismiss it on
consolidation to be proper, the cases sought to be consolidated
ground of mootness. However, even in cases where supervening
must be related.
events had made the cases moot, this Court did not hesitate to
resolve the legal or constitutional issues raised to formulate
Similarly, jurisprudence has laid down the requisites for
controlling principles to guide the bench, the bar and the public.
consolidation. In the recent case of Steel Corporation of the
Moreover, as an exception to the rule on mootness, the courts will
Philippines v. Equitable PCI Bank, Inc., the Court held that “it is a
decide a question otherwise moot if it is capable of repetition, yet
time-honored principle that when two or more cases involve the
evading review.
same parties and affect closely related subject matters, they must
Issue: Whether the CA pursuant to its internal rules can validly
be consolidated and jointly tried, in order to serve the best
order consolidation of cases.
interests of the parties and to settle expeditiously the issues
involved. In other words, consolidation is proper wherever the
Ruling: Consolidation of actions involving a common question of
subject matter involved and relief demanded in the different suits
law or fact is expressly authorized under Section 1, Rule 31 of the
make it expedient for the court to determine all of the issues
1997 Rules of Civil Procedure, to wit:
involved and adjudicate the rights of the parties by hearing the
suits together.”
SECTION 1. Consolidati0n. – When actions involving a
common question of law or fact are pending before the court, it
In the present case, there is no sufficient justification to order
may order a joint hearing or trial of any or all the matters in issue in
the consolidation inasmuch as the Deutsche Bank AG Petition has
the actions; it may order all the actions consolidated; and it may
no relation whatsoever to the Vitarich Petition. To recall, the
make such orders concerning proceedings therein as may tend to
Deutsche Bank AG Petition is an appeal on certiorari from the
avoid unnecessary costs or delay.
Order dated October 28, 2009 of the RTC Batangas in Sp. Proc. No.
06-7993. Vitarich case, on the other hand, is an appeal oncertiorari
and mandamus from the Order dated January 19, 2009 of the RTC
Consolidation of cases is also allowed under Section 3, Rule III of
Bulacan in Civil Case No. 592-M-2006.
the 2009 IRCA, to wit:

The fact that Deutsche Bank AG is a party to both cases does

Consolidation of Cases. – When related cases are assigned to
not make the proceedings intimately related. There is no factual
different Justices, they may be consolidated and assigned to one
relation between the two proceedings. SteelCorp proceedings
Justice.

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originated from SteelCorp’s rehabilitation proceedings which have
nothing to do with the Vitarich proceeding that originated from
Vitarich’s rehabilitation proceeding.
Neither are there interconnected transactions, nor identical subject
matter in the Deutsche Bank AG and Vitarich petitions. The former
involved issue resulting from the assignment of credits of RCBC to
Deutsche Bank AG whereas in the latter, the issue arose from the
assignment of the receivables of various creditors of Vitarich to
several corporations and special purpose vehicles(SPVs).
Verily, the two petitions having no factual relationship with and no
interconnected transactions on the same subject matter, they
cannot be deemed “related cases.” As such, the necessity to
consolidate does not become imperative. The order of
consolidation by the CA on the sole ground that the cases involved
a common question of law was, therefore, not in order.
consolidation of cases is proper when there is a real need to
forestall the possibility of conflicting decisions being rendered in
the cases. In the case under consideration, considering that
Deutsche Bank AG and Vitarich cases are not related, the risk of
conflicting decisions is a remote probability.
Lastly, in Active Wood Products Co., Inc. v. Court of
Appeals, the Court sustained the consolidation of the civil case filed
by Active Wood against State Investment House and the latter’s
petition for a writ of possession in the land registration case as they
involved the same parties and the same subject matter – Active
Wood’s two parcels of land, thus:
The consolidation of cases becomes mandatory because it
involves the same parties and the same subject matter which is the
same parcel of land. Such consolidation is desirable to avoid
confusion and unnecessary costs and expenses with the multiplicity
of suits. xxx (underscoring supplied)
Further, the Court finds merit in Deutsche Bank AG’s contention
that the consolidation of the subject cases will defeat the purpose
of consolidation.
It is well recognized that the purpose of the rule on consolidation is
to avoid multiplicity of suits; to guard against oppression and
abuse; to prevent delays; to clear congested dockets; and to
simplify the work of the trial court. In short, consolidation aims to
attain justice with the least expense and vexation to the parties-
litigants. It contributes to the swift dispensation of justice, and is in
accord with the aim of affording the parties a just, speedy, and
inexpensive determination of their cases before the courts.
Further, it results in the avoidance of the possibility of conflicting
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decisions being rendered by the courts in two or more cases, which
would otherwise require a single judgment.
Under the circumstances, the consolidation of the Deutsche
Bank AG Petition with the Vitarich Petition does not appear to be a
prudent move as it serves none of the purposes cited above. On
the contrary and as correctly pointed out by Deutsche Bank AG, it
will only complicate the resolution of the cases as the CA would
have to consider the different factual antecedents of both the
Deutsche Bank AG and Vitarich petitions.
Moreover, the question of law that the Vitarich proceedings
allegedly shares with the SteelCorp Proceedings – whether
Vitarich’s creditors could be compelled to disclose the sums paid
for the assigned Vitarich loans - has long been finally resolved and
has already become the law of the case among the parties in the
Vitarich rehabilitation proceedings. Thus, the consolidation would
unduly prejudice the banks and would lead to complications, delay
or restriction on the right of the banks to the immediate dismissal
of the Vitarich proceedings.
Furthermore, the consolidation will only subject the parties to
added expense and unjust vexation. The number of parties will
substantially increase so as the cost of furnishing the parties with
pleadings, thereby defeating the very rationale behind
consolidation.
Relevant is the case of Republic of the Phils. v. Hon. Mangrobang,
where the Court disallowed the consolidation of an ejectment case
and a case for eminent domain because the consolidation thereof
would complicate procedura requirements and delay the resolution
of the cases which raised dissimilar issues. The Court held that
fairness and due process might be hampered rather than helped if
the cases were consolidated.
Likewise, in Philippine National Bank v. Tyan Ming
Development, Inc the non-consolidation of PNB’s petition for a writ
of possession and GOTESCO’s complaint for annulment of
foreclosure proceeding was upheld for defeating the very purpose
of consolidation, thus:
The record shows that PNB’s petition was filed on May 26, 2006,
and remains pending after three (3) years, despite the summary
nature of the petition. Obviously, the consolidation only delayed
the issuance of the desired writ of possession. Further, it
prejudiced PNB’s right to take immediate possession of the
property and gave GOTESCO undue advantage, for GOTESCO
continues to possess the property during the pendency of the
consolidated cases, despite the fact that title to the property is no
longer in its name.
It should be stressed that GOTESCO was well aware of the
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expiration of the period to redeem the property. Yet, it did not
exercise its right of redemption. There was not even an attempt to
redeem the property. Instead, it filed a case for annulment of
foreclosure, specific performance, and damages and prayed for a
writ of injunction to prevent PNB from consolidating its title.
GOTESCO’s maneuvering, however, failed, as the CA and this Court
refused to issue the desired writ of injunction.
Cognizant that the next logical step would be for PNB to seek the
delivery of possession of the property, GOTESCO now tries to delay
the issuance of writ of possession. It is clear that the motion for
consolidation was filed merely to frustrate PNB’s right to
immediate possession of the property. It is a transparent ploy to
delay, if not to prevent, PNB from taking possession of the property
it acquired at a public auction ten (10) years ago. This we cannot
tolerate.
xxx
In De Vera v. Agloro, this Court upheld the denial by the RTC of a
motion for consolidation of a petition for issuance of a writ of
possession with a civil action, as it would prejudice the right of one
of the parties, viz.:
It bears stressing that consolidation is aimed to obtain justice with
the least expense and vexation to the litigants. The object of
consolidation is to avoid multiplicity of suits, guard against
oppression or abuse, prevent delays and save the litigants
unnecessary acts and expense. Consolidation should be denied
when prejudice would result to any of the parties or would cause
complications, delay, prejudice, cut off, or restrict the rights of a
party.[33] (underscoring supplied)
In the recent case of Espinoza v. United Overseas Bank
Phils.,the Court, in the same manner ruled against the
consolidation of the proceedings for the issuance of a writ of
possession with that for the declaration of nullity of a foreclosure
sale on the ground that it would run counter to the purpose of
consolidation:
In this case, title to the litigated property had already been
consolidated in the name of respondent, making the issuance of a
writ of possession a matter of right. Consequently, the
consolidation of the petition for the issuance of a writ of possession
with the proceedings for nullification of foreclosure would be
highly improper. Otherwise, not only will the very purpose of
consolidation (which is to avoid unnecessary delay) be defeated
but the procedural matter of consolidation will also adversely
affect the substantive right of possession as an incident of
ownership.
Indeed, the consolidation of actions is addressed to the sound
discretion of the court and its action in consolidating will not be
disturbed in the absence of manifest abuse of discretion. Grave
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abuse of discretion defies exact definition, but it generally refers to
capricious or whimsical exercise of judgment as is equivalent to
lack of jurisdiction. The abuse of discretion must be patent and
gross as to amount to an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an
arbitrary and despotic manner by reason of passion and hostility.
In this particular case, however, the exercise of such
discretion by the CA in ordering the consolidation of the Deutsche
Bank AG Petition and the Vitarich Petition was less than judicious
considering that the two cases were not intimately and
substantially related.
Lest it be misunderstood, the CA may prescribe reasonable
rules governing assignment of cases with similar questions of law
or facts to one justice. In case of consolidation, however, it may be
effected only if the said cases are related. Needless to state,
assignment is different from consolidation.
WHEREFORE, the petition is GRANTED. The March 12, 2010 and
the July 19, 2010 Resolutions of the Court of Appeals in CA-G.R. SP
No. 111556 are REVERSED and SET ASIDE.
Severance contemplates a single action having a number of claims,
counterclaims, cross claims, 3rd party complaints or issues which
may be separately tried.
General rule:
Consolidation is discretionary upon the court.
Exceptions:
Consolidation becomes a matter of duty when the cases are:
1. pending before the same judge; or
2. filed with different branches of the same RTC and one of such
cases has not been partially tried.
Purpose:
To avoid multiplicity of suits, guard against oppression or abuse,
prevent delay, clear congested dockets, simplify the work of the
trial court and save unnecessary costs and expenses.
Q: When is consolidation of actions proper?
A: Consolidation is proper:
1.) when two or more actions involve the same or a
common question of law or fact; and
2.) the said actions (at least 2) are pending before the same
court. (Section 1, Rule 31; PAL vs. Teodoro, 97 Phil. 461)
3.) if filed with different courts, an authorization from the
Supreme Court is necessary.
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First requisite: TWO OR MORE ACTIONS INVOLVE THE SAME OR A
COMMON QUESTION OF LAW OR FACT
Did you notice that phrase – “two or more actions involve the same
or a common question of law or fact”? That phrase seemed to be
familiar. ”Common question of law or fact,” where did we meet
that requirement before? That is in joinder of causes of action –
two or more causes of action can be joined in one pleading if they
involve a common question of fact or law. Rule 3, Section 6:
SEC. 6 Permissive joinder of parties – All persons in whom or
against whom any right to relief in respect to or arising out of the
same transaction or series of transactions is alleged to exist,
whether jointly, severally, or in the alternative, may, except as
otherwise provided in these rules, join as plaintiffs or be joined as
defendants in one complaint, where any question of law or fact
common to all such plaintiffs or to all such defendants may arise
in the action; but the court may make such orders as may be just
to prevent any plaintiff or defendant from being embarrassed or
put to expense in connection with any proceedings in which he
may have no interest.
The phrase answers the questions:
Q: When may 2 or more parties be joined together in one
complaint, either as co-plaintiffs or co-defendants?
A: There must be a common question of fact or law involved in
their causes of action.
Q: When may actions be consolidated?
A: One of the requisites is: when the actions involve a common
question of law or fact.
In other words, there must be a connection somewhere between
the rule on Consolidation of actions in Rule 31, with the rule on
Permissive Joinder of Parties in Rule 3.
When we were in Rule 3, an EXAMPLE was given: Suppose 30
people were riding on a bus which met an accident and all the
plaintiffs were injured. After the incident, the 30 of them decided
to file claims for damages against the bus company. They hired the
same lawyer.
Q: Can the lawyer file 30 complaints for each plaintiffs?
A: YES.
Q: Can the lawyer file only one complaint naming as co-plaintiffs
the 30 injured passengers?
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A: YES, that is permissive joinder of parties which is encouraged to
expedite litigation, to avoid multiplicity of suits, to economize the
procedure or avoid repetition of evidence. There are the
justification for permissive joinder of parties in Rule 3 Section 6 but
they can only join in one complaint if they have the same lawyer.
Q: But suppose the 30 passengers were injured and after their
discharge from the hospital the 30 of them hired separate
lawyers.?
A: There can be no joinder of parties. You cannot join the parties in
one complaint because each plaintiff is represented by a different
lawyer.
In this case, there should be 30 complaints filed let’s say, in the RTC
of Davao City, and they are raffled to different branches or judges.
The defendant might feel that he would rather have the 30 cases
tried together. Defendant says, “This is difficult. Imagine 30 cases
sa 30 salas? Iba-ibang courts. My witnesses would have to testify
30 times because there are 30 separate complaints.”
Q: Can the 30 cases be joined together para isang judge na lang?
A: YES. The lawyer for the bus company can file a motion under
Rule 31, Section 1 to consolidate the actions. Meaning, the 30
cases should be raffled and assigned to only one judge, there being
a common question of law or fact. This is to economize the
procedure if the evidence will be presented only once. Thus, every
time when the case is called, the 30 cases would be tried together.
Para ka na ring nag-permissive joinder of parties.
The purpose of consolidation is to achieve the same effect of
permissive joinder of parties under Rule 3, Section 6. You end in
having only one case, kaya lang 30 complaints are to be tried
together. That is why there is a connection between consolidation
and permissive joinder of parties.
Second Requisite: THE SAID ACTIONS ARE PENDING BEFORE THE
SAME COURT
Q: In the example above, suppose one passenger filed his case in
Davao City, another passenger filed his case in Tagum because he
resides there, and another files his case in Mati, can there be
consolidation of their cases?
A: NONE. You cannot consolidate because they are pending in
different courts in different provinces. The law says it must be in
the same court.
Take note that cases are consolidated because it will expedite their
termination, thereby economizing on the procedure. Cases are
consolidated not only when the cases are before the trial court.
There are many times when cases are consolidated or joined
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together even when they are already on appeal, provided, there is
a common question of law or fact.
If we look at the SCRA, sometimes the decision involves 2 or 3
cases. The caption sometimes has 3 or more cases, but there’s only
1 decision. And these cases are coming from different parts of the
country. Why are these cases joined before the SC? Because there
is a common question of fact or law or legal issue. So, even in the
SC, cases are consolidated and decided together for the first time.
Ang tawag dyan is COMPANION CASES because the same issues are
being raised in the petitions.
Three (3) ways of consolidating cases:
1. by recasting the cases already instituted - reshaping of the cases
by amending the pleading and dismissing some cases and retaining
only one case. There must be joinder of causes of action and of
parties;
2. by consolidation proper or by consolidating the existing cases - It
is a joint trial with joint decision, the cases retaining their original
docket numbers; and
3. by test-case method - by hearing only the principal case and
suspending the hearing on the other cases until judgment has been
rendered in the principal case. The cases retain their original
docket numbers.
Consolidation of cases on appeal and assigned to different divisions
of the SC and the CA is also authorized.
The consolidation of civil and criminal cases is allowed. This is now
sanctioned under Section 2(a), R 111 of the Rules of Criminal
Procedure (Canos vs. Pealta, GR No. L-38352, Aug. 19, 1982)
CONSOLIDATION under RULE 31 vs. CONSOLIDATION OF
CRIMINAL ACTIONS under RULE 119
Now, there is also a provision in the rules on Criminal Procedure on
consolidation of criminal actions under Rule 119, Section 14:
SEC. 14. Consolidation of trials of related offenses. - Charges for
offenses founded on the same facts, or forming part of a series of
offenses of similar character may be tried jointly at the court's
discretion. (Rule 119)
Q: Distinguish Consolidation of civil actions from Consolidation of
criminal actions.
A: The following are the distinctions:
1.) In civil cases, one or more causes of action may be
embodied in one complaint because when there is
permissive joinder, there is automatic consolidation also;
whereas
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In criminal cases, only one offense can be the subject of one
complaint or information. consolidation of criminal actions is
exclusively for joint trial;
Q: Can you file one complaint or information embodying two or
more crimes?
A: NO. You cannot. That is what you call duplicitous complaint or
information. There is no such thing as joinder of crimes. Therefore,
the so-called consolidation of criminal actions is not actually filing
one information but it is only for the purpose of joint trial.
2.) In civil cases, the opposite of consolidation is severance
under Section 2; whereas
In criminal cases, the opposite of consolidation is separate trial. In
reality, there is actually no consolidation of criminal cases. There is
only joint trial of criminal cases.
Under the rules on Criminal Procedure the offended party may
reserve the right to file the civil action separately when the criminal
action is filed, the civil action is deemed instituted unless the
offended party will make a reservation to file it separately. Or,
when the civil action was instituted ahead, the subsequent filing of
the criminal case will mean there is no more civil action there. And
in Section 2 of Rule 111, suppose the offended party made a
reservation to institute a civil action and a criminal case is filed, he
cannot file the civil action – that’s the rule. He must wait for the
outcome of the criminal case. The criminal case enjoys priority.p
Q: What happens if na-una na-file yung civil action?
A: According to Section 2, Rule 111 from the moment the criminal
case is filed, the trial of the civil case is suspended to wait for the
outcome of the criminal case.
Q: Is this prejudicial to the offended party? What is the remedy of
the offended party?
A: There is a way out according to Section 2, Rule 111. The first
thing for him to do is to file a petition to consolidate the trial of the
criminal and civil case for them to be tried together and the
evidence already presented in the civil case is deemed
automatically reproduced in the criminal case. This is what you call
the consolidation of the civil and criminal action under Section 2,
Rule 111:
“…Nevertheless, before judgment on the merits rendered in the
civil action, the same may, upon motion of the offended party, be
consolidated with the criminal action in the court trying the
criminal action…” (Section 2, Rule 111)
Q: Is this consolidation mandatory?
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A: NO. It is permissive. Actually, the offended party is the one to

initiate this because if not, then he has to wait for the criminal case Section 2 is the exact opposite of Section 1. In Section 1, there are
to be terminated before he can file the civil case. 2 or more cases which shall be joined together for joint trial. In
section 2, there is one case with several claims, i.e. counterclaims,
Q: Can you move to consolidate in one court the criminal and the cross-claims and third-party complaints. The rule states that they
civil case when actually the degree of proof required in one case is should be tried together, one after the other, and then one
different from the degree of proof required in another case? decision.
A: That was answered in the affirmative in the case of
So for example, you ask the judge for a separate schedule for your
CAÑOS vs. PERALTA 3rd-party claim. Then there will be a separate schedule for the
115 SCRA 843 3rd–party complaint rather than following the order of trial under
Rule 30. Under the order of trial, I have to wait for my turn to prove
FACTS: This case originated in Digos, Davao del Sur, involving the my 3rd-party claim. If we follow Rule 30 (order of trial) before it
late Dr. Rodolfo Caños, who owned the Caños Hospital there. The reaches the 3rd-party complaint, matagal masyado.
respondent here was former CFI Judge Elvino Peralta. There was
an incident which led to the filing of a criminal case by A against B. But under Section 2, the court may grant a separate trial for your
A reserved the right to file a separate civil action under the rules on 3rd-party claim or permissive counterclaim especially when there is
criminal procedure. A filed a separate civil case, but arising out of no connection between my permissive counterclaim with the main
the same incident. Both of the cases were assigned to Judge action.
Peralta.
When Judge Peralta noticed that the 2 actions arose out of the
same incident – and the accused in the criminal case is also the
defendant in the civil case, and the offended party in the criminal
case is the plaintiff in the civil case, he ordered the consolidation of
the 2 cases under Rule 31, Section 1, to be tried together.
Dr. Caños objected to the consolidation because according to his
lawyer, consolidation of cases under Rule 31, Section 1 applies only
when there are 2 or more civil cases to be considered.

ISSUE #1: Was the consolidation proper?

HELD: The order of consolidation is correct. Rule 31, Section 1
allows the consolidation of a criminal and civil case because of the
fact that there is a common question of fact or law between them
and that they are pending before the same court. As a matter of
fact, before the same judge.

ISSUE #2: How do you reconcile these cases because the degree of
proof in the criminal case is not the same in the civil case?
HELD: The consolidation was proper under Rule 31 because there is
a common question of fact and law. They can be consolidated but
for purposes of decision, the court will now apply two (2) different
criteria: Proof beyond reasonable doubt in the criminal case and
preponderance of evidence in the civil case. So there is no
incompatibility.

SEC. 2. Separate trials. - The court, in furtherance of convenience

or to avoid prejudice, may order a separate trial of any claim,
cross-claim, counterclaim, or third-party complaint, or of any
separate issue or of any number of claims, cross-claims,
counterclaims, third-party complaints or issues. (2a)

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Rule 32 bayad na lahat. Wala na syang utang. This is a question of

accounting.
TRIAL BY COMMISSIONER The court will have to determine whose records are correct and
accurate – invoices, receipts, etc… must be presented, which might
be hundreds or thousands in volume. This will consume a lot of
Trial by commissioner applies when there is something to be tried
time of the court.
which requires some technical expertise, like accounting, which the
The fact that the case involves accounting and the judge is not an
court feels it does not possess, and it will be a waste of time if
accountant (it is different if the judge is a CPA/lawyer, hindi
everything will be tried in court. So, the court will refer it to a
mahirap), the judge then should appoint an accountant to assist
commissioner, “You hear that and then you submit a report. Submit
him. That accountant is known as the commissioner. That will
you report, you finding and your recommendation.” And that
certainly shorten the time and expedite the resolution of the case.
person is known as a commissioner.
The judge can then attend to other cases while the parties are
presenting all their invoices and receipts before the
Commissioner is a person to whom a case pending in court is
accountant/commissioner.
referred, for him to take testimony, hear the parties and report
thereon to the court, and upon whose report, if confirmed,
Example #2:
judgment is rendered (2 Martin, p. 142)
Prof. X and Magneto are owners of adjoining properties. Magneto
put up a fence. Prof. X sued Magneto for forcible entry on the
SEC. 1. Reference by consent – By written consent of both parties,
ground that Magneto encroached on Prof. X’s ground, and praying
the court may order any or all of the issues in a case to be
for the recovery of, say, 200 meters. Magneto contends that he
referred to a commissioner to be agreed upon by the parties or to
built the fence on the boundary line.
be appointed by the court. As used in these Rules, the word
The judge will look at the title of the land: “point degree 9, etc..” –
“commissioner” includes a referee, an auditor and an examiner.
only surveyor or a geodetic engineer understands that! In this case,
the court may appoint a geodetic engineer, order the submission of
Reference to a commissioner may be had by the written consent of
the titles of the lands to him, he will go to the area, sukat-sukatin
both parties.
niya, and he will draw a sketch and then based on the sketch, he
will determine whether or not there is an encroachment. The
General rule:
appointed surveyor or geodetic engineer is called a commissioner.
Trial by commissioner depends largely upon the discretion of the
court; but the following are instances when such appointment is
This is what you call trial by commissioner. And take note that
mandatory:
under Section 1, trial by commissioner is possible by mutual
1. Expropriation (R 67);
agreement of the parties. The parties must agree. Either you can
2. Partition (R 69);
agree on who is the CPA, who is the engineer, or you can ask the
3. Settlement of Estate of a Deceased Person in case of contested
court to appoint somebody
claims; and
4. Submission of accounting by executors or administrators.
Q: Suppose the parties cannot agree, or one party files a motion
asking for the appointment of a commissioner. Is the court still
Note: An irregularity in the appointment of a commissioner must be
empowered to apply Rule 32?
seasonably raised in the trial court where the defect could still be
A. YES, under section 2:
remedied. It can be waived by consent of the parties or implied.

SEC. 2. – Reference ordered on motion – When the parties do not

This was mentioned when we were talking about pre-trial. This is
consent, the court may, upon the application of either or of its
one of the purpose of a pre-trial. That is Rule 18, Section 2 [f]: “(f)
own motion, direct a reference to a commissioner in the following
The advisability of a preliminary reference of issues to a
cases:
commissioner; ” This provision is actually referring to Rule 32.
a.) When the trial of an issue of fact requires the examination of a
long account on either side, in which case the commissioner may
Example #1:
be directed to hear and report upon the whole issue or any
Prof. X and Magneto had continuous transactions. After a long
specific question involved therein;
while, their records do not anymore reconcile. Prof. X filed a case
b.) When the taking of an account is necessary for the information
against Magneto on the ground that Magneto has not yet paid an
of the court before judgment, or for carrying a judgment or order
obligation which is already due. Based on Magneto’s records,
into effect;

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c.) When a question of fact, other than upon the pleadings, arises
upon motion or otherwise, in any stage of a case, or for carrying a
judgment or order into effect.
Section 1 is reference by consent and Section 2 is reference
ordered on motion. Paragraphs (a), (b) and (c) are the good
grounds for a motion to appoint a commissioner.
In (a), it requires an examination of a long account. The best
example here is example #1 – accounting.
In (b) and (c), notice that a commissioner may be appointed for
carrying a judgment or order into effect. Thus, a commissioner,
can be appointed not only to help the court render a decision, but
also help the court enforce a decision – even if tapos na ang case.
Because sometimes, problems arise on how to implement a
decision of the court. Example:
There was a case of boundary dispute. Prof. X built his house near
the boundary of his property. According to his neighbor, Magneto,
a portion of the house of Prof. X encroached on his land. About 25
sq. m. lang. Prof. X lost. The court says to Prof. X: “You are directed
to return the 25 sq. m. which you occupied.” The sheriff will go
there to return the 25 sq. m. Which part of the house will the
sheriff demolish? The sheriff returns to the court because he
cannot understand and he does not know how to implement the
decision. So, the court solves that by appointing a surveyor as a
commissioner to find out where that 25 sq. m. will be taken from
the portion of the house.
Q: Give other examples of trial by commissioner.
A: The following:
1.) Special Civil Action of Expropriation under Rule 67 –
when the court has to determine just compensation.
Under Rule 67, it is mandatory for the court to appoint a
commissioner in order to determine as to how much the
value of the property;
2.) Special Civil Action of Partition under Rule 69. When the
heirs cannot agree on how to partition a property under
co-ownership, the court may appoint a commissioner to
study and submit its report.
So take note that trial by commissioner is allowed not only for the
purpose of the court rendering the judgment but also for the
purpose of carrying a judgement or order into effect.
SEC. 3. Order of reference; powers of the commissioner. - When a
reference is made, the clerk shall forthwith furnish the
commissioner with a copy of the order of reference. The order
may specify or limit the powers of the commissioner, and may
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direct him to report only upon particular issues, or to do or
perform particular acts, or to receive and report evidence only,
and may fix the date for beginning and closing the hearings and
for the filing of his report. Subject to the specifications and
limitations stated in the order,the commissioner has and shall
exercise the power to regulate the proceedings in every hearing
before him and to do all acts and take all measures necessary or
proper for the efficient performance of his duties under the order.
He may issue subpoenas and subpoenas duces tecum, swear
witnesses, and unless otherwise provided in the order of
reference, he may rule upon the admissibility of evidence. The
trial or hearing before him shall proceed in all respects as it would
if held before the court. (3a, R33)
Requisites of the order of reference;
1. it must state the purpose;
2. it must be in writing; and
3. it may specify or limit the power of the commissioner.
Powers of Commissioner
1. exercise power to regulate the proceedings before him;
2. do all acts and take all measures necessary or proper for the
efficient performance of his duties;
3. swear witnesses;
4. issue subpoenas and subpoenas duces tecum;
5. unless otherwise provided in the order of reference, rule upon
the admissibility of evidence.
Note: Requirement of hearing cannot be dispensed with as this is
the essence of due process.
So a commissioner is parang judge rin. In effect he is an assistant
judge. Biro mo, he can issue subpoenas, swear witnesses, and
unless otherwise provided in the order of reference, may rule
upon the admissibility of evidence, of course, subject to the final
approval of the court.
Compare that with Rule 30 when there is an ex-parte reception of
evidence where the clerk of court is delegated to receive evidence.
But the clerk of court cannot rule on the admissibility of evidence.
To my mind, for example, in cases involving accounting, the best
commissioner would be a CPA-lawyer because he knows about the
law on evidence and accounting. Kung boundary conflicts naman,
the best. commissioner would be a geodetic engineer-lawyer.
However, you rarely find that combination.
SEC. 4. Oath of commissioner. - Before entering upon his duties
the commissioner shall be sworn to a faithful and honest
performance thereof. (14, R33)
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SEC. 5. Proceedings before commissioner. - Upon receipt of the
order of reference and unless otherwise provided therein, the
commissioner shall forthwith set a time and place for the first
meeting of the parties or their counsel to be held within ten (10)
days after the date of the order of reference and shall notify the
parties or their counsel. (5a, R33)
SEC. 6. Failure of parties to appear before commissioner. - If a party
fails to appear at the time and place appointed, the commissioner
may proceed ex parte or, in his discretion, adjourn the
proceedings to a future day, giving notice to the absent party or
his counsel of the adjournment. (6a, R33)
Where the order was merely to examine the accounts involved in
the counterclaim without any direction to hold hearings, the
commissioner do not need the presence of the parties (Froilan vs.
Pan Oriental Shipping GR No. L-6060, Sept. 30, 1954)
SEC. 7. Refusal of witness. - The refusal of a witness to obey a
subpoena issued by the commissioner or to give evidence before
him, shall be deemed a contempt of the court which appointed
the commissioner. (7a, R33)
EXAMPLE: I, as a commissioner, subpoenaed you and you will not
show up. I will report you to the court which appointed me and the
court which appointed me will declare you in contempt of court.
Remember, the commissioner is acting by authority of the judge.
That’s why he has powers under the law.
SEC. 8. Commissioner shall avoid delays. - It is the duty of the
commissioner to proceed with all reasonable diligence. Either
party, on notice to the parties and commissioner, may apply to
the court for an order requiring the commissioner to expedite the
proceedings and to make his report. (8a, R33)
The commissioner shall expedite the proceedings. He
should hurry up the report.
Sec. 9. Report of commissioner. - Upon the completion of the trial
or hearing or proceeding before the commissioner, he shall file
with the court his report in writing upon the matters submitted to
him by the order of reference. When his powers are not specified
or limited, he shall set forth his findings of fact and conclusions of
law in his report. He shall attach thereto all exhibits, affidavits,
depositions, papers and the transcript, if any, of the testimonial
evidence presented before him. (9a, R33)
Delegation to Clerk of Court and Trial by Commissioner
1. The Clerk of Court must be a lawyer while a commissioner need
not be a lawyer;
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2. The Clerk of Court cannot rule on objections or on the
admissibility of evidence while the commissioner can;
3. Delegation to the clerk of court is made during trial while a
commissioner can be appointed even after the case has become
final and executory.
SEC. 10. Notice to parties of the filing of report.
- Upon the filing of the report, the parties shall be notified by the
clerk, and they shall be allowed ten (10) days within which to
signify grounds of objections to the findings of the report, if they
so desire. Objections to the report based upon grounds which
were available to the parties during the proceedings before the
commissioner, other than objections to the findings and
conclusions therein set forth, shall not be considered by the court
unless they were made before the commissioner. (10, R33)
Of course, the parties are given a copy of the report. And if it is
against you, you can question the findings of that commissioner.
Sometimes, it is very difficult because there is already a court
appointed commissioner but you have to get another CPA to check
on his report.
Note: Objections to the report based upon grounds which were
available to the parties during the proceedings before the
commissioner shall not be considered by the court, unless they
were made before the commissioner.
SEC. 11. Hearing upon report. - Upon the expiration of the period
of ten (10) days referred to in the preceding section, the report
shall be set for hearing, after which the court shall issue an order
adopting, modifying, or rejecting the report in whole or in part, or
recommitting it with instructions, or requiring the parties to
present further evidence before the commissioner or the court.
(11a, R33)
When the commissioner files his report with the court, the court
will now schedule it for hearing. The parties will be furnished
copies and during the hearing, if you do not agree with the report,
you can present objections thereto or criticize the report. You can
defend or attack it. The court will then determine whether to
accept the report or not.
That’s why under Section 11, the court shall issue an order
adopting, modifying, rejecting the report, in whole or in part, or
recommitting (ibalik) it to the commissioner with instruction, or
requiring the parties to present further evidence. The court is not
bound 100% to swallow everything in the report. But the court
rarely rejects the report of the commissioner, unless talagang there
is no basis for it. Chances are, when the report has support, talo ka
na. Although it is not conclusive.
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Now take note that when the court approves a report, the findings
of the commissioner becomes the findings of the court.

Q: So, can the findings of the commissioner on question of fact be

questioned by the parties?
A: YES, under Section 11.

Q: Is there an exception that the finding of the commissioner on

factual issues become final and no longer be questioned?
A: YES, under Section 12:

SEC. 12. Stipulations as to findings. - When the parties stipulate

that a commissioner's findings of fact shall be final, only questions
of law shall thereafter be considered. (12a, R33)

This is the only instance where you cannot question the

commissioner’s report – when there is already an agreement
beforehand that the findings of fact by the commissioner are final,
we accept. So the principle of estoppel applies in this case and only
questions of law will then be considered. Meaning, factual issues
are binding upon the parties.

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

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

Q: Is the commissioner entitled to compensation?

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

Q: How is the commissioner paid?

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

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Rule 33 prosecution the opportunity to be heard or (2) upon demurrer to

evidence filed by the accused with or without leave of court.
DEMURRER TO EVIDENCE If the court denies the demurrer to evidence filed with leave of
court, the accused may adduce evidence in his defense. When the
demurrer to evidence is filed without leave of court, the accused
Q: Define demurrer to evidence.
waives the right to present evidence and submits the case for
A: Demurrer to evidence is a motion to dismiss filed by the
judgment on the basis of the evidence for the prosecution. (15a)
defendant after the plaintiff had rested his case, on the ground of
The motion for leave of court to file demurrer to evidence shall
insufficiency of evidence. (Ballentine’s Law Dict., 2nd Ed., p. 358)
specifically state its grounds and shall be filed within a non-
extendible period of five (5) days after the prosecution rests its
Nature: There is only a one-sided trial, i.e., it is only the plaintiff
case. The prosecution may oppose the motion within a non-
who has presented evidence.
extendible period of five (5) days from its receipt.
If leave of court is granted, the accused shall file the demurrer to
Purpose:
evidence within a non-extendible period of ten (10) days from
To discourage prolonged litigation.
notice. The prosecution may oppose the demurrer to evidence
within a similar period from its receipt.
Q: What is the difference between the “no cause of action” under
The order denying the motion for leave of court to file demurrer
Rule 16 and the “no cause of action” under Rule 33?
to evidence or the demurrer itself shall not be reviewable by
A: Under Rule 16, the ground of no cause of action is based on the
appeal or by certiorari before judgment. (n)
complaint, while under Rule 33, the ground of no cause of action is
based on the plaintiff’s evidence.
It is now emphasized in Section 23, Rule 119 that a demurrer may
be filed with or without leave of court. If you file demurrer with or
NOTE: If the complaint states a cause of action, the defendant
without leave and it is granted, then you have no problem because
cannot file a motion to dismiss under Section 1[g], Rule 16 because
the accused will be acquitted.
he hypothetically admits the allegations in the complaint. So they
have to go to trial. Now, if during the trial, the plaintiff failed to
The problem is, if your demurrer is denied. Meaning, the court says
prove his cause of action (meaning, there is really no cause of
that there is sufficient evidence to prove at least the guilt of the
action), it is now proper for the defendant to file a motion to
accused. If the demurrer was filed with prior leave of court and it is
dismiss on the ground of insufficiency of evidence under Rule 33,
subsequently denied, the accused is allowed to present evidence to
and not under Rule 16 because in the first place, the plaintiff’s
prove his defense.
complaint states cause of action.

But if he filed the demurrer without prior leave of court and the
demurrer is denied, then you are already convicted because the
accused has forfeited his right to present evidence. It is practically
SEC. 1. Demurrer to evidence. - After the plaintiff has completed
equivalent to a waiver of his right to present evidence. So
the presentation of his evidence, the defendant may move for
conviction automatically follows.
dismissal on the ground that upon the facts and the law the
plaintiff has shown no right to relief. If his motion is denied, he
NOTE: Under the new rules on Criminal Procedure, when the
shall have the right to present evidence. If the motion is granted
accused will file a leave of court to file a demurrer, he must
but on appeal the order of dismissal is reversed he shall be
specifically state the grounds. (c.f. Rule 119, Section 23, third
deemed to have waived the right to present evidence. (1a, R35)
paragraph)

Now, there is a similar rule in criminal procedure under Rule 119,

Alright, that is in criminal cases. There is a similar rule in civil cases,
Section 23 – demurrer to evidence in criminal cases. Rule 33 is
Rule 33.
demurrer to evidence in civil cases.

DEMURRER TO EVIDENCE IN CRIMINAL CASES

DEMURRER TO EVIDENCE IN CIVIL CASES

SEC. 23. Demurrer to evidence. – After the prosecution rests its

Q: Under the Rule on Trial, who presents evidence first?
case, the court may dismiss the action on the ground of
insufficiency of evidence (1) on its own initiative after giving the

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A: It is the plaintiff. The plaintiff presents evidence to prove his
cause of action. He must prove his case or his claim by
preponderance of evidence.
Q: Suppose after the plaintiff has rested, the plaintiff has not
proven his cause of action?
To borrow the language of the law, after the plaintiff has
completed the presentation of his claim, the defendant may move
for dismissal on the ground that upon the facts and the law, the
plaintiff has shown no right to relief. Meaning, you have not
proven your cause of action by preponderance of evidence.
Demurrer to Evidence and Motion to Dismiss under R 16
1. Demurrer is presented after the plaintiff has rested his case
while a motion to dismiss is presented before a responsive pleading
is served by the defendant;
2. A demurrer is grounded on insufficiency of evidence while a
motion to dismiss has several grounds;
3. if the motion is denied the defendant may present his evidence
while if the motion to dismiss is denied the defendant may file his
responsive pleading;
4. If the motion is granted, the complaint is dismissed. The remedy
of the plaintiff is to appeal while if the motion to dismiss is granted,
the complaint is dismissed and depending on the ground, the
complaint may be re-filed.
Effect of Denial of the Demurrer to Evidence
1. If the demurrer is denied, the defendant shall have the
right to present his evidence (Sec. 1). This means that
the denial of the demurrer to evidence does not deprive
the defendant to adduce evidence in his behalf.
2. Where a court denies a demurrer to evidence, it should
set the date for the reception of the defendant’s
evidence in chief. It should not proceed to grant the
relief demanded by the plaintiff (Northwest Airlines, Inc.
vs. CA 284 SCRA 408).
3. An order denying a demurrer to the evidence is
interlocutory and is therefore, not appealable. It can
however, be the subject of a petition for certiorari in
case of grave abuse of discretion or an oppressive
exercise of judicial authority (Katigbak vs. Sandiganbayan
405 SCRA 558).
4. Note that a party who, files a demurrer to evidence that
is subsequently denied in an election case, cannot insist
on the right to present evidence. The provision of the
Rules of Court governing demurrer to evidence does not
apply to an election case (Gementiza vs. Comelec 353
SCRA 724). The Rules of Court, under the express dictum
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in Sec. 4 of Rule 1 “shall not apply to election cases, land
registration, cadastral, naturalization and insolvency
proceedings…”
Effect of Granting of the Demurrer to Evidence
“If the motion is granted but on appeal the order of dismissal is
reversed he shall be deemed to have waived the right to present
evidence.”
1. If the demurrer is granted, the case shall be dismissed.
However, if on appeal the order granting the motion is
reversed, the defendant loses the right to present
evidence (Sec. 1; Republic vs. Tuvera GR No. 148246,
February 16, 2007).
2. It is not correct for the appellate court reversing the
order granting the demurrer to remand the case to the
trial court for further proceedings. The appellate court
should, instead of remanding the case, render judgment
on the basis of the evidence submitted by the plaintiff
(Radioweath Finance Corporation vs. del Rosario 335
SCRA 288).
3. A demurrer to evidence abbreviates judicial proceedings,
it being an instrument for the expeditious termination of
an action. Caution, however, must be exercised by the
party seeking dismissal of a case upon this ground as
under the rules, if the movant’s plea for the dismissal on
demurrer to evidence is granted and the order of
dismissal is reversed on appeal, he loses his right to
adduce evidence. If the defendant’s motion for judgment
on demurrer to evidence is granted and the order is
subsequently reversed on appeal, judgment is rendered
in favor of the adverse party because the movant loses
his right to present evidence. The reviewing court cannot
remand the case for further proceedings; rather, it
should render judgment on the basis of the evidence
presented by the plaintiff (The Consolidated Bank and
Trust Corporation vs. Del Monte Motor Works, Inc., GR
No. 143338, July 29, 2005).
Q: Suppose the court agrees with the defendant and his motion is
granted. In other words, the defendant has succeeded in dismissing
the complaint without even presenting his own side – I won a
boxing bout without even throwing a single punch. What will
happen now?
A: The court will dismiss the case. BUT if plaintiff appeals to the CA
and insists that his evidence is sufficient to prove his cause of
action, therefore the order of the dismissal by the RTC is wrong,
and CA agrees with the plaintiff – that the plaintiff’s evidence is
sufficient to prove his claim – the CA will reverse the order of
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dismissal. The CA will immediately now decide the case in favor of
the plaintiff and the plaintiff will automatically win.
Q: The defendant may argue: “Well, the order was reversed. Eh di
ibalik ang kaso. Let’s go back to the RTC and let me present my
side.” Is the defendant correct?
A: NO. Under Section 1, if your demurrer is granted by the trial
court and is reversed on appeal, the defendant loses forever his
right to present his evidence. Therefore defendant has no more
right to present his side. That is tantamount to saying the
defendant automatically loses the case.
Favorite BAR QUESTION: How do you distinguish the rule on
demurrer of evidence in civil cases with the rule of demurrer in
criminal cases?
A: The following are the distinctions:
1. In CIVIL cases when the demurrer is denied, the
defendant will now present his evidence to prove his
defense because the defendant does not waive his right
to present in the event the demurrer is denied; whereas
In CRIMINAL cases, if the demurrer of the accused is denied the
accused is no longer allowed to present evidence if he had no prior
leave of court;
2. In CIVIL cases, if the defendant’s demurrer is granted and
the case is dismissed and the plaintiff appeals to the
appellate court and on appeal the court reverses the
order of dismissal, the appellate court renders judgment
immediately in favor of the plaintiff. There is no more
remanding. The defendant loses his right to present
evidence; whereas
In CRIMINAL cases, if the demurrer is granted, there is no more
appeal by the prosecution because the accused has already been
acquitted. Otherwise, there will be a case of double jeopardy;
3. In CIVIL cases, the court cannot on its own initiative,
dismiss the case after the plaintiff rests without any
demurrer by the defendant. There is no such thing as
motu propio demurrer; whereas
In CRIMINAL cases, the court may dismiss the action on its own
initiative after giving the prosecution the chance to present its
evidence.
In both cases, the motion is raised only after the prosecution or the
plaintiff has presented his case and the ground is based on
insufficiency of evidence.
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Take note that under Rule 9 of the Old Rules of Court, defenses and
objections not pleaded either in a motion to dismiss or in the
answer are deemed waived. Among the exceptions (lack of
jurisdiction, res adjudicata, etc.) is “when there is no cause of
action.” Meaning, the ground of no cause of action cannot be
waived. The same can be raised at any stage during the trial or
even on appeal.
Now, such ground is not anymore found under the New Rules.
What does it mean? Do you mean to tell me that such ground is
waivable now? NO. The ground of no cause of action is now
incorporated under Rule 33, such that during the trial when there is
really no cause of action, your remedy is to file a demurrer to
evidence under Rule 33. So there is no need to refer to Rule 9
anymore.
ENOJAS vs. COMELEC
283 SCRA 229 [1997]
HELD: “The motion to dismiss on the ground of jurisdiction can be
easily be differentiated from a motion to dismiss on demurrer to
evidence in that, in the latter case, the movant admits the truth or
factual allegations in the complaint and moves for the dismissal of
the case on the ground of insufficiency of evidence. The legal effect
and consequence of a demurrer to evidence is that in the event
that the motion to dismiss on demurrer to evidence is granted and
the order of dismissal is reversed on appeal, the movant loses his
right to present evidence in his behalf.”
“However, in a motion to dismiss on the ground of lack of
jurisdiction, the movant does not lose his right to present
evidence.”
“It likewise bears stressing that a demurrer to evidence under Rule
33 is in the nature of a motion to dismiss on the ground of
insufficiency of evidence and is presented after the plaintiff rests its
case. It thus differs from a motion to dismiss under Rule 16 which is
grounded on preliminary objections and is presented at the outset
of the case, that is before a responsive pleading is filed by the
movant and within the period for the filing thereof.”
Judgment on Demurrer to Evidence is a judgment rendered by the
court dismissing a case upon motion of the defendant, made after
plaintiff has rested his case, on the ground that upon the facts
presented and the law on the matter, plaintiff has not shown any
right to relief.
Note: The requirement under the Rule would apply if the demurrer
is granted, for in this event, there would in fact be adjudication
upon the merits of the case, leaving nothing more to be done
(Nepomuceno v. COMELEC, GR No. L-60601, Dec. 29, 1983).
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Rule 34 pleadings (Falcasantos vs. How Suy Cheng GR No. l-4229, May 29,
1952)
JUDGMENT ON THE PLEADINGS
Allegations not deemed admitted by filing a motion for judgment
on the pleadings:
SEC. 1. Judgment on the pleadings.- Where an answer fails to
1. Irrelevant allegations;
tender an issue, or otherwise admits the material allegations of
2. Immaterial allegations; and
the adverse party's pleading, the court may, on motion of that
3. Allegations of damages in the complaint.
party, direct judgment on such pleading. However, in actions for
declaration of nullity or annulment of marriage or for legal
llustration:
separation, the material facts alleged in the complaint shall
always be proved. (1a, R19)
PROBLEM: Plaintiff files a complaint. Defendant files an answer.
The answer contains what you call defenses – negative, affirmative
Judgment on the pleadings is an expeditious way of terminating a
defenses. Now, after the defendant files the answer, his issues are
civil action. There is no more trial and judgment will be rendered
joined. Next step is pre-trial. If the case is not terminated in pre-
based on what the plaintiff says in his pleadings.
trial, next step is trial. That’s the procedure.
But suppose I will file a complaint against you and you file your
Judgment on the pleadings is a judgment rendered by the court if
answer where you admitted everything that I said in my complaint.
the answer fails to tender an issue, or otherwise admits the
All the allegations in the complaint are admitted and no defense
material allegations of the adverse party's pleading.
was interposed by the defendant. So, meaning, the defendant filed
an answer which contains no defense at all. Everything is admitted.
It is rendered without a trial, or even without a pre-trial.
Should the case go to trial? Should the plaintiff prove his cause of
action? What is there to prove when you admitted everything? So,
Nature of judgment on the pleadings
there is no more trial because everything is admitted by the
defendant.
1. The concept of a judgment on the pleadings will not
apply when no answer is filed. It will come into operation
Q: In the above case, what should the plaintiff do?
when an answer is served and filed but the same fails to
A: The plaintiff will now apply Rule 34. He will file a motion in court
tender an issue or admits the material allegations of the
which is known as Judgment on the Pleadings. He will ask the court
adverse party’s pleading (Sec. 1)
to render judgment based on what the complaint says and what
2. An answer fails to tender an issue when the material
the answer says. No more evidence. Eto ang sabi ng complaint,
allegations of the other party are admitted or not
“Oh! You borrowed money, and you did not pay.” Sabi ng answer,
specifically denied by the pleader. Under the rules,
“admit! admit! admit!” Oh, ano pa? What is there to be tried?
material allegations of the complaint are deemed
You admitted everything, so the court will now decide! You can
admitted (sec. 11 R 8).
render a decision based on what the complaint says and what the
3. When there is no answer, the proper remedy for the
answer says and the court will immediately render judgment for
plaintiff is to file a motion to declare defendant in
the plaintiff. So wala ng trial.
default.

Rule 34 is one of the procedures or remedies under the Rules of

A motion is required
Court for the prompt expeditious resolutions of civil actions – one
of the fastest ways of resolving a civil dispute because plaintiff files
A judgment on the pleadings must be on motion of the claimant.
the complaint, defendant files his answer, plaintiff asks for
However, if at the pre-trial the court finds that a judgment on the
judgment and the case is decided. No more pre-trial, no more trial.
pleadings is proper, it may render such judgment motu proprio
Why? There is nothing to try kasi wala ka mang depensa.
(sec. 2g R 18)
Everything that I say in my complaint you admit.

One who prays for judgment on the pleadings without offering

Grounds for Judgment on the pleadings
proof of his own allegations and without giving the opposing party
Q: Under Rule 34, what are the grounds for Judgment on the
any opportunity to introduce evidence must be understood to
Pleadings?
admit all the material and relevant allegations of the opposing
A: The following are the grounds:
party and to rest his motion for judgment on those allegations
1.) When an answer fails to tender an issue; or
taken together with such of his own as are admitted in the

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2.) When an answer otherwise admits all the material
allegations of the adverse party’s pleading.
Q: When does an answer fail to tender an issue?
A: An answer fails to tender an issue:
1.) when it neither admits nor denies the allegations in the
complaint;
It neither admits nor denies. So, you cannot do that. Either you
admit or you deny the allegations in the complaint. You cannot
say, “Defendant does not admit, he does not also deny the
allegation.” Meaning you are trying to be evasive. That is not
allowed.
2.) when all the denials in the answer are general denials
and not specific.
A denial is general if the pleader does not state the facts relied
upon in support of his denial – “Defendant denies the allegations in
paragraphs 1, 2, 3, 4, 5, 6, 7 and 8.” That is an answer which does
not tender an issue because all the denials are general, or no
knowledge or information sufficient to form a belief. Just like what
happened in the case of CAPITOL MOTORS vs. YABUT.
Note: By moving for judgment on the pleadings, plaintiff waives his
claim for unliquidated damages. Claim for such damages must be
alleged and proved.
So if an answer contains evasive allegations, denials which are
general, it does not also tender any issue aside from the fact that it
also admits the law. Consider it as an admission of the material
allegations of the complaint. Therefore plaintiff will now move for
an immediate judgment in his favor. That is why it is called
judgment on the pleadings.
Now, judgment on the pleadings has already been mentioned in
the previous rule that we took up. Let’s go back to pre-trial in Rule
18 because there is a mention there on judgment on the pleadings.
Section 2, Rule 18:
SEC. 2. Nature and purpose. - The pre-trial is mandatory. The
court shall consider:
xxx
g) The propriety of rendering judgment on the pleadings,
or summary judgment, or of dismissing the action
should a valid ground therefor be found to exist.
xxx
In other words, during the pre-trial, the defendant there and based
on his pleadings, meron siyang defense. But during the pre-trial, he
makes now an admission, “Actually, your honor, wala akong
depensa ba. I have no defense.” Court: “Ah, wala ka ba? Okay.
Judgment on the pleadings!” – tapos!
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Or, another example: Collection case. According to the defendant
in his answer the obligation is paid. And then during the trial, the
court asks the defendant, “Are you serious that the obligation is
paid?” Defendant: “Actually your honor, wala pa. Hindi pa bayad.”
Court: “Ganoon ba? O plaintiff, what do you say?” Plaintiff: “I move
for judgment on the pleadings.” Tapos! The case is finished
because the admission is made in the course of the pre-trial that he
has no valid defense.
CASES WHERE JUDGMENT ON THE PLEADINGS WILL NOT APPLY
Q: Give the exceptions to the rule on judgment on the pleadings.
A: Judgment on the pleadings does not apply:
1.) in actions for declaration of nullity or annulment of
marriage; or
2.) in actions for legal separation;
3.) when the issue is the amount of unliquidated damages
because there must always be evidence to prove such
amount (Rule 8, Section 11);
4.) when only conclusions of law are being alleged.
So, judgment on the pleading is not allowed on actions for nullity of
marriage or for legal separation. It cannot be resolved based only
on what the complaint and what the answer says. Otherwise, if we
will allow Rule 34 in that kind of action, then it is very easy for
husbands and wives to have their marriages annulled or in
obtaining a legal separation.
So, the premise is similar to Rule 9 on Defaults. There is no default
judgment in actions for legal separation based on the same
principle. It is a one-sided story and collusion or connivance
between the parties is possible.
Motion to Dismiss and Motion for Judgment on the pleadings
A motion to dismiss is filed by a defendant to a complaint,
counterclaim, cross claim or third-party complaint; while the latter
is filed by the claiming party if the answer fails to tender an issue or
admits the material allegations in the claim.
Note: If the complaint states no cause of action, a motion to
dismiss should be filed and not a motion for judgment on the
pleadings.
A judgment on the pleadings is one that is considered ex parte
because upon particular facts thus presented, the plaintiff is
entitled to judgment or motu proprio under Rule 18 2g (Dino v.
Valencia GR No. L-43886 July 19, 1989)
-oOo-
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Rule 35 any material fact except as to the amount of damages

(Ley Construction and Development Corporation vs.
SUMMARY JUDGMENTS Union Bank GR No. 133801’ June 27, 2000; Spouses
Agbada vs. Inter-Urban developers Inc., GR No. 1445029,
September 19, 2000; Raboca vs. Velez 341 SCERA 543).
Rule 35 is another important rule – Summary judgments. The rule
Under the Rules, when there is no genuine issue as to
on summary judgments and judgment on the pleadings are similar.
any material fact, other than for instance, the amount of
They are related to each other. Rule 34 and Rule 35 have a
damages, and the moving party is entitled to a judgment
common denominator. Rule 35 is also a speedy procedure for the
as a matter of law, a summary judgment may be
early resolution or decision in a civil case. The same concept but
rendered.
with a difference. In Rule 34 on judgment on the pleadings, the
2. What triggers a summary judgment is the absence of a
answer filed by defendant has put up no defense at all. No defense
genuine factual issue. It is not proper where there are
has been raised or the answer admits all the material allegations in
factual issues to be resolved by the presentation of
adverse party’s pleadings. In Rule 35, the answer filed by
evidence. Even if there is a complicated question of law
defendant puts up a defense but the defense is not a genuine
if there is no issue as to the facts, a summary judgment is
defense. Meaning, it is invoked only for the purpose of delay and
not barred (Velasco v. CA 329 SCRA 392; Garcia vs. CA
the defense is not actually seriously being interposed.
336 SCRA 475).
3. In an action for foreclosure of mortgage for example, the
Q: Define summary judgment procedure.
material issues are the existence of the debt and its
A: Summary judgment procedure is a method for promptly
demandability. When the defendant admits the
disposing of actions in which there is no genuine issue as to any
existence of the debt and raises an issue as to the
material fact. (De Leon vs. Faustino, L-15804, Nov. 29, 1960)
demandability of the debt or the interest rate involved
because of an alleged contemporaneous agreement
Summary judgment is a judgment rendered by a court without trial
between the parties, the issue tendered is sham,
if it is clear that there exists no genuine issue or controversy as to
fictitious, or patently unsubstantial. A summary
any material fact, except as to the amount of damages.
judgment would be proper because there is no genuine
issue (Sps. Agbada vs. Inter-Urban Developers Inc.,
For summary judgment to be proper, two (2) requisites must
supra)
concur, to wit:
Where only the genuineness and due execution of the promissory
1. there must be no genuine issue on any material fact, except for
note are the matters deemed admitted for the failure of the
the amount of damages; and
defendant to deny the same under oath, a summary judgment is
2. the moving party must be entitled to a judgment as a matter of
not proper.
law.

In an action for a sum of money, where the debt and the fact of its
When on their face, the pleadings tender a genuine issue, summary
non-payment is admitted and the only issue raised is the rate of
judgment is not proper. An issue is genuine if it requires the
interest and the damages payable, there is no genuine issue and a
presentation of evidence as distinguished from a sham, fictitious,
summary judgment may be rendered upon proper motion.
contrived or false claim. (Ontimare vs. Elep GR No. 159224, January
20, 2006)
4. The Court, in Asian Development and Construction
Corporation vs. PCIB, GR No. 153827, April 25, 2006,
Even if the answer does tender an issue, and therefore a judgment
reiterated the principles governing summary judgment
on the pleadings is not proper, a summary judgment may still be
as follows:
rendered if the issues rendered are not genuine, set-up in bad faith
and patently insubstantial (Vergara vs. Suelto GR No. L-74766, Dec.
“…Under the Rules, summary judgment is appropriate when there
21, 1987)
is no genuine issues of fact which call for the presentation of
evidence in a full-blown trial. Even if on their face the pleadings
Nature of Summary Judgment
appear to raise issues, when the affidavits, depositions and
admissions show that such issues are not genuine, then summary
1. A summary judgment, also called accelerated judgment,
judgment as prescribed by the Rules must ensue as a matter of law.
is proper where, upon a motion filed after the issues had
The determinative factor, therefore, in a motion for summary
been joined and on the basis of the pleadings and papers
filed, the court finds that there is no genuine issue as to

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

a judgment on the pleadings under Rule 34 or a summary judgment
under Rule 35. Judgment can be rendered summarily during the
pre-trial.

DIMAN vs. ALUMBRES

299 SCRA 459 [Nov. 27, 1998]

FACTS: The plaintiff files a motion for summary judgment where he

said under oath that the defense is false. The trial court denied it,
“A summary judgment is not proper where the defendant
presented defenses tendering factual issues which call for the
presentation of evidence.” Is the trial court correct.

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

grounds relied on by the judge are proper for the denial of a
motion for judgment on the pleadings – as to which the essential
question, as already remarked, is: are these issues arising from or
generated by the pleadings? – but not as regards a motion for
summary judgment – as to which the crucial question is: issues
having been raised by the pleadings, are those issues genuine, or
sham or fictitious, as shown by affidavits, depositions or admissions
accompanying the application therefor?” So those are the
questions to be answer in a summary judgment, not whether or
not there is an answer.
“Errors on principles so clear and fundamental as those herein
involved cannot but be deemed so egregious as to constitute grave
abuse of discretion, being tantamount to whimsical or capricious
exercise of judicial prerogative.”

Last point to remember: as a General Rule, you cannot secure

judgment by motion alone. This is because a MOTION is defined as
any petition for relief other than the relief prayed for in the
pleadings. (Rule 15, Section 1)
A motion prays for relief other than through a pleading. The other
way of stating it is, a motion prays for relief other than through a
judgment because a judgment is prayed in a pleading and not in a
motion. So a motion as a rule, cannot pray for immediate
judgment.

But there are three (3) known exceptions where a motion can
already pray for immediate relief. They are:
1.) Rule 33 – Demurrer to evidence;
2.) Rule 34 – Judgment on the Pleadings; and
3.) Rule 35 – Summary Judgment.

In those exceptions, the movant is already asking for a judgment

which normally is not stated in a motion.
–oOo-

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Rule 36
It is vital to keep in mind that in the process of rendering a
JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF judgment or in resolving controversies, courts can only consider
facts and issues pleaded by the parties. Courts, as well as
magistrates presiding over them are not omniscient. They can only
There are three (3) important stages in a civil action.
act on the facts and issues presented before them in appropriate
pleadings. They may not even substitute their own personal
Q: What are these three (3) stages?
knowledge for evidence. Nor may they take notice of matters
A: The following:
except those expressly provided as subjects of mandatory judicial
notice (Social Justice Society vs. Atienza GR No. 156052, February
1.) First stage: Issue Formulation Stage
13, 2008).
It is the stage in which we are trying to find out what are the issues
we are quarreling about. This is done by filing a complaint, answer
Q: What are the requisites of a valid judgment?
to know the defenses, counterclaim, answer to counterclaim, third
A: There are the requisites for a valid judgment:
party complaint. This is the stage of formulation of issues.
After the last pleading is filed, we go to pre-trial where we will
1.) the court rendering judgment must have jurisdiction over
discuss the simplification of issues, advisability of amending the
the subject matter;
pleadings, etc. Therefore, during pre-trial we are still formulating
issues to be tackled. When the pre-trial is terminated and there is
2.) the court rendering judgment must have jurisdiction over
no settlement, we proceed to stage 2:
the person of the defendant, and in case the defendant is
a non-resident, the court rendering judgment must have
2.) Second stage: Stage of Proof (Rule 30 on Trial)
jurisdiction over the res;
We are now on trial where the parties will now offer their
evidence. It is called the stage of proof. Plaintiff presents evidence
3.) the court rendering judgment must have jurisdiction over
to prove his claim. Defendant presents evidence to prove his
the issues, that is, the judgment shall decide only the
defense. Parties present rebutting evidence. So this is the stage
issues raised by the parties in their pleadings;
where the parties will prove their respective contentions.
After the case has been tried and everything has been argued
4.) the court rendering judgment must be a validly
under Rule 30, the last stage is….
constituted court and the judge thereof, a judge de jure
or de facto; Thus, the court has not been abolished; the
3.) Third stage: Judgment Stage (Rule 36)
judge has been appointed and has not retired nor
This is the stage where the court will now decide and render
separated from service. That is why there is a rule even
judgment.
in criminal cases that if the judgment is promulgated
after the judge has already retired, the judgment is void.
There must be another promulgation.
Q: Define Judgment.
A: Judgment is the final consideration and determination by a court
EXAMPLE: Judge tries a case, prepares the decision and signs it.
of the rights of the parties as those rights presently exist, upon
Before the decision is promulgated, the judge died or retired. In
matters submitted to it in an action or proceeding. (Gotamco vs.
this case, any promulgation to be made cannot be valid. The next
Chan Seng, 46 Phil. 542)
judge must be the one to promulgate it – write the decision again
and sign it. What is important is the judge who rendered.
A judgment is the final ruling by the court of competent jurisdiction
regarding the rights or other matters submitted to it in an action or
ABC DAVAO AUTO SUPPLY vs. COURT OF APPEALS
proceeding (Macahilig vs. Heirs of Gracia M. Magalit 344 SCRA
284 SCRA 218 [January 16, 1998].
838).

FACTS: The case was tried by a judge (Agton) who was temporarily
Parts of a judgment:
assigned to Mati. He wrote the decision and had it released but by
1. The opinion of the court - contains the findings of facts and
that time, he was already back in Mati presiding over his court. The
conclusions of law;
losing party contended that the judgment was not valid.
2. the disposition of the case - the final and actual disposition of
the rights litigated (the dispositive part); and
3. signature of the judge (Herrera, p. 145)

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HELD: The judgment is VALID because when the new judge denied
the motion for reconsideration, he effectively adopted in toto the
decision of the Mati judge. And besides, the Mati judge was still a
judge when he rendered his decision.
“The subsequent motion for reconsideration of Judge Agton's
decision was acted upon by Judge Marasigan himself and his denial
of the said motion indicates that he subscribed with and adopted in
toto Judge Agton's decision. Any incipient defect was cured.
Branches of the trial court are not distinct and separate tribunals
from each other. Jurisdiction does not attach to the judge but to
the court.”
5.) the judgment must be rendered after lawful hearing,
meaning that due process must be observed. (Busacay
vs. Buenaventura, 50 O.G. 111, Jan. 1954; Rueda vs.
Juan, L-13764, Jan. 30, 1960; Rojas vs. Villanueva, 57
O.G. 7339, Oct. 9, n1961; Rayray vs. Chae Kyung Lee, L-
18176, Oct. 26, 1966)
There must be a trial where both sides are given the chance to be
heard. In case of a defaulted defendant, due process was observed
because he was given the opportunity to defend himself. But he did
not file an answer. The essence of due process is the fact that you
are given the opportunity to be heard.
6.) The evidence must have been considered by the tribunal
in deciding the case (Acosta vs. Comelec 293 SCRA 578)
7.) The judgment must be in writing, personally and directly
prepared by the judge; a verbal judgment is, in
contemplation of law, not in esse, therefore, ineffective
(Corpus vs. Sandiganbayan 442 SCRA 294).
8.) The judgment must state clearly the facts and the law on
which it is based, signed by the judge and filed with the
clerk of court (Sec. 1 R 36; Sec. 14, Art. II, Constitution;
Report on the Judicial Audit Conducted in the MTC of
Tambulig, 472 SCRA 419). This requirement refers to
decisions and final orders on the merits, not to those
resolving incidental matters (Pablo-Gualberto vs.
Gualberto V 461 SCRA 450).
Sec. 1. Rendition of judgments and final orders. - A judgment or
final order determining the merits of the case shall be in writing
personally and directly prepared by the judge, stating clearly and
distinctly the facts and the law on which it is based, signed by
him, and filed with the clerk of the court. (1a)
Q: What are the FORMAL requisites of a valid judgment?
A: There are four (4) formal requisites:
1.) The judgment shall be in writing;
2.) It shall be personally and directly prepared by the judge;
3.) It shall state clearly and distinctly the facts and the law
on which it is based; and
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4.) It shall be signed by the judge and filed with the clerk of
court.
First formal requisite: THE JUDGMENT SHALL BE IN WRITING
There is no such thing as an oral judgment.
BAR QUESTION: After the parties presented their evidence, the
judge asked the lawyers, “Are you going to argue?” The parties
said, “No more, Your honor. We are waiving our right to argue.”
So the judge dictated the decision to the clerk of court. The
judgment was against the defendant. The defendant appealed
next day. Do you count the period of appeal from that date when
he heard the decision?
ANSWER: NO. You still have to wait for the written decision.
Presumably, what is dictated by the judge will be transcribed.
From the time you receive it is the reckoning period for appeal,
notwithstanding the hearing of such decision in open court. That is
not yet the formal decision because under the law, there is no such
thing as oral decision. The judgment must be in writing.
Officially the decision is known to you on the date you received the
written judgment. Not the date when he dictated it in your
presence. There are judges before who could do that. Even now
those judges in Manila who became justices today do practice such
type of judgment. At present, judges no longer possess such skill.
They are given 90 days to decide the issue and yet at times, they
could not do so within the period mandated by law. How much
more on the spot decision?
Second formal requisite: IT SHALL BE PERSONALLY AND DIRECTLY
PREPARED
BY THE JUDGE
It is presumed that the judgment will be made by the judge
himself. Although sometimes it happens otherwise. The judge
should not delegate the writing to other people. There must be no
ghost writer.
Third formal requisite: IT SHALL STATE CLEARLY AND DISTINCTLY
THE FACTS AND THE LAW ON WHICH IT IS BASED
The most important – the decision should state clearly and
distinctly, the facts and the law on which it is based. Meaning, there
must be a justification for the dispositive portion. The judge must
argue why the party won or lost.
Normally in the facts, either the facts presented by plaintiff are
right and the facts presented by the defendant are wrong or vice-
versa. If you think the facts as presented by the plaintiff are correct
or not, you have to state why do you believe that it is correct or
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not, and also with the evidence of the defendant. The same thing
with legal questions because the plaintiff or the defendant relies on
the provisions of the laws or decided cases.
You have to state why the position of the defendant is wrong,
why is the law that he cited not applicable. You have to state your
facts and conclusions of law.
In the SCRA, the Supreme Court will discuss both sides, “According
to the plaintiff like this…According to the defendant like this…..and
so forth.” Then the decision will start by saying, “While the
petitioner is correct…” or, “While the defendant is correct…”
It is called the discussion of the facts and the law on which the
decision is based. It is a requirement in the Constitution, Article
VIII, Section 14:
Sec. 14. No decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and the law on
which it is based. xxx (Article. VIII, 1987 Constitution)
If a judge will render a decision like this: “This is a civil action to
collect an unpaid loan. According to the plaintiff: He borrowed
money for the sum of P80,000.00 payable on this date and despite
demands, he did not pay. According to the defendant in his answer:
the obligation is fully paid. ISSUE: Whether the loan has been paid
or not yet paid. Plaintiff, to prove his cause of action presented the
following witnesses and evidence. On the other hand, the
defendant, to prove his defense presented the following evidence.
WHEREFORE, the court renders judgment dismissing the
complaint.”
Such decision has no discussion on the findings of facts and the
law. There is no basis of the dismissal of the complaint. There is no
discussion on why is the evidence of the plaintiff believable and
why is the position of the defendant like that. So there is no
discussion of the facts and the law on which it is based. That is a
decision which violates the Constitution and Rule 36.
Another Illustration:
In an action for sum of money, plaintiff is unpaid. Defendant claims
the loan has been paid. The following is the evidence of the
plaintiff and the following is the evidence of the defendant. Then
the court now says: “After the meticulous study and analysis of the
evidence offered by both sides, the court is of the opinion that
plaintiff’s evidence is more logical, acceptable, probable and worthy
of credit. THEREFORE, judgment is hereby rendered ordering the
defendant to pay the loan.”
Q: Is this decision correct?
USC Center for Legal Aid Work 2013
A: NO. It still violates the law. There are no findings of facts or
conclusions of the law. Therefore, when the court said, “plaintiff’s
evidence is more logical, acceptable, probable and worthy of credit”
those are conclusions. They are not findings of facts. Meaning you
have to argue – why is it logical, why is it acceptable, why is it
probable, why is it worthy of credit. You must state it and rebut
the other side.
It is just like asking questions in the examinations. You will not
answer that “A is correct because his argument is correct
(period!).” You have to state why he is correct. That is also the
case in the decision. You must support your answer with details.
Now, every decision of every court must state the facts and the law
on which it is based. It must be in every court, no exceptions,
whether SC or an MTC. The Constitutional provision on this
requirement applies to all courts from the highest to the lowest.
However, the Judiciary Law allows the appellate court to make a
Memorandum Decision. If you are the appellate court (CA), you
either affirm or reverse the decision of the lower court. If the CA
will reverse the findings of the RTC, definitely the CA has to justify
why the findings of the RTC is wrong.
But suppose the CA will affirm, so there is nothing wrong with the
judgment of the RTC. Now, in order to shorten the period for
waiting for the decision and in order to hasten it, Section 40 of BP
129 allows the appellate court to simply quote verbatim the
findings and conclusion of the trial court and adopt it as its own.
This is what is called the Memorandum Decision. The concept of
memorandum decision which is found in Section 40, BP 129 is now
in Rule 51, Section 5 of the 1997 Rules, to wit:
Sec. 5. Form of decision.- Every decision or final resolution of
the court in appealed cases shall clearly and distinctly state the
findings of fact and the conclusions of law on which it is based,
which may be contained in the decision or final resolution itself,
or adopted from those set forth in the decision, order, or
resolution appealed from. (Sec. 40, BP Blg. 129) (n)
So the appellate court is now authorized to simply copy or refer the
true findings of fact and conclusions at the trial court if it is
affirming the latter’s decision. This is what we call memorandum
decision. The SC said that it is only allowed in simple cases, not in
complicated ones.
Q: Does the law require a particular style of writing a decision?
A: NO, style is dependent on every individual, but what is
important is that the facts and the law are distinctively stated. That
is the minimum requirement. The law does not care how you do it
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because the manner of presenting the facts and the law and the
discussion is a matter of style. Every person has his own style, and The fallo is the “WHEREFORE…”part while the discussions, findings
whether it is good or bad does not matter as long as you comply of facts, conclusion of law to justify the fallo is called the ratio
with the law. decidendi – the reasoning. (Contreras vs. Felix, 78 Phil. 570)

Q: In case of conflict between judgment and decision, which shall

NICOS INDUSTRIAL CORP. vs. COURT OF APPEALS
206 SCRA 127 [1992]
HELD: “Kilometric decisions without much substance must be
avoided, to be sure, but the other extreme, where substance is also
lost in the wish to be brief, is no less unacceptable either.” Too long
is bad, too short is bad either. “The ideal decision is that which,
with welcome economy of words, arrives at the factual findings,
reaches the legal conclusions, renders its ruling and, having done
so, ends.” This means that decisions must be brief but
comprehensive.
prevail?
A: The judgment shall prevail in case of such conflict, for it is an
elementary rule of procedure that the resolution of the court in a
given issue, as embodied in the dispositive part of the decision, is
the controlling factor that determines and settles the rights of the
parties and the issues presented therein." (Manalang vs. Rickards,
55 O.G. 5780, July 27, 1959)
ASIAN CENTER vs. NLRC
297 SCRA 727 [October 12, 1998]

FACTS: A vs. B. In the ratio decidendi, A is correct. Pero pagdating

PEOPLE vs. GONZALES sa WHEREFORe (judgment), A’s action is dismissed! And there was
215 SCRA 592 no statement in favor of B. A appeals. B contended that the
judgment prevails. Is B correct?
HELD: “Every judge has his own writing style, some tedious, some
terse, some pedestrian, some elegant, depending upon his training HELD: “The general rule is that where there is a conflict between
and outlook. Each is acceptable as long as the factual and legal the dispositive portion or the fallo and the body of the decision, the
bases are clearly and distinctly stated therein.” fallo controls. This rule rests on the theory that the fallo is the final
order while the opinion in the body is merely a statement ordering
nothing. However, where the inevitable conclusion from the body
PEOPLE vs. AMONDINA of the decision is so clear as to show that there was a mistake in
220 SCRA 6 the dispositive portion, the body of the decision will prevail.”

HELD: “The decision of the trial court is exceedingly long, without TYPES OF JUDGMENT
any effort to trim the fat and keep it lean. Judges are not
stenographers transcribing the testimony of the witnesses word for A.) Sin Perjuicio judgment
word. Judges must know how to synthesize, to summarize, to B.) Conditional judgment
simplify. Their failure to do so is one of the main reasons for the C.) Incomplete judgement
delay in the administration of justice. It also explains the despair of D.) Nunc pro tunc judgment
the public over the foot-dragging of many courts and their inability E.) Judgment upon a compromise or Judgment upon an amicable
to get to the point and to get there fast.” settlement
F.) Judgment upon a confession
G.) Judgment upon the merits
H.) Clarificatory judgment
I.) Judgment by default (Sec. 3 R 9)
Q: How do you distinguish a judgment from a decision? J.) Judgment on the Pleadings (R 34)
A: Actually, the decision is the entire written effort from the first K.) Summary Judgment (R 35)
sentence, “This is an action for a sum of money” until the end. It L.) Several judgment (Sec. 4 R 36)
contains everything from the findings of facts, discussion of M.) Separate judgment (Sec. 5 R 36)
evidence. N.) Special Judgment (Sec. 11 R. 39)
The judgment is usually the last paragraph –“WHEREFORE” – the O.) Judgment for specificactor (Sec. 10 R 39)
dispositive portion or the decretal portion. Sometimes it is called P.) Judgment on Demurrer to Evidence (R 33)
the fallo of the case. Q.) Final Judgment

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R.) Amended Judgment and Supplemental Judgment
A.) SIN PERJUICIO JUDGMENT
Q: What is an SIN PERJUICIO judgment?
A: A sin perjuicio is one which contains only the dispositive portion
of the decision and reserves the making of findings of fact and
conclusions of law in a subsequent judgment. (Dir. of Lands vs.
Sanz, 45 Phil. 117) So, there is a “WHEREFORE” without a ratio
decidendi. It does not state how the court arrived at a certain
decision.
Q: Is a SIN PERJUICIO judgment valid?
A: A sin perjuicio judgment is a VOID judgment for it violates the
constitutional provision that “no decision shall be rendered by any
court of. record without expressing therein clearly and distinctly
the facts and the law on which it is based” (Sec. 14, Art. VIIII), and
the provision of the Rules of Court that the judgment shall state
“clearly and distinctly the facts and the law on which it is based.
(Rule 36, Section 1)
B.) CONDITIONAL JUDGMENT
Q: What is a CONDITIONAL judgment?
A: A conditional judgment is one which is subject to the
performance of a condition precedent and is not final until the
condition is performed. (Jaucian vs. Querol, 38 Phil. 707)
Is one wherein the effectivity of which depends upon the
occurrence or non-occurrence of an event.
EXAMPLE: A sued B. Then the court said: “The A is correct because
so and so…. However, there is another case now pending before the
SC where the same issue is being raised. In the meantime, A is
correct. But in the event that SC decision comes out and is not
favorable to A, then this decision should also be automatically
changed in favor of B.” So, this is a conditional judgment. Is it a
valid judgment?
Q: Is a conditional judgment valid?
A: It is NOT valid. In truth, such judgment contains no disposition at
all and is a mere anticipated statement of what the court shall do in
the future when a particular event should happen. For this reason,
as a general rule, judgments of such kind, conditioned upon a
contingency, are held to be NULL and VOID. (Cu Unjieng y Hijos vs.
Mabalacat Sugar Co., 70 Phil. 380)
C.) INCOMPLETE JUDGMENT
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Q: What is an INCOMPLETE judgment? What is its effect?
A: An incomplete judgment is one which leaves certain matters to
be settled in a subsequent proceeding. (Ignacio vs. Hilario, 76 Phil.
605) There is a decision but there are still other matters to be
incorporated later in such decision. Parang interlocutory judgment.
EXAMPLE: There is judgment against B for a damage suit,
“Wherefore, judgment is hereby rendered ordering defendant to
indemnify the plaintiff, moral and exemplary damages (period!).” It
does not state how much. Mamaya na natin malaman kung
magkano. So kulang pa ang decision.
My golly! What is there to execute? You do not even know how
much is the award. It does not settle any question that may be the
subject of execution. (Araneta, Inc. vs. Tuason, 49 O.G. 45) The
judgment can never become final, it having left certain matters to
be settled for its completion in a subsequent proceeding. (Ignacio
vs. Hilario, 76 Phil. 605) So, the judgment is again defective.
D.) NUNC PRO TUNC JUDGMENT
Q: (Bar Question) What is a judgment NUNC PRO TUNC and what is
its function?
A: A judgment nunc pro tunc literally means a ’judgment now for
then.’ Its function is to record some act of the court done at a
former time which was then carried into the record. And the power
to make such entries is restricted to placing upon the record
evidence of judicial action which has actually been taken. It may be
used to make the record speak the truth, but not to make it speak
what it did not speak but ought to have spoken. (Lichauco vs. Tan
Pho, 51 Phil. 862)
Example: When a judge renders a decision, he must base his
findings on what happened on the trial or on the evidence
presented. Normally, the judge cites facts as bases for his findings.
Suppose, the judge, in his hurry, made some findings but forgot to
incorporate all those other important matters which can support
his findings. Na-overlook ba! He rendered his decision which was
lacking in something – inadvertently omitted. The judge may now
amend his judgment by including the matters missed – such
matters that have been admitted on record. Then, the judge now
has an improved decision – the judgment now is NUNC PRO TUNC.
What are to be added are things which really happened. The judge
has no power to include something which did not actually happen.
That would be irregular. How could you quote something which
never transpired during the trial.
So it is an amended judgment where certain matters which are
contained in the records and transpired in court were not
incorporated. So in order to make it clearer, we will incorporate
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those matters which should have been incorporated in the
amended decision. That is known as judgment nunc pro tunc. But
you can only place there matters which transpired, not matters
which did not transpire.
Q: In what cases is a judgment nunc pro tunc NOT proper?
A: A judgment nunc pro tunc is not proper in the following
instances:
1. It cannot remedy errors or omission in an imperfect or
improper judgment. (Lichauco vs. Tan Pho, 51 Phil. 862)
2. It cannot change the judgment in any material respect.
(Henderson vs. Tan, 87 Phil. 466) and
3. It cannot correct judicial errors, however flagrant and
glaring they may be. (Henderson vs. Tan, 87 Phil. 466)
E.) JUDGMENT UPON A COMPROMISE or
JUDGMENT UPON AN AMICABLE SETTLEMENT
Q: What is a JUDGMENT UPON A COMPROMISE?
A: A judgment upon a compromise is a judgment rendered with the
consent of the parties for the purpose of effecting a compromise or
settlement of an action. (31 Am. Jur. 105-108)
It is one rendered by the court on the basis of a compromise
agreement entered into between the parties.
This is the type of judgment which the law encourages because it is
a judgment with the consent of the parties for the purpose of
effecting a compromise or settlement. Usually mga collection cases
ito – tawaran – like i-condone ang interests, or half of the amount
na lang, etc. The court will render judgment copying word for word
what the parties say. So the compromise agreement becomes the
judgment and for a as long as the agreement is not contrary to law,
the court will approve it.
Q: In a compromise judgment, is the court required to make
findings of fact and conclusions of law? Why?
A: In a compromise judgment, the court is not required to make
findings of fact and conclusions of law. In contemplation of law,
the court is deemed to have adopted the statement of facts and
conclusions of law made and resolved by the parties themselves in
their compromise agreement; and their consent has made it both
unnecessary and improper for the court to make a preliminary
adjudication of the matters thereunder covered. (Palarca vs.
Anzon, L-14780, Nov. 29, 1960)
It is covered by Articles 2028 to 2046 of the New Civil Code
Q: How do you define a compromise?
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A: Under Article 2028 of the New Civil Code:
Art. 2028. A compromise is a contract whereby the parties, by
making reciprocal concessions, avoid a litigation or put an end to
one already commenced. (Civil Code)
So the essence of compromise is reciprocal concessions – give and
take. It is a mutual concession to avoid litigation or, if there is
already, that which will put an end. There are other definitions
given by the SC although the essence or substance is the same. In
the case of
SMITH BELL AND CO. vs. COURT OF APPEALS
197 SCRA 201
HELD: “A compromise is an agreement between two (2) or more
persons who, in order to forestall or put an end to a law suit, adjust
their differences by mutual consent, an adjustment which every
one of them prefers to the hope of gaining more, balanced by the
danger of losing more.”
If we go to trial, well, winner take all – either the plaintiff wins or
the defendant wins. If you are not sure of your position, then you
might as well get something out of it rather than risk losing
everything.
EXAMPLE: You sue me for P1 million. Then I say, “I would like to
offer a settlement”. You would say, “How much do you offer?
Well, my complaint is 1 million, so you pay me P1 million.” That is
not compromise, that is surrender. Kaya nga umaareglo ako para
makatawad. And if you will not receive anything less than a
million, you are not asking for a compromise, you are demanding
total surrender. If that is so then, let us go to court and find out if
you will get your P1 million and let us find out how many years
from now you can get your money.
Kaya in a compromise agreement, there are no winners and there
are no losers.
REPUBLIC OF THE PHILIPPINES vs. SANDIGANBAYAN
226 SCRA 314
FACTS: This is a case involving a compromise between the
government and Benedicto, a crony of President Marcos. He
entered into a compromise with the PCGG and the Supreme Court
approved it.
HELD: “Any compromise has its very essence reciprocal
concessions, one must give and one must take. If only one takes
all, then one must first win. But in a compromise, all win by taking
some and giving some.”
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Let’s go back to the law on Obligations and Contracts. There are
four (4) types of defective contracts: (a) void; (b) voidable; (3)
rescissible; and (4) unenforceable. Under the Civil Code, if one
party enters into a contract where he lacks the requisite authority,
the contract is unenforceable but it is a valid agreement.
Q: What is the effect of a compromise agreement entered into by a
lawyer, without any special authority from his client? Is it a null and
void agreement?
A: A lawyer cannot, without special authority, compromise his
client’s litigation. A judgment upon a compromise entered by the
court, not subscribed by the party sought to be bound by the
compromise agreement, and in the absence of a special authority
to the lawyer to bind his client in the said agreement, is
UNENFORCEABLE. (Dungo vs. Lopena, L-18377, Dec. 29, 1962)
Q: Suppose in the above case, the client learned about what his
lawyer did and he did not reject the agreement, as a matter of fact
he complied with it, what is now the effect on such agreement?
A: The agreement is now perfectly VALID and ENFORCEABLE
because the party himself did not question his lawyer’s authority.
When it appears that the client, on becoming aware of the
compromise and the judgment, failed to repudiate promptly the
action of his lawyer, he will not afterwards be heard to contest it.
(Banco Español-Filipino vs. Palanca, 37 Phil. 921)
Effects of judgment based on a compromise
Q: What are the legal effects of a judgment based upon a
compromise agreement?
A: A judgment upon a compromise agreement produces the
following legal effects:
1.) The compromise judgment is not appealable and it is
immediately executory. (Reyes vs. Ugarte, 75 Phil. 505;
Serrano vs. Miave, L-14687, March 31, 1965)
2.) It cannot be annulled unless it is vitiated with error,
deceit, violence or forgery of documents. (Morales vs.
Fontanos, 64 Phil. 19; Article 2038, Civil Code)
3.) It constitutes res adjudicata. (Art. 2037, Civil Code;
Sabino vs. Cuba, L-18328, Dec. 17, 1966) Meaning, the
same subject matter or cause of action can no longer be
reopened in the future in another litigation.
Q: Suppose you enter into a compromise agreement and there is a
judgment. You want to escape from the compromise judgment on
the ground that your consent was vitiated by mistake, error, deceit,
violence. How do you question it? What is your remedy?
USC Center for Legal Aid Work 2013
A: There are so many conflicting answers here. Some say you file a
motion to set aside the compromise judgment because your
consent was vitiated. And if the motion is denied, you appeal from
the order denying your motion to set aside. But definitely, you
cannot appeal from the compromise judgment because it is not
appealable. You appeal from the order denying your motion to set
aside the compromise judgment.
However, under the new rules, you cannot anymore appeal an
order denying a motion to set aside a judgment by consent,
confession or compromise on the ground of fraud, mistake, or
duress or any other ground vitiating consent (Section 1, Rule 41)
So an order denying a motion to set aside a judgment by
compromise on the ground of fraud, mistake, or duress or any
other ground vitiating consent is not appealable. Therefore,
whatever the answers before are not anymore true now. So what is
the REMEDY now?
It would seem that the correct remedy based on the new rules in
relation to some new cases, among which was the case of:
DOMINGO vs. COURT OF APPEALS
255 SCRA 189 [1996]
HELD: The correct remedy is for the party to file an action for
annulment of judgment before the Court of Appeals pursuant to
Section 9, par. 2, of the Judiciary Law. (now incorporated in Rule
47)
“A compromise may however be disturbed and set aside for vices
of consent or forgery. Hence, where an aggrieved party alleges
mistake, fraud, violence, intimidation, undue influence, or falsity in
the execution of the compromise embodied in a judgment, an
action to annul it should be brought before the Court of Appeals, in
accordance with Section 9(2) of Batas Pambansa Bilang 129, which
gives that court (CA) exclusive original jurisdiction over actions for
annulment of judgments of regional trial courts.”
The parties may submit compromise agreement at any stage of the
case, even if judgment has already become final and executory, and
even without approval of the court.
Advantage of Approval of the court
The court could render a judgment based upon a compromise and
in case of breach of any of the conditions, the party may ask the
court for execution of judgment under R 39.
F.) JUDGMENT UPON A CONFESSION (COGNOVIT JUDGMENT)
Q: What is a judgment upon a confession?
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A: A judgment upon a confession is a one entered against a person
upon his admission or confession of liability without the formality,
time and expense involved in an ordinary proceeding. (Natividad
vs. Natividad, 51 Phil. 613)
It is one rendered by the court when a party expressly agrees to the
other party's claim or acknowledges the validity of the claim
against him.
Two kinds of judgment by Confession:
1. Judgment by Cognovit Actionem
A judgment upon a confession is also known as “cognovit”
judgment.
The defendant after service instead of entering a plea
acknowledges and confesses that the plaintiff's cause of action is
just and rightful.
EXAMPLE: You file a case against me. Without filing an answer, I
simply appeared in court and tell the court that I am not contesting
the claim. I am admitting the complaint to be true and I am willing
to have judgment rendered against me. Or, I can also file my
answer kunwari lang ba, and then in court I will admit my liability.
That would be the basis of the judgment upon a confession.
As distinguished from judgment on the pleadings (Rule 34), in
judgment on the pleadings you have to go through the process of
filing an answer but actually your answer puts up no defense. In
judgment upon a confession, I may not even file an answer. Hindi
talaga ako maglaban. Upon receiving the complaint, I just say that I
am admitting liability. So there is no need of a default order. In
American Law, they call it nullo contendere, meaning no contest. Sa
criminal case pa, I am pleading “guilty.”
Judgment upon a confession, Judgment upon the pleadings, Default
judgment – Magkahawig sila. Only they vary a little bit. In default
judgment, the defendant failed to file an answer. So, he is declared
in default. In judgment upon the pleadings, defendant filed an
answer but the answer contains no defense. In judgment upon a
confession, he will not file an answer but will tell the court that he
is admitting liability. So, lahat will end up on the same thing: There
will be a judgment rendered against the defendant.
2. Judgment by confession relicta verificatione
After pleading and before trial, the defendant both confessed the
plaintiff's cause of action and withdrew or abandoned his plea or
other allegations, whereupon judgment is entered against him
without proceeding to trial.
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Now, during the commonwealth era, there were many American
lawyers who practiced law in the Philippines. Many judges were
Americans, even Justices of the Supreme Court – many of them
were Americans. American lawyers brought to the Philippines
types of agreements in American contracts. There was one
particular agreement known as “Warrant of Attorney to Confess
Judgment.” That is a standard clause in American contracts.
EXAMPLE: I am a bank. You borrow money from me and you sign a
promissory note which contains stipulations normally to the
advantage and in favor of the bank. They usually insert the
American clause “Warrant of Attorney to Confess Judgment” that in
the event that the bank will sue you on this promissory note, you
are entering into a confession judgment immediately. Meaning, I
am not going to defend myself and I am immediately confessing
judgment to the court. And who will confess judgment to the
court? The debtor will say “I hereby appoint the bank as my
representative to confess judgment to the court in my behalf.”
Parang Special Power of Attorney ba. The bank will go to the court
and say, “Under this paragraph, I represent the defendant-debtor
because he appointed me as his attorney-in-fact. And in behalf of
the defendant, I am confessing.”
The Supreme Court ruled that such stipulation is null and void in
the old case of:
NATIONAL BANK vs. MANILA OIL
43 Phil 444
HELD: Such type of clause is null and void for being contrary to
public policy because the defendant waives his right in advance to
defend himself. That is unfair because even before you are sued,
you have already waived your right to defend yourself.
But the judgment of confession is still allowed but one has to do it
himself, and must not be done in advance. Meaning, it must not be
done like the above acts of American lawyers as such is against
public policy. One must be first be given a chance for defense
which right be later on waived through voluntary confession.
Q: Distinguish a judgment upon a COMPROMISE from a judgment
upon a CONFESSION.
A: The following are the distinctions:
1.) In a judgment upon a COMPROMISE, the liability of the
defendant is to be determined in accordance with the
terms of the agreement of the parties; whereas
In a judgment upon a CONFESSION, the defendant confesses the
action and consents to the judgment that the court may render in
accordance with the compromise and the prayer therein (31 Am.
Jur. 108); and
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2.) In a judgment upon a COMPROMISE, there is give and
take; the parties haggle, bargain and agree on the terms
of the judgment; there is mutual or reciprocal
concessions; whereas
A judgment upon a CONFESSION is unilateral. It comes from the
defendant who admits his liability and accepts that judgment be
rendered against him.
3) In a judgment upon a compromise, the provisions and terms are
settled and agreed upon by the parties to the action, and which are
entered in the record by the consent of the court while a judgment
by confession is an affirmative and voluntary act of the defendant
himself. The court exercises a certain amount of supervision over
the entry of judgment.
Remedy against judgment by consent, confession or compromise
File a motion to set it aside then if denied file a petition under 65
which is appropriate (Sec. 1 R 41)
JUDGMENT UPON THE MERITS
It is one that is rendered after consideration of the evidence
submitted by the parties during the trial of the case.
CLARIFICATORY JUDGMENT
It is rendered to clarify an ambiguous judgment or one difficult to
comply with.
Where the judgment is difficult to execute because of ambiguity in
its terms, the remedy is to file a motion for clarificatory judgment
and not to assail the judgment as void. (Riano p. 405)
Promulgation of judgment
This refers to the process by which a decision is published, officially
announced, made known to the public or delivered to the clerk of
court for filing, coupled with notice to the parties or their counsel.
Memorandum decision is a decision of the appellate court which
adopts the findings and conclusins of the trial court.
Promulgation of judgment
1. The court renders a decision
2. After receipt of notice, the losing party has the following options:
a.) Accept the decision without further contest in which case the
judgment becomes final after period to appeal has lapsed; or
b.) Contest the judgment in which case he can:
1. File an appeal within 15/30 days from notice of judgment; or
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2. file a motion for reconsideration or a motion for new trial within
the period to appeal reckoned from notice of judgment.
If he filed a motion for recon or motion for new trial, two
possibilities can happen:
1. If granted, the court can modify the decision or allow new trial;
2. If denied, the losing party may appeal within a fresh period of 15
days from notice of denial (Neypes vs. CA)
The power to amend a judgment is inherent to the court before
judgment becomes final and executory.
General rule:
After judgment has become final and executory the court cannot
amend the same.
Exceptions:
1. to make correctios of clerical error, not substantial amendments,
as by an amendment nunc pro tunc;
2. to clarify an ambiguity which is borne out by and justifiable in
the context of the decision; or
3. in judgments for support, which can always be amended from
time to time.
Rule: The validity of a judgmentrot order of a court cannot be
collaterally attacked.
Except:
1. for lack of jurisdiction; or
2. irregularity of its entry apparent from the face of the record.
Sec. 2. Entry of judgments and final orders. - If no appeal or motion
for new trial or reconsideration is filed within the time provided
in these Rules, the judgment or final order shall forthwith be
entered by the clerk in the book of entries of judgments. The
date of finality of the judgment or final order shall be deemed to
be the date of its entry. The record shall contain the dispositive
part of the judgment or final order and shall be signed by the
clerk, with a certificate that such judgment or final order has
become final and executory. (2a, 10, R51)
If you lose a case, what are your options? I can either appeal
within the time provided by the Rules. Or, within the same period, I
will file a motion for a new trial or a motion for reconsideration. In
any case, the finality of the judgment will be stopped.
Q: Suppose the prescribed period has lapsed, there is no appeal, no
motion for new trial or reconsideration, what happens to the
judgment?
A: The judgment now becomes final and executory.
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According to Section 2, once the judgment has become final, it shall
be entered by the clerk of court in the Book of Entries of
Judgments. If you go to the office of the RTC, you will find an
official book which contains a chronological arrangement of cases,
based on the date of filing. Malaking libro yan.
Now, the second sentence is new and its effects are also significant,
“…the date of the finality of judgment or final order shall be
deemed to be the date of its entry.” The rule is, when does a
judgment become final? After the lapse of the period to appeal
and no appeal is filed.
EXAMPLE: Today, March 4, the lawyer for the defendant received a
copy of the judgment. The last day to appeal is March 19. Suppose
there is no appeal, then March 20 is the date of finality. On March
20 or immediately thereafter, the clerk of court should know the
judgment became final on March 20. Suppose the clerk of court
placed it in the book on March 30. So, the date of finality is March
20 but the date of entry is March 30.
Sometimes the clerk of court forgets to make the date of entry.
That is why under the old rules, the date of finality of judgment
does not coincide with the date of entry of judgment because the
clerk of court may do that thing months later. This creates a lot of
trouble. So to cure the discrepancy, the second sentence is now
inserted by the new law: “the date of finality of judgment shall be
deemed to be the date of its entry.”
Meaning, the judgment became final on March 20 although the
clerk of court noted it on March 30. Under the new rules, the date
of entry (March 30) retroacts to March 20. That is the significance
of the second sentence, they will automatically coincide. Kahit i-
enter pa yan next month, everything will retroact to the date of
finality. It is simplier now.
Note: Entry of judgment or final order assumes importance in
reckoning somereglementary periods such as the 5-year period for
execution by a motion (Sec. 6 R 39) or the 6-moth period for a
petition for relief (Sec. 3 R 38). Regalado, Remedial Law,
Compendium p. 413)
Sec. 3. Judgment for or against one or more of several parties. -
Judgment may be given for or against one or more of several
plaintiffs, and for or against one or more of several defendants.
When justice so demands, the court may require the parties on
each side to file adversary pleadings as between themselves and
determine their ultimate rights and obligations. (3)
Q: Suppose there are 2 plaintiffs A and B, can the court render
judgment in favor of plaintiff A and against plaintiff B? Or, is it
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possible that in one case, one defendant will win and the other
defendant will lose?
A: YES, especially when the causes of action or defenses are not the
same. One may invoke a defense that is only applicable to him but
not applicable to others.
Sec. 4. Several judgments. - In an action against several
defendants, the court may, when a several judgment is proper,
render judgment against one or more of them, leaving the action
to proceed against the others. (4)
Several judgment is one rendered by a court against one or more
defendants and not against all of them leaving the action to
proceed against the others.
Several judgment is proper where the liability of each party is
clearly separable and distinct from his co-parties such that the
claims against each of them could have been the subject of
separate suits, and the judgment for or against one of them will not
necessarily affect the other. A several judgment is not proper in an
action against solidary debtors. (Fernandez v. Sta. Maria GR No.
160730 Dec. 10, 2004)
Same concept. When there are 2 or more defendants, normally the
court renders judgment sabay-sabay. That is possible.
Q. Is it possible that more than one judgment will arise in a
civil action?
A. YES. There’s a judgment in favor of the plaintiff against
the defendant and the trial still continues with respect to other
defendants. That would involve more than one decision.
Judgment in favor of one defendant is rendered already but the
trial will continue with respect to other defendants is possible
under Section 4.
EXAMPLE: There was a case where the government filed a case for
expropriation against several landowners. The lands are adjoining
each other and the government would like to expropriate all these
properties. The government had to file on complaint against
several landowners. One landowner asked that his case be tried
ahead of the others. He was allowed under Rule 31 on Separate
Trial. His case was tried ahead. After trial, the court rendered
judgment against him. His land was ordered expropriated. Now,
what happened to the other defendants? The Supreme Court said
let the case continue against the other landowners. But there
would be a judgment in so far as one defendant is concerned.
(Municipality of Biñan vs. Garcia, 108 SCRA 576)
Sec. 5. Separate judgments. - When more than one claim for relief
is presented in an action, the court, at any stage, upon a
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determination of the issues material to a particular claim and all
counterclaims arising out of the transaction or occurrence which
is the subject matter of the claim, may render a separate
judgment disposing of such claim. The judgment shall terminate
the action with respect to the claim so disposed of and the action
shall proceed as to the remaining claims. In case a separate
judgment is rendered, the court by order may stay its
enforcement until the rendition of a subsequent judgment or
judgments and may prescribe such conditions as may be
necessary to secure the benefit thereof to the party in whose
favor the judgment is rendered. (5a)
Separate judgment is one rendered by a court disposing of a claim
among several others, presented in a case after determination of
the issues material to a particular claim and all counterclaims
arising out of transaction or occurrence which is the subject matter
of said claim.
these (counterclaim, cross-claim, etc), it is also possible that there
would be separate trials.
Distinctions:
Section 3 – refers to an action by several parties
Section 4 – refers to an action against several defendants
Section 5 – refers to several claims for relief in an action
Sec. 6. Judgment against entity without juridical personality. -
When judgment is rendered against two or more persons sued as
an entity without juridical personality, the judgment shall set out
their individual or proper names, if known. (6a)
Does that sound familiar? Two or more persons sued as an entity
without juridical personality. Let’s go back to Rule 3 Section 15 and
Rule 14 Section 8.

It is proper where more than one claim for relief is presented in an
action and a determination as to the issues material to the claim
has been made. The action shall proceed as to the remaining
claims.
Amended or Clarified judgment and supplemental decision
1. The first is an entirely new decision and supersedes the original
judgment while the latter stands side by side with the original;
2. In the first, the court makes a thorough study of the original
judgment and renders the amended and clarified judgment only
after considering al.l the factual and legal issues while the latter
serves to bolster or add to the original judgment.
Q: Can there be judgments at periods or stages of proceedings?
A: YES. There can be judgment insofar as one cause of action and
the proceedings will continue as to other causes of action.
PROBLEM: Three people are members of an entity without juridical
personality. They transact business with Mr. Alama. Mr. Alama
has no idea who are really the members of the said entity. He
wanted to sue the members of an entity.
Q1: How will he do it?
A: Rule 3, Section 15 – Mr. Alama will file a case against the
defendants by using the name of the entity they are using.
Q2: How should summons served to these defendants?
A: Rule 14, Section 8 – Summons may be served on anyone
of them or to the person in charge of the place of business.
Q3: How should judgment be rendered against them?
A: Rule 36, Section 6 – when judgment is rendered, the judgment
shall set out their individual and proper names.

Let us go back to Rule 30 on Order of Trial. You will notice that

there is order of trial when there are several claims in one action.

EXAMPLE: Plaintiff files a complaint against several defendants.

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

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

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Rule 37 b.) Action to Annul a Judgment;

c.) Certiorari; and
NEW TRIAL OR RECONSIDERATION d.) Collateral Attack of Judgment.

The counterpart of Rule 37 in criminal procedure is Rule 121. In

criminal procedure, there is also the remedy of new trial and
reconsideration.
Q: What is the effect when judgment becomes final and executory?
A: Under Rule 36, the court loses jurisdiction over the case hence, it
Section 1. Grounds of and period for filing motion for new trial or
cannot change the decision anymore.
reconsideration. Within the period for taking an appeal, the
aggrieved party may move the trial court to set aside the judgment
Q: What is the effect of filing a motion for new trial or
or final order and grant a new trial for one or more of the following
reconsideration on the period to appeal?
causes materially affecting the substantial rights of said party:
A: The period to appeal is suspended. Period to appeal is
(a) Fraud, accident, mistake or excusable negligence which ordinary
suspended except if your motion for new trial or reconsideration is
prudence could not have guarded against and by reason of which
pro-forma under Sections 2 and 5.
such aggrieved party has probably been impaired in his rights; or
(b) Newly discovered evidence, which he could not, with
reasonable diligence, have discovered and produced at the trial,
NEW TRIAL
and which if presented would probably alter the result.
Within the same period, the aggrieved party may also move for
The motion is filed within the period to appeal (Sec. 1). No motion
reconsideration upon the grounds that the damages awarded are
for extension of time to file a motion for new trial shall be allowed
excessive, that the evidence is insufficient to justify the decision or
(Sec. 2, R 40; Sec. 3, R 41).
final order, or that the decision or final order is contrary to law.(1a)

The period to appeal is within 15 days after notice to the appellant

of the judgment or final order appealed from (Sec. 2 R 40; Sec. 3, R
41; Sec. 2 R 45). Where a record on appeal is required, the
Q: When may an aggrieved party file a motion for new trial or a
appellant shall file a notice of appeal and a record on appeal within
motion for reconsideration?
30 days from notice of the judgment or final order (Sec. 3 R 41). A
A: Within the period for taking an appeal. Meaning, before the
record on appeal shall be required only (a) in special proceedings,
judgment becomes final and executory.
and (b) other cases of multiple or separate appeals (Sec. 3 R 40).

The remedies against a judgment may refer to those remedies

Cases where prohibited-
before a judgment becomes final and executor and those remedies
after the same becomes executor.
A motion for new trial is prohibited in cases covered by the Rule on
Summary Procedure (Sec. 19[c], Revised Rule on Summary
1. Before a judgment becomes final and executor, the
Procedure). It is also prohibited under the Rule of Procedure for
aggrieved or losing party may avail of the following
Small Claims Cases (Sec. 14©, A.M. No. 08-8-7-SC).
remedies:

Q: What are the grounds for a motion for new trial in civil cases?
a.) Motion for Reconsideration;
A: Under Section 1, there are two (2) GROUNDS:
b.) Motion for New Trial; and
c.) Appeal.
1.) Fraud, Accident, Mistake, Excusable negligence (FAME);
2.) Newly Discovered Evidence (NDE)
A judgment becomes final and executory upon the expiration of
the period to appeal therefrom and no appeal has been perfected
(Sec. 1 Rule 39).

2. After the judgment becomes executory, the losing party

FIRST GROUND: Fraud, Accident, Mistake, Excusable negligence
may avail of the following:
(FAME)

a.) Petition for Relief from Judgment;

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Let us relate this to Rule 9, Section 3 [b] on Default. The ground to
lift or set aside the order of default is also FAME – that he failed to
answer because of FAME. So, there is a connection between Rule 9
and the first ground of a motion for new trial. But this is not
applicable only to a defaulted defendant.
Q: How do you determine when to use Rule 9 or Rule 37 when one
is declared in default?
A: Use Rule 9, Section 3 [b] after notice of the order of default but
before judgment;
Use Rule 37 if there is already a judgment but not yet final and
executory. Rule 37 is the remedy in case the defendant who is
declared in default failed to avail of Rule 9, Section 3 [b].
But Rule 37 on motion for new trial on the ground of FAME is
broader than FAME as ground to lift order of default. It applies to
plaintiff or defendant whether in default or not because a
defendant can still lose the case through FAME although he is not
in default. Or, for example: The plaintiff, because of his failure to
appear in the case, the court dismissed the case. But the reason
why the plaintiff failed to appear is because of FAME. So the
remedy for plaintiff is to move to set aside the dismissal and have
the case continued by filing a motion for new trial on the ground of
FAME.
But definitely, Rule 37 also applies to a defendant declared in
default and that is the connection between Rule 37 and Rule 9.
FRAUD (Extrinsic)
What is FRAUD? In tagalog, naisahan ka or naloko ka. (Ilonggo: na-
utis) Under the law, there are two (2) TYPES of Fraud: EXTRINSIC
FRAUD and INTRINSIC FRAUD
Fraud is regarded as extrinsic or collateral in character where it
prevents a party from having a trial or from presenting his entire
case to the court, or where it operates upon matters pertaining not
to the judgment itself but to the manner in which it is procured.
The overriding consideration when extrinsic fraud is alleged is that
the fraudulent scheme of the prevailing litigant prevented a party
from having his day in court (Alaban vs. CA). This kind of fraud
prevents the aggrieved party from having a trial or presenting his
case to the court, or is used to procure the judgment without fair
submission of the controversy, as when there is a false promise of a
compromise or when one is kept ignorant of the suit. (Villanueva
vs. Nite).
Stated in another way, extrinsic fraud exists when there is a
fraudulent act committed by the prevailing party outside of the
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trial of the case, whereby the defeated party was prevented from
presenting fully his side of the case by deception practiced on him
by the prevailing party (Alba vs. CA 465 SCRA 495)
The use of forged instruments, or perjured testimonies during trial
is not an extrinsic fraud. Such evidence does not preclude a party’s
participation in the trial (Bobis vs. CA 348 SCRA 23; Strait Times vs.
CA GR 126673 August 28, 1998). Offering perjured testimony or
offering manufactured evidence is intrinsic and not extrinsic fraud.
Intrinsic fraud is not sufficient to annul a judgment (Conde vs. IAC
GR L-70443, Sept, 15, 1986).
INTRINSIC FRAUD is that fraud which was an issue in the litigation
such as perjury, false testimony, concealment of evidentiary facts,
but did not prevent you from presenting your case. That is not a
ground for annulment of judgment.
GARCIA vs. COURT OF APPEALS
202 SCRA 228 [1991]
HELD: EXTRINSIC FRAUD is that type of fraud which has prevented
a party from having a trial or from presenting his case in court.
INTRINSIC FRAUD is based on the acts of a party in a litigation
during the trial, such as the use of forged instruments or perjured
testimony, which did not affect the presentation of the case, but
did prevent the fair and just determination of the case.
Q: When is fraud a sufficient ground for new trial?
A: FRAUD, to be a ground for new trial, must be EXTRINSIC – where
the aggrieved party was misled by the adverse party, and by reason
thereof, he was prevented from presenting his case properly.
(Gisburne Supply Co. vs. Quiogue, 34 Phil. 913; Almeda vs. Cruz,
84 Phil. 636; Sterling Investment Corp. vs. Ruiz, L-30694, Oct. 31,
1969)
EXAMPLE: Suppose I am the lawyer of the plaintiff and you are the
lawyer of the defendant. The case will be tried tomorrow. I called
you up and asked you to postpone the trial, “I will tell the court
that I talked to you and you agreed that the trial will be
postponed.” The following day, I appeared in court. When the case
is called, I said that I’m ready. Court: “Saan ang defendant?” I said,
“Wala! Awan!” I then moved to continue the trial.
I maneuvered a scheme in such a way that you will not appear in
court. You lost your opportunity to present your side. That is
EXTRINSIC FRAUD. Your remedy now is to file a motion for new
trial on the ground that you have been a victim of EXTRINSIC
FRAUD by the plaintiff’s lawyer.
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EXAMPLE: There is a case between you and me. During the trial, I
presented witnesses to prove my cause of action. All my witnesses
were lying – they testified falsely. I presented falsified documents
to prove my case. And I won the case because of those perjured
testimonies and falsified documents. You file a motion for new
trial alleging FRAUD – that the testimonies and documents were
falsified.
Q: Should your motion for new trial be granted?
A: NO. Your motion will be denied because the FRAUD is INTRINSIC
because you were not prevented from going to court. So, your
remedy is to expose my perjured and falsified evidence. You can
present rebuttal evidence. It is your obligation to prove that my
witnesses are lying and my documents are false. Definitely, you
cannot ask a motion for a new trial.
ACCIDENT
What is ACCIDENT? It is something unforeseen, something
unexpected or unanticipated. When is accident a sufficient ground
for new trial?
EXAMPLE: A party failed to appear in court because he got sick at
the last minute. Or, in the middle of the trial, the lawyer of a party
becomes sick. With that, the complaint was dismissed or there was
a judgment against you. You can move for new trial on the ground
of accident. (Phil. Engineering Co. vs. Argosino, 49 Phil. 983)
EXAMPLE: The defendant was declared in default because he did
not file an answer but actually he filed an answer through mail, but
somehow the post office did not deliver it to the court. That is an
accident. With that, I can move for new trial or lift the order of
default. (Ong Guan Can vs. Century Ins. Co., 45 Phil. 667)
EXAMPLE: The trial was this morning. But I received only the notice
of trial on March 9, 1998 stating that the trial is on March 5. So the
notice of hearing was received days after the scheduled date. That
is an accident which is a ground for new trial. (Soloria vs. Dela Cruz,
L-20738, Jan. 31, 1966)
MISTAKE
What is MISTAKE? Mistake(n) is nagkamali – I was wrong. Sa bisaya
pa, ‘nasayop.’
EXAMPLE: Defendant received summons and complaint. The
defendant, instead of seeking assistance of a lawyer, went to the
plaintiff and asked for settlement. They kept on talking about the
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settlement but in the meantime, the period to file answer is also
running. Fifteen days had passed by but they did not settle yet.
Plaintiff moved to declare defendant in default. The court issued
judgment on default. Defendant said, “Layman man ako. Anong
malay ko diyan sa ‘default-default’ na yan.” The lawyer said, “Sana
answer muna before you settle with the plaintiff.” So the lawyer
filed a motion for new trial on the ground of MISTAKE. The court
granted it. (Salazar vs. Salazar, 8 Phil. 183)
GENERAL RULE: A client is bound by the mistakes of his lawyer
and he cannot file a motion for new trial on the ground of mistake
of his lawyer. In the case of
BELLO vs. LABONG
L-10788, April 30, 1959
HELD: “The mistake of an attorney is not generally a ground for
new trial. The mistake or lack of foresight or preparation on the
part of the attorney cannot be admitted as reason for new trial in
civil cases, otherwise there would never be an end to a suit so long
as a new counsel could be employed who could allege and show
that the prior counsel had not been sufficiently diligent, or
experienced, or learned.”
What the SC is trying to say is this: Suppose we will grant a new
trial for the party on the ground of mistake of his first lawyer, and
after the new trial, the party still lost. So such party will now hire a
third lawyer who will say, “Do you know why you lost? That is
because of the mistake of your second lawyer so we will file a
motion for new trial.” So the third lawyer will allege mistake of the
second lawyer and then we will grant again a new trial and then he
loses again. Then he gets a fourth lawyer and the fourth lawyer will
allege the ground of mistake of the third lawyer.
So, there will never be an end to a case. So the general rule to
remember is, a client is bound by the mistakes of his lawyer and he
cannot file a motion for new trial on the ground of mistake of his
lawyer. So that is not the type of mistake contemplated by Rule 37.
The only EXCEPTION is based on equity decision like the case of
PEOPLE vs. MANZANILLA
43 Phil. 167
HELD: “A new trial is sometimes granted where the
INCOMPETENCY or NEGLIGENCE of the party’s counsel in the
conduct of the case IS SO GREAT that party’s rights are prejudiced
and he is prevented from presenting his cause of action or
defense.”
EXCUSABLE NEGLIGENCE
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Dilatory tactics not gross negligence of counsel and not a ground
for new trial
Petitioner’s argument that his counsel’s negligence was so gross
that he was deprived of due process fails to impress. Gross
negligence is not one of the grounds for a motion for a new trial.
We cannot declare his counsel’s negligence as gross as to liberate
him from the effects of his failure to present countervailing
evidence. The Court does not consider as gross negligence the
counsel’s resort to dilatory schemes, such as (1) the filing of at least
three motions to extend the filing of petitioner’s answer; (2) his
nonappearance during the scheduled pre-trials; and (3) the failure
to file petitioner’s pre-trial brief, even after the filing of several
motions to extend the date of filing (Uy vs. First Metro).
EXCUSABLE NEGLIGENCE. Obviously, inexcusable negligence is not
a ground for new trial. But sometimes, it is difficult to determine
whether the negligence is excusable or inexcusable. That is also
very difficult because there is negligence whether you like it or not.
When is negligence excusable and when is it inexcusable? Our only
guide here is decided cases because there are many cases where
the SC said that, it is excusable so we will grant a new trial. Or
sometimes naman, wala, that is not excusable so no new trial. So,
we can go on the pattern and find out what type of negligence
warranted a new trial and what type does not warrant a new trial.
INEXCUSABLE NEGLIGENCE; Examples:
EXAMPLE #1: If a defendant lost a case because his lawyer failed to
file an answer. And the excuse of the lawyer was, “I forgot about
the deadline. Nalimutan ko. I did not keep tract of the deadline to
file an answer.” And the SC said, “No dice. That is not excusable on
the part of the lawyer.”
EXAMPLE #2: Your case was dismissed because you failed to appear
in court. Here comes now your lawyer asking for new trial on the
ground of excusable negligence, “I failed to appear in court because
I again forgot about that schedule” or “because I failed to wake-up
because the night before, I and my friends went to a party and I
went home drunk.” Do you think the SC will honor that? Is that
excusable? Of course not!
EXAMPLE #3: In many cases, the reason is, “I failed to appear in
court because my secretary in my law office failed to inform me
about that notice. Hindi niya nalagay ‘yung notice that I have to
appear in court today.” SC said, “You are bound by the mistake of
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your secretary and the client is also bound by that mistake of the
lawyer. In the first place, why did you hire that kind of secretary?”
EXAMPLE #4: In some cases, “Well, you see your honor, I failed to
appear in court because my secretary did not calendar it.” O, bakit
niya hindi inilagay? “Well, she’s just a newly hired secretary, she
does not know yet the importance of these things. First time niya.”
The SC said, “Hung hang! Pasensiya ka! Why did you not orient her
before hiring her.”
So all these things hindi lumusot. All these things failed to convince
the SC that the negligence of the party of the lawyer if excusable.
EXCUSABLE NEGLIGENCE; Examples:
EXAMPLE #1: The answer has to be filed the following day. The
lawyer told the secretary, “I’m leaving tonight. I’ll come back one
week later. You better file tomorrow the answer because tomorrow
is the deadline.” Then he left but the secretary failed to file it
because she also got sick.
EXAMPLE #2: “I failed to appear in court because I had to come
from Manila and the plane was delayed or the flight was cancelled.
But if the flight proceeded on time I would have been in Davao City
by 7:00 A.M. and I would have been in court at 8:30 A.M.”
Sometimes that happens where the flight is cancelled or delayed.
Ano ngayon yan? Sabihin, you should have taken the flight the
night before para sigurado. “Eh, the night before fully booked na!
Anong magagawa ko?” Ayan.
So in other words, these things, you could also consider it as what?
Parang accident din no? Magkahawig eh! In other words you
should use your common sense. Whether the negligence is
forgivable or not.
And to borrow the language of the SC, “The standard of care
required of a party is that which an ordinarily prudent man bestows
on his important business.” (Fernandez vs. Tan Tiong Tick, L-15877,
April 28, 1961)
So, for EXAMPLE: You are a businessman and you have an
appointment with somebody who will give you a deal of P50
million. And you are scheduled to see him on this date and on this
time. Can you afford to forget that transaction? I think there is
something wrong with you if you forgot it. You do not know what is
important and what is not important. (Ang importante is yung
mahalaga! Di ba?)
There are things which you forget and somehow in forgetting it you
cannot be blamed because it’s not really important. But there are
things which you cannot afford to forget.
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EXAMPLE: Your classmate tells you, “This coming Saturday you go
to the house.” “Why? Is there a party there?” “Wala man. I’m just
inviting you to come ha?” And by Monday, “I was waiting for you,
you did not show up!” “Tama ‘no? Sorry nalimutan ko.” Now, is
forgetting your appointment with your classmate two days before
forgivable or not? I think forgivable iyan. Anyway, istorya-istorya
man lang. Para bang, “O, sige, di sa susunod na Sabado na lang.”
Meaning, madaling ma-erase sa mind mo yang mga ganyang
klaseng appointment ba!
EXAMPLE: But suppose on Saturday morning you are supposed to
go to church for your wedding, hindi ka nakasipot. And then you
tell your bride or the groom, “Pasensiya ka na ha? Kasal pala natin,
nakalimutan ko eh. (Sana t-in-ext mo ako. Wala kang load ‘no?
hahaha!)” I think he or she will kill you for that kind of reasoning.
EXAMPLE: If a lawyer says, “I forgot that this is the day I should file
an answer for my client.” Or, “I forgot to appear in court on the day
of his trial.” Is the court’s schedule or the schedule of a lawyer
something important for him or not? I think you know the answer
‘no?
NEWLY DISCOVERED EVIDENCE
Section 1(b). Newly discovered evidence, which he could not, with
reasonable diligence, have discovered and produced at the trial,
and which if presented would probably alter the result.
Q: What is Newly Discovered Evidence (NDE)?
A: NDE is evidence which was discovered after trial, or cannot be
discovered during trial given the exercise of reasonable diligence,
and if admitted, such evidence would probably alter the result of
the case.
Q: What are the REQUISITES for NDE (Berry Rule)?
A: The following:
1.) That the evidence was discovered after trial;
2.) That it could not have been discovered during trial even
with exercise of reasonable diligence; and
3.) The evidence is of such weight that if admitted, such
evidence would probably alter the result; and
4.) it must be material and not merely collateral, cumulative
or corroborative.
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These standards, also known as the "Berry" rule, trace
their origin to the 1851 case of Berry vs. State of Georgia.
Newly discovered evidence need not be newly created evidence. It
may and does commonly refer to evidence already in existence
prior or during trial but which could not have been secured and
presented during the trial despite reasonable diligence on the part
of the litigant. (Tumang vs. CA GR No. 82346-47, April 17, 1989).
THAT THE EVIDENCE WAS DISCOVERED AFTER TRIAL;
Newly discovered evidence vs. Forgotten evidence
In the former, the evidence was not available to a party during the
trial, and was discovered only after the trial while in forgotten
evidence, the evidence was already available to a party and was
not able to present it through inadvertence or negligence of
counsel. The latter is not a ground for new trial.
EXAMPLE: There was a case where a party, through his lawyer filed
a motion for new trial based on this document. Bakit hindi mo pre-
ni-sent sa trial? “I misplaced it in my drawer. Nalimutan ko na
meron pala akong resibo. So, let’s have a new trial because I will
now introduce a ground for new trial.” Obviously, it was discovered
after trial. It was in your possession for so long. And according to
the SC, that is not a newly discovered evidence. (That is
katangahan!) That is forgotten evidence which is not a ground for
new trial.
THAT IT COULD NOT HAVE BEEN DISCOVERED DURING TRIAL
EVEN WITH EXERCISE OF REASONABLE DILIGENCE
Meaning, even if you try your best to look for it, you would not
have found it. Now na natalo ka, you suddenly found it.
Now, because there are clients who are lazy eh. So, meron ka bang
dokumento? “Wala eh. You see, marami akong file diyan pero
tingin ko wala eh.” “Wala gyud?” “Wala.” So, talo. Walang
ebidensiya eh! After a while pag-halungkat, “Atty., naa man diay.”
“My golly! Nganong karon man lang. I gave you several months to
look for that. You’re so lazy. Now, that you lost, you only find it for
an hour.” In this case, you did not comply with the second
requisites – that it could not have been discovered before trial even
with the exercise of reasonable diligence.
THAT IF ADMITTED, SUCH EVIDENCE WOULD PROBABLY ALTER THE
RESULT
Meaning, if there is a new trial and the newly discovered evidence
will be admitted, it would probably alter the result. Probably lang.
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May fighting chance, pero ‘chance’ lang. You are not saying that if
the new evidence will be admitted, you will automatically win.
There is a probability that you will win. And the court will say, “I
think probable. Ok, new trial granted. Then, the evidence will be
presented and we will find out if you can win.
NEW TRIAL vs. REOPENING OF TRIAL
The SC has already made pronouncements on what the reopening
of trial meant. Reopening of trial is not found in the law. There is
no express rule, but it is admittedly allowed. Now give an example
of reopening of trial.
EXAMPLE: Tapos na ang trial. What will come next is decision and
then the party said, “Your honor, could we reopen the trial? Meron
kaming nakalimutan eh. I forgot an important piece of evidence.”
Now, that cannot be new trial because wala pa man ang judgment.
Rule 37 applies only when there is already a judgment. In the
example, is that a motion for new trial? No. It should be called a
motion for reopening of trial.
So if the motion is filed after the judgment is rendered, it is called
motion for new trial. When the motion is filed before a judgement
is rendered, it should be called a motion for reopening of trial.
EXAMPLE: A judge after trying the case, “Alright, I will not decide
yet. I want to go to the area and look at the property.” Meaning,
the court, on its own, would like to conduct an ocular inspection.
That is a reopening of the trial. Now, was there any motion by
anybody? Wala man ba. The court itself initiated it. And that is
allowed by the SC. Reopening of trial is bound by no rules. The
judge with or without a motion can do it. The only ground for
reopening of trial is interest of justice. And that is very broad. So
there are no rules.
The SC said: New trial should be distinguished from the exercise of
the discretionary power of the court to REOPEN a trial for the
introduction of additional evidence, to clarify its doubts on material
points. This discretionary power is subject to no rule other than the
paramount interest of justice and will not be reviewed on appeal
unless the exercise thereof is abused. (Arce vs. Arce, L-13035, Nov.
28, 1959) So it is one of the inherent powers of the court.
MOTION FOR RECONSIDERATION
Q: What is the ground for a motion for reconsideration?
A: Third paragraph of Section 1:
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Within the same period, the aggrieved party may also move for
reconsideration upon the grounds that the damages awarded are
excessive, that the evidence is insufficient to justify the decision or
final order, or that the decision or final order is contrary to law.(1a)
Q: When do you file a motion for reconsideration?
A: Within the same period for filing a motion for new trial.
Meaning, within the period for taking an appeal.
Q: What are the grounds for a motion for reconsideration?
A: The following are the GROUNDS for a motion for
reconsideration:
1.) The damages awarded are excessive;
2.) The evidence is insufficient to justify the decision or final
order;
3.) The decision or order is contrary to law. (in effect, the
decision is wrong)
Motion for reconsideration is more common. Motions for new trial
are very rare.
In a motion for reconsideration, you convince the court that the
decision is wrong, that the decision is contrary to law.
MOTION FOR NEW TRIAL OR RECONSIDERATION; FORMAL
REQUIREMENTS
Sec. 2. Contents of motion for new trial or reconsideration and
notice thereof. The motion shall be made in writing stating the
ground or grounds therefor, a written notice of which shall be
served by the movant on the adverse party.
A motion for new trial shall be proved in the manner provided for
proof of motions. A motion for the cause mentioned in paragraph
(a) of the preceding section shall be supported by affidavits of
merits which may be rebutted by affidavits. A motion for the cause
mentioned in paragraph (b) shall be supported by affidavits of the
witnesses by whom such evidence is expected to be given, or by
duly authenticated documents which are proposed to be
introduced in evidence.
A motion for reconsideration shall point out specifically the findings
or conclusions of the judgment or final order which are not
supported by the evidence or which are contrary to law, making
express reference to the testimonial or documentary evidence or
to the provisions of law alleged to be contrary to such findings or
conclusions.
A pro forma motion for new trial or reconsideration shall not toll
the reglementary period of appeal. (2a)
Q: What should be the form of a motion for new trial?
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A: It must be in writing. You must state the ground or grounds for
the motion, whether it is FAME or newly discovered evidence.
Then, of course, you must serve a copy of the motion to the
adverse party. Meaning, you comply with all the requisites of a
valid motion.
PEOPLE vs. COURT OF APPEALS
296 SCRA 418 [Sept. 25, 1998]
FACTS: Inday filed a motion for new trial without a notice of
hearing (this is a violation of paragraph of Section 2). But she filed
the motion within 15 days. Inday filed a supplemental motion with
notice of hearing but filed beyond the 15-day period. Should the
court deny the motion?
HELD: The motion should be denied. “A supplemental pleading
subsequently filed to remedy the previous absence of notice will
not cure the defect nor interrupt the tolling of the prescribed
period within which to appeal.”
“We are not impressed by the argument that the supplement filed
by the appellants on May 30 should be deemed retroactive as of
the date the motion for reconsideration was filed and, therefore,
cured the defect therein. To so consider it would be to put a
premium on negligence and subject the finality of judgments to the
forgetfulness or whims of parties-litigants and their lawyers. This of
course would be intolerable in a well-ordered judicial system.”
The second paragraph says, “A motion for new trial shall be proved
in the manner provided for proof of motions…” What does that
mean? What is the proof of motions? The manner or proving
motions is also found in Rule 15, Section 3:
Rule 15, Sec. 3. Contents. - A motion shall state the relief sought to
be obtained and the grounds upon which it is based, and if required
by these Rules or necessary to prove facts alleged therein, shall be
accompanied by supporting affidavits and other papers. (3a)
Q: When you file a motion, is it necessary that the ground for your
motion is supported by affidavits or other papers?
A: If it is necessary –YES. If it is not necessary – NO NEED. If
necessary, you must attach documents or supporting affidavits like
a medical certificate for a motion to postpone due to illness.
Q: Is it necessary that when you file motion for new trial, you must
attach affidavits?
REQUIREMENTS WHEN THE GROUND IS F.A.M.E.
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A motion for new trial based on FAME must include an affidavit of
merit, which states:
1. the nature or character of FAME;
2. the facts constituting the movant's good and substantial defense
or valid cause of action; and
3. the evidence which he intends to present if his motion is
granted.
Section 2, second paragraph says, “A motion for the cause
mentioned in paragraph [a] of the preceding section shall be
supported by affidavits of merits…” Paragraph [a] is FAME. So, a
motion for new trial on the ground of FAME must be accompanied
by affidavits of merits. A motion for the cause mentioned in
paragraph “a” shall be supported by affidavit of merit. A motion
based on the ground in letter “b” shall be supported by affidavits of
the witnesses by whom such evidence is expected to be given, or
by duly authenticated documents which are proposed to be
introduced in evidence (Sec. 2). Non-compliance with this
requirement would reduce the motion to a mere pro forma
motion. Under the explicit provisions of the rule (Sec. 2), a pro
forma motion for reconsideration shall not toll the reglementary
period of appeal.
Affidavit of Merit
The affidavit of merits, must be one showing the facts (not mere
conclusions or opinions) constituting the valid cause of action or
defense which the movant may prove in case a new trial is granted,
because a new trial would serve no purpose and would just waste
the time of the court as well as the parties if the complaint is after
all groundless or the defense is nil or ineffective.
Under the Rules, the moving party must show that he has a
meritorious defense. The facts constituting the movant’s good and
substantial defense, which he may prove if the petition were
granted, must be shown in the affidavit which should accompany
the motion for new trial. Mere allegations that one has a
“meritorious defense” and a “good cause” are mere conclusions
which do not provide the court with any basis for determining the
nature and merit of the case. An affidavit of merit should state
facts, and not mere opinion or conclusions of law. Petitioner’s
motion for new trial and affidavit of merit did not mention the
evidence which he was prevented from introducing, nor did it
allege that such evidence would change the outcome of the case
(Uy vs. First Metro Integrated Steel Corporation, G.R. No. 167245,
Sept. 27, 2006).
An AFFIDAVIT OF MERIT is one which recites the nature and
character of FAME on which the motion is based and stating the
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movant’s good and substantial cause of action or defense and the
evidence he intends to present if the motion is granted, which
evidence should be such as to warrant reasonable belief that the
result of the case would probably be otherwise. (Paz vs. Inandan,
75 Phil. 608; Manila Surety vs. Del Rosario, 101 Phil. 412)
Meaning, you must state the facts surrounding FAME and your
meritorious cause of action or defense whether you are the
plaintiff or the defendant. You explain why you are a victim of
fraud, etc. and that you have a good cause of action or defense
which if there will be a new trial, you might win. It is not enough
that you are a victim of FAME, you must also have a meritorious
cause of action or defense.
Q: What happens if you file a motion without affidavit of merits?
A: Then, your motion for new trial will be immediately denied. It is
a fatal mistake. Your motion for new trial is classified as a
PRO-FORMA motion for new trial.
Pro-forma motion is one where the movant fails to make reference
to the testimonial and documentary evidence on record or the
provisions of law alleged to be contrary to the trial court's
conclusion as well as the reasons thereof or if there is no affidavit
of merit.
Two types of pro-forma motion for new trial:
1. It is a motion for new trial which does not comply in substance or
in form with Sections 1 and 2 of Rule 37 (Like no Affidavit of
Merits); and
2. a second motion for new trial on a ground available to the party
when the first motion was filed (Section 5).
Indicators of a pro-forma motion
1. it is based on the same ground as that raised in the denied
motion under Rule 37;
2. it contains the same arguments in the opposition to a granted
motion to dismiss;
3. the ground alleged in the second motion for new trial already
existed; was available and could have been alleged in the first
motion for new trial which was denied;
4. it is based on the ground of insufficiency of evidence or that the
judgment is contrary to law but does not specify the supposed
defects in the judgment;
5. it is based on FAME but does not specify the facts constituting
these grounds and/or is not accompanied by an affidavit of merit;
and
6. non-complaince with the requirements of R 15.
Note that a motion for reconsideration, if based on the same
grounds as that of a new trial is considered a motion for new trial
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and has the same effect. (Rodriguez vs. Rovira, GR No. 45252, Sept.
24, 1936)
Q: What is the EFFECT of a pro-forma motion for new trial?
A:
A pro forma motion for new trial or reconsideration shall not toll
the reglementary period of appeal. (2a)
Q: Suppose a movant will file a motion for new trial in the ground
of FAME with the affidavits of merits and says “I am a victim of
fraud and if such motion is granted, I have a good and meritorious
cause of action or good and meritorious defense.” Is the affidavit
sufficient?
A: SC –No, those are generalities, you must recite the facts
constituting the FAME. You must describe exactly what happened
to you. To say that you have good cause of action or defense is
INSUFFICIENT.
You must state what is the nature of that cause of action or
defense and evidence you intend to present. So, there is an
affidavit of merit but it is fatally defective. Again what will happen
to the motion. It will be treated as pro-forma. The affidavit of
merit is defective.
MANIPOL vs. LIM TAN
55 SCRA 202
FACTS : A defendant in an action for damages based on quasi--
delict filed a motion for new trial citing FAME. He says, “I have a
good and meritorious cause of action or defense. I intend to prove
that I exercised due diligence in the selection or supervision of my
drivers and which if proven relieves the employer from liability.”
HELD: Affidavit of merits is defective. It is pro-forma motion. It does
not state the meritorious defense. There is only a general
statement or conclusion of the defendant. The defendant should
state the details of how he supervised his employees. You go to
specifics.
The law is very strict about affidavits of merits. It is not enough
that you state your defense. You must demonstrate that you have
a meritorious claim of defense so that the motion for new trial will
be granted. What is the use of granting a new trial if after the new
trial you will still end up losing the case? It would be a waste of
time. According to SC, “ It would be pointless to reopen a case if a
party does not have a meritorious cause of action of defense for like
a mirage it would merely raise false hopes and at the end avail the
movant nothing.” (Arcilla vs. Arcilla, L-46674, Sept. 16, 1985)
Number of supporting affidavits-
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It seems that there are really two affidavits. Normally when a
lawyer files motion for new trial, there is one affidavit reciting
FAME and reciting the meritorious cause of action or defense. If
you follow the SC there are two (2) affidavits: FIRST – affidavit
regarding the FAME; and SECOND – affidavit regarding the
meritorious cause of action of defense.
But in the case of PCIB vs. ORTIZ (150 SCRA 382), the SC implied
that the real Affidavit Of Merits should be the second one – that I
have a good and meritorious defense. In reality, there should be
two (2) affidavits – one reciting the FAME and one reciting the
substantial cause of action. That is why a motion for new trial on
FAME should ordinarily be accompanied by two affidavits. One
setting forth the facts and circumstances alleged to constitute
FAME and the other an Affidavit of Merits setting forth the
particular claims to constitute the movant’s meritorious defense or
cause of action. The real Affidavit of Merits is the second one.
REQUIREMENTS WHEN THE GROUND IS NEWLY DISCOVERED
EVIDENCE
Q: Suppose your ground for new trial is newly discovered evidence
(NDE). What is the requirement?
A: Section 2, 2nd paragraph, 3rd sentence provides, “A motion for
the cause mentioned in (Section 1) paragraph [b] (NDE) shall be
supported by affidavits of the witnesses by whom such evidence is
expected to be given, or by duly authenticated documents which
are proposed to be introduced in evidence.”
Meaning, when the ground is newly discovered evidence, the
motion shall be supported by affidavits also – affidavits of the
newly discovered witness – or a copy of the newly discovered
document. You have to state what is the newly discovered
evidence, what the witness will say.
Q: What happen when such requirement is not complied with?
A: The motion for new trial on the ground of NDE is treated as PRO-
FORMA and it never tolled the reglementary period to appeal.
MOTION FOR RECONSIDERATION; FORMAL REQUIREMENTS
Q: Again, what are the grounds for a motion for reconsideration?
A: The following are the GROUNDS for a motion for
reconsideration:
1.) The damages awarded are excessive;
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2.) The evidence is insufficient to justify the decision or final
order;
3.) The decision or order is contrary to law. (in effect, the
decision is wrong)
Pro forma MR
In the cases where a Motion for Reconsideration was held to be pro
forma, the motion was so held because (1) it was a second MR, or
(2) it did not comply with the rule that the motion must specify the
findings and conclusions alleged to be contrary to law or not
supported by the evidence, or (3) it failed to substantiate the
alleged errors, or (4) it merely alleged that the decision in question
was contrary to law, or (5) the adverse party was not given notice
thereof.
Q: Can you file a motion for reconsideration by just simply stating
that “the decision is wrong or contrary to law,” or “the findings of
the judge are not supported by evidence”?
A: NO. Under Section 2, 3rd paragraph, you must point out
specifically the findings or conclusions of the judgment or final
order which are not supported by the evidence or which are
contrary to law, making express reference to the testimonial or
documentary evidence or to the provisions of law alleged to be
contrary to such findings or conclusions.
So, you must point out what findings is not supported by evidence
– what conclusion is contrary to law. Do not let the judge look for
it. The judge will never bother to look for it. You tell him what
portion of the decision is wrong. You have to cite the evidence too
and the law which is violated or what provisions apply.
Q: What happen when you file a motion for reconsideration
without making any reference, exhibit etc? Meaning, you did not
comply with the 3rd paragraph.
A: You motion will be denied because it is PRO-FORMA. Thus, it will
never interrupt the reckoning of the prescriptive period.
A pro forma motion is one which does not satisfy the requirements
of the rules and one which will be treated as a motion intended to
delay the proceedings (Marikina Development Corporation vs.
Flojo, 251 SCRA 87).
The SC once defined a pro forma motion as one filed for the sake of
form. (Dapin vs. Dionaldo, G.R. No. 55488, May 15, 1992)
Another POINT: when you file a motion for reconsideration on the
ground that the judgment is contrary to law, it is not enough for
you to say that. You must always point out clearly why it is contrary
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to law, otherwise your motion will be denied or treated as pro-
forma.
Q: When you file a motion for reconsideration and it is denied,
does it mean to say that your motion is pro-forma?
A: NO, because maybe the judge was not convinced but you tried
your best. The denial of motion for reconsideration on the ground
that the decision or judgment is wrong does not automatically
make the motion a pro-forma. What makes it pro-forma is, if your
motion for reconsideration does not specifically point out why
judgment is wrong. But if you comply with Section 2, that is
already sufficient.
In the case of
MARIKINA VALLEY DEV’T. CORP. vs. FLOJO
251 SCRA 87 [1995]
HELD: “A motion for reconsideration which merely reiterates or
repleads the same arguments which had been previously
considered and resolved in the decision sought to be reconsidered,
the motion is not a pro forma one.”
“The circumstance that a motion for reconsideration deals with the
same issues and arguments posed and resolved by the trial court in
its decisions does not necessarily mean that the motion must be
characterized as merely pro forma. A pleader preparing a motion
for reconsideration must of necessity address the arguments made
or accepted by the trial court in its decision. The movant is very
often confined to the amplification or further discussion of the
same issues already passed upon by the trial court.” Precisely,
when I filed a motion for reconsideration, we will go over the same
points which the court has already discussed.
“Where the circumstances of a case do not show an intent on the
part of the movant merely to delay the proceedings, our Court has
refused to characterize the motion as simply pro forma. The
doctrine relating to pro forma motions for reconsideration impacts
upon the reality and substance of the statutory right of appeal, that
doctrine should be applied reasonably, rather than literally. The
right to appeal, where it exists, is an important and valuable right.”
“A motion for reconsideration which is not as starkly bare but
which, as it were, has some flesh on its bones, may nevertheless be
rendered pro forma where the movant fails to make reference to
the testimonial and documentary evidence on record or the
provisions of law said to be contrary to the trial court’s conclusions.
In other words, the movant is also required to point out succinctly
why reconsideration is warranted.”
“It is not enough that a motion for reconsideration should state
what part of the decision is contrary to law or the evidence; it
should also point out why it is so. Failure to explain why will render
the motion for reconsideration pro forma.” Meaning, when I point
out part of the decision that is contrary to the law, it is not pro
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forma. But still it is pro forma if I will not state that it is contrary to
law.
“Where a substantial bonafide effort is made to explain where and
why the trial court should be regarded as having erred in its main
decision, the fact that the trial court thereafter found such
argument unmeritorious or as inadequate to warrant modification
or reversal of the main decision, does not, of course, mean that the
motion for reconsideration should have been regarded, or was
properly regarded, as merely pro forma.”
So, I point the decision but the court does not agree with me. That
does not mean that my motion is automatically pro forma because
there was an attempt to convince the court why it is wrong.
EFFECTS WHEN MOTION IS GRANTED
Sec. 3. Action upon motion for new trial or reconsideration. The trial
court may set aside the judgment or final order and grant a new
trial, upon such terms as may be just, or may deny the motion. If
the court finds that excessive damages have been awarded or that
the judgment or final order is contrary to the evidence or law, it
may amend such judgment or final order accordingly. (3a, R37)
Sec. 6. Effect of granting of motion for new trial. If a new trial is
granted in accordance with the provisions of this Rule, the original
judgment or final order shall be vacated, and the action shall stand
for trial de novo; but the recorded evidence taken upon the former
trial, in so far as the same is material and competent to establish
the issues, shall be used at the new trial without retaking the same.
(5a)
Q: In Section 3, how will the court resolve your motion for new
trial?
A: The court may either deny or may set aside the judgment or final
order and grant a new trial. Literally, if the judgment is set aside,
there will be a trial de novo, a Latin word for new trial.
BAR QUESTION: If Cholo files a Motion For New Trial and it is
granted, will there always be a trial de novo?
A: It DEPENDS on the ground for the motion:
a.) If the ground is FAME, there will be a trial de novo
because the proceeding will be set aside;
b.) If the ground is NDE, there is no trial de novo. The
evidence admitted which is based on the same decision
will remain. The case will be opened only for the purpose
of admitting the new evidence.
Q: If Cholo files a Motion For Reconsideration and it is granted, will
there be a trial de novo?
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A: There is NO trial de novo. The court will simply amend its
judgment. It is only a re-study of provision. The court will study its
decision and go over the evidence and find out whether it made a
mistake or not
Period to Resolve Motion for New Trial or Reconsideration
Sec. 4. Resolution of motion. A motion for new trial or
reconsideration shall be resolved within thirty (30) days from the
time it is submitted for resolution. (n)
There is now a deadline for the court to act on the motion – within
30 days from the time it is submitted for resolution.
Denial of the motion; the “fresh period” rule
If the motion is denied, the movant has a “fresh period” of fifteen
(15) days from receipt or notice of the order denying or dismissing
the motion for new trial within which to file a notice of appeal for
the same reason and grounds as the “fresh period” rule governing
a denial of a motion for reconsideration (Neypes vs. CA, G.R. No.
141524, Sept. 14, 2005)
The fresh period rule applies to Rule 40 governing appeals from the
MTC to the RTC; Rule 41, from RTC, in exercise of original
jurisdiction, to CA; Rule 42 on petitions for review from the RTC, in
exercise of appellate jurisdiction, to the CA; Rule 43 on appeals
from quasi-judicial agencies to the CA and Rule 45 governing
appeals by certiorari to the SC. Accordingly, this rule was adopted
to standardize the appeal periods provided in the Rules and to
afford fair opportunity to appeal their cases and to give the trial
court another opportunity to review their case and, in the process,
minimize any error of judgment.
It is clear from Neypes that the ruling shall not be applied where no
motion for new trial or motion for reconsideration has been filed in
which case the 15-day period for appeal shall run from notice of
judgment.
Neypes principle reiterated; retroactive.
In Go v. Sunbanum, et al., G.R. No. 168240, February 9,
2011, Del Castillo, J, the Neypes principle was once again given
retroactive effect. Justifying the same, the SC ruled that when a
procedural rule is amended for the benefit of litigants for the
furtherance of the administration of justice, it shall be retroactively
applied to likewise favor actions then pending, as equity delights in
equality
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In Neypes it was held that a litigant is given another fresh
period of 15 days to perfect an appeal after receipt of the order of
denial of his/her motion for reconsideration/ new trial before the
RTC. It was said:
To standardize the appeal periods provided in the Rules
and to afford litigants fair opportunity to appeal their cases, the
Court deems it practical to allow a fresh period of 15 days within
which to file the notice of appeal in the Regional Trial Court,
counted from receipt of the order dismissing a motion for a new
trial or motion for reconsideration.
Henceforth, this “fresh period rule” shall also apply to
Rule 40 governing appeals from the Municipal Trial Courts to the
Regional Trial Courts; Rule 42 on petitions for review from the
Regional trial Courts to the Court of Appeals; Rule 43 on appeals
from quasi-judicial agencies to the Court of Appeals and Rule 45
governing appeals by certiorari to the Supreme Court. The new rule
aims to regiment or make the appeal period uniform, to be
counted from receipt of the order denying the motion for new trial,
motion for reconsideration (whether full or partial) or any final
order or resolution.
The Neypes principles applies to criminal cases. (Yu v. Judge Tatad,
February 9, 2011).
Order of denial, not appealable
The fresh period rule does not refer to the period within which to
appeal from the order denying the motion for reconsideration but
to the period within which to appeal from the judgment itself
because an order denying a motion for reconsideration or new trial
is not appealable (Section 9).
Remedy when motion for reconsideration is denied
The remedy from an order denying a motion for reconsideration is
not to appeal from the order of denial because such order is not
appealable. The remedy is to appeal from the judgment or final
order itself subject of the motion (Sec. 9).
Can an order of denial of a Motion for New Trial or Reconsideration
be assailed by a petition for certiorari under Rule 65?
Not anymore. Effective December 27, 2007, an order of denial is no
longer assailable by certiorari because of the amendment to Rule
41 by A.M. No. 07-7-12-SC. Deleted from those matters from which
no appeal can be taken and from which order Rule 65 petition may
be availed of, is “an order denying a motion for new trial or a
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reconsideration”. The amendment obviously seeks to prevent the
filing of a petition for certiorari under Rule 65 based on an order
denying a motion for new trial or a motion for reconsideration. The
remedy available therefore, would be that prescribed under Sec. 9,
i.e., to appeal from the judgment or final order.
SECOND MOTION FOR NEW TRIAL OR RECONSIDERATION
Sec. 5. Second motion for new trial. A motion for new trial shall
include all grounds then available and those not so included shall
be deemed waived. A second motion for new trial, based on a
ground not existing nor available when the first motion was made,
may be filed within the time herein provided excluding the time
during which the first motion had been pending.
No party shall be allowed a second motion for reconsideration of a
judgment or final order. (4a, R37; 4, IRG)
"Single motion rule" simply means that a party shall not be allowed
to file a second motion for reconsideration of judgment or of a final
order (Riano, 2009).
As a rule, the motion for new trial shall include all grounds then
available and those not included are deemed waived. So, if the
motion for new trial is based on two (2) grounds – FAME and NDE –
either or both grounds should be included in the motion.
Q: Suppose a motion for new trial, which is based only on FAME,
was denied, can there be a second motion for new trial on the
ground of NDE?
A: It DEPENDS:
a.) If the NDE is already existing when the first motion was
filed, then the second motion for new trial will be denied
because of failure to raise it earlier – the second ground
is deemed waived for failure to raise the same;
b.) However, if the ground for the second motion for new
trial is something not known or not existing or not
available when the party filed the first motion, then the
second motion is allowed. The second motion is not a
pro forma motion.
So, what the law prohibits is you file a motion for new trial and you
do not include all the grounds then available. If the ground
surfaced only later, then it is allowed. Therefore, the motion for
new trial is an example of omnibus motion as defined in Rule 15,
Section 8:
Sec. 8. Omnibus motion. - Subject to the provisions of section 1 of
Rule 9, a motion attacking a pleading, order, judgment, or
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proceeding shall include all objections then available, and all
objections not so included shall be deemed waived. (8a)
Q: What happens if you file a second motion for new trial on a
ground which is then available when the first motion was filed?
A: The second motion is a pro forma motion and will not interrupt
the remaining balance of the period to appeal after the first motion
was denied. There was a clear violation of omnibus motion rule.
Take note that the 2nd paragraph of Section 5 provides that “No
party shall be allowed a second motion for reconsideration of a
judgment or final order.” Therefore, a second motion for
reconsideration is always treated as a pro forma motion because it
is totally prohibited by Section 5.
Q: Distinguish a Motion for New Trial from a Motion for
Reconsideration.
A: The following are the distinctions:
1.) As to grounds:
In a MOTION FOR NEW TRIAL, the grounds are FAME and NDE,
whereas
In a MOTION FOR RECONSIDERATION, the grounds are excessive
damages, decision is not supported with evidence, or decision is
contrary to law;
2.) As to trial:
If a MOTION FOR NEW TRIAL is granted, there could be a trial de
novo; whereas
If as MOTION FOR RECONSIDERATION is granted, there is no trial
de novo. The court will only amend its decision
3.) As to a second motion:
A second MOTION FOR NEW TRIAL is allowed if the ground was not
existing when the first motion for new trial was filed; whereas
A second MOTION FOR RECONSIDERATION is always prohibited
under the rules.
Sec. 7. Partial new trial or reconsideration. If the grounds for a
motion under this Rule appear to the court to affect the issues as
to only a part, or less than all of the matter in controversy, or only
one, or less than all, of the parties to it, the court may order a new
trial or grant reconsideration as to such issues if severable without
interfering with the judgment or final order upon the rest. (6a)
Q: Is there such a thing as motion for partial new trial or a motion
for partial reconsideration?
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A: YES, if the party is questioning only one aspect or portion of the
case. Therefore, the rest can become final while the disputed
portion does not become final.
So, there could be a new trial or reconsideration only on such
issues and there will be a final judgment with respect to the other
issues of the case. How could this happen? The best example is
Rule 31, Section 2:
Rule 31, Sec. 2. Separate trials. The court, in furtherance of
convenience or to avoid prejudice, may order a separate trial of
any claim, cross-claim, counterclaim, or third-party complaint, or of
any separate issue or of any number of claims, cross-claims,
counterclaims, third-party complaints or issues. (2a)
If the cross-claim or third-party complaint are tried separately,
there will be different judgments. And in effect, you can file a
partial motion for new trial or reconsideration to the facts
contemplated by the case.
Sec. 8. Effect of order for partial new trial. When less than all of the
issues are ordered retried, the court may either enter a judgment
or final order as to the rest, or stay the enforcement of such
judgment or final order until after the new trial. (7a)
This is a continuation of Section 7.
Q: When there is a partial new trial, what will happen to the
judgment on the undisputed facts?
A: Either:
a.) the court will enter judgment on it; or
b.) the court may stay the enforcement until after the new
trial.
The following rules will describe the situation in Section 8:
Rule 36, Sec. 5. Separate judgments. When more than one claim for
relief is presented in an action, the court, at any stage, upon a
determination of the issues material to a particular claim and all
counterclaims arising out of the transaction or occurrence which is
the subject matter of the claim, may render a separate judgment
disposing of such claim. The judgment shall terminate the action
with respect to the claim so disposed of and the action shall
proceed as to the remaining claims. In case a separate judgment is
rendered, the court by order may stay its enforcement until the
rendition of a subsequent judgment or judgments and may
prescribe such conditions as may be necessary to secure the
benefit thereof to the party in whose favor the judgment is
rendered. (5a)
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Finality of judgment with respect to one portion of the case and the
trial continues with the other portion. There are several judgments
involving one action and technically, if one is finished, it can be
enforced unless the court provided otherwise. Another provision is
Rule 39, Section 2 [b]:
Rule 39, Sec. 2. Discretionary execution.
xxxxx
(b) Execution of several, separate or partial judgments.— A several
separate or partial judgment may be executed under the same
terms and conditions as execution of a judgment or final order
pending appeal. (2a)
Discretionary execution or execution pending appeal. In case of an
appeal, Section 1, Rule 41 [g]:
Rule 41, Section 1. Subject of appeal. An appeal may be taken from
a judgment or final order that completely disposes of the case, or
of a particular matter therein when declared by these Rules to be
appealable.
No appeal may be taken from:
xxxxx
(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
xxxxx
Let’s go back to Rule 37.
Sec. 9. Remedy against order denying a motion for new trial or
reconsideration. An order denying a motion for new trial or
reconsideration is not appealable, the remedy being an appeal
from the judgment or final order. (n)
An order denying a motion for new trial or reconsideration is not
appealable (c.f. Rule 41, Section 1 [a]. The remedy being an appeal
from the judgment or final order.
ILLUSTRATION: The judgment is against you. So you filed a motion
for new trial or reconsideration. The court denied your motion. So
there is an order denying your motion for new trial or
reconsideration. Now, you want to appeal.
Q: Appeal from what? From the main judgment or from the order
denying your motion?
A: You appeal from the judgment. You cannot appeal from the
order denying your new motion for new trial. That is related to
Rule 41, Section 1 [a]:
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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;(already deleted from the list so certiorari is not
anymore a remedy).
xxxxxx

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

-oOo-

OUTLINE of the process: (after trial)

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

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Rule 38
RELIEF FROM JUDGMENTS, ORDERS,
OR OTHER PROCEEDINGS
Section 1. Petition for relief from judgment, order, or other
proceedings. When a judgment or final order is entered, or any
other proceeding is thereafter taken against a party in any court
through fraud, accident, mistake, or excusable negligence, he may
file a petition in such court and in the same case praying that the
judgment, order or proceeding be set aside. (2a)
This is not applicable to the Supreme Court because it is not a trier
of facts
After the judgment becomes final and executory, the losing party
may avail of the following:
a.) Petition for Relief from Judgment;
b.) Action to Annul a Judgment;
c.) Certiorari; and
d.) Collateral attack of a judgment.
The term final when used to describe a judgment may be used in
two senses.
In the first, it refers to a judgment that disposes of a case in a
manner that leaves nothing more to be done by the court in
respect thereto. In this sense, a final judgment is distinguished
from an interlocutory order which does not finally terminate or
dispose of the case (Rudecon Management Corporation vs.
Singson, 454 SCRA 612). Here the remedies are a Motion for
Reconsideration, motion for New Trial and appeal.
In another sense the word “final” may refer to a judgment that is
no longer appealable and is already capable of being executed
because the period for appeal has lapsed without a party having
perfected an appeal of it there has been an appeal, it has already
been resolved by a highest possible tribunal (PCGG vs.
Sandiganbayaan 455 SCRA526). In this sense, the judgment is
commonly referred to as one that is “final and executory.”
Rule 38 is known as the remedy of petition for relief from judgment
or final order. The grounds cited here are actually the same as the
grounds for new trial – FAME. We are meeting FAME for the third
time. It seems to be a ground that keeps on going back. First in
Default, then New Trial, and now a ground for petition for Relief
from Judgment.
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This is not an independent action but a continuation of the old
case. It is filed with the same court which decided it.
Petition is available only to the parties
A petition for relief from judgment together with a motion for new
trial and a motion for reconsideration are remedies available only
to parties in the proceedings where the assailed judgment is
rendered. In fact, it has been held that a person who was never a
party to the case, or even summoned to appear therein, cannot
avail of a petition for relief from judgment (Alaban vs. CA 470 SCRA
697).
Not an independent action-
Under the present Rules, petitions for relief from a judgment, final
order or other proceedings should be filed in and resolved by the
court in the same case from which the petition arose. Thus,
petition for relief from a judgment, final order or proceeding
involved in a case tried by a municipal court shall be filed in and
decided by the same court in the same case, or in the Regional Trial
Court if the case was decided by it (Redena vs. CA GR No. 146611,
February 6, 2007).
Grounds:
1. when judgment or final order is entered into or any other
proceeding is thereafter taken against the petitioner through
FAME;
The "other proceeding" includes an order or writ of execution, or
an order dismissing an appeal (Medran vs. CA 83 Phil. 164)
A petition for relief is available not only against a judgment or final
order. Under Sec. 1 of Rule 38, it is also available when “any other
proceeding is thereafter, taken against the petitioner in any court
through fraud, accident, mistake, or excusable negligence”. Thus, it
was held that a petition for relief is also applicable to a proceeding
taken after the entry of judgment or final order such as an order of
execution (Cayetano vs. Ceguerra, 13 SCRA 73).
2. When petitioner has been prevented from taking an appeal by
FAME.
A petition for relief has been held to be applicable to all kinds of
special proceedings, such as land registration, intestate settlement,
and guardianship proceedings (Regalado, Remedial Law
Compendium, Vol. 1, 9th ed. p. 432)
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Nature of the petition
It is a legal remedy whereby a party seeks to set aside a judgment
rendered against him by a court whenever he was unjustly
deprived of a hearing or was prevented from taking an appeal
because of fraud, accident, mistake or excusable neglect (Quelnan
vs. VHF Philippines GR 138500, Sept. 16, 2005)
An equitable remedy and not a substitute for Motion for New Trial
or appeal-
A petition for relief from judgment is an equitable remedy that is
allowed only in exceptional cases when there is no other available
or adequate remedy. When a party has another remedy available
to him, which may be either a motion for new trial or appeal from
an adverse decision of the trial court, and he was not prevented by
fraud, accident, mistake or excusable negligence from filing such
motion or taking such appeal, he cannot avail himself of this
petition (Trust International Paper Corporation vs. Pelaez GR
164871, August 26, 2006).
Motion for new trial and Petition for relief excludes each other-
A party who has filed a timely motion for new trial and/or
reconsideration cannot file a petition for relief after his motion has
been denied. These remedies are exclusive of each other. It is only
in appropriate cases where a party aggrieved by the judgment has
not been able to file a motion for new trial and/or reconsideration
that a petition for relief can be filed. (Francisco vs. Puno GR No. L-
55694, October 23, 1981).
Q: What are the different remedies available to a defaulted
defendant granted by the rules?
A: The following:
Upon service of the order of default but before judgment
upon default is rendered under Rule 9 you can file a motion to set
aside the order of default on the ground that his failure to file
answer was because of FAME;
If there is already a default judgment, the correct
procedure is to file a motion for new trial under Rule 37 on the
ground of FAME within the period to appeal, meaning, before
judgment becomes final and executory;
If the judgment is already final and executory, and
defaulted defendant was denied new trial and appeal due to FAME,
the remedy is to file a petition for relief from judgment under Rule
38 on the ground of FAME.
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So if you are a passenger ,who is a defaulted defendant, and you
want to ride on the bus, Rule 9 is first trip, Rule 37 is second trip,
Rule 38 is last trip.
Motion for New Trial (R 37) vs. Petition for Relief (R 38)
1. MNT is available before the judgment becomes final and
executory while the latter is available after the judgment becomes
final and executory;
2. The first applies to judgments and final orders only while the
latter applies also to other proceedings;
3. The grounds for MNT are FAME and newly discovered evidence
while the latter is grounded on FAME;
4. The first is filed within the time to appeal while the latter should
be filed within 60 days from knowledge of the judgment and within
6 months from entry of judgment;
5. If MNT is denied, the order of denial is not appealable, hence the
remedy is appeal from judgment, while if the latter is denied, the
order denying a petition for relief is also not appealable but the
appropriate remedy is the appropriate civil action under R 65;
6. The first is a legal remedy while the latter is an equitable
remedy;
7. A motion for new trial need not be verified while the latter must
be.
Can you file a petition for relief not from a judgment but from an
order? Section 2:
Sec. 2. Petition for relief from denial of appeal. When a judgment
or final order is rendered by any court in a case, and a party
thereto, by fraud, accident, mistake, or excusable negligence, has
been prevented from taking an appeal, he may file a petition in
such court and in the same case praying that the appeal be given
due course. (1a)
In most cases, or 95% of petition for relief, a party files a petition
for relief from the judgment rendered against him. Actually that is
not true. The remedy of petition for relief is not only limited to
judgments but the law says “orders, or other proceedings.” That is
very broad.
EXAMPLE: I lost the case and I filed an appeal and the appeal was
beyond 15 days. So, there will be an order denying my appeal
because my appeal should be within 15 days.
Q: And suppose such order prevented me from taking an appeal
because of FAME, can I file a petition for relief?
A: Yes, not from the judgment but from the order denying my
appeal on the ground of FAME. And the court will grant me relief
by allowing me to appeal. So there, I am not questioning the
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judgment but I am only questioning the order not allowing me to
appeal.
In most cases, petition for relief are based on Section 1 rather than
Section 2 or from the order denying the appeal.
Sec. 3. Time for filing petition; contents and verification. A petition
provided for in either of the preceding sections of this Rule must
be verified, filed within sixty (60) days after the petitioner learns
of the judgment, final order, or other proceeding to be set aside,
and not more than six (6) months after such judgment or final
order was entered, or such proceeding was taken; and must be
accompanied with affidavits showing the fraud, accident, mistake,
or excusable negligence relied upon, and the facts constituting
the petitioner's good and substantial cause of action or defense,
as the case may be. (3)
Q: When you file a petition for relief from judgment, or final order,
what are the formal requirements?
A: The formal requirements are:
a.) The petition must be verified;
b.) The petition for relief must be accompanied with
affidavits showing the FAME relied upon;
c.) the affidavit of merit must also show the facts
constituting the petitioner’s good and substantial cause of action or
defense as the case may be.
Q: What will happen if a party files a petition for relief without any
affidavit of merits, or with a defective affidavit?
A: The defect is FATAL and the petition will be denied outright
because of lack of affidavit merits. It is the affidavit of merits which
serves as the jurisdictional basis for the court to entertain a
petition for relief. (Fernandez vs. Tan Tiong Tick, L-15877, April 28,
1961)
It serves as the jurisdictional basis for the court to entertain a
petition for relief. However, it is not a fatal defect to warrant denial
of the petition so long as the facts required to be set out also
appear in the verified petition.
Q: Now, does that requirement sound familiar again, that there
must be an affidavit showing the fame and the petitioner’s
substantial cause of action or defense?
A: Yes, that is the requirement under the motion for new trial,
affidavit of merits. Therefore, AFFIDAVIT OF MERITS which is a
requirement in Rule 37 is also a requirement in Rule 38. That is the
identical feature of new trial of fame and petition for relief.
Instances when an affidavit of merit is not necessary
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1. where there is no jurisdiction over the defendant;
2. where there is no jurisdiction over the subject matter;
3. where judgment is taken by default;
4. where judgment was entered by mistake or was obtained by
fraud; or
5. other similar cases.
Q: When do you file a petition for relief?
A: Once the judgment complained of has become final and
executory because the remedy of new trial is lost due to fame. But
it does not mean that you can file your petition for relief anytime.
There is also a deadline.
Q: What is the DEADLINE?
A: Under Section 3, the petition must be filed within:
Within SIXTY (60) DAYS from the time the petitioner
learns of the judgment, order, or other proceedings to be set aside,
AND
Not more than SIX (6) MONTHS after such judgment or
final order was entered, or such proceeding was taken.
Q: What is the date of entry of judgment or final order?
A: It is the date of finality of judgment or final order (Rule 36,
Section 2). So, the date of entry is deemed to be the date of
finality.
So there are two (2) periods: 60 days and 6 months; and BOTH
periods must be complied with (Dirige vs. Biranya, L-22033, July 30,
1966). Otherwise, if you fail to comply with the two periods the
petition for relief will be denied for being filed out of time.
PROBLEM: There was a judgment rendered against me in June 1997
and it became final and there was entry of final judgment in June
1997, meaning talo na ako last year pa. But I learned about it only
last week or seven days ago. Today is February 1998. So I asked my
lawyer to file a petition for relief this week.
Q: Is the petition filed on time?
A: NO. It is filed out of time. It is true that I only learned about it a
week ago. But definitely, the filing is beyond 6 months from the
date of its entry which is June 1997. You complied with the first
period but you did not comply with second period. Both periods
must be complied.
PROBLEM: The judgment was entered against me last December
1997, and there was entry of final judgment in December 1997. I
learned about it last December also; and now March, 1998, I will
file a petition for relief from judgment.
Q: Can I still file the petition for relief?
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A: No more. Although it is within 6 months (December to March is
only 3 months) from date of entry BUT definitely, between
December to March is more than 60 days. So the petition can no
longer be filed. That is how you apply the two periods. Both
periods must be complied.
Q: Is the period for filing a petition for relief extendible?
A: The remedy allowed by Rule 38 is merely an act of grace or
benevolence intended to afford a litigant a penultimate
opportunity to protect his interest. Considering the nature of such
relief and of the purpose behind it, the periods fixed by said rule
are NON-EXTENDIBLE and is never interrupted; nor can it be
subject to any condition or contingency because it is itself devised
to meet a condition or contingency. (Smith, Bell & Co. vs. Phil.
Milling Co., 57 O.G. 2701, April 10, 1961; Quijano vs. Tameta, L-
16473, April 20, 1961)
Well, of course, petition for relief according to SC, is a penultimate
remedy given by the law to a victim of FAME, because, if you are a
victim of FAME, you lose the case because of that reason.
Somehow the law would like to help you lalo na pagna-default ka.
O.K., you have Rule 9, file ka nang motion to lift order of default.
“Hindi ako nakahabol eh, may-judgment na.” O sige, Rule 38 –
petition for relief. But paglumampas ka dyan, sorry na lang.
Meaning, the law cannot help you forever. The law can only help
you up to a certain period. If you still do not do anything about it,
pasensiya ka na.
Sec. 4. Order to file an answer. If the petition is sufficient in form
and substance to justify relief, the court in which it is filed, shall
issue an order requiring the adverse parties to answer the same
within fifteen (15) days from the receipt thereof. The order shall
be served in such manner as the court may direct, together with
copies of the petition and the accompanying affidavits. (4a)
This remedy precludes the issuance of summons upon its filing. If
the petition is sufficient in form and in substance, the court shall
issue an order requiring the adverse parties to answer within 15
days from receipt thereof.
Sec. 5. Preliminary injunction pending proceedings. The court in
which the petition is filed, may grant such preliminary injunction
as may be necessary for the preservation of the rights of the
parties, upon the filing by the petitioner of a bond in favor of the
adverse party to answer for all damages and costs that may be
awarded to him by reason of issuance of such injunction or the
other proceedings following the petition; but such injunction shall
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not operate to discharge or extinguish any lien which the adverse
party may have acquired upon the property of the petitioner. (5a)
Remember that a petition for relief is a remedy available after the
judgment or final order has become final and executory. Hence the
judgment could be the subject of a writ of execution. There is
nothing in the Rules that precludes the execution of the judgment
that is already executory upon proper application of the prevailing
party during the pendency of the petition. The petitioner therefore,
would be interested in the preservation of the status quo as well as
the preservation of the rights of the parties before the petition is
resolved. Hence, the petitioner may avail of the remedy allowed
him under Sec. 5 of Rule 38. Under this provision, the court in
which the petition is filed, may grant such preliminary injunction to
preserve the rights of the parties upon the filing of a bond in favor
of the adverse party. The bond is conditioned upon the payment to
the adverse party of all damages and costs that may be awarded to
such adverse party by reason of the issuance of the injunction or
the other proceedings following the petition (Sec. 5 Rule 38).
Rule: Execution of judgment is not stayed unless a writ of
preliminary injunction is issued by the court.
Preliminary injunction actually is a type of provisional remedy
which is governed by Rule 58. Injunction is to stop, to enjoin
somebody or stop the court from doing an act. That is the essence
of injunction.
Upon filing of the petition:
1. the court in which the petition is filed may grant such
preliminary injunction as may be necessary for the preservation of
the right of the parties, upon the filing by the petitioner of a bond
in favor of the adverse party.
2. Such injunction shall not discharge any lien which the adverse
party may have acquired upon the property of the petitioner.
EXAMPLE: I lost in a case. The judgment became final and executo-
ry because I did not make an appeal. However, I filed a petition for
relief. In the meantime, my opponent is asking the court to execute
the decision which is his right because the judgment is already final
and executory. In other words, I am questioning the judgment of
the court while siya naman, he is asking the court to enforce the
judgment.
Q: Now, what is my remedy to stop the enforcement of the
judgment?
A: Under Section 5, I can ask the court to issue a writ of preliminary
injunction to stop the enforcement of the judgment. But I have to
put up a BOND conditioned that in the event that my petition for
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relief is not meritorious, I will pay for all the damages that the
other party will incur because of the delay in the execution.
Sec. 6. Proceedings after answer is filed. After the filing of the
answer or the expiration of the period therefor, the court shall
hear the petition and if after such hearing, it finds that the
allegations thereof are not true, the petition shall be dismissed;
but if it finds said allegations to be true, it shall set aside the
judgment or final order or other proceedings complained of upon
such terms as may be just. Thereafter the case shall stand as if
such judgment, final order or other proceeding had never been
rendered, issued or taken. The court shall then proceed to hear
and determine the case as if a timely motion for a new trial or
reconsideration had been granted by it. (6a)
BAR QUESTION: When a petition for relief from judgment is filed,
what are the hearings that will be conducted by the court?
A: In proceedings for relief from judgment, there may be two (2)
hearings, to wit:
1.) a hearing to determine whether the judgment or
order complained of should be set aside, and
2.) if the decision thereon is in the affirmative, a hearing
on the merits of the principal case.
So, the FIRST HEARING is to determine whether the petition should
be granted or not – is the petition meritorious or not? Was there
FAME? Is there affidavit of merit? Is the affidavit proper? Is the
petition filed within the period allowed by the law or not? Now, if
the petition is denied that is the end of the story.
Now, if the petition for relief is granted, the judgment will be set
aside as if it never existed. Then we will now try the case all over
again as if a motion for new trial has been filed. That is the second
hearing. The SECOND HEARING is the trial on the merits or a trial
de novo.
Appeal and Petition for Relief
Now, somebody was commenting, “Ito bang petition for relief
parang appeal din? Is this similar to appeal?” The answer is NO. In
the first place, there is no appeal here. Kaya nga the judgment has
become final and executory because there was no appeal. Now, in
an appeal, for example: Natalo ka sa kaso. When you appeal and
you win, the decision will be overturned. From losing, you become
the winner. That is the effect of appeal.
But in petition for relief, you are not asking the court to change its
decision. When a petition for relief from judgment is granted, the
decision against you will be set aside as if it was never rendered
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and we will try the case all over again. In a petition for relief, the
court has no power to change its decision because it has already
become final and executory. But its power under Rule 38 is to set it
aside as if it was never rendered and conduct a new trial as if a
motion for new trial has been filed. So please do not confuse Rule
38 with the remedy of appeal.
Sec. 7. Procedure where the denial of an appeal is set aside. Where
the denial of an appeal is set aside, the lower court shall be
required to give due course to the appeal and to elevate the
record of the appealed case as if a timely and proper appeal had
been made. (7a)
This is a continuation of Section 2 – what can be questioned in Rule
38 is not only a judgment but also an order, such as an order
denying an appeal.
Q: Can I file a petition for relief from the denial of an appeal?
A: YES.
Q: And if my petition for relief from the order denying the appeal is
granted, what will happen?
A: According to Section 7, the court will now grant the appeal and
allow the appeal to proceed as if it was filed on time. Meaning, the
judgment will not be set aside but I will be given the right to appeal
if the failure to file an appeal as due to FAME.
No petition for relief in the Supreme Court
Can petitioner avail of a petition for relief from judgment under
Rule 38 from a resolution of the SC denying his petition for review?
The SC in Purcon vs. MRM Philippines, Inc. GR 182718, September
26, 2008 answered the question in the negative. A petition for
relief from judgment is not an available remedy in the SC. In
summary the SC explained, thus:
“First, although Section 1 of Rule 38 states that when a judgment
or final order is entered through fraud, accident, mistake or
excusable negligence, a party in any court may file a petition for
relief from judgment, this rule must be interpreted in harmony
with Rule 56, which enumerates the original cases cognizable by
the Supreme Court, thus:
Section 1. Original cases cognizable. – Only petition for certiorari,
prohibition, mandamus, quo warranto, habeas corpus, disciplinary
proceedings against members of the judiciary and attorneys, and
cases affecting ambassadors, other public ministers and consuls
may be filed originally in the Supreme Court.
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“A petition for relief from judgment is not included in the list of

Rule 56 cases originally cognizable by the Court.

Second, while Rule 38 uses the phrase “any court,” it refers only to
the Municipal/Metropolitan and Regional Trial Courts.

As revised, Rule 38 radically departs from the previous rule as it

now allows the Metropolitan or Municipal Trial Court which
decided the case or issued the order to hear the petition for relief.
Under the old rule, a petition for relief from the judgment or final
order of Municipal Trial Courts should be filed with the Regional
Trial Court.

The procedural change in Rule 38 is in line with Rule 5, prescribing

uniform procedure for Municipal and Regional Trial Courts and
designation of Municipal/Metropolitan Trial Courts as courts of
record.

Third, the procedure in the CA and the Supreme Court are

governed by separate provisions of the Rules of Court. It may, from
time to time, be supplemented by additional rules promulgated by
the Supreme Court through resolutions or circulars. As it stands,
neither the Rules of Court nor the Revised Internal Rules of the CA
allows the remedy of petition for relief in the CA.xxx”

Earlier, in Mesina vs. Meer 383 SCRA 625, the Court ruled that a
petition for relief from judgment is not an available remedy in the
CA and the SC.

Remedies if Rule 38 is no longer available

1. Petition for Annulment of Judgment under R 47; and

2. A direct or collateral attack if judgment is void ab initio for lack of
jurisdiction.

Note: Under AM No. 08-8-7 SC, otherwise known as the Rule of

Procedure for Small Claims Cases, a Motion for New Trial or
Reocnsideration (R 37), and a Peition for Relief from Judgment (R
38) are prohibited pleadings.

Both remedies, likewise, are prohibited pleading under the Rule on

Summary Procedure.
-oOo-

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Rule 39
EXECUTION, SATISFACTION AND
EFFECT OF JUDGMENTS
Rule 39 is on the subject of Execution, Satisfaction and Effect of
Judgments. This is the longest rule in the study of Civil Procedure.
Take note that there are 48 Sections. Let us first review the
fundamentals.
Q: When the judgment becomes final and executory, what are the
effects?
A: The finality of a judgment produces three (3) effects, to wit:
1.) The prevailing party is entitled to have the judgment
executed as a matter of right and the issuance of the
corresponding writ of execution becomes a ministerial
duty of the court (Rule 39);
2.) The court rendering the judgment loses jurisdiction over
the case so that it can no longer correct the judgment in
substance, except to make corrections of clerical errors
and omissions plainly due to inadvertence or negligence.
(Locsin vs. Paredes, 63 Phil. 87; Manaois vs. Natividad, L-
13927, Feb. 28, 1960; Maramba vs. Lozano, L-21533,
June 29, 1967)
If after the judgment is rendered, you file a motion for
reconsideration or new trial, there is a possibility for the court to
change its mind and its judgment. But once the judgment has
become final, the court has no more power to change its judgment
substantially. The error will also become final, you can no longer
change anything substantial.
EXCEPTION: There is one type of judgment which can be changed
substantially even long after it became final as an exception to this
rule. In the study of Persons, Judgment for Support. The judgment
for support, which can be modified at any time because the
obligation to give support depends not only on the resources of the
obligor, but also on the ever-changing needs of the obligee.
(Malabana vs. Abeto, 74 Phil. 13)
EXAMPLE: The father refuses to support his minor child. After trial,
the court orders the father to support the child at P1,000 per
month. Four years later, the father is already well-off and the child
is already in nursery or kindergarten. So the child tells his lawyer
that the amount for support must be increased from P1,000 to
P5,000. The father says, “the court said P1,000 and if you change
that to P5,000, that would be substantial.” The father is wrong.
The amount for support can be changed anytime. In the same
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manner. The amount can also be lowered, as when the father loses
his job.
3.) Res Adjudicata supervenes. (NLU vs. CIR, L-14975, May
15, 1962)
The same cause of action between the same parties can never be
the subject matter of another litigation in the future. Any
subsequent case is barred by prior judgment.
Section 1. Execution upon judgments or final orders. – Execution
shall issue as a matter of right, on motion, upon a judgment or
order that disposes of the action or proceeding upon the
expiration of the period to appeal therefrom if no appeal has
been duly perfected.
If the appeal has been duly perfected and finally resolved, the
execution may forthwith be applied for in the court of origin, on
motion of the judgment obligee, submitting therewith certified
true copies of the judgment or judgments or final order or orders
sought to be enforced and of the entry thereof, with notice to the
adverse party.
The appellate court may, on motion in the same case, when the
interest of justice so requires, direct the court of origin to issue
the writ of execution.
Q: Define execution.
A: EXECUTION is the remedy provided by law for the enforcement
of a judgment. (21 Am. Jur. 18) It is the fruit and the end of the suit
and is very aptly called the life of the law (PAL vs. Court of Appeals,
181 SCRA 557).
It would be useless if there is judgment but you cannot enforce the
same.
Q: Who will enforce the judgment?
A: The very same court which rendered the judgment.
Execution shall be applied for in the court of origin. If an appeal has
been duly perfected and finally resolved, the execution may be
applied for also in the court of origin on motion of the judgment
obligee. (Sec. 1) In filing a motion for execution of an appealed
judgment, there is no need to wait for the records of the case to be
remanded to the court of origin. All that is required is for the
appeal to have been duly perfected and finally resolved before
execution may be applied for (Borgonia vs. Decano 317 SCRA 660).
This is because when the judgment obligee files a motion for
execution in the court of origin, all he has to do is to attach the
certified true copies of (a) the judgment of the appellate court, and
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(b) the entry of said judgment (Sec. 1) even if the records have not
as yet been remanded to the court of origin. This procedure
prevents needless delays in the execution of the judgment.
If for whatever reason, the execution cannot be had with dispatch
in the court of origin, the new rules likewise afford the judgment
obligee a remedy. He may file a motion with the appellate court to
direct the court of origin, in the interest of justice, to issue the writ
of execution (Sec.1).
Writ of execution is a judicial writ issued to an officer authorizing
him to execute the judgment of the court.
Q: How is execution generally done?
A: It is generally done by filing a motion for execution by the pre-
vailing party and the court will then issue an order of execution,
which will be followed with a writ of execution, and the sheriff will
enforce the judgment.
In Lou vs. Siapno 335 SCRA 181, it was ruled that even in judgments
which are immediately executory, “there must be a motion to that
effect and a hearing called for the purpose.” Also, “under Supreme
Court Circular No. 24-94, a motion for the issuance of a writ of
execution must contain a notice to the adverse party” (Pallada vs.
RTC of Kalibo, Aklan Br. 1 304 SCRA 440).
A motion for the issuance of a writ of execution shall contain a
notice to the adverse party. A motion which does not contain a
notice of hearing, of the time and place for the hearing of the
motion, as required by Secs. 4 and 5 of Rule 15 of the Rules of
Court, is a worthless piece of paper which the clerk has no right to
receive and which the court has no authority to act upon (Pallada
vs. RTC of Kalibo Aklaan, Br. 1, supra).
Because of the present phraseology of Sec. 1, rulings like those
made in De Mesa vs. CA 231 SCRA 773 to the effect that where
execution is a matter of right, the judgment debtor need not be
given an advanced notice of the application for execution nor be
afforded a prior hearing thereon, must necessarily be deemed
abandoned.
So, we file a motion in court after the judgment has become final
and executory.
Q: How can the court issue the order when it has already lost
jurisdiction over the case because from what we have learned here
is that, one of the effects of the finality of judgment is that the
court loses jurisdiction over the case. And when the court loses
jurisdiction, it can no longer act on the case. So, how can it still
issue orders in that case when actually, once the judgment
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becomes final and executory, the trial court loses jurisdiction over
the case and it can no longer act in that case?
A: What is meant by that statement is that, the court can no longer
change the judgment. That is why new trial and reconsideration is
not anymore available in this stage. The judgment is beyond the
power of the court to change or alter.
BUT definitely the court can act on that case for the purpose of
enforcing its judgment because it is absurd to claim that a trial
court has the power to try and hear a case but once the judgment
has already become final, it has no more power to enforce it. If you
will really describe jurisdiction in its complete aspect, we can say
jurisdiction is “the power of the court to act on the case, to try, to
decide and to enforce its judgment.” That would be more
complete. Because enforcement is part of the court's jurisdiction.
Q: Against whom shall the execution issue?
A: Generally, execution can issue only against a (losing) party to the
case" and not against one who is a complete stranger because
majority of judgments are in personam. They are only enforceable
against the parties themselves or their successors-in-interest –
people who derive their rights from him. And a judgement can
never be enforced against a complete stranger who never had his
day in court. (Cruzcosa vs. Concepcion, 101 Phil. 146; Castañeda vs.
De Leon, 55 O.G. 625, Jan. 26, 1959; Bacolod vs. Enriquez, 55 O.G.
10545, Dec. 21, 1959)
Q: What portion in the decision is normally the subject of execution
?
A: It is the dispositive portion – the “WHEREFORE…” – that is going
to be enforced. (Robles vs. Timario, 58 O.G. 1507, Feb. 19, 1962).
Writ of execution must conform with the judgment
The writ of execution must conform to the dispositive portion of
the decision to be executed and the execution is void if it is in
excess of and beyond the original judgment or award for it is a
settled general principle that a writ of execution must conform
strictly to every essential particulars of the judgment promulgated
(Ex-Bataan Veterans Security Agency, Inc. vs. N:LRC 250 SCRA 418;
Equatorial Realty Development Inc. vs. Mayfair Theatre Inc. 332
SCRA 139; Banquerigo vs. CA GR 164633 August 7, 2006).
Thus, if the judgment does not provide for the payment of interest,
the writ of execution cannot modify the judgment by requiring the
judgment obligor to pay interest. That part of the writ imposing
interest is void (Solidbank Corp. vs. CA 379 SCRA 159).
Essential requisites of a writ of execution
1. It must conform strictly to the decision or judgment which gives
it life; and
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2. it cannot vary the intent of the judgment it seeks to enforce.
CLASSES OF EXECUTION
Q: What are the classes of execution under the law?
A: The following:
I. As to their nature:
1.) COMPULSORY execution – known as Execution as a
Matter of Right (Section 1)
2.) DISCRETIONARY execution – known as Execution Pending
Appeal (Section 2)
II. As to how it is enforced (Section 6):
1.) EXECUTION BY MOTION
2.) EXECUTION BY INDEPENDENT ACTION
COMPULSORY EXECUTION
(Execution as a matter of right)
GENERAL RULE: Judgment is enforceable by execution once it
becomes final and executory.
Execution; issuance of writ is trial court’s ministerial duty once
decision is final; writ of execution must conform to dispositive
portion of judgment; order of execution which varies tenor of
judgment is void.
Spouses Ricardo and Elena Golez v. Spouses Carlos and Amelita
Navarro; G.R. No. 192532. January 30, 2013
In the present case, the Court finds meritorious grounds to admit
the petition and absolve the petitioners from their procedural
lapse.
It is undisputed that the CA Decision dated September 29, 2006 is
already final and executory. As a rule, once a judgment becomes
final and executory, all that remains is the execution of the decision
which is a matter of right. The prevailing party is entitled to a writ
of execution, the issuance of which is the trial court’s ministerial
duty. The writ of execution, however, must conform substantially
to every essential particular of the judgment promulgated. It must
conform, more particularly, to that ordained or decreed in the
dispositive portion of the decision.
Clearly, the RTC exceeded its authority when it insisted on applying
its own construal of the dispositive portion of the CA Decision
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when its terms are explicit and need no further interpretation. It
would also be inequitable for the petitioners to pay and for the
respondents, who did not appeal the CA decision or questioned the
deletion of the 12% per annum interest, to receive more than what
was awarded by the CA. The assailed RTC order of execution dated
December 21, 2009 and the alias writ of execution dated May 17,
2010 are, therefore, void. Time and again, it has been ruled that an
order of execution which varies the tenor of the judgment, or for
that matter, exceeds the terms thereof is a nullity.
EXCEPTIONS: (WOLFSON vs. DEL ROSARIO, 46 Phil. 41)
1. When there has been a change in the situation of the
parties, which makes the execution inequitable;
2. When it appears that the controversy has never been
submitted to the judgment of the court;
3. When the judgment was novated by subsequent
agreement of the parties;
4. When it appears that the writ of execution has been
improvidently issued;
5. When the writ of execution is defective in substance;
6. When the writ of execution is issued against the wrong
party; and
7. When the judgment debt has been paid or otherwise
satisfied.
[1] WHEN THERE HAS BEEN A CHANGE IN THE SITUATION OF THE
PARTIES
WHICH MAKE THE EXECUTION INEQUITABLE. (Supervening Fact
Doctrine)
One of the most important exceptions is the first one: When there
has been a change in the situation of the parties which make the
execution inequitable. Meaning, from the time na nagkaroon ng
final judgment up to the present, there has been a change in the
situation of the parties so that if we will execute, the judgment
becomes inequitable already. So, this is just another way of saying
that there has been a SUPERVENING EVENT that happened which
makes execution inequitable.
EXAMPLE: There was a case where A filed a case to eject B from his
property and B lost the case and there was a judgment ordering
him to vacate the property of A. But while the case was going on, A
mortgaged his property to the bank. In the meantime, he failed to
pay his loan and the bank foreclosed the mortgage. So the property
was sold at public auction. And at the auction sale, B, the one
occupying it, bought the property. The owner now is B. But there is
a final judgment ejecting him. Now, shall we insist on the judgment
ejecting B? No because B is now the owner. The fact that B became
the owner is a supervening event.
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PHIL. VETERANS BANK (PVB) vs. IAC
178 SCRA 645
NOTE: There was a time before that the PVB was closed for 5 to 6
years because I think they have some problems. So the Central
Bank has to take over. The Central Bank has ordered to stop the
operation – placed under receivership, the Central Bank will
control. Now under the Central Bank Law, once the Central Bank
takes over the control of a private bank, all its assets has to be
preserved. No assets will be sold or disposed of.
FACTS: There was somebody who sued PVB, and PVB lost. So there
was a judgment which became final. And the winner asked the
court to execute. Practically, you have to levy on the property of
the bank. In the meantime, the PVB was placed under receivership,
where under the law, it cannot be disposed of because it is under
the control of the Central Bank.
ISSUE: Can the prevailing party insist on the enforcement of the
judgment and get and levy the property of the PVB?
HELD: NO. The placement of the bank under receivership is a
SUPERVENING EVENT. “Once a decision has become final and
executory, it is the ministerial duty of the court to order its
execution, admits certain exceptions. The fact that petitioner is
placed under receivership is a supervening event that renders a
judgment notwithstanding its finality unenforceable by attachment
or execution.”
SAMPAGUITA GARMENTS CORP. vs. NLRC
233 SCRA 260
FACT: An employee was terminated by his employer on the ground
of theft. He stole company property. The management filed also a
case of theft against the employee. But in the meantime the
employee also filed a labor case against the employer for illegal
dismissal and prayed for reinstatement with back wages. After
hearing, the NLRC ruled that there was illegal termination and
ordered the reinstatement of the employee and payment of
backwages. The NLRC decision became final. In the meantime, the
accused was convicted in the criminal case for theft and ordered to
go to prison.
ISSUE: What happens now to the final judgment of the NLRC
reinstating the employee?
HELD: “An employee’s conviction for theft, which was affirmed by
the RTC and the CA, is a SUPERVENING CAUSE that renders unjust
and inequitable the NLRC decision mandating the employee’s
reinstatement with backwages.”
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Take note however that for the supervening event to apply, the
supervening event must happen after the judgment has become
final and executory. Not that the supervening event happened
while the case was going on. If the case is going on and something
happened which you believe would make the decision against you
unfair, your duty is to bring it to the attention of the court so that
the court deciding the case would take that into consideration. In
the case of
VALENZONA vs. COURT OF APPEALS
226 SCRA 36
HELD: “While the rule is that a stay of execution of a final
judgment may be authorized if necessary to accomplish the ends of
justice, as for instance, where there has been a change in the
situation of the parties which makes such execution inequitable,
nevertheless the said rule cannot be invoked when the supposed
change in the circumstances of the parties took place while the
case was pending, for the reason that there was then no excuse for
not bringing to the attention of the court the fact or circumstance
that affects the outcome of the case.”
The ruling in VALENZONA was reiterated in
ABOITIZ vs. TRAJANO
278 SCRA 387 [1997]
HELD: “We are of course well aware of the rule authorizing the
court to modify or alter a judgment even after the same has
become executory, whenever circumstances transpire rendering
its execution unjust and inequitable. However, this rule, we must
emphasize, applies only to cases where the facts or circumstances
authorizing such modification or alteration transpired after the
judgment has become final executory.”
[3] WHEN THE JUDGMENT WAS NOVATED BY SUBSEQUENT
AGREEMENT.
QUESTION: Can the parties enter into a compromise agreement
when there is already a decision?
ANSWER: YES. Compromise agreement is welcome anytime –
before the case is filed, while the case is going on, while the case is
on appeal.
Q: Now suppose there is a decision in my favor against you and
then you approach me and say, “Pwede ba pag-usapan na lang
natin ito?” “Sige okay.” Then we arrive at another agreement which
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we signed, where the agreement is different from the decision in
my favor. Can it be done?
A: Yes, I can waive my rights under the judgment. There is now a
new agreement between us.
Q: Can I execute on the original judgment?
A: No more, because the new agreement novated the judgment.
Take note that in case of novation, the new obligation must be
totally incompatible with the first obligation.
A related question:
Q: Can one court by injunction or restraining order stop the
execution of a judgment of another court?
A: GENERAL RULE: NO, because that will amount to interference.
EXCEPTIONS:(when the enforcement of a final judgment may be
stopped by way of injunction)
1.) Rule 38, (Petition for Relief from Judgment) Section 5:
Rule 38, Section 5: Preliminary injunction pending proceedings. –
The court in which the petition is filed, may grant such
preliminary injunction as may be necessary for the preservation
of the rights of the parties, upon the filing by the petitioner of a
bond in favor of the adverse party, conditioned that if the petition
is dismissed or the petitioner fails on the trial of the case upon
the merits, he will pay the adverse party all damages and costs
that may be awarded to him by reason of the issuance of such
injunction or the other proceedings following the petition; but
such injunction shall not operate to discharge or extinguish any
lien which the adverse party may have acquired upon the
property of the petitioner.
In effect, there is a final and executory judgment but the court will
issue an injunction to stop this enforcement because of the
pendency of a petition for relief from judgment.
2.) When there is an action for annulment of judgment of
the RTC filed in the CA.
The CA may issue a writ of preliminary injunction – annulment of
judgment, certiorari, or prohibition cases where the CA will issue a
preliminary injunction to stop the RTC from enforcing its judgment
pending the resolution of whether its judgment was rendered in
excess or without jurisdiction- annulment of judgement, certiorari,
or prohibition cases where the CA will issue a preliminary
injunction to stop the RTC from enforcing its judgement pending
the resolution of whether its judgement was rendered in excess or
without jurisdiction.
So, those are the exceptions.
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Instances of compulsory execution
EXECUTION AS A MATTER OF RIGHT;
FIRST INSTANCE: NO APPEAL, JUDGMENT BECOMES FINAL
Q: What are the conditions for compulsory execution?
A: The following are the conditions:
1.) FIRST CONDITION: It is a judgment or an order that has
disposed already of the action or proceeding;
2.) SECOND CONDITION: The period to appeal has expired and no
appeal has been filed/taken from the judgment. In other
words it has already become final and executor.
Under the first condition, if it is a judgment or order that has
disposed already of the action or proceeding then it can be
executed because if the judgment or order has not yet disposed of
the action or proceeding, that is called an interlocutory judgment
or order.
One of the effects of finality of a judgment under Rule 36 is that the
prevailing party is entitled to have the judgment executed as a
matter of right. And it is the ministerial duty of the court to
execute its own judgment. So once the judgment has become final,
all that the winner or prevailing party has to do is to file a motion in
court for execution, the court has to issue.
When the law says it is a matter of right upon a judgment or order
that disposes the action or proceeding, it means that after the
judgment was rendered, there is nothing more for the court to do
because its job is over. Therefore, if there is something more that
the court can do, as a rule, you cannot execute. That is why
conditional judgments, incomplete judgments cannot be executed.
Under the second condition, we must wait for the period to appeal
to expire before we can move for execution. So, if the period to
appeal has not yet expired, then we cannot execute the judgment.
Once a judgment becomes final and executory, the prevailing party
can have it executed as a matter of right, and the issuance of a writ
of execution becomes the ministerial duty of the court (Buaya vs.
Stronghold Insurance Co., Inc. 342 SCRA 576). Once a decision
becomes final and executory, it is the ministerial duty of the
presiding judge to issue a writ of execution except in certain cases,
as when subsequent events would render execution of judgment
unjust (Mangahas vs. Paredes GR 157866 February 14, 2007).
Judgments and orders become final and executory by operation of
law and not by judicial declaration. The trial court need not even
pronounce the finality of the order as the same becomes final by
operation of law (Testate of Maria Manuel Vda. De Biascan 374
SCRA621). Its finality becomes a fact when the reglementary period
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for appeal lapses, and no appeal is perfected within such period
(Vlason Enterprises vs. CAS 310 SCRA 26).
Q: May the court refuse to execute a judgment on the ground that
the judgement was wrong or erroneous?
A: NO, because it is a matter of right and the issuance of the
corresponding writ of execution upon a final and executory
judgment is a ministerial duty of the court to execute which is
compellable by mandamus. (Ebero vs. Cañizares, 79 Phil. 152)
The principle is:
No matter how erroneous a judgment may be, so long as the lower
court had jurisdiction over the parties and the subject matter in
litigation, (in short the judgment is valid), the said judgment is
enforceable by execution once it becomes final and executory. The
error also becomes final. If it is erroneous, the remedy is to appeal,
otherwise the error becomes final as well.
In execution, if you are not careful, there are lawyers who are very
good in thwarting an execution where a series of maneuvers are
utilized - we can still be delayed by questioning this and that and
sometimes courts are unwitting accomplices. That is why in the
1994 of
PELAYO vs. COURT OF APPEALS
230 SCRA 606
HELD: “We have time and again ruled that courts should never
allow themselves to be a party to maneuvers intended to delay the
execution of final decisions. They must nip in the bud any dilatory
maneuver calculated to defeat or frustrate the ends of justice, fair
play and prompt implementation of final and executory judgment.
Litigation must end and terminate sometime and somewhere, and
it is essential to an effective administration of justice that once a
judgment has become final, the winning party be not, through a
mere subterfuge, deprived of the fruits of the verdict. Courts must
therefore guard against any scheme calculated to bring about that
result. Constituted as they are to put an end to controversies,
courts should frown upon any attempt to prolong them.”
EXECUTION AS A MATTER OF RIGHT;
SECOND INSTANCE: CA AFFIRMS THE RTC JUDGMENT
Q: Is there any other instances where a judgment maybe executed
as a matter of right?
A: YES, when the losing party appealed the RTC decision to the CA
and the CA affirmed the decision of the RTC. Kung may appeal, the
judgment is not final, you cannot execute. The case is now in the
CA, the CA decided in your favor, the RTC judgment was affirmed
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and the CA decision has also become final and executory. So you
can now execute.
Q: How do you execute in that situation?
A: That is now covered by the second and third paragraphs of
Section 1:
If the appeal has been duly perfected and finally resolved, the
execution may forthwith be applied for in the court of origin, on
motion of the judgment obligee, submitting therewith certified
true copies of the judgment or judgments or final order or orders
sought to be enforced and of the entry thereof, with notice to the
adverse party.
The appellate court may, on motion in the same case, when the
interest of justice so requires, direct the court of origin to issue
the writ of execution.
Now the usual procedure no, when you win in the RTC and the
losing party appeals, the records of the case will be brought to the
CA. Later, there will be a CA decision: The judgment of the RTC of
Davao City is affirmed in toto. Now you have to wait for the CA
judgment to become final because that may be appealed further to
the SC. If the judgment becomes final, the clerk of court will make
an entry of final judgment of the CA decision. Normally after that,
the records from the CA will be returned to Davao. It will be sent
back to the court of origin. Once the record is back, the RTC is
supposed to tell you, the records are here. That is the time you file
a motion for execution. You will file it in the RTC.
But sometimes, it takes months for the CA to return the records.
That is the trouble with the CA. It takes them several months, when
the case is appealed, before they tell you that the record is here.
Under the PRESENT rules, this is taken from the SC Circular 24-94
which took effect in 1994, hindi na kailangan hintayin ang records
na bumalik dito. Just get a certified copy of the CA decision, get a
copy of the entry of final judgment of the CA. You just attach a
copy of the CA judgment and a certificate from the CA clerk of
court that it is already final and executory - meaning, that there is
already entry of final judgment. This is much faster than waiting for
the records to be returned.
The first paragraph in Section 1 normally deals with judgment
usually becoming final and executory in the RTC. The rest of the
paragraph deals with appeal which affirmed the decision of the
RTC. So that is the procedure for execution – both cases, execution
is a matter of right because judgment is final and executory.
The alternative which is the last paragraph, in the interest of
justice, you can file also your motion for execution in the CA and
the CA will direct the RTC to issue the writ of execution.
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EXECUTION AS A MATTER OF RIGHT;
THIRD INSTANCE: CASES UNDER SECTION 4
Q: Is there another instance when execution becomes a matter of
right?
A: This is the third instance found in Section 4:
Sec. 4. Judgments not stayed by appeal. - Judgments in action for
injunction, receivership, accounting and support, and such other
judgments as are now or may hereafter be declared to be
immediately executory, shall be enforceable after their rendition
and shall not be stayed by an appeal taken therefrom, unless
otherwise ordered by the trial court. On appeal therefrom, the
appellate court in its discretion may make an order suspending,
modifying, restoring or granting the injunction, receivership,
accounting, or award of support.
The stay of execution shall be upon such terms as to bond or
otherwise as may be considered proper for the security or
protection of the rights of the adverse party. (4a)
GENERAL RULE: If there is an appeal, the judgment will be stayed.
EXCEPTIONS (Under Section 4): Judgments in actions for injunction,
receivership, accounting, support, judgment declared to be
immediately executory.
So, actions for injunction, receivership, accounting, support. So for
example: there’s an injunction from the court: “The defendant is
enjoined from trespassing on plaintiff’s land.” Then you appealed.
So, the decision is not final. Now, if the judgment is not yet final,
what will you do in the meantime. So, you’ll say; “I’ll just continue
to trespass because anyway the judgment is not yet final.” Ah hindi
yan pwede. Even if the judgment is not yet final, even if it is on
appeal, you have to honor the injunction. So, in effect, it is a matter
of right.
Another Example: An order directing you to render an accounting.
Take the case of recovery of possession of land with accounting of
the income that you received. After trial, “Okey, Defendant, you
turn over the possession of the property to the plaintiff and you
render an accounting.” Appeal ka. Pag appeal mo, there must be an
accounting in the meantime.
So, if there is a judgment for an action for support, you must
comply with the judgment even before it becomes final. So, the
amendment now includes support and this phrase, “such other
judgments as are now or may hereafter be declared to be
immediately executory.” Any judgment which is declared by law to
be immediately executory has to be enforced even before it
becomes final and executory even if there is an appeal.
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EXECUTION AS A MATTER OF RIGHT;
FOURTH INSTANCE: FORCIBLE ENTRY AND UNLAWFUL DETAINER
CASES
Q: Is there another instance when execution becomes a matter of
right?
A: YES, under Rule 70 – a judgment of the MTC in a forcible entry or
unlawful detainer case is immediately executory (i.e. subject to
immediate execution) even if it is not yet final and executory.
TO SUMMARIZE:
Q: When is execution a matter of right?
A: In the following:
1.) Section 1, paragraph 1 – no appeal; judgment becomes
final;
2.) Section 1, paragraph 2 – there is an appeal; once the CA
judgment becomes final;
3.) Section 4 – Judgment in an action for injunction,
receivership, accounting, support, judgment declared to
be immediately executory; and
4.) Rule 70 – Judgments in Forcible Entry and Unlawful
Detainer cases.
DISCRETIONARY EXECUTION
(Execution pending appeal)
Section 2. Discretionary execution. –
(a) Execution of a judgment or final order pending appeal. – On
motion of the prevailing party with notice to the adverse party
filed in the trial court while it has jurisdiction over the case and is
in the possession of either the original record or the record on
appeal, as the case may be, at the time of the filing of such
motion, said court may, in its discretion, order the execution of a
judgment or final order even before the expiration of the period
to appeal.
After the trial court has lost jurisdiction, the motion for execution
pending appeal may be filed in the appellate court.
Discretionary execution may only issue upon good reasons to be
stated in a special order after due hearing.
(b) Execution of several, separate or partial judgments. - A several,
separate or partial judgment may be executed under the same
terms and conditions as execution of a judgment or final order
pending appeal.
The second type of execution is discretionary or execution pending
appeal. Discretionary, meaning, the court may or may not order the
execution.
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Here, the prevailing party files a motion for execution within the 15
days period to appeal. So in other words, the judgment is not yet
final and executory, normally, within the period to appeal.
Q: Normally, can you file a motion for execution within the period
to appeal?
A: As a rule, you cannot because it is not yet final. But by
EXCEPTION, Section 2 allows you, provided, according to the last
paragraph, discretionary execution may only issue upon ‘good
reason’ to be stated in the special order after due hearing.
Q: Therefore, what are the requisites for discretionary execution?
A: The following are the requisites for discretionary execution:
1.) There must be a motion filed by the prevailing party
with notice to the adverse party;
2.) There must be a hearing of the motion;
3.) There must be good reasons to justify the
discretionary execution; and
4.) The good reasons to execute must be stated in a
special order after due hearing (Mancenido vs. CA
330 SCRA 419; Geolistics Inc. vs. Cateway Electronics,
GR 174256-57, March 25, 2009).
In Section 1, when the judgment has become final and executory,
you do not have to cite any good reason. The only reason for
execution is that the judgment becomes final and executory. But in
the case of execution pending appeal, you must justify it – the
party must convince the court to grant the execution. And
remember according to the SC, execution under Section 2 is not the
general rule, that is the exception.
“The requirement of good reason is important and must not be
overlooked, because if the judgment is executed and, on appeal,
the same is reversed, although there are provisions for restitution,
oftentimes damages may arise which cannot be fully compensated.
Accordingly, execution should be granted only when these
considerations are clearly outweighed by superior circumstances
demanding urgency, and the above provision requires a statement
of those circumstances as a security for their existence.” (City of
Bacolod vs. Enriquez, 101 Phil. 644)
It is even a misnomer – execution pending appeal. For all you know,
the losing party may or may not appeal. It is actually called
execution pending appeal because you are filing the motion within
the period to appeal.
Q: What will happen if there are no good reasons?
A: The writ of execution is void because it does not state why you
are executing a judgment. (AFWU vs. Estipona, L-17934, Dec. 28,
1961) And remember that execution pending appeal is the
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exception rather than the rule. And there is a possibility that the
judgment in your favor will be reversed on appeal.
Q: Suppose we will execute the judgment pending appeal and the
appeal will proceed then it will be reversed, what will happen
then?
A: If that happens, then there is Section 5 – eh di, magsaulian tayo
if it is reversed totally, partially, or annulled on appeal or
otherwise. There will be MUTUAL RESTITUTION. That is the remedy
under Section 5. But the trouble is ang hirap man ng saulian, eh.
There could not be a 100% perfect restitution. That is the same
asking the question, how can you unscramble a scrambled egg?
This is one reason why execution pending appeal is not favored.
Section 5. Effect of reversal of executed judgment. - Where the
executed judgment is reversed totally or partially, or annulled, on
appeal or otherwise, the trial court, may, on motion, issue such
orders as justice may warrant under the circumstances (5a)
Q: Give examples of GOOD REASONS which would justify execution
pending appeal.
A: Following are example of good reasons:
1.) When there is danger of the judgment becoming
INEFFECTUAL. (Scottish Union vs. Macadaeg, 91 Phil.
891);
In this case of MACADAEG, the plaintiff sued a foreign corporation
doing business in the Philippines. So it has assets no? The plaintiff
sued the foreign company and he won, there was award, but hindi
pa final. In the meantime, plaintiff learned the foreign company is
going to stop completely its business in the Philippines and they are
going to send back all their assets abroad. Sabi ng plaintiff: “Aba
delikado ako. Suppose after the appeal, I still win and I will start
running after the defendant na wala naman dito. It has no more
office, no operations, no assets; but in the meantime meron pa”? So
the plaintiff filed a motion for execution pending appeal. If we will
wait for the judgment to become final, by that time the judgment
will become ineffectual.
2.) OLD AGE; There was a case an old woman files a case
against somebody to recover her land from the
defendant which the latter has deprived her of the
property for years. The defendant enjoyed the property
and the fruits. After years of litigation she won, she was
about 80. And then mag-aappeal pa yong kalaban. The
old woman filed a motion in court asking for immediate
execution even if the judgment is not yet final on the
argument that “I have been deprived for years of the
possession and of the property; and there is a probable
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appeal which may take another couple of years. By the
time I win the case on appeal, I may already be dead. I
have not enjoyed the property and the fruits.” The SC
said, all right that is a good reason.
3.) Where the appeal is for the purpose of DELAY;
Q: How about the argument that the intended appeal is dilatory? It
is only intended to prolong the supposed execution and therefore
the losing party has a chance to win the appeal. Is that a good
ground for execution pending appeal ?
A: In the old case of PRESBITERO vs. RODAS (73 Phil. 300) and
JAVELLANA vs. QUERUBIN (July 30, 1966) the SC said that, that is a
good reason – when the appeal is interposed for delay.
However, in the case of AQUINO vs. SANTIAGO (161 SCRA 570) the
SC said that it is not a ground because it is as if the trial court is
already acting like the CA. It is only the CA which has the power to
claim that the appeal is without merit. That’s another reasoning.
But in the case of HOME INSURANCE CO. vs. CA (184 SCRA 318), the
SC ruled that, that would be a good reason again specially that
there are many factors to show the inequity of not executing the
judgment immediately (if coupled with other reason). That’s why in
the case of
HOME INSURANCE CO. vs. COURT OF APPEALS
184 SCRA 318
HELD: “A good and sufficient reason upon which to issue execution
of the judgment pending appeal is when the appeal is being taken
for the purpose of delay. While it is true that it is not for the trial
court to say that the appeal may not prosper or that it is frivolous,
there are circumstances which may serve as cogent bases for
arriving at such a conclusion.”
Dean I: An example where the trial court maybe justified in saying
that the appeal is dilatory is in default judgments where there is no
evidence for the defendant. And then the defendant appeals. Now
what is the chance of reversal when all the evidence is for the
plaintiff? The possibility that the judgment will be reversed is
almost zero (0). Therefore the court can rule that the appeal is
dilatory and then order the execution of the judgment pending
appeal upon motion of the plaintiff.
The SC continues: “Another vital factor which led trial court to
allow execution pending appeal was the pendency of the case for
more than 17 years so that the purchasing power of the peso has
undeniably declined. Petitioner should be given relief before it is
too late.”
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Where the sole reason given by the trial court in disallowing an
appeal is that the appeal is frivolous and dilatory, execution
pending appeal cannot be justified because the authority to
disapprove an appeal pertains to the appellate court (International
School, Inc. Manila vs. Court of Appeals, 309 SCRA 474) Mere
allegation that the appeal is dilatory is not a good reason to merit
discretionary execution (Intramuros Tennis Club, Inc. vs. CA 341
SCRA 90).
In Sangkay vs. NPC GR 141447 May 4, 2006, the Court stressed that
the trial court is not justified to order the execution pending
appeal, on its assertion that the appeal of the respondent is a
dilatory tactic. It is not for the trial judge to determine if a decision
he rendered is delayed as this is the role of the appellate court.
Hence, it is not within the competence of the trial court, in
resolving a motion for execution pending appeal, to rule that the
appeal is patently dilatory and rely on the same as basis for finding
good reasons to grant the motion. Only an appellate court can
appreciate the dilatory intent of an appeal as an additional good
reason in upholding an order for execution pending appeal.
4. Financial distress is also not in itself a good reason to justify
execution pending appeal (Intramuros Tennis Club, Inc. vs. CA,
supra)
PB COM. vs. COURT OF APPEALS
279 SCRA 364 [Sept. 23, 1997]
HELD: “It is significant to stress that private respondent Falcon is a
juridical entity and not a natural person. Even assuming that it was
indeed in financial distress and on the verge of facing civil or even
criminal suits, the immediate execution of a judgment in its favor
pending appeal cannot be justified as Falcon's situation may not be
likened to a case of a natural person who may be ill or may be of
advanced age.”
“Even the danger of extinction of the corporation will not per se
justify a discretionary execution unless there are showings of
other good reasons, such as for instance, impending insolvency of
the adverse party or the appeal being patently dilatory. Hence, it
is not within competence of the trial court, in resolving a motion
for execution pending appeal, to rule that the appeal is patently
dilatory and rely on the same as its basis for finding good reason
to grant the motion. Only an appellate court can appreciate the
dilatory intent of an appeal as an additional good reason in
upholding an order for execution pending appeal which may have
been issued by the trial court for other good reasons, or in cases
where the motion for execution pending appeal is filed with the
appellate court in accordance with Section 2, paragraph (a), Rule
39 of the 1997 Rules of Court.”
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5.)When the successful party files a BOND;
Q: Here is a controversial question: How about an instance when
the winning party offers to put up a bond. He says; “Alright, I am
asking for an order pending appeal. I will put up a bond to answer
for any damages that the defendant may suffer in the event that he
wins the appeal.”
A: In the old case of HACIENDA NAVARRA vs. LABRADOR (65 Phil
635), the SC simply implied that there is a good ground. HOWEVER,
the SC denied that implication in later cases. Among which were
the cases of ROXAS vs. CA (157 SCRA 370) and PNB vs. PUNO, (170
SCRA 229) and PHOTOQUICK INC. vs. LAPENA, JR. (195 SCRA 66).
PHILIPPINE NATIONAL BANK vs. PUNO
170 SCRA 229
HELD: “The mere filing of a bond would not entitle the prevailing
party to an execution pending appeal. Whatever doubts may have
been generated by early decisions involving this matter, starting
with Hacienda Navarra, Inc. vs. Labrador, et al., have been clarified
in Roxas vs. Court of Appeals, et al.”
“To consider the mere posting of a bond a ‘good reason’ would
precisely make immediate execution of a judgment pending appeal
ROUTINARY, the rule rather than the exception. Judgments would
be executed immediately, as a matter of course, once rendered, if
all that the prevailing party needed to do was to post a bond to
answer for the damages that might result therefrom. This is a
situation, to repeat, neither contemplated nor intended by law.”
So, we might say that the posting of a bond would be an
ADDITIONAL GOOD REASON but it is NOT BY ITSELF a good reason.
So, the case of HACIENDA NAVARRA VS. LABRADOR has been
misinterpreted.
The second paragraph of Section 2 [a]:
After the trial court has lost jurisdiction, the motion for execution
pending appeal may be filed in the appellate court.
Q: Where can you file your motion for execution pending appeal?
A: It DEPENDS:
1.) TRIAL COURT - while it has jurisdiction over the case and
the court is still in possession of the records of the case.
Meaning: (1.) the judgment has not yet become final - it
is still within the 15 day period, and (2.) the court still is
in possession of the records of the case.
2.) APPELLATE COURT – after the trial court has already lost
jurisdiction, the motion for execution pending appeal
may already be filed in the appellate court.
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Q: When will the court lose jurisdiction over the case ?
A: With regard to execution pending appeal, you can correlate this
with RULE 41, SECTION 9 , to wit:
Rule 41, Section 9. Perfection of appeal; effect thereof. - A party’s
appeal by notice of appeal is deemed perfected as to him upon
the filing of the notice of appeal in due time.
A party’s appeal by record on appeal is deemed perfected as to
his with respect to the subject matter thereof upon approval of
the record of appeal filed in due time.
In appeals by notice of appeal, the court loses jurisdiction over
the case upon the perfection of the appeals filed in due time and
the expiration of the time to appeal of the other parties.
In appeals by record on appeal, the court loses jurisdiction only
over the subject matter thereof upon the approval of the records
on appeal filed in due time and the expiration of the time to
appeal of the other parties.
In either case, prior to the transmittal of the original record of the
record on appeal, the court may issue orders for the protection
and preservation of the rights of the parties which do not involve
any matter litigated by the appeal, approve compromises, permit
appeals of indigent litigants, order execution pending appeal in
accordance with Section 2 of Rule 39, and allow withdrawal of the
appeal. (9a)
The phrase “order execution pending appeal in accordance with
Section 2 of Rule 39” was not there in the Old Rules. Now, that has
been added and it jives with Section 2 paragraph (a). Now, for as
long as the motion is filed, before the court loses jurisdiction and
provided that the records are still with the trial court , even if the
appeal is subsequently perfected, it can still act on the motion for
execution pending appeal.
Now, let us go back to Section 2, Rule 39 on execution of several,
separate or partial judgments – meaning, there are several
judgments arising from the same case:
Rule 39, Section 2 [b]:
b) Execution of several, separate or partial judgments. - A
several, separate or partial judgment may be executed under the
same terms and conditions as execution of a judgment or final
order pending appeal. (2a)
Let us correlate this provision with Rule 36, Sections 4 and 5 AND
Rule 37, section 8:
RULE 36, Sec. 4. Several judgments. - In an action against several
defendants, the court may, when a several judgment is proper,
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render judgment against one or more of them, leaving the action
to proceed against the others. (4)
RULE 36, Sec. 5. Separate judgments. - When more than one
claim for relief is presented in an action, the court, at any stage,
upon a determination of the issues material to a particular claim
and all counterclaims arising out of the transaction or occurrence
which is the subject matter of the claim, may render a separate
judgment disposing of such claim. The judgment shall terminate
the action with respect to the claim so disposed of and the action
shall proceed as to the remaining claims. In case a separate
judgment is rendered, the court by order may stay its
enforcement until the rendition of a subsequent judgment or
judgments and may prescribe such conditions as may be
necessary to secure the benefit thereof to the party in whose
favor the judgment is rendered. (5a)
RULE 37, Sec. 8. Effect of order for partial new trial. - When less
than all of the issues are ordered retried, the court may either
enter a judgment or final order as to the rest, or stay the
enforcement of such judgment or final order until after the new
trial. (7a)
Q: Can there be two or more judgments arising out of one case?
A: YES. (Rule 36, Sections 4 and 5)
Q: Can the first judgment be immediately executed while waiting
for rendition of the second judgment?
A: Generally, the court will decide. If the court agrees, there has to
be a good reason.
There is one interesting case on execution pending appeal – the
case of
RCPI vs. LANTIN
134 SCRA 395
FACTS: The case of Lantin was an action for damages. The court
awarded the plaintiff said damages. So, the plaintiff moved for
discretionary execution.
ISSUE: Whether or not execution pending appeal is proper in a
judgment for damages.
HELD: The execution pending appeal may be proper for enforcing
the collection of ACTUAL DAMAGES, but it is not proper to enforce
the payment of moral or exemplary damages. So, this is where the
SC distinguished.
Why is it that execution pending appeal is proper for the collection
of actual damages? In actual or compensatory damages, the
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amount is certain. Normally, there are receipts. The amount is
based on evidence.
But the award for moral or exemplary damages is uncertain and
indefinite. It is based on abstract factors like sleepless nights,
besmirched reputation. It is hard to quantify it based on evidence.
The SC said, in many cases the trial court awards a huge amount for
exemplary damages but on appeal, the CA refused to award or
totally eliminate the award. So, if the award of moral or exemplary
damages is not certain or fixed, the execution pending appeal may
not be proper to enforce its execution.
Sec. 3. Stay of discretionary execution. - Discretionary execution
issued under the preceding section may be stayed upon approval
by the proper court of a sufficient supersedeas bond filed by the
party against whom it is directed, conditioned upon the
performance of the judgment or order allowed to be executed in
case it shall be finally sustained in whole or in part. The bond thus
given may be proceeded against on motion with notice to the
surety. (3a)
Q: Now, assuming that there is an execution pending appeal in
favor of the plaintiff under Section 2 and I am the defendant, is
there a way for me to stop the execution pending appeal?
A: Your remedy is to apply Section 3. The defendant will now ask
the court to fix a supersedeas bond to stop the execution pending
appeal. The bond will answer for any damages that the plaintiff
may suffer if the defendant’s appeal is not meritorious.
And once the supersedeas bond is filed, the court has to withdraw
the execution pending appeal. Supersedeas bond under Section 3 is
conditioned upon the performance of the judgment or order
allowed to be executed in case it shall be finally sustained in whole
or in part.
GENERAL RULE: When a defendant puts up a supersedeas bond,
the court shall recall the execution pending appeal because
discretionary execution is the exception rather than the general
rule.
EXCEPTION: Notwithstanding the filing of the supersedeas bond by
the appellant, execution pending appeal may still be granted by the
court IF THERE ARE SPECIAL AND COMPELLING REASONS justifying
the same outweighing the security offered by the supersedeas
bond. (De Leon vs. Soriano, 95 Phil. 806)
EXAMPLE OF EXCEPTION: Judgment for SUPPORT. The same may
be executed pending appeal even notwithstanding the filing of a
supersedeas bond by the appellant. (De Leon vs. Soriano, 95 Phil.
806) Support is something which should not be delayed. What is
the use of the supersedeas bond when the need of the plaintiff is
today and not 5 or 6 weeks from now?
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The other classification as to the manner of enforcement could be
by MOTION or by INDEPENDENT ACTION.
EXECUTION BY MOTION
EXECUTION BY INDEPENDENT ACTION
Sec. 6. Execution by motion or by independent action. - A final and
executory judgment or order may be executed on motion within
five (5) years from the date of its entry. After the lapse of such
time, and before it is barred by the statute of limitations, a
judgment may be enforced by action. The revived judgment may
also be enforced by motion within five (5) years from the date of
its entry and thereafter by action before it is barred by the statute
of limitations. (6a)
Q: How do you execute a judgment?
A: You file a motion for execution before the same court which
rendered the judgment.
Q: How is the execution enforced?
A: There are two 2 modes under Section 6:
1.) Execution by motion – within five (5) years from the date
of its entry; and
2.) Execution by independent action if the five year period
to execute by motion has elapsed with no motion having
been filed and before it is barred by the statute of
limitations..
Execution BY MOTION means that the prevailing party shall ask the
court to issue a writ of execution by simply filing a motion in the
same case.
EXAMPLE: I am the plaintiff and I have a judgment here against the
defendant. I do not know of any assets of the defendant because
the defendant for the meantime is as poor as a rat. But after a
certain period of time he becomes a wealthy man. All I have to do
is to file a motion and the court will order the execution, provided
the motion is filed within 5 years from the date of the entry of
judgment. The date of the entry of judgment and the date of
finality are the same (Rule 36, Section 2).
Lifetime of a writ of execution
The writ shall continue in effect during the period within which the
judgment may be enforced by motion (Sec. 14). Hence, the writ is
enforceable within the five-year period from entry of judgment as
provided for in Sec. 6 because within that period, the writ may be
enforced by motion. This is an amendment to the old rule (Sec. 11
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R 39) which provided that the lifetime of the writ was 60 days from
the receipt of the writ by the officer required to enforce it.
Q: Suppose the defendant becomes rich after 5 years, can I still file
a motion to execute?
A: No more, because execution by motion must be filed within 5
years only from the date of its entry. If the judgment was not
executed within the 5-year period, the judgment has become
dormant.
A writ of execution issued by motion of the prevailing party after
five (5) years from the date of entry of the judgment is null and
void. There is then a need for the prevailing party to file an
independent action for the revival of the judgment before the
action is barred by the statute of limitations (Tag Fibers, Inc. vs.
NLRC 344 SCRA 29; Terry vs. People 314 SCRA 669).
It was held that if the writ of execution was issued and the levy
made within five years from the entry of the judgment, the auction
sale may be made even after the five-year period. The sale of the
property and the application of the proceeds are merely the means
to carry out the writ of execution and a levy
already validly made. Accordingly, the levy is the essential act by
which the property is set apart for the satisfaction of the judgment
(Gov’t. vs Echaus 71 Phil. 318; Quiambao vs. Manila Motor Co., 3
SCRA 444). The sale must however, be made within ten years
during which the judgment can be enforced (Ansaldo vs. Fidelity &
Surety Company, 84 Phil. 547; Jalandoni vs. PNB 108 SCRA 102).
When the five-year period to execute by motion may be
interrupted by:
1. delays attributable to the judgment debtor
In many instances, the delays in the execution of the judgment
were through causes clearly attributable to the judgment debtor as
when he employs legal maneuvers to block the enforcement of the
judgment. Delays attributable to the defendant have the effect of
suspending the running of the prescriptive period for the
enforcement of the judgment (Potenciano vs. Mariano 93 SCRA
463; Camacho vs. CA 287 SCRA 611; Republic vs. CA 260 SCRA
344).
There are instances where the Court allowed execution by motion
even after the lapse of five years upon meritorious grounds.
These exceptions have one common denominator, and that is, the
delay is caused or occasioned by actions of the judgment debtor
and/or is incurred for his benefit or advantage. It has been held
that in computing the time limit for enforcing a final judgment,
the general rule is that the time when the execution is stayed,
either by agreement of the parties for a definite time, by
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injunction, or by the taking of an appeal or writ of error, shall not
be included. Thus, the time during which execution is stayed
should be excluded, and the said time will be extended by any
delay occasioned by the debtor as when the writ of execution
cannot be enforced within the five-year period because the debtor
filed petitions in the CA and in the SC challenging the trial court’s
judgment as well as the writ of execution. Such petitions
suspended or interrupted the further enforcement of the writ (Yau
vs. Silverio GR 158848; Macapagal vs. Gako GR 171994, February 4,
2008).
2. The period may also be interrupted by the agreement of the
parties to suspend the enforcement of the judgment (Torralba vs.
de los Angeles 96 SCRA 69; Macias vs. Lim 431 SCRA 20).
Q: What is a dormant judgment?
A: A DORMANT judgment is one that was not executed within 5
years.
Revival of Judgment
Q: So, how can that (dormant) judgment be awakened?
A: The procedure is to file another civil action. A civil action for
revival of judgment. That is what you call EXECUTION BY
INDEPENDENT ACTION which must be filed before it is barred by
the statute of limitations. The second sentence states, “after the
lapse of such time (which is 5 years) and before it is barred by the
statute of limitations, a judgment may be enforced by action.”
Q: When will it be barred by the statute of limitations ?
A: According to Article 1144 of the New Civil Code, the judgment
may be enforced only within ten (10) years.
The ten-year period commences to run from the finality of the
judgment which is the period within which the judgment can be
enforced (Art. 1152 in relation to Art. 1144[3], Civil Code). Because
under the Rules, the date of the finality of the judgment or final
order shall be deemed to be the date of entry (Sec. 2 R 36) the
period shall run also from the date of entry of the judgment.
An action for revival of judgment presupposes that the same can
no longer be enforced by mere motion. This means that from the
date of the finality of the judgment no motion was filed for the
execution of said judgment, thus, the need for its enforcement by
action.
The action for revival of judgment is no more than a procedural
means of securing the execution of a previous judgment which has
become dormant after the passage of five years without it being
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executed upon motion of the prevailing party (Saligumba vs.
Palanog GR 143365 December 4, 2008).
The action to revive a judgment must be filed within ten years from
the date the judgment becomes final because an action to enforce
a judgment prescribes in ten years from the finality of the
judgment (Art. 1144[3] in relation to Art. 1152, Civil Code of the
Philippines). Since the date of the finality of the judgment or final
order shall be deemed to be the date of the entry (Sec. 2 R 36), the
prescriptive period shall run from the date of entry of the
judgment.
When a judgment is revived under Section 6, such revived
judgment may also be enforced by motion within 5 years from the
date of its entry and thereafter by action also before it is barred by
the statute of limitations (Sec. 6).
Revived judgment a new judgment
A revived judgment is deemed a new judgment separate and
distinct from the original judgment. It is not a continuation of the
original judgment. The action to revive the judgment is a new
action and results in a new judgment constituting a new cause of
action with a new period of limitation. Hence, the ten (10) year
period to revive the revived judgment shall commence to run from
the date of the finality of the revived judgment and not from the
date of finality of the old, original judgment (PNB vs. Bondoc 14
SCRA 770).
While this ruling was abandoned in PNB vs. Deloso 23 SCRA 266
and Luzon Surety Co. Inc. vs. IAC GR 72645 June 30, 1987, which
held that the ten-year period should run from the finality of the
original judgment and not from the finality of the revived
judgment, the ruling in Bondoc was resurrected in the present
provision of Section 6 which declares in its last sentence that “The
revived judgment may also be enforced by motion within five (5)
years from the date of its entry and thereafter by action before it is
barred by the statute of limitations.”
The SC had long ago ruled that after the lapse of five (5) years, the
judgment “is reduced to a mere right of action in favor of the
person whom it favors which must be enforced, as are all ordinary
actions, by the institution of a complaint in the regular form”
(Compana General de Tobacos vs. Martinez and Nolan 29 Phil. 515;
Aldeguer vs. Gemelo 68 Phil. 421).
If the prevailing party fails to have the decision enforced by a
motion after the lapse of five years from the date of entry of the
judgment, the said judgment is reduced to a right of action which
must be enforced by the institution of the complaint in a regular
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court within ten years from the time the judgment became final
(Bausa vs. Heirs of Juan Dino GR 167281 August 28, 2008).
Action for Revival not to reopen any issue affecting the merits of
the judgment
An action for revival of judgment is not intended to reopen any
issue affecting the merits of the judgment debtor’s case nor the
propriety or the correctness of the first judgment. It is a new and
independent action wherein the cause of action is the decision
itself and not the merits of the action upon which the judgment
sought to be enforced is rendered (Juco vs. Heirs of Tomas Siy
Chung Fu GR 150233 February 16, 2005; Saligumba vs. Palanog,
supra). It is an “original action, not a mere incident of the primitive
suit or a mere auxiliary or supplemental remedy” (Aldeguer vs.
Gemelo 68 Phil. 421).
The purpose of the new action is not to reexamine and retry issues
already decided and the cause of action of this new action is the
judgment to be revived and no identity of causes of action can be
said to exist between the first and the second actions (Caina vs. CA
GR 114393 Dec. 14 1994). The consideration of any issue affecting
matters that could have been raised in the previous case must be
deemed as definitely foreclosed (Phil. Reconstruction Corp. Inc. Vs.
Aparente 45 SCRA 217). It is not meant to retry the case all over
again (Enriquez vs. CA 372 SCRA 372).
For example, more than 5 years ago I sued you to collect on a
promissory note and you alleged payment, and you lost and the
court said that you are liable to me. On the seventh year when I
revived that judgment, my rights are no longer based or derived on
the promissory note but on such judgment. But you can still invoke
other defenses such as lack of jurisdiction, fraud. But you cannot
question the correctness of the original judgment because that is
already res adjudicata. You are entitled to put up any defense that
you have against me provided that you cannot question the
correctness of the original judgment. That is the rule.
Riano’s comment:
If the action to revive a judgment (or an action upon a judgment) is
according to Aldeguer vs. Gemelo a new cause of action and not a
continuation of the old, it should not, in this sense, be dependent
upon the previous action for its jurisdictional requirements and
does not necessarily have to be filed in the same court which
rendered the judgment.
It is submitted that the new action, i.e.., to revive the judgment
would necessarily raise the fundamental issues of whether or not
the plaintiff has a right to have the judgment revived and to have a
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new right of enforcement from its revival, issues that by nature are
incapable of pecuniary estimation. Inevitably, a litigant may find
himself in a situation where he files the action in the RTC to revive
a judgment rendered by a MTC.
It is submitted that it is in this light that the 1957 case of
Torrefranca et al., vs. Albiso 102 Phil. 732 should be re-examined.
The facts had their origins in an action to revive a judgment filed in
the same court which, more than five years ago, rendered a
judgment in an action for forcible entry against the defendant. The
defendant opposed the action but the justice of the court declared
the judgment revived. The subsequent appeal to the CFI was
dismissed and plaintiff went to the SC on a question of law –
whether or not a justice of the peace has the authority to revive its
own judgment.
The SC ruled that the Judiciary Act of 1948 gave justice of peace
courts jurisdiction over actions of forcible entry and unlawful
detainer “and also empowers them … to issue all processes
necessary to enforce their judgments and orders. Needless to say,
the revival of a judgment is a necessary step in its enforcement…”
The rationale of Torrefranca in sustaining the power of the court to
revive its own judgment is clearly predicated on the jurisdiction of
the trial court over the case of forcible entry. The ruling obviously
assumes that the revived judgment is a continuation of the old
judgment and viewed the revival of the judgment as merely
incidental to or ancillary to the execution of the original judgment.
This rationale does not fall squarely with the more recent
pronouncements of the Court that an action to revive a judgment is
a new cause of action and not a mere continuation of the original
action.
Venue of revival of judgment action-
In Infante vs. Aran Builders Inc. GR 156596, August 24, 2007, the
Court explained thus:
“… the proper venue depends on the determination of whether the
present action for revival of judgment is a real action or a personal
action … if the action for revival of judgment affects title to or
possession of real property, or interest therein, then it is a real
action that must be filed with the court of the place where the real
property is located. If such action does not fall under the category
of real actions, it is then a personal action that may be filed with
the court of the place where the plaintiff or defendant resides…”
Q: Discuss briefly the nature of the action for enforcement of a
dormant judgment.
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A: The action for enforcement of a dormant judgment is an
ordinary civil action the object of which is two-fold, namely, (a) to
revive the dormant judgment, and (b) to execute the judgment
reviving it, if it grants the plaintiff any relief. Hence, the rights of
the judgment-creditor depend upon the second judgment. Being an
ordinary civil action, it is subject to all defenses, objections and
counterclaims which the judgment-debtor may have except that no
inquiry can be made as to the merits of the first judgment.
Therefore, defenses that do not go to the merits of the first
judgment, such as lack of jurisdiction, collusion, fraud, or
prescription, may be set up by the judgment-debtor. (Cia. Gral. De
Tabacos vs. Martinez, 17 Phil. 160; Salvante vs. Ubi Cruz, 88 Phil.
236) [Taken from Remedial Law Reviewer by Nuevas]
ILLUSTRATION:
Example: First judgment became final in 1990. You can enforce
that until 2000 by motion (1990-1995) or by independent action
(1995 – 2000). Suppose in 2000, you were able to secure a second
judgment reviving the first judgment, under the new rules, there is
another ten years. The first judgment by motion. The next 5 years
is by independent action. So, to illustrate:
1990 1995
5 years 5 years
by motion by independent action
10 years 10 years
Article 1144, Civil Code last sentence of Section 6
ARCENAS vs. COURT OF APPEALS
299 SCRA 733 (December 4, 1998)
HELD: “The purpose of the action for revival of a judgment is not to
modify the original judgment subject of the action but is merely to
give a creditor a new right of enforcement from the date of
revival.”
“The rule seeks to protect judgment creditors from wily and
unscrupulous debtors who, in order to evade attachment or
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execution, cunningly conceal their assets and wait until the statute
of limitation sets in.”
When 5 and 10 year periods do not apply
The periods do not apply to (a) special proceedings, such as land
registration and cadastral cases, wherein the right to ask for a writ
of possession does not prescribe (Rodil vs. Benedicto 95 SCRA 137;
(b) judgments for support which do not become dormant and
which can always be executed by motion despite lapse of the five-
year period because the obligation is a continuing one and the
court never loses jurisdiction to enforce the same (Canonizado vs.
Benitez 127 SCRA 610).
2000 2005 2010
5 years 5 years
by motion by independent action
Sec. 7. Execution in case of death of party. - In case of the death of
a party, execution may issue or be enforced in the following
manner:
(a) In case of the death of the judgment obligee, upon the
application of his executor or administrator, or successor in
interest;
(b) In case of the death of the judgment obligor, against his
executor or administrator or successor in interest, if the judgment
be for the recovery of real or personal property, or the
enforcement of a lien thereon;
(c) In case of the death of the judgment obligor, after
execution is actually levied upon any of his property, the same
may be sold for the satisfaction of the judgment obligation, and
the officer making the sale shall account to the corresponding
executor or administrator for any surplus in his hands. (7a)
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This is related to Rule 3, Section 20.
Q: What is the effect of a death of a party on the execution of a
judgment?
A: The following:
1.) If it is the obligee (the creditor) will die after he wins the
case, his executor or administrator, his legal
representative or his heirs and successors in interest can
enforce the judgment. They will be the one to collect.
(paragraph [a])
2.) If it is the defendant (obligor) who dies and there is final
judgment which is recovery of real or personal property,
the judgment is executed against the administrator or
executor because this is an action that survives.
(paragraph [b]);
3.) Under par. (c), it is the death of the obligor in a money
claim. This is related to Rule 3, Section 20. However, the
timing of the death is different. Let us connect this with
Rule 3, Sec. 20:
Sec. 20. Action on contractual money claims. - When the action is
for recovery of money arising from contract, express or implied,
and the defendant dies before entry of final judgment in the court
in which the action was pending at the time of such death, it shall
not be dismissed but shall instead be allowed to continue until
entry of final judgment. A favorable judgment obtained by the
plaintiff therein shall be enforced in the manner especially
provided in these Rules for prosecuting claims against the estate
of a deceased person. (21a)
So, for EXAMPLE: A filed a case against B to collect an unpaid loan.
What is the effect to the case if B dies? It will depend on what stage
of the case he dies. If he died before final judgment could be
rendered by the court (before entry of final judgment), there will
be a substitution of party and the case will continue until entry of
final judgment.
Suppose, there is already entry of final judgment and he dies, it will
depend whether there was already a levy on execution. Meaning,
there was already entry of final judgment but before the property
is levied. This should not apply in Rule 39 because Section 7 [c]
states that “after execution is levied.”
But the question presupposes that there is no levy. The procedure
there is found in the Special Proceedings. The judgment shall be
enforced in the manner provided for by the Rules on claims against
the estate of the deceased under Rule 86. And that is also
mentioned in Rule 3, Section 20. It shall be enforced in the manner
provided for against the estate.
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Q: Suppose the defendant dies when there is already a levy. What
will happen?
A: The auction sale will proceed as scheduled in connection with
Section 7 *c+ because the law says “the same may be sold for the
satisfaction of the judgment obligation.” Meaning, the auction sale
or the execution sale shall proceed as scheduled. No more
substitution here.
So that question, “What is the effect of the death of a party on a
pending civil case” is a question with so many angles –
1. the nature of the action - is it one which is personal in
nature or not?; if it is not, is it one which survives or one
which does not?;
2. if it does not survive, who died?; the plaintiff or the
defendant?;
3. if it is the defendant, did he die before entry of final
judgment?; did he die after entry of final judgment but
before there could be levy or execution?; or did he die
after levy or execution? – This last question is answered
by Section 7 [c].
Sec. 8. Issuance, form and contents of a writ of execution. - The
writ of execution shall:
(1) issue in the name of the Republic of the Philippines
from the court which granted the motion;
(2) state the name of the court, the case number and title,
the dispositive part of the subject judgment or order; and (3)
require the sheriff or other proper officer to whom it is directed
to enforce the writ according to its terms, in the manner
hereinafter provided:
(a) If the execution be against the property of the
judgment obligor, to satisfy the judgment, with interest, out of
the real or personal property of such judgment obligor;
(b) If it be against real or personal property in the hands of
personal representatives, heirs, devisees, legatees, tenants, or
trustees of the judgment obligor, to satisfy the judgment, with
interest, out of such property;
(c) If it be for the sale of real or personal property, to sell
such property, describing it, and apply the proceeds in conformity
with the judgment, the material parts of which shall be recited in
the writ of execution.
(d) If it be for the delivery of the possession of real or
personal property, to deliver the possession of the same,
describing it, to the party entitled thereto, and to satisfy any
costs, damages, rents, or profits covered by the judgment out of
the personal property of the person against whom it was
rendered, and if sufficient personal property cannot be found,
then out of the real property; and
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(e) In all cases, the writ of execution shall specifically state
the amount of the interest, costs, damages, rents, or profits due
as of the date of the issuance of the writ, aside from the principal
obligation under the judgment. For this purpose, the motion for
execution shall specify the amounts of the foregoing reliefs
sought by the movant. (8a)
WRIT OF EXECUTION is actually the document which is issued by
the court addressed to the sheriff. The writ is actually the
instruction to the sheriff on what he should do. It would depend on
what kind of decision – is it an action for sum of money or is it for
recovery of real property?
Now, with respect to Section 8, the changes can be found in
paragraph [e] which mandates now that the writ of execution must
state the exact amount to be collected. That is why according to
the last sentence of paragraph [e], “for this purpose, the motion for
execution shall specify the amounts of the foregoing reliefs sought
by the movant.”
Normally, when lawyers file a motion to execute they will just
quote the principal, but they do not state the costs or interests.
Now, under the new rule, when you file the motion for execution,
you must also state how much is the costs or interests.
EXECUTION OF MONEY JUDGMENT
How do you execute judgment for money? Contractual debts or
damages. Example, the defendant is ordered to pay defendant P1
million with interest, how does the sheriff enforce that? Section 9
provides a detailed explanation on how judgment for money is
enforced. Let us go over the first paragraph:
Sec. 9. Execution of judgments for money, how enforced. -
(a) Immediate payment on demand. - The officer shall
enforce an execution of a judgment for money by demanding
from the judgment obligor the immediate payment of the full
amount stated in the writ of execution and all lawful fees. The
judgment obligor shall pay in cash, certified bank check payable
to the judgment obligee, or any other form of payment
acceptable to the latter, the amount of the judgment debt under
proper receipt directly to the judgment obligee or his authorized
representative if present at the time of payment. The lawful fees
shall be handed under proper receipt to the executing sheriff who
shall turn over the said amount within the same day to the clerk
of court of the court that issued the writ.
STEPS: (under paragraph [a])
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1.) The sheriff must demand payment from the obligor;
2.) The obligor can pay in cash, certified bank check payable
to the judgment obligee (creditor) or any other form of
payment acceptable to the latter. The payment shall go
to the obligee;
3.) The lawful fees shall be paid to the executing sheriff who
shall turn over the said amount within the same day to
the clerk of court of the court that issued the writ.
This assumes that the obligee is present with sheriff. Suppose the
creditor is not around? Let us go to the second paragraph:
Section 9 [a], 2nd par. – If the judgment obligee or his authorized
representative is not present to receive payment, the judgment
obligor shall deliver the aforesaid payment to the executing
sheriff. The latter shall turn over all the amounts coming into his
possession within the same day to the clerk of court of the court
that issued the writ, or if the same is not practicable, deposit said
amounts to a fiduciary account in the nearest government
depository bank of the Regional Trial Court of the locality.
If the plaintiff is not there, the payment is made to the sheriff and
he is supposed to endorse it to the clerk of court. The clerk of
court will look for the obligee to remit the money.
In the second sentence, this usually happens if the execution is to
be done outside of the locality. For example, the decision in Davao
will be enforced in Cotabato. So, the sheriff in Cotabato will be the
one to enforce and he will give the payment to the clerk of court
there who in turn will transmit the money to the clerk of court in
Davao. This is because the decision to be executed is one in Davao.
Let us go to the third paragraph:
The clerk of said court shall thereafter arrange for the remittance
of the deposit to the account of the court that issued the writ
whose clerk of court shall then deliver said payment to the
judgment obligee in satisfaction of the judgment. The excess, if
any, shall be delivered to the judgment obligor while the lawful
fees shall be retained by the clerk of court for disposition as
provided by law. In no case shall the executing sheriff demand
that any payment by check be made payable to him.
This assumes that the property of the defendant which was levied
in Cotabato but judgment is one which originated in Davao – clerk
to clerk.
The last sentence says “In no case shall the executing sheriff
demand that any payment by check be made payable to him.” It
shall be payable to the obligee. I think what the SC would like to
avoid here is that which happened in the case of PAL – a labor case
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where PAL paid check payable to the sheriff. The sheriff ran away
with the check. PAL was made to pay all over again.
(b) Satisfaction by levy. - If the judgment obligor cannot pay
all or part of the obligation in cash, certified bank check or other
mode of payment acceptable to the judgment obligee, the officer
shall levy upon the properties of the judgment obligor of every
kind and nature whatsoever which may be disposed of for value
and not otherwise exempt from execution giving the latter the
option to immediately choose which property or part thereof may
be levied upon, sufficient to satisfy the judgment. If the judgment
obligor does not exercise the option, the officer shall first levy on
the personal properties, if any, and then on the real properties if
the personal properties are insufficient to answer for the
judgment.
So, under paragraph [a], the first step is when the judgment debtor
has enough money, bayaran niya in cash or check.
Q: Suppose walang pera, or the cash is not sufficient. What will the
sheriff do?
A: He shall levy upon the properties of the judgment obligor not
otherwise exempt from execution. In the vernacular term,
sasabihing ‘na-sheriff’ ka.
Q: Define levy.
A: Levy is the act whereby a sheriff sets apart or appropriates, for
the purpose of satisfying the command of the writ, a part or the
whole of the judgment-debtor’s property. (Valenzuela vs. De
Aguilar, L-18083-84, May 31, 1963) Normally, this is done on
personal property. Kung lupa naman, they will annotate on the
title. Parang mortgage ba.
Q: What is the importance of levy with respect to execution of a
money judgment?
A: Levy is a pre-requisite to the auction sale. In order that an
execution sale may be valid, there must be a previous valid levy. A
sale not preceded by a valid levy is void and the purchaser acquires
no title. (Valenzuela vs. De Aguilar, L-18083-84, May 31, 1963)
Q: What kind of property can be levied?
A: Any – real, personal, tangible, intangible – except those
properties exempt from execution.
Q: Does the debtor have the right to tell the sheriff what property
he should levy?
A: YES. The law gives the debtor or defendant the option to
immediately choose which property or part thereof may be levied
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upon sufficient to satisfy the judgment. Example: I am the debtor
and I have many properties. And the sheriff would like to levy on
my house and lot, or ‘yung Toyota Altis ko. Under the law, I have
the right to choose among them.
The phrase “giving the latter the option to immediately choose
which property or part thereof may be levied upon, sufficient to
satisfy the judgment.” This did not appear under the old law. This is
taken from the case of PHILIPPINE MILLS vs. DAYRIT (192 SCRA
177), where the SC said the debtor is given the option of which
property shall be levied.
And the sequence of levying is to levy the personal properties first.
Then real properties if personal properties are not sufficient.
Under the second paragraph of [b], when the sheriff levies on the
property of the judgment debtor and the judgment debtor has
more than sufficient property to cover the judgment debt, the
sheriff cannot levy all the properties. Or else, he will be made
liable. For example, the debt is only P 30,000, tapos ang i-levy mo
kotse (Toyota Altis) at bahay, which worth millions? My golly!
That’s too much! You sell only up to the point that the judgment
will be satisfied.
Q: But if it is real property or intangible personal property like
shares of stock, debts, credits (collectibles), can you levy on these?
A: YES. And under the last paragraph of [b] They may be levied
upon in like manner and with like effect as under a writ of
attachment under Rule 57 on attachment.
GARNISHMENT – HOW TO LEVY
Paragraph [c] of Section 9 is on how to levy intangibles. When you
want to levy or you want to execute on intangible property, the
legal term there is garnishment.
(c) Garnishment of debts and credits. - The officer may levy
on debts due the judgment obligor and other credits, including
bank deposits, financial interests, royalties, commissions and
other personal property not capable of manual delivery in the
possession or control of third parties. Levy shall be made by
serving notice upon the person owing such debts or having in his
possession or control such credits to which the judgment obligor
is entitled. The garnishment shall cover only such amount as will
satisfy the judgment and all lawful fees.
The garnishee shall make a written report to the court within five
(5) days from service of the notice of garnishment stating whether
or not the judgment obligor has sufficient funds or credits to
satisfy the amount of the judgment. If not, the report shall state
how much funds or credits the garnishee holds for the judgment
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obligor. The garnished amount in cash, or certified bank check
issued in the name of the judgment obligee, shall be delivered
directly to the judgment obligee within ten (10) working days
from service of notice on said garnishee requiring such delivery,
except the lawful fees which shall be paid directly to the court.
In the event there are two or more garnishees holding deposits or
credits sufficient to satisfy the judgment, the judgment obligor, if
available, shall have the right to indicate the garnishee or
garnishees who shall be required to deliver the amount due;
otherwise, the choice shall be made by the judgment obligee.
The executing sheriff shall observe the same procedure under
paragraph (a) with respect to delivery of payment to the
judgment obligee. (8a, 15a)
Q: So, what are these properties which may be the subject of
garnishment?
A: Credits which include bank deposits, financial interests, royalties,
commissions and other personal property not capable of manual
delivery or intangibles. You send a notice upon the person owing
such debts or having in his possession or control such credits. And
it shall cover only such amount as will satisfy the judgment.
Example of garnishment: bank account. I will file a case against you,
and you lost. I learned that you have a deposit with Sanikoh Bank. I
can go after that deposit because that is credit. In obligations and
contracts, the relationship of the depositor and the bank is that of a
creditor and debtor. It is not a contract of deposit because
actually, the bank is borrowing money from you. That is why it
pays you interest.
So, under garnishment, the bank is being commanded not to pay
you but instead pay the sheriff. That is the concept of garnishment.
Garnishee refers to the debtor, like the bank. When the bank
deposit is garnished, the second paragraph tells us what the bank
will do. And if there are 2 or more banks where a deposit is made
you garnish, and under the next paragraph, the debtor obligor will
determine. If he does not exercise his option, then the judgment
creditor will determine.
EXECUTION OF JUDGMENT OTHER THAN MONEY
Section 10 is the procedure for executing a judgment other than to
collect money. Sometimes, money is only incidental. There are
court decisions which could be something else like specific
performance, or accion publiciana. You are more interested in
recovering your property. Another is Unlawful Detainer where
unpaid rentals may be paid but the plaintiff is more interested in
the ejectment – the unpaid rentals can be collected in the same
manner as Section 9.
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Sec. 10. Execution of judgments of specific act. -
(a) Conveyance, delivery of deeds, or other specific
acts; vesting title. - If a judgment directs a party to
execute a conveyance of land or personal
property, or to deliver deeds or other documents,
or to perform any other specific act in connection
therewith, and the party fails to comply within the
time specified, the court may direct the act to be
done at the cost of the disobedient party by some
other person appointed by the court and the act
when so done shall have like effect as if done by
the party. If real or personal property is situated
within the Philippines, the court in lieu of directing
a conveyance thereof may by an order divest the
title of any party and vest it in others, which shall
have the force and effect of a conveyance
executed in due form of law. (10a)
xxxxx
Execution of Judgment
ATTYS. RICARDO D. GONZALES & ERNESTO D. ROSALES,
vs.
ARTHUR G. CALO, Sheriff IV, Regional Trial C, Branch 5, Butuan City A.M. N
Sections 10 (c) and (d), Rule 39 of the Rules of Court provide for the
manner by which a writ for the delivery or restitution of real
property should be enforced by a sheriff. Thus:
SEC. 10. Execution of judgments for specific act. –
xxxx
(c) Delivery or restitution of real property. – The officer shall
demand of the person against whom the judgment for the delivery
or restitution of real property is rendered and all persons claiming
rights under him to peaceably vacate the property within three (3)
working days, and restore possession thereof to the judgment
obligee; otherwise, the officer shall oust all such persons therefrom
with the assistance, if necessary, of appropriate peace officers, and
employing such means as may be reasonably necessary to retake
possession, and place the judgment obligee in possession of such
property. Any costs, damages, rents or profits awarded by the
judgment shall be satisfied in the same manner as a judgment for
money.
(d) Removal of improvements on property subject of execution. –
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When the property subject of the execution contains
improvements constructed or planted by the judgment obligor or
his agent, the officer shall not destroy, demolish or remove said
improvements except upon special order of the court, issued upon
motion of the judgment obligee after due hearing and after the
former has failed to remove the same within a reasonable time
fixed by the court.
Section 14 of Rule 39, on the other hand, requires sheriffs,
after implementation of the writ, to make a return thereon:
SEC. 14. Return of writ of execution. - The writ of execution
shall be returnable to the court issuing it immediately after the
judgment has been satisfied in part or in full. If the judgment
cannot be satisfied in full within thirty (30) days after his receipt of
the writ, the officer shall report to the court and state the reason
therefor. Such writ shall continue in effect during the period within
which the judgment may be enforced by motion. The officer shall
make a report to the court every thirty (30) days on the
proceedings taken thereon until the judgment is satisfied in full, or
its effectivity expires. The returns or periodic reports shall set forth
the whole of the proceedings taken, and shall be filed with the
court and copies thereof promptly furnished the parties.
The afore-quoted sections of Rule 39 enumerate the
following duties of a sheriff: first, to give notice of the writ and
demand that the judgment obligor and all persons claiming under
him vacate the property within three (3) days; second, to enforce
the writ by removing the judgment obligor and all persons claiming
under the latter; third, to remove the latter’s personal belongings
in the property as well as destroy, demolish or remove the
improvements constructed thereon upon special court
order; and fourth, to execute and make a return on the writ within
30 days from receipt of the writ and every thirty (30) days
thereafter until it is satisfied in full or until its effectivity
expires.[18]
These provisions leave no room for any exercise of discretion
on the part of the sheriff on how to perform his or her duties in
implementing the writ. A sheriff’s compliance with the Rules is not
merely directory but mandatory.[19] Thus, herein respondent
evidently overstepped his authority when he gave the occupants of
the property a grace period of 3 months within which to vacate the
premises. It is well settled that a sheriff’s functions are purely
ministerial, not discretionary.[20] Once a writ is placed in his hand,
it becomes his duty to proceed with reasonable speed to enforce
the writ to the letter, ensuring at all times that the implementation
of the judgment is not unjustifiably deferred, unless the execution
of which is restrained by the court.
In addition to respondent’s unauthorized act of giving the
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occupants of the property time to vacate the same, respondent
also failed to file his sheriff’s return. The Rules clearly provide that
it is mandatory for sheriffs to execute and make a return on the
writ of execution within 30 days from receipt of the writ and every
thirty (30) days thereafter until it is satisfied in full or its effectivity
expires. Even if the writs are unsatisfied or only partially satisfied,
sheriffs must still file the reports so that the court, as well as the
litigants, may be informed of the proceedings undertaken to
implement the writ. Periodic reporting also provides the court
insights on the efficiency of court processes after promulgation of
judgment. Over all, the purpose of periodic reporting is to ensure
the speedy execution of decisions.
In the case of Cebu International Finance Corporation v.
Cabigon, the Court applied the foregoing Section 14 of Rule 39 to
discipline a sheriff who failed to file a return after service of a writ
of possession. Likewise, in Ong v. Pascasio,the Court, adopting the
findings of the evaluation report of the OCA, held administratively
liable under the same provision, a sheriff who, failing to implement
a writ of possession, did not render the required report.
EXAMPLES of the first sentence:
1.) An action for reconveyance of property where you are
asking the defendant, a title owner, to convey to you his
property. The property will be held in trust or that the
title be in your name instead of his;
2.) Pacto de retro. I sold to you my land and I am
repurchasing it, but you refuse to execute a deed of sale
returning the property to me;
3.) Public Land Law. I am the owner of a property under
homestead or free patent and sold it after the
prohibition period. Under the public land law, I have the
right to repurchase it within 5 years. If you refuse to
allow me to repurchase I will file a case against you. Of
course, if I win, you will be directed to return to me the
property and execute a deed of sale.
4.) An action for specific performance to compel you to
return to me said property. And the court will order:
“Alright, execute a deed of sale.” You refuse. The court
may order the clerk of court to sign the deed of sale or
the Register of Deeds will be ordered to register the
same as if done by the obligor. The obligor’s signature is
not needed.
(b) Sale of real or personal property. - If the judgment be for
the sale of real or personal property, to sell such property,
describing it, and apply the proceeds in conformity with the
judgment. (8 [c] a)
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The best example for [b] is an action for termination of co-
ownership where there are 50 co-owners of one (1) hectare – to
subdivide the property will be impractical because of the number
of co-owners and area of the land which is relatively small so the
property will be ordered sold and the proceeds will be distributed
among the co-owners.
(c) Delivery or restitution of real property. - The officer shall
demand of the person against whom the judgment for the
delivery or restitution of real property is rendered and all persons
claiming rights under him to peaceably vacate the property within
three (3) working days, and restore possession thereof to the
judgment obligee; otherwise, the officer shall oust all such
persons therefrom with the assistance, if necessary, or
appropriate peace officers, and employing such means as may be
reasonably necessary to retake possession, and place the
judgment obligee in possession of such property. Any costs,
damages, rents or profits awarded by the judgment shall be
satisfied in the same manner as a judgment for money. (13a)
Now, with respect to Section 10, particularly paragraph [c] –
delivery or restitution of real property. – this is applicable to
actions for forcible entry, unlawful detainer, accion publiciana.
Q: So, what is the procedure?
A: The sheriff will give the defendant the chance to vacate the
property, “I am giving you the chance to vacate within three (3)
working days and restore possession thereof.” And then if there is
refusal still to vacate, I will use force to oust you with the assistance
of the appropriate peace officers and place the judgment obligee in
possession of such property.
And if there are damages or unpaid rentals, I will also levy the
property under Section 9. Because sometimes, aside from ousting
the defendant, there can be money judgment like unpaid rentals.
So, the property of the defendant may be levied. That is the
procedure.
In the 1995 case of
SAN MANUEL vs. TUPAS
249 SCRA 466
HELD: “The immediate enforcement of a writ of ejectment
execution is carried out by giving the defendant a notice of such
writ and making a demand that defendant comply therewith within
a reasonable period, normally from three (3) to five (5) days, and it
is only after such period that the sheriff enforces the writ by the
bodily removal of the defendant and his personal belongings.”
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(d) Removal of improvements on property subject of
execution. - When the property subject of the execution contains
improvements constructed or planted by the judgment obligor or
his agent, the officer shall not destroy, demolish or remove said
improvements except upon special order of the court, issued
upon motion of the judgment obligee after due hearing and after
the former has failed to remove the same within a reasonable
time fixed by the court. (14a)
Q: When you oust the defendant in regard of a possession case, is a
writ of execution a sufficient basis for the removal of
improvements of the property?
A: NO. Under paragraph [d], the plaintiff or judgment obligee still
have to get a special order from the court by filing a petition to
authorize the destruction or removal of the improvements of the
property after the defendant is given a reasonable time to remove
his shanty or house voluntarily.
In other words, there must be a special order. The writ of
execution only authorizes you to oust the defendant physically,
but not to destroy any property. Just like in squatters, you need a
special order for demolition.
(e) Delivery of personal property. - In judgments for the
delivery of personal property, the officer shall take possession of
the same and forthwith deliver it to the party entitled thereto and
satisfy any judgment for money as therein provided. (8a)
Paragraph [e] is related to REPLEVIN – action to recover personal
property – where the plaintiff is trying to repossess a personal
property from the defendant. For example, you bought an
appliance but you failed to pay, the appliance center will repossess
it. Or, the finance company or the car dealer will resort to replevin
to recover the unit by filing an action for replevin against the buyer.
Take note that the procedure for enforcing a money judgment is
different from enforcing a judgment for ejectment, or recovery of
possession. Enforcement of money judgment is in Section 9 – you
get the money. If there is no money, you levy on the property of
the defendant. If it is ejectment or recovery of possession of
property, you follow Section 10, paragraph [c].
Now, here is an interesting case involving these two sections
(Sections 9 & 10) –the 1995 case of
ABINUJAR vs. COURT OF APPEALS
243 SCRA 531
FACTS: The case of Abinujar started when the plaintiff filed a case
for unlawful detainer against the Abinujar spouses for the latter to
vacate their house in Manila. When the case was going on, the
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parties executed a compromise agreement which became the basis
of the judgment by the court, so a compromise judgment.
The agreement stated that the Abinujar spouses shall pay the
plaintiffs the amount specifically agreed upon: P50,000 on January
31; P10,000 on Febrauary 28; P10,000 on March 31, etc. until
September 30. It further states that failure on the part of the
Abinujar spouses to pay three (3) consecutive payments, the
plaintiffs shall be entitled to a writ of execution.
After three (3) months, the plaintiffs filed a motion for execution
on the ground that the Abinujars failed to pay the three
installments. The trial court granted the motion and the notice to
the defendant to voluntarily vacate the premises was served on the
Abinujars.
The Abinujars attacked the validity of the sheriff’s notice to vacate
by way of enforcing the compromise judgment. They maintained
that their obligation is monetary and therefore you should apply
Section 9 – you collect but do not eject us. The plaintiffs argued
that what is applicable is Section 10 on ejectment because this is an
unlawful detainer case.
ISSUE: Which section shall be applied – Section 9? or Section 10?
HELD: The contention of the Abinujars is meritorious – meaning,
you cannot eject the Abinujars.
“When the parties entered into a compromise agreement, the
original action for ejectment was set aside and the action was
changed to a monetary obligation.
“A perusal of the compromise agreement signed by the parties and
approved by the inferior court merely provided that in case the
Abinujars failed to pay three monthly installments, the plaintiffs
would be entitled to a writ of execution, without specifying what
the subject of execution would be. Said agreement did not state
that Abinujars would be evicted from the premises subject of the
suit in case of any default in complying with their obligation
thereunder. This was the result of the careless drafting thereof for
which only plaintiffs were to be blamed.
“As Abinujar’s obligation under the compromise agreement as
approved by the court was monetary in nature, plaintiffs can avail
only of the writ of execution provided in Section 9, and not that
provided in Section 10.”
ORDINARY AND SPECIAL JUDGMENT
Sec. 11. Execution of special judgments. - When a judgment
requires the performance of any act other than those mentioned
in the two preceding sections, a certified copy of the judgment
shall be attached to the writ of execution and shall be served by
the officer upon the party against whom the same is rendered, or
upon any other person required thereby, or by law, to obey the
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same, and such party or person may be punished for contempt if
he disobeys such judgment. (9a)
There are two (2) types of judgment under the law: (1) SPECIAL and
(2) ORDINARY.
ORDINARY JUDGMENT - if the judgment orders the defendant to
pay money, like a collection case (Section 9) or to deliver real or
personal property (Section 10).
SPECIAL JUDGMENT – is a judgment which requires the defendant
to perform an act other than payment of money or delivery of
property. It refers to a specific act which a party or person must
personally do because his personal qualifications and
circumstances have been taken into consideration.
EXAMPLE of a special judgment: Usurpation of government office.
You are the city treasurer and somebody else is appointed city
treasurer and you refuse to vacate. So there will be a quo warranto
proceeding. Then the judgment will order you to vacate your
position, such judgment is a special judgment because you are not
ordered to pay anything nor deliver property.
Q: What is the difference between the Ordinary and Special
judgments?
A: A special judgment may be enforced by contempt if the
defendant refuses to comply with the judgment. But if it is an
ordinary judgment and the defendant refuses to comply, it is not a
ground for contempt.
Under Section 9, if the judgment-debtor refuses to pay his debt,
you cannot cite him in contempt because under the Constitution,
no person shall be imprisoned for debt. The correct procedure
under Section 9 is you look for properties of the defendant and
then levy it. You do not send the debtor to jail.
Under Section 10 if the squatter refuses to vacate, you cannot cite
him in contempt and send him to jail. If there is refusal to vacate,
you get police for back up. That is the procedure.
But under Section 11, if defendant is ordered to vacate his office
because he is no longer the city treasurer, the plaintiff can have
him arrested and brought to jail because that is a special judgment
which can be enforced by contempt.
Q: Give a specific rule on special judgment.
A: Section 9 of Rule 65 – Special Civil Action for Certiorari,
Prohibition and Mandamus, to wit:
Rule 65, Sec 9. Service and enforcement of order or judgment.- A
certified copy of the judgment rendered in accordance with the
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last preceding section shall be served upon the court,
quasi-judicial agency, tribunal, corporation, board, officer or
person concerned in such manner as the court may direct, and
disobedience thereto shall be punished as contempt. An
execution may issue for any damages or costs awarded in
accordance with section 1 of Rule 39. (9a)
Therefore, a judgement in a certiorari, prohibition or mandamus
case, if not complied with, is punishable by contempt.
Sec. 12. Effect of levy on execution as to third persons. - The levy
on execution shall create a lien in favor of the judgment obligee
over the right, title and interest of the judgment obligor in such
property at the time of the levy, subject to liens and
encumbrances then existing. (16a)
This is related to Property Registration Decree.
EXAMPLE: I own a piece of land which I mortgaged with the bank.
The bank annotated the mortgage on my title. My land is now
subject to a lien or an encumbrance. I also owe money to A. He
sued me. He won and my land is levied.
Q: What happens to the mortgage lien of the bank? Will it be
affected by the levy of A?
A: NO. Even if the property is sold at public auction and we will
assume that it will go to A, that property is still under mortgage. A
has to respect the lien – nauna yung sa bank eh! Wherever the
property goes, it is subject to the mortgage lien of the bank
because the bank’s lien is superior.
Therefore, an execution is always subject to the liens and
encumbrances of the property then existing.
PROPERTIES EXEMPT FROM EXECUTION
We already discussed the rule that to satisfy a money judgment,
the sheriff can levy on the properties of the judgment obligor. All
properties are subject, except those exempt from execution. What
are the properties of a defendant-debtor which cannot be subject
to a levy or execution?
Sec. 13. Property exempt from execution. - Except as otherwise
expressly provided by law, the following property, and no other,
shall be exempt from execution:
(a) The judgment obligor's family home as provided by law, or the
homestead in which he resides, and land necessarily used in
connection therewith;
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You have a house where your family resides. You call it “FAMILY
HOME” – it is the house where the members of the family reside,
including the lot.
Q: For instance, you lost in a case where you are liable for P200T.
You have no other property left except that house where you live.
Can the sheriff levy the house to answer such obligations?
A: NO. The judgment obligor’s family home and the land
necessarily used in connection therewith are exempt. That is a
guarantee that no matter how many obligations you have, there is
no way for you to be thrown to the street – to be a homeless
person. Your house cannot be levied; but in the Family Code,
there’s a limit, if your house is a mansion worth millions, that is not
exempt. Please review your Family Code on this matter.
(b) Ordinary tools and implements personally used by him in
his trade, employment, or livelihood;
This is self-explanatory. If you are a carpenter, you earn your living
by being a carpenter. What are the ordinary tools that you must
have? Saw, hammer, etc. By public policy and by legal provision,
the tools and implements used by a carpenter in his trade,
employment, or livelihood cannot be levied by the sheriff.
Under the prior law, there was no word “ordinary” and
“personally”. The old law says, “tools and implements used by him”.
In the new rules, the words “ordinary” and “personally” are added.
What is the reason behind this? This provision is in accordance with
what the SC ruled in the 1990 case of
PENTAGON SECURITY vs. JIMENEZ
192 SCRA 492
FACTS: The Pentagon Security and Investigation Agency (PSIA) is a
security agency owned by somebody who is engaged in security
services. Because of a money judgment against the agency in a
labor case, the sheriff levied all the firearms of the agency. PSIA
claimed that the firearms are exempt from execution under
paragraph [b] since they are tools and implements used by the
agency in its trade, employment or livelihood because how can a
security agency operate without firearms.
ISSUE: Is the argument of PSIA correct?
HELD: NO. The firearms owned by PSIA are not covered by the
exemption.
“The term ‘tools and implements’ refers to instruments of
husbandry or manual labor needed by an artisan craftsman or
laborer to obtain his living. Here, PSIA is a business enterprise. It
does not use the firearms personally, but they are used by its
employees. Not being a natural person, petitioner cannot claim
that the firearms are necessary for its livelihood.”
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“It would appear that the exemption contemplated by the
provision involved is personal, available only to a natural person,
such as a dentist’s dental chair and electric fan. If properties used
in business are exempt from execution, there can hardly be an
instance when a judgment claim can be enforced against the
business entity.”
Meaning, if the exemption is extended to a juridical person like a
corporation, then practically all the properties needed by the
business could be considered as tools and implements. For
EXAMPLE, you will sue a carrier like Bachelor Bus and you won.
Then you will levy on the bus. Bachelor will claim exemption
because that is a tool or implement.
Or, you file a case against PAL. They lost. You levy on the airbus.
PAL alleged exemption because it is a tool or implement. My golly!
Lahat ng properties, “tools or implements!”? Di pwede yan! That is
not what the law contemplates.
Now, what is interesting in the PENTAGON case is that the SC says
that firearms can be levied, they can be sold at public auction. SC:
“However, for security reasons, and to prevent the possibility that
the firearms to be sold at the execution sale may fall into the hands
of lawless and subversive elements, the sale at public auction
should be with the prior clearance and under supervision of the
PNP.” Otherwise, the persons who might bid are kidnappers, NPA,
Abu Sayyaff, (Kuratong Baleleng, MILF, MNLF, Lost Command, Kulto
Pinish, Polgas, PAOCTF, Osama bin Laden et al, etc.) So, there must
be a prior clearance on the sale of the firearms during the auction
sale.
(c) Three horses, or three cows, or three carabaos, or other
beasts of burden, such as the judgment obligor may select
necessarily used by him in his ordinary occupation;
For example, you are a farmer. You plow your land by a carabao.
You cannot levy the carabao. OR, if you are a cochero, you have a
horse for your caretela. You cannot levy the horse. [ang horse shit,
pwede! Pero yung horse mismo, di pwede!] And under the prior
rules, only 2 horses, 2 cows or carabaos are exempt. The new rules
make it three (3).
(d) His necessary clothing and articles for ordinary personal
use, excluding jewelry;
You cannot levy on the debtor’s wardrobe. These are articles for
ordinary personal use. This article excludes jewelry. You can levy on
jewelry. All other things for basic needs are exempt, like personal
comb, toothbrush, etc.
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(e) Household furniture and utensils necessary for housekeeping,
and used for that purpose by the judgment obligor and his family,
such as the judgment obligor may select, of a value not exceeding
one hundred thousand pesos;
Household furniture like dining table, dining chair, sala set, utensils
necessary for housekeeping and used for the purpose by the
obligor and his family like plates, forks, spoons. How can you eat
without those utensils. BUT there’s a limit that the value does not
exceed P100,000. If the value exceeds, it can be levied.
There was a sheriff who asked me (Dean I). According to him, he
was enforcing a money judgment. The sheriff went to the house of
the debtor. He took the stereo, TV set, refrigerator. Defendant said,
“Hindi pwede dahil hindi pa umabot ng P100,000.” Sabi ko, you
look at the law: You cannot levy those furnitures if not exceeding
P100,000. In my (Dean’s) view, covered yan. But utensils not
necessarily for living are not covered by the exemption. They are
luxury, not necessary. These TV, sala set, refrigerator can be levied
because they are not necessary for living as contrasted to kutsara,
plato, etc. (Dean however refused to answer the sheriff whether
the properties in question can be levied. Tanungin mo ang abogado
mo!)
(f) Provisions for individual or family use sufficient for four
months;
For example, one sack of rice for daily consumption, canned goods
– provisions for consumption good for 4 months are exempt. If you
have one bodega of rice, ibang storya yan.
(g) The professional libraries and equipment of judges,
lawyers, physicians, pharmacists, dentists, engineers, surveyors,
clergymen, teachers, and other professional, not exceeding three
hundred thousand (P300,000.00) pesos in value;
Your books, books of judges and professionals and equipment –
maybe the computer, typewriter, dentist’s chair, equipment of
engineers are exempt provided the value does not exceed
P300,000.
(h) One fishing boat and accessories not exceeding the
total value of one hundred thousand (P100,000.00) pesos owned
by a fisherman and by the lawful use of which he earns his
livelihood;
Example: Fishing boat of a fisherman, the accessories – net,
provided these do not exceed P100,000.
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(i) So much of the salaries, wages, or earnings of the
judgment obligor for his personal services within the four months
preceding the levy as are necessary for the support of his family;
The salary of a person within 4 months is exempt. For example, you
have backwages of 6 months. Only 2 months salary can be levied.
Exempt ang 4 months.
Technically, wages and salaries are exempt as long as they are
necessary for support of living. If you earn a minimum wage,
everything may be exempted. But if you earn P50,000 a month and
you support only two people, the court may levy on the excess.
(j) Lettered gravestones;
Lapida sa sementeryo, hindi pwede i-levy. Why will you levy on
lettered gravestones? My golly!
(k) Monies, benefits, privileges, or annuities accruing or in
any manner growing out of any life insurance;
The proceeds of life insurance. The amount received by the
beneficiaries cannot be levied, not a single centavo.
(l) The right to receive legal support, or money or property
obtained as such support, or any pension or gratuity from the
Government;
The right to receive legal support. The right ba! For instance, ako na
lang ang mag receive ng support mo. Hindi pwede yan. Also the
money given monthly to you if you are receiving support cannot be
levied. Any pension or gratuity from the government – GSIS
pension, for example.
(m) Properties specially exempted by law.
This is very broad – any other property exempt by special law.
Q: Give an example where a property is exempt from execution
under the special law?
A: The following:
1.) Property obtained pursuant to a free patent application,
HOMESTEAD. That is not subject to any claim within 5
years. You cannot even sell that within 5 years, how
much more kung embargohin sa iyo? That is under CA
141 – Public Land Law;
2.) Under Social Legislation, SSS benefits are also exempt
from execution, just like GSIS benefits;
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3.) Under CARP law, the property acquired by a tenant
under that law cannot be levied also.
Section 13, last paragraph:
But no article or species of property mentioned in this section
shall be exempt from execution issued upon a judgment
recovered for its price or upon a judgment of foreclosure of a
mortgage thereon. (12a)
The last paragraph of Section 13 says that if for example, you
ordered books and you failed to pay, you cannot claim the
exemption because the obligation arose from the same item. For
example:
BAR PROBLEM: A lawyer went to Alemars professional books
supply. He bought books worth half a million. That was utang –
P500,000. The store decided to sue the lawyer for such amount not
paid. The bookstore got a judgment. There was a levy on the
lawyer’s property. The sheriff levied on the same books which
became the source of the case. The lawyer claimed exemption
under Section 13 up to P300,000 because it forms part of his
professional library. Is the lawyer correct??
A: the lawyer is WRONG because of the last paragraph of Section
13 that no article or species of properties mentioned in this section
shall be exempt from execution issued upon a judgment recovered
for the price or upon a judgment of foreclosure of a mortgage
thereon.
What the law says, is the properties mentioned here (in Section 13)
are exempt, EXCEPT when that debt arose out of that property. For
example, here, why are you indebted to Alemars? Because of
unpaid books. So the very books which gave rise to an obligation
are not exempt from execution.
But if another creditor will file a case against the lawyer, and that
other creditor will win, that creditor cannot levy on the books
because they are exempt. But the creditor from whom the books
were bought can levy on the same books which gave rise to an
obligation.
The same thing with FAMILY HOME. For example, you will build a
family home and then, hindi mo binayaran ang materials, labor and
there was judgment against you. The creditor and the owner can
levy on the house. He cannot claim exemption because the debt
arose out of that same family home.
Another example: You borrowed money from the bank. You
mortgaged your house. Later on, you cannot pay the loan. The
bank foreclosed the mortgage. You cannot argue that your house
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cannot be levied. Kaya nga may utang ka because of your house.
Since you mortgaged it, that is not covered by the exemption.
Q: What is the REASON behind this exemption?
A: The reason for this exemption is PUBLIC POLICY. And common
sense no? – the debtor should pay but this should not deprive him
of a means to earn his living. You can levy on his property but not
to the extent of depriving him of his provisions for support, means
of livelihood by throwing him on to the street, homeless, penniless,
despondent, dejected, mournful, melancholy, forlorn…
LIFETIME OF WRIT OF EXECUTION – FIVE (5) YEARS
Sec. 14. Return of writ of execution. - The writ of execution shall
be returnable to the court issuing it immediately after the
judgment has been satisfied in part or in full. If the judgment
cannot be satisfied in full within thirty (30) days after his receipt
of the writ, the officer shall report to the court and state the
reason therefor. Such writ shall continue in effect during the
period within which the judgment may be enforced by motion.
The officer shall make a report to the court every thirty (30) days
on the proceedings taken thereon until the judgment is satisfied
in full, or its effectivity expires. The returns or periodic reports
shall set forth the whole of the proceedings taken, and shall be
filed with the court and copies thereof promptly furnished the
parties. (11a)
Under the OLD RULE, the lifetime of a writ of execution is only 60
days. After that, expired na yung writ. The sheriff has to use the
writ to levy on the property of the defendant within 60 days. If the
defendant has no property at present, and the writ has already
expired, and assuming that there will be some properties found in
the future, the procedure under the old rules is, the plaintiff has to
file a motion for an ALIAS WRIT of execution, because once it is
issued, it is again good for another 60 days.
Under the PRESENT RULE, the 60-day period is already obsolete.
The effectivity now of a writ of execution is, for as long as the
judgment may be enforced by motion. And under Section 6, a
judgment may be enforced by motion within five (5) years. So in
effect, the writ of execution is valid for FIVE (5) years. The lifetime
now has been extended from 60 days to 5 years.
Of course, as much as possible, the writ must be enforced within 30
days and after that, the sheriff will tell the court about what
happened after 30 days.
So, the sheriff says based on the RETURN, “Wala pang property ang
defendant.” Now, he just keeps on holding the writ. And maybe
after one or two years, meron na’ng property ang defendant, he
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can now enforce the writ. But definitely, there is no need for the
defendant to go back to the court to ask for another alias writ of
execution because the writ can still be enforced – for as long as the
judgment may be enforced by motion.
Although every 30 days, the sheriff has to make a periodic report
with the court. I do not know if the sheriffs here follow this
procedure. But definitely, a writ is good for 5 years and in every 30
days, the sheriff has to make a report.
NOTICE OF SALE
Sec. 15. Notice of sale of property on execution. - Before the sale
of property on execution, notice thereof must be given as follows:
(a) In case of perishable property, by posting written notice
of the time and place of the sale in three (3) public places,
preferably in conspicuous areas of the municipal or city hall, post
office and public market in the municipality or city where the sale
is to take place, for such time as may be reasonable, considering
the character and condition of the property;
(b) In case of other personal property, by posting a similar
notice in the three (3) public places above-mentioned for not less
that five (5) days;
(c) In case of real property, by posting for twenty (20) days
in the three (3) public places above-mentioned a similar notice
particularly describing the property and stating where the
property is to be sold, and if the assessed value of the property
exceeds fifty thousand (P50,000.00) pesos, by publishing a copy of
the notice once a week for two (2) consecutive weeks in one
newspaper selected by raffle, whether in English, Filipino, or any
major regional language published, edited and circulated or, in
the absence thereof, having general circulation in the province or
city;
(d) In all cases, written notice of the sale shall be given to
the judgment obligor, at least three (3) days before the sale,
except as provided in paragraph (a) hereof where notice shall be
given at any time before the sale, in the same manner as personal
service of pleadings and other papers as provided by section 6 of
Rule 13.
The notice shall specify the place, date and exact time of the sale
which should not be earlier than nine o'clock in the morning and
not later than two o'clock in the afternoon. The place of the sale
may be agreed upon by the parties. In the absence of such
agreement, the sale of real property or personal property not
capable of manual delivery shall be held in the office of the clerk
of court of the Regional Trial Court or the Municipal Trial Court
which issued the writ or which was designated by the appellate
court. In the case of personal property capable of manual
delivery, the sale shall be held in the place where the property is
located. (18a)
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Auction sale follows levy. There must be notices because auction
sale is open to the public. Notices must be posted in 3 public places
preferably in the municipal hall, post office and public market. In
paragraph [c], if the property to be sold is REAL property, the
notices must describe the property, its location, assessed value if
exceeding P50,000. Aside from notices, the law requires
PUBLICATION in a newspaper so that many people can read it.
You try to go there in the Hall of Justice, may bulletin board diyan
sa labas. Notices are posted there. If you are interested in buying
something, para mura, tingnan mo diyan.
The law is very detailed now. The notice must specify the date of
the sale, time, place etc. And the SC ruled that these requirements
are to be strictly complied with.
For example: You do not comply with the posting in 3 conspicuous
places. Dalawa lang sa iyo, that is VOID. The SC said the
requirements of the law for the holding of the public auction
should be strictly followed. Why? Because in a public auction, you
are depriving somebody of his property – the judgment debtor. So,
all the requirements of the law intended to deprive the owner of
his ownership over his property should be followed.
TERCERIA (THIRD-PARTY CLAIM)
SECTION 16. Proceedings where property claimed by third person. –
If the property levied on is claimed by any person other than the
judgment obligor or his agent, and such person makes an affidavit
of his title thereto or right to the possession thereof, stating the
grounds of such right or title, and serves the same upon the
officer making the levy and a copy thereof upon the judgment
obligee, the officer shall not be bound to keep the property,
unless such judgment obligee, on demand of the officer, files a
bond approved by the court to indemnify the third-party claimant
in a sum not less than the value of the property levied on. In case
of disagreement as to such value, the same shall be determined
by the court issuing the writ of execution. No claim for damages
for the taking or keeping of the property may be enforced against
the bond unless the action therefor is filed within one hundred
twenty days from the date of the filing of the bond.
The officer shall not be liable for damages for the taking or
keeping of the property, to any third-party claimant if such bond
is filed. Nothing herein contained shall prevent such claimant or
any third person from vindicating his claim to the property in a
separate action, or prevent the judgment obligee from claiming
damages in the same or a separate action against a third-party
claimant who filed a frivolous or plainly spurious claim.
When the writ of execution is issued in favor of the Republic of
the Philippines, or any officer duly representing it, the filing of
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such bond shall not be required, and in case the sheriff or levying
officer is sued for damages as a result of the levy, he shall be
represented by the Solicitor General and if held liable therefore,
the actual damages adjudged by the court shall be paid by the
National Treasurer out of such funds as may be appropriated for
the purpose. (17a)
Section 16 is a third-party claim procedure in execution. In Spanish,
it is called the remedy of TERCERIA.
ILLUSTRATION: Lolo decided to go on a prolong vacation and he
entrusted to Karen (ang paborito ni Lolo) all his personal property
like appliances – TV, refrigerator, car, etc. Karen used the property
owned by Lolo while he was not around. Unknown to Lolo, Karen
has a pending civil case filed by Gina. Gina obtained a judgment
against Karen. There was levy on execution. The sheriff went to the
premises of Karen, he found all these properties and he enforced
the levy.
Lolo came home and went to get the property from Karen. Karen
said, they were all levied by the sheriff. Lolo is a person who is not
the defendant but his properties were erroneously levied because
the sheriff thought they belong to Karen who was in possession of
them.
Q: What are the remedies of Lolo who is not a defendant, or who
is a third-party-claimant?
Option 1. One remedy is to apply Section 16, Rule 39 – You file
with the sheriff, copy furnish Gina, what is known as the affidavit
of third-party claim or TERCERIA.
Terceria is an affidavit asserting that he is the owner of the
property levied. So with that the sheriff is now placed on guard
because the sheriff may be held liable if he continues to sell the
property of the defendant. So, he is not bound to the proceedings
regarding the sale unless the judgment obligee, on demand of the
sheriff, files a bond approved by the court to indemnify a third
party claimant in the sum not less than the value of the property
levied on.
Suppose sabi ni Gina: “Huwag kang maniwala diyan. Kalokohan
iyan. Drama lang yan ni Karen at Lolo. Proceed with the auction
sale!” Gina has to file a bond if he insists that the auction sale must
proceed. Gina must put up a bond approved by the court to
indemnify the third-party claimant, a sum not less than the value of
the property. If the property is worth half a million, the bond must
also be half a million. Then auction sale may proceed because
there’s already a bond to answer for the damages. The sale may go
on despite the third party claim.
THIRD-PARTY CLAIM vs. THIRD PARTY COMPLAINT
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Now, do not confuse a third-party claim under Rule 39 with a third-
party complaint under Rule 6.
Q: What is a third-party complaint under Rule 6?
A: A third-party complaint under Rule 6 is a PLEADING filed by a
defendant against the third person not a party to the action for
contribution, indemnity, subrogation, or any other relief in respect
of the plaintiff’s complaint.
Q: What is a third-party claim under Rule 39?
A: A third-party claim (terceria) under RULE 39 is an AFFIDAVIT
made by a third person who claims to be entitled to the property in
the custody of a sheriff by virtue of a writ of execution.
The one who files a third party claim is technically called third-party
CLAIMANT. The one who files a third party complaint is called third-
party PLAINTIFF. I notice that even in SC decisions, the SC commits
that lapse: “The defendant filed a third party complaint” or
sometimes “third party claimant.” But actually, the correct term is
third-party plaintiff.
Q: Now, under the law, where will you file your third-party claim?
A: You file it with the sheriff although legally, it is considered as it is
filed in the court because the sheriff is only an agent of the court.
The sheriff does not have the power to rule on the legal issues.
Only the judge can. And it is the court which decides on the validity
of a third party claim.
Q: If I am the third person and I want to vindicate my claim to that
property, is a third party claim procedure the only remedy I have
under the law? Even if there’s a third party claim, auction sale may
proceed as long as there’s a bond. But I want the auction sale not
to proceed and I want the property to be returned in my favor, do I
have any other remedy?
A: YES. Second paragraph: “Nothing herein contained shall prevent
such claimant or any third person from vindicating his claim to the
property in a SEPARATE ACTION.” So, the remedy of third-party
claim is NOT exclusive. There is nothing in Section 16 which says
that a third person is deprived of a right to file a separate action.
Option 2. Instead of filing a third party claim, I would file a case in
court – the separate case would name Gina as the defendant. The
cause of action is that the sheriff mistakenly or erroneously levied
the properties not owned by Karen because I am the real owner.
Since there was a mistaken levy, I am also asking the court to
declare the levy as null and void, the auction sale should not
proceed.
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The court might rule in my favor, so a separate action is allowed.
Thus, a third-party claim is not the only remedy available under the
law for the third party claimant.
Remedy of the judgment obligee in case of a frivolous third party
claim-
The second part also contains a new provision, “…or prevent the
judgment obligee from claiming damages in the same or a separate
action against a third party claimant who files a frivolous or plainly
spurious claim.”
Remember that it is possible for a third-party claimant to be a
dummy when it is a frivolous claim, without basis or spurious, in
order to help the defendant. There are people like that. Now,
under the new law, the prevailing party has the right to claim
damages against the third-party claimant for filing frivolous claims.
He can claim the damages in the same action or in a separate
action.
Now, many people do not really understand what is a third-party
claim, even some lawyers:
Intervention by third party claimant not proper
Q: Suppose I am the lawyer of Lolo, bakit pa ako mag-file ng
another case? Can I not just complain to the court which rendered
the decision? Can I not just file a motion asking the judge to order
the release of the property? Is a separate action not a violation of
the rule against multiplicity of suits?
A: NO! You cannot bring out the issue to determine the ownership
of the property. INTERVENTION here is not proper. [Is this not a
ground for intervention? GROUNDS FOR INTERVENTION: (1) the
intervenor has legal interest in the subject matter; (2) the
intervenor has an interest in the success of either parties; (3) the
intervenor has an interest against both parties; and (4) The
intervenor is adversely affected by a distribution of a property in
the custody of a court or an officer thereof.]
The SC said YOU CANNOT INTERVENE because under Rule 19, an
intervention can only be done at any time before judgment. But
here in Rule 39, we are now on the stage of execution of the
judgment! That’s another issue different from a case already tried.
So, a separate action is the proper remedy.
Option 3. Such doctrine should be reconciled with what the SC said
in the case of
SY vs. DISCAYA
181 SCRA 378
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HELD: If your property was erroneously levied under Rule 39, you
can seek relief from the very same court which rendered the
judgment by simply filing a motion to question the actuation of the
sheriff, because execution is part of the process in that case and
the sheriff is an officer of the court and the court has the complete
control over the actuation of the sheriff. Therefore, why require
the 3rd-party to file another action when he can seek relief in the
same case? Meaning, the third party can seek relief in the same
case but only to determine whether the sheriff acted rightly or
wrongly, BUT not for the purpose of determining the issue of
ownership. Questions of ownership cannot be decided here. There
must be a separate action for the issue of ownership.
“A third person whose property was seized by a sheriff to answer
for the obligation of the judgment debtor may invoke the
supervisory power of the court which authorized such execution.
Upon due application by the third person and after summary
hearing, the court may command that the property be released
from the mistaken levy and restored to the rightful owner or
possessor. What said court can do in these instances, however, is
limited to a determination of whether the sheriff has acted rightly
or wrongly in the performance of his duties in the execution of
judgment, more specifically, if he has indeed taken hold of
property not belonging to the judgment debtor. The court does
not and cannot pass upon the question of title to the property,
with any character of finality. It can treat of the matter only
insofar as may be necessary to decide if the sheriff has acted
correctly or not.”
So, the court that renders the judgment cannot decide on the issue
of ownership to a third person. So your remedy is to file another
case. But in the case of DISCAYA, the court which renders the
judgment can determine whether the sheriff has acted wrongly or
correctly. And if it is wrong it can order the property erroneously
levied to be released without need of filing a separate action.
Q: So how do you reconcile the two doctrines?
A: If it is obvious that the sheriff committed a mistake – 100%
mistake, i.e. he levied property belonging to a third person who is
not a defendant – to require a third person to go to court and file
another case will be tedious. Why can he not seek relief from the
same court? Anyway if it is very obvious that the sheriff acted
wrongly, that is only incidental.
But when the issue is whether the property is owned by the
defendant or the third person, and the issue is controversial – who
is the rightful owner – that cannot be decided summarily by the
court which rendered decision. It should be threshed out in an
independent separate civil action. So that will be the consideration.
The SC summarized all these remedies in the 1995 case of:
EVANGELISTA vs. PENSERGA
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242 SCRA 702
HELD: The remedies of a third person whose property was seized
by the sheriff to answer for the obligation of a judgment obligor are
the following:
1. Invoke the supervisory power of the court which
authorized such execution (Sy vs. Discaya);
2. Terceria - third party claim (Rule 39, Section 16); and
3. Any proper action to vindicate his claim to the property,
meaning a separate civil action. (second paragraph,
Section 16, Rule 39)
So these are the three remedies of a third person whose property
was seized by a sheriff to answer for the obligation of another
person.
Sec. 17. Penalty for selling without notice, or removing or
defacing notice. - An officer selling without the notice prescribed
by section 15 of this Rule shall be liable to pay punitive damages
in the amount of five thousand (P5,000.00) pesos to any person
injured thereby, in addition to his actual damages, both to be
recovered by motion in the same action; and a person willfully
removing or defacing the notice posted, if done before the sale,
or before the satisfaction of the judgment if it be satisfied before
the sale, shall be liable to pay five thousand (P5,000.00) pesos to
any person injured by reason thereof, in addition to his actual
damages, to be recovered by motion in the same action. (19a)
Notices in the auction sale should be posted in three public places.
One of such public places is the Hall of Justice itself. You are not
supposed to remove or deface them.
Sec. 18. No sale if judgment and costs paid. - At any time before
the sale of property on execution, the judgment obligor may
prevent the sale by paying the amount required by the execution
and the costs that have been incurred therein. (20a)
Q: Can the debtor stop the auction sale? Is there a way for the
debtor to prevent the sale of his property?
A: YES, if the obligor can pay the amount required by the execution
and the costs. For example, the bank is foreclosing your mortgage
and sell the property at public auction. To stop the bank from
proceeding with the sale, you go to the bank and pay all your
obligations. But you have to pay all.
Sec. 19. How property sold on execution; who may direct manner
and order of sale. All sales of property under execution must be
made at public auction, to the highest bidder, to start at the exact
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time fixed in the notice. After sufficient property has been sold to
satisfy the execution, no more shall be sold and any excess
property or proceeds of the sale shall be promptly delivered to
the judgment obligor or his authorized representative, unless
otherwise directed by the judgment or order of the court. When
the sale is of real property, consisting of several known lots, they
must be sold separately; or, when a portion of such real property
is claimed by a third person, he may require it to be sold
separately. When the sale is of personal property capable of
manual delivery, it must be sold within view of those attending
the same and in such parcels as are likely to bring the highest
price. The judgment obligor, if present at the sale, may direct the
order in which property, real or personal, shall be sold, when such
property consists of several known lots or parcels which can be
sold to advantage separately. Neither the officer conducting the
execution sale, nor his deputies, can become a purchaser, nor be
interested directly or indirectly in any purchase at such sale. (21a)
Execution sale shall be done at public auction. The public is invited
to bid thus the public notice. There is even publication for real
property “TO THE HIGHEST BIDDER.” How does it happen?
Normally, the first bidder will be the creditor. And normally, his bid
will be equal to the judgment in his favor.
Q: Now, suppose there are many properties levied. What is the
process?
A: You sell them one by one. After sufficient property has been sold
and that is enough to satisfy the debt, then do not sell anymore. Do
not sell more than what is necessary to satisfy the judgment. This
applies to subdivision lots.
“When the sale is of real property, consisting of several known lots,
they must be sold separately.”
The law says, the debtor, if he is present, can intervene. He says,
“Alright, unahin mo muna ito…” because he may know of
somebody who is willing to buy his property. So he can tell the
sheriff, “If you want to sell unahin mo muna ito because merong
malaking bayad yan eh…” in order for his other properties to be
saved from the execution.
Now, the last paragraph, the last sentence says, “neither the officer
conducting the execution sale, nor his deputies, can become a
purchaser, nor be interested directly or indirectly in any purchase at
such sale”. So the sheriff and his deputy cannot participate in the
auction, these are prohibited interest.
I think there is also a prohibition in the Civil Code on this — on
prohibited sales. The judge cannot be interested in the sale of a
property which is the subject matter of the litigation. The lawyer
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here cannot purchase a property involving a case which he
handled, to prevent conflict of interest.
Sec. 20. Refusal of purchaser to pay. If a purchaser refuses to pay
the amount bidded by him for property struck off to him at a sale
under execution, the officer may again sell the property to the
highest bidder and shall not be responsible for any loss
occasioned thereby; but the court may order the refusing
purchaser to pay into the court the amount of such loss, with
costs, and may punish him for contempt if he disobeys the order.
The amount of such payment shall be for the benefit of the
person entitled to the proceeds of the execution, unless the
execution has been fully satisfied, in which event such proceeds
shall be for the benefit of the judgment obligor. The officer may
thereafter reject any subsequent bid of such purchaser who
refuses to pay. (22a)
The highest bidder who does not pay will be liable for any loss due
plus costs and if he/she does comply with the order of the court to
pay he can be declared in contempt of court. This is a proceeding.
Then the bidding procedure will again be done.
Q: May he bid again?
A: No more. The officer may thereafter reject any
subsequent bid of such purchaser who refused to pay. So do not
fool around there when you make a bid. You must be serious and
you must be ready to pay for you bid.
Sec. 21. Judgment obligee as purchaser. When the purchaser is the
judgment obligee, and no third-party claim has been filed, he
need not pay the amount of the bid if it does not exceed the
amount of his judgment. If it does, he shall pay only the excess.
(23a)
Q: Can the judgment obligee – the creditor-plaintiff – participate in
the auction sale?
A: YES, under Section 21. The sale is open to the public. As a matter
of fact, in normal auction sale, the first bidder is the plaintiff
himself.
A: Suppose, he is the highest bidder. So the property is declared
sold to him. Is he obliged to pay his bid?
A: GENERAL RULE: NO. Why? You simply apply the law on
compensation – I owe you money on the purchase price for your
property but you also owe me money based on the judgment.
EXCEPTION: Two (2) instances when obligee may be required to
pay for his bid:
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1.) When his bid is higher than the judgment. So he has to
pay the cash for the excess or
EXAMPLE: The judgment in my favor is P1 million, my bid is P1.2
million and I’m the highest bidder. So I have to pay you the
balance, the P200,000 because that is more than the judgment in
my favor.
2.) when the property which is to be sold is a subject of a
third party claim because it is really controversial
whether the property is really owned by the judgment
debtor.
So, if there is a 3rd party claim, he has to pay because it is
controversial - as to who really is the owner of the property. The
money will be deposited and will be returned to you if it turns out
the claim is frivolous. If the third party claim turns out to be valid, it
will be given to the real owner because the property that you
bought turned out to be owned by somebody who is not your
debtor.
Sec. 22. Adjournment of sale. By written consent of the judgment
obligor and obligee, or their duly authorized representatives, the
officer may adjourn the sale to any date and time agreed upon by
them. Without such agreement, he may adjourn the sale from day
to day if it becomes necessary to do so for lack of time to
complete the sale on the day fixed in the notice or the day to
which it was adjourned. (24a)
Suppose the auction sale was scheduled today and the bidding was
not completed because there are many properties to be sold like
200 lots. Then it can continue the next day.
Suppose we will continue next week. Then both parties must agree
by written consent of the judgment obligor and obligee if we will
postpone it to another date na mas malayo.
Q: Do you know why these things are very important?
A: Because you already advertised that it will be held on
this day. So any change on the date has to be strictly complied
with. That’s the reason behind these.
Q: Now, what properties can be sold at public auction?
A: It’s either personal property or real property. We are
sure about that.
TWO TYPES OF PERSONAL PROPERTY:
1.) one capable of manual delivery; and
2.) one not capable of manual delivery – like credits,
deposits, shares of stocks.
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Q: What is the procedure for the sale of personal property
capable of manual delivery and one not capable of manual
delivery?
A: You have Section 23 and Section 24.
Q: When it comes to real property, what is the procedure?
A: The procedure is Section 25.
Sec. 23. Conveyance to purchaser of personal property capable of
manual delivery. When the purchaser of any personal property,
capable of manual delivery, pays the purchase price, the officer
making the sale must deliver the property to the purchaser and, if
desired, execute and deliver to him a certificate of sale. The sale
conveys to the purchaser all the rights which the judgment
obligor had in such property as of the date of the levy on
execution or preliminary attachment. (25a)
Sec. 24. Conveyance to purchaser of personal property not capable
of manual delivery. When the purchaser of any personal property,
not capable of manual delivery, pays the purchase price, the
officer making the sale must execute and deliver to the purchaser
a certificate of sale. Such certificate conveys to the purchaser all
the rights which the judgment obligor had in such property as of
the date of the levy on execution or preliminary attachment.
(26a)
Q: What is the procedure for the sale of property capable of
manual delivery?
A: When the property is CAPABLE OF MANUAL DELIVERY, and you
are the highest bidder, I will deliver the car to you, and execute and
deliver to you a certificate of sale. The certificate of sale should be
signed by the sheriff to prove that you are the highest bidder. And
with that certificate of sale, you can register that with the LTO.
Automatically, the LTO will transfer the ownership and the
registration of the car in your name.
Q: What is the procedure for the sale of property NOT CAPABLE OF
MANUAL DELIVERY?
A certificate will be executed which will be equivalent to delivery.
Q: When you buy a personal property at an auction sale and
the sheriff executes a certificate of sale in your favor, do you
become the owner of the property?
A: It depends of what right the judgment obligor has over the
property. Both sections say, “the sale conveys to the purchaser all
the rights which the judgment obligor have in such property as of
the date of the levy on execution.”
At the sale, you acquire all the rights which the obligor had in such
property. You become the owner because you acquire the
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judgment obligor’s right of ownership if indeed he is the owner
over such property.
BUT suppose the obligor holding the property is not the owner of
the property although he has some right over the property and his
rights where sold, then you only acquire whatever rights he has
over the property. You do not acquire ownership. A spring cannot
rise higher than its source.
EXAMPLE: You are the defendant but you enjoy rights over the
property as usufructuary – you are the beneficial owner of the
property but not the naked owner. And your rights as
usufructuary were levied. I am the purchaser. Can I acquire naked
ownership? Of course NOT. I only acquire beneficial ownership. I
only acquire whatever right the debtor has over the property.
The SC made a commentary on that issue on the nature of the
sheriff’s sale and one of which is the case of
LEYSON vs. TAÑADA
109 SCRA 66 [1981]
HELD: “At a sheriff’s sale they do not sell the land advertised to sell,
although that is a common acceptation, but they simply sell what
interest in that land the judgment debtor has; and if you buy his
interest, and it afterwards develops that he has none, you are still
liable on your bid, because you have offered so much for his
interest in open market, and it is for you to determine before you
bid what is his interest in the property.”
So, it is for you to determine what his interest is before you bid.
That is why if you look at the sheriff’s notice of sale, there is a
warning: “Notice to prospective bidders. You are advised to find out
whatever interest the debtor has.”
For EXAMPLE: You buy the land and it turns out na hindi pala may-
ari iyong taong iyon, iba ang rights niya. Then you are to uphold his
rights, “Ah, I will hold the sheriff liable!” No you cannot. There is no
warranty here on ownership.
So, do not confuse this with private sale of property where there is
a warranty against eviction. That does not apply to a sheriff’s sale.
The sheriff does not warrant the ownership of the property. The
law only warrants the guarantee that you will acquire whatever
interest he has. And if his interest is less than what you expect, that
is your risk. This is a case of CAVEAT EMPTOR – let the buyer
beware. That is the thing you have to remember about action sale.
Sec. 25. Conveyance of real property; certificate thereof given to
purchaser and filed with registry of deeds. Upon a sale of real
property, the officer must give to the purchaser a certificate of
sale containing:
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(a) A particular description of the real property sold;
(b) The price paid for each distinct lot or parcel;
(c) The whole price paid by him;
(d) A statement that the right of redemption expires one (1) year
from the date of the registration of the certificate of sale.
Such certificate must be registered in the registry of deeds of the
place where the property is situated. (27a)
If the property sold at public auction is a piece of land (real
property), the sheriff will execute in your favor what is known as
the sheriff’s CERTIFICATE OF SALE. Ano’ng nakalagay diyan? It is
practically what a normal deed of sale provides – the description of
the land, the property sold, the whole price paid, the lot if there
are different parcels, how much per parcel.
The important paragraph is *d+: “A statement that the right of
redemption expires one (1) year from the date of the registration of
the certificate of sale”.
Q: What is the main difference between a sale of personal
property under Section 23 and sale of real property under Section
25?
A: When the property sold at public auction is real
property, the debtor has one (1) year to redeem the property.
That’s what you call the RIGHT OF REDEMPTION from the
purchaser. But if the property sold at public auction is personal
property, like cars or appliances, there is no right of redemption.
There is no right of redemption in personal property. That is only
recognized in real property. So if your (personal) property is sold at
public auction, and then there is a highest bidder, you cannot say,
“Anyway, pwede ko namang bawiin iyon.” NO, wala iyang bawi,
kanya na yan. But if the property sold at public auction is real
property, that is not kissing your land goodbye. You have one year
to redeem it. That is your last chance.
Q: Summary: If you are the highest bidder, when do you acquire
ownership of the property sold in a auction sale?
A: It DEPENDS whether the property sold is personal or real:
a.) If it is PERSONAL PROPERTY, the title is transferred after
payment of the purchase price and delivery upon the
purchaser. Delivery is either physical or symbolic;
(Sections 23 & 24)
b.) If it is REAL PROPERTY, the title is transferred, not after
the auction sale, but after expiration of the right to
redeem. (Section 25)
There is no right of redemption under personal property. It can
only be exercised in real property.
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Now, take note that the period to redeem is ONE YEAR FROM THE
DATE OF THE REGISTRATION of the certificate of sale in the office
of the registrar of deeds. It is NOT from the date of the auction
sale.
Under the present rule, the right of redemption expires after one
(1) year from the date of the registration of the certificate of sale.
Under the old law, it expires after twelve (12) months.
Q: Is the ‘one year’ under the present rule and the ‘12 months’
under the old rules the same?
A: NO, and we know that 12 months is 360 days. One month is 30
days times 12 is 360 days. But one year is 365 days. So they are not
the same.
That’s why before, the redemption period for extrajudicial
foreclosure of mortgage is one year. And the redemption in
execution under Rule 39 is 12 months. So there is a difference. But
NOW, it is the same.
That’s why the old case of STATE INVESTMENT HOUSE when the SC
made the distinction between the one year period for mortgage
and the 12 months period under Rule 39 is already MEANINGLESS
because the one year period. NOW is uniform.
Q: Can you attack the validity of an auction sale?
A: GENERAL RULE: NO, you cannot attack the auction sale
on the presumption that every fair sale is final. There is a
presumption of regular performance of duty by the sheriff.
EXCEPTION: When an execution sale may be set aside:
1.) When it is shown from the nature of the irregularity or
from intrinsic facts injury resulted therefrom. (Navarro
vs. Navarro, 76 Phil. 122) Meaning, there were serious
irregularities committed by the officer in conducting the
sale like no publication, no notice, no prior levy, etc.;
2.) When the price obtained at the execution sale is
shockingly inadequate and it is shown that a better price
can be obtained at a resale. (Barrozo vs. Macadaeg, 83
Phil. 378) Meaning, the highest bid is shockingly
inadequate.
EXAMPLE: The judgment amount is P300,000.00 and what is levied
is a brand new Mercedes Benz worth more than a million. But the
highest bid is only P30,000.00 leaving a balance or deficiency of
P170,000.00. That is, when the price obtained at the execution sale
is SHOCKINGLY INADEQUATE to the senses and it is shown that a
better price can be obtained.
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‘Shocking to the senses’ means hindi naman yung the difference is
very slight.
EXCEPTION TO THE EXCEPTION: The rule that you can question the
validity of the auction sale if the price obtained is shockingly
inadequate applies ONLY when the property sold is PERSONAL
property. The exception does not apply when the property sold is
real property because if the property sold is a personal property,
there is no right of redemption. But if the property sold is real
property, you cannot complain because, anyway, you have one
year to pay and the redemption price is lower. So, you are not
really prejudiced. So why are you complaining? That’s what the SC
said in the case of
RAMOS vs. PABLO
146 SCRA 5 [1986]
HELD: “A reading of plaintiffs' (petitioners') complaint shows that
inadequacy of price was raised as one of the issues. Assuming that
the price was shockingly low, the same cannot vitiate the auction
sale for redemption would be comparatively easier.”
Sec. 26. Certificate of sale where property claimed by third person.
When a property sold by virtue of a writ of execution has been
claimed by a third person, the certificate of sale to be issued by
the sheriff pursuant to sections 23, 24 and 25 of this Rule shall
make express mention of the existence of such third-party claim.
(28a)
If the property sold at public auction is a subject of a third party
claim under Section 16, the certificate of sale to the property is
issued subject to the outcome of the third party claim by a
stranger.
Sec. 27. Who may redeem real property so sold. Real property sold
as provided in the last preceding section, or any part thereof sold
separately, may be redeemed in the manner hereinafter
provided, by the following persons:
(a) The judgment obligor, or his successor in interest in the whole
or any part of the property;
(b) A creditor having a lien by virtue of an attachment, judgment
or mortgage on the property sold, or on some part thereof,
subsequent to the lien under which the property was sold. Such
redeeming creditor is termed a redemptioner. (29a)
That is an important section.
Q: Who are entitled to redeem real property?
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A: There are two (2):
1.) The judgment obligor or his successor-in-interest; and
2.) A creditor having a lien by virtue of an attachment,
judgment or mortgage on the property sold, subsequent
to the lien under which the property was sold. He is
known as the REDEMPTIONER.
JUDGMENT OBLIGOR OR HIS SUCCESSORS-IN-INTEREST
Judgment obligor is clear – the defendant who lost the case – the
defendant whose property was levied. Or, his successor-in-interest.
For EXAMPLE: During the one year period to redeem, the judgment
debtor died. So it could be his heirs, his children, his spouse who
could exercise the right to redeem because they step into his
shoes. Also, successor-in-interest would also refer to a person to
whom the obligor assigned or transferred his right to redeem.
Q: Can the defendant sell, aside from transferring, his right to
another person?
A: YES, because the right to redeem is property by itself. My right
to redeem is also property such as an interest to the real property
which can be the subject matter of a sale.
EXAMPLE: My property is worth worth P5 million.= which was
levied and sold for P2 million. I cannot redeem it so I sell it to you
for P1 million cash. You can redeem the property and still gains
from the transaction because the property is worth 5M.
REDEMPTIONER
Q: Define redemptioner.
A: A redemptioner is a creditor having a lien by virtue of an
attachment, judgment or mortgage on the property sold, or on
some part thereof, subsequent to the lien under which the
property was sold.
ILLUSTRATION: Suppose there is a title owned by X and he has four
(4) creditors. Let’s say the property is worth P10 million and he
owes A for P2 million. So A levied the property. Now there’s
another judgment in favor of B and there is no other property. So B
annotated his lien on the property for another P2 million.
Under the Law on Land Titles and Deeds, B has inferior rights. In
other words, the right of A is superior to the right of B. A has no
obligation to respect the right of B but B is obliged to respect the
right of A. And Assuming that there is a third creditor – C – for
another P2 million. Thus, C is also a subsequent lien holder. If D is
also a creditor, there will be four of them.
Of course, the right of A is superior. If he levies the property, X has
one year to redeem. Suppose X will not redeem, A becomes the
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owner after one year. What happens to B, C and D? They cannot
anymore redeem because they are subsequent lienholders. A has
no obligation to respect your liens.
In other words, A acquires the entire property for only P2M
because X is not interested. What is the remedy of B? B can pay A
within the redemption period so A cannot redeem. X’s obligation to
A in the sum of P2M will be paid by B. So P4 million will now be the
total interest of B. And B will now be the number one creditor. B
will now acquire the property. What about if C is interested? In
order for B not to be able to acquire the property he can redeem
the property by paying 4M covering the lien of A and B and so he
now holds P6M worth of interest on the property. D can do the
same thing if he wants the property used to pay X’s liability to him
They are the redemptioners – people who have lien subsequent
because that is your only way to protect your lien over the
property. Anyway, even if D will pay everybody, he will not lose
because the property is worth P10 million. But he will spend P8
million because he had to buy or redeem it from people who are
ahead of him. That is the illustration of redemptioners, they have a
personality or a right to redeem the property from whoever is
ahead of him in order to protect his lien over the property because
if he will not redeem, the quickest one will acquire the property
free from any lien or encumbrance. That is the rule on redemption.
That is what Section 27 is all about.
Take note that redemptioners cannot redeem if the judgment
debtor redeems.
(For Review Class) Now, let us discuss the case of PALICTE vs.
REMOLETE, infa. This case is instructive on the issue of right of
redemption under Rule 39 in relation to special proceedings – the
estate of deceased person. This is what happened:
PALICTE vs. REMOLETE
154 SCRA 132 [1987]
FACTS: A man lost a case and his properties were levied. So let’s
say his properties were levied for P1 million. But during the 1-year
period of redemption, he died. And he is survived by 5 children.
And there is an administrator appointed by the court to administer
the properties of the deceased. During the one year period to
redeem, one of five children redeemed the properties of their
father.
Take note that only one of the heirs redeemed the entire property
from the judgment creditor or obligee. And one of the issues raised
is whether one heir alone has the personality to redeem from the
creditor the property of the estate when there is an administrator.
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Remember that the legal representative under the law, is the
administrator.
ISSUE #1: So, who has the right to redeem? The heir or the
administrator?
HELD: The HEIR has the right to redeem. “At the moment of the
decedent’s death, the heirs start to own the property, subject to
the decedent’s liabilities. In fact, they may dispose of the same
even while the property is under administration. If the heirs may
dispose of their shares in the decedent’s property even while it is
under administration with more reason should the heirs be allowed
to redeem redeemable properties despite the presence of an
administrator.”
ISSUE #2: Must the one redeeming prove that the other co-heirs,
the administrator and the court expressly agreed to the
redemption? Is it necessary for him to get their consent?
HELD: “There is NO NEED for such prior approval. While it may
have been desirable, it is not indispensable. There is likewise
nothing in the records to indicate that the redemption was not
beneficial to the estate.” Anyway, the estate was benefited. The
property was returned to the estate rather than acquired by the
creditors.
ISSUE #3: How can one specific heir redeem alone when his
interest in the estate is not fixed and determinate pending the
order of distribution by the court? He is just a 1/5 owner and then
he is redeeming everything, how can that be done?
HELD: “It may be true that the interest of a specific heir is not yet
fixed and determinate pending the order of distribution BUT,
nonetheless, the heir’s interest in the preservation of the estate
and the recovery of its properties is greater than anybody else’s,
definitely more than the administrator’s who merely holds it for
the creditors, the heirs, and the legatees.”
ISSUE #4: Can we not consider the administrator as the judgment-
debtor himself and the only one successor-in-interest?
HELD: NO. “The estate of the deceased is the judgment-debtor and
the heirs who will eventually acquire that estate should not be
prohibited from doing their share in its preservation.”
ISSUE #5:Can the property be registered in the name of the
redeeming heir on ground that he spent his money in paying the
property including the shares of his brothers and sisters who have
no money.?
HELD: NO. “The motion to transfer the titles of the properties to
the name of the redeeming heir cannot prosper at this time.
Otherwise, to allow such transfer of title would amount to a
distribution of the estate.” That is tantamount to premature
distribution of the estate. You cannot distribute the estate in favor
of one heir immediately.
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So, what is the solution? “The other heirs are, therefore, given a
six-month period to join as co-redemptioners in the redemption
made by the petitioner before the motion to transfer titles to the
latter’s name may be granted.”
Sec. 28. Time and manner of, and amounts payable on, successive
redemptions; notice to be given and filed. The judgment obligor, or
redemptioner, may redeem the property from the purchaser, at
any time within one (1) year from the date of the registration of
the certificate of sale, by paying the purchaser the amount of his
purchase, with one per centum per month interest thereon in
addition, up to the time of redemption, together with the amount
of any assessments or taxes which the purchaser may have paid
thereon after purchase, and interest on such last named amount
at the same rate; and if the purchaser be also a creditor having a
prior lien to that of the redemptioner, other than the judgment
under which such purchase was made, the amount of such other
lien, with interest.
Property so redeemed may again be redeemed within sixty (60)
days after the last redemption upon payment of the sum paid on
the last redemption, with two per centum thereon in addition,
and the amount of any assessments or taxes which the last
redemptioner may have paid thereon after redemption by him,
with interest on such last-named amount, and in addition, the
amount of any liens held by said last redemptioner prior to his
own, with interest. The property may be again, and as often as a
redemptioner is so disposed, redeemed from any previous
redemptioner within sixty (60) days after the last redemption, on
paying the sum paid on the last previous redemption, with two
per centum thereon in addition, and the amounts of any
assessments or taxes which the last previous redemptioner paid
after the redemption thereon, with interest thereon, and the
amount of any liens held by the last redemptioner prior to his
own, with interest.
Written notice of any redemption must be given to the officer
who made the sale and a duplicate filed with the registry of deeds
of the place, and if any assessments or taxes are paid by the
redemptioner or if he has or acquires any lien other than that
upon which the redemption was made, notice thereof must in like
manner be given to the officer and filed with the registry of
deeds; if such notice be not filed, the property may be redeemed
without paying such assessments, taxes, or liens. (30a)
ILLUSTRATION: Brown Sugar is a judgment obligor. She has four
creditors (A, B, C, and D) and all of them obtained judgment against
her and all of them levied on the same property. Brown Sugar is
given one year from the registration of the sale to redeem it from
A. Now, suppose SUGAR cannot redeem, B will be the one to
redeem because the first redemptioner and the judgment obligor
have one year to redeem from the date of registration. That is what
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Section 28 says “the judgment obligor, or redemptioner.” Now, C is
given 60 days to redeem. After that, wala ng right. Suppose C was
able to redeem, D has another 60 days to redeem from C.
Q: So what is the period of redemption?
A: There are two periods of redemption: The judgment obligor and
first redemptioner are given ONE YEAR from the date of
registration of the certificate of sale to redeem and after that all
subsequent redemptioners are given 60 days.
So the second redemptioner can redeem it within 60 days. So,
within 60 days, the 3rd redemptioner can redeem it. Pasa yan, in
order that the redemptioner can protect their lien over the
property. So, the redemption period is ONE YEAR and 60 DAYS
respectively.
Q: Now, suppose Brown Sugar or B would like to redeem the
property from A. How much will the property be redeemed?
A: Under Section 28, the purchase or the bid price for the property
PLUS one percent per month interest, and reimbursement for taxes
of the property with interest also. But definitely, the redemption
price = the bid price + 1% interest month. So, if you will redeem
after one year, the bid price and 12% of the bid price.
ILLUSTRATION: So kung P1 million ang bid price plus + P120,000
(1%/month) = P1.12 million
Now there are two interesting cases here which I want you to
remember. The conflicting ruling in PNB vs. CA (140 SCRA 360) and
the case of SY vs. CA (172 SCRA 125). The two cases involved a
foreclosure of mortgage not execution but the Rules of Court
applies. Under the extra-judicial foreclosure of mortgage Act 3135,
the provision of the Rules of Court are also applicable to
redemption in a foreclosure sale. So the provision in Section 28 also
applies to the redemption during an extrajudicial foreclosure of
property.
PNB vs. COURT OFAPPEALS
140 SCRA 360 [1985]
FACTS: Suppose I will borrow money from the bank and stipulate
an interest at 24% per annum. During the auction sale, it was sold
to the bank. Within one year, you approach me, gusto mo na i-
redeem. Magkano ang bid price—P2M plus interest of 2% per
month for the next seven or eight months. Sabihin ng debtor, “No,
1% lang. Di ba nakalagay sa law 1% lang.” Pero ang usapan natin is
3% monthly.
ISSUE: So which prevails - the 1% per month under the Rules of
Court or the 2% per month as stipulated in the promissory note?
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HELD: The 1% of the Rules of Court prevails. Why? The rights of the
debtor or creditor, the bank for example, under the promissory
note, or even under the mortgage law, is only good up to the
auction sale. From the moment the auction sale is finished and
there was already a bid, we are now talking of the one year period
to redeem. So the rate in the promissory note is no longer
applicable.
The case of PNB was somehow modified by the SC in the
subsequent case of Sy vs. CA (172 SCRA 125) where the facts are
identical.
SY vs. COURT OF APPEALS
172 SCRA 125 [1989]
FACTS: They borrowed money from the bank at 2% a month and
they failed to pay the loan. Thus, there was a foreclosure of
mortgage then there was an execution of sale.
ISSUE: Within the one year period of redemption, pila man ang
interest? The debtor will say 1% but according to the bank, it is 2%
as stipulated. Which will prevail?
HELD: The 3% a month stipulated under the mortgage contract
prevails. Why? Because of a special law – Section 78 of the General
Banking Act R.A. 337. Between Section 28 of Rule 39 and Section 78
of the General Banking Act, the latter prevails because it is a special
law. It applies to banks.
“The General Banking Act partakes of the nature of an amendment
to the mortgage law in so far as the redemption price is concerned.
When the mortgagee or the creditor is a bank or banking credit
institution, Section 6 of the mortgage law in relation to Section 28
of Rule 39 of the Rules of Court is inconsistent with Section 78 of
the General Banking Act.” So the bank rate prevails.
Paano nangyari ito? I have only one single explanation. Hindi nakita
ng mga abogado ng PNB ang provision na iyon. They did not
research very well. They failed to cite the provision of the General
Banking Act which authorizes the bank to continue charging the
higher rate even during the redemption period. Ginamit ng SC ang
general rule eh. So mas magaling ang lawyer nung bank in the
second case because they were able to detect an exception under
the general rule.
You know, if you are a lawyer of a bank, you must know all the laws
regarding banks. Just the same, if you are a labor lawyer, you
master all the labor laws. But if you are a bar candidate, you master
all laws! Yaaaann!
Sec. 29. Effect of redemption by judgment obligor, and a certificate
to be delivered and recorded thereupon; to whom payments on
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redemption made. If the judgment obligor redeems, he must make
the same payments as are required to effect a redemption by a
redemptioner, whereupon, no further redemption shall be
allowed and he is restored to his estate. The person to whom the
redemption payment is made must execute and deliver to him a
certificate of redemption acknowledged before a notary public or
other officer authorized to take acknowledgments of conveyances
of real property. Such certificate must be filed and recorded in the
registry of deeds of the place in which the property is situated,
and the registrar of deeds must note the record thereof on the
margin of the record of the certificate of sale. The payments
mentioned in this and the last preceding sections may be made to
the purchaser or redemptioner, or for him to the officer who
made the sale. (31a)
Q: Suppose Tikla redeems the property from Joshua. If the sheriff
will execute in favor of Tikla a certificate of redemption, to whom
should Tikla pay?
A: The law says she can pay directly to the purchaser, the
redemptioner or the person who made the sale.
Sec. 30. Proof required of redemptioner. A redemptioner must
produce to the officer, or person from whom he seeks to redeem,
and serve with his notice to the officer a copy of the judgment or
final order under which he claims the right to redeem, certified by
the clerk of the court wherein the judgment or final order is
entered; or, if he redeems upon a mortgage or other lien, a
memorandum of the record thereof, certified by the registrar of
deeds; or an original or certified copy of any assignment
necessary to establish his claim; and an affidavit executed by him
or his agent, showing the amount then actually due on the lien.
(32a)
When the ORIGINAL OWNER wants to redeem the property from B,
there is NO NEED for him to prove his right as a judgment debtor.
The judgment debtor has the automatic right to redeem.
But when it is B, C or D (REDEMPTIONERS) who wants to redeem,
they MUST PROVE to the sheriff that they are qualified to redeem.
They must prove their status because not every person in the world
has the right to redeem. The right to redeem is only given to the
debtor, the successor-in-interest or the redemptioner. Thus, you
must prove your personality to effect redemption.
Sec. 31. Manner of using premises pending redemption; waste
restrained. Until the expiration of the time allowed for
redemption, the court may, as in other proper cases, restrain the
commission of waste on the property by injunction, on the
application of the purchaser or the judgment obligee, with or
without notice; but it is not waste for a person in possession of
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the property at the time of the sale, or entitled to possession
afterwards, during the period allowed for redemption, to
continue to use it in the same manner in which it was previously
used; or to use it in the ordinary course of husbandry; or to make
the necessary repairs to buildings thereon while he occupies the
property. (33a)
PROBLEM: Suppose X is the debtor, A is the purchaser because the
highest bidder could be any person. During the 1-year period to
redeem, who is the possessor of the property? The purchaser or
the debtor?
A: The DEBTOR. During the one-year period, iyo pa rin yan. The
buyer or the purchaser cannot take over during the institution. He
has to wait for the one-year period to expire before he can take
over. Therefore, X continues to occupy the property. He continues
to use it the same manner it was previously used. Use it in the
ordinary course of husbandry, to make the necessary repairs to
buildings thereon while he occupies the property.
Q: Suppose 8 months has passed. Sabi ni X, “Mukhang wala
na akong pag-asa. Hindi ko na ito mababayaran. Sige, wasakin ko
na lang ang property. Sirain ko na lang. I will make a waste of the
land. I will cut all the coconut trees. I will destroy all the
improvements. Para pag-take-over mo, wala na. Bwahahaha!”
What is the remedy of A?
A: He can ask the court to issue a writ of injunction
according to Section 31 – an injunction to restrain the commission
of waste on the property. So, you can also stop him by injunction.
Sec. 32. Rents, earnings and income of property pending
redemption. The purchaser or a redemptioner shall not be entitled
to receive the rents, earnings and income of the property sold on
execution, or the value of the use and occupation thereof when
such property is in the possession of a tenant. All rents, earnings
and income derived from the property pending redemption shall
belong to the judgment obligor until the expiration of his period
of redemption. (34a)
Section 32 is the continuation of Section 31.
Q: My property was sold on execution in your favor. But my
property earns income. May mga tenants diyan na nagbabayad ng
renta. During the one-year period, who will get the rentals? The
purchaser or the debtor?
A: The DEBTOR. He continues to receive all the earnings.
For defensive purposes, he is still the owner. Do not say that, “Ako
ang highest bidder, akin ang income!” (Gunggong!) You wait for the
one-year redemption period to expire to get the income.
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Under the OLD rules, the 1964 Rules, during the one-year period to
redeem, the debtor/defendant continues to get the income of the
property but when the creditor may opt: “Your Honor, akin ang
income ha?” That’s allowed by the old law. But everything is
deductible also form the redemption price. NGAYON wala na yan.
100% the debtor is the one enjoying the income over the property.
That is a major amendment introduced by the 1997 Rules.
Q: Now, what happens if after the lapse of one year there is no
redemption? What is the next step?
A: That is Section 33:
Sec. 33. Deed and possession to be given at expiration of
redemption period; by whom executed or given. If no redemption
be made within one (1) year from the date of the registration of
the certificate of sale, the purchaser is entitled to a conveyance
and possession of the property; or, if so redeemed whenever sixty
(60) days have elapsed and no other redemption has been made,
and notice thereof given, and the time for redemption has
expired, the last redemptioner is entitled to the conveyance and
possession; but in all cases the judgment obligor shall have the
entire period of one (1) year from the date of the registration of
the sale to redeem the property. The deed shall be executed by
the officer making the sale or by his successor in office, and in the
latter case shall have the same validity as though the officer
making the sale had continued in office and executed it.
Upon the expiration of the right of redemption, the purchaser or
redemptioner shall be substituted to and acquire all the rights,
title, interest and claim of the judgment obligor to the property as
of the time of the levy. The possession of the property shall be
given to the purchaser or last redemptioner by the same officer
unless a third party is actually holding the property adversely to
the judgment obligor. (35a)
If the period to redeem expires, no more right of redemption. What
will happen? The sheriff now will now execute in favor of the
highest bidder or purchaser what is known as the final deed of sale
or DEED OF CONVEYANCE. Remember that there are two
documents here which the sheriff executes in case of real property.
Q: What are they (two documents which the sheriff executes in
case of real property)?
A: The following:
1.) CERTIFICATE OF SALE. After the auction sale, he will
execute in your favor the certificate of sale under Section
25, by the time you register that, you start counting the
one year.
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2.) DEED OF CONVEYANCE. If after one year there is no
redemption, a deed of conveyance is executed. (Section
33)
Q: Which of the two documents transfers the ownership to
the purchaser?
A: Only the DEED OF CONVEYANCE transfers title to the
property.
The certificate of sale one year ago does not transfer the
ownership of the land to the purchaser. It is only a memorial that
you are the highest bidder, that you paid so much and that you are
the purchaser but there is no transfer of ownership. Only the final
deed of sale in Section 33 conveys title to property. So do not
confuse the sheriff’s certificate of sale under Section 25 with the
final deed of sale under Section 33. Although in an extra-judicial
foreclosure, there is no need of deed of sale. Only affidavit of
consolidation is needed under the mortgage law.
Q: How can the sheriff give it to you? Suppose the debtor refuse to
vacate, is there a need to file another action of unlawful detainer
or forcible entry?
A: There is no more need of filing another action to eject the
former owner. The procedure is, the purchaser can ask the court to
issue a WRIT OF POSSESSION under the Property Registration
Decree to take over the property.
Now, another interesting case about this stage in relation to
property exempted from execution, is the case of
GOMEZ vs. GEALONE
203 SCRA 474 [1991]
FACTS: The property of the defendant was levied and sold in a
public auction to the highest bidder. One year after, there was no
redemption. Then after the period has expired, here comes the
defendant questioning the auction sale because the property was
exempt from execution and the property really turned out to be
exempt from execution.
ISSUE: Is there a deadline for a judgment debtor to claim
exemption from execution of his property? Can the debtor still
raise the issue that the property is exempt from execution after the
expiration of the redemption period.
HELD: The rules do not expressly mention up to what point
“although the rules of court does not prescribe the period within
which to claim the exemption, the rule is, nevertheless, well-settled
that the right of exemption must be claimed by the debtor himself
at the time of the levy or within a reasonable time thereafter.”
What is “reasonable time”?
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“’REASONABLE TIME,’ for purposes of the law on exemption, does
not mean a time after the expiration of the one-year period for
judgment debtors to redeem the property sold on execution,
otherwise it would render nugatory final bills of sale on execution
and defeat the very purpose of execution - to put an end to
litigation.”
“We now rule that claims for exemption from execution of
properties under Section 13 must be presented before its sale on
execution by the sheriff.”
Meaning, you raise the issue of exemption at the time of the levy
but not later that the auction sale. There is a deadline because if
you claim exemption after that, masyadong ng atrasado—too late
na ba. Thus, the claim for exemption must be raised. That’s the
ruling in the case of GOMEZ vs. GEALONE.
Sec. 34. Recovery of price if sale not effective; revival of judgment.
If the purchaser of real property sold on execution, or his
successor in interest, fails to recover the possession thereof, or is
evicted therefrom, in consequence of irregularities in the
proceedings concerning the sale, or because the judgment has
been reversed or set aside, or because the property sold was
exempt from execution, or because a third person has vindicated
his claim to the property, he may on motion in the same action or
in a separate action recover from the judgment obligee the price
paid, with interest, or so much thereof as has not been delivered
to the judgment obligor; or he may, on motion, have the original
judgment revived in his name for the whole price with interest, or
so much thereof as has been delivered to the judgment obligor.
The judgment so revived shall have the same force and effect as
an original judgment would have as of the date of the revival and
no more. (36a)
Q: Suppose A is the highest bidder. There is a third-party claim
which turned out to be valid. So the property is removed from A.
What are the options of A?
A: A’s options under Section 34:
1.) Recover the money from obligee (A here is not the
judgment obligee); or
2.) Have the judgment revived in your name and you look
for other properties of the obligor to execute because:
a.) He lost possession of the property;
b.) He was evicted;
c.) There was irregularity of the proceedings;
d.) The judgment has been reversed or set aside on appeal;
e.) The property sold was exempt from execution; or,
f.) A third person has validity of his claim of the property.
That’s one way of property being removed from the purchaser.
Your remedy is to recover the money from the obligee ASSUMING
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that the obligee is different from the purchase. Or have the
judgment revived in your name – hahabol ka na lang sa ibang
properties ng debtor. That’s the procedure alright.
Sec. 35. Right to contribution or reimbursement. When property
liable to an execution against several persons is sold thereon, and
more than a due proportion of the judgment is satisfied out of the
proceeds of the sale of the property of one of them, or one of
them pays, without a sale, more than his proportion, he may
compel a contribution from the others; and when a judgment is
upon an obligation of one of them, as security for another, and
the surety pays the amount, or any part thereof, either by sale of
his property or before sale, he may compel repayment from the
principal. (37a)
Q: The judgment is against A, B, and C, solidary debtors. A paid
everything. What is the right of A?
A: A has the right to seek reimbursement from B and C.
Or if the surety was made to pay the loan, he can claim
reimbursement from the principal debtor. That’s under the Law on
Obligations and Contracts—right to reimbursement.
REMEDIES IN AID OF EXECUTION
Another important portion of the rule to remember are the so-
called provisions of the rules in aid of execution – remedies “in aid
of execution” – because execution is a difficult process. The
purpose of the remedies in aid of execution is to help the obligee
realize the fruits of the judgment.
It is sometimes very hard to grasp out properties of the obligor
especially if he knows how to hide them by conveying remedies to
assist him in locating the properties of the defendant and these
remedies in aid of execution are found in Section 36 to Section 43.
And the most famous are those found in Sections 36 and 37:
Sec. 36. Examination of judgment obligor when judgment
unsatisfied. When the return of a writ of execution issued against
property of a judgment obligor, or any one of several obligors in
the same judgment, shows that the judgment remains
unsatisfied, in whole or in part, the judgment obligee, at any time
after such return is made, shall be entitled to an order from the
court which rendered the said judgment, requiring such judgment
obligor to appear and be examined concerning his property and
income before such court or before a commissioner appointed by
it, at a specified time and place; and proceedings may thereupon
be had for the application of the property and income of the
judgment obligor towards the satisfaction of the judgment. But
no judgment obligor shall be so required to appear before a court
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or commissioner outside the province or city in which such obligor
resides or is found. (38a)
Sec. 37. Examination of obligor of judgment obligor. When the
return of a writ of execution against the property of a judgment
obligor shows that the judgment remains unsatisfied, in whole or
in part, and upon proof to the satisfaction of the court which
issued the writ, that a person, corporation, or other juridical
entity has property of such judgment obligor or is indebted to
him, the court may, by an order, require such person,
corporation, or other juridical entity, or any officer or member
thereof, to appear before the court or a commissioner appointed
by it, at a time and place within the province or city where such
debtor resides or is found, and be examined concerning the same.
The service of the order shall bind all credits due the judgment
obligor and all money and property of the judgment obligor in the
possession or in the control of such person, corporation, or
juridical entity from the time of service; and the court may also
require notice of such proceedings to be given to any party to the
action in such manner as it may deem proper. (39a)
So under Section 36, you can ask the court to render judgment to
allow you to subpoena the obligor and take the witness stand
subject to questioning so that you can discover where his
properties are. So in effect, Section 36 is related to modes of
discovery. This is actually a mode of discovery. This is a type of
deposition taking. It is related to the subject of deposition taking
where the discovery of the witness stand to effect execution.
EXAMPLE: The sheriff did not find any property of the obligor. So
the obligee can file a motion under Section 36 for examination of
the obligor under oath hoping that in the course of asking
questions, he might make some admissions. And the procedure is
the same as in deposition but this is only done right inside the
courtroom.
On the other hand under Section 37, you can also examine people
whom you believe owe the obligor such as his debtors, or those
holding his property, so that you can discover all his collectibles
and ask that the same be garnished. So this time, it is the “obligor”
of the judgment obligor who will be examined.
EXAMPLE: Kenneth, Thadd, and Francis owe the judgment obligor a
sum of money. The obligee can file a motion under Section 37 to
subpoena Kenneth, Thadd and Francis to find out if it is true that
they are indebted to the judgment obligor. In this case, the obligee
can as the court to garnish the money.
So, those are the objects of Sections 36 and 37. Of course there are
others, just go over them.
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Sec. 38. Enforcement of attendance and conduct of examination. A
party or other person may be compelled, by an order or
subpoena, to attend before the court or commissioner to testify
as provided in the two preceding sections, and upon failure to
obey such order or subpoena or to be sworn, or to answer as a
witness or to subscribe his deposition, may be punished for
contempt as in other cases. Examinations shall not be unduly
prolonged, but the proceedings may be adjourned from time to
time, until they are completed. If the examination is before a
commissioner, he must take it in writing and certify it to the
court. All examinations and answers before a court or
commissioner must be under oath, and when a corporation or
other juridical entity answers, it must be on the oath of an
authorized officer or agent thereof. (40a)
Section 38 is the continuation of Section 37. If the judgment
obligor, or Kenneth, Thad and Francis refuse to comply with the
subpoena, they can be punished for contempt.
Sec. 39. Obligor may pay execution against obligee. After a writ of
execution against property has been issued, a person indebted to
the judgment obligor may pay to the sheriff holding the writ of
execution the amount of his debt or so much thereof as may be
necessary to satisfy the judgment, in the manner prescribed in
section 9 of this Rule, and the sheriff's receipt shall be a sufficient
discharge for the amount so paid or directed to be credited by the
judgment obligee on the execution. (41a)
Here, there is a change of the party creditor. The best example is
garnishment from a bank. B is the debtor of the judgment obligor.
If B, instead of paying the judgment obligor, will pay the judgment
creditor, B is no longer indebted to the judgment obligor.
Sec. 40. Order for application of property and income to
satisfaction of judgment. The court may order any property of the
judgment obligor, or money due him, not exempt from execution,
in the hands of either himself or another person, or of a
corporation or other juridical entity, to be applied to the
satisfaction of the judgment, subject to any prior rights over such
property.
If, upon investigation of his current income and expenses, it
appears that the earnings of the judgment obligor for his personal
services are more than necessary for the support of his family, the
court may order that he pay the judgment in fixed monthly
installments, and upon his failure to pay any such installment
when due without good excuse, may punish him for indirect
contempt. (42a)
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If upon investigation of his current income and expenses, it appears
that the earnings of the judgment obligor for his personal services
are more than necessary for the support of his family, the court
may order that he pay the judgment obligee in fixed monthly
installments, and upon his failure to pay any such installment when
due without good excuse, may punish him for indirect contempt.
Q: Can the salary of an employee be garnished?
A: Yes IF there is excess for support of his family. (Section 40)
Section 40 related to Section 13, paragraph [i] properties exempt
from execution:
(i) So much of the salaries, wages, or earnings of the
judgment obligor for his personal services within the four months
preceding the levy as are necessary for the support of his family;
Normally, you cannot levy on the earnings of a person which he
needs for support of his family. But actually, it is not the entire
earnings because if you’re earning a lot, it is more than sufficient
for your family. So the excess of your income can be garnished
under Section 40.
Sec. 41. Appointment of receiver. The court may appoint a receiver
of the property of the judgment obligor; and it may also forbid a
transfer or other disposition of, or any interference with, the
property of the judgment obligor not exempt from execution.
(43a)
The court may appoint a receiver who is an officer of the court who
will manage the property of the litigants pending litigation. This
remedy is found under Rule 59 on Receivership. The purpose of
receivership is to preserve the property by placing it in the hands of
the court to remove it from the control of a party because a party
may dispose of the property.
Sec. 42. Sale of ascertainable interest of judgment obligor in real
estate. If it appears that the judgment obligor has an interest in
real estate in the place in which proceedings are had, as
mortgagor or mortgagee or otherwise, and his interest therein
can be ascertained without controversy, the receiver may be
ordered to sell and convey such real estate or the interest of the
obligor therein; and such sale shall be conducted in all respects in
the same manner as is provided for the sale of real estate upon
execution, and the proceedings thereon shall be approved by the
court before the execution of the deed. (44a)
EXAMPLE: The obligor turns out to have an interest in real property
as a mortgagee, or he has a right to redeem, or right to foreclose,
or right to repurchase. The obligee can levy on these rights because
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these rights are property rights by themselves. This time, it is not
the property which is sold but your interest.
Sec. 43. Proceedings when indebtedness denied or another person
claims the property. If it appears that a person or corporation,
alleged to have property of the judgment obligor or to be
indebted to him, claims an interest in the property adverse to him
or denies the debt, the court may authorize, by an order made to
that effect, the judgment obligee to institute an action against
such person or corporation for the recovery of such interest or
debt, forbid a transfer or other disposition of such interest or
debt within one hundred twenty (120) days from notice of the
order, and may punish disobedience of such order as for
contempt. Such order may be modified or vacated at any time by
the court which issued it, or by the court in which the action is
brought, upon such terms as may be just. (45a)
EXAMPLE: The obligee cannot find any property of the obligor. But
there is a rumor that Pong owes the obligor a sum of money. Upon
examination, Pong denies indebtedness. But the obligee believes
that he has evidence that Pong owes the obligor money. In this
case, the obligee can ask the court that he be allowed to file a
collection case against Pong on behalf of the obligor.
Q: Can the obligee be considered as a real party in interest in this
case?
A: YES. The obligee is now considered as a representative party.
Section 43 is an example of the phrase, “or a party authorized by
law or these Rules…” under Rule 3, Section 3:
Sec. 3. Representatives as parties. x x x x x A representative may
be a trustee of an express trust, a guardian, an executor or
administrator, or a party authorized by law or these Rules. x x x x
xx
SATISFACTION OF JUDGMENT
Sec. 44. Entry of satisfaction of judgment by clerk of court.
Satisfaction of a judgment shall be entered by the clerk of court in
the court docket, and in the execution book, upon the return of a
writ of execution showing the full satisfaction of the judgment, or
upon the filing of an admission to the satisfaction of the judgment
executed and acknowledged in the same manner as a conveyance
of real property by the judgment obligee or by his counsel unless
a revocation of his authority is filed, or upon the endorsement of
such admission by the judgment obligee or his counsel on the face
of the record of the judgment. (46a)
Sec. 45. Entry of satisfaction with or without admission. Whenever
a judgment is satisfied in fact, or otherwise than upon an
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execution, on demand of the judgment obligor, the judgment
obligee or his counsel must execute and acknowledge, or indorse,
an admission of the satisfaction as provided in the last preceding
section, and after notice and upon motion the court may order
either the judgment obligee or his counsel to do so, or may order
the entry of satisfaction to be made without such admission.
(47a)
Q: What does satisfaction of judgement mean?
A: SATISFACTION OF JUDGMENT is the compliance with or
fulfillment of the mandate thereof (31 Am. Jur. 354).
Execution is not the same as satisfaction. Execution is the method
of enforcement of a judgment. Satisfaction refers to compliance
with or fulfillment of the mandate of judgment. Normally,
execution precedes satisfaction. But you can satisfy a judgment
without execution by simply paying voluntarily. And when the
judgment is satisfied, it has to be recorded the manner of which is
found in Sections 44 and 45 – either the sheriff himself will record
“fully satisfied,” or, the creditor will file an admission that the
judgment is fully satisfied, or, the debtor on motion will ask that it
be recorded that he has already paid.
Q: Who may compel satisfaction of judgment?
A: Satisfaction of judgment may be compelled by the judgment-
creditor by means of execution, or by the judgment-debtor by
means of voluntary payment. (Salvante vs. Ubi Cruz, 88 Phil. 236)
Now, here is an interesting question which has not yet been asked
in the Bar. They were expecting it as early as 2 years ago.
Q: Can a plaintiff appeal from the judgment and at the same time
move for execution of the same? Can you do both without being
self-contradictory? Can you demand satisfaction of judgment and
at the same time appeal said judgment?
A: PRIOR CASES say, you cannot do it because it is inconsistent.
When you comply with the satisfaction of judgment, you are
already accepting the correctness of judgment. But when you are
appealing it, you do not accept the same. That was the old ruling
which was MODIFIED in the case of
VITAL-GOSON vs. COURT OF APPEALS
212 SCRA 235 [1992] (en banc)
ISSUE: Whether or not a judgment creditor is estopped from
appealing or seeking modification of a judgment which has been
executed at his instance.
HELD: It depends upon the nature of the judgment as being
indivisible or not. This is the doctrine laid down by this Court in a
case decided as early as 1925, Verches v. Rios, where the judgment
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is INDIVISIBLE, acceptance of full satisfaction of the judgment
annihilates the right to further prosecute the appeal; and that even
partial execution by compulsory legal process at the instance of the
prevailing party, places said party in estoppel to ask that the
judgment be amended.” Indivisible means either you accept it as
correct or you appeal. But you can not have your cake and eat it
too.
“Where the judgment is DIVISIBLE, estoppel should not operate
against the judgment creditor who causes implementation of a part
of the decision by writ of execution. This is the clear import of
Verches .and the precedents therein invoked. The principle is fully
consistent not only with the opinion that acceptance of payment of
only the uncontroverted part of the claim should not preclude the
plaintiff from prosecuting his appeal, to determine whether he
should not have been allowed more, but also with logic and
common sense.” In other words, if a judgment is divisible, there is
no prohibition.
EXAMPLE of DIVISIBLE JUDGMENT: A judgment adjudicating 2 or
more causes of action – I am satisfied with one cause but I am not
with the other. So, my appeal is only on the 2nd cause of action
where the award should be higher. I am not appealing in the first
cause of action and the defendant did not also appeal. So I can
move to execute that portion of judgment, as far as the first cause
of action is concerned and continue with my appeal on the second.
This is a divisible judgment. This is allowed.
PROBLEM: Plaintiff sues for P1 million damages. The court gave an
award of P500,000 only (one-half the damages sued for).
Defendant did not appeal because he is satisfied with the
judgement. Meaning, he accepts the liability of up to P500,000,
“Judgment is good.” Plaintiff, however, is not satisfied, “It should
be P1 million, so I will appeal.” He believes that even if he loses the
appeal, he is insured as to the P500,000.
Q: Can plaintiff move for the satisfaction of P500,000 and let the
other half continue on appeal?
A: YES, I think so. Anyway, there is no quarrel with respect to the
first half. To my mind, this is a DIVISIBLE judgment since defendant
accepts it and even if plaintiff loses appeal, the former is still liable
up to P500,000. So the plaintiff might as well claim it now for it is
final insofar as the defendant is concerned while plaintiff’s appeal
is with respect to the balance. This is a possibility under the ruling
in VITAL-GOSON.
Sec. 46. When principal bound by judgment against surety. When a
judgment is rendered against a party who stands as surety for
another, the latter is also bound from the time that he has notice
of the action or proceeding, and an opportunity at the surety's
request to join in the defense. (48a)
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When there is a judgment against the surety, the principal debtor is
also bound by the judgment from the time he has notice of the
action or proceeding and an opportunity at the surety’s request to
join in the defense. The surety is only liable legally but the real
party liable is the debtor.
RES ADJUDICATA
And finally, the most important section in Rule 39 is Section 47 –
effect of judgment or final order. This is what we call the principle
of res adjudicata.
Sec. 47. Effect of judgments or final orders. The effect of a
judgment or final order rendered by a court of the Philippines,
having jurisdiction to pronounce the judgment or final order, may
be as follows:
(a) In case of a judgment or final order against a specific thing, or
in respect to the probate of a will, or the administration of the
estate of a deceased person, or in respect to the personal,
political, or legal condition or status of a particular person or his
relationship to another, the judgment or final order is conclusive
upon the title to the thing, the will or administration, or the
condition, status or relationship of the person; however, the
probate of a will or granting of letters of administration shall only
be prima facie evidence of the death of the testator or intestate;
(b) In other cases, the judgment or final order is, with respect to
the matter directly adjudged or as to any other matter that could
have been raised in relation thereto, conclusive between the
parties and their successors in interest by title subsequent to the
commencement of the action or special proceeding, litigating for
the same thing and under the same title and in the same capacity;
and
(c) In any other litigation between the same parties or their
successors in interest, that only is deemed to have been adjudged
in a former judgment or final order which appears upon its face to
have been so adjudged, or which was actually and necessarily
included therein or necessary thereto. (49a)
We know what this is all about – when the matter is already
decided or finish already, you cannot re-open that easily. The direct
provision of law which enunciates that principle is Section 47,
which is composed of 3 portions: paragraphs [a], [b] and [c].
Now, paragraph [a] is the principle of res adjudicata as applied in
judgment in rem (binding on the whole world) or at least quasi in
rem. Paragraphs [b] and [c] are the application of the same
doctrine with respect to judgment in personam (binding only on
the parties).
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RES ADJUDICATA and RES JUDICATA are the same. In the
Philippines, that is influenced by Roman Law and Spanish Law (Pua
vs. Lapitan, 57 O.G. 4914) But the principle is known worldwide,
although maybe known by another name. In Anglo-American law, it
is known as the doctrine of Estoppel By Judgment (Fajardo vs.
Bayona, 98 Phil. 659). But it is the same. The concept is similar.
That is why in the 1994 case of
SALUD vs. COURT OF APPEALS
236 SCRA 384 [1994]
HELD: “The rules of res judicata are of common law origin and they
initially evolved from court decisions. It is now considered a
principle of universal jurisprudence forming a part of the legal
system of all civilized nations.”
Q: What is the FOUNDATION PRINCIPLE upon which the doctrine of
res judicata rests?
A: It rests from the principle that parties ought not to be
permitted to litigate the same issue more than once; that when a
right or fact has been judicially tried and determined by a court of
competent jurisdiction, or where an opportunity for such trial had
been given, the judgment of the court shall be conclusive upon
the parties and those in privity with them. Otherwise, without this
doctrine, litigation would become interminable, rights of parties
would be involved in endless confusion, courts would be stripped
of their most efficient powers, and the most important function of
government, that of ascertaining and enforcing rights, would go
unfulfilled. (Zambales Academy vs. Villanueva, L-19884, May 8,
1969; People vs. Macadaeg, 91 Phil. 410; Oberiano vs.
Sobremesana, L-4622, May 30, 1952; Peñalosa vs. Tuazon, 22 Phil.
303)
I think we agree with that. Imagine, if two persons litigated for
years over the ownership of a parcel of land. Then after years of
litigation, all the way to the SC, defendant won. Final. After one
generation, both plaintiff and defendant are dead but their children
would continue. Here comes the children of the plaintiff raising the
same issue of ownership. So, there is no end if there is no res
judicata.
REQUISITES OF RES ADJUDICATA
What are the requisites of res adjudicata? How do we know, since
there are 2 cases here? Does it mean that simply because there is a
case between us, there will be no more case between us in the
future? NO.
Q: So what are the requisites of res adjudicata?
A: There is res judicata if the following REQUISITES are present:
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1.) The judgment or order invoked as res adjudicata must be
final;
2.) The court rendering the same must have jurisdiction
over the subject matter and of the parties;
3.) The judgment or order must be upon the merits; and
4.) There must be, between the two cases, identity of
parties, identity of subject matter, and identity of cause
of action.
So the elements are similar with litis pendentia. Actually, they are
based on the same rule – splitting of the cause of action. The only
difference is, in litis pendentia, the first action is still pending. In
res adjudicata, the first action has already been decided and the
decision has already become final.
First Requisite: JUDGMENT OF ORDER INVOKED MUST BE FINAL
When it says ‘final’, the previous judgment has been final and
executory (Hubahib vs. Insular Drug, 64 Phil. 119) Meaning, it can
no longer be changed. This is because there is such a thing as final
and appealable. A final and executory judgment is already beyond
the power of the court to alter while a final and appealable
judgment is still subject to modification by the appellate court.
(Macapinlac vs. CA, 86 Phil. 359)
So where there is a judgment now that you received, and before it
becomes executory, you filed another case, it is not res judicata. It
is litis pendentia because the first case is still pending.
EXAMPLE: Jessa files a case against Charles. Charles lost and then
appealed. While his appeal is pending, Jessa filed the same case
against Charles. Charles filed a motion to dismiss the second case.
The ground for the motion to dismiss should be Litis Pendentia
because while there is already a decision, the same is not yet final
and executory. It is still on appeal. In such case, it is improper to
invoke the principle of res adjudicata because the first element is
missing.
Q: Now, when did the first judgment become final? Is it before the
second case is filed? Or is it after the second case filed?
A: Either one. It could have been final before the filing of
the second action or after, provided when the defendant invoked
it, the first judgment is already final. (Galiancia vs. CA, 173 SCRA
42)
Second Requisite: THE COURT RENDERING THE SAME MUST HAVE
JURISDICTION OVER THE SUBJECT MATTER AND OF THE PARTIES
Meaning, the first judgment is valid because if the court never
acquired jurisdiction over the subject matter and the parties and
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rendered judgment, the judgment is void and cannot be invoked as
res judicata. (Banco Español-Filipino vs. Palanca, 37 Phil. 921)
Q: May a voidable judgment be invoked as res adjudicata?
A: YES because such kind of judgment is binding upon the parties
until annulled. (Reyes vs. Barretto-Datu, 94 Phil. 446)
Now, the classic example of the second element is the case which I
mentioned to you when we were in Rule 17 – the case of
REPUBLIC PLANTERS BANK (RBP) vs. MOLINA
166 SCRA 39 [1988]
FACTS: The RPB filed a case against the defendant for a sum of
money. Defendant cannot be summoned because his whereabouts
is now unknown. Several attempts made by the plaintiff to look for
him failed. After a while the court dismissed the complaint for
RBP’s failure to prosecute. And the order of dismissal was silent.
So, following Section 3 of Rule 17, the dismissal is with prejudice –
“it shall have the effect of an adjudication upon the merits, unless
the order provides otherwise.”
Then later on, the plaintiff (RPB) discovered the whereabouts of
the defendant. The RPB re-filed the compliant. Defendant moved
to dismiss because when the first complaint was dismissed and the
order of dismissal was silent then the dismissal has the effect of an
adjudication on the merits.
HELD: Since We are talking of res adjudicata, let us correlate it with
the elements of res adjudicata under Rule 39.
One of the elements of res adjudicata is: When the case is
terminated, the court has jurisdiction over the case both as to the
person and the subject matter;
In the case of RPB, the court never acquired jurisdiction over the
person of the defendant because he was never served with
summons. Therefore, such dismissal did not have the effect of res
adjudicata. The second element of res judicata is missing.
Third Requisite: THE JUDGMENT OR ORDER MUST BE UPON THE
MERITS
What do we mean by this? A judgment on the merits for the
purpose of res judicata is one finally settling the issues raised in the
pleadings (Manila Electric Co. vs. Artiaga, 50 Phil. 144). Normally, it
is after trial when there is presentation of evidence.
Therefore, when a complaint is dismissed for lack of jurisdiction or
improper venue, even if said dismissal becomes final, the plaintiff
can re-file the case because the dismissal upon improper venue or
lack of jurisdiction is not upon the merits. It never dealt with the
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correctness or validity of the cause of action. There should be trial,
generally.
So, GENERALLY, a dismissal without a trial is not an adjudication
upon the merits EXCEPT in Rule 17, Section 3 where the case was
dismissed for failure of the plaintiff to appear during the
presentation of his evidence in chief, or to prosecute his action for
an unreasonable, period of time, or failed to comply with the rules
or order of the court. There is no trial there but according to Rule
17, Section 3, the dismissal shall have the effect of an adjudication
upon the merits. This is the exception even if there was no trial in
the first case.
Fourth Requisite: THERE MUST BE, BETWEEN THE TWO CASES,
IDENTITY OF PARTIES, IDENTITY OF SUBJECT MATTER, AND
IDENTITY OF CAUSE OF ACTION
I. IDENTITY OF PARTIES
Q: When is there identity of parties for the purpose of res judicata?
A: There is identity of parties for the purpose of res judicata:
1.) When the parties in the second action are the same as
the parties in the first action; or
2.) When the parties in the second action are successors- in-
interest of the parties in the first action, such as heirs or
purchasers who acquired title after the commencement
of the first action.
EXAMPLE: The example I gave you, the quarrel between parents,
then the children did the same. That is the same parties. The
children are the successors-in-interest of the original parties,
although literally they are not the same parties.
One good illustration of res adjudicata on identity of parties as
applied in a labor case was the case of
DELFIN vs. INCIONG
192 SCRA 151 [1990]
NOTE: The doctrine of res adjudicata applies not only to the
decisions of regular courts but can be invoked even in
administrative cases. It also applies to decisions of administrative
bodies.
FACTS: In the case of DELFIN, a union filed a case of unfair labor
practice (ULP) against the employer. Then later on, the case was
dismissed by the NLRC. When the case was dismissed, the
employees filed another case based on the same ULP. The
employer invoked res adjudicata and the complainants said, “No, it
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is not the same parties. In the first case, it was the union. Now it is
us (employees).”
HELD: NO! When the union filed the first case, it was filing in behalf
of the employees. This is what you call representative party. In
effect, it is the same party.
“While it is true that the complainants in the first charge was the
union, in reality it had no material interest in the outcome of the
case. The real party who stands to be benefited or defeated by a
case brought in the name of the union are the union members
themselves. Since the judgment therein had become final and
executory, the subsequent filing of another ULP charge against the
employer for the same violations committed during its existence, is
barred by res judicata.”
“The bringing of the same action in the name of the individual
members of the union will not take out the case from the ambit of
the principle of res judicata.” So, it is still the same parties.
II. IDENTITY OF SUBJECT MATTER
Q: When is there identity of subject matter?
A: There is identity of subject matter if in the second case, the
same thing is involved or included in the first case. (Agregado vs.
Muñoz, 26 Phil. 546)
EXAMPLE: A judgment in an action for the recovery of a large tract
of land shall be a bar for a subsequent action for the recovery of a
smaller parcel included in the large tract. (Rubiso vs. Rivera, 41 Phil.
39)
EXAMPLE: A judgment in an action for accounting of a certain funds
would be a bar for a subsequent action for the partition of the
same funds. (Chua Tan vs. Del Rosario, 57 Phil. 411)
EXAMPLE: A case for recovery of property was dismissed. The
losing party filed a second case for recovery of the value of the
property. In this case, there is res adjudicata. So, you can not
deviate ‘no? Kahit konting retoke lang, it is the same.
III. IDENTITY OF CAUSES OF ACTION
Q: When is there identity of causes of action for the purpose of res
judicata?
A: There is identity of causes of action for the purpose of res
judicata when the two actions are based on the same delict or
wrong committed by the defendant, even if the remedies be
different (Qiogue vs. Bautista, L-13159, Feb. 2, 1962). You cannot
change the remedy in order to escape from the principle of res
adjudicata.
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Sometimes, it is one of the hardest – same cause of action –
because sometimes there are 2 causes of action which are
interrelated, even between the same parties. Now, if there are 2
interrelated causes of action, there is no res adjudicata.
Interrelated only, because the law says similar causes of action.
That is hard to determine.
That is why the SC had to give some tests to determine whether
the causes of action are the same or not. Among these tests given
by the Court:
TESTS TO DETERMINE WHETHER OR NOT THE CAUSES OF ACTION
ARE THE SAME:
1) SAME EVIDENCE Test as laid down in the case of
AQUILA ESTATE vs. BACOLOD-MURCIA MILLING CO.
144 SCRA 482
HELD: Res adjudicata cannot be applied even though in the 2 cases
there is identity of parties, subject matter, and relief prayed for, if
the evidence adduced to sustain the cause of action in the first case
is not sufficient to sustain the second case.
So, the evidence was sufficient to prove the first case while the
same evidence is not sufficient to prove the second case.
Therefore, it must be different cause of action for how come the
same evidence will not suffice anymore. So, it must be a different
one.
2. INCONSISTENCY Test given in the case of
VALENCIA vs. RTC
184 SCRA 80
HELD: One test of the identity of cause of action is whether or not
the judgment sought in the subsequent case will be inconsistent
with the prior judgment. Meaning, you are asking for a decision
which is in conflict with the original decision.
Q: Suppose there is an inconsistency, is this a sign of res adjudicata
or no res judicata?
A: Well, I think if there is an inconsistency, that is a sign of res
adjudicata because you are trying to change what has already been
rendered. To my mind, that is how it should be interpreted because
if the judgment I am seeking is inconsistent with what has been
decided, then I think that is violating the rule of res adjudicata – I
am re-opening something which was already decided.
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3.) And the test in the 1995 case of
GUEVARRA vs. BENITO
247 SCRA 570
HELD: The causes of action cannot be the same if the cause of
action in one case only arose after the judgment in the other. The
principle of res judicata extends only to the facts and conditions as
they existed at the time the judgment was rendered.
Those are the important principles to remember (read the cases in
short).
RARE INSTANCES WHERE SC REFUSES TO ALLOW RES JUDICATA
DESPITE ITS EXISTENCE
There are some rare cases where despite the elements of res
adjudicata, the courts refused to allow it.
This is what we call EQUITY CASES. But this is very rare. When there
is a higher principle to be observed rather than the rule of res
adjudicata – there are higher values of society which would be
subverted if we will stick to res adjudicata. A good example is the
case of
SUAREZ vs. COURT OF APPEALS
193 SCRA 183 [1991]
FACTS: This involves a custody case. A certain Rosemarie Manese
filed a petition for habeas corpus for the recovery of her minor
child from her former live-in partner or common-law husband,
Renato Suarez. Later, Manese filed a motion to dismiss the habeas
corpus case for she intended to pursue another remedy – custody
of minor under Rule 99 of the Rules of Court in Special Proceedings.
Actually, as observed by the SC, her move was wrong because you
can obtain custody of your child through habeas corpus. She
though she had the wrong remedy, so she changed it. Actually she
was correct. The trouble is, she withdrew it. In the trial for the
dismissal of the habeas corpus, it was with prejudice so actually, it
is on the merits ‘no?
Thereafter, she filed the custody case against Suarez. The latter
moved to dismiss on the ground of res adjudicata. All the evidence
are admitted there. There was a decision on the merits.
HELD: “The principle of res judicata should be disregarded if its
application would involve the sacrifice of justice to technicality.” In
other words, this is what we call EQUITY.
The application of the res adjudicata should be taken on a case to
case basis; you cannot say you apply res adjudicata through and
through. It must be taken under the particular facts obtained.
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Meaning, there are certain facts in that case which will warrant a
deviation from the usual rule, to do “otherwise would amount to
denial of justice and/or bar to a vindication of a legitimate
grievance.”
“It is worth stating here that the controversy in the instant case is
not just an ordinary suit between parties over a trivial matter but a
litigation initiated by the natural mother over the welfare and
custody of her child, in which the State has a paramount interest.”
This is not a simple collection case.
“The fundamental policy of the State as embodied in the
Constitution in promoting and protecting the welfare of children
shall not be disregarded by the courts by mere technicality in
resolving disputes which involve the family and the youth.”
So there is a collision here between the family view found in the
Constitution and the technical principle of res adjudicata. If we
sustain the principle of res adjudicata then the mother can no
longer recover her child. But if we disregard res judicata, the
mother will be given a chance to get back her child, which is higher
in value than res judicata.
This principle observed in SUAREZ was actually repeated in the
1994 case of
SALUD vs. COURT OF APPEALS
233 SCRA 284 [1994]
HELD: “There should not be a mechanical and uncaring reliance on
res judicata where more important societal values deserve
protection. The doctrine of res adjudicata is a rule of justice which
cannot be rigidly applied when it results to injustice.”
This is another pronouncement which leans on the equitable side
of the situation rather than on the observance of the technical
rules of res adjudicata. You can disagree with the decision but the
same cannot be wrong. This is what you call infallible. Infallible
means no room for error. That is why Justice Jackson said
commenting on the US SC: “We are not final because we are
infallible. But we are infallible because we are final.”
BAR BY A FORMER JUDGMENT vs. CONCLUSIVENESS OF
JUDGMENT
Distinguish the concept of BAR BY A FORMER JUDGMENT and the
concept of CONCLUSIVENESS OF JUDGMENT.
The two concepts are found in Section 47. The concept of bar by a
former judgment is in paragraph [b] and conclusiveness of
judgment is in paragraph [c]. These are two parts of the res
adjudicata rule.
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The two concepts were discussed by the SC in the case of SALUD:
The concept of Bar By A Former Judgment is known in traditional
terminology as merger or bar; and in modern terminology, it is
called CLAIM PRECLUSION; while Conclusiveness Of Judgment is
traditionally known as collateral estoppel and in modern
terminology it is called ISSUE PRECLUSION.
Q: Distinguish BAR BY A FORMER JUDGMENT and CONCLUSIVENESS
OF JUDGMENT.
A: The following are the distinctions:
1.) As to Effect: If you analyze paragraph [b], there are two
judgments – in BAR BY A FORMER JUDGMENT, the first
judgment constitutes an absolute bar to all matters
directly adjudged as well as matters that might have
been adjudged; whereas
In CONCLUSIVENESS OF JUDGMENT, the first judgment is
conclusive only on matters actually litigated and adjudged in the
first action under paragraph [c].
2.) As to the Requisites: In BAR BY A FORMER JUDGMENT,
there must be identity of parties, subject matter, and
cause of action; but
In CONCLUSIVENESS OF JUDGMENT, even if there is identity of
parties or subject matter, it is not necessary that there is identity of
causes of action.
EXAMPLE of Bar by a Former Judgment: Compulsory counterclaim. I
filed a case against you for recovery of land. You have a
counterclaim for reimbursement for necessary expenses. It must be
set-up in the main action otherwise it is barred forever. But you did
not set it up and then afterwards, you file a case against me for
reimbursement for necessary expenses, I will move to dismiss. Your
claim is already barred because you should have raised it as a
compulsory counterclaim in the first action. The barring of the
counterclaim is considered as the application of res adjudicata by
applying the concept of bar by a former judgment.
EXAMPLE of Conclusiveness of Judgment: The debtor borrows from
the creditor P3 million payable in 3 installments without any
acceleration clause. When the first installment fell due the creditor
sued the debtor and the debtor raised the defense of forgery,
“That the promissory note is forged and as an alternative defense
assuming that the promissory note is valid, the first installment was
already extinguished by payment.” After trial, the court decided
against the defendant. Now, the second installment fell due. It is
another cause of action. Now, here comes the plaintiff filing the
case to collect the second installment.
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Q: Can the debtor raise again, in the second case, the defense of
FORGERY of the promissory note?
A: NO. We have already decided that the promissory note was
genuine and that there was no forgery. This is the same promissory
note that we are talking about. So, in other words, the issue of
forgery is already adjudged in the first case and therefore res
adjudicata in the second installment. There is a bar against raising
that issue again.
Q: Can the debtor raise the defense of PAYMENT, that the second
installment is already paid or is it also barred?
A: YES, because in the first case what was resolved was whether
the first installment is paid. The judgment is already conclusive on
matters directly adjudged but not to matters which have not been
adjudged. The issue on whether the second or third installment has
already been paid was never adjudged in the first case. That is the
application. Take note that there is no identity of causes of action.
Another example of Conclusiveness of Judgment was the ruling in
the case
CARANDANG vs. VENTURANZA
133 SCRA 344 [1984]
FACTS: This involves a conflict between two brothers, B1 and B2.
There is already bad blood between them because according to B1,
B2 appropriated all the properties of their parents. So there was
this threat from B1 to sue B2 to recover his share.
So B2 consulted his friend X. X suggested that B2 enter into a
simulated sale with X. B2 sold his property to X. As expected, B1
filed a case against both of them to annul or rescind the action.
Unfortunately, B1 has never proved that the sale was simulated.
The case was dismissed.
Then later B1 died. After that, B2 that X return the properties
subject to the simulated sale but the latter refused. B2 filed a case
against X. The defense of X is res adjudicata.
HELD: There is NO res adjudicata. In the first place, one of the
elements of res adjudicata is identity of parties. Of course, both of
them are also parties of the first case but they were not adverse to
each other. They were co-defendants in the first case.
Res adjudicata is only applicable between adverse parties in the
former suit and not between co-parties. Co-parties for the
judgment therein ordinarily settle claims as to their relative rights
and liabilities as co-plaintiffs or co-defendants per se.
But the second reason is, the cause of action is completely different
and therefore the judgment in the first case is conclusive only
insofar as the right of B1 is concerned. It cannot be conclusive as
to the rights of B2 and X because it is a separate cause of action.
Another was the 1993 case of
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VDA FISH BROKER vs. NLRC
228 SCRA 681 [1993]
FACTS: A complaint filed by an employee for non-payment of
service incentive leave, COLA, 13th month pay, holiday pay, is
dismissed based on the finding that no employer-employee
relationship existed between the complainant and the respondent.
The ruling became final.
Subsequently, the same complainants filed another case against
the same respondent for reinstatement due to illegal dismissal.
(How can you file for reinstatement when there is no ER-EE
relationship in the first case?)
ISSUE: Is the finding of no ER-EE relationship in the first case res
adjudicata to the second case for illegal termination?
HELD: YES. “The issue of employer-employee relationship is crucial
in the determination of the rights of the parties in both cases. Res
adjudicata applies even when the cause of action is not similar
under the concept of conclusiveness of judgment. The ruling in the
first case that there is no Employer-Employee relationship between
the parties is conclusive in subsequent cases although the cause of
action is not the same.”
“If were we to ignore the principle of res judicata, an absurd
situation would arise where the same administrative agency would
have diametrically opposed conclusions based on apparently
similar circumstances.” This is the conflicting situation that will
happen: In the second case, there is a finding that ER-EE
relationship when that very same agency rule in the first case that
there is none.
OTHER PRINCIPLES IN LAW WHICH MAY BE CONFUSED WITH RES
JUDICATA:
A.) LAW OF THE CASE
B.) STARE DECISIS
Another question that can be asked here is, how to explain and
distinguish 3 concepts which appear to be similar. These 3 concepts
are all anchored on the same thing: there is a final judgement. The
concept of res adjudicata, law of the case and stare decisis. That
was also asked in the bar.
We already know RES ADJUDICATA – finality of judgment, or the
issues decided in a case, once the decision has become final and
executory and cannot be litigated again by the same parties in a
subsequent action involving the same subject matter. (Peñalosa vs.
Tuazon, supra.)
Q: What about the LAW OF THE CASE?
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A: LAW OF THE CASE means that legal conclusions announced on a
first appeal, whether on the general law of the law as applied to
the concrete facts, not only prescribe the duty and limit the power
of the trial court to strict obedience and conformity thereto, but
they become and remain the law of the case in all after steps,
whether in the lower court or in the appellate court on a
subsequent appeal. (Zarate vs. Dir. of Lands, 39 Phil. 747)
EXAMPLE of law of the case: There is a case between us and then
an issue is raised before the CA and there is a ruling, right or wrong.
That ruling will subsequently bind the parties in the same litigation.
Once the case comes back, the future now of the case will be
governed by that ruling. Right or wrong, that principle will now be
the controlling principle affecting the parties. The principle will
continue until the case is terminated.
TABACO vs. COURT OF APPEALS
239 SCRA 485 [1994]
ISSUE: Can a case be re-opened if the law of the case has been
changed?
HELD: NO, because when the case was decided, it was the
governing law at the time, even if it turns out to be wrong.
“Under the law of the case concept, whatever is once irrevocably
established as the controlling legal principle or decision continues
to be the law of the case between the same parties in the same
case, whether correct or not, so long as the facts on which such
decision was predicated continue to be the facts of the case before
the court. Such stability and conclusiveness given to final
judgments of courts of competent jurisdiction are said to be
grounded on reasons of public policy, judicial orderliness and
economy as well as protection of the time and interests of the
litigants.”
A good EXAMPLE: File ako ng kaso – collection of an unpaid loan
based on the provision of the Civil Code but the debtor said, “There
is no cause of action because the provision of the civil code is
unconstitutional.” After trial the court said, “Yes, article so-so of the
Civil Code is unconstitutional. The debtor is not obliged to pay.”
Tapos na. Final na ang decision because there was no appeal. What
will happen? We are bound. As far as this case is concerned, the
Civil Code is unconstitutional. That is the law of the case.
KILOSBAYAN vs. MORATO
246 SCRA 540 [1995]
HELD: The doctrine of the law of the case applies whenever the
case before the court came for the second time after a ruling of the
appellate court (???).
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Q: What you mean by STARE DECISIS?
A: Stare Decisis means that the decision of a court should stand as
precedents for future guidance (Ballentine’s Law Dict., 2nd Ed.,
1228) Example is the decisions of the SC which stands as
precedents for future cases. The purpose of this is to attain stability
and judicial order. That is why we are citing precedents.
ROSALES vs. COURT OF FIRST INSTANCE
154 SCRA 153 [1987]
HELD: “Precedents are helpful in deciding cases when they are
substantially identical with previous litigations. Argumentum a
simili valet in lege. Earlier decisions are guideposts that can lead us
in the right direction as we tread the 'highways and byways of the
law in the search for truth and justice. These pronouncements
represent the wisdom of the past. They are the voice of vanished
judges talking to the future. Except where there is a need to
reverse them because of an emergent viewpoint or an altered
situation, they urge us strongly that, indeed, the trodden path is
best.”
‘Trodden Path’ – example is when you go on hiking like in Mt. Apo.
If there is already a path or trail, you will not have a hard time
looking for your way up to the peak of Mt. Apo. There is already a
way which will guide you to reach your destination.
But the doctrine of stare decisis admittedly does not mean that
courts should be slave forever to precedents. A doctrine long
standing has also been reversed. The SC explained also why once in
a while it abandons the doctrine of stare decisis:
PEOPLE vs. MUÑOZ
170 SCRA 107 [1989]
HELD: “If we have seen fit to take a second look at the doctrine on
which we were all agreed before, it is not because of a change in
the composition of this body. It is virtually the same Court that is
changing its mind after reflecting on the question again in the light
of new perspectives. The decisions of this Court are not petrified
rules grown rigid once pronounced but vital, growing things subject
to change as all life is. While we are told that the trodden path is
best, this should not prevent us from opening a fresh trial or
exploring the other side or testing a new idea in a spirit of
continuing inquiry.”
Q: Distinguish Res Adjudicata and Stare Decisis.
A: RES ADJUDICATA operates between two actions involving the
same parties and the same cause(of action); while STARE DECISIS
refers to cases with different parties.
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STARE DECISIS refers only to decisions of the SC (decisions of the
CA are not a basis of stare decisis); while the doctrine of RES
ADJUDICATA refers to all courts: SC, CA, RTC and MTC.
Q: Distinguish Law Of The Case and Stare Decisis.
A: LAW OF THE CASE refers only to one case which may or may not
be invoked in subsequent cases, while STARE DECISIS may refer to
various cases which are usually invoked in subsequent cases.
Sec. 48. Effect of foreign judgments or final orders. - The effect of a
judgment or final order of a tribunal of a foreign country, having
jurisdiction to render the judgment or final order is as follows:
(a) In case of a judgment or final order upon a specific
thing, the judgment or final order is conclusive upon the title to
the thing; and
(b) In case of a judgment or final order against a person,
the judgment or final order is presumptive evidence of a right as
between the parties and their successors in interest by a
subsequent title.
In either case, the judgment or final order may be repelled by
evidence of a want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact. (50a)
Sec. 48 is actually a law on conflict of laws - effect of foreign
judgment. If a judgment is rendered in U.S. and is being invoked in
the Philippines, should we honor it? Yes. So, is it conclusive? Yes.
The law says, in case of judgment upon a specific thing, the
judgment or final order is conclusive effectively.
PROBLEM: Mortverine and Mistiqla were both in the U.S. and they
quarreled about the ownership of a ring. They went to an American
court. After trial, the court ruled that Mortverine is the legitimate
owner of the ring. The judgment became final. Subsequently both
of them came to the Philippines and Mistiqla filed a case against
Mortverine to recover the same ring. Sabi ni Mortverine, “Res
adjudicata na ito eh, tapos na yan. Here is the decision in America.
Therefore it is settled.”
Q: Is A correct?
A: YES. Under paragraph [a]. In case of a foreign judgment upon a
SPECIFIC THING, the judgment is conclusive upon the parties. Hindi
puwedeng buksan. That’s already litigated abroad, merong nang
decision. We will respect it.
Suppose the judgment is against a person. The law says it is
presumptive evidence of a right as between the parties.
EXAMPLE: A and B were both Americans. They were married in the
U.S. and obtained a divorce in the states. They came to the
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Philippines. The issue is whether the marriage was validly
terminated. According to one party, “Yes, meron man tayong
divorce ba.” Is the decree of divorce abroad involving these
American couple allowed in the Philippines considering we have no
divorce here? That is their law. It is presumptive evidence of a right
of the parties.
EXAMPLE: H and W are Philippine citizens. They went abroad and
somehow able to get a divorce in an American court which became
final. They came back here. Will the Philippine court honor the
divorce? Here, the judgment may be repelled by want of
jurisdiction of the American court, etc. The judgment is presumed
to be valid unless you can attack by showing lack of jurisdiction.
What is the principle in private international law? A judgment of
divorce rendered by an American court between 2 Filipinos is null
and void. Why? The American court never acquired jurisdiction
over the status of the parties (because they are not U.S. citizens).
But judgment in personam is honored here except when there is
want of jurisdiction, want of notice to the party, collusion, fraud, or
clear mistake of law or fact.
Q: How do you enforce a foreign judgment?
A: The usual procedure, you file a case against the same defendant
here and the cause of action is enforcement of a foreign judgment.
And then the Philippine court will render a judgment enforcing it
and then you can execute.
The SC commented on the enforcement of a foreign judgment in
thep Philippines in the case of
PHILSEC vs. COURT OF APPEALS
June 19, 1997
HELD: “While this court has given the effect of res judicata to
foreign judgments in several cases, it was after the parties opposed
to the judgment had been given ample opportunity to repel them
on grounds allowed under the law. It is not necessary for this
purpose to initiate a separate action or proceeding for
enforcement of the foreign judgment. What is essential is that
there is opportunity to challenge the foreign judgment, in order for
the court to properly determine its efficacy. This is because in this
jurisdiction, with respect to actions in personam, as distinguished
from actions in rem, a foreign judgment merely constitutes prima
facie evidence of the justness of the claim of a party and, as such, is
subject to proof to the contrary.”
-oOo-
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APPEALS
Rule 40
APPEAL FROM MUNICIPAL TRIAL COURTS
TO THE REGIONAL TRIAL COURTS
APPEAL. The law on appeal starts from Rule 40 to Rule 56. Usually
the appeal is from the trial court to the next higher court. Under
the judiciary law, appeals from the MTC should be to the RTC which
is governed by Rule 40. And when the case is tried by the RTC and
you want to appeal, normally, the appeal should be to the CA
under Rule 41.
Let us now go to Section 1 of Rule 40:
Section 1. Where to appeal. An appeal from a judgment or final
order of a Municipal Trial Court may be taken to the Regional Trial
Court exercising jurisdiction over the area to which the former
pertains. The title of the case shall remain as it was in the court of
origin, but the party appealing the case shall be further referred
to as the appellant and the adverse party as the appellee. (n)
So from the MTC, the appeal is to the RTC exercising jurisdiction
over the area to which the former pertains. That is why under the
judiciary law, every RTC has a designated territorial area. So, if you
want to appeal from the decision of the MTC of Davao City, you
appeal to the RTC of Davao. You do not make your appeal to the
RTC of Tagum because it does not exercise jurisdiction over Davao
City.
And take note under Section 1, it is now required that when you
appeal from the MTC to the RTC, you should indicate in the caption
of the case who is the APPELLANT and the APPELLEE. This is also
the procedure when you are appealing to the SC.
The appellant is the party appealing the case while the appellee is
the adverse party. So for example, the original title of the case in
the MTC is: “JOBOY, plaintiff vs. BROSIA, defendant.” If Joboy will
appeal the case, the title of the case now in the RTC will be:
“JOBOY, plaintiff-appellant vs. BROSIA, defendant-appellee.” Or, if
Brosia will be the one appealing the case, the title now will be:
“JOBOY, plaintiff-appellee vs. BROSIA, defendant-appellant.”
The period to appeal is in Section 2:
Sec. 2. When to appeal. An appeal may be taken within fifteen
(15) days after notice to the appellant of the judgment or final
order appealed from. Where a record on appeal is required, the
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appellant shall file a notice of appeal and a record on appeal
within thirty (30) days after notice of the judgment or final order.
The period of appeal shall be interrupted by a timely motion for
new trial or reconsideration. No motion for extension of time to
file a motion for new trial or reconsideration shall be allowed. (n)
In relation to certain jurisprudence, the 15-day period cannot be
extended. (Lacsamana vs. IAC, 143 SCRA 643) It cannot be
extended but it can be interrupted by a timely motion for new trial
or reconsideration. And no motion for extension of time to file a
motion for new trial or reconsideration shall be allowed. (Section 2)
Q: How about the 30-day period? Is the 30-day period extendible?
A. YES. It is extendible for record on appeal, on the condition that
the Motion to Extend must be filed within the original 30 days and
provided further that the movant has no right to expect that his
motion will be granted.
So the 15-day period can never be extended but the 30-day period
is extendible based on jurisprudence. This is because a notice of
appeal is normally a one-paragraph document. You can do that in
just 5 minutes. But a record on appeal is makapal. That is why it is
30 days. Sometimes kulangin pa yung 30-day period. So you can
extend it provided you file the motion for extension during the
original 30-day period.
Sec. 3. How to appeal. The appeal is taken by filing a notice of
appeal with the court that rendered the judgment or final order
appealed from. The notice of appeal shall indicate the parties to
the appeal, the judgment or final order or part thereof appealed
from, and state the material dates showing the timeliness of the
appeal.
A record on appeal shall be required only in special proceedings
and in other cases of multiple or separate appeals.
The form and contents of the record on appeal shall be as
provided in section 6, Rule 41.
Copies of the notice of appeal, and the record on appeal where
required, shall be served on the adverse party. (n)
Q: How do you appeal?
A: Under Section 3, you file a Notice of Appeal to the court that
rendered judgment, so MTC. And it “shall indicate the parties to the
appeal, the judgment or final order or part thereof appealed from,
and state the material dates showing the timeliness of the appeal.”
For example:
Notice of Appeal
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Defendant hereby serves notice that he is appealing to the RTC
from the judgment rendered by the MTC dated March 5, 1998 copy
of which was received by him on March 15, 1998.
So it is very simple to make. And you must indicate exactly not only
the date of the decision but also the date when you received it
because the period to appeal does not run from the date of the
decision but from the time you received it. That is why the rule
says, you “must state the material dates showing the timeliness of
the appeal.” (Record on appeal is discussed in Rule 41, Section 6.)
Of course, the adverse party should be furnished with a copy of the
notice of appeal.
Sec. 4. Perfection of appeal; effect thereof. The perfection of the
appeal and the effect thereof shall be governed by the provisions
of section 9, Rule 41.
Q: When is the appeal deemed perfected?
A: See discussion under Section 9, Rule 41. From the moment the
appeal is deemed perfected, the MTC loses jurisdiction over the
case. And by fiction of law, jurisdiction is automatically transferred
to the RTC.
Sec. 5. Appellate court docket and other lawful fees. Within the
period for taking an appeal, the appellant shall pay to the clerk of
the court which rendered the judgment or final order appealed
from the full amount of the appellate court docket and other
lawful fees. Proof of payment thereof shall be transmitted to the
appellate court together with the original record or the record on
appeal, as the case may be. (n)
Within the period to appeal (normally within 15 days), the
appellant must pay the docket fee. So that when the records are
transmitted, bayad na. Even before this rule came out, the
payment of appellate docket fee is really required. The rule is the
same.
Q: Suppose I will file my Notice of Appeal within 15 days but I will
not pay the docket fee, should my appeal be dismissed? Is it an
additional requirement for appeal?
A: In the case of
SANTOS vs. COURT OF APPEALS
253 SCRA 632 [1996]
ISSUE: Will the failure to pay appellate fee automatically cause the
dismissal of the appeal in the MTC to the RTC ?
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HELD: The payment of appellate fee is found in Section 8 of Rule
141. But the SC observed that the only requirement is Notice of
Appeal. There is no mention of appellate fee. The payment of
appellate fee is not a requisite to the perfection of an appeal
although Rule 141 does not specify when said payment shall be
made. It does not automatically result in the dismissal of the appeal
unless it affects the jurisdiction. The dismissal being discretionary
on the part of the appellate court, such dismissal should be
exercised wisely.
This ruling is still applicable. Although Section 5 prescribes that
within the period to take appeal you must pay the docket fee. If
you do not pay it, it may not cause ipso facto the dismissal of your
appeal. But the clerk of court may refuse to transmit the record to
the RTC until you pay. So docket fee is not a requirement to perfect
an appeal although it is an obligation also.
Sec. 6. Duty of the clerk of court. Within fifteen (15) days from the
perfection of the appeal, the clerk of court or the branch clerk of
court of the lower court shall transmit the original record or the
record on appeal, together with the transcripts and exhibits,
which he shall certify as complete, to the proper Regional Trial
Court. A copy of his letter of transmittal of the records to the
appellate court shall be furnished the parties. (n)
What is the requirement to perfect an appeal? It is notice of appeal
only or record on appeal also for special proceedings.
Section 5 of this rule now states that when the party takes an
appeal, it is the obligation of the appellant to pay the appellate
docket fee which is imposed by Rule 141 so that the clerk of the
MTC will elevate the appeal to the MTC.
Sec. 7. Procedure in the Regional Trial Court. (a) upon receipt of
the complete record or the record on appeal, the clerk of court of
the Regional Trial Court shall notify the parties of such fact.
(b) Within fifteen (15) days from such notice, it shall be the duty
of the appellant to submit a memorandum which shall briefly
discuss the errors imputed to the lower court, a copy of which
shall be furnished by him to the adverse party. Within fifteen (15)
days from receipt of the appellant’s memorandum, the appellee
may file his memorandum. Failure of the appellant to file a
memorandum shall be a ground for dismissal of the appeal.
(c) Upon the filing of the memorandum of the appellee, or the
expiration of the period to do so, the case shall be considered
submitted for decision. The Regional Trial Court shall decide the
case on the basis of the entire record of the proceedings had in
the court of origin and such memoranda as are filed. (n)
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What happens if the case reaches the RTC? Section 7 answers it.
The clerk of court shall notify the parties. What is important here is
paragraph [b], a radical provision:
(b) Within fifteen (15) days from such notice, it shall be the duty
of the appellant to submit a memorandum which shall briefly
discuss the errors imputed to the lower court, a copy of which
shall be furnished by him to the adverse party. Within fifteen (15)
days from receipt of the appellant’s memorandum, the appellee
may file his memorandum. Failure of the appellant to file a
memorandum shall be a ground for dismissal of the appeal.
The procedure under the OLD RULES is found on Section 22 of the
Interim Rules. When the case is appealed to the RTC, the case will
be decided by the RTC based on the record on appeal together with
a memorandum as the court may require the parties. In other
words, the court may or may not require the parties to file a
memorandum.
NOW, the present rule says, within 15 days from notice, it is your
obligation to file a memorandum. If the appellant fails to file a
memorandum in the RTC, his appeal will be dismissed. The filing of
an appeal memorandum in the RTC is mandatory because you must
point out to the RTC kung saan nagkamali. You help the RTC judge
look for the error.
Q: Suppose the appellant has filed his memorandum and it is the
appellee who failed to file his memorandum. What is the effect of
such failure?
A: Under paragraph [c], the case shall be submitted for decision
without appellee’s memorandum. And it does not necessarily
mean that the appellee will lose the case by not filing his
memorandum because for all you know the decision of the lower
court is very clear, whether he files a memorandum or not, he will
still wins.
Another radical change is Section 8:
Sec. 8. Appeal from orders dismissing case without trial; lack of
jurisdiction. If an appeal is taken from an order of the lower court
dismissing the case without a trial on the merits, the Regional
Trial Court may affirm or reverse it, as the case may be. In case of
affirmance and the ground of dismissal is lack of jurisdiction over
the subject matter, the Regional Trial Court, if it has jurisdiction
thereover, shall try the case on the merits as if the case was
originally filed with it. In case of reversal, the case shall be
remanded for further proceedings.
If the case was tried on the merits by the lower court without
jurisdiction over the subject matter, the Regional Trial Court on
appeal shall not dismiss the case if it has original jurisdiction
thereof, but shall decide the case in accordance with the
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preceding section, without prejudice to the admission of
amended pleadings and additional evidence in the interest of
justice. (n)
The case was dismissed by the MTC without trial on the merits.
PROBLEM: Tomas filed a case against Ka Noli to collect a loan of
P50,000 before the MTC. But upon motion to dismiss alleging that
MTC has no jurisdiction, the court dismissed the complaint without
trial. That is disposing of the case without trial. Now, RTC said,
“MTC has jurisdiction.”
Q: In that case, what will the RTC do?
A: The RTC will order the MTC to conduct trial.
PROBLEM: Suppose the complaint filed by Tomas against Ka Noli is
for P500,000 before the MTC. It is clear that the MTC has no
jurisdiction. Ka Noli moved to dismiss the case and it was
dismissed. But Tomas appealed to the RTC believing that the
dismissal was wrong. Of course the order of the MTC is correct. It
should have been filed with the RTC.
Q: What will happen now to the case?
A: The RTC will not dismiss the case but instead assumes
jurisdiction. The RTC which has jurisdiction, shall try the case on the
merits as if the case was originally filed in the RTC.
The second paragraph has slight modification:
PROBLEM: Tomas files a case against Ka Noli for P500,000 before
the MTC. Ka Noli file a motion to dismiss on the ground of lack of
jurisdiction. But the motion to dismiss of Ka Noli was denied and
the court tried the case. So, the trial is void. The judgment
rendered is also void. So Ka Noli appealed.
Q: What will happen on appeal from the decision of the MTC which
tried a case even though it has no jurisdiction over it?
A: Since the decision (on the merits) was appealed to the RTC, the
RTC will assumes jurisdiction over the case. The RTC will convert
the appellate jurisdiction into an original jurisdiction instead of
dismissing an appeal. It will treat it as if it has been filed for the first
time in the RTC and not as an appealed case. The purpose here is
to avoid double payment of docket fees.
Sec. 9. Applicability of Rule 41. The other provisions of Rule 41
shall apply to appeals provided for herein insofar as they are not
inconsistent with or may serve to supplement the provisions of
this Rule. (n)
Rule 41 provisions may also be used in appeals from MTC to RTC. It
is more comprehensive. It refers to appeal from RTC to CA on cases
decided by the RTC pursuant to its original jurisdiction. This is also
applicable to Rule 40 insofar as they are not inconsistent.
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Rule 41  A subsequent case similarly held that a party is not

ALLOWED TO QUESTION THE DECISION ON THE MERITS
APPEAL FROM THE REGIONAL TRIAL COURTS AND ALSO INVOKE THE EXTRAORDINARY REMEDY OF
CERTIORARI UNDER Rule 65 and an ordinary appeal
under Rule 41 cannot be allowed since one remedy
Majority of the important rules are found here in Rule 41.
would necessarily cancel out the other (Manacap vs.
Equitable-PCI Bank, 468 SCRA 256).
Section 1. Subject of appeal. An appeal may be taken from a
 An appeal may be taken only from judgments or final
judgment or final order that completely disposes of the case, or of
orders that completely disposes of the case (Sec. 1 R 41).
a particular matter therein when declared by these Rules to be
An interlocutory order is not appealable until after the
appealable.
finality of the judgment on the merits.
No appeal may be taken from:
Appeal or Certiorari
(a) An order denying a motion for new trial or
reconsideration;(this has been deleted already so certiorari
pursuant to the last paragraph hereof is not a remedy but an
SPOUSES DAVID BERGONIA and LUZVIMINDA CASTILLO vs. COURT
appeal from the judgment)
OF APPEALS (4th DIVISION) and AMADO BRAVO, JR.,
(b) An order denying a petition for relief or any similar motion
G.R. No. 189151, January 25, 2012
seeking relief from judgment;
(c) An interlocutory order;
It bears stressing that the extraordinary remedy of certiorari can be
(d) An order disallowing or dismissing an appeal;
availed of only if there is no appeal or any other plain, speedy, and
(e) An order denying a motion to set aside a judgment by consent,
adequate remedy in the ordinary course of law. On the other hand,
confession or compromise on the ground of fraud, mistake or
Section 1, Rule 41 of the Rules of Court states that an appeal may
duress, or any other ground vitiating consent;
be taken from a judgment or final order that completely disposes
(f) An order of execution;
of the case or a particular matter therein.
(g) A judgment or final order for or against one or more of several
parties or in separate claims, counterclaims, cross-claims and
Concomitant to the foregoing, the remedy of a party against an
third-party complaints, while the main case is pending, unless the
adverse disposition of the CA would depend on whether the same
court allows an appeal therefrom; and
is a final order or merely an interlocutory order. If the Order or
(h) An order dismissing an action without prejudice.
Resolution issued by the CA is in the nature of a final order, the
In all the above instances where the judgment or final order is not
remedy of the aggrieved party would be to file a petition for review
appealable, the aggrieved party may file an appropriate special
on certiorari under Rule 45 of the Rules of Court. Otherwise, the
civil action under Rule 65. (n)
appropriate remedy would be to file a petition for certiorari under
Rule 65.
General principles on appeal

In Republic v. Sandiganbayan (Fourth Division),] this Court laid

 The right to appeal is not part of due process but a mere
down the following rules to determine whether a court’s
statutory privilege that has to be exercised only in the
disposition is already a final order or merely an interlocutory order
manner and in accordance with the provisions of
and the respective remedies that may be availed in each case, thus:
law.(Stolt-Nielsen vs. NLRC GR No. 147623, December
13, 2005)
Case law has conveniently demarcated the line between a final
 The right to appeal is not a constitutional right or a
judgment or order and an interlocutory one on the basis of the
natural right (Canton vs. City of Cebu GR No. 152898,
disposition made. A judgment or order is considered final if the
February 12, 2007).
order disposes of the action or proceeding completely, or
 The general rule is that the remedy to obtain reversal or
terminates a particular stage of the same action; in such case, the
modification of judgment on the merits is appeal. This is
remedy available to an aggrieved party is appeal. If the order or
true even if the errors, ascribed to the court rendering
resolution, however, merely resolves incidental matters and leaves
the judgment, is its lack of jurisdiction over the subject
something more to be done to resolve the merits of the case, the
matter, or the exercise of power in excess thereof, or
order is interlocutory and the aggrieved party’s remedy is a petition
grave abude of discretion in the findings of facts or of
for certiorari under Rule 65. Jurisprudence pointedly holds that:
law set out in the decision (Association of Integrated
Security Force of Bislig-ALU vs. CA GR No. 140150 August
22, 2005).

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As distinguished from a final order which disposes of the subject
matter in its entirety or terminates a particular proceeding or
action, leaving nothing else to be done but to enforce by execution
what has been determined by the court, an interlocutory order
does not dispose of a case completely, but leaves something more
to be adjudicated upon. The term “final” judgment or order
signifies a judgment or an order which disposes of the case as to all
the parties, reserving no further questions or directions for future
determination.
On the other hand, a court order is merely interlocutory in
character if it leaves substantial proceedings yet to be had in
connection with the controversy. It does not end the task of the
court in adjudicating the parties’ contentions and determining their
rights and liabilities as against each other. In this sense, it is
basically provisional in its application. (citations omitted)
Reiterating the foregoing in Dimarucot v. People of
the Philippines, this Court stated that:
The right to appeal is not a natural right and is not part of due
process. It is merely a statutory privilege, and may be exercised
only in accordance with the law. The party who seeks to avail of the
same must comply with the requirements of the Rules. Failing to do
so, the right to appeal is lost.
Strict compliance with the Rules of Court is indispensable for the
orderly and speedy disposition of justice. The Rules must be
followed, otherwise, they will become meaningless and useless.
(citations omitted)
Interlocutory and Final orders; distinction.
Ma. Carmina Calderon represented by her Attorney-in-fact,
Marycris V. Baldevia v. Jose Antonio Roxas and Court of
Appeals, G.R. No. 185595. January 9, 2013
This Court has laid down the distinction between interlocutory and
final orders, as follows:
xxx A “final” judgment or order is one that finally disposes of a
case, leaving nothing more to be done by the Court in respect
thereto, e.g., an adjudication on the merits which, on the basis of
the evidence presented at the trial, declares categorically what the
rights and obligations of the parties are and which party is in the
right; or a judgment or order that dismisses an action on the
ground, for instance, of res judicata or prescription. Once rendered,
the task of the court is ended, as far as deciding the controversy or
determining the rights and liabilities of the litigants is concerned.
Nothing more remains to be done by the court except to await the
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parties’ next move (which among others, may consist of the filing
of a motion for new trial or reconsideration, or the taking of an
appeal) and ultimately, of course, to cause the execution of the
judgment once it becomes “final” or, to use the established and
more distinctive term, “final and executory.”
xxx
Conversely, an order that does not finally dispose of the case, and
does not end the Court’s task of adjudicating the parties’
contentions and determining their rights and liabilities as regards
each other, but obviously indicates that other things remain to be
done by the court is “interlocutory” e.g., an order denying a motion
to dismiss under Rule 16 of the Rules, or granting a motion for
extension of time to file a pleading, or authorizing amendment
thereof, or granting or denying applications for postponement, or
production or inspection of documents or things, etc. unlike a
“final” judgment or order, which is appealable.
As above pointed out, an “interlocutory” order may not be
questioned on appeal except only as part of an appeal that may
eventually be taken from the final judgment rendered in the case.
Interlocutory and Final orders; application to provisional
remedies especially to support pendente lite.
Ma. Carmina Calderon represented by her Attorney-in-fact,
Marycris V. Baldevia v. Jose Antonio Roxas and Court of
Appeals, G.R. No. 185595. January 9, 2013
The assailed orders relative to the incident of support pendent
lite and support in arrears, as the term suggests, were issued
pending the rendition of the decision on the main action for
declaration of nullity of marriage and are therefore interlocutory.
They did not finally dispose of the case nor did they consist of a
final adjudication of the merits of petitioner’s claims as to the
ground of psychological incapacity and other incidents as child
custody, support, and conjugal assets.
Interlocutory and Final orders; remedy against interlocutory order
is not appeal.
 Ma. Carmina Calderon represented by her Attorney-in-
fact, Marycris V. Baldevia v. Jose Antonio Roxas and
Court of Appeals, G.R. No. 185595. January 9, 2013
The remedy against an interlocutory order not subject of
an appeal is an appropriate special civil action under
Rule 65 provided that the interlocutory order is rendered
without or in excess of jurisdiction or with grave abuse of
discretion. Having chosen the wrong remedy in
questioning the subject interlocutory orders of the RTC,
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petitioner’s appeal was correctly dismissed by the CA.
Judgments or orders that are not appealable
As found in the enumeration in Sec. 1 Rule 41, they are as follows:
(An order denying a motion for new trial or a motion for
reconsideration; This is no longer part of the enumeration as of
Dec. 27, 2007 per A.M. No. 07-7-12-SC)
 An order denying a petition for relief or any similar
motion seeking relief from judgment;
 An interlocutory order;
 An order disallowing or dismissing an appeal (Heirs of
Gaudiano vs. Benemerito GR No. 174247, February 21,
2007);
 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;
 An order of execution;
 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
 An order dismissing an action without prejudice.
Remedy in case the judgment or final order is not appealable
In those instances where the judgment or final order is not
appealable, the aggrieved party may file the appropriate special
civil action under Rule 65 (Sec. 1 R 41). However, as of December
27, 2007, an aggrieved party may no longer assail an order denying
a motion for new trial or a motion for reconsideration by way of
Rule 65 as per A.M. No. 07-7-12-SC, such ground having been
removed from the enumeration in Sec. 1 of Rule 41. The proper
remedy is to appeal from the judgment (Sec. 9 R 37).
Issues that may be raised on appeal
It is already well-settled in this jurisdiction that a party may not
change his theory of the case on appeal. Such rule has been
expressly adopted in Rule 44, Section 15 of the 1997 Rules of Civil
Procedure, which provides –
Sec. 15. Questions that may be raised on appeal-
Whether or not the appellant has filed a motion for new trial in the
court below, he may include in his assignment of errors any
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question of law or fact that has been raised in the court below and
which is within the issues framed by the parties.
Also, defenses not pleaded in the answer may not be raised for the
first time on appeal. A party cannot, on appeal, change
fundamentally the nature of the issue in the case. When a party
deliberately adopts a certain theory and the case is decided upon
that theory in the court below, he will not be permitted to change
the same on appeal, because to permit him to do so would be
unfair to the adverse party. Accordingly, “courts of justice have no
jurisdiction or power to decide a question not in issue.” Thus, a
judgment that goes beyond the issues and purports to adjudicate
something on which the court did not hear the parties, is not only
irregular but also extrajudicial and invalid. The rule rests on the
fundamental tenets of fair play (Com. of Internal Revenue vs.
Migrant Pagbilao Corp. GR 159593, October 12, 2006).
Issues that the appellate court decides on appeal
A reading of the terms of Sec. 8 of Rule 51 discloses a basic
appellate rule with respect to unassigned errors: The appellate
court shall consider no error unless stated in the assignment of
errors.
Accordingly, a question that was never raised in the courts below
cannot be allowed to be raised for the first time on appeal without
offending basic rules of fair play, justice and due process (Bank of
Commerce vs. Serrano 451 SCRA 484).
For an appellate court to consider a legal question, it should have
been raised in the court below (Philippine National Oil Company vs.
CA 457 SCRA 32). It would be unfair to the adverse party who
would have no opportunity to present evidence in contra to the
new theory, which it could have done had it been aware of it at the
time of the hearing before the trial court. It is true that this rule
admits of exceptions as in cases of lack of jurisdiction, where the
lower court committed plain error, where there are jurisprudential
developments affecting the issues, or when the issues raised
present a matter of public policy (Baluyot vs. Poblete GR 1444435
February 6, 2007; Pineda vs. Heirs of Eliseo Guevara, GR 143188,
February 14, 2007).
As a rule no question will be entertained on appeal unless it has
been raised in the court below. Points of law, theories, issues and
arguments not brought to the attention of the lower court
ordinarily will not be considered by a reviewing court because they
cannot be raised for the first time at that late stage. Basic
considerations of due process underlie this rule. It would be unfair
to the adverse party who would have no opportunity to present
evidence in contra to the new theory, which it would have done
had it been aware of it at the time of the hearing before the trial
court. To permit petitioner at this stage to change his theory would
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thus be unfair to respondent, and offend the basic rules of fair play,
justice and due process (Canada vs. All Commodities Marketing
Corp. GR 146141, October 17, 2008).
When errors not raised on appeal may be considered
The rule that the appellate court shall not consider errors not
raised in the assignment of errors is not an absolute one. Sec. 8 of R
51 precludes its absolute application allowing as it does certain
errors which even if not assigned may be ruled upon by the
appellate court. Hence, the court may consider an error not raised
on appeal provided the same falls within any of the following
Categories:
 It is an error that affects the jurisdiction over the subject
matter;
 It is an error that affects the validity of the judgment
appealed from;
 It is an error which affects the proceedings;
 It is an error closely related to or dependent on an
assigned error and properly argued in the brief (Heirs of
Marcelino Doronio vs. Heirs of Fortunato Doronio, 5341
SCRA 479 [2008]).
 It is a plain clerical error.
The fact that the plaintiff’s brief did not raise the lack of jurisdiction
at the trial court should not prevent the Court of Appeals from
taking up the issue of lack of jurisdiction (Calimlim vs. Ramirez 118
SCRA 399; Dy vs. NLRC 145 SCRA 211)
Jurisprudence likewise provides some exceptions to the rule.
 Declared the SC: “The Supreme Court is clothed with
ample authority to review matters, even if they are not
assigned as errors on appeal, if it finds that their
consideration is necessary in arriving at a just decision of
the case. (Dumo vs. Espinas GR 141962, January 25,
2006; Comilang vs. Burcena, GR No. 146853, February
13, 2006; Boston Bank vs. Manalo GR 158149 February 9,
2006).
 In one case, although petitioners did not raise as issue
the appellate court’s reversal of the award of damages in
their favor, the Court has the discretion to pass upon this
matter and determine whether or not there is sufficient
justification for the award of damages (Sps. Romulo and
Sps. Layug, GR 151217, September 8, 2006).
It has also been held that the CA for instance, is imbued with
sufficient authority and discretion to review matters, not otherwise
assigned as errors on appeal, if it finds that the consideration is
necessary in arriving at a complete and just resolution of the case
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or to serve the interests of justice or to avoid dispensing piecemeal
justice (Asian Terminals Inc. vs. NLRC 541 SCRA 105 [2007]).
Appeals in criminal cases
In a criminal case, an appellate court appears to enjoy wide latitude
in deciding an appealed case. Thus:
“In criminal cases, it is axiomatic that where an accused appeals the
decision against him, he throws open the whole case for review
and it then becomes the duty of the SC to correct any error as may
be found in the appealed judgment, whether it was made the
subject of assignment of errors or not.” (Dico vs. CA GR 141669
February 28, 2005; Ferrer vs. People GR 143487 February 22, 2006;
Abedes vs. CA 536 SCRA 268 [2007]).
An appeal in a criminal case opens the entire case for review. The
Court can correct errors unassigned in the appeal (People vs. de la
Torre GR 176637 October 6, 2008).
Payment of docket fee
The Court has consistently held that payment of docket fee within
the prescribed period is mandatory for the perfection of an appeal.
Without such payment, the appellate court does not acquire
jurisdiction over the subject matter of the action and the decision
sought to be appealed from becomes final and executory (Regalado
vs. Go GR 167988 February 6, 2007).
Payment of docket fees and other legal fees within the prescribed
period is both mandatory and jurisdictional, non compliance
without which is fatal to an appeal. The full amount of the
appellate court docket and other lawful fees must be paid to the
clerk of court which rendered the judgment or final order appealed
from. Without the payment of docket fees the appeal is not
perfected and the appellate court does not acquire jurisdiction to
entertain the appeal, thereby rendering the decision sought to be
appealed final and executory. Nonpayment of the appellate court
docket and other lawful fees within the reglementary period is a
ground for the dismissal of an appeal (Cu-Unjieng vs. CA 479 SCRA
594 January 24, 2006).
Note however that in the exercise of its impartial jurisdiction, the
Court allows a liberal construction of the rules on the manner and
periods for perfecting appeals in order to serve the demands of
substantial justice.
The established rule is that the payment in full of the docket fees
within the prescribed period is mandatory. Nevertheless, this rule
must be qualified to wit:
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First, the failure to pay appellate docket fee within the
reglementary period allows only discretionary dismissal, not
automatic dismissal of the appeal;
Second, such power should be used in the exercise of the Court’s
sound discretion “in accordance with the tenets of justice and fair
play and with great deal of circumspection considering all
attendant circumstances” (Republic vs. Sps Luriz GR 158992
January 26, 2007).
Record on appeal; notice of appeal
An appeal is normally made by filing a notice of appeal with the
court which rendered the judgment or final order appealed from
(Sec. 2(a), Rule 41, Rules of Court). No record on appeal shall be
required except in special proceedings and other cases of multiple
or separate appeals where the law or the Rules of Court so require.
In a case where multiple appeals are allowed, a party may appeal
only a particular incident in the case and not all of the matters
involved in the same case. The others which are not made the
subject of the appeal remain to be resolved by the trial court. The
record on appeal is required so the appellate court may have a
record of the proceedings to resolve a separate and distinct issue
raised in the appeal, and since the original records remain with the
trial court it still can resolve the other issues of the case not made
subject of the appeal.
Illustration:
Jurisprudence recognizes the existence of multiple appeals in a
complaint for expropriation because there are two stages in every
action for expropriation. The first stage is the determination of the
lawful right of the plaintiff to take the property sought to be
expropriated culminating in an order of expropriation (Sec. 4 R 67).
This order of expropriation may be appealed by any party by filing a
record on appeal (Tan vs. Republic 523 SCRA 203).
The second stage is the determination by the court of the just
compensation for the property sought to be expropriated. A
second and separate appeal may be taken from this order fixing the
just compensation (Tan vs. Republic, supra).
Multiple appeals is allowed in special proceedings, in actions for
recovery of [property with accounting, in the special actions for
eminent domain and foreclosure of mortgage. The rationale behind
allowing more than one appeal in the same case is to enable the
rest of the case to proceed in the event that a separate and distinct
issue is resolved by the court and held to be final (Roman Catholic
Archbishop of Manila vs. CA GR 111324 July 5, 1996).
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Note:
If however, the trial court has fully and finally resolved all the
issues in the complaint for expropriation, there is no need to file a
record on appeal even in an expropriation case. Illustrative of this
rule is the case of Marinduque Mining and Industrial Corporation
vs. CA GR 161219, October 6, 2008. In its decision, the trial court
already determined two main issues, namely, Respondent
NAPOCOR’s authority to exercise the power of eminent domain
and the just compensation for the property sought to be
expropriated. NAPOCOR initially filed a motion for reconsideration
but after the trial court denied the motion, NAPOCOR no longer
appealed the decision. Then, in a subsequent Supplemental
Decision, the trial court fixed the just compensation for what it
called the “dangling area”, which is the area not subject of the
complaint for expropriation but which the court held should
nevertheless also be paid by NAPOCOR because of consequential
damages to the property. NAPOCOR filed a motion for
reconsideration of this Supplemental Decision and the trial court
denied the motion. NAPOCOR then filed a notice of appeal but did
not file a record on appeal. Petitioner raised issue as to this failure
alleging that a record on appeal is required in an appeal of a
judgment in an expropriation case. The Court ruled that at this
stage, the trial court had no more issues to resolve and there was
no reason why the original records of the case must remain with
the trial court. There was then no need for NAPOCOR to file a
record on appeal because the original records could already be
sent to the appellate court.
Perfection of the appeal
A party’s appeal by notice of appeal is deemed perfected as to him
upon the filing of the notice of appeal in due time. A party’s appeal
by record on appeal is deemed perfected as to him with respect to
the subject matter thereof upon the approval of the record on
appeal filed in due time (Sec. 4R 40 in relation to Sec. 9 R 41)
The notice of appeal does not require the approval of the court.
The function of the notice of appeal is merely to notify the trial
court that the appellant was availing of the right to appeal, and not
to seek the court’s permission that he be allowed to pose an appeal
(Crisologo vs. Daray, A.M. RTJ-07-2036, August 30, 2006)
We will stick to the basic rule on appeal found in the judiciary law,
Section 39, BP 129:
Sec 39. Appeals. - The period for appeal from final orders,
resolutions, awards, judgments or decisions of any court in all
cases shall be fifteen (15) days counted from the notice of the
final order, resolution, award, judgment, or decision appealed
from: Provided, however, That in habeas corpus cases, the period
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for appeal shall be forty-eight (48) hours from the notice of the
judgment appealed from.
No record on appeal shall be required to take an appeal. In lieu
thereof, the entire original record shall be transmitted with all the
pages prominently numbered consecutively, together with an
index of the contents thereof.
This section shall not apply in appeals in special proceedings and
in other cases wherein multiple appeals are allowed under
applicable provisions of the Rules of Court.
There are three (3) instances under Section 39:
Type of Case
Period to appeal
Requisites for appeal
A. Civil Actions in general
15 days
Notice of appeal
B. Special Proceedings and Civil Actions where multiple appeal is
allowed
30 days
1. Notice of Appeal
2. Record on Appeal
C. Habeas Corpus
48 hours
Notice of Appeal
So this is the general outline of the law on appeals under Section
39, BP 129.
[EDITOR’S NOTE: The 48-hour period to appeal in habeas corpus
cases under Section 39 of BP 129 is now incorporated in Rule 41,
Section 3 as amended, which took effect last July 15, 2000 (A.M.
No. 01-1-03-SC)]
Rule 40 refers to appeal from the MTC to the RTC. The appellate
jurisdiction of the RTC is found in Section 22, BP 129. That is why
Rule 40 is revolving around that provision:
BP 129, Sec. 22.Appellate jurisdiction. - Regional Trial Courts shall
exercise appellate jurisdiction over all cases decided by MetTCs,
MTCs and MCTCs in their respective territorial jurisdictions. Such
cases shall be decided on the basis of the entire record of the
proceedings had in the court of origin and such memoranda
and/or briefs as may be submitted by the parties or required by
the RTCs. The decision of the RTCs in such cases shall be
appealable by petition for review to the CA which may give it due
course only when the petition show prima facie that the lower
court has committed an error of fact or law that will warrant a
reversal or modification of the decision or judgment sought to be
reviewed.
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Q: What orders or judgment are subject to appeal ?
A: Only FINAL judgments or orders can be appealed as
distinguished from interlocutory judgments or orders (paragraph
[c])which are not appealable.
FINAL JUDGMENT OR ORDERS—the term ‘final’ has two (2) possible
meanings in Civil Procedure:
[1] The judgment is final in the sense that it is already executory
and that happens if there is no appeal. And that is for purposes of
applying Rule 39 on execution.
[2] The judgment is final in the sense that it is not merely
interlocutory and this is for the purpose of applying the law on
appeal under Rule 41. In other words, a final order or judgment (for
purposes of appeal) is one which is not merely interlocutory in the
sense that it completely disposes of the case or a particular matter
therein where there is nothing more for the court to do after its
rendition. (Bairan vs. Tan Sui Lay, L-19460, Dec. 28, 1966)
Q: What is the definition of a final judgment or for purpose of
appeal?
A: A judgment or order is final if it disposes of the pending
action so that nothing more can be done in the trial court with
respect to its merits. (Salazar vs. De Torres, 58 O.G. 1713, Feb. 26,
1962; Bairan vs. Tan Sui Lay, L-19460, Dec. 28, 1966)
Q: On the other hand, what is an interlocutory judgment or order?
A: An interlocutory order is something which does not completely
dispose of the action and there is still something for the court to do
after its rendition. (Olsen & Co. vs. Olsen, 48 Phil. 238; Restauro vs.
Fabrica, 80 Phil. 762) Actually, the law does not prohibit a party
from appealing an interlocutory judgment or order, only you
cannot appeal immediately. (Abesamis vs. Garcia, 98 Phil. 762)
Q: What is the test for determining whether a judgment or order is
final or interlocutory?
A: The test for the determination of whether a judgment or order is
final or interlocutory is this: Does it leave something to be done in
the trial court with respect to the merits of the case? If it does, it is
interlocutory, hence, you cannot appeal yet; if it does not, it is final
and therefore you can appeal. (Reyes vs. De Leon, L-3720, June 24,
1952)
So you must know the meanings of the word ‘final’ in civil
procedure to avoid confusion. A good example is Section 20 of Rule
3 where the word ‘final’ was first mentioned:
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Rule 3, Sec. 20. Action on contractual money claims. - When the
action is for recovery of money arising from contract, express or
implied, and the defendant dies before entry of final judgment in
the court in which the action was pending at the time of such
death, it shall not be dismissed but shall instead be allowed to
continue until entry of final judgment. A favorable judgment
obtained by the plaintiff therein shall be enforced in the manner
especially provided in these Rules for prosecuting claims against
the estate of a deceased person. (21a)
The word final here in Section 20 refers to the second meaning that
the judgment is final in the sense that it is not merely interlocutory
BAR QUESTION: Plaintiff vs. Defendant. Defendant file a motion to
dismiss under Rule 16. The court granted the motion and
consequently ordered the dismissal of the complaint of the
plaintiff. Can the plaintiff appeal from the order dismissing his
complaint?
A: We will apply the test: Is there anything more for the court to do
after issuing the order of dismissal? Wala na! [Awanen!] Ano pa ba
ang gagawin eh na-dismiss na nga eh! Therefore, the order of
dismissal is a final order – it has completely disposed of the case –
hence, the plaintiff can appeal.
PROBLEM: Let’s modify the problem: Plaintiff vs. Defendant.
Defendant file a motion to dismiss under Rule 16. The court denied
the motion to dismiss. Can the defendant appeal from the order of
the court denying his motion to dismiss?
A: Again, we will apply the test: Is there anything more for the court
to do after denying the motion to dismiss of the defendant? Yes
because after the court denies such motion, the defendant will
now file his answer, then there will be pre-trial, trial, judgment.
Meaning, after denying the motion to dismiss, may trabaho pa ako.
Therefore, the order denying the motion to dismiss is interlocutory,
hence the defendant cannot appeal.
Q: So how do you appeal from an interlocutory order?
A: The procedure if there is an order which is against you
but it is not appealable, you have to wait. The case is to be tried
and then you have to wait for the final judgment to be rendered
and if you are dissatisfied with the judgment, that is the time you
appeal from the said judgment together with the interlocutory
orders issued in the course of the proceeding. (Mapua vs. Suburban
Theaters, Inc., 81 Phil. 311) So there should only be one appeal
form that case. That’s why, as a general rule, the law on Civil
Procedure prohibits more that one appeal in one civil action.
The reasons why interlocutory orders are not appealable are to
avoid multiple appeals in one civil case since the order is
interlocutory and the court still continues to try the case in the
course of the proceeding, the court will realize its error and the
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court may change its order so it will be given an opportunity to
corrects its own mistake. (Manila Elec. Co. vs. Artiaga, 50 Phil. 147)
Take note of the new rule saying that a judgment or order is final if
it disposes of the case or of a PARTICULAR MATTER. So, it is not
necessarily the whole case.
In the case of DAY vs. RTC (191 SCRA 640), a case filed by A against
B, X filed a motion to intervene and it was denied. Can X appeal the
denial? Now, it would seem that the order is interlocutory because
the court, after denying the motion to intervene, still has
something to do since the case between A and B will continue. But
according to the SC, YES, X can appeal because the order denying
the motion to intervene is final.
But is it not true that the court has something to do after denying
such motion? Yes but what the SC is trying to say is that, as far as
X’s right is concerned, the court has nothing to do anymore.
Marami pa akong trabaho dito (case between A and B), pero kay X
wala na. That is why the order denying the motion to intervene is a
final order and is appealable. Kaya nga the test that there is
nothing more for the court to do is very confusing. In other words,
you divide the case into parts.
DAY vs. RTC OF ZAMBOANGA CITY
191 SCRA 640
HELD: “An order which decides an issue or issues in a complaint is
final and appealable, although the other issue or issues have not
been resolved, if the latter issues are distinct and separate from
the others.”
REPUBLIC vs. TACLOBAN CITY ICE PLANT
258 SCRA 145 [1996]
HELD: “A court order is final in character if it puts an end to the
particular matter resolved or settles definitely the matter therein
disposed of, such that no further questions can come before the
court except the execution of the order. Such an order or judgment
may validly refer to the entire controversy or to some definite and
separate branch thereof.”
So the opening paragraph of Section 1 is in accordance with the
DAY and TACLOBAN cases. In other words, either the whole case is
disposed of or a particular matter therein has been disposed of.
Q: If I cannot appeal because Section 1 of Rule 41 prohibits
an appeal, is there a way of hastening the issue before the
appellate court in order to avoid the waste of time and effort and
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money of entering into a trial which is null and void because of lack
of jurisdiction?
A: The answer is the last paragraph of Section 1:
In all the above instances where the judgment or final order is not
appealable, the aggrieved party may file an appropriate special
civil action under Rule 65. (n)
So if appeal is not available, the correct remedy is an appropriate
special civil action under Rule 65. There are three civil actions
there: Certiorari, Prohibition, Mandamus.
The present Rule 41 tells us exactly what orders cannot be
appealed:
(a) An order denying a motion for new trial or reconsideration;
This has been deleted,so when a motion for new trial or
reconsideration is denied, there is no appeal nor certiorari from the
order. Your remedy is you appeal from the judgment, not from the
order denying your motion for new trial or reconsideration. That is
found on Rule 37, Section 9:
Section 9. Remedy against order denying a motion for new trial or
reconsideration.- An order denying a motion for new trial or
reconsideration is not appealable, the remedy being an appeal
from the judgment or final order.
(b) An order denying a petition for relief or any similar motion
seeking relief from judgment;
Paragraph [b] has changed some decided cases in the past. Before,
an order granting a petition for relief is interlocutory but an order
denying a petition for relief is final. NOW, wala na yan! Whether it
is an order granting or denying a petition for relief, you cannot
appeal.
So what is remedy for such order? Go with special civil action
under Rule 65 as provided in the last paragraph of Section 1.
Give an example of an order denying a motion other than a petition
for relief: motion for new trial. So it is not appealable.
Suppose I am declared in default, can I appeal from a DEFAULT
JUDGMENT ? The 1964 rules says, yes. You notice that such
provision is lost. There is no more direct provision on that. But still,
it is appealable. The provision in the old rules is not necessary.
There is nothing in paragraphs [a] to [h] prohibiting an appeal from
a default judgment. So it falls under the general rule.
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Q: How about the order to LIFT the order of default? Suppose you
file a motion to set aside the judgment of default and motion is
denied, can you appeal?
A: NO, because the law says, an order denying any similar motion
seeking relief from judgment cannot be appealed. As a matter of
fact, the 1995 case of MANILA ELECTRIC COMPANY vs. CAMPANA
FOOD PRODUCTS (246 SCRA 77), there is no such remedy as a
motion to set aside an order of default but there is no provision in
the rules to set aside a judgment of default. The correct remedy is
to appeal from the judgment of default not to set aside. And that is
clear. The default judgment is appealable.
(d) An order disallowing or dismissing an appeal;
So, if an appeal is dismissed, you cannot appeal from the order
dismissing it. What is the remedy? The 1964 rules provides for the
remedy of mandamus. That is a direct provision because if the
appeal is on time , the duty of the court to grant due course to the
appeal is ministerial. There is no more such provision in the present
rules because it is already provided in the last paragraph.
Another possible remedy where an appeal is allowed aside from
the mandamus is if I lost my right to appeal because of fraud,
mistake accident and inexcusable negligence, the other possible
remedy is a petition for relief from judgment denying my appeal
and that is found in Rule 38, Section 2:
Rule 38, Sec. 2. Petition for relief from denial of appeal. When a
judgment or final order is rendered by any court in a case, and a
party thereto, by fraud, accident, mistake, or excusable
negligence, has been prevented from taking an appeal, he may
file a petition in such court and in the same case praying that the
appeal be given due course. (1a)
So, aside from the remedy under Rule 65, the other possible
remedy is a petition for relief from the order denying the appeal.
(e) An order denying a motion to set aside a judgment by consent,
confession or compromise on the ground of fraud, mistake or
duress, or any other ground vitiating consent;
PROBLEM: So there is a judgement by consent (cognovit judgment)
and the motion to set aside such judgment is denied. The order of
denial is not appealable. So again, there is judgement by confession
or compromise and then you file a motion to set aside the
judgement of compromise on the ground of fraud, mistake or
duress or any other ground. Motion denied!
Q: Can you appeal?
A: NO. (paragraph [e])
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Q: So what is my remedy?
A: You file a separate case for annulment for such judgment (Rule
47). In the case of
DOMINGO vs. COURT OF APPEALS
255 SCRA 189 [1996]
HELD: The correct remedy is for the party to file an action for
annulment of judgment before the Court of Appeals pursuant to
Section 9, par. 2, of the Judiciary Law.
“A compromise may however be disturbed and set aside for vices
of consent or forgery. Hence, where an aggrieved party alleges
mistake, fraud, violence, intimidation, undue influence, or falsity in
the execution of the compromise embodied in a judgment, an
action to annul it should be brought before the Court of Appeals, in
accordance with Section 9(2) of Batas Pambansa Bilang 129, which
gives that court (CA) exclusive original jurisdiction over actions for
annulment of judgments of regional trial courts.”
(f) An order of execution;
So you cannot appeal from an order of execution because if we will
allow the losing party to appeal from an order of execution, then
there will be no end to litigation. Kaya nga execution, eh – it means
tapos na ang kaso. That case is finished, decided, final.
But suppose the order of execution contains portions which are not
found in the judgment, meaning, the order of execution is changing
the judgment which should not be done, then obviously, the
correct remedy is certiorari under Rule 65 because of grave abuse
of discretion.
(g) A judgment or final order for or against one or more of several
parties or in separate claims, counterclaims, cross-claims and
third-party complaints, while the main case is pending, unless the
court allows an appeal therefrom;
The best example of a judgment of final order where there are
separate claims is found in Rule 36. There could be more than one
judgment in one civil case and there can be more than one decision
– judgment on the main action, on the counterclaim, etc. (c.f.
Sections 4 and 5, Rule 36)
Q: Everytime a judgment is issued, can you appeal already
from the first judgment when there will be a second judgment in
that civil action? Can you appeal from all these separate
judgment?
A: No, unless the court allows an appeal therefrom.
Generally, you have to wait for all the judgments to be rendered
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before you can appeal because, normally, there can be no appeal
from every judgment rendered. A good example of this is in the
case of
PROVINCE OF PANGASINAN vs. COURT OF APPEALS
220 SCRA 726
FACTS: This was a partial summary judgment under Rule 35. Is it
appealable? One party claims that a partial summary judgment is
appealable because of Rule 36, where the court allows an appeal
therefrom. But according to the Supreme Court:
HELD: A partial summary judgment is not covered by Rule 36. It is
governed by Rule 35 and there is no appeal because it is merely
interlocutory.
Rule 35, Sec. 4. Case not fully adjudicated on motion. If on motion
under this Rule, judgment is not rendered upon the whole case or
for all the reliefs sought and a trial is necessary, the court at the
hearing of the motion, by examining the pleadings and the
evidence before it and by interrogating counsel shall ascertain
what material facts exist without substantial controversy and
what are actually and in good faith controverted. It shall
thereupon make an order specifying the facts that appear without
substantial controversy, including the extent to which the amount
of damages or other relief is not in controversy, and directing
such further proceedings in the action as are just. The facts so
specified shall be deemed established, and the trial shall be
conducted on the controverted facts accordingly.
Q: When can there be a partial summary judgment?
A: When some portions of a claim are substantially
controverted and the rest are not substantially controverted. So
the court is authorized to render a partial summary judgment on
the claim where there is no genuine issue we continue trying the
case with respect to the claim where there is a genuine issue. So
there will be two judgments. A summary judgment for one claim
and an ordinary judgment for the other claim. So nauna yung
partial summary judgment.
Q: Can you appeal from there immediately?
A: NO, you have to wait for the other judgment to come
out. You cannot appeal from that partial summary judgment while
the main case is pending, unless the court allows appeal therefrom.
(h) An order dismissing an action without prejudice.
If an action is dismissed without prejudice, it cannot be appealed
because, as it is without prejudice, you can re-file the case. But
supposed the dismissal without prejudice is arbitrary, and I don’t
want to re-file because it is too costly and I really want to question
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the court dismissing my case without prejudice, I want to challenge
the order. Now, because appeal is not appealable, your remedy is
Rule 65 on certiorari.
Q: Give examples of dismissal of cases without prejudice.
A: Rule 16, Section 5 (c.f. Rule 16, Section 1 [f], [h], [i]):
Rule 16, Sec. 5. Effect of dismissal. Subject to the right of appeal,
an order granting a motion to dismiss based on paragraphs (f), (h)
and (i) of section 1 hereof shall bar the refiling of the same action
or claim.
Rule 16, Section 1. Grounds. Within the time for but before filing
the answer to the complaint or pleading asserting a claim, a
motion to dismiss may be made on any of the following grounds:
(f) That the cause of action is barred by a prior judgment or by the
statute of limitations;
(h) That the claim or demand set forth in the plaintiff's pleading
has been paid, waived, abandoned, or otherwise extinguished;
(i) That the claim on which the action is founded is unenforceable
under the provisions of the statute of frauds;
Modes of appeal from the Regional Trial Courts
Section 2 tells us that there are 3 possible ways:
1) Ordinary Appeal (in cases decided by the RTC pursuant
to its original jurisdiction)
2) Petition For Review (in cases decided by the RTC
pursuant to its appellate jurisdiction)
3) Appeal By Certiorari (appeal from RTC direct to the SC
on pure questions of law)
Sec. 2. Modes of appeal.
(a) Ordinary appeal.- The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the exercise of its original
jurisdiction shall be taken by filing a notice of appeal with the
court which rendered the judgment or final order appealed from
and serving a copy thereof upon the adverse party. No record on
appeal shall be required except in special proceedings and other
cases of multiple or separate appeals where the law or these
Rules so require. In such cases, the record on appeal shall be filed
and served in like manner.
Ordinary Appeal is the mode of appeal from RTC to CA in cases
decided by the RTC pursuant to its original jurisdiction.
Just like in Rule 40, you file a notice of appeal with the RTC
furnishing the adverse/losing party. No record on appeal shall be
required except in special proceedings and other cases of multiple
or separate appeals where the law or these Rules so require.
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(b) Petition for review.- The appeal to the Court of Appeals in
cases decided by the Regional Trial Court in the exercise of its
appellate jurisdiction shall be by petition for review in accordance
with Rule 42.
Modes of appeal from the Regional Trial Courts to the Court of
Appeals
ORDINARY APPEAL (par. A) or Writ PETITION FOR REVIEW (par.
of Error B)
The case was decided by the RTC The case was decided by the
pursuant to its original jurisdiction. RTC pursuant to its appellate
The case was originally filed in the jurisdiction (governed by
RTC. Rule 42)
EXAMPLE: You filed an action for recovery of money amounting to
P1 million. Obviously the jurisdiction is in the RTC. Now, natalo ka
and you want to go to the CA. What is your mode of appeal?
Ordinary Appeal because the case was decided by the RTC pursuant
to its original jurisdiction.
EXAMPLE: In paragraph B, the case is recovery of sum of money
amounting to P50,000. Saan i-file yan? MTC man yan ba. Now, you
lose, where will you appeal and what is the mode of appeal? RTC
by Ordinary appeal. Suppose, talo ka pa rin sa RTC and you want to
go to CA. This time, the mode of appeal is not by ordinary appeal
but by petition for review because the case now being appealed
has been decided by the RTC pursuant to its appellate jurisdiction.
(c) Appeal by certiorari.- In all cases where only questions of law
are raised or involved, the appeal shall be to the Supreme Court
by petition for review on certiorari in accordance with Rule 45.
This mode is brought to the SC from the decision of the RTC in the
exercise of its original jurisdiction and only on questions of law
(Sec. 2 R 41; Five Star Marketing Corporation v. Booc 535 S RA 28;
Quezon City v. ABS-CBN Braodcasting Corp. G.R. No. 166408, Oct.
6, 2008)
So the case is in the RTC and you lost. You would like to appeal on
pure question of law. Now, do not go to the CA for it has no
jurisdiction. You by-pass CA and go directly to the SC on appeal by
certiorari in accordance with Rule 45.
Rep. v. Malabanan, et al., G.R. No. 169067, November 6, 2010
3 modes of appeal from a decision of the RTC.
There are three (3) modes of appeal from decision of
the RTC, to wit: (1) by ordinary appeal by writ of error under Rule
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41, where judgment was rendered in a civil or criminal action by
the RTC in the exercise of original jurisdiction; (2) by petition for
review under Rule 42, where judgment was rendered by the RTC
in the exercise of appellate jurisdiction; and (3) by petition for
review on certiorari to the Supreme Court under Rule 45. The first
mode of appeal is taken to the CA on questions of fact or mixed
questions of fact, of law, or mixed questions of fact and law. The
third mode of appeal is elevated to the Supreme Courts only on
questions of law,
No change of theory on appeal; reason: due process.
Catungal, et al., v. Rodriguez, G.R. No. 146839, March 23, 2011
Due process requires that parties have to draw the lines of battle
through their pleadings. To change one or totally abandon the
same on appeal violates the rule.
The object of pleadings is to draw the lines of battle between the
litigants and to indicate fairly the nature of the claims or defenses
of both parties. (Ortega v.SEC., G.R. No. 176150, June 25, 2008,
555 SCRA 353). In Philippine National Construction Corporation v.
CA, 505 Phil. 87 (2005) it was held that “when a party adopts a
certain theory in the trial court, he will not be permitted to
change his theory on appeal, for to permit him to do so would not
only be unfair to the other party but it would also be offensive to
the basic rules of fair play, justice and due process.”
Issues not raised in the trial court cannot be decide; exceptions.
May a court render a judgment on an issue that has not
been raised? Explain.
As a rule Courts of justice have no jurisdiction or power
to decide a question not in issue. Thus, a judgment that goes
beyond the issues and purports to adjudicate something on which
the court did not hear the parties, is not only irregular but also
extrajudicial and invalid. The rule rests on the fundamental tenets
of fair play. (Commissioner of Internal Revenue v. Mirant
PagbilaoCorp., G.R. No. 159593, October 16, 2006, 504 SCRA 484).
Exceptions:
In Catholic Bishop of Balanga v. CA, 332 Phil. 206 (1996) the Court
enumerated uch exceptions like:
(1) Matters not assigned as errors on appeal but
consideration of which is necessary in arriving at a just
decision and complete resolution of the case or to serve
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the interest of justice or to avoid dispensing piecemeal
justice;
(2) 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 raised or which the lower court
ignored;
(3) Matters not assigned as errors on appeal but closely
related to an error assigned; and
(4) Matters not assigned as error but upon which the
determination properly assigned is dependent.
(Filipinas Palmoil Processing Inc., et al. v. CA, et al., G.R.
No. 167332, February 7, 2001).
Steel Corps. Of the Phils. V. Equitable PCI Bank, G.R. o. 190462,
November 17,2010
- Assignment of errors is essential to appellate review and
only those assigned will be considered. There are
exceptions.
- In Abedes v. CA G.R. No. 174373, October 15, 2007, 536
SCRA 268, it was said that the difference of appeals in
criminal cases and civil cases is that, issues not raised in
the pleadings, as opposed to ordinary appeal in criminal
cases where the whole case is opened for review, are
deemed waived or abandoned.
- Essentially, to warrant consideration on appeal, there
must be discussion of the errors assigned, else, the error
will be deemed abandoned or waived. (Norton v. Sam’s
Club, 145 F.3d 114, 40 Fed. R. Sev., 3d 1185 (2d Cir.
1998).
The first mode of appeal, the ordinary appeal under Rule 41 is
brought to the CA from the RTC in exercise of its original
jurisdiction, and resolves questions of fact or mixed questions of
fact and law. The second mode of appeal, the petition for review
under Rule 42, is brought to the CA from the RTC, acting in the
exercise of its appellate jurisdiction and resolves questions of fact
or question of law or mixed questions of fact and law. The third
mode of appeal, the appeal by certiorari under Rule 45, is brought
to the SC and resolves only questions of law. (Heirs of Cabigas v.
Limbago, G.R. No. 175291, July 27, 2011).
What is the period to appeal? Section 3:
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Sec. 3. Period of ordinary appeal. The appeal shall be taken within
fifteen (15) days from notice of the judgment or final order
appealed from. Where a record on appeal is required, the
appellant shall file a notice of appeal and a record on appeal
within thirty (30) days from notice of the judgment or final order.
However, an appeal in habeas corpus cases shall be taken within
forty-eight (48) hours from notice of the judgment or final order
appealed from.
The period of appeal shall be interrupted by a timely motion for
new trial or reconsideration. No motion for extension of time to
file a motion for new trial or reconsideration shall be allowed.
The period to appeal is 15 days. And when a record on appeal is
required, the period to appeal is doubled – 30 days.
Section 3 is already amended. It now specifically provides the
period to appeal in cases of habeas corpus, which is 48 hours. This
is because the SC made an error in one of the latest cases involving
Rufus Rodriguez as Immigration Commissioner, where the SC ruled
that the period to appeal in habeas corpus cases is 15 days since
the 48-hour period disappeared in the 1997 Rules. So many got
confused now.
Take note also of the Neypes vs. CA ruling giving a fresh period to
appeal.
RUBIO vs. MTCC BRANCH 4 OF CAGAYAN DE ORO CITY
252 SCRA 172
FACTS: The period to file a motion for new trial or reconsideration
is within the period to appeal which is 15 days, kaya walang
extension. Now this is what happened. The court issued an
interlocutory order. After two months, one of the parties filed a
motion for reconsideration and, of course, the other party said, no
more, you should file the motion within 15 days. You cannot file
beyond the 15-day period. Is that correct?
HELD: NO. That is wrong because an interlocutory order cannot be
appealed hence, the 15-day period does not apply. You can file
your motion for reconsideration anytime for as long as the court
still has jurisdiction over the case.
The 15-day period only applies when the order is final. But when
the order is interlocutory, you can file it anytime because there is
no definite period for the court to change it. For as long as the
court has jurisdiction over the case, it has the power to change that
wrong order.
“The period subject to interruption by a motion for reconsideration
is the period to appeal. An interlocutory order is not appealable if
there is accordingly no period to suspend or interrupt.”
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Sec. 4. Appellate court docket and other lawful fees. Within the
period for taking an appeal, the appellant shall pay to the clerk of
the court which rendered the judgment or final order appealed
from, the full amount of the appellate court docket and other
lawful fees. Proof of payment of said fees shall be transmitted to
the appellate court together with the original record or the record
on appeal. (n)
Under the law, within the period for taking an appeal, the appellant
shall only pay to the clerk of court of the RTC which rendered the
judgment or final order the full amount of the appellate court
docket fee and all other lawful fees and the proof of payment shall
be transmitted to the CA together with the original record on
appeal.
Q: How does this amend the Old law ?
A: Under the OLD Law, when you appeal from the RTC to the CA ,
you just file a notice of appeal. You do not pay anything, you do not
pay the appellate docket fee. So the records will be transmitted
upon order of the clerk of court.
Pagdating sa CA, later on, the clerk of court there will communicate
to the appellant na the records are there already, magbayad ka ng
docket fee within so many days. So, mamaya mo na bayaran,
hintayin mo munang mapunta doon at hintayin mo ang notisya.
NOW, you do not wait. Pag - file mo ng notice of appeal, you PAY
IMMEDIATELY. When you appeal, bayaran mo na ang CA docket fee
sa RTC clerk and then pag-transmit, sabay na! That is the change.
If we will notice, the counterpart is Section 5 Rule 40 – yung appeal
from the MTC to the RTC:
RULE 40, Section 5. Appellate court and other lawful fees. - Within
the period for taking an appeal, the appellant shall pay to the
clerk of the court which rendered the judgment or final order
appealed from the full amount of the appellate court docket and
other lawful fees. Proof of payment thereof shall be transmitted
to the appellate court together with the original record or the
record on appeal, as the case may be. (n)
Q: Suppose the person appealing from the MTC to the RTC failed to
pay the appeal fee under Rule 40, can the appeal be dismissed ?
A: No, because it is not one of the requisites. That was the ruling in
SANTOS vs. CA. That can be collected from you later but that is not
a requisite. The appeal cannot be dismissed.
We will ask the same question under Section 4 Rule 41. BUT this
time, you are appealing from the RTC to the CA and this contains an
identical provision that when you are appealing from the RTC to
the CA, you already pay there with the clerk of court of the RTC the
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docket fee. Bayaran mo na, siya na ang bahalang mag-forward.
Here’s the problem:
Q: You failed to pay the docket fee within 15 days. So, when the
case was transmitted to the CA, hindi kasali yung fee no. Now, can
your appeal be dismissed on the ground of failure to pay the docket
fee or not in accordance with the ruling in SANTOS (by analogy,
although in this case, the appeal is from the MTC to the RTC. Pero
the same, hindi ka rin magbayad ng docket fee.) Is the ruling in
SANTOS also applicable to Rule 41 ?
A: NO, the ruling in SANTOS is not applicable. Your appeal will be
dismissed.
Q: What provision of the Rules authorizes such dismissal? Is there
any direct provision of the Rules of Court which authorizes the
dismissal of the appeal by non-payment of the appeal docket fee?
A: YES. Rule 50 Section 1 [c];
RULE 50, Section 1 – An appeal may be dismissed by the Court of
Appeals, on its own motion or on that of the appellee. on the
following grounds:
xxxx
(c) Failure of the appellant to pay the docket and other lawful fees
as provided in Section 4 of Rule 41 ;
xxxx
I believe that it is dismissible because of that. So, to my mind, the
SANTOS vs. CA ruling which governs Rule 40 and which for me is
valid, is NOT APPLICABLE to Rule 41 because there is a direct
provision in Rule 50 that an appeal can be dismissed for
non-payment of appeal docket fee. That is the difference between
these two situations.
NOTICE OF APPEAL
Now, let us go back to Section 5 of Rule 41;
Sec. 5. Notice of appeal. The notice of appeal shall indicate the
parties to the appeal, specify the judgment or final order or part
thereof appealed from, specify the court to which the appeal is
being taken, and state the material dates showing the timeliness
of the appeal. (4a)
Ano ba ang nakalagay sa notice of appeal? It’s very clear there that
you indicate the parties to the appeal, specify the judgment and
state the material date showing the timeliness of the appeal.
Do you know how to do it? It’s very simple. The defendant merely
says; Defendant hereby serves notice that he is appealing to the CA
on questions of fact or on questions of fact and law the judgment of
the Honorable Court (RTC) dated December 20, 1997, copy of which
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was received by me on January 5, 1998.” So it is simple that only 15
days is required to file the notice. When the law says the period to
file an appeal is non-extendible, that is fair. I do not need 15 days
to prepare the notice of appeal. You can do it only in two minutes.
[sobra pa sa quicky!!]
So you must state the date when you received because the
computation of the 15--day period is from the receipt of the
judgment and NOT from the date of the judgment. This is the so-
called the MATERAL DATA RULE – material dates showing
timeliness of appeal. The date received and the date of decision are
not the same. Both dates must be included in the notice of appeal.
Now, kung sabihin mo na I am appealing from the judgment of the
court dated December 20, 1997, and hindi mo sinabi kung kailan
mo natanggap, the presumption is you also received the copy of
the judgment on December 20, 1997. And then you are appealing
today, it will be dismissed because you did not state the material
dates.
And of course, there is one SC decision which said that you do not
only specify the final judgment or order, but you also specify as
much as possible the interlocutory orders from where you are
appealing because interlocutory orders can only be appealed at this
time. So, isabay mo na rin, i-one time ba!
In the case of
HEIRS OF MAXIMO RIGOSO vs. COURT OF APPEALS
211 SCRA 348
FACTS: Plaintiff filed an action against defendant for partition of
property. While the action was pending, defendant died. Partition
is an action which survives. Defendant’s lawyer failed to inform the
court about plaintiff’s death (it is the lawyer’s duty which he did
not do). So with that, there was no proper substitution. Later,
judgment was rendered against the deceased defendant. But after
the decision came out, the lawyer of the defendant filed a notice of
appeal in accordance with Rule 41.
ISSUE #1: Was the appeal properly made?
HELD: NO. Upon the death of the defendant, the lawyer’s authority
to represent him already expired. There was an automatic
expiration of the lawyer-client relationship. The notice of appeal
which the lawyer filed in behalf of the deceased was an
unauthorized pleading, therefore not valid.
ISSUE #2: Is the judgment binding to the defendant’s heirs
(remember, they were not substituted)?
HELD: YES. The validity of the judgment was not affected by the
defendant’s demise for the action survived (partition, eh). The
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decision is binding and enforceable against the successor-in-
interest of the deceased litigant by title subsequent to the
commencement of the action pursuant to Section 47 [b] of Rule
39—Rule on Res Judicata.
Now, in our outline in appeal, the general rule is when you appeal,
you only file a notice of appeal and you pay the docket. The
important requirement there is notice of appeal but, we said in
some cases, aside from notice of appeal, there is a second
requirement which is the RECORD ON APPEAL.
This time, the period to appeal is not only 15 but 30 days and a
record on appeal is only required in special proceedings or in civil
cases where multiple appeals are allowed. Never mind special
proceedings, saka na ‘yun. It sounds strange because what we’ve
studied so far, multiple appeals are not allowed in civil cases, there
should only be one appeal. Kaya nga interlocutory orders are not
appealable, precisely to avoid order on appeal in a civil case. We
will explain this later.
RECORD ON APPEAL
Sec. 6. Record on appeal; form and contents thereof. The full
names of all the parties to the proceedings shall be stated in the
caption of the record on appeal and it shall include the judgment
or final order from which the appeal is taken and, in chronological
order, copies of only such pleadings, petitions, motions and all
interlocutory orders as are related to the appealed judgment or
final order for the proper understanding of the issue involved,
together with such data as will show that the appeal was
perfected on time. If an issue of fact is to be raised on appeal, the
record on appeal shall include by reference all the evidence,
testimonial and documentary, taken upon the issue involved. The
reference shall specify the documentary evidence by the exhibit
numbers or letters by which it was identified when admitted or
offered at the hearing, and the testimonial evidence by the names
of the corresponding witnesses. If the whole testimonial and
documentary evidence in the case is to be included, a statement
to that effect will be sufficient without mentioning the names of
the witnesses or the numbers or letters of exhibits. Every record
on appeal exceeding twenty (20) pages must contain a subject
index. (6a)
A record on appeal is simply a reproduction of all the pleadings
filed by the parties, all the motions filed by the parties, all the
orders issued by the court and the final judgment rendered by the
court arranged in chronological order.
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For EXAMPLE: Juan de la Cruz versus Pedro Santos. Record on
appeal. Normally, it starts with this phrase—
“Be it remembered the following proceedings took place in the
court below:
Par. 1. On January 5, 1998, plaintiff filed a complaint against
defendant as follows: -- (so kopyahin mo ‘yung complaint.
Practically it is mechanical work, eh.)
Par. 2. On January 25, 1998, defendant filed an answer – (kopyahin
mo ang answer)
Par. 3. On March 5, 1998, the court rendered judgment – (kopyahin
mo na naman.)”
How long? Gaano kakapal yan? Depende. For example, the case
lasted for more than two years. So practically, the record on appeal
may amount to hundreds of pages. That is why the period to
appeal is increased from 15 to 30 if the law requires a record on
appeal because of the possibility that you may not be able to
complete everything within 15 days. Sometimes the 30-day period
can be extended.
Q: Do you have to include there every motion, every order of the
case?
A: No, the law says you reproduce in chronological order copies of
only such pleadings, motions, petitions, and all interlocutory orders
as are related to the appealed judgment or final order for the
proper understanding of the issues involved. This is to allow the
appellate court to review the order appealed from.
But there are some motions na hindi na kailangan. For example,
the case will be set for trial next week. Sabi ng defendant, “Motion
to postpone, I am not ready because I am suffering from diarrhea.”
So the trial was postponed. Kailangan pa bang ilagay ang motion na
yan? That is not necessary to understand the issue. Piliin mo lang
ang importante.
Now, bakit kailangan ‘yang record on appeal? Bakit sa ordinary
appeal, hindi man kailangan? Because in Ordinary Civil Actions,
when the appeal is perfected, the clerk of court of the RTC
transmits the entire record to the CA. So andoon na lahat yan. But
in special proceedings or in civil cases where multiple appeals are
allowed, when an order or judgment is rendered, the case
continues pa. So, the records are not yet elevated. So, how can the
CA understand what happened without the records? That is called
the record on appeal.
Q: Give an example of a civil action where multiple appeals are
allowed.
A: Section 4 of Rule 36, where several judgments will be rendered
in one case:
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RULE 36, Sec. 4. Several judgments. - In an action against several
defendants, the court may, when several judgment is proper,
render judgment against one or more of them, leaving the action
to proceed against the others. (4)
And to be more specific, that rule was applied by the SC in the case
of
MUNICIPALITY OF BIÑAN vs. GARCIA
180 SCRA 576
FACTS: Municipality of Binan filed expropriation cases against
several landowners because it would like to expropriate their land
for public use. All of them were named as co-defendants in one
complaint. Landowner A filed a motion for separate trial (Rule 31).
The court granted it. The court rendered a decision expropriating
the land of A. Nauna siya. As for the other landowners, the case
continued.
ISSUE #1: Can A appeal already from the decision rendered against
him or must he wait for the decision to be rendered against the
other landowners?
HELD: YES, A can now appeal because the order was already final
against A. There is something more for the court to do but only
with respect to the other defendants. But as far as A is concerned,
there is nothing more for the court to do.
So when the judgment is already rendered against the other
landowners, they can now also appeal. So there could be two or
more final judgments and two or more appeals.
ISSUE #2: Suppose the case was tried against all of them (sabay ba)
and there was one decision against them—so sabay-sabay sila mag-
appeal. Is record on appeal required?
HELD: NO, only notice of appeal because there is only one decision.
Q: Why is it that in ordinary civil cases, normally a record on
appeal is not required?
A: Ordinarily, when the case is over and you say that you
are appealing, the entire record of the case will be elevated to the
CA. But in the case of BIÑAN, there is judgment against landowner
A and he wants to appeal, the record cannot be brought to the CA
because the case will still be tried with respect to landowners B, C
and D. So for the CA to know what happened, a record on appeal is
needed.
ROMAN CATHOLIC ARCHBISHOP OF MANILA vs. COURT OF
APPEALS
258 SCRA 186 [1996]
HELD: Multiple appeals are allowed in:
1.) Special proceedings;
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2.) Actions for recovery of property with accounting;
3.) Actions for partition of property with accounting;
4.) Special civil actions of eminent domain (expropriation);
5.) Special civil actions for foreclosure of mortgage.
“The rationale behind allowing more than one appeal in the same
case is to enable the rest of the case to proceed in the event that a
separate and distinct case is resolved by the court and held to be
final.”
The enumeration cited in ROMAN CATHOLIC CASE is taken from the
ruling of the SC in the cases of MIRANDA vs. CA (71 SCRA 295) and
DE GUZMAN vs. CA (74 SCRA 222). In these cases, when you file
only a notice of appeal without the record on appeal, it will not
suffice. So it will be dismissed.
Q: What if the party filed a record on appeal without a
notice of appeal? Should the appeal be dismissed?
A: NO, the appeal will not be dismissed because the filing of
the record on appeal is harder to comply with than the filing of a
notice of appeal. The filing of the record on appeal is more
expressive of the desire of the party to appeal. (Peralta vs. Solon,
77 Phil. 610)
Now, let us try to tie this up with what may be appealed and what
may not be appealed, let’s go back to section 1 *g+ of Rule 41:
Section 1. Subject of appeal. - An appeal may be taken from a
judgment or final order that completely disposes of the case, or of
a particular matter therein when declared by these Rules to be
appealable.
No appeal may be taken from:
xxxxx
(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.
xxxxx
Take note that as a GENERAL RULE: a judgment for or against one
or more of several parties or in separate claims, counterclaims,
cross-claims, etc., while the main case is pending, cannot be
appealed because that will result to multiple appeals, unless the
court allows an appeal therefrom, in which case, multiple appeals
would now be possible.
Q: Cite examples of civil actions where, by direct provision of the
Rules, the law mentions that the judgment is already final and
appealable despite the fact that the case still goes on with respect
to the other issues.
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A: The case of MUNICIPALITY OF BIÑAN vs. GARCIA which is now
expressly provided for in Rule 67, Section 4, (on Expropriation):
Sec. 2. Entry of plaintiff upon depositing value with authorized
government depositary — Upon the filing of the complaint or at
any time thereafter and after due notice to the defendant, the
plaintiff shall have the right to take or enter upon the possession
of the real property involved if he deposits with the authorized
government depositary an amount equivalent to the assessed
value of the property for purposes of taxation to be held by such
bank subject to the orders of the court. Such deposit shall be in
money, unless in lieu thereof the court authorizes the deposit of a
certificate of deposit of a government bank of the Republic of the
Philippines payable on demand to the authorized government
depositary. x x x x x x
Did you notice that an Order of Expropriation MAY BE APPEALED?
When there is an order of expropriation - the court says, “Alright,
the property is declared expropriated.” Tapos na ba ang case? NOT
YET because there is still a Part 2 which the determination of just
compensation. So, technically, it does not yet really dispose of the
case BUT by express provision of the law, the order is already
appealable. That is an instance where multiple appeals may arise in
one civil case.
Another example is Rule 69 on Partition:
RULE 69, Sec. 2. Order for partition, and partition by agreement
thereunder. - If after the trial the court finds that the plaintiff has
the right thereto, it shall order the partition of the real estate
among all parties in interest. Thereupon the parties may, if they
are able to agree, make the partition among themselves by
proper instruments of conveyance, and the court shall confirm
the partition so agreed upon by all the parties, and such partition,
together with the order of the court confirming the same, shall be
recorded in the registry of deeds of the place in which the
property is situated. (2a)
A final order decreeing partition and accounting may be appealed
by any party aggrieved thereby. (n)
A final order decreeing partition is appealable. But the case will go
on because if the first order is that there is a co-ownership, then
there should be a partition. Ang sunod is how to partition. As a
matter of fact, the court may even hire commissioners as to how to
partition but in the meantime, the order to partition is already
appealable although it did not completely disposed of the civil
action.
Sec. 7. Approval of record on appeal. Upon the filing of the record
on appeal for approval and if no objection is filed by the appellee
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within five (5) days from receipt of a copy thereof, the trial court
may approve it as presented or upon its own motion or at the
instance of the appellee, may direct its amendment by the
inclusion of any omitted matters which are deemed essential to
the determination of the issue of law or fact involved in the
appeal. If the trial court orders the amendment of the record, the
appellant, within the time limited in the order, or such extension
thereof as may be granted, or if no time is fixed by the order
within ten (10) days from receipt thereof, shall redraft the record
by including therein, in their proper chronological sequence, such
additional matters as the court may have directed him to
incorporate, and shall thereupon submit the redrafted record for
approval, upon notice to the appellee, in like manner as the
original draft. (7a)
What you have to remember here is that in appeals, where a
record on appeal is required, the law requires an approval. The
record on appeal has to be approved by the court. In ordinary cases
where you only file a notice of appeal, approval is not required. A
record on appeal has to be approved because the other party is
given the right to object your record on appeal.
The possible grounds for objections are – necessary pleadings were
not produced like kulang-kulang ang record on appeal [kulang-
kulang din siguro yung nag-file]; or, you did not reproduce the
pleading properly.
Sec. 8. Joint record on appeal. Where both parties are appellants,
they may file a joint record on appeal within the time fixed by
section 3 of this Rule, or that fixed by the court. (8a)
Q: Is it possible that both sides will appeal?
A: Yes, when both are not satisfied.
Suppose both plaintiff and defendant will want to appeal and a
record on appeal is required, it would be tedious. Para walang gulo
at para makatipid, the plaintiff and the defendant will file a joint
record on appeal, tapos hati tayo sa gastos.
WHEN APPEAL IS DEEMED PERFECTED
Let us now go to Section 9 of Rule 41 which is one of the most
important provisions – when is appeal deemed perfected. Now, if
you are asked this question: HOW DO YOU PERFECT AN APPEAL?
This question is not the same as WHEN IS THE APPEAL DEEMED
PERFECTED?
Q: How do you perfect an appeal?
A: By:
1.) Filing a NOTICE OF APPEAL, generally within 15 days; or
by
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2.) Filing A NOTICE OF APPEAL and RECORD ON APPEAL
WITHIN 30 DAYS.
It is perfected according to Section 9, and it is important to
determine the exact date when the appeal is considered as
perfected because of the doctrine that from the moment the
appeal is perfected, the RTC automatically loses jurisdiction of the
case. And by fiction of law, the jurisdiction is automatically
transferred to the CA, although the records as still with the RTC.
Therefore it is important to determine the exact date.
Sec. 9. Perfection of appeal; effect thereof. A party’s appeal by
notice of appeal is deemed perfected as to him upon the filing of
the notice of appeal in due time.
A party’s appeal by record on appeal is deemed perfected as to
him with respect to the subject matter thereof upon the approval
of the record on appeal filed in due time.
In appeals by notice of appeal, the court loses jurisdiction over
the case upon the perfection of the appeals filed in due time and
the expiration of the time to appeal of the other parties.
In appeals by record on appeal, the court loses jurisdiction only
over the subject matter thereof upon the approval of the records
on appeal filed in due time and the expiration of the time to
appeal of the other parties.
In either case, prior to the transmittal of the original record or the
record on appeal, the court may issue orders for the protection
and preservation of the rights of the parties which do not involve
any matter litigated by the appeal, approve compromises, permit
appeals of indigent litigants, order execution pending appeal in
accordance with section 2 of Rule 39, and allow withdrawal of the
appeal. (9a)
WHEN ONLY NOTICE OF APPEAL IS REQUIRED
Q: When only a notice of appeal is required, when is an
appeal deemed perfected?
A: First and third paragraph: “A party’s appeal by record on
appeal is deemed perfected as to him with respect to the subject
matter thereof upon the approval of the record on appeal filed in
due time. x x x In appeals by notice of appeal, the court loses
jurisdiction over the case upon the perfection of the appeals filed in
due time and the expiration of the time to appeal of the other
parties.”
This was taken in the case of DELGADO vs IAC (147 SCRA 258). Let’s
compose a problem based on that case:
PROBLEM: I received a copy of the decision on March 31 so I have
15 days to appeal i.e. up to April 15. My opponent received the
decision on April 10. So ang opponent ko naman ang bilang niya is
from April 10 to April 25. Iba ang 15 days niya, iba din sa akin.
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Q: Since I received the decision on March 31, I filed my notice of
appeal on April 5, is the appeal perfected?
A: Yes, as far as I am concerned.
Q: How about the other side?
A: Not yet, because as of April 5, he has not yet received a
copy of the decision. He will start computing from April 10. So as of
now, it is already perfected only by 50%.
Q: Suppose by April 25 which is the last day of 15-day period of my
opponent, he did not file anything. Nag-expire na. What will
happen now?
A: Then as of April 25, the appeal is now fully perfected (100%)
because as far as I am concerned, I have already filed a notice of
appeal. As far as he is concerned, his 15-day period to appeal has
lapsed. Therefore, the case is now ripe for elevation. This is what
the third paragraph means, “In appeals by notice of appeal, the
court loses jurisdiction over the case upon the perfection of the
appeals filed in due time and the expiration of the time to appeal of
the other parties.” You have to look at it from the viewpoint of both
parties.
That is the time for the clerk of court to elevate the records. It is
from that moment that the court has lost 100% jurisdiction over
the case from the viewpoint of both parties.
Up to now, despite this provision, I’m still receiving these kind of
orders from the courts. Nakalagay doon: “A notice of appeal having
been filed by the defendant on this date, the appeal is now deemed
perfected and let the record now be elevated to the CA.” My Golly!
This is WROOOONG! The appeal is perfected only as far as the
defendant is concerned why decree it as perfected? Tiningnan mo
lang yung isang side eh. Paano kung ‘yung plaintiff mag-file pa ng
motion for execution pending appeal?
So, do not elevate the record until the 15-day period has expired
on BOTH SIDES. This is the correct interpretation of the Rules. We
will now go to some interesting cases:
UNIVERSAL FAR EAST CORP. vs. COURT OF APPEALS
131 SCRA 642
FACTS: On March 31, both Epi and Hilde received a copy of the
decision. Epi won, Hilde lost. From the viewpoint of both, April 15 is
the last day to appeal. On April 5, Hilde filed a notice of appeal. So
the appeal is perfected from the viewpoint of Hilde. On April 13,
Epi file a motion to execute pending appeal. Was the motion filed
on time? Yes, because Epi can file the motion between March 31
and April 15. On April 25, the court granted Epi’s motion.
This is now the argument of Hilde: “*My Golly!+ The order of
execution by Epi is void because the court has already lost
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jurisdiction over the case as of April 25 because From the viewpoint
of both parties, the last day is April 15, after April 15 the period
within which Epi can file a motion to execute has expired.” From the
viewpoint of Hilde, he already filed a notice of appeal on April 5. So,
from the viewpoint of both, the court already lost jurisdiction.
According to Epi: “But I filed my motion on April 13, the court has
not yet lost jurisdiction.” “Ah Yes,” sabi naman ni Hilde, “but the
court acted on your motion on April 25, which is after April 15.”
HELD: Epi is correct. The important point is the date of filing. Thus,
even if the court acts beyond the 15-day period, the order is still
valid. The important thing is the motion to execute pending appeal
was filed within the 15-day period.
“It may be argued that the trial court should dispose of the motion
for execution within the reglementary fifteen-day period. Such a
rule would be difficult, if not impossible, to follow. It would not be
pragmatic and expedient and could cause injustice.”
“The motion for execution has to be set for hearing. The judgment
debtor has to be heard. The good reasons for execution pending
appeal have to be scrutinized. These things cannot be done within
the short period of fifteen days, or in this case, two days. The trial
court may be confronted with other matters more pressing that
would demand its immediate attention.”
So in this case, the court has not yet lost jurisdiction the act on the
motion for execution pending appeal even if it is beyond 15 days,
provided the motion was filed within 15 days.
WHEN RECORD OF APPEAL IS REQUIRED
Q: How about an appeal where a record of appeal is required?
When is the appeal deemed perfected?
A: Second paragraph of Section 9: “A party’s appeal by record on
appeal is deemed perfected as to him with respect to the subject
matter thereof upon the approval of the record on appeal filed in
due time.” So it is not upon the filing of the record of appeal, but
upon the APPROVAL. Because as we said, under Section 7, a record
on appeal has to be approved while a notice of appeal need not be
approved.
As to the fourth paragraph: “In appeals by record on appeal, the
court loses jurisdiction only over the subject matter thereof upon
the approval of the records on appeal filed in due time and the
expiration of the time to appeal of the other parties.” The principle
is the same. But definitely an appeal is not perfected upon the filing
of the record on appeal but upon the approval.
The last point to remember in Section 9. GENERAL RULE: once an
appeal is deemed perfected from the viewpoint of both sides, the
trial court loses jurisdiction over the case. The jurisdiction is
automatically transferred to the Court of Appeals.
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Q: Are there EXCEPTIONS to the rule? Are there things that the trial
court can do even if it has no more jurisdiction? What things or
actions can the trial court do?
A: Last paragraph of Section 9: “In either case, prior to the
transmittal of the original record or the record on appeal, the court
may issue orders for the protection and preservation of the rights of
the parties which do not involve any matter litigated by the appeal,
approve compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with section 2 of Rule 39,
and allow withdrawal of the appeal.”
Lets us outline the last paragraph: Once an appeal is deemed
perfected under Section 9, the RTC loses jurisdiction over the case
and can no longer act in that case.
Q: What things or what actions can the RTC do even if it has
technically lost jurisdiction over the case? Sometimes they call this
as the residual jurisdiction, a.k.a. “dukot” jurisdiction.
A: For as long as the original record or the record on appeal
is not yet transmitted (because it takes some time for the records
to be transmitted) the trial court, despite the fact that it has
already lost jurisdiction, can do the following acts:
1.) to issue orders for the protection and preservation of the
rights of the parties which do not involve in any matter
litigated in the appeal;
2.) to approve compromises between the parties;
3.) to permit appeals to indigent litigants;
4.) to order executions pending appeal in accordance with
Section 2 of Rule 39; and
5.) to allow the withdrawal of the appeal.
6.) The court can order the dismissal of an appeal under
Section 13, Rule 41.
Q: Can the parties settle the case amicably despite the fact that
there is already an appeal?
A: Yes, compromise is welcome anytime.
Q: Now who will approve the compromise?
A: Technically, the court has no jurisdiction. But for as long as the
records are still there, the trial court can approve the compromise.
Now, suppose the records are already transmitted to the CA? Then
you better submit your compromise agreement before the CA.
Sections 10, 11, and 12 are purely administrative provisions.
Sec. 10. Duty of clerk of court of the lower court upon perfection of
appeal. Within thirty (30) days after perfection of all the appeals
in accordance with the preceding section, it shall be the duty of
the clerk of court of the lower court:
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(a) To verify the correctness of the original record or the record
on appeal, as the case may be, and to make a certification of its
correctness;
(b) To verify the completeness of the records that will be
transmitted to the appellate court;
(c) If found to be incomplete, to take such measures as may be
required to complete the records, availing of the authority that he
or the court may exercise for this purpose; and
(d) To transmit the records to the appellate court.
If the efforts to complete the records fail, he shall indicate in his
letter of transmittal the exhibits or transcripts not included in the
records being transmitted to the appellate court, the reasons for
their non-transmittal, and the steps taken or that could be taken
to have them available.
The clerk of court shall furnish the parties with copies of his letter
of transmittal of the records to the appellate court. (10a)
A: Yes, for as long as the record of the case or the record of appeal
has not yet been transmitted to the appellate court, the court may
motu propio, even without any motion, or on motion of the
appellee, the trial court is empowered to dismiss the appeal on the
ground of having been taken out of time.
Q: Can the trial court dismiss the appeal on the ground that the
appeal is dilatory?
A: NO. The trial court has no power to say that the appeal is
dilatory. Such question can only be passed upon by the appellate
court. Otherwise, trial courts can easily forestall review or reversal
of their decisions no matter how erroneous such decisions may be.
(Dasalla vs. Caluag, L-18765. July 31, 1963; GSIS vs. Cloribel, L-
22236, June 22, 1965; Republic vs. Rodriguez, L-26056, May 29,
1969) The only ground for the trial court to dismiss appeal is for
having been taken out of time. That’s all.

Sec. 11. Transcript. Upon the perfection of the appeal, the clerk Don’t confuse that with Rule 39.
shall immediately direct the stenographers concerned to attach to
the record of the case five (5) copies of the transcripts of the Q: Can the prevailing party file a motion for execution pending
testimonial evidence referred to in the record on appeal. The appeal, on the ground that the appeal is dilatory? Any appeal which
stenographers concerned shall transcribe such testimonial is frivolous is intended as dilatory.
evidence and shall prepare and affix to their transcripts an index A: Well, it’s not the appeal that is being questioned but whether
containing the names of the witnesses and the pages wherein there is a ground for execution pending appeal. Ang jurisprudence
their testimonies are found, and a list of the exhibits and the niyan magulo eh: NO, the trial court cannot do that. Only the CA
pages wherein each of them appears to have been offered and can determine whether the appeal is dilatory. But there are cases
admitted or rejected by the trial court. The transcripts shall be where the SC said YES because that can be a good reason.
transmitted to the clerk of the trial court who shall thereupon
arrange the same in the order in which the witnesses testified at Pero dito (Rule 41), iba ang tanong. The court is not being asked to
the trial, and shall cause the pages to be numbered consecutively. grant an execution pending appeal but being asked to dismiss an
(12a) appeal. Ah, ito talaga hindi pwede. NEVER, because of Section 13,
Rule 41 – there is only one ground, filed out of time. Yaaan!
Sec. 12. Transmittal. The clerk of the trial court shall transmit to
the appellate court the original record or the approved record on
appeal within thirty (30) days from the perfection of the appeal,
together with the proof of payment of the appellate court docket
and other lawful fees, a certified true copy of the minutes of the
proceedings, the order of approval, the certificate of correctness,
the original documentary evidence referred to therein, and the
original and three (3) copies of the transcripts. Copies of the
transcripts and certified true copies of the documentary evidence
shall remain in the lower court for the examination of the parties.
(11a)

Sec. 13. Dismissal of appeal. Prior to the transmittal of the original

record or the record on appeal to the appellate court, the trial
court may motu proprio or on motion dismiss the appeal for
having been taken out of time. (14a)

Q: May the RTC dismiss the appeal?

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Rule 42
PETITION FOR REVIEW
FROM THE REGIONAL TRIAL COURTS
TO THE COURT OF APPEALS
Q: What are the modes of appeal from RTC to the CA?
A: It’s either ORDINARY APPEAL (Rule 41) or PETITION FOR
REVIEW (Rule 42).
Rule 41 refers to an ordinary appeal from the RTC to the CA – yung
notice of appeal. Here, the RTC rendered a decision pursuant to its
ORIGINAL JURISDICTION.
‘Eto namang Rule 42 (Petition for review) is the mode of appeal
from the RTC to the CA in cases decided by the RTC pursuant to its
APPELLATE JURISDICTION. So, the case here actually originated in
the MTC, then it was appealed to the RTC under Rule 40. And now,
from the RTC, you want to go to the CA. Hence, the mode of appeal
is not (Rule 41) Notice of Appeal but RULE 42 – Petition for Review.
For the first time, there is now a rule governing petitions for review
from the RTC to the CA. Prior to July 1, 1997, there was none.
Although there were guidelines then – in jurisprudence, decided
cases and SC circulars.
Petition for review under Rule 42 is the remedy against a decision
of the RTC in aid of its appellate jurisdiction.
A criminal case was decided by the MTC which was
affirmed by the RTC. The CA dismissed a petition from a decision of
the RTC where accused filed a special civil action for certiorari. Is
the dismissal correct? Why?
Ramos, et al. v. People, et al., G.R. No. 171565, July 13, 2010
Under the Rules, appeals to the CA in cases decided by
the RTC in the exercise of its appellate of its jurisdiction shall be
by petition for review under Rule 42. (Sec.1). what was filed by
the petitioner before the RTC was a petition for certiorari under
Rule 65.
Indeed, the ground alone that petitioner resorted to an improper
remedy, makes the petition dismissible and undeserving of the
Court’s attention.
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Sps. Lebin v. Mirasol, et al., G.R. No. 164255, September 7, 2011
- Appeal is mere statutory privilege and should be
exercised only in the manner prescribed by law.
- The prescription of appeal within the period laid down
by law is mandatory and jurisdictional because the
failure to perfect the appeal within the prescribed time
causes the judgment or final order to become final to
preclude the appellate court from acquiring jurisdiction
to review the final judgment or final order.
Section 1. How appeal taken; time for filing. A party desiring to
appeal from a decision of the Regional Trial Court rendered in the
exercise of its appellate jurisdiction may file a verified petition for
review with the Court of Appeals, paying at the same time to the
clerk of said court the corresponding docket and other lawful
fees, depositing the amount of P500.00 for costs, and furnishing
the Regional Trial Court and the adverse party with a copy of the
petition. The petition shall be filed and served within fifteen (15)
days from notice of the decision sought to be reviewed or of the
denial of petitioner’s motion for new trial or reconsideration filed
in due time after judgment. Upon proper motion and the
payment of the full amount of the docket and other lawful fees
and the deposit for costs before the expiration of the
reglementary period, the Court of Appeals may grant an
additional period of fifteen (15) days only within which to file the
petition for review. No further extension shall be granted except
for the most compelling reason and in no case to exceed fifteen
(15) days. (n)
Under Section 1, a petition for review under Rule 42 must be
VERIFIED.
Q: Where will you file your petition for review?
A: You file it directly with the CA. Do not file it with the trial
court.
In Rule 41, where the appeal is deemed perfected by simply filing a
notice of appeal, you file your notice of appeal with the RTC. Do
not file it with the CA. But in Rule 42, where the appeal is by
petition for review, you file your petition directly with the CA. Do
not file it with the RTC.
Not only that. Of course, you have to pay the docket and lawful
fees plus P500 for costs. And you must furnish the RTC and the
adverse party with a copy of the petition. That is a new
requirement.
Q: What is the period to file a petition for review ?
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A: The period to file a petition for review is 15 days from receipt of
the RTC judgment or from the order denying the motion for
reconsideration.
Q: Under Section 1, is the 15-day period to file petition for review
extendible?
A: Under Rule 41, the 15-day period to file notice of appeal
is not extendible – no exceptions. But in Rule 42, the 15-day period
to file petition for review is EXTENDIBLE according to the last
sentence of Section 1, provided you pay your docket and other
lawful fees, the CA will grant additional 15 days within which to file
a petition for review.
Q: Where will you file your motion for extension of time to
file petition for review?
A: You file your motion for extension to the CA. The CA
itself will grant the extension.
Q: How many more days can the CA grant?
A: The CA may grant another 15 days and no further
extension can be granted except for the most compelling reasons.
So, original extension is 15 days, and a possible extension of 15
days = total 30 days.
These are technical points. The requirements must be followed
otherwise the petition will be dismissed.
Sec. 2. Form and contents. The petition shall be filed in seven (7)
legible copies, with the original copy intended for the court being
indicated as such by the petitioner, and shall (a) state the full
names of the parties to the case, without impleading the lower
courts or judges thereof either as petitioners or respondents; (b)
indicate the specific material dates showing that it was filed on
time; (c) set forth concisely a statement of the matters involved,
the issues raised, the specification of errors of fact or law, or
both, allegedly committed by the Regional Trial Court, and the
reasons or arguments relied upon for the allowance of the appeal;
(d) be accompanied by clearly legible duplicate originals or true
copies of the judgments or final orders of both lower courts,
certified correct by the clerk of court of the Regional Trial Court,
the requisite number of plain copies thereof and of the pleadings
and other material portions of the record as would support the
allegations of the petition.
The petitioner shall also submit together with the petition a
certification under oath that he has not theretofore commenced
any other action involving the same issues in the Supreme Court,
the Court of Appeals or different divisions thereof, or any other
tribunal or agency; if there is such other action or proceeding, he
must state the status of the same; and if he should thereafter
learn that a similar action or proceeding has been filed or is
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pending before the Supreme Court, the Court of Appeals, or
different divisions thereof, or any other tribunal or agency, he
undertakes to promptly inform the aforesaid courts and other
tribunal or agency thereof within five (5) days therefrom. (n)
Take note of Section 2. Do not implead the lower court or the judge
because nasanay na tayo na pati ‘yung judge naging defendant or
respondent na. We only do that in Certiorari under Rule 65 in
Special Civil Actions, but not on appeal. This is the influence of
Justice Feria because he has penned many cases which has
included the judge as defendant or respondent. So, he said that in
the case of MWSS vs. CA [Aug. 25, 1986], hence we can see his
influence, siningit talaga niya iyan sa kaso na yon.
Now, as to the form [last paragraph], there has to be a Certification
of Non-Forum Shopping, failure to comply with such would mean
the dismissal of the case.
ORTIZ vs. COURT OF APPEALS
299 SCRA 708 [1998]
FACTS: The certification was not signed by the Ortizes but by their
lawyer who has personal knowledge of the fact and contended that
it should be accepted as substantial compliance with the rules.
HELD: The certification was not proper. Strict observance of the
rule is required. In this case, no explanation was given.
“Regrettably, We find that substantial compliance will not suffice in
a matter involving strict compliance. The attestation contained in
the certification on non-forum shopping requires personal
knowledge by the party who executed the same. To merit the
Court’s consideration, Ortizes here must show reasonable cause for
failure to personally sign the certification. The Ortizes must
convince the court that the outright dismissal of the petition would
defeat the administration of justice. However, the Ortizes did not
give any explanation to warrant their exemption from the strict
application of the rule. Utter disregard of the rules cannot justly be
rationalized by harking on the policy of liberal construction.”
Q: Under paragraph [c], what issues can you raise in the
petition for review?
A: Errors of fact, errors of law, or both – mixed errors of
fact or law.
Somebody asked this QUESTION: hindi ba kapag error of law dapat
sa SC yan? Hindi na dadaan sa CA? How do you reconcile this with
the Constitution? Actually, when the law says decisions of the RTC
appealable directly to the SC, it was decided pursuant to its original
jurisdiction. But if it is decided pursuant to its appellate jurisdiction,
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the appeal should be to the CA even on pure questions of law
without prejudice of going to the SC later on.
Sec. 3. Effect of failure to comply with requirements. The failure of
the petitioner to comply with any of the foregoing requirements
regarding the payment of the docket and other lawful fees, the
deposit for costs, proof of service of the petition, and the
contents of and the documents which should accompany the
petition shall be sufficient ground for the dismissal thereof.
Section 3. If you fail to comply with the requirements, tapos ang
petition mo, dismiss!
Sec. 4. Action on the petition. The Court of Appeals may require
the respondent to file a comment on the petition, not a motion to
dismiss, within ten (10) days from notice, or dismiss the petition if
it finds the same to be patently without merit, prosecuted
manifestly for delay, or that the questions raised therein are too
unsubstantial to require consideration. (n)
Sec. 5. Contents of comment. The comment of the respondent
shall be filed in seven (7) legible copies, accompanied by certified
true copies of such material portions of the record referred to
therein together with other supporting papers and shall (a) state
whether or not he accepts the statement of matters involved in
the petition; (b) point out such insufficiencies or inaccuracies as
he believes exist in petitioner’s statement of matters involved but
without repetition; and (c) state the reasons why the petition
should not be given due course. A copy thereof shall be served on
the petitioner. (n)
Sec. 6. Due course. If upon the filing of the comment or such other
pleadings as the court may allow or require, or after the
expiration of the period for the filing thereof without such
comment or pleading having been submitted, the Court of
Appeals finds prima facie that the lower court has committed an
error of fact or law that will warrant a reversal or modification of
the appealed decision, it may accordingly give due course to the
petition. (n)
Q: When you file a petition for review from the RTC to the CA, is
the CA obliged to entertain the petition?
A: No, this is discretionary under Section 6. The CA may or may not
give due course to the petition unlike in ordinary appeal. Yan ang
kaibahan ng ordinary appeal and petition for review.
In ordinary appeal under Rule 41, when you file notice of appeal
and you pay your docket fee, your appeal is automatically
entertained. At least it will be heard by the CA. But in Rule 42, it is
not the same. When you go there, whether your petition for review
will be given due course or not even if you have paid the docket
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fee. Normally, the CA will require you to comment and then
chances are after another month and after reading your petition
and your comment, the CA will refuse to give due course to your
petition, “Your petition is hereby dismissed!” So, you must convince
the CA na may merit baah!
Q: What happens when the petition for review is given due course?
A: The parties will be required to submit their respective
memoranda.
Take note that the RTC is also given the power to issue orders for
the protection of the parties – the same as in Section 8, paragraph
[b].
Sec. 7. Elevation of record. Whenever the Court of Appeals deems
it necessary, it may order the clerk of court of the Regional Trial
Court to elevate the original record of the case including the oral
and documentary evidence within fifteen (15) days from notice.
(n)
Q: Now, when is an appeal by petition for review deemed
perfected?
A: Section 8 [a]. Similar to Rule 41. The same principle:
Sec. 8. Perfection of appeal; effect thereof. (a) Upon the timely
filing of a petition for review and the payment of the
corresponding docket and other lawful fees, the appeal is deemed
perfected as to the petitioner.
The Regional Trial Court loses jurisdiction over the case upon the
perfection of the appeals filed in due time and the expiration of
the time to appeal of the other parties.
However, before the Court of Appeals gives due course to the
petition, the Regional Trial Court may issue orders for the
protection and preservation of the rights of the parties which do
not involve any matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with section 2 of Rule 39,
and allow withdrawal of the appeal. (9a, R41)
(b) Except in civil cases decided under the Rule on Summary
Procedure, the appeal shall stay the judgment or final order
unless the Court of Appeals, the law, or these Rules shall provide
otherwise. (n)
Q: Does the RTC have the power to act despite the fact that the
petition for review is already before the CA? Suppose I lost in the
MTC, and I also lost on appeal in the RTC. I file a petition for review.
What happens to the decision? Can the decision be enforced?
A: NO, it cannot be enforced yet because it is not yet final. We still
have to wait for the appeal to be dismissed or to be entertained
and denied later. Under paragraph [b], the appeal shall stay the
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judgment or final order UNLESS the CA, the law or these rules
should provide otherwise.
Also, based on the opening clause of paragraph [b], except in civil
cases provided in the Rules on Summary Procedure, any part
thereafter appealed to the CA will not stop the implementation of
the RTC decision.

Under Section 21 of the Summary Rules, when a case is started in

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

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

Sec. 9. Submission for decision. If the petition is given due course,

the Court of Appeals may set the case for oral argument or
require the parties to submit memoranda within a period of
fifteen (15) days from notice. The case shall be deemed submitted
for decision upon the filing of the last pleading or memorandum
required by these Rules or by the court itself. (n)

-oOo-

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Rule 43
APPEALS FROM THE COURT OF TAX APPEALS AND
QUASI-JUDICIAL AGENCIES TO THE COURT OF APPEALS
Let us now go to Rule 43 which governs Appeals from the Court of
Tax Appeals and Quasi-Judicial Agencies to the Court of Appeals.
Take note that under Section 9 of BP 129, the CA has the exclusive
appellate jurisdiction to review decisions of all RTC and Quasi-
Judicial Bodies, and Rule 43 is the governing rule on appeals from
quasi-judicial bodies.
The is has already been amended by RA 9282 which elevated the
Court of Tax Appeals to the level of the CA (Sec. 1)
From CTA en Banc the appeal is by petition for review on certiorari
under Rule 45 (Sec. 19) to the SC.
As regards other quasi-judicial bodies you can no longer go to the
SC, even on pure questions of law. Decisions of quasi-judicial
agencies must pass first to the CA even on pure questions of law.
Now what are these quasi-judicial bodies? They are enumerated in
Section 1:
Section 1. Scope. This Rule shall apply to appeals from judgments
or final orders of the Court of Tax Appeals and from awards,
judgments, final orders or resolutions of or authorized by any
quasi-judicial agency in the exercise of its quasi-judicial functions.
Among these agencies are the Civil Service Commission, Central
Board of Assessment Appeals, Securities and Exchange
Commission, Office of the President, Land Registration Authority,
Social Security Commission, Civil Aeronautics Board, Bureau of
Patents, Trademarks and Technology Transfer, National
Electrification Administration, Energy Regulatory Board, National
Telecommunications Commission, Department of Agrarian
Reform under Republic Act No. 6657, Government Service
Insurance System, Employees Compensation Commission,
Agricultural Inventions Board, Insurance Commission, Philippine
Atomic Energy Commission, Board of Investments, Construction
Industry Arbitration Commission, and voluntary arbitrators
authorized by law. (n)
So, very specific! The latest addition there are decisions of
voluntary arbitrators. Prior to that, it can be brought by certiorari
to the SC, but because of a decided case it is now to be brought to
the CA.
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One case under Rule 43 which I want to discuss with you is the case
of
LEPANTO CERAMICS vs. COURT OF APPEALS
237 SCRA 519 [1994]
FACTS: This involves appeals from the Board of Investments (BOI).
Now, as provided in the original Omnibus Investment Code of 1981
during the Marcos era, decisions of the BOI are appealable directly
to the SC. But years later it was nullified by the Judiciary Law
because all decisions of all quasi-judicial bodies are appealed to the
CA.
Four years later the Constitution took effect. In July 1987 during
the term of Cory Aquino, she promulgated E.O. No. 226, the
so-called Omnibus Investment Code of 1987 where provisions from
the old code were merely lifted. And among those included is the
provision on appeals from the BOI where you go directly to the SC.
The position of Lepanto is, the new law (E.O. No. 226) has modified
BP 129 because the old law was modified by BP 129. And since this
is a new law, binalik na naman ang appeal sa SC. So na modify ang
BP 129.
HELD: NO. Lepanto is wrong because when Cory Aquino issued E.O.
No. 226, the New Constitution has taken effect. And under the
1987 Constitution, you cannot increase the appellate jurisdiction of
the SC without its consent and concurrence. In effect, the new law
(E.O. No. 226) increased the work of the SC without its knowledge
and consent therefore the SC did not agree. The SC rejected the
provision that decisions of the BOI are appealable directly to the
SC.
In the case of FABIAN vs. DESIERTO [December 16, 1998], a
provision under RA 6670, which provides that decisions of the
Office of the Ombudsman in administrative disciplinary cases, was
declared unconstitutional because the appellate jurisdiction of the
SC was increased without its advice and consent.
Another case is MATEO vs. CA (247 SCRA 284 [1995]). This is before
the Revised Administrative Code No. 1-95. As I have told you
before, rulings of different constitutional commissions, CSC, COA,
COMELEC should be direct to the SC. That is why the case of
MANCITA vs. BARCINAS (216 SCRA 772) is deemed abandoned
because the new procedure is that decisions of the CSC are now
appealable to the CA.
Sec. 2. Cases not covered. This Rule shall not apply to judgments
or final orders issued under the Labor Code of the Philippines. (n)
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Section 2 refers to decisions of NLRC and the Secretary of Labor.
Their decisions can be brought directly to the SC by way of petition
for Certiorari under Rule 65, not by appeal (Rule 43).
Sec. 3. Where to appeal. An appeal under this Rule may be taken
to the Court of Appeals within the period and in the manner
herein provided, whether the appeal involves questions of fact, of
law, or mixed questions of fact and law. (n)
Sec. 4. Period of appeal. The appeal shall be taken within fifteen
(15) days from notice of the award, judgment, final order or
resolution, or from the date of its last publication, if publication is
required by law for its effectivity, or of the denial of petitioner’s
motion for new trial or reconsideration duly filed in accordance
with the governing law of the court or agency a quo. Only one (1)
motion for reconsideration shall be allowed. Upon proper motion
and the payment of the full amount of the docket fee before the
expiration of the reglementary period, the Court of Appeals may
grant an additional period of fifteen (15) days only within which
to file the petition for review. No further extension shall be
granted except for the most compelling reason and in no case to
exceed fifteen (15) days. (n)
Sec. 5. How appeal taken. Appeal shall be taken by filing a verified
petition for review in seven (7) legible copies with the Court of
Appeals, with proof of service of a copy thereof on the adverse
party and on the court or agency a quo. The original copy of the
petition intended for the Court of Appeals shall be indicated as
such by the petitioner.
Upon the filing of the petition, the petitioner shall pay to the clerk
of court of the Court of Appeals the docketing and other lawful
fees and deposit the sum of P500.00 for costs. Exemption from
payment of docketing and other lawful fees and the deposit for
costs may be granted by the Court of Appeals upon a verified
motion setting forth valid grounds therefor. If the Court of
Appeals denies the motion, the petitioner shall pay the docketing
and other lawful fees and deposit for costs within fifteen (15)
days from notice of the denial. (n)
Sec. 6. Contents of the petition. The petition for review shall (a)
state the full names of the parties to the case, without impleading
the court or agencies either as petitioners or respondents; (b)
contain a concise statement of the facts and issues involved and
the grounds relied upon for the review; (c) be accompanied by a
clearly legible duplicate original or a certified true copy of the
award, judgment, final order or resolution appealed from,
together with certified true copies of such material portions of
the record referred to therein and other supporting papers; and
(d) contain a sworn certification against forum shopping as
provided in the last paragraph of section 2, Rule 42. The petition
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shall state the specific material dates showing that it was filed
within the period fixed herein. (2a)
Sec. 7. Effect of failure to comply with requirements. The failure of
the petitioner to comply with any of the foregoing requirements
regarding the payment of the docket and other lawful fees, the
deposit for costs, proof of service of the petition, and the
contents of and the documents which should accompany the
petition shall be sufficient ground for the dismissal thereof. (n)
Sec. 8. Action on the petition. The Court of Appeals may require
the respondent to file a comment on the petition, not a motion to
dismiss, within ten (10) days from notice, or dismiss the petition if
it finds the same to be patently without merit, prosecuted
manifestly for delay, or that the questions raised therein are too
unsubstantial to require consideration. (6a)
Sec. 9. Contents of comment. The comment shall be filed within
ten (10) days from notice in seven (7) legible copies and
accompanied by clearly legible certified true copies of such
material portions of the record referred to therein together with
other supporting papers. The comment shall (a) point out
insufficiencies or inaccuracies in petitioner’s statement of facts
and issues; and (b) state the reasons why the petition should be
denied or dismissed. A copy thereof shall be served on the
petitioner, and proof of such service shall be filed with the Court
of Appeals. (9a)
Sec. 10. Due course. If upon the filing of the comment or such
other pleadings or documents as may be required or allowed by
the Court of Appeals or upon the expiration of the period for the
filing thereof, and on the basis of the petition or the records the
Court of Appeals finds prima facie that the court or agency
concerned has committed errors of fact or law that would
warrant reversal or modification of the award, judgment, final
order or resolution sought to be reviewed, it may give due course
to the petition; otherwise, it shall dismiss the same. The findings
of fact of the court or agency concerned, when supported by
substantial evidence, shall be binding on the Court of Appeals. (n)
Sec. 11. Transmittal of record. Within fifteen (15) days from notice
that the petition has been given due course, the Court of Appeals
may require the court or agency concerned to transmit the
original or a legible certified true copy of the entire record of the
proceeding under review. The record to be transmitted may be
abridged by agreement of all parties to the proceeding. The Court
of Appeals may require or permit subsequent correction of or
addition to the record. (8a)
Sec. 12. Effect of appeal. The appeal shall not stay the award,
judgment, final order or resolution sought to be reviewed unless
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the Court of Appeals shall direct otherwise upon such terms as it

may deem just. (10a)

Sec. 13. Submission for decision. If the petition is given due course,
the Court of Appeals may set the case for oral argument or
require the parties to submit memoranda within a period of
fifteen (15) days from notice. The case shall be deemed submitted
for decision upon the filing of the last pleading or memorandum
required by these Rules or by the Court of Appeals. (n)

-oOo-

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PROCEDURE IN THE COURT OF APPEALS
Rule 44
ORDINARY APPEALED CASES
We will now go to Rule 44 which is Procedure in the Court of
Appeals in Ordinary Appealed Cases. This is just the continuation of
Rule 41. When a case is appealed to the CA under Rule 41, this is
ordinary appeal (decisions of RTC pursuant to its original
jurisdiction), so what will happen here?
Take note that the procedure in the CA is not only found in the
Rules of Court. The Internal Rules of the CA is found in its so called
Revised Internal Rules of the Court of Appeals (RIRCA).
So it is best that you go over it but for purposes of the BAR, it is not
necessary.
Anyway, take note that under the present rules when the RTC clerk
transmits the records to the CA, nandoon na ang docket fee. Now,
once original record is there, next is you will receive a notice from
the clerk of court that all the records are there, all the
documentary evidence. And you are now given 45 days to file an
appellant’s brief under Section 7 which has to be answered by the
appellee under Section 8. And the appellant is given the option to
file an appellant’s reply brief under Section 9. As to the contents of
the appellant’s brief and appellee’s brief, you have Sections 13 and
14.
Section 1. Title of cases. In all cases appealed to the Court of
Appeals under Rule 41, the title of the case shall remain as it was in
the court of origin, but the party appealing the case shall be further
referred to as the appellant and the adverse party as the appellee.
(1a, R46)
Sec. 2. Counsel and guardians. The counsel and guardians ad litem
of the parties in the court of origin shall be respectively considered
as their counsel and guardians ad litem in the Court of Appeals.
When others appear or are appointed, notice thereof shall be
served immediately on the adverse party and filed with the court.
(2a, R46)
Sec. 3. Order of transmittal of record. If the original record or the
record on appeal is not transmitted to the Court of Appeals within
thirty (30) days after the perfection of the appeal, either party may
file a motion with the trial court, with notice to the other, for the
transmittal of such record or record on appeal. (3a, R46)
Sec. 4. Docketing of case. Upon receiving the original record or the
record on appeal and the accompanying documents and exhibits
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transmitted by the lower court, as well as the proof of payment of
the docket and other lawful fees, the clerk of court of the Court of
Appeals shall docket the case and notify the parties thereof.
Within ten (10) days from receipt of said notice, the appellant, in
appeals by record on appeal, shall file with the clerk of court seven
(7) clearly legible copies of the approved record on appeal,
together with the proof of service of two (2) copies thereof upon
the appellee.
Any unauthorized alteration, omission or addition in the approved
record on appeal shall be a ground for dismissal of the appeal. (n)
Sec. 5. Completion of record. Where the record of the docketed
case is incomplete, the clerk of court of the Court of Appeals shall
so inform said court and recommend to it measures necessary to
complete the record. It shall be the duty of said court to take
appropriate action towards the completion of the record within the
shortest possible time. (n)
Sec. 6. Dispensing with complete record. Where the completion of
the record could not be accomplished within a sufficient period
allotted for said purpose due to insuperable or extremely difficult
causes, the court, on its own motion or on motion of any of the
parties, may declare that the record and its accompanying
transcripts and exhibits so far available are sufficient to decide the
issues raised in the appeal, and shall issue an order explaining the
reasons for such declaration. (n)
Sec. 7. Appellant’s 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. (10a, R46)
Sec. 8. Appellee’s brief. Within forty-five (45) days from receipt of
the appellant’s 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 thereof upon the appellant.
(11a, R46)
Sec. 9. Appellant’s reply brief. Within twenty (20) days from receipt
of the appellee’s brief, the appellant may file a reply brief
answering points in the appellee’s brief not covered in his main
brief. (12, R46)
Sec. 10. Time for filing memoranda in special cases. In certiorari,
prohibition, mandamus, quo warranto and habeas corpus cases,
the parties shall file, in lieu of briefs, their respective memoranda
within a non-extendible period of thirty (30) days from receipt of
the notice issued by the clerk that all the evidence, oral and
documentary, is already attached to the record. (13a, R46)
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The failure of the appellant to file his memorandum within the
period therefor may be a ground for dismissal of the appeal. (n)
Sec. 11. Several appellants or appellees or several counsel for each
party. Where there are several appellants or appellees, each
counsel representing one or more but not all of them shall be
served with only one copy of the briefs. When several counsel
represent one appellant or appellee, copies of the brief may be
served upon any of them. (14a, R46)
Sec. 12. Extension of time for filing briefs. Extension of time for the
filing of briefs will not be allowed, except for good and sufficient
cause, and only if the motion for extension is filed before the
expiration of the time sought to be extended. (15, R46)
Sec. 13. Contents of appellant’s brief. The appellant’s 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 appellant’s 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 appellant’s
brief shall contain, as an appendix, a copy of the judgment or final
order appealed from. (16a, R46)
Sec. 14. Contents of appellee’s brief. The appellee’s brief shall
contain, in the order herein indicated, the following:
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(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) Under the heading "Statement of Facts," the appellee shall state
that he accepts the statement of facts in the appellant’s brief, or
under the heading "Counter-Statement of Facts," he shall point out
such insufficiencies or inaccuracies as he believes exist in the
appellant’s statement of facts with references to the pages of the
record in support thereof, but without repetition of matters in the
appellant’s 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. (17a, R46)
This is like a thesis or writing a book – Appellant’s and appellee’s
brief.
Q: What is a brief? What is its purpose?
A: The word “BRIEF” is derived from the Latin word “BREVIS” [AND
BRUTTHEAD] and the French word “BREFIE”, and literally means a
short or condensed statement. Its purpose is to present to the
court in concise form the points and questions in controversy, and
by fair argument on the facts and law of the case, to assist the
court to arrive at a just and fair conclusion. It should be prepared as
to minimize the labor of the court in the examination of the record
upon which the appeal is heard. (Estiva vs. Cawit, 59 Phil. 67;
Casilan vs. Chavez, L-17334, Feb. 28, 1962)
So you summarize the case, facts, issues, arguments, discussions,
citations of laws. So its like a debate no?
Q: Is the 45-day period to file brief extendible?
A: YES, that is section 12. The worst violator here is the Solicitor
General – extension 30 days, 2nd extension 30 days! Ganyan sila!
Sometimes it takes them 18 months to prepare a brief. Sabagay,
marami din kasi silang trabaho ‘no?
Q: When do you file the motion for extension of time to file brief?
A: The motion for extension of time is filed BEFORE the expiration
of the time sought to be extended. (Section 12) BUT sometimes the
SC can be liberal about extension. One case is
MOSKOWSKY vs. COURT OF APPEALS
230 SCRA 657
FACTS: The CA here granted the appellant a period of 90 days
counted from August 3, 1991. So after the 45 days plus 90 days pa
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from August 3, 1991. Said 90-day period ended on November 1,
1991. On November 4, 1991, or 3 days after the extended period,
instead of filing a brief, appellant filed another motion for a 20-day
extension.
ISSUE #1: Was the motion for extension filed on time based on
Section 12?
HELD: YES. “Said ninety-day period would end on November 1,
1991. November 1 is a regular holiday. Then President Aquino
declared November 2, 1991 as a special holiday. The next day,
November 3, 1991 turned out to be a Sunday. The next business
day was, therefore, November 4, 1991 - a Monday.”
“The abovementioned motion was, therefore, filed on time, i.e.,
the motion for the extension sought was filed before the expiration
of the time sought to be extended.”
ISSUE #2: When do you compute the 20-day extension being asked
for? Is it on November 1, the expiration of the period? Or on
November 4, the day of the filing of the motion?
HELD: “The appellant specifically manifested that they will need
another extension from today (November 4) within which to file
appellant’s brief, and ‘today’ is November 4. So, the period
commences to run on November 4.” So very liberal no?
Take note of Section 15 – what questions may an appellant raise on
appeal:
Sec. 15. Questions that may be raised on appeal. Whether or not
the appellant has filed a motion for new trial in the court below, he
may include in his assignment of errors any question of law or fact
that has been raised in the court below and which is within the
issues framed by the parties. (18, R46)
So the appellant cannot raise before the CA on appeal any question
of law or fact that has not been raised in the lower court and not
within the issues framed by the parties. He cannot, for the first
time on appeal, say something which was not raised in the trial
court. Another thing is, he cannot change his theory on appeal,
either theory on the cause of action or theory on the defense.
Now, sometimes it is easy to detect whether there is change of
theory. The only possible exception maybe is when you raise for
the first time on appeal something which you never raised as in
lack of jurisdiction unless estoppel will set in as in the case of TIJAM
vs. SIBONGHANOY. Illustrating this point is the case of
RIVERA vs. COURT OF APPEALS
176 SCRA 169 [1989]
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FACTS: The spouses Martinez sold their house and lot to Rivera.
Later, they filed a complaint against Rivera declaring the sale as null
and void on the ground that the sale is a mortgage. The court
dismissed the complaint. So the ruling of the trial court was that
the sale was valid. But on the CA, Martinez spouses prayed that
they maybe allowed to redeem the property.
The CA reversed the trial court and allowed Martinez spouses to
redeem the property. Now, Rivera appealed to the SC, contending
that Martinez change the theory of their case because in the
original complaint the latter prayed for the annulment of the sale,
and in the CA they prayed that they be allowed to redeem the
property.
ISSUE: Was there a change of theory of the Martinez spouses?
HELD: There was NO CHANGE of theory. There was no surprise
against Rivera or to the CA. The real purpose of the Martinez
spouses in asking for the nullity of the contract is to enable them to
recover the property from Rivera.
“Prescinding from those allegations and from the prayer all clearly
set out in the complaint, it is fair to conclude that the real purpose
in asking for the nullity of the contract of sale is to enable the
Martinez spouses to recover or redeem the property they deeded
in favor of Rivera. It would be absurd to pray for the nullity of an
agreement and stop there. There would be a vacuum and the law,
like nature, abhors a vacuum.”
“In the CA, they persisted in their claim to entitlement of the right
to recover, redeem, or repurchase. This agreement can not be
construed as change of theory; it is persistence, plain and simple. It
does not leave any interstice in the entire theory of the case.
Consistency in the position of the private respondents runs
throughout the presentation of their claim.”
Q: Is the appellee required to make assignment of errors?
A: The APPELLEE is not required to make assignment of errors,
except when his purpose is to seek affirmation of the judgment on
other grounds or reasons not stated in the decision. (Saenz vs.
Mitchell, 60 Phil. 69; Gorospe vs. Peñaflorida, 101 Phil. 886; Dy vs.
Kuison, L-16654, Nov. 30, 1961)
Q: If the appellee seeks modification of the judgment, is it enough
for him to make assignment of errors?
A: In such a case, the appellee must appeal; an assignment of error
is not enough. (Oquiñena vs. Canda, 87 Phiil. 120; Gorospe vs.
Peñaflorida, supra; Dy vs. Kuison, supra)
GENERAL RULE: If you are the winning party, you may appeal the
decision if you think you are entitled for more. So, you must
appeal. You cannot just state of errors in the appellee’s brief.
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EXCEPTION: You may state assignment of errors to support the
decision – to support, not to change, the decision. If you want to
change the decision, you appeal (general rule).
RULE 45 Petition for Review on Certiorari or Appeal by Certiorari
Metropolitan Bank & Trust Company v. Absolute Management
Corporation, G.R. No. 170498. January 9, 2013
Petition for review on certiorari (Rule 45); contents; not an
absolute rule that will lead to dismissal; liberal construction.
The court significantly pointed out in F.A.T Kee Computer Systems,
Inc. v. Online Networks International, Inc. that the requirement in
Section 4, Rule 45 of the Rules of Court is not meant to be an
absolute rule whose violation would automatically lead to the
petition’s dismissal. The Rules of Court has not been intended to be
totally rigid. In fact, the Rules of Court provides that the Supreme
Court “may require or allow the filing of the such pleadings, briefs,
memoranda, or documents, as it may deem necessary within such
periods and under such conditions as it may consider appropriate”;
and “*i+f the petition is given due course, the Supreme Court may
require the elevation of the complete record of the case or
specified parts thereof within fifteen (15) days from notice.” These
provisions are in keeping with the overriding standard that
procedural rules should be liberally construed to promote their
objective and to assist the parties in obtaining a just, speedy, and
inexpensive determination of every action or proceeding.
Special People, Inc. Foundation, represented by its Chairman,
Roberto P. Cericos v. Nestor M. Canda, et al., G.R. No. 160932.
January 14, 2013
Petition for review on certiorari (Rule 45); only questions of law
may be raised; exceptions.
It is a settled rule, indeed, that in the exercise of our power of
review, the Court is not a trier of facts and does not normally
undertake the re-examination of the evidence presented by the
contending parties during the trial of the case. The Court relies on
the findings of fact of the Court of Appeals or of the trial court, and
accepts such findings as conclusively and binding unless any of the
following exceptions, obtains, namely: (a) when the findings are
grounded entirely on speculation, surmises, or conjectures; (b)
when the inference made is manifestly mistaken, absurd or
impossible; (c) when there is grave abuse of discretion; (d) when
the judgment is based on a misapprehension of facts; (e) when the
findings of fact are conflicting; (f) when in making its findings the
Court of Appeals or the trial court 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
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the trial court; (h) when the findings are conclusions without
citation of specific evidence on which they are based; (i) when the
facts set forth in the petition as well as in the petitioner’s main and
reply briefs are not disputed by the respondent; (j) when the
findings of fact are premised on the supposed absence of evidence
and contradicted by the evidence on record; and (k) when the
Court of Appeals or the trial court manifestly overlooked certain
relevant facts not disputed by the parties, which, if properly
considered, would justify a different conclusion. However, none of
the aforementioned exception applies herein.
Heirs of Luis A. Luna and Remegio A. Luna, et al. v. Ruben S.
Afable, et al., G.R. No. 188299. January 23, 2013
Petition for review on certiorari (Rule 45); only questions of law
may be raised; exceptions. It is well settled that in a petition for
review on certiorari under Rule 45 of the Rules of Court, only
questions of law may be raised. This Court, in numerous instances,
has had the occasion to explain that it is not its function to analyze
or weigh evidence all over again. As a rule, the Court respects the
factual findings of the CA and of quasi-judicial agencies like the
DAR, giving them a certain measure of finality. There are, however,
recognized exceptions to this rule, one of which is when the
findings of fact are conflicting.
Nenita Quality Foods Corporation v. Crisostomo Galabo, et
al.; G.R. No. 174191. January 30, 2013
Petition for review on certiorari (Rule 45); only questions of law
may be raised; exceptions. A Rule 45 petition resolves only
questions of law, not questions of fact. This rule is read with the
equally settled dictum that factual findings of the CA are generally
conclusive on the parties and are therefore not reviewable by this
Court. By way of exception, we resolve factual issues when, as
here, conflict attended the findings of the MTCC and of the RTC, on
one hand, and of the CA, on the other. Of minor note, but which
we deem important to point, the petition needlessly impleaded the
CA, in breach of Section 4, Rule 45 of the Rules of Court.
Republic of the Philippines, represented by the Department of
Public Works and Highways v. Heirs of Spouses Pedro Bautista
and Valentina Malabanan, G.R. No. 181218. January 28, 2013
Petition for review on certiorari (Rule 45); only questions of law
may be raised; applicable to expropriation cases. This Court is not a
trier of facts. Questions of fact may not be raised in a petition
brought under Rule 45, as such petition may only raise questions of
law. This rule applies in expropriation cases. Moreover, factual
findings of the trial court, when affirmed by the CA, are generally
binding on this Court. An evaluation of the case and the issues
presented leads the Court to the conclusion that it is unnecessary
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to deviate from the findings of fact of the trial and appellate courts.
Under Section 8 of Rule 67 of the Rules of Court, the trial court
sitting as an expropriation court may, after hearing, accept the
commissioners’ report and render judgment in accordance
therewith. This is what the trial court did in this case. The CA
affirmed the trial court’s pronouncement in toto. Given these facts,
the trial court and the CA’s identical findings of fact concerning the
issue of just compensation should be accorded the greatest
respect, and are binding on the Court absent proof that they
committed error in establishing the facts and in drawing
conclusions from them. There being no showing that the trial court
and the CA committed any error, we thus accord due respect to
their findings.
Spouses Ricardo and Elena Golez v. Spouses Carlos and Amelita
Navarro, G.R. No. 192532. January 30, 2013
court; (4) The terms of the judgment are not clear enough and
there remains room for interpretation thereof; or (5) It appears
that the writ of execution has been improvidently issued, or that it
is defective in substance, or issued against the wrong party, or that
the judgment debt has been paid or otherwise satisfied, or the writ
issued without authority.
In such case, considerations of justice and equity dictate that there
be some remedy available to the aggrieved party. Likewise, the
Court, in the interest of equity or when justice demands, may
interchangeably treat an appeal as a petition for certiorari under
Rule 65 of the Revised Rules of Court, and vice versa.
In the present case, the Court finds meritorious grounds to admit
the petition and absolve the petitioners from their procedural
lapse.

Petition for review on certiorari (Rule 45); review errors of Leticia Diona, represented by her Attorney-in-fact, Marcelina
judgment; orders granting execution are interlocutory and should Diona v. Romeo Balangue, Sonny Balangue, Reynaldo Balangue,
be subject of petition for certiorari under Rule 65; exceptions. The and Esteban Balangue, Jr.; G.R. No. 173559. January 7, 2013
petition filed in this case is one for review on certiorari under Rule
45 of the Rules of Court. Petitions filed under this rule bring up for
review errors of judgment. It is an ordinary appeal and the petition
must only raise questions of law which must be distinctly set forth
and discussed. The present petition, however, assails the RTC Order
of execution dated December 21, 2009 and alias writ of execution
dated May 27, 2010. It is a settled rule that orders granting
execution are interlocutory orders; hence the petitioners should
have filed a petition for certiorari under Rule 65. This is
categorically provided in Rule 41, viz:
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
applicable.
No appeal may be taken from:
xxxx
(f) An order of execution;
xxxx
In all the above instances where the judgment or final order is not
appealable, the aggrieved party may file an appropriate special civil
action under Rule 65.
Nevertheless, there are exceptions to this rule, one of which is
when the writ of execution varies the judgment. Thus, in Shugo
Noda & Co., Ltd. V. Court of Appeals the Court acknowledged that,
in the past, it considered an appeal to be a proper remedy when it
is perceived that the order varies, or may not be in consonance
with, the essence of the judgment. Other exceptions include: (1)
There has been a change in the situation of the parties making
execution inequitable or unjust; (2) Execution is sought to be
enforced against property exempt from execution; (3) It appears
that the controversy has been submitted to the judgment of the

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

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

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

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

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

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

-oOo-

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Rule 47
ANNULMENT OF JUDGMENTS OR
FINAL ORDERS AND RESOLUTIONS
Rule 47 is an entirely new rule which governs the remedy of
annulment of judgments or final orders or resolutions. We already
met this remedy in judiciary law. The CA has original exclusive
jurisdiction to annul final judgments and resolutions of the RTC.
(Section 9, BP 129) So it is an entirely original action for annulment
of judgment of the RTC.
Now, that should not be confused with certiorari, prohibition and
mandamus which fall under the original concurrent jurisdiction of
the CA. Rule 47 or annulment of judgment of the RTC falls within
the exclusive original jurisdiction of the CA.
Take note that in an appeal, the judgment appealed from is valid.
But in annulment under Rule 47, the judgment is being asked to be
declared void.
Under the prior law there was no direct rule governing that
remedy. The only guideline for annulment of judgments of the RTC
are decided cases. Now for the first time the 1997 Rules have a
definite rule on how to enforce this remedy.
Section 1. Coverage. This Rule shall govern the annulment by the
Court of Appeals of judgments or final orders and resolutions in
civil actions of Regional Trial Courts for which the ordinary
remedies of new trial, appeal, petition for relief or other
appropriate remedies are no longer available through no fault of
the petitioner. (n)
Nature of the action
An action for annulment of judgment is a remedy in law
independent of the case where the judgment sought to be annulled
was rendered. The purpose of such action is to have the final and
executory judgment set aside so that there will be a renewal of
litigation. It is resorted to in cases where the ordinary remedies of
new trial, appeal, petition for relief from judgment, or other
appropriate remedies are no longer available through no fault of
the petitioner, and is based only on two grounds: extrinsic fraud,
and lack of jurisdiction or denial of due process (Alaban vs. C\A 470
SCRA 697).
This remedy is available only where the ordinary remedies of new
trial, appeal, petition for review or appropriate remedies are no
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longer available through no fault of the petitioner. Hence, if such
remedies were not availed of due to the petitioner’s fault, the
petition will be dismissed (Republic vs. Asset Privatization Trust GR
141241, Nov. 22, 2005; Sec. 1, Rule 47).
Like a petition for relief, an action for the annulment of a judgment
is a recourse equitable in character, allowed only in exceptional
cases as where there is no available or adequate remedy (Ramos
vs. Combong 473 SCRA 499). The remedy may no longer be invoked
where the party has availed himself of the remedy of new trial,
appeal, petition for relief or other appropriate remedy and lost or
where he has failed to avail himself of those remedies through his
fault or negligence (Heirs of Maura So vs. Obliosca 542 SCRA 406)
Well of course the remedy of new trial under Rule 37 must be
availed of before the judgment or order becomes final and
executory. Also, the remedy of appeal must also be availed before
the judgment or order becomes final and executory.
In petition for relief under Rule 38, although the judgment or order
is already final and executory, it must be done still within 60 days
and 6 months.
Q: Suppose all the abovementioned remedies have lapsed, is there
a remedy left?
A: Section I says YES. There is annulment of judgment but only on
limited grounds.
Who may file the action
The petitioner need not be a party to the judgment sought to be
annulled. What is essential is that the petitioner is one who can
prove his allegation that the judgment was obtained by the use of
fraud and collusion and that he was affected thereby (Alaban vs.
CA; Islamic Da’Wah Council of the Phil. vs. CA 178 SCRA 178). An
action for annulment can be filed by one who was not a party to
the action in which the assailed judgment was rendered. It is a
remedy in law independent of the case where the judgment sought
to be annulled is promulgated (Villanueva vs. Nite 496 SCRA 459).
Sec. 2. Grounds for annulment. The annulment may be based only
on the grounds of extrinsic fraud and lack of jurisdiction.
Extrinsic fraud shall not be a valid ground if it was availed of, or
could have been availed of, in a motion for new trial or petition
for relief. (n)
Q: What are the grounds for annulment of judgment under Section
2?
A: The grounds recognized by law for annulment of judgment are
the only two (2):
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1.) The judgment was secured through extrinsic fraud; or
Extrinsic fraud should not be a valid ground if availed of, or could
have been availed of, in a motion for new trial or petition for relief.
2.) The judgment is void for lack of jurisdiction.
The rationale for the restriction is to prevent the extraordinary
action from being used by a losing party to make a complete farce
of a duly promulgated decision that has long become final and
executory.
Annulment of Judgment; exception to final judgment rule; lack of
due process as additional ground.
Leticia Diona, represented by her Attorney-in-fact, Marcelina
Diona v. Romeo Balangue, Sonny Balangue, Reynaldo Balangue,
and Esteban Balangue, Jr.; G.R. No. 173559. January 7, 2013
A petition for Annulment of Judgment under Rule 47 of the Rules of
Court is a remedy granted only under exceptional circumstances
where a party, without fault on his part, has failed to avail of the
ordinary remedies of new trial, appeal, petition for relief or other
appropriate remedies. Said rule explicitly provides that it is not
available as a substitute for a remedy which was lost due to the
party’s own neglect in promptly availing of the same. “The
underlying reason is traceable to the notion that annulling final
judgments goes against the grain of finality of judgment, litigation
must end and terminate sometime and somewhere, and it is
essential to an affective administration of justice that once a
judgment has become final, the issue or cause involved therein
should be laid to rest.”
While under Section 2, Rule 47 of the Rules of Court a Petition for
Annulment of Judgment may be based only on the grounds of
extrinsic fraud and lack of jurisdiction, jurisprudence recognizes
lack of due process as additional ground to annul a judgment.
In Arcelona v. Court of Appeals, this Court declared that a final and
executory judgment may still be set aside if, upon mere inspection
thereof, its patent nullity can be shown for having been issued
without jurisdiction or for lack of due process of law.
First Ground: EXTRINSIC FRAUD
Petition for relief under Rule 38 is a remedy against a final and
executory judgment kaya lang merong deadline – 6 months and 60
days. So after these periods lapse, wala na.
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Sa petition for relief, apat yon eh: Fraud, accident, mistake and
excusable negligence. In annulment of judgment, wala na yung
accident, mistake and excusable negligence. But yung EXTRINSIC
FRAUD natira pa. That is the only one which can be left behind
under Rule 47.
Q: Now what is meant by extrinsic fraud ?
A: We already discussed this. Fraud, to be a ground for nullity of a
judgment, must be extrinsic – that fraud done by the adverse party
which prevented a party from having a trial or from presenting his
case fully.
Therefore, intrinsic fraud is not a ground for new trial. It is not a
ground for petition for relief. And it is not a ground for annulment.
COSMIC LUMBER CORP. vs. COURT OF APPEALS
256 SCRA 168 [1996]
FACTS: Cosmic Lumber owns a piece of land occupied by some
squatters. Now, Cosmic Lumber executed a board resolution for a
special power of attorney authorizing an attorney-in-fact to initiate,
institute and file in any court action for the ejectment of the
squatters from its property. Then the agent by virtue of the power
of attorney, filed a case to recover a portion of this property from
its occupants before the RTC.
While the case was going on, the agent (the attorney-in- fact)
entered into a compromise agreement with the squatters. In the
compromise agreement, the attorney-in-fact sold the property or
land to the squatter for only P26,000. And the compromise
agreement was approved by the court and it became final and
executory.
Now it was several years later that the Cosmic Lumber heard about
it. The Cosmic Lumber filed an action to annul the judgment before
the CA on the ground of extrinsic fraud.
The CA: The case will be dismissed because that is not one of the
grounds for annulment of judgment because the alleged nullity of
the compromise judgment, because petitioner’s attorney-in-fact
was not authorized to sell the property. That does not amount to
extrinsic fraud. That was fraud by your own representative, it is not
fraud by the other party. The one who exercised fraud was your
own attorney-in-fact, not the squatter. So kaya nga that is not a
ground. The CA dismissed the action. So Cosmic Lumber went to
the SC.
HELD: “The petition to annul the decision of the trial court in civil
case before the CA was proper. Emanating as it did from a void
compromise agreement, the trial court had no jurisdiction to
render a judgment based thereon.” So there is another ground –
lack of jurisdiction.
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“The highly reprehensible conduct of attorney-in-fact in the civil
case constituted an extrinsic or collateral fraud by reason of which
the judgment rendered thereon should have been struck down.
Not all the legal semantics in the world can becloud the
unassailable fact that petitioner was deceived and betrayed by its
attorney-in-fact. The latter deliberately concealed from petitioner,
her principal, that a compromise agreement had been forged with
the end result that a portion of petitioner’s property was sold
literally for a song, for P26,000. Thus completely kept unaware of
its agent’s artifice, petitioner was not accorded even a fighting
chance to repudiate the settlement so much so that the judgment
based thereon became final and executory.”
“For sure, the CA restricted the concept of fraudulent acts within
too narrow limits. Fraud may assume different shapes and be
committed in as many different ways and here lies the danger of
attempting to define fraud. For man in his ingenuity and fertile
imagination will always contrive new schemes to fool the unwary.”
So fraud by your attorney- in-fact is also considered as a ground for
annulment.
Second Ground: JUDGMENT IS VOID FOR LACK OF JURISDICTION
Lack of jurisdiction
Lack of jurisdiction as a ground for annulment of judgment refers to
either lack of jurisdiction over the person of the defending party or
over the subject matter of the claim. Where the court has
jurisdiction over the defendant and over the subject matter of the
case, its decision will not be voided on the ground of absence of
jurisdiction (Republic vs. “G” Holdings GR No. `141241 November
22, 2005). The petitioner must show not a mere grave abuse of
discretion but an absolute lack of jurisdiction (Republic vs.”G”
Holdings 475 SCRA 608). A claim of grave abuse of discretion will
support a petition for certiorari under Rule 65 but it will not
support an action for annulment of a judgment.
In a petition for annulment of judgment, based on lack of
jurisdiction, petitioner must show an absolute lack of authority to
hear and decide the case. There would be no valid ground to grant
the petition for annulment where the error raised pertain to the
trial court’s exercise of jurisdiction, not the absence of jurisdiction
(Heirs of Maura So vs. Obliosca 542 SCRA 406).
If we follow jurisprudence, there is a third ground which is implied:
LACK OF DUE PROCESS. When there is lack of due process there is
also lack of jurisdiction.
Q: How do you attack a judgment which is void?
A: It depends:
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a.) when the judgment is null and void on its very face,
the judgment may be attacked:
1.) DIRECTLY; or
2.) COLLATERALLY;
b.) when the nullity is not apparent on the face of the
judgment, the judgment can be attacked only be
DIRECTLY attacked.
Q: What is a COLLATERAL ATTACK?
A: Meaning, there is no need for me to file a case but I can invoke
its nullity anytime because a judgment which is void on its very face
can be attacked at anytime, in any manner anywhere.
EXAMPLE of Collateral attack: You are moving to execute a
judgment. I will oppose the execution on the ground that the
judgment is void. That is collateral attack. I’m just saying that the
judgment cannot be enforced because it is null and void. But I
never filed a direct action to declare its nullity. That can be done if
the judgment is void on its very face.
Q: What is a DIRECT ATTACK?
A: By direct attack means you must file an action to declare its
nullity. So there must be a case for its annulment.
Again, when the judgment is null and void on its face, (1) you may
file a direct action to annul it under Rule 47. Or, (2) it can also be
attacked collaterally, a direct attack is not necessary. A collateral
attack will suffice.
EXAMPLE: RTC decided a forcible entry. By simply reading the
decision, obviously the RTC has no jurisdiction. Therefore, I can
attack it directly by filing a case for its annulment under Rule 47.
OR, I will not file a case under Rule 47 but I will attack it collaterally.
Meaning, bayaan ko lang. I will raise that issue during execution. If
you move for execution, I can oppose, “You cannot execute
because the RTC has no jurisdiction over the case. Therefore the
judgment is void.” So it is not necessary to file a case to declare the
decision as null and void. That is collateral attack.
But if the judgment is not void on its face but the nullity is intrinsic
or nakatago – not obvious ba – the rule is, you must file a direct
action for its annulment which must be done before the action is
barred by laches or estoppel. So it is necessary to file a case for
annulment of judgment under Rule 47.
Well of course, certiorari under Rule 65 is also a ground for
attacking a judgement but the trouble is you are limited to 3
grounds: Lack of jurisdiction, excess of jurisdiction and grave abuse
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of discretion. Walang extrinsic fraud. That is governed by Rule 65
and not by Rule 47.
And under Rule 65, you can avail of certiorari only within 60 days.
But if you want annulment, it could be longer under Rule 47. That is
under section 3. That could be a big difference.
Moreover, what do you attack in certiorari? Normally, interlocutory
orders eh. But a final judgment can be attacked by annulment
under Rule 47.
Now, those remedies were summarized in the case of
BAYOG vs. NATINO
258 SCRA 378 [1996]
HELD: It is a settled rule that a final and executory judgment may
be set aside in three (3) ways. To wit:
1. By petition for relief from judgment under Rule 38;
2. When the judgment is void for want of jurisdiction, by
direct attack, by certiorari, annulment of judgment or by
collateral attack; and
3. When the judgment was obtained by fraud and Rule 38
cannot be applied anymore.
So those are the summary of the remedies.
ISLAMIC DA’WAH COUNCIL vs. COURT OF APPEALS
178 SCRA 178
ISSUE #1: Can a person, who is not a party to the judgment, file an
action for annulment of judgment?
HELD: A person who is not a part of the judgment may sue for its
annulment PROVIDED that he can prove [1] that the judgment was
obtained through fraud and collusion and [2] that he would be
adversely affected thereby.
ISSUE #2: Suppose the judgment had already been fully executed
and implemented, can you still file a case for annulment of
judgment?
HELD: YES. We will also annul the execution. If there is no
execution yet, the proper remedy normally is you file an action for
annulment and ask for the issuance of a writ of preliminary
injunction so that it will not be enforced. Pero kung na-enforced na
pwede pa man din ba.
SUMMARY: Possible remedies of defendant declared in DEFAULT:
1.) Rule 9, Section 3 [b] – Motion to lift Order of Default,
there is still no judgment; ground: FAME;
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2.) Rule 37 – Motion for new trial, judgment not yet final;
Ground: FAME;
3.) Rule 38 – Petition for relief within 60 days and 6 months,
judgment is already final; ground: FAME;
4.) Rule 41 – Appeal within 15 days; ground: Default
judgment is contrary to law or evidence;
5.) Rule 47 – Annulment of judgment; Ground: Extrinsic
Fraud;
6.) Rule 65 – Certiorari; ground: Lack or excess of
jurisdiction or grave abuse of discretion
Q: What is the period to file an action for annulment on the ground
of extrinsic fraud?
A: Section 3:
Sec. 3. Period for filing action. If based on extrinsic fraud, the
action must be filed within four (4) years from its discovery; and if
based on lack of jurisdiction, before it is barred by laches or
estoppel. (n)
This is based on decided cases. If your ground is extrinsic fraud, the
action is filed within four (4) years from its discovery. Now, if it is
based on lack of jurisdiction, before it is barred by laches or
estoppel. That is very elastic – laches or estoppel.
Although if you look at the strict law based on Article 1144 of the
New Civil Code, the prescriptive period really is 10 years for any
action on judgment. That is the strict law but it could be barred
earlier by laches or estoppel.
Now as to the contents of the petition, we have Section 4:
Sec. 4. Filing and contents of petition. The action shall be
commenced by filing a verified petition alleging therein with
particularity the facts and the law relied upon for annulment, as
well as those supporting the petitioner’s good and substantial
cause of action or defense, as the case may be.
The petition shall be filed in seven (7) clearly legible copies,
together with sufficient copies corresponding to the number of
respondents. A certified true copy of the judgment or final order
or resolution shall be attached to the original copy of the petition
intended for the court and indicated as such by the petitioner.
The petitioner shall also submit together with the petition
affidavits of witnesses or documents supporting the cause of
action or defense and a sworn certification that he has not
theretofore commenced any other action involving the same
issues in the Supreme Court, the Court of Appeals or different
divisions thereof, or any other tribunal or agency; if there is such
other action or proceeding, he must state the status of the same,
and if he should thereafter learn that a similar action or
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proceeding has been filed or is pending before the Supreme
Court, the Court of Appeals, or different divisions thereof, or any
other tribunal or agency, he undertakes to promptly inform the
aforesaid courts and other tribunal or agency thereof within five
(5) days therefrom.(n)
Take note that yung mga affidavits of your witnesses or documents
supporting your cause of action must be attached already. You
correlate this with Rule 37, Section 2 on new trial and Rule 38,
Section 3 on petition for relief.
What does Rule 37, Section 2 and Rule 38, Section 3 say about
motion for new trial or petition for relief? There is also an
AFFIDAVIT OF MERITS showing the nature of the fraud, accident
and the meritorious cause of action or defense. So more or less
that principle also applies in Rule 47.
Sec. 5. Action by the court. Should the court find no substantial
merit in the petition, the same may be dismissed outright with
specific reasons for such dismissal.
Should prima facie merit be found in the petition, the same shall
be given due course and summons shall be served on the
respondent. (n)
Under Section 5, the court may dismiss outright the petition if
there is no merit or no substantial merit. If there is, then the same
shall be given due course and summons shall be served on the
respondent.
Take note there will be SUMMONS here. Unlike in Rule 46, walang
summons yon. But here, there will be summons by the CA. That is
the difference between Rule 47 and Rule 46.
Sec. 6. Procedure. The procedure in ordinary civil cases shall be
observed. Should a trial be necessary, the reception of the
evidence may be referred to a member of the court or a judge of a
Regional Trial Court. (n)
Q: What happens if the judgment is annulled? Can the plaintiff re-
file the case?
A: YES, because it is as if there was no judgment. Section 7:
Sec. 7. Effect of judgment. A judgment of annulment shall set
aside the questioned judgment or final order or resolution and
render the same null and void, without prejudice to the original
action being refiled in the proper court. However, where the
judgment or final order or resolution is set aside on the ground of
extrinsic fraud, the court may on motion order the trial court to
try the case as if a timely motion for new trial had been granted
therein. (n)
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So if the judgment is set aside on the ground of extrinsic fraud, the
action can be re-filed. The court may, on motion, order the trial
court to try the case as if a timely motions for the trial had been
granted therein. That is similar to Rule 38, Section 6. Remember
when the court grants a petition for relief, the case will be tried all
over again as if a timely motion for new trial has been filed.
Q: What happens if by the time you re-file the case the prescriptive
period has already lapsed?
A: As a general rule, while the action for annulment is pending, the
prescriptive period for filing is interrupted. That is Section 8:
Sec. 8. Suspension of prescriptive period. The prescriptive period
for the refiling of the aforesaid original action shall be deemed
suspended from the filing of such original action until the finality
of the judgment of annulment. However, the prescriptive period
shall not be suspended where the extrinsic fraud is attributable to
the plaintiff in the original action. (n)
Q: What happens if a judgment is annulled and it was earlier
executed?
A: Section 9:
Sec. 9. Relief available. The judgment of annulment may include
the award of damages, attorney’s fees and other relief.
If the questioned judgment or final order or resolution had
already been executed, the court may issue such orders of
restitution or other relief as justice and equity may warrant under
the circumstances. (n)
Under Section 9, the court may issue order of restitution or other
reliefs as justice and equity may warrant. That is similar to Rule 39,
Section 5 – in case of execution pending appeal and the appealed
judgment is reversed, the court will now order mutual restitution
pursuant to Rule 39, Section 5.
Sec. 10. Annulment of judgments or final orders of Municipal Trial
Courts. An action to annul a judgment or final order of a
Municipal Trial Court shall be filed in the Regional Trial Court
having jurisdiction over the former. It shall be treated as an
ordinary civil action and sections 2, 3, 4, 7, 8 and 9 of this Rule
shall be applicable thereto. (n)
And the QUESTION is asked: “Meron bang action for annulment of
judgments of MTC?” Yaann!
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Answer: YES. Kung merong annulment of judgment of the RTC, by
implication, meron din ang MTC. You cannot file it in the CA. You
file it in the RTC.
Annulment of judgment of the MTC will fall under the rule on
jurisdiction of the RTC – any action which does not belong to the
jurisdiction of any other courts (Section 19 [6], BP 129) or, an action
the subject matter of which is incapable of pecuniary estimation
(Section 19 [1], BP 129) That would be the authority.
Now it’s very clear, meron talaga. It is now stated categorically
there is an action for annulment of judgment also of the MTC. It
must be filed in the RTC having jurisdiction over the MTC. The
grounds are identical as those found in the previous section. So this
is an entirely new section.
Annulment of judgments of quasi-judicial bodies
In Macalalag vs. Ombudsman 424 SCRA 741, 745 the Court ruled
that Rule 47 of the 1997 Rules of Civil Procedure on annulment of
judgments or final orders and resolutions covers annulment of the
judgments of RTC by the CA.
The silence of BP 129 on the jurisdiction of the CA to annul
judgments or final orders and resolutions of quasi-judicial bodies
like the DARAB indicates its lack of such authority (Springfield
Development Corporation vs. RTC of Mis Or. GR 142628 Feb 6
2007). It is hence, submitted that a party aggrieved who desires an
annulment of a judgment or resolution of quasi-judiciaL BODY
ENUMERATED UNDER Rule 43 may avail of a petition for review to
the CA under said rule and not an action to annul the judgment or
resolution.
CERTIORARI (RULE 65)
Called a “supervisory or superintending writ,” this remedy is
availed of to annul or modify the proceedings of a tribunal, board
or officer exercising judicial or extrajudicial functions which has
acted without or in excess of jurisdiction, or with grave abuse of
discretion amounting to lack of jurisdiction. For this petition to
prosper, it is necessary to allege and show that there is no more
appeal, or any other plain, speedy, and adequate remedy in the
ordinary course of law.
As a rule, where appeal is available, certiorari cannot be availed of
unless it can be shown that appeal is not speedy, or adequate.
Hence, the basic question to be considered is: Does the petitioner
have the remedy of appeal or any other remedy? If the answer is in
the affirmative, certiorari is not available, as a rule. However, even
if appeal is available, if it is not adequate, speedy or equally
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beneficial as certiorari, a petition for certiorari may be availed of
(Landbank vs. CA 409 SCRA 455)
The task of the court in a certiorari proceeding is to determine
whether the lower court committed grave abuse of discretion
(Marcopper Mining vs. Solidbank Corporation, GR 134049 June 17,
2004). It is a remedy narrow in scope. It is not a general utility tool
in the legal workshop. Its function is to raise only questions of
jurisdiction and no other. It cannot be used for any other purpose
(Landbank vs. CA, supra). Do not file a certiorari if your purpose is
to raise a factual issue or to ask for a re-evaluation of the facts and
the evidence (PILTEL vs. NTC 410 SCRA 82).
The sole object of the writ is to correct errors of jurisdiction or
grave abuse of discretion. The phrase “grave abuse of discretion”
has a precise meaning in law, denoting abuse of discretion “too
patent and gross as to amount to an evasion of a positive duty, or a
virtual refusal to perform the duty enjoined or act in contemplation
of law, or where the power is exercised in an arbitrary and despotic
manner by reason of passion and personal hostility.” It does not
encompass an error of law. Nor does it include a mistake in the
appreciation of the contending parties’ respective evidence or the
evaluation of their relative weight.
The Court cannot be tasked to go over the proofs presented by the
parties and analyze, assess and weigh them all over again to
ascertain if the trial court or quasi-judicial agency and the appellate
court were correct in according superior credit to this or that piece
of evidence of one party or the other. The sole office of a writ of
certiorari is the correction of errors of jurisdiction including the
commission of grave abuse of discretion amounting to lack of
jurisdiction, and does not include the review of factual findings
based thereon (Remy’s Freight Service GR 14167 June 8, 2006)
The petition shall be filed not later than 60 days from notice of the
judgment, order or resolution. In case a motion for reconsideration
was filed, the 60-day period starts not from the notice of judgment
but from notice of the denial of the motion for reconsideration
(Docena vs. Lapser 355 SCRA 658).
COLLATERAL ATTACK OF A JUDGMENT
Distinction between a direct and collateral attack
A direct attack of a judgment is made through an action or
proceeding the main object of which is to annul, set aside or enjoin
the enforcement of such judgment if not yet carried into effect; or
if the property has been disposed of, the aggrieved party may sue
for recovery. A collateral attack is made when, in another action to
obtain a different relief, an attack on the judgment is made as an
incident in said action. This is proper only when the judgment, on
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its face, is null and void, as where it is patent that the court which
rendered said judgment has no jurisdiction (Co vs. CA 196 SCRA
705)

Examples: A petition for certiorari under Rule 65 is a direct attack.

It is filed primarily to have an order annulled. An action for
annulment of a judgment is likewise a direct attack on a judgment.
A motion to dismiss a complaint for collection of sum of money
filed by a corporation against the defendant on the ground that the
plaintiff has no legal capacity to sue is a collateral attack on the
corporation. A motion to dismiss is incidental to the main action for
a sum of money. It is not filed as an action intended to attack the
legal existence of the plaintiff (Macabingkil vs. PHHC 72 SCRA 326;
Co vs. CA 196 SCRA 705).
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Rule 48

PRELIMINARY CONFERENCE
Preliminary Conference is like a pre-trial in the CA. Iba lang ang
tawag but it is really a pre-trial because there are cases which fall
under the original jurisdiction of the CA, like annulment of
judgment of the RTC. Its purpose is the same as in Rule 18 on pre-
trial.

Section 1. Preliminary conference. At any time during the

pendency of a case, the court may call the parties and their
counsel to a preliminary conference:
(a) To consider the possibility of an amicable settlement, except
when the case is not allowed by law to be compromised;
(b) To define, simplify and clarify the issues for determination;
(c) To formulate stipulations of facts and admissions of
documentary exhibits, limit the number of witnesses to be
presented in cases falling within the original jurisdiction of the
court, or those within its appellate jurisdiction where a motion for
new trial is granted on the ground of newly discovered evidence;
and
(d) To take up such other matters which may aid the court in the
prompt disposition of the case. (n)

Sec. 2. Record of the conference. The proceedings at such

conference shall be recorded and, upon the conclusion thereof, a
resolution shall be issued embodying all the actions taken therein,
the stipulations and admissions made, and the issues defined. (n)

Sec. 3. Binding effect of the results of the conference. Subject to

such modifications which may be made to prevent manifest
injustice, the resolution in the preceding section shall control the
subsequent proceedings in the case unless, within five (5) days
from notice thereof, any party shall satisfactorily show valid cause
why the same should not be followed. (n)

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Rule 49

ORAL ARGUMENTS

The CA may or may not require oral argument. Just read that.

Section 1. When allowed. At its own instance or upon motion of a

party, the court may hear the parties in oral argument on the
merits of a case, or on any material incident in connection
therewith. (n)
The oral argument shall be limited to such matters as the court
may specify in its order or resolution. (1a, R48)

Sec. 2. Conduct of oral argument. Unless authorized by the court,

only one counsel may argue for a party. The
duration allowed for each party, the sequence of the
argumentation, and all other related matters shall be as directed
by the court. (n)

Sec. 3. No hearing or oral argument for motions. Motions shall not

be set for hearing and, unless the court otherwise directs, no
hearing or oral argument shall be allowed in support thereof. The
adverse party may file objections to the motion within five (5)
days from service, upon the expiration of which such motion shall
be deemed submitted for resolution. (2a, R49)

How are cases decided in the CA? Normally, you file your petition;
submit argument in writing; then you wait for the decision. But
sometimes, the CA is provoked by legal issues. So the CA would
decide to listen to oral arguments of the parties, especially when
the case is controversial.

Under Section 3, one difference between motions filed in the RTC

and in the CA is that:
a.) in the RTC, there must be notice of hearing (Rule 15)
attached to the motion, otherwise it will be denied;
b.) in the CA, there is no need for notice of hearing to be
attached to the motion.

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Rule 50 might be beyond the period to appeal. So on its face, there is no

showing whether the appeal was within the 30 day period or not.
DISMISSAL OF APPEAL
The first ground is called the MATERIAL DATA RULE – that the
record on appeal must show on its face that the appeal was taken
on time.
Grounds for dismissal of appeal in the CA. Take note that under
Section 1, an appeal may be dismissed by the CA on its own (motu
In the 1973 case of BERKENKOTTER VS. CA, this ground was
propio) or upon motion of the appellee. And there are nine (9)
supposed to be abolished already where the SC said that from now
grounds for dismissal of appeal under Section 1:
on, We will no longer follow the material data rule. Meaning this is
abandoned.
Section 1. Grounds for dismissal of appeal. An appeal may be
dismissed by the Court of Appeals, on its own motion or on that
So, I wonder bakit binalik ito sa 1997 Rules because since 1973, the
of the appellee, on the following grounds:
SC has already refused to apply this ground. So when they drafted
(a) Failure of the record on appeal to show on its face that the
the Rules, dapat tinanggal na yon. Bakit nandito na naman? They
appeal was taken within the period fixed by these Rules;
might have forgotten that it has been abandoned by
(b) Failure to file the notice of appeal or the record on appeal
jurisprudence, unless the intention is to return it.
within the period prescribed by these Rules;
(c) Failure of the appellant to pay the docket and other lawful fees
Second Ground: (b) FAILURE TO FILE THE NOTICE OF APPEAL OR
as provided in section 5 of Rule 40 and section 4 of Rule 41;
THE RECORD ON APPEAL WITHIN THE PERIOD PRESCRIBED BY
(d) Unauthorized alterations, omissions or additions in the
THESE RULES;
approved record on appeal as provided in section 4 of Rule 44;
(e) Failure of the appellant to serve and file the required number
Take note that under paragraph [a], the appeal was filed on time
of copies of his brief or memorandum within the time provided by
but the record on appeal does not show that it was filed on time.
these Rules;
(f) Absence of specific assignment of errors in the appellant’s
But here in paragraph [b], the appeal is really out of time. Take
brief, or of page references to the record as required in section
note that you can raise this ground in the trial court. The trial court
13, paragraphs (a), (c), (d) and (f) of Rule 44;
is also authorized to dismiss an appeal on this ground (Rule 41,
(g) Failure of the appellant to take the necessary steps for the
Section 13). But assuming that you failed to raise it in the trial
correction or completion of the record within the time limited by
court, you can raise it in the CA.
the court in its order;
(h) Failure of the appellant to appear at the preliminary
Q: Are you under estoppel for not raising it earlier in the RTC?
conference under Rule 48 or to comply with orders, circulars, or
Meaning, why did you not bring it out earlier, bakit hinintay pa sa
directives of the court without justifiable cause; and
CA?
(i) The fact that the order or judgment appealed from is not
A: There is no estoppel here because actually this is a jurisdictional
appealable. (1a; En Banc Resolution, Feb. 17, 1998)
challenge. When the notice of appeal is filed out of time or beyond
15 days, actually the judgment of the RTC has already become final
and executory. So you are now challenging the jurisdiction of the
CA. Meaning, you are trying to say that the CA has no jurisdiction to
First Ground: (a) FAILURE OF THE RECORD ON APPEAL TO SHOW
review on appeal a judgment of the RTC which has already been
ON ITS FACE THAT THE APPEAL WAS TAKEN WITHIN THE PERIOD
final and executory.
FIXED BY THESE RULES;

Q: Does the CA have the power to review and reverse an RTC

So this only applies in cases where a record on appeal is required.
judgment which is already final and executory?
Failure to show on its face that the appeal was perfected on time –
A: No more. The judgment which is already final cannot be changed
meaning, the appeal might have been perfected on time but by
by the CA. Meaning, the CA has no jurisdiction to entertain the
reading the record on appeals, you will not see it.
appeal in that case. So in effect, it is a jurisdictional challenge which
can be raised even in the CA even if not raised earlier in the RTC.
Normally, that happens when the party did not state the exact date
when he received the decision. He may just state the date of the
decision without stating the date of receipt. With that, the court
will presume that you received it on the date of the decision. It

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Third Ground: (c) FAILURE OF THE APPELLANT TO PAY THE DOCKET
AND OTHER LAWFUL FEES AS PROVIDED IN SECTION 5 OF RULE 40
AND SECTION 4 OF RULE 41;
Section 5 of Rule 40 is about filing of docket fees if you appeal from
the MTC to the RTC. Section 4 of Rule 41 refers to filing of docket
fees when the appeal is from RTC to CA.
Q: When do you pay the docket fee ?
A: Within the 15-day period, you already pay it in the RTC clerk of
court. Unlike before you pay it with the CA later. That is why as I
said, failure to pay the docket fee in the RTC is a ground for
dismissal of the appeal because of this.
Q: But how about failure to pay the appeal fee in the MTC prior to
transmittal to the RTC? Is it a ground for dismissal by the CA?
A: To my mind NO because why will the CA dismiss it when the
appeal is in the RTC? Bakit ang CA mag-dismiss, wala man ang kaso
sa kanila? The CA has nothing to do with the appeal. It is supposed
to be in the RTC, bakit ang CA ang mag-dismiss? In other words,
there is something wrong with this amendment. (referring to
“Section 5 of Rule 40”)
But if the appeal is from the RTC to the CA, you must pay the
docket fees because it is a specific ground for dismissal for the
dismissal under Rule 50.
Fourth Ground: (d) UNAUTHORIZED ALTERATIONS, OMISSIONS OR
ADDITIONS IN THE APPROVED RECORD ON APPEAL AS PROVIDED IN
SECTION 4 OF RULE 44;
That’s only when there is a record on appeal. When the record on
appeal is approved, you have to reproduce it and you are not
allowed to make any alteration, revision or addition.
Firth Ground: (e) FAILURE OF THE APPELLANT TO SERVE AND FILE
THE REQUIRED NUMBER OF COPIES OF HIS BRIEF OR
MEMORANDUM WITHIN THE TIME PROVIDED BY THESE RULES;
Failure of the appellant to serve and file the required number of
copies of his brief. So, failure to file the appellant’s brief is a ground
for dismissal of the appeal.
Q: Now, suppose it is the appellee who did not file any brief, what
will happen ?
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A: You do not dismiss the appeal but the case will be submitted for
decision without appellee’s brief. The CA will make a resolution
that the case was submitted without the appellee’s brief.
Q: Does it mean to say that talo na ‘yung appellee?
A: NO. There are many cases I’ve seen where the appellee did not
file any brief – Talo man gihapon ang appellant because anyway the
appellant’s brief has no merit. But normally in cases na delikado,
you better file an appellee’s brief. You owe that to your client. Just
imagine, lahat ng arguments dun hindi sagutin. That’s very
dangerous!
Sixth Ground: (f) ABSENCE OF SPECIFIC ASSIGNMENT OF ERRORS IN
THE APPELLANT’S BRIEF, OR OF PAGE REFERENCES TO THE RECORD
AS REQUIRED IN SECTION 13, PARAGRAPHS (A), (C), (D) AND (F) OF
RULE 44;
Well, you may file an appellant’s brief, eh wala namang page
references, wala namang assignment of errors. My God! What kind
of brief is that! (YC Bikini Briefs?) Very sloppy! You file a brief
without telling the CA kung anong mali and then you expect the CA
to look for the errors. My golly! Do not expect the CA to do that.
Meron dapat citations – e.g. “See Exhibit ‘A’”, “See transcript…”
Merong reference ba! like kung anong page yan.
Now if you file a brief without footnotes, without citing the law,
without citing the transcript, without citing the exhibit, that would
be dismissed. That’s what happened in the 1995 case of
DEL ROSARIO vs. COURT OF APPEALS
241 SCRA 553 [1995]
FACTS: The CA dismissed the case simply because the appellant’s
brief was sloppily written – no reference to exhibit, no reference to
page, no reference to anything. It was dismissed! The appellant
went to the SC pleading liberality.
HELD: “Petitioner’s plea for liberality in applying these rules in
preparing Appellant’s Brief does not deserve any sympathy. Long
ingrained in our jurisprudence is the rule that the right to appeal is
a statutory right and a party who seeks to avail of the right must
faithfully comply with the rules. Deviations from the rules cannot
be tolerated. The rationale for this strict attitude is not difficult to
appreciate. These rules are designed to facilitate the orderly
disposition of appealed cases. In an age where courts are bedeviled
by clogged dockets, these rules need to be followed by appellants
with greater fidelity. Their observance cannot be left to the whims
and caprices of appellants.”
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Seventh Ground: (g) FAILURE OF THE APPELLANT TO TAKE THE
NECESSARY STEPS FOR THE CORRECTION OR COMPLETION OF THE
RECORD WITHIN THE TIME LIMITED BY THE COURT IN ITS ORDER;
Sometimes yung record mo kulang-kulang ba. And the party may
be directed to work for the completion. If you fail to complete the
record, your appeal will be dismissed.
Please connect this with two previous provisions talking about
completion of the record in an appealed case. I’m referring to Rule
41, Section 10 and Rule 44, Sections 5 to 6 because these
provisions talk also of completion of record. (please refer to your
codals)
Rule 41, Sec. 10. Duty of clerk of court of the lower court upon
perfection of appeal. Within thirty (30) days after perfection of all
the appeals in accordance with the preceding section, it shall be
the duty of the clerk of court of the lower court:
(a) To verify the correctness of the original record or the record
on appeal, as the case may be, and to make a certification of its
correctness;
(b) To verify the completeness of the records that will be
transmitted to the appellate court;
(c) If found to be incomplete, to take such measures as may be
required to complete the records, availing of the authority that he
or the court may exercise for this purpose; and
(d) To transmit the records to the appellate court.
If the efforts to complete the records fail, he shall indicate in his
letter of transmittal the exhibits or transcripts not included in the
records being transmitted to the appellate court, the reasons for
their non-transmittal, and the steps taken or that could be taken
to have them available.
The clerk of court shall furnish the parties with copies of his letter
of transmittal of the records to the appellate court.
Rule 44, Sec. 5. Completion of record. Where the record of the
docketed case is incomplete, the clerk of court of the Court of
Appeals shall so inform said court and recommend to it measures
necessary to complete the record. It shall be the duty of said court
to take appropriate action towards the completion of the record
within the shortest possible time.
Rule 44, Sec. 6. Dispensing with complete record. Where the@
completion of the record could not be accomplished within a
sufficient period allotted for said purpose due to insuperable or
extremely difficult causes, the court, on its own motion or on
motion of any of the parties, may declare that the record and its
accompanying transcripts and exhibits so far available are
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sufficient to decide the issues raised in the appeal, and shall issue
an order explaining the reasons for such declaration.
Eight Ground: (h) FAILURE OF THE APPELLANT TO APPEAR AT THE
PRELIMINARY CONFERENCE UNDER RULE 48 OR TO COMPLY WITH
ORDERS, CIRCULARS, OR DIRECTIVES OF THE COURT WITHOUT
JUSTIFIABLE CAUSE; AND
That’s a new ground – failure to appear on the preliminary
conference; failure to comply with orders, circulars, directives of
the court without justifiable cause. That is very broad. That’s a new
one not found in the old law.
Ninth Ground: (i) THE FACT THAT THE ORDER OR JUDGMENT
APPEALED FROM IS NOT APPEALABLE.
The fact that the judgment or order appealed from is not
appealable. Interlocutory!
Q: What are the judgments or orders which are not appealable?
A: Your reference is Rule 41, Section 1:
Rule 41, Section 1. Subject of appeal.
xxxxxx
NO APPEAL may be taken from:
(a) An order denying a petition for relief or any similar motion
seeking relief from judgment;
(b) An interlocutory order;
(c) An order disallowing or dismissing an appeal;
(d) 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;
(e) An order of execution;
(f) 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
(g) An order dismissing an action without prejudice.
xxxxxx
So, if you appeal on any one of them, the other party can file a
motion to dismiss on the ground that it is not appealable.
Now, there is one ground for dismissal under the old rule na
nawala naman. Yun bang “failure to prosecute the appeal”, when
the records are not elevated to the CA the appeal can be dismissed.
Meaning, you have to follow up the clerk of court. Nawala yun eh.
That ground seems to have been abandoned. I think the attitude
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there is let us not punish the appellant for the fault of the clerk of
court.
Q: Is a default judgment appealable?
A: YES. It is appealable because it is a final judgment and not
merely interlocutory. Although under the ‘64 Rules, there is a direct
provision that a default judgment is appealable. Now, that
provision has disappeared. But even if it is not mentioned now,
default judgment is now covered by Rule 41 on final judgments.
Sec. 2. Dismissal of improper appeal to the Court of Appeals. An
appeal under Rule 41 taken from the Regional Trial Court to the
Court of Appeals raising only questions of law shall be dismissed,
issues purely of law not being reviewable by said court. Similarly,
an appeal by notice of appeal instead of by petition for review
from the appellate judgment of a Regional Trial Court shall be
dismissed. (n)
An appeal erroneously taken to the Court of Appeals shall not be
transferred to the appropriate court but shall be dismissed
outright. (3a)
Meaning, you must appeal to the right court and you must use the
proper mode of appeal. This incorporates in the Rules the
resolutions of the SC in the 1990 En Banc Resolution in MORILLO
vs. CONSUL (not found in the SCRA) and also incorporates the
provisions of Circular 2-90 dated March 9. 1990.
Prior to this under the 1964 Rules, the rule is if there is wrong
appeal like pure questions of law to the CA, the CA should not
dismiss the appeal but elevate it to the SC. That rule has long been
abandoned. It was abandoned in the case of MORILLO and in
Circular 2-90. Now, it is here. Kung question of law you better
appeal to the SC. If you appeal to the CA, the CA will dismiss it.
MORILLO vs. CONSUL
HELD: “There is no longer any justification for allowing transfers of
erroneous appeals from one court to the other, much less for
tolerating continued ignorance of the law on appeals.”
Take note that this refers to appeal under Rule 41 from RTC. This
does not apply when the appeal to the CA is from a quasi--judicial
body. Appeal from a quasi-judicial body on a pure question of law
should be to the CA, never to the SC. You compare this with Rule
42, Section 2:
Rule 42, Section 2. Form and contents.- The petition shall be filed
in seven (7) legible copies, with the original copy intended for the
court being indicated as such by the petitioner, and shall:
xxx
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(c) set forth concisely a statement of the matters involved, the
issues raised, the specification of errors of fact or law, or both,
allegedly committed by the RTC and the reasons or arguments
relied upon for the allowance of the appeal.
xxx
“Errors of fact or law, or both.” This refers to Petition for Review
from the RTC to the CA.
Q: What happens if an appeal is already taken to the CA?
A: It shall be dismissed outright. Under the ’64 Rules, the CA will
pass it on to the SC. But the liberal policy has now been changed.
Aaron [Cruz] asked a question (during the 1998 Review Class)
Dean’s ANSWER: Yes, there is a decided case. In the meantime, you
also lost the right to correct the error. Lumampas na eh!. Kaya it
would be dismissed. Hindi naman sinasabi na the appellant will be
directed to appeal properly. In other words, it will be dismissed.
Meaning, that is the end. That is the penalty for erroneous appeal.
Kaya nga according to MORILLO which became the basis of this,
there is no longer any justification for allowing transfers of
erroneous appeals from one court to the other, much less for
tolerating continued ignorance of the law on appeals. Kaya nga
before, very lenient pag mali under the 1964 Rules. But now in
Section 2 of Rule 50, wala na – i-dismiss na.
WITHDRAWAL OF APPEAL
Sec. 3. Withdrawal of appeal. An appeal may be withdrawn as of
right at any time before the filing of the appellee’s brief.
Thereafter, the withdrawal may be allowed in the discretion of
the court. (4a)
Q: Now, can you withdraw the appeal in the RTC level?
A: YES, prior to the transmittal of the original record or the record
on appeal, the court may allow withdrawal of the appeal. (Section
9, Rule 41)
Q: Where will you file the motion to withdraw?
A: In the RTC if the records are still in the RTC. If the records of
appeal is already in the CA, you file the motion to the CA at
anytime before the filing of the appellee’s brief you can withdraw it
as a matter of right. When there is already an appellee’s brief, it
can be allowed in the discretion of the Court (Section 3). That is
similar to the Rule in Rule 17, Section 1:
Rule 17, Section 1. Dismissal upon notice by plaintiff. A complaint
may be dismissed by the plaintiff by filing a notice of dismissal at
any time before service of the answer or of a motion for summary
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judgment. Upon such notice being filed, the court shall issue an
order confirming the dismissal. Unless otherwise stated in the
notice, the dismissal is without prejudice, except that a notice
operates as an adjudication upon the merits when filed by a
plaintiff who has once dismissed in a competent court an action
based on or including the same claim. (1a)

Q: Can you withdraw a complaint if you file a complaint in the

lower court?
A: YES, as a matter of right for as long as there is still no answer
filed. But when the defendant has filed an answer, dismissal of the
complaint is already discretionary upon the court. So it is the same!

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Rule 51 The SC, well aware of that danger, clarifies in one case that
memorandum decisions are not allowed in all cases. The CA is only
JUDGMENT allowed to render a memorandum decision in simple cases
especially when the appeal is dilatory and there is nothing wrong in
the appealed decision. But if the case is complicated or complex,
even if CA would affirm the decision, it cannot simply copy the
You already know that the Court of Appeals operates by division.
work of the RTC. It should write its own decision. The limitation or
There are more than 50 justices there. Every division is composed
guidelines was issued by the SC precisely to avoid the danger of
of 3. The 3 must be unanimous. In case there is no unanimity, there
laziness on the part of CA justices. The SC said in the case of
should be a special division of 5 to hear the case all over again and
the majority rules. Although from what I gathered sa CA, this is a
farce . Actually, they do not discuss it, they will just give it to the
FRANCISCO vs. PERMSKUL
ponente. Tapos sabihin mo ‘concur.’ Bihira lang talaga ang naga-
173 SCRA 324
participate unless siguro malakas ka sa isang justice and then mag-
dissent para magkaroon ng division of 5. That is not really the
HELD: “The Court finds it necessary to emphasize that the
intention of the of the law.
memorandum decision should be sparingly used lest it become an
addictive excuse for judicial sloth. It is an additional condition for
Let’s go back to what we were saying before under Rule 36. Every
its validity that this kind of decision may be resorted to only in
decision or resolution of a court shall clearly and distinctly state the
cases where the facts are in the main accepted by both parties or
facts and the law on which it is based. If a decision does not state
easily determinable by the judge and there are no doctrinal
its basis, it is a SIN PERJUICIO judgment. That is not a valid
complications involved that will require an extended discussion of
judgment. The requirement applies to all courts whether MTC, RTC,
the laws involved. The memorandum decision may be employed in
or CA. This is emphasized again in Section 5:
simple litigations only, such as ordinary collection cases, where the
appeal is obviously groundless and deserves no more than the time
needed to dismiss it.”
Sec. 5. Form of decision. - Every decision or final resolution of the
court in appealed cases shall clearly and distinctly state the
findings of fact and the conclusions of law on which it is based,
Q: When is a case deemed submitted for judgment?
which may be contained in the decision or final resolution itself,
A: Section 1 of Rule 51:
or adopted from those set forth in the decision, order, or
resolution appealed from. (Sec. 40, BP Blg. 129) (n)
Sec. 1. When case deemed submitted for judgment. - A case shall
be deemed submitted for judgment:

The CA must state its findings and conclusions or according to

A. In Ordinary appeals. -
Section 5 it may simply adopt the findings and conclusions set forth
1) Where no hearing on the merits of the main case is
in the decision or order appealed from. If the CA is going to affirm
held, upon the filing of the last pleading, brief, or memorandum
the judgment of the RTC, it may simply copy or adopt the findings
required by the Rules or by the court itself, or the expiration of
and conclusions of the RTC. It is called a “MEMORANDUM
the period for its filing.
DECISION”.
2) Where such a hearing is held, upon its termination or
upon the filing of the last pleading or memorandum as may be
If you will look at Section 5, it states that the provision is taken
required or permitted to be filed by the court, or the expiration of
from Section 40, BP 129. It is taken from the Judiciary Law.
the period for its filing.

Is this provision not an invitation to laziness on the part of the CA

B. In original actions and petitions for review. -
justices? If the CA will affirm the judgment of the RTC, the work is
1) Where no comment is filed, upon the expiration of the
easier because it may simply adopt on its own the findings of the
period to comment.
RTC. If the CA would reverse the decision, the job would be more
2) Where no hearing is held, upon the filing of the last
difficult, because it would write an entirely new decision to rebut
pleading required or permitted to be filed
or dispute the findings of the RTC. This is why when this provision
by the court, or the expiration of the period for its filing.
came out in the Judiciary Law, there was a sort of fear that this
3) Where a hearing on the merits of the main case is held,
might be the cause of laziness.
upon its termination or upon the filing of the last pleading or

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memorandum as may be required or permitted to be filed by the
court, or the expiration of the period for its filing. (n)
Sec. 2. By whom rendered. - The judgment shall be rendered by
the members of the court who participated in the deliberation on
the merits of the case before its assignment to a member for the
writing of the decision. (n)
Sec. 3. Quorum and voting in the court. - The participation of all
three Justices of a division shall be necessary at the deliberation
and the unanimous vote of the three Justices shall be required for
the pronouncement of a judgment or final resolution. If the three
Justices do not reach a unanimous vote, the clerk shall enter the
votes of the dissenting Justices in the record. Thereafter, the
Chairman of the division shall refer the case, together with the
minutes of the deliberation, to the Presiding Justice who shall
designate two Justices chosen by raffle from among all the other
members of the court to sit temporarily with them, forming a
special division of five Justices. The participation of all the five
members of the special division shall be necessary for the
deliberation required in section 2 of this Rule and the concurrence
of a majority of such division shall be required for the
pronouncement of a judgment or final resolution. (2a)
Sec. 4. Disposition of a case. - The Court of Appeals, in the exercise
of its appellate jurisdiction, may affirm, reverse, or modify the
judgment or final order appealed from, and may direct a new trial
or further proceedings to be had. (3a)
Sec. 5. Form of decision. - Every decision or final resolution of the
court in appealed cases shall clearly and distinctly state the
findings of fact and the conclusions of law on which it is based,
which may be contained in the decision or final resolution itself,
or adopted from those set forth in the decision, order, or
resolution appealed from. (Sec. 40, BP Blg. 129) (n)
Sec. 6. Harmless error. - No error in either the admission or the
exclusion of evidence and no error or defect in any ruling or order
or in anything done or omitted by the trial court or by any of the
parties is ground for granting a new trial or for setting aside,
modifying, or otherwise disturbing a judgment or order, unless
refusal to take such action appears to the court inconsistent with
substantial justice. The court at every stage of the proceeding
must disregard any error or defect which does not affect the
substantial rights of the parties. (5a)
Sec. 7. Judgment where there are several parties. - In all action or
proceedings, an appealed judgment may be affirmed as to some
of the appellants, and reversed as to others, and the case shall
thereafter be proceeded with, so far as necessary, as if separate
actions had been begun and prosecuted; and execution of the
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judgment of affirmance may be had accordingly, and costs may be
adjudged in such cases, as the court shall deem proper. (6)
Let’s go to Section 7.
Q: When there are 2 or more plaintiffs or 2 or more defendants in
the cases appealed, is it possible that the CA will render decision
for one plaintiff but against the other plaintiffs, or in favor of one
defendant and against the other?
A: YES. It is possible that one plaintiff will win, other plaintiffs will
lose especially when the facts are not identical. This is also true in
cases of 2 or more defendants when each one interposes separate
defenses. The defense of one may be true, others may be false. It is
possible that one defendant will win and other defendants will
lose.
Q: Suppose there are 2 defendants in a case. All of them lost.
Defendant A appealed. Defendant B did not appeal. On appeal,
defendant A won. Will the appeal of A benefit B who did not
appeal?
A: As a GENERAL RULE: No, the appeal would only benefit the
appealing defendant. The judgment becomes final to those who did
not appeal even if it is wrong.
EXCEPTION : When the LIABILITY of the 2 parties are so
INTERTWINED that it would be absurd that one of them will win
and the other will lose. Thus, the appeal by the appealing party
benefits his co-party who did not appeal. This principle was laid
down in some cases. Among them is the case of
UNIVERSAL MOTORS CORP. vs. COURT OF APPEALS
205 SCRA 428 [1992]
HELD: “It is erroneous to rule that the decision of the trial court
could be reversed as to the appealing private respondent and
continue in force against the other private respondents. The latter
could not remain bound after the former had been released;
although the other private respondents had not joined in the
appeal, the decision rendered by the respondent court inured to
their benefit. When the obligation of the other solidary debtors is
so dependent on that of their co-solidary debtor, the release of the
one who appealed, provided it be not on grounds personal to such
appealing private respondent, operates as well as to the others
who did not appeal. It is for this reason, that a decision or
judgment in favor of the private respondent who appealed can be
invoked as res judicata by the other private respondents.” So, their
liabilities are so intertwined.
EXAMPLE : Mayakin Skywalker and Darth Mort borrowed money
from Qui Gon Jet. They bound themselves jointly and severally to
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pay the loan. There is only one promissory note, one loan and both
Mayakin and Darth Mort signed. Their common defense is
payment. But the trial court ruled in favor of the plaintiff (Qui Gon
Jet) and ordered Mayakin and Darth Mort to pay. Mayakin
appealed but Darth Mort did not. On appeal, CA decided in favor of
Mayakin saying, “Wala nang utang si Mayakin ba dahil bayad na!”
How about Darth Mort? Darth Mort is also released.
This principle is reiterated in the case of
CAYABA vs. COURT OF APPEALS
219 SCRA 571 [1993]
HELD: “A reversal of a judgment on appeal is binding on the parties
to the suit but does not inure to the benefit of parties who did not
join in the appeal (as a general rule). The recognized exception is
when their rights and liabilities and those of the parties appealing
are so interwoven and dependent so as to be inseparable, in which
case a reversal as to one operates as a reversal to all.”
The rule is so similar in Criminal Procedure. When the appeal of
one accused benefits his co-accused who did not appeal especially
when the defense of such appealing accused is applicable to him.
Sec. 8. Questions that may be decided. - No error which does not
affect the jurisdiction over the subject matter or the validity of
the judgment appealed from or the proceedings therein will be
considered unless stated in the assignment of errors, or closely
related to or dependent on an assigned error and properly argued
in the brief, save as the court may pass upon plain errors and
clerical errors. (7a)
Q: Can the CA decide an issue which was not raised by the parties?
Can the CA correct the error which was never assigned by the other
party?
A: GENERAL RULE : Only errors which are stated in the appellant’s
brief should be considered. If the error is not assigned, that cannot
be corrected. This is just an extension of the rule that objections
and defenses not pleaded are deemed waived.
EXCEPTION : The following matters can be corrected or the court
can take cognizance even if the parties did not raise them:
1.) Jurisdiction over the subject matter of the case;
2.) Plain errors;
3.) Clerical Errors.
4.) Errors which are not assigned but closely related to
or dependent on an assigned error.
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The fourth exception is taken from decided cases. According to the
SC, even if you will not mention a mistake committed by the trial
court if such mistake is related to the mistake mentioned, it can be
corrected. In the case of
ABEJARON vs. COURT OF APPEALS
208 SCRA 899 [1992]
HELD: An unassigned error closely related to the error properly
assigned, or upon which the determination of the question raised
by the error properly assigned is dependent, will be considered by
the appellate court notwithstanding the failure to assign it as error.
While an assignment of error which is required by law or rule of
court has been held essential to appellate review, and only those
assigned will be considered, there are a number of cases which
appear to accord to the appellate court a broad discretionary
power to waive this lack of proper assignment of errors and
consider errors not assigned.
The same principle was reiterated in the 1995 case of
CASA FILIPINO ROYALTY CORP. vs. OFFICE OF THE PRESIDENT
241 SCRA 165
HELD: “While the rule is that no error which does not affect
jurisdiction will be considered unless stated in the assignment or
errors, the trend in modern-day procedure is to accord the courts
broad discretionary power such that the appellate court may
consider matters bearing on the issues submitted for resolution
which the parties failed to raise or which the lower court ignored.”
Let us look at the second exception – plain errors.
What is a plain error ? Because a plain error can be corrected by
the appellate court even if not asked by the parties, plain man? If
you will ask me, any plain error is yung talagang obvious mistake –
one which is apparent to the eye.
Now, suppose the trial court made an error in applying a law or in
interpreting a law. But it was not attacked by the losing party and it
was not corrected on appeal. Is it a plain error? It would seem no
and yet that is what happened in the 1993 case of SANTOS vs. CA
(221 SCRA 42).
But before we discuss the case of Santos, we have to know the
basics. There are two principles here to remember.
The appellant is the one who appeals and it is he who will file the
appellant’s brief and then he will make the assignment of errors.
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The appellee will refute the appellant’s assignment of errors which
were committed by the trial court.
Q: Can the appellee impute errors or make assignment of errors?
A: The general rule is NO. If you are an appellee, you are not
appealing and thus you are accepting the decision. So if you think
the decision is in your favor pero mali pa rin, you must also appeal.
So an appellee is not allowed to assign errors committed by the
trial court except if the purpose of the assignment of errors is to
sustain the decision on another ground. Because sometimes you
agree with the decision but you do not agree with the reason. The
decision is correct but this should be the reason. Because actually,
you are defending the decision on another ground.
Meaning the court made a mistake in arriving at the decision but
the decision is correct. Yan, puwede yan. But if you want the
decision to be changed, then you must also appeal.
Now, let us go to the case of SANTOS which involves the law on
lease, particularly the interpretation and the application of Article
1678 Civil Code. Under the law on lease, suppose I will rent to you
my land and you built a building there and there is no agreement as
to who will own the building after the termination of the lease.
Suppose there is no stipulation, who will own the building?
According to the Civil Code, the owner of the land has the option to
acquire the building by paying one half of its value. Pero, if I do not
want to appropriate the building, then you have the right to
remove the building provided you will not damage the land. So the
option to pay you belongs to the owner of the land. The lessee
cannot compel the owner of the land to pay.
Let us go now to the case of Santos. This is a very queer case.
SANTOS vs. COURT OF APPEALS
221 SCRA 42
FACTS: Artemio Santos et al are lessees of a piece of land. They
have not paid the rentals for 28 years. The lessor filed a case of
unlawful detainer against all of them before the Metropolitan Trial
Court of Pasig. The trial court rendered judgment against Santos et
al. So they were ordered ejected.
Now, these people were not satisfied. They still appealed to the
RTC. The RTC affirmed the judgment that they should be ejected
but modified it by ordering the lessor to reimburse the lessees for
the latter’s improvements on the leased property. So, affirmed, but
bayaran mo iyong mga bahay ng mga tao. (DEAN I: To my mind,
that portion of the decision is wrong. You cannot order the lessor
to reimburse.)
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But despite that, Santos et al were not satisfied. They still appealed
to the CA. The lessor did not appeal so obviously, the lessor is
willing to pay. Although he has no obligation to pay the
improvements, pero sige na lang para matapos na! He did not
appeal.
Now, the CA affirmed again the ejectment. So tatlo na. There were
three courts where the occupants lost. But the CA deleted the
portion of the RTC decision ordering reimbursement of the
improvements. It was really wrong. Walang reimbursement diyan.
So this time, Santos et al appealed to the SC. And they say that the
portion of the decision deleting our right to reimbursements is
wrong because the owner of the land is not questioning it, he is not
appealing so why should the CA delete it? So, meaning payag iyong
owner. Therefore that portion of the decision of the CA where we
are no longer entitled to reimbursement is erroneous. The CA has
no power to delete that portion of the RTC decision because there
was no appeal from the landowner.
ISSUE: Is the decision of the CA correct?
HELD: YES. The CA is correct. “It is true that the rule is well-settled
that a party cannot impugn the correctness of a Judgment not
appealed from by him, and while he may make counter-assignment
of errors, he can do so only to sustain the judgment on other
grounds but not to seek modification or reversal thereof for in such
a case he must appeal. A party who does not appeal from the
decision may not obtain any affirmative relief from the appellate
court other than what he has obtained from the lower court, if any,
whose decision is brought up on appeal. However, the Rules of
Court and jurisprudence authorize a tribunal to consider errors,
although unassigned, if they involve (1) errors affecting the lower
court's Jurisdiction over the subject matter, (2) plain errors not
specified, and (3) clerical errors.”
“Under Article 1678, it is the lessor who has the option to pay for
one-half of the value of the improvements which the lessee has
made in good faith. The lessee cannot compel the lessor to
appropriate and reimburse.” Therefore, the decision of the RTC
ordering the lessor is actually erroneous.
“Hence, the award of reimbursement for improvements by the trial
court in favor of petitioners amounts to a plain error which may be
rectified on appeal although not specified in the appellee’s brief.”
But the trouble is, the landowner did not appeal. If we follow the
ruling, then lahat ng mali ng trial court ay plain error na. That is
what the SC said. Bakit man naging plain error ito when actually it
will not qualify as plain error ? If we will follow that line of
reasoning, every mistake committed by a trial court can be
corrected being a plain error.
To my mind, merong equity ito, eh. Analyze the case. You are
occupants for 28 years and you did not pay. Ayaw mo lumayas,
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bayaran ka pa? There is something wrong there already. I think that
is the factor eh.
So the SC said that it is too unfair for the landowner still to be
required to pay. Imagine they stayed there for 28 years, hindi pa
nagbayad. I think those are the factors. So in other words, equity
bah! So the Court has to look for a reason to justify. Ang nakita is
plain error – when you do not know how to apply the law, then it is
plain error. But actually, that should be an assigned error. It is a
very interesting case.
Sec. 9. Promulgation and notice of judgment. - After the judgment
of final resolution and dissenting or separate opinions, if any, are
signed by the Justices taking part, they shall be delivered for filing
to the clerk who shall indicate thereon the date of promulgation
and cause true copies thereof to be served upon the parties or
their counsel. (n)
Sec. 10. Entry of judgments and final resolutions. - If no appeal or
motion for new trial or reconsideration is filed within the time
provided in these Rules, the judgment or final resolution shall
forthwith be entered by the clerk in the book of entries of
judgments. The date when the judgment or final resolution
becomes executory shall be deemed as the date of its entry. The
record shall contain the dispositive part of the judgment or final
resolution and shall be signed by the clerk, with a certificate that
such judgment or final resolution has become final and executory.
(2a, R36)
Sec. 11. Execution of judgment. - Except where the judgment or
final order or resolution, or a portion thereof, is ordered to be
immediately executory, the motion for its execution may only be
filed in the proper court after its entry.
In original actions in the Court of Appeals, its writ of execution
shall be accompanied by a certified true copy of the entry of
judgment or final resolution and addressed to any appropriate
officer for its enforcement.
In appealed cases, where the motion for execution pending
appeal is filed in the Court of Appeals at a time that it is in
possession of the original record or the record on appeal, the
resolution granting such motion shall be transmitted to the lower
court from which the case originated, together with a certified
true copy of the judgment or final order to be executed, with a
directive for such court of origin to issue the proper writ for its
enforcement. (n)
Q: Now, how do you execute a judgment of the CA?
A: Under Section 11, it depends if it is an original action or an
appealed case.
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For an appealed case, in case of execution pending appeal, take
note that if the records of the case are already elevated to the CA,
motion for execution pending appeal should already be filed there.
And if the CA grants the motion to execute pending appeal, it will
follow the third paragraph there. It will issue the order and direct
the RTC to enforce the judgment.
Now, you should correlate this with Rule 39 Sections 1 and 2:
Rule 39, Section 1. Execution upon judgments or final orders. -
Execution shall issue as a matter of right, on motion , upon a
judgment or order that disposed of the action or proceeding upon
the expiration of the period-to appeal therefrom if no appeal has
been duly perfected.
If the appeal has been duly perfected and finally resolved, the
execution may forthwith be applied for in the court or origin, on
motion of the judgment obligee, submitting therewith certified
true copies of the judgment or judgments or final order or orders
sought to be enforced and of the entry thereof, with notice to the
adverse party.
The appellate court may, on motion in the same case, when the
interest of justice so requires, direct the court of origin to issue
the writ of execution.
Section 2. Discretionary execution.
A. Execution of a judgment or final order pending appeal.- On
motion of the prevailing party with notice to the adverse party
filed in the trial court while it has jurisdiction over the case and is
in possession of either the original record or the record on appeal,
as the case may be, at the time of the filing of such motion, said
court may, in its discretion, order execution of a judgment or final
order even before the expiration of the period to appeal.
After the trial court has lost jurisdiction, the motion for execution
pending appeal may be filed in the appellate court.
Discretionary execution may only issue upon good reasons to be
stated in a special order after due hearing.
B. Execution of several, separate or partial judgments.- A several,
separate or partial judgment may be executed under the same
terms and conditions as execution of a judgment or final order
pending appeal.
-oOo-
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Rule 52
MOTION FOR RECONSIDERATION
Sec. 1. Period for filing. - A party may file a motion for
reconsideration of a judgment or final resolution within fifteen
(15) days from notice thereof, with proof of service on the
adverse party. (n)
Q: What happens when a judgment of the CA is the object of a
motion for reconsideration? What happens to the execution?
A: Stayed – it is not yet final unless the court for good reasons shall
otherwise direct like when there is a good ground to execute
pending appeal.
Appeal; filing of motion for extension of time to file motion for
reconsideration in CA does not toll fifteen-day period to appeal;
rule suspended in exceptional cases to serve substantial justice.

Q: Can a party file a motion for reconsideration of a CA decision?

A: YES. That is very obvious. (Section 1)
Winston F. Garcia, in his capacity as President and General
Manager of the GSIS v. Court of Appeals and Rudy C. Tesoro;G.R.
No. 169005. January 28, 2013
Sec. 2. Second motion for reconsideration. - No second motion for
reconsideration of a judgment of final resolution by the same
party shall be entertained. (n)
The assailed CA resolution upheld the general rule that the filing of
a motion for reconsideration in the CA does not toll the fifteen-day
Q: Can you file more than one motion for reconsideration?
period to appeal, citing Habaluyas Enterprises, Inc. v. Japson.
A: NO. No second motion for reconsideration of a judgment or final
However, in previous cases we suspended this rule in order to
resolution by the same party shall be entertained. (Section 2) There
serve substantial justice.
is no such thing as second motion for reconsideration.

In Barnes v. Padilla, we exempted from the operation of the

Section 2 of Rule 52 is also in accord with Section 11 of the
general rule the petitioner whose motion for extension of time to
Judiciary law. Section 11 of the Judiciary law governs how may
file a motion for reconsideration was denied by the CA. In the
times you can file a motion for reconsideration in the CA.
Resolution denying the motion for reconsideration of our Decision
dated September 30, 2004, we held that:
BP 129, Section 11. Quorum -

A suspension of the Rules is warranted in this case since the

“xxxx A motion for reconsideration of its decision or final
procedural infirmity was not entirely attributable to the fault or
resolution shall be resolved by the Court within ninety (90) days
negligence of the petitioner. Petitioner’s counsel was
from the time it is submitted for resolution and no second motion
understandably confused with the absence of an explicit
for reconsideration from the same party shall be entertained.”
prohibition in the 2002 Internal Rules of the Court of Appeals
(IRCA) that the period of filing a motion for reconsideration is non-
Under par. (3), the CA has 90 days from the time it is submitted for
extendible, which was expressly stated in the Revised Internal
the resolution to rule on a motion for reconsideration.
Rules of the Court of Appeals that was in effect prior to the IRCA.
The lawyer’s negligence without any participatory negligence on
the part of the petitioner is a sufficient reason to set aside the
Sec. 3. Resolution of motion. - In the Court of Appeals, a motion
resolution of the CA.
for reconsideration shall be resolved within ninety (90) days from
the date when the court declares it submitted for resolution. (n)
More significantly, a careful study of the merits of the case and the
lack of any showing that the review sought is merely frivolous and
The CA is given only 90 days to resolve a motion for
dilatory, dictated the setting aside of the resolutions of the CA in
reconsideration.
CA-G.R. SP No. 69573 and Branch 215 in Civil Case NO. Q-99-37219,
as both are patently erroneous. x x x

Sec. 4. Stay of execution. - The pendency of a motion for

Furthermore, the private respondents will not be unjustly
reconsideration filed on time and by the proper party shall stay
prejudiced by the suspension of the rules. What is subject of the
the execution of the judgment or final resolution sought to be
appeal is only a question of law, involving the issue of forum
reconsidered unless the court, for good reasons, shall otherwise
shopping, and not a factual matter involving the merits of each
direct. (n)

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party’s respective claims and defenses relating to the enforcement

of the MOA, wherein petitioner was given an option to purchase
the subject property. Litigations should, as much as possible, be
decided on their merits and not on mere technicalities. Every party-
litigant should be afforded the amplest opportunity for the proper
and just disposition of his cause, freed from the constraint of
technicalities.

After a conscientious view, we hold that a suspension of the Rules

is warranted in this case since the delay of one week and two days
in the filing of the motion for reconsideration was not occasioned
by negligence on the part of petitioner’s lawyer in charge of the
case, the latter having a valid excuse to immediately take leave of
absence in view of her father’s sudden demise. There is likewise no
showing that the review sought is merely frivolous and dilatory.

-oOo-

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Rule 53 Sec. 2. Hearing and order. - The Court of Appeals shall consider the
new evidence together with that adduced at the trial below, and
NEW TRIAL may grant or refuse a new trial, or may make such order, with
notice to both parties, as to the taking of further testimony,
either orally in court, or by depositions, or render such other
Q: What is the ground for new trial in CA?
judgment as ought to be rendered upon such terms as it may
A: The ground for new trial is newly discovered evidence. (Section
deem just. (2a)
1)

Sec. 3. Resolution of motion. - In the Court of Appeals, a motion

Sec. 1. Period for filing; ground. - At any time after the appeal from
for new trial shall be resolved within ninety (90) days from the
the lower court has been perfected and before the Court of
date when the court declares it submitted for resolution. (n)
Appeals loses jurisdiction over the case, a party may file a motion
for a new trial on the ground of newly discovered evidence which
could not have been discovered prior to the trial in the court
Sec. 4. Procedure in new trial. - Unless the court otherwise directs,
below by the exercise of due diligence and which is of such a
the procedure in the new trial shall be the same as that granted
character as would probably change the result. The motion shall
by a Regional Trial Court. (3a)
be accompanied by affidavits showing the facts constituting the
grounds therefor and the newly discovered evidence. (1a)
Q: If the motion for new trial is granted, can the CA conduct the
new trial itself acting as a trial court?
A: YES, under section 4 and under the Judiciary Law particularly
The ground is newly discovered evidence similar to the second
section 9, the CA can receive evidence and act as a trial court. That
ground for new trial in the RTC (FAME). Fraud, accident, mistake –
is why it is a powerful court.
hindi kasali. Only newly discovered evidence is the ground under
Rule 53.
BP 129, Section 9, last paragraph:

Q: Suppose the case is before the SC, can a party file a motion for
“The Court of Appeals shall have the power to try cases and
new trial on the ground of newly discovered evidence before the
conduct hearings, receive evidence and perform any and all acts
SC under Rule 53 in a civil case?
necessary to resolve factual issues raised in cases falling within its
A: NO. The SC said in the case of
original and appellate jurisdiction, including the power to grant
and conduct new trials or further proceedings.”

NAVARRA vs. COURT OF APPEALS

204 SCRA 850
-oOo-

HELD: The Rules of Court allows only two (2) occasions where a
party may file a motion for new trial on the ground of newly
discovered evidence. That motion may be filed only with the trial
court under Rule 37 or with the CA under Rule 53 BUT NEVER with
the SC.
“Time and again, We have stressed that the SC is not a trier of
facts. It is not a function of the SC to analyze or weigh all over again
the evidence already considered in the proceedings below. Its
jurisdiction is limited to reviewing only errors of law that may have
been committed by the lower courts.”

If there would be a motion for new trial with the SC and it would be
granted, you are converting the SC into a trial court.

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Rule 54

INTERNAL BUSINESS

Section 1. Distribution of cases among divisions. - All the cases of

the Court of Appeals shall be allotted among the different
divisions thereof for hearing and decision. The Court of Appeals,
sitting en banc, shall make proper orders or rules to govern the
allotment of cases among the different divisions, the constitution
of such divisions, the regular rotation of Justices among then the
filing of vacancies occurring therein, and other matters relating to
the business of the court; and such rules shall continue in force
until repealed or altered by it or by the Supreme Court.

Section 2. Quorum of the court. –A majority of the actual members

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

(just read)

-oOo-

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shall contain a table of the cases reported and the cases cited in
the opinions, with a complete alphabetical index of the subject
Rule 55 matters of the volume. It shall consist of not less than seven

Ordinary
Civil
Action
Adjudication Criminal
Special Proceeding Special

Judges/court employees
Discipline
Lawyers (disbarment)

Rules of Court
Rule-Making
Others: Circulars/
Directives
hundred pages printed upon good paper, well bound and
PUBLICATION OF JUDGMENTS numbered consecutively in the order of the volumes published.

AND FINAL RESOLUTIONS -oOo-

Powers and Functions of the Supreme Court:

The decisions of the CA must be published. Kung wala sa Philippine
1.) Adjudication
Reports, nasa Court of Appeals Reports. They call that CARA (Court
2.) Discipline
of Appeals Reports Annotated).
3.) Rule-Making

Section 1. Publication. - The judgments and final resolutions of the

court shall be published in the Official Gazette and in the Reports
officially authorized by the court in the language in which they
have been originally written, together with the syllabi therefore
prepared by the reporter in consultation with the writers thereof.
Memoranda of all other judgments and final resolutions not so
published shall be made by the reporter and published in the
Official Gazette and the authorized reports.

Section 2. Preparation of opinions for publication. - The reporter

shall prepare and publish with each reported judgment and final
resolution a concise synopsis of the facts necessary for a clear
understanding of the case, the names of counsel, the material and
controverted points involved, the authorities cited therein, and a
syllabus which shall be confined to points of law.

Section 3. General make-up of volumes. - The published decisions

and final resolutions of the Supreme Court shall be called
"Philippine Reports," while those of the Court of Appeals shall
known as the "Court of Appeals Reports." Each volume thereof

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Rule 56
Actually, kulang ito eh. These proceedings are actually governed
PROCEDURE IN THE SUPREME COURT more by Rule 65 and 66. But they are also covered by Rule 46, 48,
49, 51 and 52 (CA) and it also applies to SC.

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

cases – ORIGINAL and APPEALED. The SC has both the original and
b.) The portions of said Rules dealing strictly with and specifically
appellate jurisdiction.
intended for
appealed cases in the Court of Appeals shall not be applicable; and
What are the original cases cognizable by the SC?

This is more of legal and judicial ethics.

A.) ORIGINAL CASES

Q: When you file a petition before the SC for certiorari, prohibition

SECTION 1. Original cases cognizable. – Only petitions for
or mandamus, how many copies?
certiorari, prohibition, mandamus, quo warranto, habeas corpus,
A: First filing – 18 copies minimum. Why? Because you do not
disciplinary proceedings against members of the judiciary and
know whether it will be considered as an en banc case or a division
attorneys, and cases affecting ambassadors, other public
case. The SC operates in 2 ways. It decides cases either en banc or
ministers and consuls may be filed originally in the Supreme
by division. 18 copies is required because 15 na ang justices, only
Court. (n)
three (3) for the clerk.

You know them no? – Certiorari, prohibition, mandamus, quo

Q: How about subsequent pleadings? How many copies?
warranto, habeas corpus, cases affecting ambassadors other public
A: Depende. Kung en banc, all subsequent pleadings, still 18 copies.
ministers and consuls – nasa Constitution din yan. This is only a
Kapag division case, 9 na lang. Now, there are three divisions in the
repetition of Article VIII, Section 5 (1) of the Constitution. Aside
SC – the first, second and third divisions. And every division is
from that, the Rules of Court give the SC authority to hear
composed of five (5) members.
disciplinary proceedings against members of the judiciary,
disbarment or removal of judges. SC man yan ba! And they are
The SC meets en banc twice a week – Tuesday and Thursday –
governed specially for disbarment by Rule 139-B of the Rules of
unless they have changed it. It is called an en banc session. Cases
Court.
are raffled for assignment by division. Monday and Wednesday,
hiwa-hiwalay sila – the 5 justices who belong to the same division
meet together and discuss cases which are raffled to that division.
SEC. 2. Rules applicable. – The procedure in original cases for
Friday is a NO SESSION but a working day. That is when they study,
certiorari, prohibition, mandamus, quo warranto and habeas
prepare their decisions and resolutions. That is why we can also
corpus shall be in accordance with the applicable provisions of the
predict when will the result of the Bar be released because that is
Constitution, laws, and Rules 46,48, 49, 51, 52 and this Rule,
an en banc session. Only the SC en banc can order the release of
subject to the following provisions:
the results of the Bar Exam. They have to pass a resolution.
a.) All references in said Rules to the Court of Appeals shall be
understood to also apply to the Supreme Court;
b.) The portions of said Rules dealing strictly with and specifically
B. APPEALED CASES
intended for appealed cases in the Court of Appeals shall not be
applicable; and
SEC. 3. Mode of appeal. – An appeal to the Supreme Court may be
c.) Eighteen (18) clearly legible copies of the petition shall be filed,
taken only by a petition for review on certiorari, except in
together with proof of service on all adverse parties.
criminal cases where the penalty imposed is death, reclusion
The proceedings for disciplinary action against members of the
perpetua or life imprisonment. (n)
judiciary shall be governed by the laws and Rules prescribed
therefor, and those against attorneys by Rule 139-B, as amended.
There is only one way of appeal to the SC. The only mode of appeal
(n)
recognized is Petition for Review by Certiorari under Rule 45,
except in criminal cases when the penalty imposed by the RTC is
death penalty, reclusion perpatua or life imprisonment where only
a.) All references in said Rules to the Court of Appeals
shall be understood to also apply to the Supreme Court

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ordinary appeal (under Rule 41) is required. Outside of that,. the
only mode of appeal to the SC is Petition for Review by Certiorari.
Please connect this with Rule 45, Section 9:
Rule 45, Sec. 9. Rule applicable to both civil and criminal cases.-
The mode of appeal prescribed in this rule shall be applicable to
both civil and criminal cases except in criminal cases where the
penalty imposed is death, reclusion; perpetua or life
imprisonment.
Rule 56, Sec. 4. Procedure.- The appeal shall be governed by and
disposed of in accordance with the applicable provisions of the
Constitution, laws, Rules 45, 48, sections l,2, and 5 to 11 of Rule
51, 52 and this rule.
Q: What are the grounds for dismissal of an appeal before the SC?
A: Section 5:
Section 5. Grounds for dismissal of appeal.- The appeal may be
dismissed motu propio or on motion of the respondent on the
following grounds:
a. Failure to take the appeal within the reglementary period;
b. Lack of merit in the petition;
c. Failure to pay the requisite docket fee and other lawful fees or
to make a deposit for costs;
d. Failure to comply with the requirements regarding proof of
service and contents of and the documents which should
accompany the petition;
e. Failure to comply with any circular, directive or order of the
Supreme Court without justifiable cause;
f. Error in the choice of mode of appeal; and
g. The fact that the case is not appealable to the Supreme Court.
Connect Rule 56, Section 5 with Rule 45, Section 5. The grounds are
identical, to wit:
Rule 45, Sec. 5. Dismissal or denial of petition. The failure of the
petitioner to comply with any of the foregoing requirement
regarding the payment of the docket and other lawful fees,
deposit for costs, proof of service of the petition, and the
contents of and the documents which should accompany the
petition shall be sufficient ground for the dismissal thereof.
The Supreme Court may on its own initiative deny the petition on
the ground that the appeal is without merit, or is prosecuted
manifestly for delay or that the questions raised therein are too
unsubstantial to require consideration.
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Sec. 6. Disposition of improper appeal – Except as provided in
section 3, Rule 122 regarding appeals in criminal cases where the
penalty imposed is death, reclusion perpetua or life
imprisonment, an appeal taken to the Supreme Court by notice of
appeal; shall be dismissed.
An appeal by certiorari taken to the Supreme court from the
Regional Trial Court submitting issues of fact may be referred to
the Court of Appeals for decision or appropriate action. The
determination of the Supreme Court on whether or not the issues
of fact are involved shall be final.
This is already discussed in Rule 50, Section 2. A wrong appeal is a
ground for a dismissal of such appeal.
Q: If the appeal is on pure question of law (it should be before the
SC) and by mistake the party appealed to the CA, what will
happen?
A: The appeal will be dismissed under Rule 50. The CA will not
endorse the case to the SC.
Q: Suppose you will appeal by certiorari to the SC under Rule 45.
Tapos, halo pala – hindi naman pala question of law lahat – may
kasamang question of fact. What will happen now in the appeal?
A: Under Rule 56, Section 6, the SC may or may not dismiss the
appeal. It may refer the matter to the CA – baliktad noh? So it is
not the same as Rule 50, Section 2.
Section 7. Procedure if opinion is divided. Where the court en banc
is equally divided in opinion, or the necessary majority cannot be
had, the case shall again be deliberated on, and if after such
deliberation no decision is reached, the original action
commenced in the court shall be dismissed; in appealed cases, the
judgment or order appealed from shall stand affirmed; and on all
incidental matters, the petition or motion shall be denied.
What happens if the justices of the SC are equally divided?
For instance, there were 4 in attendance in a division dahil absent
ang isa – the result is 2:2. So, we will deliberate again, but still 2:2.
If that is so, the decision appealed from is considered affirmed. In
other words, the ruling in the lower court is considered correct.
The counterpart of this rule in Criminal Procedure is Rule 125,
Section 3. If after deliberation, the justices are even, they will
deliberate again but still even. The decision must be acquittal. Since
you cannot break the tie, it must be in favor of the accused.
EN BANC CASES
Now, before we leave this topic, of course we know very well that
when you appeal to the SC, there are two possibilities – either it
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will be heard by a division (there are 3 divisions there) or your case
might be decided by the entire SC en banc.
Q: What cases are heard by the SC en banc?
A: There was a circular in 1993 issued by the SC enumerating en
banc cases:
1.) Cases in which the constitutionality or validity of any
treaty, international or executive agreement, law,
executive order, presidential decree, proclamation,
order, instruction, ordinance or regulations in question.
For example, the recent Oil Deregulation Law;
2.) Criminal cases in which the appealed decision imposes
death penalty; Criminal cases where a change of venue
is required to avoid miscarriage of justice where SC has
to make an order to change the venue;
Pag reclusion perpetua, hindi man yan en banc ba! Only for death
penalty.
3.) Cases raising novel questions of law;
There is a point of law where there is no decided case yet.
Meaning, such legal issue is raised for the first time.
4.) Cases affecting ambassadors, other public ministers or
consuls;
5.) Cases involving decisions, resolutions, orders of the
COMELEC, COA, or the Office of the OMBUDSMAN,
SANDIGANBAYAN in administrative disciplinary cases;
6.) Cases in which the penalty involved is a dismissal of the
judge, officer or employee of the judiciary, disbarment of
a lawyer or even suspension of any of them for a period
of more than one (1) year of fine exceeding P10,000.
Tignan mo sa SCRA. Pag ang penalty is removal of a judge or
disbarment, en banc yan. And sometimes, you cannot even identify
who is the ponente. Ang tawag diyan per curiae. The ponente is not
identified.
7.) Cases where a doctrine or principle of law laid down by
the Court en banc or division may be modified or
reversed;
A decision by a division can only be reversed by the SC en banc. The
same is true in a decision previously decided en banc. Only SC en
banc can change its mind and reverse its previous ruling.
8.) Cases assigned in a division which in the opinion of at
least three (3) members thereof, merit the attention of
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the Court en banc and are acceptable to the majority of
the actual members of the court en banc;
Meaning, it is a division case but at least three members of the
division are of the view that it should be elevated to the SC en
banc. And the majority of the entire court also agree.
Example: A case is assigned to a division. After deliberating,
majority of the 5 hold that the case is so important that referral to
the entire membership is proper. Then when it is referred en banc,
majority accepts it, then it is to be decided en banc.
Specific Example: The case of PEOPLE vs. LUCAS in Criminal Law.
ISSUE: Is the penalty of reclusion perpetua divisible or indivisible?
The original ruling there by a division is that it is a divisible penalty.
But upon motion for reconsideration by the Solicitor General, the
first division realized that maraming implications ito. So at least 3
or 4 voted na itapon natin to the SC en banc and then the entire
voted.
BAR QUESTION : A lost in an appealed decision. He filed a motion
for reconsideration. He is insisting that his motion be resolved by
the entire membership of the SC. Can he insist that his motion for
reconsideration be heard by the entire membership of the SC en
banc when he lost in a division?
A: NO, because the SC en banc is not a separate court from one of
its divisions. You cannot say that a decision by a division can be
appealed to the SC en banc because it is the same court. The best
that can happen to you is you convince the members of the same
division to refer the matter to the entire court en banc and try to
convince the majority of the court en banc to accept it. That is the
correct move.
9.) All other cases as the court en banc, by the majority of
its actual members, may deem of sufficient importance
to merit its attention.
These cases are those involving the welfare of the nation like Lotto
case, EVAT, Manila Hotel case. This is also the ground invoked by
Imelda Marcos where she tries to convince the court en banc to
hear her motion for reconsideration.
-oOo-
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Republic Act 8369 is called the “Family Code Act of

1997”. It is an act establishing the Family Court granting them
exclusive original jurisdiction over child and family cases amending
BP 129. Under this law, it says there that there shall be established
a Family Court in every province and city in the country. In what
way was the Judiciary Law amended particularly the Law on
Jurisdiction of the trial court? If you still recall the RTC shall have
exclusive original jurisdiction over the cases affecting marital
relations and it shall have original jurisdiction over cases which
used to be within the jurisdiction of the Old Juvenile Family
Relations Court. Now, those two provisions of Section 19 has
already been modified because according to Section 5 of the
“Family Code Act of 1997”:

“It is the Family Courts which shall have exclusive original

jurisdiction to hear and decide certain cases. Among these are
petitions for guardianship and custody of children, habeas corpus
in relation to the latter (this used to be in the RTC), petitions for
adoption of children and reprevocation of adoption, complaints for
annulment of marriage, declaration of nullity of marriage, and
those relating to marital status and property relations of husband
and wife or those living together under different status and
agreements and petitions for dissolution of conjugal partnership of
gains. Then there are petitions for support and acknowledgement ,
petitions for the status of children as abandoned, etc.”

So the jurisdiction has already been transferred to the

newly created Family Courts. Question: How are the decisions in
the Family Courts appealed? In the same manner of procedure in
appealing from the RTC and the Court of Appeals.

How about in the present? I don’t think it is already

operational. According to the law, pending the establishment of
the Family Courts, in the meantime the Supreme Court shall
designate for among the branches of the RTCs at least one Family
Court in each of the following cities… one of them is in Davao. One
branch of the RTC will be acting as a Family Court.

Of course, it did not totally repeal the Judiciary Law

because it says here that “in areas where there is no Family Court,
the cases referred to in Section 5 of this Act shall be adjudicated by
the Regional Trial Court.” Meaning, if there is no Family Court in
that area, then you will still follow the Judiciary Law, the RTC.

So I am just supplementing what you already know. In

other words, you have to modify what we learned in the light of
new legislation.

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