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Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)


• In the 2015 case of Luis Gonzales v. JGH Land

o This involves a case of intra-corporate dispute, which was transferred from one
court to another. All of the commercial courts, however, in that particular station
had been fully used up (all commercial courts there had already been either
inhibited, or can no longer act on the case). When it reached a non-commercial
court, which is the RTC, the RTC invoked that it had no jurisdiction because it is a
non-commercial court. So upon a pure question of law, it was elevated to the
Supreme Court upon Rule 45.
o Issue: does the case involve a subject matter of jurisdiction or only an
exercise of jurisdiction? Is it a subject matter of jurisdiction, was the RTC
correct in dismissing the case because it is not a commercial court that
should be handling the case? The SC said that no, it is not a subject matter of
jurisdiction, it is only an exercise of jurisdiction.
o The case should not have been dismissed in the first place; the procedure should
have been, and this is not in the Rules of Court but was the statement in the Ruling:
In a situation where all of the special courts in a given sala, in a given station have
already been fully used or consumed, the court should assign the case to another
judicial station, the nearest judicial station. Dismissal is not the remedy for lack of

Non-payment of filing fees at the time of the filing of the complaint

• In the case of Unicapital, it has been long settled that while a court acquires jurisdiction
over the case only upon payment of the docket fees, its non-payment at the time of the
filing of the complaint does not automatically cause the dismissal of the case, provided the
fees are paid within a reasonable time.
• The Manchester rule cannot apply in the absence of proof that there is fraud.

Inadequate payment of filing fees

• What if there was payment but it was inadequate? Can we say that the court had no
jurisdiction because the payment of filing fees was inadequate?
• The SC has been fairly consistent on this point. From the case of Rivera v. Del Rosario,
the SC said that if the complainant relied in good faith on the assessment of the clerk of
court, though the payment of filing fees is inadequate, the court is considered to have
acquired jurisdiction.

Metered filing fees

• General rule: the payment of filing fees is jurisdictional. In instances when the court awards
damages which was not prayed for, it will be considered a lien on the judgment award.
• In the case of Unicapital:
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

o In the complaint, there was a prayer for metered filing fees: P2 million for every
month of non-payment (so it is an amount of damages that is growing). The
defendant argues that the correct filing fees were not paid and therefore the case
should be dismissed. Issue: should the case be dismissed?
o The SC said that in situations of metered filing fees wherein damages continue to
accrue while the action is pending, it will be considered a lien on the judgment on
award. I want to be clear on this: only on metered filing fees, metered claims for
damages. This question has already been addressed by Proton Filipinas, not a
new case, but just to be very clear.
• If there is payment of filing fees, the court can only award interest on those which have
accrued and the corresponding filing fees have already been paid. But for those which
have accrued while the action is pending, interests that have been earned while the action
is pending, and the court awards it, it will be considered as a lien on the judgment award.


• An indigent is entitled to the exemption on the payment of filing fees. The provision is
found in Rule 3 Section 21, but this should be read in relation to Rule 141 Section 19.
• If confronted with a question on whether or not an indigent should pay filing fees, ask these
2 questions:
o (1) Is he an indigent within the definition of the law? If yes, Rule 141 Section 19
provides that he does not need to pay filing fees.
▪ Who is an indigent? An indigent is someone whose income, and that of
his immediate family, does not exceed double the monthly minimum wage
AND does not own real property with the fair market value exceeding
P300,000. So immediately if your client falls within the definition, no need
to pay filing fees.
o (2) Does he fall squarely within the definition provided in Rule 141, Section 19?
▪ Example: a person owns a property worth P1 million but his salary is only
P5,000/month, can he ask to be declared an indigent under the provision
of the law?
▪ While he does not fall squarely within the definition provided in Rule 141
Section 19, he could still apply as an indigent under Rule 3 Section 21
subject to the discretion of the Court for the Court to ascertain whether his
income is enough for his food, clothing, and shelter.

Threshold amounts

RTC Involves title to, Small claims today Summary procedure

possession, or
interest over real
property: RTC
Metro Manila: Metro Manila: NOT exceeding Metro Manila: NOT
exceeding P400,000 exceeding P50,000 P200,000 and it exceeding P200,000
assessed value
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

Outside Metro Outside Metro involves sums of Outside Metro

Manila: exceeding Manila: exceeding money Manila: NOT
P300,000 P20,000 exceeding P100,000

• RTC, according to RA 7691, in Metro Manila exceeding P400,000. Outside of Metro

Manila the threshold amount is P300,000. If not exceeding those amounts, the proper
court is MTC.
• Now when it involves title to, possession, or interest over real property, such as recovery
of title, reconveyance of possession, all of those, the threshold is not P400,000 and
P300,000. The threshold amount is P50,000 and P20,000 assessed value. Exceeding
P50,000 is RTC. Outside of Metro Manila, exceeding P20,000 is RTC.
• How about for small claims today? What is the threshold amount? The threshold amount
for small claims today is an amount not exceeding P200,000, no longer P100,000, and it
involves sums of money.
o No longer included in that provision on small claims, which has already been
dropped by reason of the amendatory provision, is claims for damages arising from
delict is no longer included. So small claims are only limited to claims for sums
of money.
• Now how about summary procedure? As I told you, I will not allow you to go the Bar Exams
without refreshing you on this. Summary procedure, in Metro Manila, not exceeding
P200,000, outside Metro Manila, not exceeding P100,000.

Quieting of Title

• Quieting of title – not recovery of title, not recovery of possession. Only involves quieting
of title.
• When you talk of quieting of title as purely quieting of title, in accordance with Rule 63,
which is other similar remedies, regardless of the value of the property, it is with the
RTC. It is the case of Sabitsana v. Mortegi. The case of Dy v Palamos.

Hierarchy of Courts

• When we talk of jurisdiction, we talk of hierarchy of courts.

• Please remember that when we talk of hierarchy of courts, we talk of concurrent
jurisdiction. Forget about hierarchy of courts when we talk about appeal, because when
we talk about appeal, there is a specific mode of appeal. But when we talk about hierarchy
of courts, we talk of concurrent jurisdiction.
• The case of Dy v. Palamos
o Involved a judgment that has attained finality
o Spouses borrowed money from lending company; they used as a security a vessel.
They were declared in default by the lender company. The spouses insisted that
they were not in default. The spouses won until it reached the Supreme Court. For
purposes of execution, the vessel will have to be returned to them because it was
taken by the lending company as a security, thus the case went back to the RTC
which issued a Motion for Execution. The spouses were not happy with the RTC
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

judgment because it merely echoed what the SC said that the vessel should be
returned. The spouses were not happy about it being returned because the vessel
has already sunk, already deteriorated.
o From the RTC, they went directly to the Supreme Court to assail the action on a
Motion for Execution. Take note that a Motion for Execution is an interlocutory
order. Issue: Can the spouses ignore the hierarchy of courts?
o General rule: No. But in this particular case, the SC considered it as an exception.
Ordinarily, it should have been dismissed.
o Exceptions:
(1) When it is dictated by public welfare and advancement of public policy;
(2) In the broader interest of justice;
(3) Challenged orders are patent nullities; and
(4) Analogous exceptional and compelling circumstances.
• So when you talk of hierarchy of courts, you follow RTC to CA then to SC, such as when
you file a petition for certiorari.

Primary Jurisdiction

• General rule: if the court has no jurisdiction, the court should dismiss the case. The court
can neither remand the case nor reassign the case.
• BUT take note of the concept of primary jurisdiction.
o The concept of primary jurisdiction applies only if the case originated from a quasi-
judicial agency.
▪ Therefore if a case is filed with the RTC, which had no jurisdiction because
it should have been the MTC, the case should be dismissed. You cannot
apply the concept of primary jurisdiction. You can only apply the concept
of primary jurisdiction if the case was filed and it originated from a
quasi-judicial agency.
• In the case of Nisperos:
o The case was instituted with the DARAB, and there was allegedly an entitlement
over a piece of land. He contends that he is a tenant, the property was assigned
to him, he has been in continuous possession, and he has been cultivating it. From
the DARAB, it went to the CA, until it went to the SC.
o The SC said that it should not have gone through the CA immediately,
because the issue is not about tenant dispute, it involved title over a land. There
was no contention about land lord-tenant. Therefore, that case should have been
elevated first to the Secretary of Agrarian Reform. Therefore the SC said it will
not dismiss, but will refer according to the concept of primary jurisdiction.
o Take note, we don’t do that for actions filed in court.

Causes of action

• 2 important points in causes of action:

o (1) Requisites of cause of action:
(a) That there is a right of the plaintiff;
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

(b) There is a duty of the defendant to respect that right; and

(c) There is a breach or violation of that right – this is the most important
o (2) Joinder of causes of action – this is the single longest provision in Rule 2. If
confronted with a question on joinder of causes of action, remember that there are
4 rules:
(a) You cannot join those covered by different rules.
• Cannot join ejectment, certiorari, ordinary civil action, probate,
because these are all different rules. Thus you cannot join them
(b) Totality rule – meaning if it’s all sums of money (this comes out in the
bar), basta pera it should be the total of all the claims.
• But because it’s joinder of causes of action, it’s not mandatory. That
provision of Section 5 is not mandatory. Therefore, you can opt to
file it separately. If one is P500,000, you can file it with the RTC. If
one is P250,000, you file it with the MTC. If you want to bring them
all in one action, bring them all in one action in the RTC –
totality rule.
(c) Multiple parties – apply Rule 3 Section 6 on permissive joinder of parties
• Example: If the litigants are only one is to one (one plaintiff and one
defendant), the causes of actions need not be related; it does not
require that all the cases arise from the same transaction or series
of transactions. (Ex. can join promissory note, breach of contract,
etc., even if it is totally unrelated).
• BUT the very moment that I sued the 3 individuals in front of
me, these are multiple parties, you will have to apply Rule 3
Section 6 on permissive joinder of parties. It should satisfy
commonality of fact, commonality of law, and it should arise from
the same transaction or series of transaction.
• Example: I am driving a bus and all of you are my passengers. I got
into a collision. Can you file an action against me? Can there be
joinder of causes of action? Do not think of class suit, that is not my
question and obviously this is not a class suit. Can all of you, my
passengers, be joined together in one action? Yes because of
commonality of fact, all of you want to recover from me. Remember
that you can only have as many parties in an action if it arises
from the same transaction or series of transaction.
o This was cited in the case of Philtranco, wherein a collision
to them was treated as a “transaction.”
(d) It’s not necessary whether it’s a personal action or real action, for as
long as one falls within the jurisdiction of the RTC, everything goes to the
RTC and venue lies therein.
• Remember: if it involves multiple causes of action, not necessarily
personal or real, for as long as one is in RTC, everything goes to
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

the RTC. Now this is not mandatory; it is your option to bring it

in one suit.
• I repeat: if there are multiple causes of action against me suing him,
(but sir you said totality rule? Yes that is okay if all it involves is
money, but there are instances when there are personal actions,
real actions, right?)
• If you follow the rule under Section 5, for as long as one is in the
RTC, everything goes to the RTC, for as long as venue lies therein.
• Now if you have this thinking, “sir why would I file, let’s say it’s a real
action, and it’s in a wrong venue?” Remember that in civil cases,
venue is subject to consent, venue is subject to waiver.


Sole proprietor as party to an action

• A sole proprietor can be a party to an action, despite the fact that the provision of the law
provides the following: natural and juridical person, and those entities specifically provided
for by law can be parties to an action.
• A DTI-registered trade name does not exist as a separate entity.
o The person who registered it is the party, therefore when a person sues or is sued,
it is: Juan Dela Cruz doing business under the name and style of ABC Enterprises.
That sole proprietorship has no separate juridical entity but can be a party to the

Failure to implead an indispensable party without attainment of judgment yet

• In the case of Heirs of Mesina:

o There is a contention that the heirs of Mesina cannot be a party to the action
because the provision of the law only provides for natural person, juridical persons,
and entities authorized by law. Issue: should the case be dismissed?
o The Supreme Court said, and this is the rule, non-joinder of an indispensable
party is not a ground to dismiss. In this case, the non-joinder was spotted while
the action was pending. The SC said the non-impleaded indispensable party
should first be ordered to be impleaded before the case is dismissed for
absence of an indispensable party. If the order was not followed, the case of
Domingo said that the case will be dismissed.

Failure to implead an indispensable party with attainment of judgment already

• You might immediately think that since the rule is if the court renders a judgment and an
indispensable party was not made party to the case, the judgment is null and void. This is
only true is there is ALREADY A JUDGMENT.
• In the case of Makawahib:
o Police officer who insisted that he is not yet of the retirement age (56y/o). He
caused the age stated in his birth certificate to be amended to show that he is only
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

46y/o. The RTC granted it. The PNP, however, had no knowledge of this. After
some time, the PNP noticed so they questioned it. The SC said that the judgment
is null and void for failing to implead the Philippine National Police.
o Now class this is a tricky one, although they said that specpro is not included.
o 108 is really tricky because in 108 if you sue for a correction of a birth certificate,
for example, or entry in the civil registrar, your duty is to implead not only the civil
registrar, but also all parties who are to be affected by the change.
▪ This is the case of (Cerwila v. Dilantar?), which was asked in the bar exam.
▪ All those affected should be included.

Non-juridical entity CAN be sued but CANNOT sue

• The case of Association of Flood Victims and Hernandez v. COMELEC

o There was an applicant in COMELEC for a partylist, but the partylist is not even a
corporation. The applicant contends that “I am a non-juridical entity in the process
of incorporation.” Issue: does it have legal personality? No, the SC said that it is
in fact an admission that it has no juridical personality, thus the SC cannot entertain
the petition.
• A non-juridical entity CAN BE SUED under the name which they are commonly or publicly
known. And it is their duty to disclose in their Answer their correct names and addresses.
• BUT a non-juridical entity CANNOT sue. If they are to sue, they have to sue in their
personal capacity.

Class suit

(1) There is a common or general interest

(a) See if their interest is diverse. If it is, you can have a class. Example, Oposa v.
Factoran, because your interest, our interest, everyone’s interest cannot be
fractioned, cannot be determined, kaya nga intergenerational interest. However,
for as long as the interest can be ascertained, wala na. Example, ako
nagmamaneho, nabangga tayo. May iba namatay, may iba nabuhay, may iba na-
injure. Your claims for damages would vary depending on your status in life, on
your medical condition, your profession, your age. It’s not a class suit.
(2) Adequacy of representatives
(a) The representatives have to sufficiently represent the class.
(b) Example: Among the 500 people in a class, only 12 filed the case. They don’t
adequately represent the class. There should be some correlation between the
number of claimants and the representatives. At least they are proportionate.

Necessary and indispensable party

• Necessary party, if not impleaded and judgment is rendered, will not make the judgment
null and void. The judgment remains to be valid, unlike an Indispensable party.
• What if there’s an order to implead a necessary party and you failed to follow the order
the court? Will that be a valid judgment?
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

o Yes. But your right of recourse against the non-impleaded necessary party is
deemed waived.
• What if there’s an order to implead an indispensable party and you fail to do so?
o If you fail to implead, the case will be dismissed.
• In the case of Aceron v. Ang, a case for collection of a sum of money was filed by Atty.
Aceron in behalf of Theodore and Nancy Ang. Theodore and Nancy reside in California,
they’re non-residents, while defendants reside in Bacolod. The action was filed by Atty.
Aceron in Quezon City where he resides. A motion to dismiss was filed but it was denied
by RTC. The question is: is the representative-lawyer a real party in interest, making the
filing of the complaint in court to be in the place where he resides? Answer: No. The
representative is just a representative and NOT a real party in interest. As a result, the
action should be dismissed because the venue was improperly laid.


• It is not a requirement of jurisdiction but a requirement of due process. It is the duty of

the lawyer, in the event his client dies, in a case where the action survives, to inform the
court within 30 days from the fact thereof, not from the knowledge. In that notice, it is also
the duty of the lawyer to inform the court of the name of the legal representatives who can
be an executor, administrator, or heir.
• What’s the duty of the court? Once the court receives the notice, it should require the legal
representative to appear and to order substitution.
• Both must take place. If the lawyer doesn’t perform his duty or if the court doesn’t perform
his duty, there will be no successful substitution. Any judgment in the absence of a valid
substitution is null and void. However, in the light of the statement in Napere v. Barbarona,
the key is even if there’s no strict compliance with what I have discussed, but if the party
submitted to the jurisdiction of the court, actively participated, submitted pleadings, sought
relief, he is deemed to have submitted to the court. Therefore, any judgment will bind him
and it will be a valid judgment.
• Substitution is not just by reason of death. There is substitution if a public officer dies,
resigns, or ceases to hold office. That’s the next section, sec. 17. There’s another one,
transfer of interest.

Sec. 20

• This refers to the death of a party-defendant. So if you see a question na patay yung party,
dahan dahan lang. It might not be substitution. Ask yourself, is the dead party a defendant?
What is the nature of the action? If it’s a sum of money, and the defendant dies, the
applicable provision is not sec. 16 but sec. 20. Will the case be dismissed? No. Will there
be substitution? No. Will the case continue? Yes. Against who? Against the estate. Pag
may namatay, walang naddismiss unless the action is purely personal which is
extinguished by death.
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)


• There is this case of Briones, a 2015 case. He allegedly entered into a loan with Cash
Asia. He used his real property as security for the loan, but all along he was not in the
Philippines. He was in Vietnam for more than 4 years. So when he returned from Vietnam,
he learned that his property was mortgaged? So what would a prudent man do if he learns
that his property was mortgaged and it was not his own doing? He will cause the mortgage
to be cancelled. So he filed an action to cancel and rescind the “loan and the mortgage”.
• Cash Asia field motion to dismiss because the action was improperly filed. It was filed in
a venue where Briones resides and not where it was stipulated in the contract. Supreme
Court said, when the validity of the contract is in issue, the complaint should not be bound
by the venue stipulation and should be filed based on the general rules on venue under
Rule 4.
• Take note, if the law provides for a specific rule on venue, then that rule will apply. For
example, adopter, where adopter resides. Nullity of marriage, where the plaintiff resides,
where the defendant resides or where the conjugal home is located, at the option of the
• Hence, Rule 4 will only apply if:
1) There is no law on the matter, or
2) There is no contractual stipulation to the contrary
• In a contractual stipulation:
o If there are rules of exclusivity = the venue is exclusively and only the venue
o If there are no words of exclusivity, the venue is stipulation is only in addition to
the venue provided for in Rule 4.
• The case of Paglaom involves multiple contracts (real estate mortgage 1, 2 and 3, then a
restructuring agreement). In that case, which venue stipulation will apply? In the first
contract, sabi Manila excluding all other venues. In the 2nd contract, Cebu excluding all
other venues. The party defaulted in its obligation so the loan was restructured. A new
one was executed and then there is now a venue stipulation. Which venue stipulation will
apply in the event of litigation? It will be the most recent one. Because it supersedes the
other contracts.
• What if a promissory note has no venue stipulation, but there is a mother loan agreement.
The amount appearing on the promissory note was not paid when due so an action for
collection for sum of money was instituted. What venue will have to be followed? The
Supreme Court said that if the mother contract was directly connected and intertwined
with the promissory note, then the promissory note will be bound by the venue stipulation.

Third party complaint

Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

• In the case of Paras, Paras was on board an Inland bus which was then bumped at the
rear by Philtranco. As a result, the Inland bus hit a parked cargo truck. Paras filed a
complaint for damages based on contract of carriage against Inland because he was on
board the bus. Inland filed a third party complaint against Philtranco asserting that Paras’
cause of action should be against Philtranco. The RTC held that Philtranco is liable for
damages including moral damages. Philtranco contends that Paras couldn’t recover
damages including moral damages because the suit was based on a breach of contract
of carriage. Can Paras recover moral damages from the third party defendant? The
answer is yes. Third party complaint or impleader, that is Rule 6, Sec. 12.
• Requisites of third party complaint:

(1) The party impleaded is not yet a party to the action

(2) The claim against the third party complainant must belong to the original
defendant not the original plaintiff
(3) The claim of the original defendant against the third party defendant must be
based on the plaintiff’s claim against the original defendant
(4) The defendant is attempting to transfer it to the third party defendant
• Recall the provision. It says that you will file a third party complaint for contribution,
indemnity, subrogation or other relief. Kasi ayaw mong magbayad. It’s as simple as that.
You’re passing it on.

Summary proceeding

• In summary proceedings, the reglementary period is not 15 days. It’s only 10 days. The
court can dismiss the complaint outright.
• If there is no answer, you cannot file an action to declare the party in default if you’re the
plaintiff because it is a prohibited pleading. You cannot even file a motion to extend time
because it is a prohibited pleading.
• What if there was a complaint but there was no answer, can the court render a judgment?
Yes, without a motion to declare in default. It is under the Rule on Summary Procedure.
That is the first instance where the court can render a judgment.
• In the 2016 case of Knitcraft v. Loo Po, there was no answer to the complaint. Can the
court render a judgment? Of course. But what happened here was after the court rendered
a judgment based on the complaint, the other party was saying that the court cannot
render a judgment based on what the complaint says; the court can render a judgment
only if it satisfies the degree of evidence in civil cases, which is preponderance of
o Should preponderance of evidence apply? No because the provision of the law on
summary procedure only says that if there is no answer, the court can render
judgment based on what the pleading may warrant. The preponderance of
evidence will only apply if there was presentation of judicial affidavits or position
papers on summary procedure.
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

• Can you file a motion to dismiss on a case falling under the rules on summary procedure?
The general rule is no because it’s a prohibited pleading.
o Exception: when it involves subject matter jurisdiction or there was no prior referral
to barangay conciliation
• Let’s say you filed a motion to dismiss claiming that there was no jurisdiction. It was
denied. Can you file a petition for certiorari? A petition for certiorari in summary
procedure is a prohibited pleading. Certiorari, prohibition, mandamus of an interlocutory
order is a prohibited pleading.
• Yung prohibited pleading dito medyo kapareho sa writ of amparo. Motion to dismiss.
Motion to extend time. Dilatory motion for cancellation. Reply. Take note of that.
• Alam ko kasama ang writ of amparo. Maniwala kayo magtatanong sila dyan.
• So the rule is that petition for certiorari is a prohibited pleading. However, there are
exceptions. It is not in the law but in jurisprudence.
o It is in the old cases of Bayot and the case of Go wherein a petition for relief of
judgment was filed, it’s a prohibited pleading, because he has pulmonary
tuberculosis. But the court considered it. The preliminary conference was
indefinitely suspended. Take note, summary procedure, not pre-trial. The Court
said, the party had no choice but to file a petition for certiorari because he has no
other remedy. Please bear that in mind.
o Take note, at the point of petition for preliminary conference, can the court already
render judgment in summary procedure? Only if the court is convinced that there
is sufficient evidence for him to already render a judgment.
o What is the effect of absence of the plaintiff in preliminary conference? The case
will be dismissed. What if it’s the defendant? The court can already render
judgment. Mali yung sagot na the plaintiff will be allowed to present evidence
ex parte.

Verification and Certification

• Take note of the case of Fuji Television v. Espiritu, 2014 case. It is important because it
differentiated verification and certification.
• Verification is not a jurisdictional requirement, but a formal requirement.
o What does it state? Please memorize. “That I’ve caused the preparation of the
above petition or complaint and the same is true and correct based on my personal
knowledge or authentic documents or record.” If I were you, I’ll memorize that.
Hindi knowledge, information and belief.
• Is verification merely a formal requirement? Yes.
o Can it be corrected by an amendment? Yes, because it is not a jurisdictional

Certification against forum shopping

Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

• Mandatory in all initiatory pleadings.

• Absence of certification will result to a dismissal of the case.
• Is it correctible by an amendment? No.
• There is this Fuji case: It’s a labor case. Arlene Espiritu was a reporter of Fuji Television.
She’s been there for almost 5 years. She was diagnosed to have lung cancer. Ayaw na
syang irenew ng Fuji. She filed a labor case. Talo sya sa Labor Arbiter. She won in the
o Then Fuji went to the SC. There was no certificate. What was attached was a
special power of attorney (SPA) to show that the company authorized an employee
in the Philippines, who’d been an employee for more than 15 years. Isipin mo SPA,
company? Dapat yan board resolution embodied in a secretary certificate.
o Fuji Television gave two Japanese employees the authority to institute an action
for petition for certiorari under Rule 65 from NLRC to CA. Sabi ni Arlene Espiritu,
“dapat dinismiss na yan. Because even if we accept the SPA, the delegated power
was only for the petition for certiorari. They can’t delegate more that what the
authority gives them.”
o SC said, in that board resolution, there was a statement, “authorizing the Japanese
to take any and all proceeding that is necessary to be taken even in other
venue”. That is wide enough to include the authority to delegate. Besides, there
was nothing in the original authority to the Japanese that prohibits it, consistent
with the provision on agency. If there is no prohibition, there is nothing that
prevents them from delegating. Even in an SPA, the Court accepted it. Substantial
• Do you need a certificate of non-forum shopping for the application of an issuance of a
writ of possession?
o Bakit ako magaapply for a writ of possession? You apply for motion of a writ of
possession when you are the winning bidder in a foreclosure sale. Do you need to
file a separate action?
o The Supreme Court said that the application for the issuance of a writ of
possession is in truth only a motion and therefore requires no certificate
against non-forum shopping. In the case of PTA of St. Matthew v. MetroMat, the
SC said that a writ of possession is not an original action. In truth, it is just a motion.
• What is the effect of false certification and non-compliance? I’m referring to Sec. 5 of Rule
o It will result in the dismissal of the case with prejudice.
o What do you mean by false? You said there was no more pending cases, but there
were pending cases.
o In noncompliance, you committed and you undertook to inform the court that
should there be subsequent actions constituted, you will inform the court. If it has
already been six months from the filing of the case and you still have not informed
the court, that is non-compliance. What happens to the case? The case will be
dismissed with prejudice and you can be held criminally or administratively
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)


• What is the difference between a compulsory counterclaim and a permissive counter

o A compulsory counter claim is a necessary off shoot or consequence of the main
action. A permissive counter claim is separate and independent from the main
action. A compulsory counter claim requires no certificate against non-forum
o On the other hand, a permissive counter claim requires a certificate against non-
forum shopping.
• What if the principal action has already been dismissed? What happens to the counter
o The applicable provision is Rule 17 Sec. 2. Pag na dismiss ang principal action,
buhay pa ang counterclaim even if it is the plaintiff who caused its dismissal.
o According to Rule 17 and citing the case of Pinga, the counter claim will have to
stand based on its own merits.
• In what action will the counterclaim be prosecuted?
o The general rule is that the counterclaim will be prosecuted in a separate action
unless you manifest within 15 days that you intend to prosecute or proceed on the
counterclaim in the same action.


• How about a reply? Is a reply a mandatory pleading? No, it is not.

• What is the purpose of filing a reply? The purpose is to meet new matters raised in an
• What if an answer has an actionable document, should you file a reply? Yes.

Actionable Documents

• If an action is based on an actionable document, the rule is you have to specifically deny
it under oath. Otherwise if you fail to specifically deny it under oath, the attached document
is considered admitted as to its genuineness and due execution.
o If it is presented later on trial, there is no need to authenticate the documents
anymore, consistent with Rule 132.
• Let me recall to you the case of Equitable Card Network v Capistrano, where there was
no specific denial.
o In this case, the claim was to recover sums of money against a woman who was
believed to have applied for a credit card, and there are no credit cards payments
but she was denying that she applied for it. She was a member of an association
and the credit card company said you have to pay for this and they attached also
her application form.
o There was no specific denial under oath so it was considered disadmitted.
o However, when it reached the Supreme Court, the SCC did not treat the absence
of a specific denial as an adverse or negative effect. The Supreme Court treated
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

the special affirmative defenses as the equivalent of a specific denial. Take note
this is an exceptional case.
o So the basic rule is, the denial should be a specific denial under oath.
▪ Is there an exception to the rule? The answer is Yes. The exception to
specific denial under oath is:
(1) If you are not a party to the action, you are not obliged to make a specific
denial under oath; and
(2) if there is an order for inspection and you did not comply with the court,
then the rule will not apply.


• What is the period to file a motion to lift an order of default?

o The answer is there is no time. Therefore, it shall be within a reasonable time.
o However, in the case of Louie Enterprises v Willig, the SC held that a motion to lift
an order of default which was only filed after a period of one year, and with no
reasonable ground, cannot be granted.
o What are the grounds to lift an order of default? There are four: (1) extrinsic fraud,
(2) accident, (3) mistake and (4) excusable neglect AND it should be under oath
and you will have to state that you have a reasonable or good defense.
• What are the remedies from a default judgment?
o It is not found in the law, but in the old and leading case of Lina:
1) File a motion for new trial within the reglementary period
2) File an appeal within the reglementary period
3) Petition for relief from judgment, if the judgment is already final and
4) Petition for certiorari.
• If presented with a problem on default, please remember that there should always be proof
of such failure. Why?
o Because under Rule 13, the answer could be filed in a number of ways. Let us say
that I filed a complaint and summons was served on the defendant on Nov. 2.
Come Nov. 17 there is still no answer.
o I am the plaintiff I haven’t received an answer, but defendant filed an answer by
registered mail, was the answer filed on time?
▪ Yes. If it is by registered mail, because the date of mailing is the date of
▪ What if the filing was made by express mail? LBC, UPS, etc. But it was
mailed on Nov. 17 the last day of its filing, is it considered as timely filed?
• No. Express mail is not considered as a valid mode of filing in our
jurisdiction. But of course in QC they have their own rule but for
purposes of the bar, that is the answer.

Nonwaivable Grounds

• Is prescription as a ground to dismiss a case waivable? No.

Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

o Rule 9 Sec. 1 states that grounds raised in an answer or a motion to dismiss are
considered as waived except:
1) Subject matter jurisdiction
2) Litis pendentia
3) Res judicata
4) Prescription.
These grounds that I mentioned are the grounds in which the court can
dismiss a case motu proprio.

Amendment to Conform to the Evidence

• Rule 10 Sec. 5: Amendment to conform with the evidence only means that you will ask
the court to amend your pleading in the course of the pendency of your case or even
during trial to make it consistent with the evidence presented.
• So you will file a motion to amend the pleading to conform with the evidence because
evidence has already been presented and you want the pleading to be consistent with the
• Let us say that the allegation in the complaint is P800,000 but in the course of the trial you
were able to prove 1.2 million pesos, can you amend your pleading to reflect the P1.2
million pesos? You will be presented with two scenarios: (1) if the other party does not
object then it could be amended; (2) if the other party objects, it is left to the discretion of
the court.

Amendment As A Matter of Right

• When is there amendment as a matter of right? Before an answer is filed. After an answer
has been filed, it is left to the discretion of the court.
o Exception: if it is clerical or typographical error, it can be amended by motion of a
party or upon the court’s own motion.
• What is the difference between an amendment and a supplement?
o When you talk of an amendment, the facts sought to be changed are already
existing at the time of the filing of the pleading.
o Supplement are facts or circumstances or occurrences that took place after the
pleading to be supplemented; meaning, when you filed the complaint it was not yet
present or available, and that is why you want to supplement.

Bill of Particulars

• What is the effect of failure to comply with order to submit bill of particulars?
o For instance, I filed a complaint, the defendant filed a motion to request for bill of
particulars, and the court granted it. The court issued an order requiring me to
submit bill of particulars. What if I fail to comply despite the order of the court?
o The case will be dismissed.
o Verata v Sandiganbayan, that is the most recent case.
• Why do you file a motion for bill of particulars? To whom is it directed?
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

o It is filed by the defendant within the regulamentary period to file a responsive

pleading and the defendant wants the plaintiff to respond to his allegations that the
statements are defective and the details that he desires.
o It is now the duty of the plaintiff, if the court grants it, to file a bill of particulars.
o What if the court issued an order requiring me to submit bill of particulars and I
complied but the defendant failed to file an answer? Can the defendant be declared
in default?
▪ Yes. Once the plaintiff complies, the reglemantary period continues. It
starts to run again once the court orders a grant or denying the motion. The
provision says that in all cases you have at least 5 days.


• I want you to remember lis pendens. Rule 13. How do you cause the annotation of the
notice of lis pendens? (1) there should be an action instituted; after an action is instituted
(2) there should be written memorandum directed to the register of deeds where the
property is located indicating that an action has been instituted against this defendant and
a copy of the complaint and that this is the property subject of the litigation. There will be
an annotation.
• Can I cause the notice of a lis pendens in the absence of a judicial proceeding?
o No. There should be a judicial proceeding because it is the basis of the notice of
lis pendens.
• How do you cause the cancellation of the notice of lis pendens?
o The notice of lis pendens can only be cancelled upon order of the court. In the
absence of an order of the court, it cannot be cancelled.
o There should be good reasons. The reasons are as follows: (1) annotation of the
lis pendens is only to molest the parties and (2) it is no longer intended to protect
the right of the parties
• Will the establishment of a lis pendens result in a status or a right?
o No. It is purely a notice to inform the rest of the world that the property is a subject
of a litigation.


• Aberca v Ver: In this case, the defendants Ver , the general, and the rest of his cohorts
who were alleged to have committed human rights violations during the time of Marcos
was sued in a civil court in QC. For a period of time he couldn’t be located. There were
service of summons but they were unsuccessful after so many years. So the court may
been so tired and frustrated. So the court said “publish mo na lang yung notice to answer”.
Is that correct?
o No. Notices cannot be made by publication. Decisions, judgments originating from
the court can only be served in accordance with Sec. 9 Rule 13, that is personal
service or by registered mail. Hindi pwede publication.
o Pwede summons class, pag ang summons sinerve by publication, the judgment
should also be served by publication. But of course efforts will be made to serve it
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

in the last known address. There is nothing in the provision of the law that allows
the court to publish a decision.

Proof of Filing

• What is your proof of filing?

• The general rule is that your proof filing is what you see in the records of the case. You
can prove your filing by submitting to the court your receiving copy that of which is stamped
on the records of the case, stamped by acknowledgment of the clerk of court and duly

• What if you served a copy of the pleading to the adverse party? The adverse party was
nowhere to be found. Therefore, the document that was intended for the adverse party
was returned to you. What would you do with the document that was returned to you?
o Ok this is your duty, Number 1, you would have to submit the return card. Sec. 13
of Rule 13: If the document was returned, you would have to submit the document
itself, not only the return card, plus a certification from the post office of the reason
for the return.


• How do you serve summons?

o Pag tinanong kayo niyan ito muna hanapin niyo ah. Tao ba yung defendant?
Kapag corporation yan, alamin mo muna kung domestic or foreign.
o Kung tao siya tapos nasa Pilipinas, you have to serve it upon him personally.
▪ If he refuses to receive it, you have to tender.
• What if the person, despite your efforts to serve the summon, is not found in his
home or his office?
o You will have to go through substituted service of summons. But for this to apply,
there should have been (1) impossibility of personal service, and (2) there should
have been repeated attempts to serve (Pascual vs. Pascual). Also, according to
the case of Pascual, there should have been at least three (3) attempts in two
separate days to serve the summon.
• What if the person who should be summoned is abroad and you sent the summons
via fax?
o aIn this case, there is no proper service of summons. The mode should have been
this: try to serve it upon the person personally. Since he’s abroad, your options are
those provided in sec. 15. What are those? (1) serve it upon him personally in a
foreign country (2) service by publication in a newspaper of general circulation in
the Philippines and service in his last known address by registered mail, (3) other
modes as may be determined by the Court. Note that #3 requires leave of court.
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

• What if the person is temporarily absent1? Can you do substituted service of

o Yes because he is only temporarily absent, which means that the person has a
house and residence here in the Philippines.
• What if the whereabouts of the defendant is unknown in a sum of money case?
o Under Sec 14, publication in a newspaper of general circulation is sufficient.
• In the De Pedro vs. Romasan Development case: what is the preferred service of
o Personal service, whether accion personam or accion quasi in rem.
o In this case, there was a return but the return did not accurately describe the
manner by which the sheriff served the summons. The court said that failure to
state the facts and circumstance that render the service impossible render the
service of summons and the return ineffective. In other words, if the description is
defective, the service of summons and the return will become ineffective. Hence,
there is no substituted service of summons or even service by publication.

Foreign entities (Sec 12)

• First, determine if the foreign entity has a resident agent. If none, determine if there is a
law which designates a public officer to receive summons for them. If there is none,
determine if there is an agent in the Philippines.
• If everything fails, remember that the wording of the law is not doing business. The wording
of the law in the first paragraph of Sec 12 is transacted.
• What if the foreign entity is not registered in the Philippines and has no resident
agent? How do you serve summons?
o You will have to seek leave of court to be able to serve in the following manner: (1)
personal service through the foreign court with the assistance of the Department
of Affairs, (2) by publication in a general circulation in the place where the
defendant corporation holds office (not in the Philippines but in that foreign country,
(3) facsimile or any other electronic means for as long as proof of service is
generated, and (4) other means as the court may direct.
• RCBC vs. Hi-Tri Development Corp
o Remember that if what was presented to you is an escheat of bank accounts, do
not apply Sec. 11 because there is a separate law that applies. This law was cited
in the above case. It is Act. 3936. Escheat are actions in rem. The action is brought
against the thing itself. There is no need to serve notice or eve summons to these
separate or individual depositors for unclaimed accounts. Service of summons
should be made to the President, cashier, or managing officer, and by publication
of the summon in a newspaper of general circulation.
• Carcell Realty (2017 case)

1 Example of temporarily absent: goes to America to visit parents every 3 months, and returns to the Philippines after one month
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

o By filing an entry of appearance and by seeking affirmative relief, the company has
already submitted to the jurisdiction of the court.
• National Petroleum gas case—are you considered to have submitted to the
jurisdiction of the court when you file a motion to dismiss with special appearance?
o Sec 20 of Rule 14, you can join in a motion to dismiss on all grounds and it will not
be considered as not submitting to the jurisdiction of the court. But in this case, the
court stated that while sec 20 says that you can include all grounds, you cannot
however seek other relief. Because the very moment you seek other relief, even if
you file a motion to dismiss, you are considered to have submitted to the
jurisdiction of the court.


(1) Notice of hearing – every litigated motion should have a notice of hearing, unless the
motion is one which will not prejudice the rights of the adverse party.

(2) Three day notice rule – the motion should have been served to the other party and
receipt thereof must have been ensured at least three days before the date before the

(3) Ten day rule – the motion should not be set for hearing for a period longer than 10
days from the date of its filing.

(4) Motion day – bear in mind that the motion day should always be on a Friday at 2pm.
Only if a Friday is a non-working day or a holiday will the motion hearing be set on the
next working day.

(5) Omnibus motion rule – all grounds or objections available at the time should be raised.
Otherwise, it is deemed waived.

Motion to dismiss

• Period of filing – the reglementary period for filing an answer.

• Failure to state a cause of action vs. lack or absence of cause of action. Which can
the basis of the preliminary hearing for the affirmative defenses?
o Only the ground of failure to state a cause of action. Lack or absence of cause of
action as a ground for a motion to dismiss is in truth a demurrer of evidence. As
such, it can only be found after the plaintiff has completed the presentation of
• If a court grants a motion to dismiss, can you re-file the case?
o It depends on the ground. If the ground is payment, waiver, abandonment
unenforceable under the statute of fraud, or prescription, you cannot file anymore.
If based on other grounds, you can re-file but you will have to pay new filing fees.
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

• What if the case is dismissed on the ground of lack of jurisdiction over the person
of the defendant, and you do not agree with the Court, what is you remedy to have
it reviewed?
o File a petition for certiorari (Rule 65).


• LBL vs. City of Lapu Lapu – who sets the case for pretrial?
o After the filing of the last pleading or reply, it is the duty of the plaintiff to file an ex
parte motion to set the case for pre-trial within a period of five (5) days.
• What if the plaintiff fails to file an ex parte motion?
o It is the duty of the clerk of court to issue a notice of pre-trial (LBL vs. City of Lapu
• What is the remedy if the plaintiff is non-suited2?
o The remedy is an appeal.
• What if the defendant is absent but the plaintiff is present? What is the
o The plaintiff will be allowed to present evidence ex parte.
• What is the remedy of the non-appearing defendant?
o He could file a Motion for reconsideration or to lift or set aside the order on the
ground of fraud, accident, mistake, or excusable neglect (Saguid vs. CA)
• NOTE: The above consequences apply only when it is the parties themselves who are
absent and not when it is the lawyer of either the plaintiff or the defendant that is absent.
This is unless the lawyer was duly authorized by his client to appear for or in his behalf. In
which case, if the said lawyer is absent, the above consequences will apply.
• Also, even if you are absent, the consequences will not apply if you have good reasons
for your absence.

Failure to submit a pre-trial brief

• If you fail to submit a pre-trial brief, the consequences are the same as absence, whether
you are the plaintiff or defendant.
• Even if you are present but you did not submit a pre-trial brief, the consequences for
absence will also apply.


• A case was dismissed on the ground of lack of jurisdiction over the subject matter. Then
an action was subsequently instituted by the same plaintiffs in the first case involving the
same subject matter. Such action was also dismissed but on the ground that it was filed
in a wrong court. The plaintiff again instituted an action in the now right court.
o While the action was pending but before an answer was filed, the plaintiff decided
to withdraw the case.
2 Meaning the plaintiff fails to appear during pre-trial.
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

o Is the plaintiff barred by the two-dismissal rule? – NO

o Rule 17, Sec. 1 provides that if the case is once dismissed by the plaintiff before
an answer is filed, he could re-file it because the dismissal is without prejudice. A
second dismissal of that nature will bar the third filing.
o For the two-dismissal rule to apply, the dismissal should have been prompted by
the plaintiff in both instances and before an answer. In this case, the first case was
a dismissal on ground of lack of jurisdiction over subject matter while the second
case was dismissed on ground it was filed in the wrong court. Therefore, the
plaintiff can filed for a third time.


• Within what period can you file an intervention?

o Basic Rule: A motion for intervention should be filed at anytime before the rendition
of judgment in the trial court.
o Once there is a final judgment, as a rule you can no longer intervene. Unless, the
intervenor is an indispensable party.
o However, there are some cases that CA and SC allowed motion of intervention even
on their level. But it subject to the discretion of the court.
o The intervenor should have legal interest.


• Can a deposition taken in another proceeding be used in a pending case?

o Republic v Sandiganbayan: There were two cases for accounting and
reconveyance involving ill-gotten wealth. These two cases were consolidated only
for the purposes of trial. Can the deposition in proceeding A be used in proceeding
B? - NO
o The nature of consolidation is only consolidation for trial, the two cases remain in
their separate identity. Because of this, proceeding B cannot simply adopt the
deposition of proceeding A. It will have to pass Rule 130, Sec. 47, for a deposition
or testimony in a proceeding to be used in another, it should involve the same parties,
the same subject matter, and it should have been subject to cross-examination.

• Can a deposition of someone in a foreign country be taken?

o Santamaria and Boza v Cleary (2016): It involves a party to a transaction who is a
foreigner. He sold his shares in the Philippines and there was some disagreement
so an action was instituted. Is there a requirement that a person should be resident
or nonresident for a deposition be taken? - NO
o SC held that Rule 23, Sec. 21 makes no distinction on whose deposition should be
taken. So any person’s deposition can be taken and once an answer is filed the
deposition can only be filed by notice.
o The law makes no distinction whether the person is resident or nonresident for his
deposition to be taken.

• So if he is a foreigner can his deposition be taken?

o Yes, but he will have to pass the uses of deposition.
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

▪ Because he is a foreigner and does not reside in the Philippines, he is more

than 100km from the place hearing is to be conducted. And for this reason,
his deposition can be taken and can be used in court.

• What should you use when you apply for a deposition?

o Rule of thumb: Once an answer has been filed, you are only to file a notice to take
o CASE: There was an answer, but the answer to a complaint was ad cautelam.
Thereafter, a notice of deposition was filed. The party contends that it is not an
answer because it is a cautionary answer. The SC held that regardless of what
you called it, it is still an answer. Therefore, there being an answer and you will file
for a deposition, you are to file notice to take deposition.
o If there is yet no answer, you are to file for a motion to take deposition.

• How do you oppose a taking of a deposition?

o Rule 23, Sec. 16
1. The only reason to take the deposition is to annoy, embarrass and oppress.
2. Taking of deposition is completely irrelevant
3. Falls under a privilege

• Use of depositions (Rule 23, Sec. 4)

1. Purpose of impeaching
2. For any purpose
3. Opponent is dead, sick or infirm or his appearance cannot be procured upon a
subpoena in other analogous circumstances
4. Or if the person is more than 100km from the place where the hearing is to be

• Does it mean that you can use the deposition as a testimony of the person who is not
available? – YES
o But bear in mind that deposition as a rule cannot be used as a replacement for
actual testimony in court. Beucase the rule is that a witness must testify in court,
you cannot do away by just taking a deposition

• Can you take deposition in criminal cases? Yes

o The applicable provision is Rule 119 Sec. 12, 13 & 15 (Conditional examination of
▪ Witness cannot be present on the date of the trial, so there is such a
• If your witness is about to depart the country without definite date of returning. Can the
conduct conditional examination of the witnesses for the prosecution be done? YES,
before the judge only where the action is pending

• What if conditional examination of witness for the accused?

Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

o If the witness for the accused is sick/dying/infirm or more than 100km from the
place where the hearing is to be conducted and cannot wait until the trial comes.
o Rule 119 shall apply

• Where should the deposition be taken in a criminal case?

1. Before any court in the Philippines
2. Before a member of bar in good standing
3. Before any inferior court if directed by a superior court

• Where should the deposition be taken in a criminal case?

1. Before any judge in the Philippines
2. Before a Notary public
3. Before any public officer who is authorize to administer oath and stipulated upon by
the parties

• In civil cases, can you disqualify a deposition officer? - YES, if:

1. Financial interest
2. Related to the party within 6th degree of affinity and consanguinity
3. Related to the lawyer within the same degree

• If you have taken a deposition of a person, are you oblige to use it?
o NO, taking is different from use. But the very moment you use a part, the rest of
the deposition can be examined.

• What is the difference between letters rogatory and commission?

o Letters Rogatory is the communication of one judicial authority to another, if that
is entertained by a foreign court. The rules to be followed is the rule of that foreign
o Meanwhile Commission is an appointment of a local court of someone in a foreign
country. The rules on deposition to be followed is the Philippines.

• What is the effect of failure to serve written interrogatories under Rule 25?
o You will not be allowed to the present the adverse party, the other party, and the
opponent as a witness. You cannot call him in the witness stand. Or you cannot
avail of deposition pending appeal.

• Ways to perpetuate testimony is found in Rule 24:

o Two kinds to perpetuate
1. Deposition before action where the sole purpose of filing action is to perpetuate
2. Deposition pending appeal. But you should apply it in the court where it
rendered judgment for as long as it has possession of the records of the case.

• When do you file a request for admission?

Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

o After issues are join meaning after an answer has been filed

• What is the effect of failure to respond to a request for admission?

o Amount to an implied admission, whatever the circumstances may be.
o Manzano v. Despabiladeras: There was order to submit a list of equipment,
during pre-trial the court noted that the party wanted to submit a list of equipment.
But he was not able to submit a complete set. So the court said ok I’ll give you time
to file your list of equipment. But instead the party filed a request for admission.
And the other party did not respond, they ignored it. What is the effect, the SC said
the effect is an implied admission

• What are the matters subject of a request for admission?

1. Material or relevant fact
2. Genuineness and due execution of document which is attached to the request.
o If a document is admitted already, you don’t need to authenticate

• What is the effect if you unjustifiably refuse a request for admission?

o All the expenses for proving the same will be born by the denying party; the one who
receive the request for admission.

• Consequences of failure to respond to a deposition (Rule 29, Sec. 3)

o The court can dismiss your case if you are the plaintiff; the court can declare
judgment by default if you are a defendant; allegation supporting your claim could
be stricken off; or even be declared in contempt.

• What if you refuse to answer the entire interrogatories? (Rule 29, Sec. 5)
o The Court can dismiss your case if you are the plaintiff; court declare judgment by
default if you are a defendant; allegation supporting your claim could be stricken


1. You can examine books papers and documents

2. You will be allowed entry into the premises

• Rule 27 is not limited to examination of books papers and documents.

• Requisites in applying production of books papers and documents:
1. relevancy
2. particularity

Note: These are the same requisites if you apply for a subpoena duces tecum
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)


• This is mode of discovery that can only be used in cases if mental and physical condition
is in controversy. (eg guardianship, insanity)
• Either party can apply for this.

• Difference between written interrogatories under rule 23 and under rule 25

o Under Rule 23, Sec. 25 - 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,
o Under Rule 25, what is required is only a set of written questions, served upon
the other party


• Consolidation can only take place where there is common fact and common law.
• Unicapital v. Cosing: Although there were two cases involved where such cases have
the same parties, same proceeding, and the same factual antecendent. SC held that the
two cases should remain unconsolidated since they proceed from different sources of
obligation. One case involves abuse of rights while the other is for collection of money.
• Because Consoldiation is not mandatory, it is left to the sound discretion of the court

• Can a court render a judgment without a hearing? – YES, thru:

1. Summary judgment
2. Judgment on the pleadings
3. Rule 30, Sec 6 if there are no factual controversies, the court can render a judgment
without a trial

• Can the court delegate the power to receive evidence? –YES

o It can be delegated to the clerk of court

Documentary Evidence: Best Evidence Rule

• What do you need to remember? Best evidence rule. Secondary evidence rule, parole
evidence rule. And whether the contents of the evidence are subject of the inquiry, that’s
an original. Entries made in the regular course of business at or near the time of the
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

transaction or execution of documents of what you call duplicate originals at or about the
same time, that’s an original.
• What is the best evidence rule? When the contents of the document is the subject of the
inquiry, then you have to present the original. According to jurisprudence memory can
falter. Besides, according to juris, in te absence of the original, there can be fabricated
evidence that can be presented.
• The Shangri-La case. Do you need to present the original if what is intended to establish
is whether the document exists? No. when the subject of inquiry is not the content of the
document but only whether the document exists, the answer is that you don’t need to
present the original. A photocopy would suffice. Therefore there could be other evidence
to be presented. The contents of the document are not subject of the inquiry
• What are the exemptions? This leads to secondary evidence. When the exemptions enter,
those are the secondary evidence. Example: Lost or destroyed documents with no fault
on the part of the offeror. What are the requisites? You would have to establish the
existence, the execution, the deed has been lost or destroyed without fault of the offeror.
These requisites are laying the basis. If you are able to lay the basis, what can you present
as secondary evidence?
• The secondary evidence are as follows: copy, recital in some authentic documents, or
testimony of witnesses. In that order. The requisites are not the secondary evidence. That
is only the laying of the basis for presentation of copy, recital in some authentic document,
or testimony of witnesses. In that order.
• The second exemption to presentation of an original if the document is in the custody of
the adverse party. Establish, execution, existence, notice directed to the other party who
is in possession of the document to produce it and despite timely notice he did not produce
it. Only then can you present: copy, recital in some authentic documents, or testimony. In
that order.
• The third: voluminous records and documents. Long and voluminous documents. Not
required to present the original not only because it is voluminous but because it only tends
to establish a general fact. The contents are not at issue. All you want to establish is the
general fact/ For example: income for the last fifty years. You don’t need all the invoices,
delivery receipts. All I need is a list 2001, 2002, etc. I don’t need to present the original.
All I need to establish is a general fact or a general result.
• The fourth: that the document is in the custody of a public officer or recorded in a public
office. In such a situation, the question is: where is the document? The document is
where? In a government office, whether it is in custody of a public officer or recorded in a
public office. In that case, what is the substitutionary evidence? Certified true copy.

Parole Evidence Rule

• What is the in the document is the repository of what the parties have agreed upon. We
cannot go outside of this. If we have an agreement we cannot go say pay 2M when what
is in the memorandum of agreement is 1M. If we have a suit alter on and you try to
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

introduce that in court: “Objection, your honor. Violation of the rule on parole evidence.”
Because what is in the document is the repository of what the parties have agreed upon.
• What are the exemptions? Because sometimes there are times that what is in here is not
exactly what the parties have agreed upon. But it is a requirement of law that you can only
introduce what you call extraneous evidence or parole evidence. That parole evidence
rule, you can now present extraneous evidence or parole when you make it an issue on
the pleadings. By putting it in ussie you can modify, revise or add into what is in the
agreement. But you have to put it in issue.
• The exemptions are:
o First: intrinsic ambiguity. When you read it, it looks okay. But when you try to
implement it, there is a problem. Like it says Carlos Santos and there are three
Carlos Santoses in my company. We have a problem. Can you present extraneous
evidence to show who exactly is the party to the agreement? Yes. Mistake should
be mutual mistake to pave the way for a reformation.
o Imperfection. The deed of sale was made, wrong technical description.
Imperfection. Can be corrected by parole evidence. TCT says 1458, technical
description was for a different title. So there is imperfection.
o When what is in the document is not reflective of the true intent of the parties. The
document shows I have sold my 1 hectare property to you but now I contest. It
later appeared that you mislead me to sign a blank document. Can I make that an
issue in the pleadings and present parole? Yes. Because it does not reflect the
true intention of the parties.
o There is an agreement subsequent. Written in the contract 25 years for lease, we
field suits. You’re claiming 25 but there is a document subsequent to this which
has shortened the period to ten years. And it is more than 10 years, the lease has
expired, you have to vacate.
• As to validity: Parole evidence can be presented not to make valid an otherwise invalid
contract. But parole evidence can be established to show that the consent was affected,
duress, misrepresentation, fraud. All of this can be presented in terms of parole evidence.

Testimonial Evidence

• Who are qualified as witnesses?

o Those who are able to perceive and perceiving can make known their perception
to another.
o Bear in mind that these are the only requirements. It does not require that the
witness be educated, able to read or write. The minimum requirement is perception
and making known his perception.

• Can a deaf mute testify?

o People v. Aleman. Yes. If the deaf mute was able to perceive with his remaining
senses and upon production in court can make known his perception to another.
So he can testify.
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

• How about a child of tender years? Can a three year old testify?
o Case of Tacorda v. Clemence. The judge was being questioned by the lawyer that
the judge did not observe the child witness examination rule. The lawyer was
claiming that the child was being badgered by the other lawyer, the child was not
given time to rest to be able to recover his senses.
o The ruling was that the judge was not remiss in his obligation. What is the duty of
the judge? It is to conduct a competency examination.
o What the law requires is that the child is able to perceive and make known his
perception known to another and he knows the consequences of his own and what
is right from what is wrong.
o And please bear in mind, consistent with rule132 and the child witness examination
rule, you can ask leading questions. Please bear in mind that the child witness
examination rule applies in civil, criminal, and administrative cases.

Disqualification by Reason of Marriage

• Disqualification by reason of marriage requires a valid and pre-existing marriage.

o Jurisprudential exception: If you are married, but your relations have been
extremely strained and there is no union to protect, then disqualification cannot be
o Please bear in mind that when you talk about disqualification by reason of
marriage, this only extends during the time of the marriage. After the termination,
can no longer invoke this.

Dead Man’s Statute

• This is a provision which has a very limited application.

• First, who are disqualified?
o Parties to a case are disqualified to testify.
o Assignors of parties to a case are likewise disqualified because they benefit from
o So if they are disqualified, does it apply to all types of cases?
▪ The answer is no. It only applies to cases, that involves a claim against the
estate of a deceased person or an estate of a person of unsound mind.
• If the witness cannot testify, then what other evidence can be used?
o Documentary evidence can be presented if there is a contract, a promissory note,
or checks that would show the existence of an obligation.
• Can testimonial evidence can likewise be presented? How?
o Witnesses to the transaction who did not take part in the transaction but merely
witnesses to attest to the fact that it existed.

• Can a mental retardate testify?

Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

oPeople v. Rosales: If confronted with the question, the SC has been consistent in
saying if it is slight mental retardation, the person can testify for as long as the
person is able to perceive and able to make known his presentation to another.
o You have to distinguish the mental age from the physical age. Because what
dictates the ability to testify is the mental age and not the physical age.
▪ If the physical age is 45 but the mental age is 2, the witness cannot testify.
If the physical age is 35 but the mental age is 16, he can testify. In the case
of Rosales, the basis of the determination of the court is the mental age.
• Can an affidavit be presented in court?
o Not referring to a judicial affidavit. The answer is yes.
o However, if it is not subject to cross examination, it is unreliable according to the
case of People v. Corpuz. So an affidavit taken ex parte, is generally unreliable
unless it was subject to a cross examination.

Privileged Communication

• Penitent priests
o That provision has a very limited application. It is only limited to those religious
institutions or orders which requires a confession. Therefore, in the Philippines, it
is only the Roman Catholic, outside of those, it is not covered under the privilege.
He can be called on to the stand. When you talk of the penitent and the priest
privilege here, that is enjoined by the religious institution to which he belongs. If
the religious institution does not say so, it is not covered. Therefore, the pastor, the
reverend can be called to testify
• Doctor and patient
o In this case, remember, the doctor received information. The information was
necessary for him to give treatment and advice. Remember this. All other
information is useless. Please bear in mind that this privilege extends to only civil
cases and not to criminal. Also remember that the information and not the illness
would, if disclosed, will blacken the reputation of the patient. That is why it is a
privilege in favor of the patient and waivable at the instance of the patient.
o How about a laboratory record? Hospital lab record? Is it covered by the privilege?
If it is necessary to give treatment and advice, then it is covered.
▪ There is one case decided involving nullity of marriage wherein the wife
wanted to subpoenaed the hospital record’s of the husband, claiming
mental problems of the husband. The SC did not answer it directly. All the
SC said, wait, premature since we are not on trial when you applied for
subpoena. It said if it were a production of books, papers, documents under
a rule 27, the privilege communication can be invoked.

• Attorney client privilege.

o There should be an attorney client relationship and the information was received
by the attorney when in view to or in the course of. So even if it you have not been
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officially retained you’re covered, for as long as there is disclosure of material

information, you are covered by the privilege. There is no need to show a document
an attorney client relationship. If you have started performing services for him,
there is a privilege if in the course of in view to.
• How about when there is a conflict of interest?
o Jimenez case. He was helping the woman who owns the house. He placed in the
company the house bought in Forbes park. The guy found out and demanded a
suit against them. The lawyer who was assisting him in the corporate affairs also
prepared an affidavit in the case so the woman said conflict. The lawyer was sued
for disbarment.
o The court said, to establish a conflict of interest, an attorney client relationship must
be established. In this case, the court was not convinced that the relationship
existed. However, the lawyer was still sanctioned because there was proof that the
lawyer falsified the document, perjured documents that were submitted to the SEC
in terms of shareholdings in the company.
o That which is covered by the attorney client privilege is that which is received by
the lawyer in his professional capacity.
▪ Therefore, partners in a company, political advisers, businessmen, those
arrangements even if there is a suggestion to commit a crime, are not
covered by the privilege. Because that is not in his professional capacity.
o Attorney client is the only privilege under the law where you will find there is
agency. The privilege extends to stenographer, clerk, secretary. Therefore in such
a situation because the secretary will know vital information with working with the
▪ Is that waivable? Yes. But only at the instance that of the lawyer and of the
• Spousal privilege
o There should be a valid and existing marriage and information was received in
o As in what happened recently, the former chairman of COMELEC. Even after the
termination or dissolution of the marriage, the privilege still extends because it was
received in confidence. However, the only down side I see in such case, if they
can establish on the side of the wife, that the relationship has been strained. No
union to speak of, no union to protect, it no longer stands.
• Can a witness be compelled to testify on his previous conviction? Yes. That is in rule 132
sec 3. Even if it raises a civil claim against him? Yes. Even if it raises a claim against you,
you will be forced to answer it as witness.
• Filial privilege
o Remember: it affects ascendants and descendants.
o Emalie case: Needs to be related by blood with a common ascendant. In the case
of emalie, she was only a stepmother so the SC that she cannot invoke filial
privilege because they are not related by blood.
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

o If the party who is entitled to it is, they are willing to testify, he can testify. What the
provision prohibits is him being compelled to testify but if he volunteers to testify,
then he can.
• The difference between an admission and a declaration against interest….

Post Judgment Remedies: Petition for Relief from judgment

• What are the grounds for a petition for relief from judgment?
o Fraud, accident, mistake, excusable neglect.
• What are the periods to file a petition for relief from judgment?
o The period is 6 months from entry of judgment, but within 60 days from knowledge.
• Who can file a petition for relief from judgment?
o Only a party to the case.
• Alaban vs. CA
o Sec. 1 clearly provides the rule, and was expounded on in the case, which was an
action in rem. It was one for distribution of estate wherein the estate had already
been partitioned and distributed to the heirs, while Alaban was left out, and only
afterward learned of it. He filed a motion to set it aside, which the court denied. He
filed a petition for annulment of judgment with the CA, but the court said his remedy
was wrong. There had been proper publication, and therefore he became deemed
party to the action—he should have filed a petition for relief from judgment, besides
he had learned of the order only within a period of 60-90 days from entry of
• The remedy of relief from judgment is not available if the right to file an MR or New Trial
was defeated by the would-be petitioner’s fault.


• Discretionary execution can only be granted by the court for good reasons. A bond is not
required; all that is required is good reasons stated in a special order of the court.
• Bear in mind that if it is execution as a matter of right, where do you file it? Do you need
to give good reasons first?
o No, because it is a right. The reglementary period to appeal had already lapsed.
Or even if there was an appeal, the SC rendered judgment, and you have no further
available remedy and you allow that to become final and executory. When it
becomes final and executory, then a motion for execution becomes a matter of
right. It is filed with the court that rendered the judgment. It can also be filed before
the appellate court if it was appealed, but there should be good cause and good
reason. In all cases, the writ should always be issued by the trial court.
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

Revival of Judgment

• When can I file a petition for revival of judgment?

o After 5 years, but not more than 10 years, is the period within which one can file
an independent action for revival of judgment.
• Take note: the period to file for a motion of execution is a period of 5 years. That 5 years
is the same life of the writ. In the event you are able to obtain a writ from the court, the writ
has a life of 5 years, based on Sec. 14 of Rule 39. Let’s say 5 years lapsed, and you still
want to enforce. So, when can you file?
o After five years, but not more than 10 years from entry of judgment.
• When you file a petition for revival of judgment, the case will not be retried anymore. All
that the court wants to see is whether or not it is the same judgment that will be enforced—
that there will be no new trial, that there will be no new evidence presented. That is revival
of judgment.
• Where is the venue of an action for revival of judgment, since the law does not provide it?
o The venue is dictated by the original judgment itself. If the original judgment passes
on title to property, the venue is the place where the property is located. If the
original judgment or final order orders delivery of money, it’s a personal action, it’s
dictated by the place where the parties decide, at the option of the plaintiff.
• What about a motion for writ of possession?
o If possession was a matter of right, but the party did not file a motion for writ of
possession within 5 years, 5 years lapsed, should there be an independent action
for a writ of possession? No. There is no need for an independent action because
it’s not an original action.
• Sec. 9 refers to money judgments.
o The sheriff cannot immediately levy and execute upon property in a money
judgment. There must first be a demand to pay the money. Only when there is
failure to pay can there be a valid levy on real or personal property. The losing
party/obligor is given the option to choose which properties will go first—if he
refuses to choose, personal property will have to go first.
o The most common example is the garnishment of a bank account. It’s a two step
▪ First, the court issues a notice of garnishment. It is the duty of the custodian
to inform the court that there are funds.
▪ Once the court receives notice of funds, the court will then issue an order
to release, and the custodian bank has the duty to release the funds within
a period of 10 days.
• Sec. 10 covers specific acts – this provision could prompt the losing party to deliver title,
to execute a document, to transfer, to remove improvements, or any other order within the
ambit of the section. If you are ordered to do something, and you refuse to do it, the court
will order someone else to do it. If no one can do it, it will be considered as performed.
That is why failure to comply with a specific act judgment will not expose you to contempt.
Neither is failure to pay cash in a money judgment going to expose you to contempt.
• Sec. 11 covers special judgment – obligations which only the judgment obligor can
perform. If he refuses to perform, he can be held liable for contempt. This is the only
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instance where you have to apply for execution that you need to attach a certified copy of
the judgment.
• Air Transportation Office vs. CA, May 2014
o An ejectment case, where the judgment of the MTC was appealed to the RTC,
which was again appealed. Is the judgment of the RTC immediately executory in
an ejectment case on appeal from the MTC, given RTC only has appellate
jurisdiction in these cases?
o Yes. The judgment of the MTC is executory, but it can be stayed. How do you stay
o Under Rule 70, Sec. 19 – file a notice of appeal within the reglementary period,
post a supersedeas bond, pay rentals within the period of appeal, and the
execution will be stayed at the MTC. When the RTC renders a decision, it will be
executory. Will it be stayed again by an appeal to the CA?
o According to ATO case, NO. the court said that the judgment of the RTC is not
stayed by an appeal taken therefrom unless ordered by an appellate court, if it
issues a TRO or a preliminary injunction. Further, the execution of the RTC
judgment in an ejectment case is not discretionary execution under Sec. 2 of Rule
39, even if the case is further appealed. By law, it is executory.


• In an action for forcible entry, is a demand letter necessary?

o No. Important allegations in an action for forcible entry are (1) prior physical
possession; (2) taking by force, intimidation, theft, or strategy.
• In unlawful detainer, is demand letter necessary?
o Yes. Per jurisprudence, the period of 1 year to file for unlawful detainer under Rule
70 is counted from the period of last demand. In one case decided by the SC,
demand was made in 2001, and then again in 2005. The court held that it could
still fall under ejectment under Rule 70, since it’s reckoned from the last demand.
• What should a demand letter in unlawful detainer situation contain?
o Important allegations are (1) comply and vacate; (2) pay and vacate. In all cases,
there should be the order to vacate. In absence of the word vacate, the demand
letter is defective. Again, it should be filed within one year from the dispossession.
Ejectment and unlawful detainer are reckoned from last demand.

Preliminary Attachment

• Alfredo Lim vs. Lazaro

o Can a compromise agreement lift a writ of attachment? In this case, there was a
loan obligation, subsequent failure to pay the monetary obligation, and thus an
action was executed to collect the amount. While the action was pending, the
parties came to a compromise agreement, which was admitted to the court by the
parties. Despite this, the writ of attachment still stood. The SC held that the writ
should not be lifted, because there is a period of time to pay the obligation—the
fact of execution of the compromise agreement did not actually cause the full
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payment—it is but natural that the writ should coutinue to exist until full payment.
But if the facts were different, wherein the parties expressly agree that the
compromise will lift the writ, then it will no longer stand.
• BPI vs. Carlito Lee
o Preliminary attachment and execution. In this case, there was the Citytrust Bank,
which merged with BPI. Carlito Lee was a creditor through his company, Trendline.
He started to institute an action to recover his money, one of his efforts was to
apply for a writ of attachment, which was granted. In the meantime, the funds were
frozen in Citytrust, but it was merging already with BPI. He won the case and
wanted to execute, but BPI claimed that the record was lost and they were not
aware, and that they were not party to the action and thus not bound by the action.
The purpose of an attachment is to secure the judgment, and in the event of the
final and executory judgment, those attached things will be the first things to be
used to satisfy the judgment. When those things attached are insufficient to fulfil
the obligation, then there is ordinary execution. The SC held that upon the service
of the writ of garnishment, the garnishee becomes a virtual party or a forced
intervenor. The trial court thus acquires jurisdiction to bind the garnishee to comply
with its orders and processes. The garnishee need not be impleaded as a party to
the case; all that is necessary for the trial court to lawfully bind the garnishee or
any person in possession of credits belonging to the debtor, a service upon him of
the writ of garnishment.
• How do you dissolve the writ of attachment?
• Sec. 12, 13 of Rule 57 provides:
o Upon a counterbond – partial or full release of the counterbond. It can only be
released only when a writ of attachment has been enforced. You cannot anticipate
a writ of attachment and post a counterbond—you can only do it after the writ is
o Improper, irregular, or excessive attachment – Improper means there are no
grounds to grant an attachment; irregular means that procedure was not
followed—there was no affidavit or filing of a bond; excessive attachment will only
dissolve that which is in excess.
• Can you attach a property exempt from execution?
o No. The point of attachment is to secure the judgment—if something is exempt, it
defeats the purpose. The rule per jurisprudence is that if the person who owns the
property subject of execution claims that it is exempt, it is the duty of the court to
ascertain if the property is indeed exempt. Failing to do so, any order of the court
allowing execution is null and void.
• Service of Summons
o Davao Light vs. CA – jurisdiction over the person should be acquired at the time
of the enforcement of the writ of attachment or injunction. It is not necessary that
jurisdiction over the person be acquired prior to enforcement of attachment or
injunction. Attachment and injunction can be issued ex-parte as part of initiatory
pleadings, and the court can grant these—but still service of summons to acquire
jurisdiction over the defendant is not needed until these will actually be enforced.
The rule is the same when a TRO is issued ex parte.
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

Preliminary Injunction

• Garrido vs. Tortogo

o In this case, there was a final and executory judgment, but the losing party and his
counsel would not accept defeat. They filed for a writ of preliminary injunction and
TRO in the RTC. The Court held that the writ of preliminary injunction and TRO
cannot be issued to enjoin a final and executory judgment; also in this case, the
RTC was in error for having issued a TRO with no definite period.
• When does a TRO expire?
o RTC – after 20 days, no extension, no renewal, with or without a writ of preliminary
injunction, it will expire.
o CA – TRO of the CA expires after 60 days.
o SC – TRO of the SC expires upon further orders of the court.
• RCBC vs. BDO
o This was a case that went to arbitration; the route was that the owner of BDO and
other shareholders sold to RCBC their shares in Bankard, amounting to 68% of
Bankard. RCBC promised and actually paid. RCBC later found that the valuation
was ballooned. RCBC made a demand for recomputation. The Arbitral Tribunal
rendered judgment in favor of RCBC. RCBC brought the decision before the court
which recognized the judgment, and was able to get a writ of execution. RCBC
was able to execute on shares of the BDO shareholders through their private
accounts in BDO. BDO paid the amount under protest. Later on, BDO applied for
preliminary injunction. The Court held that the rule is that injunctive reliefs are
preservative remedies for the protection of substantive rights. Injunction is not an
action itself, but is adjunct to the main suit. When the acts to be enjoined become
fait accompli, the prayer for provisional remedies should be denied.
• The rule is that when the provisional action is dismissed, the provisional remedies would
likewise be dissolved. Provisional remedies are only hinged on the main action.



o This is an action for replevin. Principal action for replevin was dismissed but there
was a writ of replevin over a Mercedes. Ayaw niya ngayon i-surrender. SC said,
“upon the dismissal of the replevin case for failure to prosecute, the writ of seizure,
which is merely ancillary in nature, became functus officio and should have been
lifted. There was no adjudication on the merits, which means that there was no
determination of the issue who has the better right to possess the subject car.”
• IMPORTANT. MEMORIZE. Section 2. Affidavit and bond. — The applicant must
show by his own affidavit or that of some other person who personally knows the

o That the applicant is the owner of the property claimed, particularly

describing it, or is entitled to the possession thereof;
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

o That the property is wrongfully detained by the adverse party, alleging the
cause of detention thereof according to the best of his knowledge,
information, and belief ;
o That the property has not been distrained or taken for a tax assessment or
a fine pursuant to law, or seized under a writ of execution or preliminary
attachment, or otherwise placed under custodia legis, or if so seized, that it
is exempt from such seizure or custody; and
o The actual market value of the property.
• What is the importance of the FMV? It determines the amount of the bond. In replevin, the
bond is double the value of the property.
• Let me now call your attention to this provision that applies to all provisional remedies
except Rule 61.
o Rule 57 Sec 20

o Section 20. Claim for damages on account of improper, irregular or

excessive attachment. — An application for damages on account of
improper, irregular or excessive attachment must be filed before the trial or
before appeal is perfected or before the judgment becomes executory, with
due notice to the attaching party and his surety or sureties setting forth the
facts showing his right to damages and the amount thereof. Such damages
may be awarded only after proper hearing and shall be included in the
judgment on the main case.
• The only requirement is that the action must be PENDING.



o Involves receivership. First, pwede ba yun pag receivership I would want an
accounting and therefore this property should be subject of receivership?
o For example, I entrusted to Mr X a piece of land and he has been overseeing this
for the last 5 years, but not been accurately delivering the proceeds of the property
to which I am entitled to. So I wanted an accounting. Can I apply for receivership?
No. Tantano case! Ang basis dito was matanda na kasi ako eh, so I need my legal
share in the income for my sustenance and medical fees.

• Section 1. Appointment of receiver. — Upon a verified application, one or more

receivers of the property subject of the action or proceeding may be appointed by
the court where the action is pending or by the Court of Appeals or by the Supreme
Court, or a member thereof, in the following cases:
o When it appears from the verified application, and such other proof as the
court may require, that the party applying for the appointment of a receiver
has an interest in the property or fund which is the subject of the action or
proceeding, and that such property or fund is in danger of being lost,
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removed, or materially injured unless a receiver be appointed to administer

and preserve it;
o When it appears in an action by the mortgagee for the foreclosure of a
mortgage that the property is in danger of being wasted or dissipated or
materially injured, and that its value is probably insufficient to discharge the
mortgage debt, or that the parties have so stipulated in the contract of
o After judgment, to preserve the property during the pendency of an appeal,
or to dispose of it according to the judgment, or to aid execution when the
execution has been returned unsatisfied or the judgment obligor refuses to
apply his property in satisfaction of the judgment, or otherwise to carry the
judgment into effect;
o Whenever in other cases it appears that the appointment of a receiver is the
most convenient and feasible means of preserving, administering, or
disposing of the property in litigation.
• So nag apply sila under Rule 59. Sinasabi na even after final judgment to be able to
preserve the property. NOTE: This is the only provisional remedy that can be applied for
even after judgment is final and executory.
• The basis that was used here was not one of the above that I mentioned. It was Subsection
D of Rule 59, which is a general provision.
• RTC granted this, but the SC said RTC granted the petition “under this precarious
condition, they must be under receivership, pursuant to Sec. 1 (a) of Rule 59. Also, the
purpose of the receivership is to procure money from the proceeds of these properties to
spend for medicines and other needs of the movant defendant Dominalda Caboverde who
is old and sickly. This circumstance falls within the purview of Sec. 1(d), that is, "Whenever
in other cases it appears that the appointment of a receiver is the most convenient and
feasible means of preserving, administering, or disposing of the property in litigation."
• SC said this is wrong! Wanting to satisfy medical needs does not fall under Section 1D.
• Before appointing a receiver, courts should consider: (1) whether or not the injury resulting
from such appointment would probably be greater than the injury ensuing if the status quo
is left undisturbed; and (2) whether or not the appointment will imperil the interest of others
whose rights deserve as much a consideration from the court as those of the person
requesting for receivership.
• Note: Courts shy away from receivership, unless it is extremely necessary.


• City of Lapu-lapu v PEZA

o What was in question was the jurisdiction of the RTC over declaratory relief.

Section 1. Who may file petition. — Any person interested under a deed,
will, contract or other written instrument, or whose rights are affected by
a statute, executive order or regulation, ordinance, or any other
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

governmental regulation may, before breach or violation thereof bring an

action in the appropriate Regional Trial Court to determine any question of
construction or validity arising, and for a declaration of his rights or duties,
thereunder. (Bar Matter No. 803, 17 February 1998)
o You want the court to determine validity or interpret the same, but there should be
no breach or violation. The moment there is breach, it will be converted from SCA
to an ordinary civil action. This is the only law that allows conversion, and the only
law that allows the court not to pass judgment if it feels that it is not yet ripe for
judicial determination.
o So in this case, what was the problem of PEZA? Inaassess sila ng real property
taxes. They said, hindi naman po pwede yan. We have a charter. They filed an
action for declaratory relief. Can they file a petition for declaratory relief?
o First, the question of jurisdiction, whether or not the RTC has jurisdiction over an
action for declaratory relief is a question of law therefore it can be elevated to the
SC from RTC.
o Second, which court has jurisdiction over declaratory relief? It is the RTC, not the
Supreme Court!
o Rule 56 Sec. 1 tells you:
Section 1. Original cases cognizable. — Only petitions for certiorari,
prohibition, mandamus, quo warranto, habeas corpus, disciplinary
proceedings against members of the judiciary and attorneys, and cases
affecting ambassadors, other public ministers and consuls may be filed
originally in the Supreme Court. (n)
o This involves a Customs Memorandum Circular in connection with a product.
Worried sila kasi may 7% feed grade and 3% for food grade. Meaning, there is
tariff. So they filed for declaratory relief. Is it the proper remedy? Tandaan niyo, if
it involves a rule making or quasi legislative, like this one, the proper action is
Petition for Declaratory Relief.
• Note: Reformation or Consolidation falls under the jurisdiction of the RTC


• When do you file an action for interpleader?

o You file an interpleader when there are two conflicting parties and while you are
filing the action, because you do not want to be vexed. Example, 2 widows claiming
from an insurance company, “ako ang asawa ng namatay na.” Insurance company
doesn’t want to be vexed. The court will issue summons asking the parties to
o Group A – longstanding board
o But Group B is claiming to be the board
o X receives a Notice to pay from both A and B
o I will file an action for interpleader.
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)


o Zuellig nangungupahan ng warehouse kay Lui. Si Lui enterprises nangutang kay
PBCOM. Security niya yung lupa. PBCOM ran after Lui Enterprises. No I will pay
thru dacion in payment. The property was used for payment. PBCOM then says to
Zuellig: From now on, you will pay to me. Lui Enterprise nagbago isip and told
Zuellig, you still pay me and not PBCOM. Zuellig got confused as to who to pay.
What he did was to file an action. There being a pending action for interpleader, is
Lui Enterprises prohibited from questioning the validity of dacion? Is that litis
o SC said no, there is no litis pendentia.
o Clark Investors instituted an action as there was an imposition of VAT and excise
tax for the importation of petroleum and petroleum products from abroad. They
said that RA 7227 is void. The court ruled that the petition for certiorari under Rule
65 is a special civil action that can be invoked only against a public officer
exercising judicial or quasi-judicial functions.
o The circular was issued under the exercise of rule-making or quasi-legislative
function, therefore the proper petition is Declaratory Relief. If you want to use
certiorari under the Constitution, do not make reference under 65.


• GR: An action for quo warranto is instituted by the government – Sec 1

• Only exception: Sec 5 Rule 66

• Section 5. When an individual may commence such an action. — A person

claiming to be entitled to a public office or position usurped or unlawfully held or
exercised by another may bring an action therefor in his own name. (6)
• Liban vs Gordon: The very moment that he is not entitled to the office, that petition will
be dismissed.



o Mandamus case. Involves two issues:
o Can you compel a city to pay upon a mandamus?
o Puerto Princesa encroached upon a piece of land that was constructed as part of
the Western Military Command. The owner of the piece of land, Watchman,
wanted compensation. Puerto Princesa did not pay so they instituted an action to
recover the amount. Upon refusal to pay after instituting the action, there was a
compromise. Total amount was 16 million, but agreed to pay only 12 million.
However, they paid only 2 million. So nag file ng bagong action. Can they compel
the City of PP to pay thru mandamus?
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

o SC: Yes
o How to collect money claims against a government entity? Sabi kasi we cannot
hamper government operations. So here is the remedy:
o Regarding final money judgment against the government or any of its
agencies or instrumentalities, the legal remedy is to seek relief with the COA
pursuant to Supreme Court Administrative Circular 10-2000 dated October
25, 2000, which states as follows:
In order to prevent possible circumvention of the rules and
procedures of the Commission on Audit, judges are hereby enjoined
to observe utmost caution, prudence and judiciousness in the
issuance of writs of execution to satisfy money judgments against
government agencies and local government units.



o Can a property which is subject of expropriation and whose ownership is in
question be expropriated?
o SC: Yes. We rule that petitioner [DPWH] may be allowed to present evidence to
assert its ownership over the subject property, but for the sole purpose of
determining who is entitled to just compensation.
• REPUBLIC V BORBON (January 12, 2015)
o This is unusual because the government already changed its mind. NAPOCOR
expropriated a property for the use of its transmission lines. It has reached pre-
trial, there is a judgment, there is pending appeal. NAPOCOR changed its mind –
there is no longer a public purpose. Should the case be dismissed?
o SC: Yes. The case should be dismissed. MWSS vs Delos Angeles case. But the
court, in the absence of public purpose, dismissed the case.
o “NAPOCOR contends that the expropriation has become without basis for lack of
public purpose as a result of the retirement of the transmission lines; that if
expropriation still proceeds, the Government will be unduly burdened by payment
of just compensation for property it no longer requires; and that there is legal basis
in dismissing the proceedings, citing Metropolitan Water District v. De los
Angeles where the Court granted petitioner’s prayer for the quashal of
expropriation proceedings and the eventual dismissal of the proceedings on the
ground that the land sought to be expropriated was no longer "indispensably
necessary" in the maintenance and operation of petitioner's waterworks system.”
o Indeed, public use is the fundamental basis for the action for expropriation;
hence, NAPOCOR’s motion to discontinue the proceedings is warranted and
should be granted.
Atty. Tranquil Salvador III Preweek Lecture (November 20 – 21, 2017)

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