REMEDIAL LAW REVIEW

As discussed by: Judge Debalucos

------ May 30, 2016 ------- sense and to that

extend
GENERAL PRINCIPLES As a general rule,
Q: the retroactive
What do you mean by Substantive law? And how do application of
you distinguish it from Remedial law? [Bar Question] procedural law
cannot be
A: considered
Substantive law creates, defines and regulates right violative of any
and duties concerning life liberty or property, which when personal rights
violated gives rise to a cause of action. because no
vested right may
Example of Substantive laws: attach to nor arise
1) Revised Penal Code. So if you violate the therefrom
RPC when you kill or box another person, As to origination It originates from It does not
steal another person’s property to commit legislature originate from the
theft, which will give rise to a CAUSE OF legislature but has
ACTION the force and
What is a CAUSE OF ACTION? That refers effect of law if not
to an act of omission that would constitute a in conflict with
violation of substantive law substantive law
2) Family Code. So if you do not give support to As to authority of It cannot be The Supreme
your wife, you do not give support to your the Supreme enacted by the Court is Expressly
children, that may give rise to a cause of Court Supreme Court empowered to
action promulgate
3) Civil Code procedural rules.

In other words, remedial law will give us the

Remedial law prescribes the methods of enforcing procedure of how case are filed, tried and decided upon by the
those rights and obligations created by substantive law, by courts because for example, you will not be given support by
providing a procedure of system for obtaining redress for the your husband, that is a violation of a certain provision of the
evasion of rights and violations of duties and by prescribing Family Code, but how will you enforce it or get support from
rules as to how suits are filed, tried and decided by the courts. your husband? That is Remedial law. It gives us the procedure
on how the case would be filed, tried and decided upon.
SUBSTANTIVE REMEDIAL LAW
LAW Other names for Remedial law is Procedural law or
As to Definition The law that It prescribes the Adjective Law
Creates, Defines, Method of
and Regulates enforcing rights Now, what are sources of our remedial law, adjective law?
rights or which and obtain Sources of Remedial Law:
regulates the right redress for their a) Rules of Court
and duties which invasions b) BP 129
give rise to a cause c) Special Laws
of action a. RA 9165
As to It makes vested No vested rights b. VAWC
establishment of rights possible may attach to nor c. Family Courts Act
vested rights arise therefrom d) Supreme Court Decisions
If the rule takes e) Supreme Court Circulars
away vested right, it If it operates as a f) Administrative Orders
is not procedural. If means of
the rule creates a implementing an Constitutional Power of the Supreme Court
right such as the existing right then The SC has the power to promulgate rules concerning
right to appeal, it the rule deals pleading, practice and procedure under Art.VIII (Sec.V., Par.V)
may be classified as merely with of the 1987 Constitution. Said power includes the protection
a substantive matter procedure of rights. That is the legal basis used by the SC in
As to application It is prospective in It is construed to promulgating the Writ of Amparo, the Writ of Habeas Data, the
application be applicable to Rules of Procedure for Environmental Cases including the Writ
actions pending of Kalikasan, Continuing Mandamus, Rules of Summary
and undetermined Procedure, and Rules on Small Money Claims.
at the time of their
passage and are CASE:
deemed Echegaray vs. DOJ Secretary [301 SCRA 19]
retroactive in that

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As discussed by: Judge Debalucos
The Supreme Court said that Congress has no more
power to repeal, alter, or supplement rules concerning pleading
practice and procedure because such power given to it by the
1935 and 1975 Constitution has already been taken away by
the 1987 Constitution and the same has been given to the
Supreme Court
According to the Supreme Court, it has the exclusive
power to issue rules regarding practice, pleading and
procedure, but there are some experts in Remedial Law saying
that the power to promulgate rules regarding procedure, that
power is still being shared by the Congress because even after
the 1987 Constitution, Congress was still enacting law on
procedure. An example of a law that was promulgated by
Congress on matters of procedure is the Speedy Trial Act. This
law was promulgated by Congress and not by the Supreme
Court.
CASE:
Sarmiento vs. Saratan [02-05-07]
The power of the SC to promulgate rules of procedure
carries with it the power to amend and suspend the rules of
procedure IN THE INTEREST OF JUSTICE or WHEN
COMPELLING REASONS MAY WARRANT
The Supreme Court has the power to promulgate
rules, it has also the power to suspend or amend the rules.
Example:
a) Motion for Reconsideration
Under the Rules of Court, 2nd motion for
reconsideration is prohibited. You can only file one
Motion for Reconsideration, asking for a iv. Metropolitan Trial Court (MeTC) – found only in
reconsideration of a decision. A 2nd motion for
reconsideration can only be allowed by the Supreme
Court with PRIOR LEAVE of that court. As a rule, 2nd
motion for reconsideration is not allowed, it can only
be allowed when there is prior permission to file such
motion. But look at the case of 16 cities, four Motion
for Reconsideration were filed, so that is an instance
when the Supreme Court may amend or suspend the
rules of procedure.
The basis is IN THE INTEREST OF
JUSTICE. So if you want to file a 2nd or 3rd motion for
reconsideration, you need to invoke the phrase “IN
THE INTEREST OF JUSTICE”
But according to the Supreme Court in
several decisions, compliance with the rules of court
is still the GENERAL RULE. Non-compliance is the
exception. The phrase “IN THE INTEREST OF
JUSTICE” is not like a magic wand that once it is
invoked, the court will grant or suspend the
procedure. Suspending the rule is done only IN THE
MOST EXCEPTIONAL CIRCUMSTANCES
b) Filing of Appeal
We have learned that appeal shall be filed
within 15 days. If you file beyond 15 days, your
appeal will be dismissed or denied. There are other
cases where the SC has allowed the filing of appeal
beyond the 15 day period. What is the reason why the
Supreme Court allowed the appeal even if the appeal
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was taken after the 15 day period? The answer is “IN
THE INTEREST OF JUSTICE”
There are those files late and state in their
pleading state: It is most respectfully prayed that in
the interest of justice, our appeal be granted. The
Supreme Court denied the same because compliance
with the rules is still the general rule, the
abandonment or non-compliance thereof is the
exception. The exception is made in the most
exceptional circumstances. The court added that
invoking the phrase in the interest of justice is not like
a magic wand that will grant the prayer [Pilapil vs.
Heirs of Briones – 02/05/07]
What are the classifications of courts in the Philippines?
Classification of Courts
a) As to Hierarchy -
a. First Level Courts
i. Municipal Trial Courts (MTC) – found in
Municipalities
ii. Municipal Circuit Trial Courts (MCTC) – smaller
municipalities are combined where only one court
has territorial jurisdiction over them. It may
comprise 2 to 4 smaller towns or municipalities.
For example in Camotes, there is Poro, Todela
and San Francisco, so there is a Municipal Circuit
Trial Court of Poro, Todela and San Francisco.
iii. Municipal Trial Court in Cities (MTCC) – found in
Cities (Cebu City/ Davao City)
Metro Manila
b. Second level Court – Regional Trial Court;
c. Third level courts
i. Court of Appeals
ii. Court of Tax Appeals
iii. Sandiganbayan
d. Fourth level – Supreme Court
So these are the hierarchy of courts.
In the Muslim areas, there are courts called Sharia
Court. These courts handle matters pertaining to Persons,
Property and Family Relations. There is the Sharia Municipal
Court which is equivalent to the Municipal Trial Court, Sharia
District Court that is equivalent to the Regional Trial Court and
Sharia Appellate Courts.
NOTE:
 A Barangay is not a court;
 NLRC is not part of the judiciary.
o The presiding officer called Labor Arbiter should
not be called judge because the title judge is
reserved to the members of the Judiciary.
 Court Martial is similar to NLRC, they are part of the
Executive Branch
o Court Martial functions include trying soldiers in
violations of the Articles of War. Soldiers have
their own court which tries crimes committed in
relation to their service; they can be tried by this
court. They have what they call as JAGO (Judge
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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
Advocate General’s Office) which acts as
Judges.
o Court Martial has CONCURRENT jurisdiction
with the civilian court. If you were charged in the
Court Martial, you could no longer be charged in
the civilian courts. In the same vein, if you were
charged in the civilian court, you no longer could
be charged in the court martial.
b) As to cases tried
a. Courts of General Jurisdiction – those courts
which are competent to decide all types of cases
except those expressly excluded by law. Ex. RTC, it
can hear all types of cases except if it is expressly
excluded by law.
b. Court of Special Limited Jurisdiction – MTC or
First level courts are considered court of limited
jurisdiction because they don’t have the power to try
any cases but only cases those expressly provided
by law
c) As to nature of the case
a. Courts of original jurisdiction – these are the
courts in which actions or proceedings may originally
be commenced or first filed.
b. Courts of appellate jurisdiction – courts that have
the power to review the decisions of the lower courts
such as the RTC. RTC is an appellate court because
it has the power to review the decisions or order of
the lower court (MTC). Remember that the RTC can
be both a court of original jurisdiction as cases
should be filed first with this court and it can also act
as an appellate court because it can review the
decision of the MTC.
d) Superior Court vs. Inferior Court
a. Superior Court – court which have the power of
review or supervision over lower courts. So for
example the RTC is superior with MTC and CA is
superior to that of RTC.
b. Inferior court – those which in relation to a superior
court are lower in rank and subject to review and
supervision by the latter.
So that it would not be demeaning of their
part, MTC are called First level Court.
e) Court of Record vs Courts of No record
a. Court of Record – those courts whose proceedings
are enrolled and which are bound to keep a written
record of all trials and proceedings handled by them.
b. Court of No record
In the Philippines, all courts are Courts of Record.
What do you mean by Court of Records? It means that all
proceedings are recorded. Before there were what you call as
Court of No Record such as the Justice of the Peace. Cases
tried by this Justice of the Peace, the proceedings of which are
not recorded. Only decisions are recorded. If there is case, he
would just say to one party that he lost and to the other, he
won. As to how he decided he is the only one who knows.
But the same procedure is not allowed anymore. When
a judge renders a decision, the same should be supported by
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facts and law. If a court renders a decision which basis is not
supported by law, it is Void.
f) Constitutional Courts vs Statutory Courts
a. Constitutional Courts - courts that are created by
the Constitution, such as the Supreme Court.
What about the Sandiganbayan? Sandiganbayan was
created by law. Its creation was merely mandated by the
Constitution. There is only one court created by the
Constitution and that is the Supreme Court. All other courts are
statutory courts created by law, particularly Batas Pambansa
129.
b. Statutory Courts - courts that are created by law
(B.P. 129)
g) As to Jurisdiction
What is jurisdiction?
It is the power of the court to try and hear a case and
render decision.
Court may have:
a. General jurisdiction - the power to try all
cases except those expressly excluded by
law.
b. Exclusive jurisdiction – the power of the
court to try a case to the exclusion of other
courts.
c. Concurrent jurisdiction – the power of the
court to try a case is being shared with other
courts.
d. Delegated jurisdiction - the power of the
first level court to try cadastral and land
registration cases under certain conditions.
In cadastral cases and land
registration, jurisdiction is supposed to be
RTC, but there are certain cases involving
land titling or registration wherein the MTC
have jurisdiction. This is called delegated
jurisdiction.
e. Special jurisdiction – the power of the first
level courts to hear and decide applications
for the writ of Habeas Corpus or applications
for Bail in the absence of all RTC judges.
The RTC has jurisdiction on
applications of Writ of Habeas Corpus, BUT
if all RTC judges are absent then first level
courts have jurisdiction.
How do you distinguish Jurisdiction from venue? [BAR
QUESTION]
JURISDICTION VENUE
Refers to the authority or Refers to the place where
power of the court to hear the case is to be heard or
and determine a case. tried.
Is a matter of substantive law Is a matter of procedural law
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As discussed by: Judge Debalucos

Fixed by law (B.P. 129) and May be conferred by the  BUT summons has to be served to the defendant in
cannot be conferred by the parties or subjected to compliance with the requirements of due process. So
parties agreement by the parties. that he would be given the opportunity to be heard
before he is deprived of his right over the property
Distinguish Error of jurisdiction vs Error of judgment [BAR because his right over the property may be affected
QUESTION] by the outcome of the case.

ERROR OF JURISDICTION
When there is error of
jurisdiction the decision is
void.
Cannot be correct by appeal
Can only be correct by
certiorari
ERROR OF JUDGMENT 5. Jurisdiction over the issues of the case (Other
authors do not include this)
How is it determined?
This is determined and confirmed by the pleadings
Can be corrected by appeal
filed by the parties or their agreement during the pretrial
conference. This is based on the allegations in the complaint.
--00--

What are the elements/ Requisites of Jurisdiction? Jurisdiction over the subject matter

1. Jurisdiction over the plaintiff or the petitioner
How is jurisdiction acquired?
Jurisdiction of the plaintiff is acquired by filing the
complaint or the petition. So, once the complaint or petition is
filed together with the payment of the corresponding docket
fees.
Q: Is there a need for the plaintiff to personally appear
before the court?
A: No, he could file the case through a duly
authorized representative, meaning duly equipped
with a Special Power of Attorney to file the case.
2. Jurisdiction over the defendant or the respondent
Jurisdiction is conferred by law. But in order to
determine whether the court where the case is filed has
jurisdiction over the case, the allegations in the complaint have
to be read.
For example:
A case involving recovery of real property, in
order to determine whether the court has jurisdiction
over the case filed involving that real property,
allegations as to how much is the assessed value of
the subject property must be alleged in the complaint.
Because such allegation will determine whether or not
the court to where the case was filed has jurisdiction
over the case.

How is jurisdiction acquired? Now, that is the GENERAL RULE.

Jurisdiction is acquired through:
a) service of summons; or
b) voluntary appearance in court
Voluntary appearance in court does not only mean
personal appearance in court, but it includes filing motions or
asking remedy from the court. Even if there was no summons
or the summons was improperly served upon the defendant,
but if the defendant files a motion for extension of time to file
answer then the court acquires jurisdiction over his person with
the filing of such motion.
3. Jurisdiction over the subject matter
This is conferred by law, particularly B.P. 129
4. Jurisdiction over the res
What do you mean by res?
RES refers to the property either personal or real
property or right, status or a particular fact.
How do the court acquire jurisdiction?
The court acquires jurisdiction over the res by actual
or constructive seizure by the court, such a placing the
property under custodia legis.
 TN! Once the court acquires jurisdiction over the res,
the jurisdiction over the defendant is no longer
necessary.
Once the court acquires jurisdiction over the case, the
same shall remain with that court up to determination of the
proceedings. So the jurisdiction of the court once it attaches,
the court cannot be ousted by subsequent happenings or
events. [DOCTRINE OF CONTINUITY OF JURISDICTION or
DOCTRINE OF ADHERENCE OF JURISDICTION]
So it retains jurisdiction until it finally disposes of the
case.
Jurisdiction over the subject matter cannot be waived.
It cannot be subject to the agreement of the parties. And as a
rule, it can be raised for the first time on appeal even if such
issue was not raised in the lower court.
But there are EXCEPTIONS
There are certain cases wherein the Supreme Court
applied the principle of estoppel by laches.
a) Tijam v. Sibonghanoy
CASE: Tijam v. Sibonghanoy April 15, 1968
This case was filed in the RTC although the
jurisdiction belongs to the first level court. The
defendant, during the trial in the RTC, never
questioned the jurisdiction of the RTC. The defendant
lost the case. He appealed the decision of the RTC to

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As discussed by: Judge Debalucos
the CA, later on the CA rendered decision. Before the
finality of the decision of the CA, this time the
defendant moved for the dismissal of the case on the
ground of lack of jurisdiction. The Supreme Court
denied saying defendant failed to question the
jurisdiction for fifteen years therefore he is
estopped.
The SC stated in that case; “ if were we to
sanction such conduct on its part, we would in effect
be declaring as useless all the proceedings had in the
present case since it was commenced 15 years ago
and compel the judgment creditors to go up their
Calvary once more. The inequity and unfairness of
this is not only patent but revolting.”
It is further stated, after voluntarily submitting
a cause and encountering an adverse decision on the
merits, it is too late for the loser to question the
jurisdiction or power of the court.
b) Lapanday Agricultural and Dev’t. Corp v. Esteta
CASE: Lapanday Agricultural and Dev’t. Corp v.
Esteta 449 SCRA 240
The Supreme Court said the active
participation of a party in a case is tantamount to
recognition of that court’s jurisdiction and will bar a
party from questioning the court’s jurisdiction..
Jurisdiction over the person
Q: Can jurisdiction over the person be waived?
A: Yes, jurisdiction over the person can be waived
unlike jurisdiction over the subject matter, it can be
waived such as by voluntary appearance in court.
In fact, in one case, after a person who is not
a party to a case signed the compromise agreement
entered into by the actual parties to the case, was
held bound by the decision of the court [Rodriquez vs.
Alikpala June 25, 1974]
-- 00 –
Cause of action v. Right of Action
What do you mean by cause of action?
Cause of action - refers to the act or omission of a
person which violates a substantive law.
What do you mean by right of action?
Right of action - refers to the right of a party whose
right has been violated, to file a case.
So when you say, right of action that presupposes he
is a cause of action.
What do you mean by action?
Action - refers to a case. Like when we say a civil
case or civil action. It is one where a person files a case or
sues another for the protection of his right.
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CLASSIFICATIONS OF ACTIONS
What are the classifications of actions?
a) As to the subject matter
a. Real Action - those cases that involve title
or possession or any interest over real
property.
b. Personal Action - all other actions are
personal
For example:
In case of collection of sum of money
Q: Does that involve title or possession of real
property?
A: No. So, it is a Personal action.
In complaint for annulment of marriage
Q: Does it involve title or possession or any interest
over real property?
A: NO, although that may include division of your
property. That is still a personal action.
b) As to binding effect of the decision
a. Action in rem - those decisions which are
binding against the whole world. It means
wherever you go, they all have to honor that
decision
For example:
Petition for change of name
If you file for a petition for
change of surname from Juan dela Cruz
to Juan Duterte, even if you go to
America, you are a Duterte. They are
bound by that decision because that is
an action in rem.
b. Action in personam - cases wherein the
decisions are binding only against the parties
and their successors in interest. Those
persons not included in the case are not
bound by the decision.
For example:
Collection of sum of money
If X filed a case against Y for
collection of sum of money, the decision
in that case is binding only against Y.
Mr. A will not be bound by that decision
because he is not a party to that case.
Illustrative Example: EJECTMENT
In ejectment, it involves possession over real property.
Q: What kind of decision is it as to subject matter?
A: Real Action.
Q: What kind of decision as to binding effect?
A: Action in Personam. It is an action in personam
because the decision of an ejectment case is binding only
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against the parties and their successors-in-interest

So, an ejectment case is a real action but it is an action in

personam. An action in personam, action in rem does not have
anything to do with real action or personal action. A personal
action could be an action in rem.

Don’t be confused. That is the reason why there is a need to

classify the case into real or personal action. Some authors
would say that such case is a mixed action because others
would file a real action and then acts for damages so they call
it mixed.

c. Action quasi in rem - an action which is

directed over a particular person but the
purpose of the action is the sale or
disposition of the defendant's property or
subject the property to a lien or
encumbrance.

For Example: Foreclosure of mortgage

When you file a foreclosure of mortgage,

there is a defendant. You file a case against the
defendant, but the purpose is for the disposition of his
property. To divest him of his title or ownership over
the property, you file a case against him but the
purpose is to have his property.

That is what we call action quasi in rem.

Why is it important to know whether a case is a real action

or personal action?

It’s because it will affect venue.

A real action, an action which involves title,

possession or any interest over real property has to be filed in
the place where the property or any portion thereof is located
whereas to personal action, is to be filed at the residence of
the plaintiff or defendant at the option of the plaintiff.

Why is it important whether a case is an action in

rem or action in personam?

It’s because in an action in rem, jurisdiction over the

person of the defendant is not required.

The service of summons is for the compliance of due

process and not for the purpose of acquiring jurisdiction over
his person summons can be served on him through publication
whereas in action in personam, the summons has to be served
on the person of the defendant or through substituted service.

As a rule, it can't be served through publication. it’s

the same with action quasi in rem because action quasi in rem
is similar to an action in rem.

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JURISIDICTION OF COURTS IN CIVIL PROCEDURE

(Judge D: Master jurisdiction of courts especially jurisdiction of RTC and MTC)

SUPREME COURT
Petition for Certiorari, Prohibition and Mandamus [CPM] against:
a. Court of Appeals
EXCLUSIVE b. Commission of Elections
JURISDICTION c. Commission on Audit
d. Sandiganbayan
e. Court of Tax Appeals

Disciplinary proceedings against members of the Bar and court personnel

With the RTC
Cases affecting ambassadors, other ministers and consuls
With the CA
1. Petitions for Certiorari. Prohibition and Mandamus against:
a. RTC
b. Civil Service Commissions
c. Central Board of Assessment Appeals
CONCURRENT d. National Labor Relations Commission
e. Other quasi-judicial agencies

2. Petitions for Writ of Kalikasan

With the RTC and CA
1. Petitions for Habeas Corpus
2. Petitions for Quo Warranto
3. Petitions for Certiorari, Prohibition and Mandamus against inferior courts and other
bodies
With the RTC and Sandiganbayan
1. Petitions for Writ of Amparo
2. Petition for Writ of Habeas Data
APPELLATE By way of Petition for Review on Certiorari (APPEAL BY CERTIORAI under RULE 45)
against
1. Court of Appeals
2. Sandiganbayan
3. RTC on pure questions of law
4. Cases involving the constitutionality or validity of:
a. Treaty
b. International agreement
c. Executive agreement
d. Law
e. Presidential Decree, proclamation, order, instructions
f. Ordinance or regulation
g. Legality of tax, impost or assessment
h. Toll or penalty
i. Jurisdiction of a lower court
5. Court of Tax Appeals

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COURT OF APPEALS
Exclusive Actions for annulment of judgment of the RTC
Jurisdiction
With the SC

1. Petitions for Certiorari. Prohibition and Mandamus against:

f. RTC
g. Civil Service Commissions
h. Central Board of Assessment Appeals
Concurrent i. National Labor Relations Commission
j. Other quasi-judicial agencies

2. Petitions for Writ of Kalikasan

With the RTC and SC

1. Petitions for Habeas Corpus

2. Petitions for Quo Warranto
3. Petitions for Certiorari, Prohibition and Mandamus against inferior courts and other
bodies
With the RTC, SC and Sandiganbayan
1. Petitions for Writ of Amparo
2. Petition for Writ of Habeas Data
Appellate 1. By way of Ordinary Appeal from the RTC and Family Courts
2. By way of Petition for Review from the RTC rendered in the exercise of its appellate
jurisdiction;
3. By way of Petition for Review from the decisions, resolutions, orders or award of:
a. Civil Service Commissions;
b. Office of the Ombudsman in Administrative Disciplinary; and
c. Other bodies mentioned in Rule 43
4. Exclusive appellate jurisdiction by way of ordinary appeal over decisions of the
MTCs in cadastral or land registration cases pursuant to its delegated jurisdiction

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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos

REGIONAL TRIAL COURTS

Exclusive 1. Actions involving personal property which value:
Jurisdiction 2. Admiralty and maritime cases which amount of demand or claim:
3. Probate proceedings (testate or intestate) which gross value of the estate:
4. Demand for money which amount:

Exceeds P300,000 – outside Metro Manila

Exceeds P400,000 – in Metro Manila

Exclusive of Interest, Damages, Attorney’s fees, Litigation Expenses and Costs (IDALEC)

Test of determining jurisdiction – Totality of all claims

5. Actions involving title to or possession of real property or any interest therein where
assessed value or interest in real property
Exceeds P20, 000 – outside Metro Manila
Exceeds P50, 000 – in Metro Manila
6. Actions the subject matter is incapable of pecuniary estimation
7. Cases not within the exclusive jurisdiction of any court, tribunal, person or body
exercising juridical or quasi-judicial functions
8. Under Sec.5.2 of Securities and Regulation Code:
a. Cases involving devices or schemes employed by or any acts of the board of
directors, business associates, its officers or partnership, amounting to fraud
and misrepresentation
b. Controversies arising out of Intra corporate or partnership relations;
c. Controversies in the elections or appointments of directors, trustees, officers, or
managers of corporations, partnership or associations
d. Petitions of corporations, partnerships or associations to be declared in a state
of suspension of payments
Special SC may designate certain branches of RTC to handle exclusively:
a. criminal,
b. juvenile and domestic relations,
c. agrarian,
d. urban land reform not falling under the jurisdiction of any quasi – judicial bodies and
agencies
And or such other special cases as the SC may determine in the interest of speedy and
efficient administration of justice
Concurrent With the SC
Actions affecting ambassadors, public ministers and consuls
With the SC and CA
1. petition for Habeas Corpus;
2. petition for Quo Warranto
3. Petition for Certiorari, Prohibition or Mandamus against inferior courts and other
bodies
With the SC, CA and Sandiganbayan
1. Petitions for a Writ of Amparo
2. Petition for Writ of Habeas Data
With Insurance commissioner
Single claim not exceeding P5,000,000
Appellate All cases decided by the MTC in their respective territorial jurisdictions except decisions of
lower courts in the exercise of delegated jurisdiction

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As discussed by: Judge Debalucos

MUNICIPAL TRIAL COURTS

Exclusive 1. Actions involving personal property which value:
Jurisdiction 2. Admiralty and maritime cases which amount of demand or claim:
3. Probate proceedings (testate or intestate) which gross value of the estate:
4. Demand for money which amount:

Does not exceed P300,000 – outside Metro Manila

Does not exceed P400,000 – in Metro Manila

Exclusive of Interest, Damages, Attorney’s fees, Litigation Expenses and Costs (IDALEC)

Test of determining jurisdiction – Totality of all claims

5. Actions involving title to or possession of real property or any interest therein
where assessed value or interest in real property
Does not exceed P20, 000 – outside Metro Manila
Does not exceed P50, 000 – in Metro Manila
6. Inclusion and exclusion of voters
7. Cases falling under the 1991 Rules of Summary Procedure:
a. Forcible Entry and Unlawful Detainer
 Irrespective of amount of damage/unpaid rentals sought to be recovered
 Where attorney’s fees are awarded does not exceed P20, 000
b. Other civil cases, except probate proceedings where the totoal amount of
plaintiff’s claim
does not exceed P100, 000 – outside Metro Manila
does not exceed P100, 000 – in Metro Manila
(exclusive of interest and costs)
8. Cases falling under the Rule of Procedure for Small Claims

Special In the absence of all RTC judges in the province or city:

a. Petitions for Habeas Corpus
b. Application for bail in criminal cases
Delegated May be assigned by SC to hear Cadastral or land registration cases where:
a. There is no controversy or opposition over the land; or
b. In case of contested lands, the value does not exceed P100,000

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QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim) Page 10
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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
Jurisdiction of Courts in civil cases
a. Original jurisdiction - refers to the power of the court
to try a case, filed for judicial action for the first time.
Now original jurisdiction could be exclusive or
concurrent.
b. Exclusive jurisdiction - power to try a case to the
exclusion of other courts. Meaning the case has to be
filed exclusively and in only in that court.
c. Concurrent jurisdiction - power or authority confirm
upon different courts to take cognizance at the same
stage of the same case.
If you are going to file certiorari questioning
the decision of the MTC on the ground of lack of
jurisdiction, the petition may be filed either in the RTC,
CA or directly to SC.
BUT, there is the so-called “DOCTRINE OF
HIERARCHY OF COURTS”.
It means that if the remedy you are praying
can be granted by a lower court, you should file that
petition in the lower court.
Doctrine of hierarchy of court - means that
a higher court will not entertain direct recourse to it
unless the redress cannot be obtained in the
appropriate lower courts. Otherwise, SC will be
flooded with petitions. It will not have any time to
entertain cases which are within its exclusive
jurisdiction.
Although the CA or SC have jurisdiction over
the petition, but if you file it in any of those courts, it
will be dismissed not because it does not have any
jurisdiction because the remedy you are asking could
be granted by the RTC. You better file it at RTC.
According to SC, in direct recourse of the
SC's jurisdiction to issue writs of certiorari, prohibition
or mandamus should be allowed only when there are
special and important reasons clearly set out in the
petition.
What are these special and important
reasons that should be clearly set out in the petition?
Only the SC knows and only SC can determine.
d. Appellate jurisdiction - power to review final order
or decision of a lower court. So it has jurisdiction over
petition for review or certiorari. (Judge D: It is a must
for you to learn the Petition for certiorari and petition
for review on certiorari.)
-- 00 --
Exhaustion of Administrative Remedies v. Primary
Jurisdiction
“DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE
REMEDIES”
Q: What do you mean by exhaustion of administrative
remedies?
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
It means that before a party can go to court, he
should first avail of all the remedies given by the administrative
bodies. In other words, if a remedy is available in the
administrative body, you have to file the case first in the
administrative body before you go to court. You have to
exhaust all administrative remedies in the administrative body
before you go to court.
“DOCTRINE OF PRIMARY JURISDICTION”
Q: What do you mean by the doctrine of primary jurisdiction?
The court will not resolve a controversy involving a
question which is within the jurisdiction of administrative
tribunal especially when the question demands the exercise of
sound administrative discretion requiring a special knowledge,
experience and services of the administrative tribunal. So, if
you file that in court, the court will dismiss because it is within
the jurisdiction of administrative tribunal.
Read: Addition Hills Mandaluyong vs Megaworld Properties,
April 18, 2012. – For better understanding on the distinction
-- 00 –
“DOCTRINE OF NON-INTERFERENCE / DOCTRINE OF
JUDICIAL STABILITY”
What does it mean?
Courts of equal jurisdiction cannot interfere with each
other’s order or decision.
So, a Cebu City RTC cannot nullify the decision of the
RTC Mandaue. An RTC has no power to nullify the order of
another RTC. But there is an exception to that.
-- 00 –
JURISDICTION OF THE RTC [take note]
The RTC has original and appellate jurisdiction.
Original jurisdiction may be exclusive or concurrent.
 Those actions the subject matter of which
are not capable of pecuniary estimation
How can you determine whether the subject matter is
incapable of determination?
To be easy: try the reverse. Is it capable of pecuniary
estimation?
How would you determine that? Look at the
prayers.
If the primary or main remedies ask are
capable of pecuniary estimation, meaning it’s about
money then it is not incapable but if the prayer is not
about money or damages, then it is incapable of
pecuniary estimation.
For example:
If the main action is for collection of sum of
money, or if the main action is for damages, that is
capable of pecuniary estimation.
Page 11
 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
For damages do not be misled, because
sometimes the main prayer may include damages
such as a case of declaration of nullity of contract with
damages. The damage here is just ancillary but the
main action is declaration of nullity of contract. So,
jurisdiction is with the RTC.
In declaration of nullity of the contract of sale
or rescission of contract, these are incapable of
pecuniary estimation; the damages here are just
ancillary of the main remedy.
 Actions involving title to or possession of real
property where the assessed value of the
property exceeds 20,000 if outside Metro
Manila, or if in Metro Manila, exceeds 50,000
except Forcible Entry and Unlawful Detainer.
For example: A case for recovery of ownership and
possession of real property.
You have a land in your province, but you
have not took care of it. Then, your uncle is claiming
that he is the owner because he bought the land from
your Lolo.
What case will you file against the person
claiming your land?
Recovery of ownership and
possession [ACCION REINVINDICATORIA/
ACCION PUBLICIANA]
What if he is claiming the land for not more
than 1 year?
The case is not recovery of
ownership or possession but ejectment
which could be unlawful detainer or forcible
entry [ACCION INTERDICTAL] (Jurisdiction
is with MTC)
If Accion publiciana or reinvindicatoria
The jurisdiction of the case depends upon the
assessed value.
Assessed value is found on the tax declaration which
is based on the value of the land. The value of the land is
determined by the Municipal assessor’s office. Assessed value
is more or less 25% of the market value of the land. This is the
basis of the jurisdiction of the court.
It is necessary that you should allege the assessed
value, if the plaintiff fails to allege the assessed value of the
subject property, the case would be dismissed.
Q: What if the assessed value is lower than 20,000?
A: Jurisdiction is the MTC
“Except for forcible entry and unlawful detainer”
What does it mean?
When the dispossession of the case did not reach
1year, the aggrieved party may file an action for ejectment
either for forcible entry or unlawful detainer.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
For example:
Your house/apartment rented out for
P20,000 and it has been many years that there was
no payment. You sent a demand letter but after 2
month. Then, you filed a case. What case should you
file?
A: You should file an ejectment case in the
MTC, disregard the assessed value, you disregard
the unpaid rentals because your cause of action is
unlawful detainer.
Problem:
Someone contracted a debt with you for P250, 000
but he did not pay so you were troubled. Now, you are asking
the court to compel him to pay you P250, 000 and because
you suffered sleepless nights, mental anguish, (basis for moral
damages) you ask the court, aside from ordering the defendant
to pay you, 250,00) order defendant to pay 100,000 on top of
the 250,000, as moral damages, plus attorney’s fees 50,000.
The total collectible is P400, 000
Q: Where are going to file the case? You are in cebu city
A: MTC, because determining jurisdiction you have to exclude
moral damages, attorney’s fees, etc.,
Problem:
Your neighbor called you names. She said you are
“Whore”, “Concubine of my husband”, “Thick Face”  So you
file a case for damages against her and you ask the court to
require the defendant to pay you moral damages, in the
amount of 200,000 and another damages, exemplary damages
to teach or serve as an example to other persons, so that other
persons will not follow what the defendant did. You ask the
court to pay you 200,000 as moral damages for destroying
your good reputation and 100,000 for the exemplary damages
plus 50,000 as attorney’s fees. The total collectible is P350,
000. You are in cebu city.
Q: Where do you file the case?
A: RTC, because pursuant to [SC administrative circular 09-94-
June 14, 1994], the SC said that when the claim for damages
is the main cause of action or one of the causes of action, the
amount of such claim is considered in determining the
jurisdiction of the court.
The rule supposed to be is damages is excluded, but
if your main cause of action or one of the causes of action is
damages, the total amount of damages in whatever form shall
be the basis the determination of the jurisdiction of the court.
--- 00 ---
June 6, 2016
The last topic we discussed in the jurisdiction of the
different courts. Be sure to familiarize yourself with the
jurisdiction of the RTC and the MTC
(Recap on jurisdiction on cases which are Incapable of
Pecuniary Estimation)
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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
Among the cases that are within the jurisdiction of the
RTC are those cases which are incapable of pecuniary
estimation.
Even lawyers find this hard to understand. To make it
easier for you to determine if a case is incapable of pecuniary
estimation, do the reverse determine the case if “is it capable
of pecuniary estimation”?
Try and determine from the allegations of the
complaint if the case is capable of pecuniary estimation.
Q: When can you say that the action is capable of pecuniary
estimation?
A: An action is capable of pecuniary estimation when the
primary remedy or main remedy being asked is claim of
money.
For example: Claim of money.
That is capable of pecuniary estimation or
when the primary action is for damages. [We need to
be in agreement that when we say damages we are
referring to money. So that is synonymous with
collection of sum of money]
To determine the jurisdiction of the court,
Test of Jurisdiction is the TOTAL AMOUNT OF
THE MONEY BEING ASKED. When the principal
remedy or prayer is not for sum of money or
damages, then the case is INCAPABLE OF
PECUNIARY ESTIMATION.
For example: Action for specific performance.
You are asking the court to direct the
defendant to perform an act. Although the action is for
specific performance, the plaintiff may also pray for
the payment of the damages. But remember that the
prayer for the payment of damages is merely
incidental because his main cause of action is specific
performance.
For example:
D is an architect and construction supplier, P
and D agreed that D would construct a house for the
amount of 5 million. D has already been paid but D
still failed to pay. Mr. P filed a case for specific
performance asking the court to oblige D to construct
the house as agreed upon by them. Considering that
Mr. P suffered sleepless nights so he asked for
damages but the prayer for damages is not the one
primarily asked. The primary remedy is the
construction of the house or specific performance. But
if Mr. P did not asked for the construction of the house
because he already had hired someone, he only
wishes to recover the 5 million with interest, the main
action is not anymore specific performance but for
sum of money.
Example of cases considered incapable of pecuniary
estimation:
a) Action for specific performance
b) Annulment of contract
c) Reformation of contract
d) Injunction
e) Support
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
f) Expropriation
g) Annulment of document
Look at the case of Russel vs. Destell 304 SCRA 739
Sometimes a real action could be considered as an
action incapable of pecuniary estimation. A real action would
now depend on the assessed value.
For real action, the basis of jurisdiction is different. It
is the assessed value and where the property is located.
Where do you find the assessed value? It is in the
back of the tax declaration.
Alternative Action
If for example the case filed by Mr. P is to
compel Mr. D to construct the house OR to pay the
sum of 5 million which was already received by him?
Is it incapable of capable?
If the action is in the alternative, the same is
considered capable of pecuniary estimation.
If it is capable, look at the total amount being
asked. Cruz vs Tan 57 Phil
Action for Replevin
Replevin could be considered as a main action or at
the same time provisional remedy.
Replevin is capable of pecuniary estimation.
Basis of jurisdiction is the value of the personal property
(Recap on what confers jurisdiction)
Jurisdiction is conferred by law but to determine if the
court where the case is filed has jurisdiction over the case, you
have to read the allegation in the complaint. Determine the
jurisdiction based on the allegation in the complaint not in the
allegation in the answer or to the motion to dismiss.
For example:
Mr. P filed a collection case against Mr. D.
He asked the court to compel Mr. D to pay his loan in
the amount of P400, 000 but in the answer of Mr. D
he denied that he has a loan in that amount. He said
his remaining balance is only P200, 000. Considering
that the case is filed in the RTC, he asks the court to
dismiss the case arguing that the court has no
jurisdiction. Is the motion to dismiss meritorious?
No. To determine if the court which the case
is filed has jurisdiction, the allegation of the complaint
must be read as it determines jurisdiction and not the
allegation in the answer or the motion to quash.
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Jurisdiction of the MTC
 Jurisdiction over partition cases
MTC has jurisdiction over partition. Partition
is a real action and jurisdiction depends on the
assessed value.
If the complaint does not allege the
assessed value, that is fatal as the case might be
dismissed for Lack of jurisdiction.
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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
 Action involving personal property – the
value not more than P300, 000 and for Metro
Manila, not more than P400, 000
 Action demanding sums exclusive of
interest, damages, attorney’s fees, litigations
expenses and costs.
“Exclusive of interest, damages, attorney’s fees etc.”
For example:
Someone borrowed from you the amount of
P300, 000 payable in 1 year. He was not able to pay
and so you filed a case for sum of money asking the
court to order your friend to pay the P300, 000. Aside
from that, you are asking for an interest at the rate of
1% per month or 12% annual as penalty. Where do
you file the case? MTC because the amount should
be exclusive of interest, damages, attorney’s fees and
litigation expenses
But there is a case, GOMEZ vs. MONTALBAN,
March 14, 2008.
In this case, the plaintiff filed a collection
case against the defendant. The principal amount was
P40, 000. Their agreement was to have an interest of
10% per month. But because of the long period of
time in which the loan was not paid, the interest
bloated to more than P70, 000 so the resulting money
obligation is already P110, 000.
Before the jurisdiction of the 1st level court is
only up to P100, 000. The defendant moved for the
dismissal of the case as it was filed in the RTC on the
ground that the principal amount is only P40,000. He
argued that the remaining amount is for the interest
and according to BP 129 it should be excluded for
purposes of determining venue.
The SC sad RTC has jurisdiction because
although the principal amount is only P40, 000, the
interest should be included in the determination of the
court’s jurisdiction because the amount can be
determined already based on their contract.
Interest has two concepts:
a. Contractual Interest – one that had been
agreed upon by the parties
b. Interest as a form of penalty – even
without agreement, this penalty could be
asked from the court.
 Action for maritime or admiralty jurisdiction when the
demand or claim does not exceed P300, 000 or in
Metro Manila, amount does not exceed P400,000
 Probate where the value of the estate does not
exceed P300, 000 or in Metro Manila, amount does
not exceed P400,000
Basis
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
The basis for the determination of the
jurisdiction of the estate is the gross value or the
market value, NOT the assessed value of the estate.
 Real actions involving recovery of ownership or
possession wherein the assessed value does not
exceed Php 20,000 or 50,000 (MM)
Delegated jurisdiction of the MTC
It is the power of the first level courts to try and hear cadastral
and land registration cases.
a. If contested, land involved does not exceed Php
100,000.
b. If NO controversy, there is no limit as to the value of
the land.
The decision of the MTC must NOT be appealed to
the RTC, but to the Court of Appeals because the MTC is
exercising jurisdiction which is supposed to be from RTC.
Special Jurisdiction of the MTC
This pertains to the issuance of the Writ of Habeas Corpus.
They have the power entertain these petitions in the event of
absence of all RTC judges in a province or city.
 Cases under the jurisdiction of the MTC which are
provided in the Rules on Summary Procedure and on
the Rule of Procedure for Small Claims Cases
(separate discussion).
--- 00 ---
JURISDICTION V. EXERCISE OF JURISDICTION
Jurisdiction is the power of the court to try and hear the case,
while Exercise of Jurisdiction is the act of the court in
accordance with the authority or with its jurisdiction.
--- 00 ---
Examples:
[Scenario 1]
If the allegation in the complaint is Php 400,000 as
collectible and the case is filed with the RTC but during the
presentation of the evidence, the plaintiff was only able to
prove that his collectible was only Php 200,000. Does the court
jurisdiction over the case?
Answer:
Yes. The jurisdiction depends on the allegations in the
complaint NOT on the evidence presented during the trial,
NOT on the allegations in the Answer or in the Motion to
Dismiss of the defendant.
[Scenario 2]
Suppose the Collection complaint was filed in the
RTC, the amount is only for Php 200,000 but during the
presentation of evidence it was proven that the amount
collectible was actually Php 400,000. Does the Court have
jurisdiction?
Answer:
NO. The jurisdiction depends on the allegations in the
complaint NOT on the evidence presented during the trial,
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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos

NOT on the allegations in the Answer or in the Motion to  Other cases not herein provided
Dismiss of the defendant.
Administrative case – does not also apply because
--- 00 --- they have their own rules but the Rules of Court may be
applied by them suppletorily.
THE 1997 RULES OF COURT
RULE 1
General Provisions SEC. 5 COMMENCEMENT OF ACTION
SEC. 1
SEC. 2 APPLICABILITY How commenced?
Rules of Court A civil action is commenced by the filing of the
It has the force and effect of a law. It is applicable to original complaint in court and payment of corresponding
all courts, except as otherwise provided by the Supreme Court. docket fees

How do you distinguish the Court from the judge? [BAR Mere filing is NOT sufficient. The filing must
QUESTION] include the payment of the exact docket fees. So,
The Court is the office while the judge is the officer of payment AND filing of the corresponding docket fees.
the Court. The Court is the organ of the government and the
judge is the person who sits on it. Why is it important to know that an action or complaint
considered filed in court?
SEC. 3 CASES GOVERNED a) The filing and payment of docket fees stop the
The Rules on Civil Procedure are not only applicable running of prescriptive period.
to civil cases but it may also be applicable to criminal cases b) Upon filing of the case, the court acquires jurisdiction
such as filing of motions. over the plaintiff.
Rule 15 requires that it must contain a notice of
hearing. If it does not contain a notice of hearing, it is How is it filed?
considered as a mere scrap of paper and is bound to the Plaintiff may file:
garbage, meaning the court will not entertain it. This certain a) Personally or
rule is applicable to all cases. b) Through a duly authorized representative,
fully equipped with a Special Power of
KINDS OF CASES OR ACTIONS: Attorney.
1. Ordinary Civil Action – one by which a party sues If the plaintiff is staying abroad the
another for the enforcement or protection of a right, or Special Power of Attorney must have a
the prevention or redress of a wrong. The purpose is certification from the Philippine Embassy
to protect a right. otherwise its useless.
2. Special Civil Action – is governed by the rules on
ordinary civil action and at the same time is subject to --- 00 ---
specific rules that are only applicable to that action. Prescription vs. Latches
Example: Ejectment, Certiorari, Prohibition, Prescription refers to the period given by law within which a
Mandamus certain action should be filed. Latches refer to the unexplained
3. Criminal Action - one by which the State prosecutes or unreasonable delay in the filing of an action even if the
a person for an act or omission punishable by law. prescriptive period has not yet expired.
The act or omission could be the basis for filing a --- 00 ---
criminal case or civil case or both.
 Cause of action refers to the act or How is filing made?
omission which violates a right of another. The filing of these cases may be done through:
 Crime refers to an act or omission which is a. the clerk of court or
in violation of a penal law. b. Registered mail or ordinary mail.
4. Special Proceeding - a remedy by which a party
seeks to establish a status, a right, or a particular fact. Ordinary Mail vs Registered mail
The purpose is to establish a right, status or a Ordinary mail Registered mail
particular fact. Date of actual receipt is the Date of mailing is the Date of
Date of filing filing

SEC. 4 WHERE GENERALLY NOT APPLICABLE Some cases which do NOT require payment of docket fees:
a. Petition for issuance of Writ of Habeas Corpus
b. Petition for Writ or Amparu.
The Rules will not apply to: [NICOLE]
 Election cases What will happen if the corresponding docket fees are not
 Land Registration paid?
 Cadastral
 Naturalization
 Insolvency proceedings

QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim) Page 15
“A Leap to Succeed”
 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
The case is deemed not filed because the
corresponding docket fees must be filed (Manchester
Development Corporation vs CA, May 1, 1987).
However, the case of Manchester has been
modified by the case of Sun Insurance Office vs
Asuncion
The Supreme Court held that the trial court
may, if the corresponding docket fees are not paid,
give the plaintiff time to pay the docket fees instead of
dismissing the case, provided that the period given to
the plaintiff to pay the docket fees should be within
the prescriptive period.
Non-payment of docket fees cannot be a
ground for automatic dismissal of the case. The court
may give reasonable period to pay the same.
Read: [Heirs of Renoso, Sr. vs Court of
Appeals 654 scra 1, July 10, 2011]
Basis of the court in determining docket fees
a. Personal Actions
- All the figures prayed for including damages is the
basis of the court for purposes of payment of the
docket fees.
As we have earlier discussed under
jurisdiction, for collection of sum of money, the basis
is the principal amount. But for the payment of docket
fees, all the damages like exemplary, moral damages,
atty.’s fees, all figures are the basis.
b. Real Actions
- The basis is the MARKET VALUE not the assessed
value of the property. If there be damages asked for,
then the basis is the market value including the
damages.
Construction of Interpretation of the Rules
It shall be interpreted liberally.
Reasons:
 To promote justice.
 To promote their objective of securing a just, speedy
and inexpensive disposition.
Ordinary Civil Actions
RULE 2
Cause of Action
SEC. 1
Every ordinary civil action must be based on a cause of action.
When you file a case, there must be a cause of action.
What happens if you file a case without cause of
action?
That case could be dismissed on the ground
of FAILURE TO STATE A CAUSE OF ACTION.
--- 00 ---
Failure to state a cause of action vs. Lack of cause of
action
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
For Example:
You filed a case against your neighbor who
borrowed money from you (400, 000.00) and failed to
pay the same.
Do you have a cause of action? Yes.
But you did not state in the complaint that
the amount was already due. Your lawyer failed to
state that the debt was already due. What will happen
now to your complaint?
Your complaint will be dismissed, not on the
ground of lack of cause of action because you have a
cause of action but for failure to state a cause of
action.
Failure to state a cause of action has something to
do with the allegations- the insufficiency in the
allegations. There must be a cause of action and that
cause of action must be stated in the complaint.
Again, failure to state a cause of action is a ground for
dismissal. Every action must be based on a cause of
action.
SEC.2
Cause of Action refers to an act or omission by
which a party violates the right of another.
Elements of cause of action: [ROAD]
a) R-ight, the plaintiff must have a right.
In civil actions, there are rights violated. But
in special proceedings, there is no right because the
petitioner is yet to establish a right. He is asking the
court to establish a right. Now, you ask where do you
get such legal right? The source is the substantive
law. Examples of substantive law are Family Code,
Revised Penal Code, Civil Code etc.
b) O- bligation, the correlative obligation of the
defendant to respect that right.
c) A- ct or omission, of the defendant in violation of said
legal right.
d) D- amage The act or omission resulting in damage on
the part of the plaintiff.
Sometimes, there are acts or omissions which do
not result in damage. That’s what we called, damnum
absque injuria.
What is damnum absque injuria? Damage
without injury. That’s wrong, you do not answer that way.
You are merely translating it into English.
Damnum absque injuria means the legitimate
exercise of a person’s right even if it causes damage or
loss to another does not automatically result in an
actionable injury.
Cases on Damnum Absque Injuria:
[Amonoy v. Gutierrez February 15,
2001]
[Nala v. Cabansag June 13, 2008]
SEC.3
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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
A party may not institute more than one case for a
single cause of action.
As a rule, one cause of action could only rise to one
case. You cannot file two cases or three cases just for a single
cause of action.
--- 00 ---
Difference between Cause of action and Right of Action [BAR
QUESTION]
Cause of action is the act or omission made by the
defendant in violation of the right of the plaintiff whereas right
of action refers to the right of the plaintiff to file a case against
the defendant for the protection of his right or redress of his
grievances.
--- 00 ---
For example:
In ejectment, there is a tenant, renting in your house,
he failed to pay the rents for 6 mos. despite demands. What is
your cause of action?
Unlawful detainer.
So what do you want to do with that tenant? You want
to eject him and to make him pay the back rentals. And
because you needed to get a lawyer for that case, you will also
ask for attorney’s fees because you can’t go to court without
hiring a lawyer.
You should only file one case.
In the event, you file a case for the collection of the 6
mos. back rentals and then you will also file another case for
the interest, and you will also file another case for attorney’s
fees. Is that allowed?
NO. That’s what we call splitting a cause of action.
You should only file one case and in that complaint you ask the
court to give you all good remedies.
For Example:
For the collection of sum of money, someone owed
you 400,000.00. Can you file a case for the collection of the
400, 000.00 and then another case for the collection of the
interest? You also file a case for moral damages. And to set an
example to others so they may pay their obligations on time,
you also ask the court in a separate case for exemplary
damages. Is this allowed?
NO. That is what you call splitting a cause of action.
Under the rules, that is not allowed.
What will happen if you file two or more cases over a
single cause of action?
The others will be dismissed. Splitting a cause of
action may possibly result in the dismissal of the other cases
on the ground of either res judicata or litis pendentia.
--- 00 ---
Litis Pendentia vs. Res Judicata
If all the cases filed, or if all these actions over a
single cause of action are pending, then the ground for
dismissal is Litis Pendentia whereas if one of these or some
of these are already decided or terminated, then it’s Res
Judicata.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
This rule is also applicable in counter claims and
cross claims.
--- 00 ---
Case: Mariscal vs. CA 311 SCRA 51.
Remedy of Defendant
If you were the defendant and two or more cases over
a single cause of action is filed against you - file a motion to
dismiss or file an answer and alleged as one of the grounds for
the dismissal of the case, litis pendentia or res judicata.
Usually the actions to be dismissed are those filed
later. And the first case will be left. But it does not necessarily
follow that the second or subsequent case will be dismissed,
the first case may also be the one dismissed.
Breach of Contract
General Rule:
Breach of contract as a rule, will give rise to only one
case or single cause of action. For one contract, one case may
be filed. The reason is as a rule, a contract could only be
violated once even if it contains several stipulations.
For example:
You entered into a contract to construct a house, if it
is violated you can only file one complaint-either for breach of
contract or specific performance.
Exceptions:
a) In a contract which provides several stipulations
to be performed at different times, violation of
such stipulations gives rise to as many causes of
action as there are violations.
It’s possible to have a contract that may
give rise to divisible independent obligations or
contracts which can be performed on an
installment basis.
For example:
You borrowed five million from a bank, in a
contract of loan. Usually the debtor pays in
installment. That contract of loan is capable of
divisible independent obligations. The five million will
be paid in ten months, so your monthly due is
500,000.00 a month. Failure to pay one installment
may give rise to one cause of action and in the
second month you also failed to pay, that’s another
case, such that when you fail to pay the ten
installments, there could be ten cases. That is an
exception to the rule.
We know that for one contract, only one
case should be filed. By way of exception, if a
contract contains stipulations or agreement that can
be performed at different times, such stipulation or the
performance of an act, will give rise to a cause of
action. For every failure to pay its installment, will give
rise to a cause of action.
But take note, according to the Supreme
Court, when the second installment falls due and
you have not yet filed a case for the first
installment, you cannot file anymore another case
Page 17
 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
for the first installment, the cause of action for the
first installment should be included in the second
installment. All installments which have matured or
due at the time of the filing of the case must be
included as one cause of action in one complaint.
Otherwise the same would be barred.
I repeat this is the exception, where a
contract is to be performed periodically, as an
example by installment, each failure to pay an
installment constitutes a cause of action and can be
the subject of separate suit as the installment falls
due. However, if at the time of the bringing of the suit,
several installments are already due, those that are
already due must be integrated in the later
installment. And the same will just constitute one
cause of action if not included the same will be
barred.
Case: Larena v. Villanueva 53 Phils 923.
b) If the contract is to be performed periodically
such as in installment, and the defendant has
already manifested his intention not to comply the
entire contract, the plaintiff can file an action for
the entire contract. And the violation to be
considered- total.
Even if the contract is divisible in its
performance and the future periodic deliveries or
performance are not yet due but the obligor has
manifested his refusal to comply with his future
periodic obligations the contract can be
considered as totally breached. Hence, the
plaintiff can file only one complaint for damages.
Case: Blossom & Co. vs. Manila Gas Corp.
55 Phil 226.
TAKE NOTE AGAIN!
General rule: one contract will give rise to one cause of action.
Exception:
a. When the contract contains stipulations that said
contract is to be performed periodically such as
installments. Each failure to pay an installment will
constitute one cause of action. If you already filed a
case, you may file a supplemental complaint. But when
haven’t filed a case, and the later installment falls due,
you cannot file a complaint as there are installments
unpaid but you are to file one complaint.
b. And when the defendant told you he is not going to
comply the entire obligation arguing for example that
his signature in the contract was forged. Then you can
file already a complaint for the entire contract.
SEC.4
Splitting a cause of action is prohibited but joinder of
causes of action is allowed.
The filing of more than one case for the same cause
of action will cause the dismissal of the other action. The
rationale is to avoid multiplicity of suits.
SEC.5
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
Joinder of causes of action is allowed. It presupposes
that the plaintiff has two or more cases that can be filed against
the defendant/s and these two or more causes of action can be
joined, can be alleged in just one complaint but subject to the
rules under Section 5 of Rule 2 and under Section 6 of Rule 3.
For example:
Mr. D borrowed money from Mr. P in the amount of
P200, 000 payable in 1 year. After 5 months, he borrowed
again from Mr. P an additional P200, 000. So there now two
debts incurred. After 2 years, Mr. D still failed to pay. Question:
How many cases may Mr. P file against Mr. D?
Answer: 2 cases may be filed against Mr. D because he has 2
causes of actions.
However, Sec. 5 Rule 2 of the Rules of Court in order
to avoid multiplicity of suits, the Rules of Court allow joinder of
causes of action. In other words, Mr. P may (not mandatory but
merely permissive) join his causes of action against Mr. D. Mr.
P may file just one complaint against Mr. D alleging these 2
causes of action subject to the ff rules:
Rules in Joinder of Causes of Actions:
1) The joinder shall not include special civil actions or
actions that are govern by special rules. In other words,
only ordinary civil actions can be joined.
For example:
In the problem above, Mr. D also rented the
house of Mr. P but failed to pay. Mr. P then filed an
ejectment case against Mr. D.
Question: Is the following allowed – two cases arising
from the debt and one case for the ejectment?
Answer: NO, because ejectment is governed by special
rules so that can't be joined.
2) When the causes of action are between same parties
but to pertain to different venues or jurisdiction, the
joinder may be allowed in the RTC provided that one of
the causes of action falls within the jurisdiction of the
said court.
For example:
Same problem above, Mr. P is in Cebu City
while Mr. D is in Manila. Then, another cause of action
pertain to recovery of ownership over a parcel of land
with P100, 000 assessed value located in Manila.
Question: Can Mr. P join the causes of actions?
Answer: Yes, provided Mr. P follows the rules on venue
and jurisdiction
As to jurisdiction, recovery of the property should be
filed in the RTC. As to venue, we learned that it should be filed
in the court where the property is located. If it is filed in Cebu
City, it would be a violation on the rule on venue. So it could
not be filed in RTC Cebu City.
With regard the debt, it could be filed in RTC but there
is a problem as to venue because the case to be filed also
includes a real action which necessitates that it be filed where
the property is located. There is no problem as to the personal
action because it could be filed either where plaintiff or
respondent located at the option of the plaintiff.
Page 18
 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
To comply with the rule, the case should be filed in RTC
Manila. That is allowed because there is no more violation as
to jurisdiction and as to venue. There is no violation as to
inclusion of an action which is governed by special civil action.
3) If all the causes action are principally for recovery of
money, the aggregate amount claimed shall be the test
of jurisdiction
For example:
1st Debt - P200,000 (cognizable in the MTC)
2nd Debt - P200, 000 (cognizable in the MTC)
Question: If you are going to join the two cases, where
should you file the case?
Answer: RTC, because all the causes of action for the
sum of money, the total amount shall determine
jurisdiction. Instead of filing it in MTC, file it in the RTC.
That is the so called “TOTALITY RULE”. The
total amount shall determine jurisdiction. That is if all the
actions are mainly for collection of sum of money.
Notice that there are only two parties, 1 plaintiff and 1
defendant. In other words, the examples involved purely
joinder of causes of action. Now the matter will
complicate if aside from joinder of causes of action,
there would also be Joinder of Parties.
For example:
Aside from Mr. D, his brother Mr. E, were
also able to obtain a loan in the amount of P200, 000.
Then, the two failed to pay. Can Mr. P in order to save
expenses for his lawyer be allowed to file only one
case?
No. Under Sec 5, Rule 2, when the joinder of
causes of action would involve joinder of parties, the
provision of Section 6, Rule 3 must also be followed.
[Rule 3, SEC.6]
Whenever there is joinder of parties, the causes of
action must arise only out of the same contract or transaction.
Transaction means contract. There could be joinder of parties
provided that the cause of action must arise only from the
same transaction.
Here, in our example there is a joinder of parties. D
(claim: 200,000) and E (claim: 200,000) are joined together as
defendants. However, under Rule 3, Section 6, it requires that
whenever there is joinder of parties, the cause of action of the
causes of action must arise only out of the same or series of
transaction.
In our example, it is not allowed so there is a
misjoinder of parties because there are 2 causes of action. So,
the case was filed in RTC possibly because the lawyer must
have followed the totality rule. He didn’t consider Section 6,
Rule 3. If you were the counsel for the defense of either of the
2, what will be your remedy?
You can file motion to dismiss on the basis of Lack of
jurisdiction. Why?
It is because the totality rule will not apply because
there is a misjoinder of parties and misjoinder of causes of
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
action. So, these 2 causes of action should not have been
joined. These parties should not have been joined.
So necessarily, Mr. P would have filed a separate
case for a collection of money against Mr. D and another
against Mr. E. So, if he joined it, the case would be dismissed
on the ground of misjoinder of parties and misjoinder of causes
of action.
SEC. 6
As a rule, misjoinder of causes of action would not
result the dismissal of the case.
Like the example earlier, there was ejectment, so
supposed to be, if a cause of action is misjoined, it will not
cause a dismissal of the case. The cause of action if misjoined
will just be separated. That’s the general rule.
The same way with misjoinder of parties, the party
that is misjoined will just be separated. But, the case of Mr. D
and E is an exception to the rule because it now affects the
jurisdiction of the case.
What circumstance or example that there could be proper
joinder of parties?
The joinder of parties arose from the same contract
and same transaction.
For example:
Mr. D borrowed 200,000 from Mr P. Mr P did not trust
much Mr. D so he required a co-maker. Mr. E as co-maker.
Co-maker is solidary liable. So in case Mr. D was not able to
pay his loan, Mr. P can ask from Mr. E. If both did not pay, he
can file a case against both for failure to pay the loan.
So, there is only 1 contract, and one cause
of action. So there is joinder of parties here arose
from the same contract and same transaction.
There could also be causes of action joined in 1 complaint.
For example:
Mr. D and E are passengers of the bus of Mr. P.
Then, it encountered an accident. Mr. E can file a separate
case against Mr. P or both Mr. D and E could file in one
complaint against Mr. P. So, there is joinder of causes of action
and joinder of parties.
Why is it allowed? It is because there is only 1
incident. And it involves common questions of law and facts.
So that is Section 6 Rule 3.
Another example:
It is possible that Mr. P file a case, for the same
transaction or the same incident against different defendants.
Mr. P is the owner of a huge lot then there are informal settlers.
It is allowed to file only 1 ejectment case against them as
defendants in one complaint because it involves only one
property, the same facts and the same question of law.
Or there could be separate case for each informal
settlers because joinder of causes of action/parties is
permissive. It’s up to the plaintiff.
So, why joinder of parties allowed? In this example,
there could be 6 ejectment cases. It is because by the
allowance of the rules.
Page 19
 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
To summarize, under Section 5 Rule 2, a party in
one pleading assert, as many causes of action as he may have
against an opposing party but subject to the following
conditions:
(a) The party joining the causes of action shall comply
with the rules on joinder of parties;
(b) The joinder shall not include special civil actions or
actions governed by special rules;
(c) Where the causes of action are between the same
parties but pertain to different venues or jurisdictions,
the joinder may be allowed in the Regional Trial Court
provided one of the causes of action falls within the
jurisdiction of said court and the venue lies therein;
and
(d) Where the claims in all the causes action are
principally for recovery of money, the aggregate
amount claimed shall be the test of jurisdiction.
It would be easier if there is only one plaintiff, one
defendant, in other words it would be easier if the joinder of
causes of action does not require joinder of parties.
But if the joinder of causes of action would include
also joinder of parties, it would be difficult because the rules
require the causes of action must arise out of the same
transaction or series of transactions involving the same
question of law and the same question of facts. And the rules
of venue and jurisdiction must also be complied with.
Remember this because “libog ni sya”. 
TN! A misjoined cause of action may just be
separated provided the misjoinder does not affect jurisdiction.
Because as what illustrated here, the misjoinder if you are
going to separate the causes of action the court will lose
jurisdiction or the misjoinder of action, actually amounts to lack
of jurisdiction.
RULE 3
Parties to Civil Actions
SEC.1
Under Section 1 only natural or juridical persons or
entities authorized by law maybe parties in a civil action.
Who may be parties? [Plaintiff/Defendant]
a. Natural persons
b. Juridical person - not really a person, it is only the law
that considers them as persons like corporations and
partnerships.
c. Entities authorized by law - authorized by law to file
cases such as registered political organization, like
liberal party, PDP LABAN, they can file cases. State
is also authorized by law as party either as plaintiff or
defendant. Also group of persons pretending
themselves to be a corporation although they are not
registered, they can be sued as a corporation.
 Plaintiff - refers to be the claiming party
 Defendant – refers to the person being sued/
defending part
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
Remedy if a group of persons files a case against you
but actually is not registered as a corporation
- File a motion to dismiss for lack of legal capacity to
sue.
- If it is an unregistered corporation, for example a
group of persons do not pretend as corporation. They
are sued as a registered corporation when in fact they
are not. The case can be dismissed for failure to state
the cause of action.
SEC. 2
a. Real party in interest - is the party who stands to be
benefited or injured by the judgment in the suit, or the
party entitled to the avails of the suit. Unless
authorized by law or these Rules, every action must
be prosecuted or defended in the name of the real
party in interest.
Difference between in the name of from by Real
Party In Interest
In the name of real party in interest, it could
be prosecuted by the person duly authorized by
the plaintiff.
Difference from locus standi
Locus standi refers to the personal and
substantial interest in a case such that a party has
sustained or will sustain the direct injury because of
the challenged governmental act.
Read the case of [Kilosbayan vs Morato 316 Phil 652]
for the distinction of the two.
SEC.3
Representatives as Parties
Where an action is allowed to be prosecuted or
defended by representative or someone acting in a fiduciary
capacity, the beneficiary shall be included in the title of the
case and shall be deemed to be the real party in interest.
For example:
A child, wherein the father left his family,
how can the child ask for the support? Can the child
file a case?
No. The mother can file a case for or in
behalf of the child. So for example the child is
illegitimate, the mother will file the case. The mother
cannot file a case on her own for her support from the
father because they are not married, but the
illegitimate child can ask support.
How? Through the mother
Example: John dela Cruz represented by his
mother Juana dela Cruz or Juana dela Cruz in behalf
of her minor child John dela Cruz plaintiff.
Who is the real party in interest there? The
child and the mother is the representative party. The
child need not execute a Special Power of Attorney
because the mother is the legal guardian of the child.
For example:
5 siblings, then you are the only one who
filed the case, your siblings just executed SPAs, it
should be like this:
Page 20
 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
“A for himself and in behalf of B, C, D and E”
All your brothers and sisters must be
mentioned in the complaint. Not A for himself and in
behalf of his brothers and sisters. (Judge: I have
encountered that before, I was the counsel for the
defendant, Juan dela Cruz for himself and in behalf of
his nephews and nieces. There were no SPAs also.
And the names of the nephews and nieces are not
even mentioned. Kaluoy sa abogadong naghimo sa
complaint!)
 There is a need to mention the names for purposes of
notices.
 For the defendant, all parties must be named or
mentioned in the complaint for purposes of serving
summons.
 For the plaintiff, for purposes of counterclaim because
if the case will be dismissed you can ask for
damages.
Representative maybe:
a) a trustee of an express trust,
b) a guardian,
c) an executor or
d) administrator, or
e) a party authorized by law or these Rules.
An agent acting in his own name and for the benefit of
an undisclosed principal may sue or be sued without
joining the principal except when the contract involves
things belonging to the principal.
How about the dolphins, can they file a case? Look at
this case [Ramos vs Reyes at al. GR No. 180771 April 21,
2015]
What about children yet unborn? Can they file a case
through representative?
Yes. What is that case? OPOSA VS FACTORAN
SEC. 4
SPOUSES AS PARTIES – Husband and wife shall
sue or be sued jointly except as provided by law.
For example:
The wife borrowed money from a lender but
fails to pay, the husband should be sued jointly with
the wife. Because if there will be a judgment against
the debtor wife, the judgment is charge to the joint
properties unless the wife has exclusive properties.
So the husband should be included because the
husband and the wife are joint and co –
administrators of their properties.
“Except as provided by law”
There are instances that the husband or the wife can
be sued separately, such as if the spouses have agreed to
have a complete separation of property regime or if the wife is
sued over her paraphernal properties.
TN! Non joinder of the spouse as a party is merely a
formal requirement and cannot be a ground for dismissal of the
case.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
 If a spouse is not joined as a party to the case, the
court will order the plaintiff to amend the complaint and
implead the spouse who is not impleaded
Effect if plaintiff does not comply with the order
The case could be dismiss not because of
non-joinder of party but because of his failure to
comply with the order of the court, under Sec 3, Rule
17.
[SEC. 3, RULE 17. DISMISSAL DUE TO FAULT OF
PLAINTIFF] – If, for no justifiable cause, the plaintiff fails xxx
xxx to comply with these Rules or any order of the court, the
complaint may be dismissed upon motion of the defendant or
upon the court's own motion, without prejudice to the right of
the defendant to prosecute his counterclaim in the same or in a
separate action. This dismissal shall have the effect of an
adjudication upon the merits, unless otherwise declared by the
court.]
Read: IMPERIAL VS JAOSHIAN April 14, 2004 about the non-
joinder of the husband as a party
SEC. 5
Minor or Incomptent persons
 If a minor files a case through a representative they
should be included in the complaint, they should be
mentioned in the complaint.
 If a minor files a case without the assistance of his
father, mother, guardian or, a guardian ad litem the
case will be dismissed for lack of legal capacity to sue.
 If the minor is the defendant and the guardian is not
included in the complaint the case could be dismiss for
failure to state a cause of action.
SEC. 6 - Already discussed [ Permissive joinder of Parties]
SEC. 7
Compulsory joinder of Parties
 Indispensable parties - it is a party interest without
whom no final determination can be had of an action.
All those indispensable parties should be joined.
Example of case that involves indispensable parties:
(Partition)
Parents died, and there are 5 children A, B, C, D,
and E. A acquires all the inheritance left by the deceased
parents. B wants to recover his share from the estate and
ask his other siblings C, D, and E to recover also their
shares but they were no longer interested to claim the
same.
What will B do? He should implead his siblings as
unwilling co – plaintiff, they should be impleaded as
defendants. They are required to be included as parties
because they are indispensable parties.
--- 00 ---
Indispensable party vs. Necessary party
Indispensable party Necessary party
It is a party interest without Is one who is not
whom no final determination indispensable but who ought
Page 21
 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
can be had of an action to be joined as a party if
complete relief is to be
accorded as to those already
parties or for a complete
determination or settlement
of the claim subject of the
action
Magic word here: Indispensable party – final determination;
Necessary party – complete relief
Example of a necessary party
In case of joint obligation – 4 debtors jointly borrowed
money from X, for 200,000. Each had P50, 000. They are only
liable up to the extent of their shares, not liable to the share of
their co – debtors – that is what we call necessary parties.
If the creditor/s files a case against the 4 of them or
against one of them, the remaining 3 debtors can be included
in order to attain complete relief or settlement of the claim. If
the remaining 3 debtors are not included, it is still ok but there
can be no complete determination of the claim.
In case of a SOLIDARY DEBTOR, he should be
considered neither an indispensable nor necessary because
under the obligations and contracts, the fulfillment of the
obligation can be done by anyone or all of the solidary debtors.
Because there can be a final and complete determination of
the claim even if only one of the debtors are impleaded.
SEC. 9
Whenever in any pleading in which a claim is
asserted a necessary party is not joined, the pleader shall set
forth his name, if known and shall state why he is omitted.
Should the court find the reason for the omission
unmeritorious, it may order the inclusion of the omitted
necessary party if jurisdiction over his person may be obtained.
The failure to comply with the order for his inclusion,
without justifiable cause, shall be deemed a waiver of the claim
against such party.
The non-inclusion of a necessary party does not
prevent the court from proceeding in the action, and the
judgment rendered therein shall be without prejudice to the
rights of such necessary party. Of course, if a necessary party
is not included he shall not be bound by the judgment of the
case.
SEC. 10
Unwilling Co Plaintiff.
If the consent of any party who should be joined as
plaintiff cannot be obtained, he may be made a defendant and
the reason therefor shall be stated in the complaint.
He shall be included if he is an indispensable party.
SEC. 11
Misjoinder And Non Joinder Of Parties
Neither misjoinder nor non-joinder of parties
is a ground for dismissal of an action. Parties may be
dropped or added by the order of the court on motion
of any party or upon its own initiative at any stage of
the action and on such terms as are just. Any claim
against the misjoined party may be severed and
proceeded with separately.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
If a party is ordered by the court to implead
another party, and the plaintiff fails to implead as
such, this can be ground for dismissal by reason of
the non-compliance of the court’s order.
SEC. 12
CLASS SUIT
When the subject matter of the controversy is one of
common or general interest to many persons so numerous that
it is impracticable to join all as parties, a number of them which
the court finds to be sufficiently numerous and representative
as to fully protect the interests of all concerned may sue or
defend for the benefit of all.
Any party in interest shall have the right to intervene
to protect his individual interest.
Problem:
One of the ship of Sulpicio lines collided with another
ship which was a tanker. When the 2 ships collided, the ships
were caught by fire, some of the passengers died from the fire,
some were drown.
Now, the survivors and the heirs of the deceased
passengers, filed a class suit against Sulpicio lines. Relatives
of those who died during the sinking of the ship, and the
survivors, attempted to file a class suit against Sulpicio lines in
behalf of those who were drown and those who were
unidentified. Is the case proper for class suit?
No. The very important requirement is that the subject
matter of the controversy is one of common or general interest
to many persons so numerous that it is impracticable to join all
as parties. According to the Supreme Court, the case is not
proper for class suit because the survivors have no interest in
the death of the other passengers. Neither the relatives of the
deceased passengers have no interest over the death of other
passengers. The interest here is not common to all. The
interest here is individual. The case is not proper for class suit,
it may be proper for permissive joinder of parties. [Bulig-Bulig
kita Kamag-Anak Association vs Sulpicio Lines - May 19, 1989]
--- 00 ---
Difference between a class suit and permissive joinder of
parties
Class suit Permissive Joinder of
Parties
- In class suit there are - All are involve in
for example 1,000 the case
people are involve but
it is enough that 100
of them may file the
suit
- There will be only
representative of the
groups who will file
the case
 What is the proper case for a class suit? Case of
OPOSA vs FACTORAN.
Page 22
 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos

--- 00 ---  However, the problem of this is that you cannot serve
Difference between a class suit and a derivative suit [BAR summons.
QUESTION]
SEC. 15
Class suit Derivative suit Entity without juridical personality
- This right refers to the
right of the minority We have discussed this already, they can be
stockholders of a defendant but they cannot be plaintiffs. They can be sued as if
corporation to file a case they are juridical persons, but they should indicate all their
because intracorporate names.
remedies can no longer
be availed as the SEC. 16
majority of the Death of Party
stockholders have
already committed an Once the client dies, there is no more lawyer – client
act detrimental to the relationship and the counsel has only one valid he can do, that
corporation. is to:
- So minor stockholders  inform the court within 30 days after death
files a suit in behalf of of such client and
the corporation.  To supply the court of the names of the
heir/s of his client or administrator or
--- 00 --- executor
Distinguished a class suit from a taxpayers suit All others act he cannot validly do anymore.
- Taxpayers suit it involves illegal disbursement of
public funds. Effect if lawyer fails to perform such act - He is
subject to disciplinary actions. 
In case of doubt
Class suit should not be allowed. Instead of class suit,
it should be joinder of parties. --- 00 ---

June 13, 2016

SEC. 13
ALTERNATIVE DEFENDANTS
Where the plaintiff is uncertain against who of several
persons he is entitled to relief, he may join any or all of them as
defendants in the alternative, although a right to relief against
one may be inconsistent with a right of relief against the other.
 Remember the collision of the 2 ships near Talisay
city - The MV St. Thomas Aquinas and Cargo ship of
Sulpicio Lines. Suppose you are one of the
passenger, who are you going to sue? The MV St.
Thomas or the Cargo ship?
 In case of a principal or agent? Who are going to
sue? The agent or principal?
In case of doubt, you can file a case against both of
them in the alternative and it’s up to the court to find out who
is to be held liable.
(Continuation on discussion on death of a party)
What will happen if a party to a pending case dies?
When the case is not extinguished by the death of that
party, it will be the duty of the counsel to inform within 30 days.
There are cases that would be dismissed if the defendant dies.
There are cases that would continue when the party such as
the defendant dies.
So, one has to determine first whether the case is
extinguished due to the death of the defendant.
Usually, cases that survive are those cases:
 concerning recovery of real property
 actions to enforce liens on the property
 actions to recover for injury committed by the
deceased
 cases based on contractual money claims

SEC. 14
Unknown Identity or Name of Defendant
Whenever the identity or name of a defendant is
unknown, he may be sued as the unknown owner, heir,
devisee or by such other designation as the case may require;
when his identity or true name is discovered, the pleading must
be amended accordingly.
 What if you do not know the defendant? You do not
know who is the driver? You do not know the name of
the operator? Can you file a case? Yes under
unknown identity or name of defendant.
In those cases, which are not extinguished, the counsel for
the deceased is obliged to report the death of his client and to
supply the court with the name of the representative
(administrator/ executor or heir)
Failure on the part of the counsel is a ground for
disciplinary action
Action of the Court
After lawyer informs the death of the client and supply the
name of the representative to the court, it shall be the duty to
order the substitution of the deceased.
If there is no representative, the court will then order the
opposing party to procure the appointment of an executor or

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administrator of the estate of the defendant and the expenses
shall be defrayed or reimbursed by the opposing party.
If the proceeding were continued despite the death of
the party by reason of the failure of the lawyer of the defendant
to inform the court, the proceeding would then be void because
there is denial of due process.
Nature of substitution of heirs as parties
The rule on substitution of heirs is not a requirement
of jurisdiction but requirement of due process. It was designed
that the deceased party will be represented. Non-compliance
of the rules is violation of the rights of the heirs
If there was no substitution but the children appeared
in court, the proceeding will be valid because there is no denial
of due process. Formal substitution of heirs is not necessary
when they appeared before the court.
SEC. 17
Another case of substitution
One of the parties in this case is a public officer either
elected or appointed and sued in his official capacity. If the
official who is sued in his official capacity is separated from
service, the successor will substitute for him if the successor
would continue the case.
SEC. 18
Party becomes incompetent
There will be no substitution but the court will appoint
guardian ad litem to assist the incompetent
SEC. 19
Transfer of interest
In any case where the interest of the party is
transferred, the action will be continued or against the original
party.
For example:
A case involving a parcel of land filed by the plaintiff
against the defendant and while the case is pending the
defendant decided to sell the land. The buyer upon acquisition
of the land would have to acquire the case as well.
Considering that the defendant no longer has interest over the
case, who will substitute him?
The Buyer, he could substitute the defendant in the case.
SEC. 20
Contractual Money claims
[We discussed already instances when a case would
be dismissed. One of those instances is when the
defendant dies. Normally, the case is a personal
action such as specific performance.
For example:
Defendant and Plaintiff agreed that the
former would paint a portrait of the latter. However,
despite payment, Defendant did not create any
portrait. Tired of waiting, the plaintiff then sued
Defendant. Upon the death of the defendant, what
would happen? The case would be dismissed as
there will be no one who will do the painting.]
In this Section, the money claim is a personal action.
Although being a personal action, it is one of those which are
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not extinguished upon death. It will continue until final
judgment.
For example:
The case is recovery of sum of money
arising from contract express or implied such as a
contract of loan. The defendant dies before entry of
judgment. If after the entry of judgment, the defendant
dies, the heirs will be the one to shoulder the money
judgment up to the amount of their inheritance.
Favorable judgment in favor of the plaintiff
will be taken from the estate as a money claim
SEC. 21
Indigent parties
Upon filing of the complaint, the corresponding docket
fees needs to be paid. Failure on the part of the plaintiff to pay
corresponding docket fees may cause the dismissal of the
case because the court acquires jurisdiction over the case or
over the plaintiff only upon the filing of the pleading and
payment of corresponding docket fees.
Remedy to the problem
File a motion to litigate as indigent litigant
How to litigate as an indigent party?
File a motion to litigate as such and attach as proof
that he has no money or property
“Who can certify that the party has no money?”
 A letter from the DSWD stating they have no means
to pay.
“Who can certify that he has no property?”
 A certification from the assessor’s office
 Strictly speaking, he is not exempt from paying the
docket fees. It is just that it is held in abeyance. It will
be enforced after winning the case.
 This section is related to the provision in the
constitution that states that access to the courts will
not be denied by reason of poverty.
If Party is not actually an Indigent
If later on, it was found that the plaintiff is not indigent,
the court would then give him period to pay the docket fees or
else the case will be dismissed.
Sometimes, it is not advisable to litigate as an
indigent because in case moral damages are awarded, a
smaller award is given because litigating as an indigent means
that you belong to the lower strata of society.
TN!
 The provision is available only to a natural person
 It is not available to a charity organization which is a
juridical person
Read case of:
Tokio Marine Insurance vs. Valdez 01/28/08
Algora vs. Naga City – 08/30/06
SEC. 22
Notice to the Solicitor General
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Any case wherein the validity of any Law, Treaty,
Ordinance, Executive order, Presidential decree, Rules or
regulations is questioned, the Solicitor General should be
notified.
Q: What is the Office of the Solicitor General?
A: It is the legal counsel of the Republic of the
Philippines or the different government offices or
agencies
RULE 4
Venue of Actions
SEC. 1
Venue of Real Action
Basic things you should know:
 Difference between Venue and jurisdiction
 Difference between real action and action in
rem
Real action – affects title to, possession or interest of
real property. It is filed in the proper court, either MTC or RTC,
which has jurisdiction over the area wherein in the real
property involved or a portion thereof is situated.
Questions:
a) In an action for recovery of ownership over a real
property, where should the case be filed?
- In the court that has territorial jurisdiction over the
place the property or any portion thereof is located.
b) What about if there are several parties? Where to file?
- According to the SC, where the subject matter of the
case involves several parcels of land situated in
different provinces, the venue is determined by the
singularity or plurality of the transactions
involving the said parcels of land.
So where said parcels of land are the
subjects of one and the same transactions such as a
contract of sale, the venue shall be in the court of any
of the provinces wherein a parcel of land is situated
but if the parcels of land are subject of different and
separate transactions such as separate sale, there is
no common venue and separate cases should be filed
in the court of the province of each parcel of land is
situated. [EL HOGAR FILIPINO vs. A. P. SEVA GR L-
36627]
“Forcible entry and Unlawful detainer”
Those cases should only be filed in the first level
courts where the real property involves or the person thereof is
situated. RTC does not have jurisdiction over ejectment cases.
Ejectment case is actually a recovery of possession where the
deprivation of possession did not last longer than 1 year.
SEC.2
Venue of personal actions
All other cases are considered personal actions
and may be filed and tried where
a. the plaintiff or any of the other personal plaintiffs
resides or
b. the defendant or any of the principal defendants
resides; or
c. In the case of a non-resident defendant, where he
may be found
At the option of the plaintiff
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If Plaintiff is a corporation
The residence of the corporation is the place
where it principal business is located and not the
place where its branch is situated
“Residence”
According to the SC, the residence of the person is
the personal, actual or physical habitation or his actual
residence or place of abode, whether permanent or temporary
as long as he resides in continuity and consistence therein.
The concept of residence is different from domicile under
political law, because domicile is the place where he has the
intent to return. Residence under remedial law is the place
where the parties actually reside at the time the action is filed.
Effect if case is filed in the wrong venue
It depends whether there is timely objection from the
defendant
 If there is timely objection – the case shall be
dismissed
 If there is no objection – such ground for dismissal is
considered waived
SEC. 3
Venue of actions against nonresidents
Under section 3, if any of the defendant does
not reside or is not found in the Philippines. What
does this mean? He is a non-resident and does not
reside in the Philippines, such a tourists and has a
case files against him.
For Example:
The Non-resident had a child here in the
Philippines. The child wants to be recognized. This
already involves status but the non-resident foreigner
is no longer here in the Philippines. Section 3 is
applicable since it involves a person who does not
reside and is not found in the Philippines which also
includes the personal status of the plaintiff. Such as
his status being illegitimate or if it involves any of the
property of the defendant located in the Philippines.
Even if he is just a tourist but has property, either
personal or real, the action may be commenced and
tried in the court of the place where the plaintiff
resides or the property or any portion thereof is
located.
TN!
This does cover not personal actions such
as collection of sum of money which will not prosper
because our court cannot acquire jurisdiction over his
person. Remember that the court can acquire
jurisdiction of the person of the defendant through
service of summons but those involving res (property)
or status, the court need not require the jurisdiction
over the person of the defendant.
Still, service of summons is needed for
reason of compliance of due process but not
jurisdiction over the defendant.
SEC.4
Rules on venue will not apply
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1) There is a specific provision of law providing
otherwise
For Example: Libel case
 Plaintiff can file in the place where:
a. the libelous statement is first printed and
published or
b. any of the parties actually resides;
 In the case of a Public Officer, the same can be
filed in the place where he holds office
SEC. 1
Pleading and a motion, they are different although
some consider a motion as a pleading. But a motion is different
from a pleading.
 Pleadings - the written statements of the parties’
claims or defenses submitted to the court for
judgment.
o If you’re a plaintiff—claims.
o If you’re a defendant--- defense.

2) Parties have expressly agreed in writing the place SEC.2

where the case should be filed before the filing of the The pleadings allowed are:
action for the exclusive venue. For Plaintiff - Pleading For Defendant - defenses of
 in order for the agreement to be considered as a regarding claims a party against whom a claim
restriction on venue, it must contain is filed
RESTRICTIVE WORDS or QUALIFIYING Complaint Answer
WORDS such as: Counter – claim Answer to Counter – claim
o Exclusively; Cross – claim Answer to Cross – claim
o Waiving for this purpose any other 3rd party complaint (4th party, Answer to 3rd party complaint
venue; 5th party, 6th party)
o Shall only; Complaint in intervention Answer in intervention
o To the exclusion of other courts - Reply – response to answer
o And other words of similar imports, such
as solely; nowhere else but or except. A. Complaint - a pleading alleging the plaintiff’s cause
or causes of action.
According to the SC, even if the agreement  In every complaint there must be a cause of
or stipulation of the parties contains the word “shall”, action.
the same is construed to be merely permissive and  If a complaint does not contain any cause of
the venue agreed upon is considered as additional action the same shall be dismissed.
venue.
 A party, particularly the plaintiff, may join his
Read Case: AUCTION IN MALINTA,
causes of action
INC., G.R. No. 173979, Feb. 12, 2007
 The names and residences of the plaintiffs and
(Be sure to read this, because this case cited
defendants must be stated in the complaint.
different cases –Judge D)
Remember one rule - a complaint must contain a
Contracts of Adhesion
cause of action.
It is not prohibited but the factual circumstances of the
case must be carefully scrutinized. If there are ambiguities of
It must state the rights of the plaintiff, the obligations
those contracts, the same shall be construed against the party
of the defendants, the cause, the action or omission of the
who prepared such contract.
defendants which violate the rights of the plaintiff and the
damage caused by the act or omission of the defendant. If your
TN! The SC has the power to order the change of
complaint does not state a cause of action even if you have a
venue, either in civil cases or criminal cases, to avoid
cause of action, it shall be dismissed for failure to state your
miscarriage of justice. Example is the criminal cases involving
cause of action.
Maguindanao cases.
Why is it important to state the names and residences of
Only the Supreme Court not even the Court of
the plaintiff/s and defendant/s?
Appeals has the power to change the venue.
 To determine venue.
RULE 5  To determine whether the case is filed in the
Uniform Procedure In Trial Courts proper venue.

As a rule, the procedure in the RTC and MTC are just
the same but there are some cases which they differ.
Example: Rules of procedure in Small claims cases
and Rules on summary procedure – applied in the
first level court (MTC)
Let’s go to Rule 8 Section 7
The rule is about allegation of the cause of Action or
Defense based on an Actionable Document.
What is actionable document?

Procedure in Regional Trial Courts [Section 7, Rule 8 provides;

RULE 6 “Whenever an action or defense is based
Kinds of Pleadings upon a written instrument or document, the
substance of such instrument or document
shall be set forth in the pleading and the

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original or a copy thereof shall be attached to
the pleading as an exhibit, which shall be
deemed to be a part of the pleading or said
copy may with like effect be set forth in the
pleading.”]
Actionable Document - a document or an instrument wherein
a claim of a party or a defense of a party is based.
Example of an actionable document:
Promissory note
In a collection of sum of money, the claim is
based on a promissory note.
Example of an actionable document wherein the
defense of a party is based:
Receipts
How to allege an Actionable Document?
1) The substance of such document shall be set forth in
the pleading. So it means you summarize the
substance. Aside from alleging the substance, the
original or a copy thereof shall be attached to the
pleading, as an annex or exhibit.
You have two things to do:
 Allege the substance and
 Attach a copy because usually it’s a copy not the
original.
2) “Or said copy may with like effect be set forth in the
pleading”—meaning, you copy in toto the contents
of said document, when you copy in toto there is no
need for you to attach the original or a copy.
So those are the ways in alleging the claim or defense
based on an actionable document.
B. Answer - pleading in which a defending party sets
forth his defense.
[Judge D: I have here on the board a simple complaint for sum
of money]
Plaintiff X, is of legal age, married, a Filipino and a
resident of Katipunan St.,Cebu City. Defendant Y is likewise of
legal age, married, a Filipino and a resident of Mandaue City.
So why are these allegations important?
 Legal age- shows the legal capacity of the parties. If
you omit that one, your case will be dismissed.
 Residence- determines venue. It is also important for
purposes of serving summons especially on the part
of the defendant, sending notices or copies the orders
from the court.
Paragraph 2, this is now the cause of action.
Sometime on January 15, 2015 the defendant obtained
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a loan from the plaintiff in the amount of 200,000.00 with
monthly interest of 2%. Such loan was payable in 1 year on or
before February 15, 2016. A copy of the promissory note is
attached
This is an example of how you’re going to allege a
claim based on an actionable document.
The gist of the document is alleged and a copy of the
document is attached. That is one way of alleging a claim
based on an actionable document. Usually that is the case; the
other way is by copying in toto. But only few prefer the latter for
it entails copying a lot of words, imagine a three-page
promissory note.
When due date came, defendant failed to pay despite oral
and written demand.
- That is now the omission that resulted to the violation
of the right of the plaintiff.
That due to the stubborn refusal of the defendant to
pay his just loan, the plaintiff is compelled to seek the services
of a lawyer whom is committed to pay 50,000 as acceptance
fee plus 3,000 per court appearance.
That due to the refusal of the defendant to pay his
loan, the plaintiff suffers sleepless nights and mental anguish
to which the defendant should be required to pay in the amount
of 100,000.
Now that is the claim for damages.
How are you going to answer his claim?
There are two kinds of defenses:
a) Negative defense- refers to the specific denial of the
material facts alleged in the pleading of the claimant
essential to his cause or causes of action.
Q: Is it enough to say that “I did not obtain any
loan.”?.... No.
Let’s know how to make a proper specific denial. See
Section 10, Rule 8.
[Section 10, rule 8;
“Specific denial - a defendant must
specify each material allegation of fact the truth of
which he does not admit and whenever practicable,
shall set forth the substance of the matters upon
which he relies to support his denial. Where a
defendant desires to deny only a part of an averment,
he shall specify so much of it as is true and material
and shall deny only the remainder. Where a
defendant is without knowledge or information
sufficient to form a belief as to the truth of a material
averment made in the complaint, he shall so state and
this shall have the effect of a denial.”]
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So, one rule is each material allegation must be decision based on the pleadings, because
specifically denied. That is, if the defendant will not everything is now admitted. The case is now ready
admit, he must specifically deny such material for decision.
allegation.
2) Make a partial denial.
So for example, here on the board, For example:
The defendant admits the allegation in
Plaintiff X, is of legal age, married, a Filipino and a resident of paragraph 1 as regards with the personal
Katipunan St.,Cebu City. circumstances of the defendant, but specifically
Suppose the defendant knows that the plaintiff is not a resident denies the rest of the allegation as regards the
of Cebu City but of Tacloban, so what will the defendant do? personal circumstances of the plaintiff because
Deny it. Likewise, if the personal circumstances of the the truth of the matter is the plaintiff is still a
defendant are not true, all the defendant has to do is to deny it. minor and he is not a resident of Cebu City, but in
Tacloban. That is one way of making a specific
Sometime on January 15, 2015 the defendant obtained denial- by making a partial specific denial.
a loan from the plaintiff in the amount of 200,000.00 with
monthly interest of 2%. Such loan was payable in 1 year on or 3) Allege that the defendant has no knowledge or
before February 15, 2016. information as to the truth of the allegation
Questions: For example:
1. What if it’s not true that he obtained such loan, how If the plaintiff would say "due to the stubborn
will he deny it? Is this enough? refusal of the defendant to pay his loan, the
- The defendant should state that he specifically deny plaintiff suffered sleepless nights, mental
the allegations in paragraph 2. anguish...."
2. Is that enough that you merely mention “specifically
denies?” How are you going to make a specific denial?
- No. You should state the truth. This is how you are going to deny such allegation-
If you merely mention “specifically denies” that is “The defendant has no knowledge or
an admission. information as to the truth of the allegation in
paragraph 4, therefore deny."
Again, in the example given: TN! This kind of specific denial must be made in good
faith because if the defendant would say that he has
no knowledge on certain allegation but in reality such
Suppose the defendant knows that the plaintiff is not a resident allegation is within his knowledge, that is considered
of Cebu City but of Tacloban, so how will the defendant deny as admission.
it?
The defendant specifically denies the allegations in For example:
paragraph 1, stating that the plaintiff is a resident of Cebu City In paragraph 2, the defendant obtained a
because the truth of the matter is the plaintiff is actually loan and you would say that the defendant has no
residing in Tacloban. knowledge as to the allegation in par. 2 that is
considered as bad faith. That is considered as an
The personal circumstances of the defendant are admission. Wouldn't you know if you have borrowed
likewise specifically denied because the truth of the matter money or not? That is within your knowledge if you
is______(state the truth). have borrowed money or not. If you simply say that
the defendant has no knowledge that is in bad faith
 If you will only say that "paragraph 1 is denied", that and will be considered as an admission. So if you are
is admission. going to use lack of knowledge as to the veracity,
 If you don't follow the proper way of denying, your then you should have no knowledge about it. If that
denial will be considered as an admission. Your allegation is within your knowledge, that kind of denial
denial is considered as a general denial. A General is considered as an admission.
Denial is considered as an admission.
Remember Section 10.
Section 10 tells us the ways of making a specific denial. As
 The defendant should follow the rules on how to
much as possible, the defendant should allege what is the
make a Specific Denial.
truth. You are only going to use lack of knowledge if you really
have no actual knowledge.
Rules on how to makes Specific Denial
1) Specifically deny each material allegation, the
Negative Pregnant
truth of which he does not admit and set forth
It is a form of denial which is pregnant with admission.
the substance on the matter upon which he
That is a form of denial which is considered as a form of
relies to support his denial.
admission.
If he will admit, then there is no problem. If
he will admit, he just have to state, "paragraph 1 is
For example:
admitted", and paragraph 2 is admitted and so on.
If you are accused of lending P200K, then
What will happen next? The Court will now render a
you'll say “It is not true that I borrowed P200K." That

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is a negative pregnant. Why? Because it could mean
that you really didn't borrow P200K, but instead you
borrowed P300K. Or if you say “it is not true that I
have 100 bank accounts, because the truth is that I
only have 80 secret bank accounts.” That is a
negative pregnant.
Case: Guevarra vs. Eala, Aug 1, 2007
Indeed, from respondents answer, he does
not deny carrying on an adulterous relationship with
Irene, adultery being defined under Art. 333 of the
Revised Penal Code as that committed by any
married woman who shall have sexual intercourse
with a man not her husband and by the man who has
carnal knowledge of her, knowing her to be married,
even if the marriage be subsequently declared void.
What respondent denies is having flaunted such
relationship, he maintaining that it was low profile and
known only to the immediate members of their
respective families. In other words, respondent’s
denial is a negative pregnant.
It was a denial pregnant with the admission of the
substantial facts in the pleading responded to which are not
squarely denied. It was in effect an admission of the
averments it was directed at.
Stated otherwise, a negative pregnant is a form of
negative expression which carries with it in affirmation or at
least an implication of some kind favorable to the adverse
party. It is a denial pregnant with an admission of the
substantial facts alleged in the pleading. Where a fact is
alleged with qualifying or modifying language and the words
of the allegation as so qualified or modified are literally
denied, it has been held that the qualifying circumstances
alone are denied while the fact itself is admitted
For Example:
A negative pregnant too is respondent’s
denial of having personal knowledge of Irene’s
daughter Samantha Louise Irene Mojes Certificate of
Live Birth. In said certificate, Irene named respondent
a lawyer, 38 years old as the child’s father. And the
phrase NOT MARRIED is entered on the desired
information on DATE AND PLACE OF MARRIAGE. A
comparison of the signature attributed to Irene in the
certificate with her signature on the Marriage
Certificate shows that they were affixed by one and
the same person. Notatu dignum is that, as the
Investigating Commissioner noted, respondent never
denied being the father of the child.
--- 00 ---
ACTIONABLE DOCUMENT
If the claim is based on actionable document, how should
an actionable document be denied?
[Section 8, Rule 8 How to contest such documents
— When an action or defense is founded upon a
written instrument, copied in or attached to the
corresponding pleading as provided in the preceding
section, the genuineness and due execution of the
instrument shall be deemed admitted unless the
adverse party, under oath specifically denies them,
and sets forth what he claims to be the facts, but the
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requirement of an oath does not apply when the
adverse party does not appear to be a party to the
instrument or when compliance with an order for an
inspection of the original instrument is refused.]
TN!
When a claim or defense is based on an
actionable document in order to be sufficient, it should
be under oath. Aside from denying under oath, the
adverse party should set forth what it claims to be the
facts.
"Must be specifically denied under oath"
The pleading such as an answer or reply must be
verified. If it is not verified, the due execution and the
genuiness of the document are deemed admitted.
--- 00 ---
Genuineness vs. Due Execution
 Genuiness of the document means that the
signature appearing there is really that of the party.
The document is not falsified. The signature of the
party is really genuine.
For example:
If X signed a promissory note, the document
is genuine because the signature of Mr. X is really his
signature. It is not falsified. Here signature is not
counterfeit. Supposed when Mr. X signed the PN he
was under duress, under influence, could you say that
the document was duly executed? No, when you say
genuine, the document is not falsified, it is authentic.
 Due Execution, it means it was not executed under
duress, under influence, under threat-meaning it was
executed voluntarily.
--- 00 ---
If an actionable document is not properly denied, the
due execution and genuineness are deemed admitted.
How would the defendant properly deny?
He would say that:
"the defendant specifically denies the allegation in par. 2
because the truth of the matter is that his signature appearing
on the note is falsified"
And that answer must be verified.
As a rule, an answer need not be verified.
There are instances where an answer should be
verified, one of which is when that answer specifically
denies an allegation or claim based on actionable
document.
For Example:
Defendant would say:
Par. 2 is admitted but with qualification that the loan has been
fully paid. A copy of receipts are attached as Annex A
Now the defense is based on actionable
document, the plaintiff should file a reply and the reply
should be under oath- if the plaintiff would deny the
genuiness and due execution of the receipts and set
for the truth.
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Due execution and genuiness not tantamount to liability
An actionable document if not properly denied- the
due execution and genuineness are deemed admitted.
Q: Does that mean that defendant would be liable if
he will not deny under oath?
A: No. because it is only the genuiness and due
execution that are deemed admitted.
SEC. 7
Q: What about if he has already full paid the same?
A: Payment as a defense is not deemed waived.
What is waived is the question as to the genuiness or
due execution. If has fully paid the same or the action
has prescribed, the same are not waive. In other
words, other defenses are still present. Only the
objections as to the genuiness or due execution of the
document are deemed waived.
TN!
 Requirement of denying under oath is not applicable
to an adverse party who does not appear to be a
party to the instrument.
 If he is not a party to the instrument, he is not obliged
to deny under oath. Or when the adverse party asked
for an inspection of the original document, but such
request was refused, such requirement will not also
apply.
 When such document is not an actionable document,
then that requirement will not apply.
For example:
The copy of the demand letter is attached as
Annex B. A demand letter is not an actionable
document. Therefore, a copy of a demand letter may
or may not be attached.
Other defenses are still available such as payment,
prescription, estoppel, etc.
Another kind of defense is affirmative defense.
b) Affirmative defense is like justifying/exempting
circumstance. You admitted the act but you raised
matters which would relieve you from liability.
Affirmative defense is an allegation of new matter
which, while hypothetically admitting the allegation in
the pleading of the claimant, would nevertheless
prevent or bar the recovery by him.
Examples of affirmative defenses:
 Fraud, Statute of limitations, Release, Payment,
Illegality, Statute of frauds, Estoppel, Res
judicata, Laches, Ultra vires, Unconstitutionality.
--- 00 ---
SEC. 6 [Rule 6]
Counter Claim
A counterclaim is any claim which a defending party
may have against an opposing party.
Actually that counterclaim is a separate
pleading. But the same could be joined in an answer.
Answer is another pleading. When the defendant files
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“A Leap to Succeed”
his answer, instead of making another pleading, he
can incorporate this counterclaim in the same
pleading. So he can file an answer with counterclaim.
Kinds of Counterclaim
a) Compulsory Counterclaim
b) Permissive Counter Claim
Compulsory Counterclaim
A compulsory counterclaim is one which,
being cognizable by the regular courts of justice,
arises out of or is connected with the transaction or
occurrence constituting the subject matter of the
opposing party's claim and does not require for its
adjudication the presence of third parties of whom the
court cannot acquire jurisdiction. Such a counterclaim
must be within the jurisdiction of the court both as to
the amount and the nature thereof, except that in an
original action before the Regional Trial Court, the
counter-claim may be considered compulsory
regardless of the amount.
Requisites of Compulsory Counterclaim
1) It arises out of or is connected with the transaction or
occurrence constituting the subject matter of the
opposing party's claim.
A compulsory counterclaim necessarily arises
out of the same transaction or of the same contract
which is the subject matter of the case.
For Example:
Mr. X files a claim for damages against Y for
bumping his car. In his answer with counterclaim, Mr.
Y denied to be the negligent party and pointed instead
Mr. X as the one negligent during the incident. And
because of that according to Mr. Y, his motor vehicle
was damaged. And he asked the court to dismiss the
complaint of Mr. X and instead require Mr. X to be
held the amount of 500,000 representing the value of
the damages of the motor vehicle.
You notice the claim of Mr. Y is connected to the
claim of Mr. X.
That is the example of compulsory
counterclaim, when the details are necessarily
connected to the subject of the case.
What about if Mr. X files a claim for damages
against Mr. Y for the amount of 500,000 because Mr.
Y damage his car thru his reckless driving. According
to Mr. Y, although he is liable, Mr. X owns him
1Million because Mr. X did not pay his loan he
obtained 5 years ago.
Notice that the loan is in a separate transaction, which
is an example of permissive counterclaim.
2) To be considered compulsory counterclaim, must be
cognizable by the regular courts of justice.
For example:
If the claim of defendant is based on illegal
dismissal, that is not a compulsory counterclaim
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because such claim is not cognizable by court of
justice but of NLRC.
3) A compulsory counterclaim does not require for its
adjudication the presence of third parties of whom the
court cannot acquire jurisdiction.
4) The Counterclaim must be within the jurisdiction of
the court both as to the amount and the nature
thereof, except that in an original action before the
Regional Trial Court, the counter-claim may be
considered compulsory regardless of the amount.
For example:
Mr X files a case for damages against Mr. Y for
bumping his car. The amount of damages he asked is
200,000. Mr. Y in his answer denied to be liable and
instead pointed Mr. X as negligent for a claim 400,000
as damage for his car. Is this considered a
compulsory counterclaim? No. The complaint is in the
jurisdiction of first level court.
What about if it is the reverse? It is the claim
of Mr. X which 400,000 so under RTC. And the claim
of Mr. Y is 200,000. Does the court have jurisdiction?
Yes because the complaint is under RTC, so the
amount of the counterclaim is immaterial.
--- 00 ---
Compulsory counterclaim vs. Permissive counterclaim
A cross-claim is any claim by one party against a co-
party arising out of the transaction or occurrence that is the
subject matter either of the original action or of a counterclaim
therein. Such cross-claim may include a claim that the party
against whom it is asserted is or may be liable to the cross-
claimant for all or part of a claim asserted in the action against
the cross-claimant.
So that is similar to counterclaim. OK?
For example:
X files against A and B being solidary
debtors. The debtor here is Mr. A but Mr. X can ask
either from A or B because they are solidarily liable.
Let say 400,000. Supposed Mr. X, decided to file a
claim against Mr. B, so Mr. B can raise a cross-claim
against Mr. A, that in the event that he will be required
to pay, Mr. A should reimburse him.
Another Example:
X and Y are solidary creditors. They filed
against A. Mr. A may raise a permissive counterclaim
against the 2 plaintiffs. That counterclaim is a
pleading. The response of that is called Answer to
counterclaim. So in their answer to counterclaim, Mr.
X may raise a cross-claim against Mr. Y. Like in a
compulsory counterclaim, cross-claim shall be raised
in the answer otherwise it is barred.

Compulsory counterclaim Permissive counterclaim SEC. 10

It must be included in the May be set up as
answer because if not raised independent action. If not
in the answer, the same is raise in the answer, it is not
considered considered waived because it
can be file in a separate
action
Is not considered an initiatory Considered as initiatory
pleading pleading so it must have
certificate against non-forum
shopping.
The required docket fees
must be paid for the
permissive counterclaim
while there is no required
docket fees for compulsory
counterclaim
Need not be answered. If a Should be answered. If not
compulsory counterclaim is answered, the plaintiff can be
not answered it is deemed declared in default.
controverted
(Judge D: if asked in the exam, give at least 2 distinctions)
If the defendant will say in his answer that due to the
filing of the plaintiff’s baseless complaint, the defendant
suffers sleepless nights, mental anguish and his reputation
was besmirched, and the plaintiff should be required to pay
200,000 for damages. So what is that? Because it is
connected with the plaintiff’s claim, it is a compulsory
counterclaim.
--- 00 ---
SEC. 8
Cross-claim
Reply
A reply is a pleading, the office or function of which is
to deny, or allege facts in denial or avoidance of new matters
alleged by way of defense in the answer and thereby join or
make issue as to such new matters. If a party does not file
such reply, all the new matters alleged in the answer are
deemed controverted
If the plaintiff wishes to interpose any claims arising
out of the new matters so alleged, such claims shall be set
forth in an amended or supplemental complaint.
For example:
A defendant in his answer says that he has
fully paid his loan. So the plaintiff should submit a
reply to refute the claim of the defendant. While if
defendant will raise a counterclaim, the plaintiff shall
submit an answer or he can submit a reply with
answer for counterclaim. So if no such reply filed, all
new matters alleged in the answer are deemed
controverted or denied.
The problem with this is if the answer is based
on actionable document, because if the answer is
based on actionable document, the same must be
specifically denied under oath. It must be in the reply.
So, if there is no reply, the genuineness of the
execution is deemed admitted.
So reply is necessary if the answer is based on
actionable document.
SEC. 11
3rd (4th, 5th, etc) party complaint
A third (fourth, etc.) — party complaint is a claim that
a defending party may, with leave of court, file against a

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person not a party to the action, called the third (fourth, etc.)
— party defendant for contribution, indemnity, subrogation or
any other relief, in respect of his opponent's claim.
For Example:
Mr. Y owns a car. He sold this car to Mr. A.
While Mr. A is driving a car, after executing deed of
sale, Mr. A drove this car in the province, Mr. A hit Mr.
X. A witness saw the plate number. The car still
registered under the name of Mr. Y as found out in
the LTO. Mr. X files a case for damages against Mr.
Y.
Now the remedy of Y is to bring Mr. A into the
case. This is now called and third-party complaint. So,
Mr. Y can file a 3rd-party complaint against Mr. A. But
the file of third-party complaint is not a matter of right.
It has to be with leave of court which means with
permission from the court. And the court may or may
not allow a third-party complaint.
What is the purpose of allowing a third-party
complaint?
To avoid multiplicity of suit, so that Mr. Y
can ask reimbursement from Mr. A or the court may
ask directly Mr. A to pay Mr. X for the damages.
What is that fourth-party complaint?
So if Mr. A sold again the car to another. So the new
owner sold again, that is fifth-party plaintiff, and so
on.
TN!
 Venue and jurisdiction of the third-party complaint
depends on the main case.
 As long the trial court has jurisdiction over the
main case, that court has jurisdiction of the third-
party complaint regardless of the amount
involved because a third-party complaint is
merely ancillary to the main case.
Read the case of:
o Saludaga vs FEU April 30, 2008.
o Tayaw vs Mendoza April 12, 2005.
o PCI Leasing and Finance Inc vs UCPB July
4, 2008 – the case of that registered owner
of the vehicle who was liable.
SEC. 12
Bringing new parties
When the presence of parties other than those to the
original action is required for the granting of complete relief in
the determination of a counterclaim or cross-claim, the court
shall order them to be brought in as defendants, if jurisdiction
over them can be obtained.
Section 12 is similar to third party complaint, the
difference is that the defendant in a third party complaint is
only brought after asking a permission from the court
(requires leave of court).
In a case, Mobile Philippines filed a case
against its gasoline dealer, the defendant dealer filed
a counter claim with damages against Mobile
Philippines and included the manager who is not a
plaintiff. So the question was, is the inclusion of the
manager of Mobile Philippines, although he was not a
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“A Leap to Succeed”
party to the case proper? The answer is SECTION 12
RULE 6.
SEC. 13
Answer to third (fourth, etc.) party complaint
A third (fourth, etc.) party defendant may allege in
his answer his defenses, counterclaims or cross-claims,
including such defenses that the third (fourth, etc.) party
plaintiff may have against the original plaintiff's claim. In
proper cases, he may also assert a counterclaim against the
original plaintiff in respect of the latter's claim against the
third-party plaintiff.
Just like an answer to a complaint. In other words a
third party may file a case against an original plaintiff.
RULE 7
Parts of a Pleading
SEC. 1
 Caption
o Name of the court whether MTC, RTC
o Title of the action whether it’s for recovery
of possession, ejectment etc.
o Title of the action indicates the name of the
parties, plaintiffs, defendants because it is
part of the title.
o Docket Number
The parties should all be named in the original
complaint or petition. All of them must be named. If
there are 100 plaintiffs all of them must be mentioned,
if there are 200 defendants all of them must be
mentioned in the complaint or petition, but the
subsequent pleadings it is enough that the word et al.,
is use. For example A B C D, in the answer it is
allowed that it will only be A et al.,. what do you mean
by et at.,? it means AND OTHERS.
SEC. 2
 The Body
The body of the pleading sets forth its
designation, the allegations of the party's claims or
defenses, the relief prayed for, and the date of the
pleading.
TN!
 The allegation in the body of the pleading will be
controlling.
 Even if the title is for ejectment and the allegations
does not constitute for an ejectment case, it is the
allegations in the body of a pleading that will control
over that of the title.
In the body of the pleading there is stated there
COMPLAINT or ANSWER
ANSWER, the denial in a specific denial does not
make it a specific denial even though word “specific” is
used, even if the words specific denial is present and it
does not comply with the rules, the same is not
considered as specific denial
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(a) Paragraphs. - The allegations in the body of a
pleading shall be divided into paragraphs so
numbered as to be readily identified, each of which
shall contain a statement of a single set of
circumstances so far as that can be done with
convenience. A paragraph may be referred to by its
number in all succeeding pleadings.
 Each paragraph must be denied or admitted.
 Each material allegation must be denied or admitted.
 If there is a paragraph in complaint that was not
denied or admitted it is deemed admitted.
 The body must contain paragraphs and each
paragraph must be numbered.
 Each paragraph may constitute 1 sentence. Even if it
is only one sentence it can be considered as
paragraph.
 A paragraph is a statement of a single set of
circumstances.
(b) Headings. - When two or more causes of action are
joined, the statement of the first shall be prefaced by
the words "first cause of action," of the second by
"second cause of action," and so on for the others.
When one or more paragraphs in the answer are
addressed to one of several causes of action in the
complaint, they shall be prefaced by the words
"answer to the first cause of action" or "answer to
the second cause of action" and so on; and when
one or more paragraphs of the answer are addressed
to several causes of action, they shall be prefaced by
words to that effect.
Then headings, every headings must have a cause of
action
(c) Relief. - The pleading shall specify the relief sought,
but it may add a general prayer for such further or
other relief as may be deemed just or equitable.
Each complaint contains prayer. The prayer refers to
the remedies asked to the court. The plaintiffs, in the prayer
ask a specific prayer, but it may contain a general prayer
asking for other relief sought. That is catch all provision.
(d) Date. - Every pleading shall be dated.
Every pleading must be dated. The date here is the
date of the preparation of the pleading.
SEC. 3
Signature and address
Every pleading must be signed by the party or
counsel representing him, stating in either case his address
which should not be a post office box.
The signature of counsel constitutes a certificate by
him that he has read the pleading; that to the best of his
knowledge, information, and belief there is good ground to
support it; and that it is not interposed for delay.
An unsigned pleading produces no legal effect.
However, the court may, in its discretion, allow such
deficiency to be remedied if it shall appear that the same was
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“A Leap to Succeed”
due to mere inadvertence and not intended for delay. Counsel
who deliberately files an unsigned pleading, or signs a
pleading in violation of this Rule, or alleges scandalous or
indecent matter therein, or fails to promptly report to the court
a change of his address, shall be subject to appropriate
disciplinary action.
 If the plaintiff is not represented by a lawyer, he
himself may sign the pleading.
 Then at the bottom of the lawyer’s signature is his
address, the address must not be a box office
 Most of the pleading, the lawyers will put their email
address in order to be contacted easily.
 Office address is compulsory to be stated.
 IBP number- receipt of annual dues, it must be stated
in the pleading, if no IBP # is stated the court will
consider your pleading as a mere scrap of paper.
 Roll of attorneys – list of lawyers, in order to certify
that the lawyer is a true lawyer.
 PTR- Professional Tax Receipt except government
lawyers
 MCLE #- requirement, if no MCLE compliance,
pleading might not be admitted by the court,
What is the significance of the signature of the counsel?
That he has read the pleading and has grounds to support it.
What is the effect of an unsigned pleading?
It has no effect and is considered as a mere scrap of paper.
Counsel who deliberately files an unsigned pleading, or
signs a pleading in violation of this Rule, or alleges scandalous
or indecent matter therein, or fails to promptly report to the
court a change of his address, shall be subject to appropriate
disciplinary action.
 A Lawyer must be careful in the use of words in the
pleadings because your pleading may go up to the
way to the Supreme Court, and that can be a ground
for disciplinary actions.
 A lawyer must learn how to use courteous and
temperate language
 Even if how mad you are at the judge because you
strongly disagree with his decision, you are duty
bound to respect his decision. Anyway you have
remedies.
 Just point out why you disagree with his decision.
Disagreement with the client
If the lawyer wants to withdraw from a case because
he has a disagreement with his client he should file a motion to
withdraw.
In the event that the client wants you to represent
despite him having already a lawyer, what you should do is
your client to let his lawyer withdraw first, before you enter
your appearance, for it would be unethical if a lawyer takes
over a case over which there is already a lawyer unless you
are a corroborating counsel.
SEC. 4
Verification
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Except when otherwise specifically required by law or
rule, pleadings need not be under oath, verified or
accompanied by affidavit.
A pleading is verified by an affidavit that the affiant
has read the pleading and that the allegations therein are true
and correct of his knowledge and belief.
A pleading required to be verified which contains a
verification based on "information and belief," or upon
"knowledge, information and belief," or lacks a proper
verification, shall be treated as an unsigned pleading.
 VERIFICATION
It means a statement under oath that you have
read and understood every allegation in the complaint
and that you found that all the allegations therein are true
and correct based on his personal knowledge or based
on authentic records.
 If there is a need for verification yet absent, the
pleading is treated as an unsigned pleading. It
should be dismissed and considered as not filed
 However, it can be corrected because verification is
merely a formal defect, the party concern can file an
amended pleading. It does not warrant the dismissal
of such complaint or answer, because it may be
corrected.
---oOo---
June 20, 2016
Verification and certification against forum shopping,
normally is jointly made but they are different.
Verification is a form of affidavit wherein the party certifies
under oath that he has read the allegation in the pleading and
they are all true in his own personal knowledge.
Certification against forum shopping is a form of affidavit
and the party certifies under oath that there is no other case
pending in another court or tribunal and that if there is such
pending case involving the same issue in another court, he
should indicate in the pleading the complete status of such
case. Or if he has no knowledge regarding the pendency of
another case at the time of filing of the case, he undertakes to
inform the court regarding within 5 days after obtaining
knowledge of the pendency of that case.
SEC. 5
Certification against forum shopping
Certification against forum shopping is required only
in Initiatory Pleadings.
Initiatory pleading is the first pleading you
are going to file such as complaint. As a rule, an
answer is not an initiatory pleading but if together with
the answer the defendant likewise incorporates
permissive counterclaim, his answer must include
certification against forum shopping because it
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“A Leap to Succeed”
contains permissive counterclaim which is considered
an initiatory pleading.
Forum Shopping
There is forum shopping when there is Litis Pendentia
and Res Juridicata
There is litis pendentia or res judicata
when two or more cases are filed involving the same
cause of action. If two cases are filed but the causes
of action are different then there is no litis pendentia
or res judicata and there is no forum shopping
Why is forum shopping prohibited?
It is because that would create multiplicity of suits. It
would unduly congest the courts. Also, the primary evil sought
to be prescribed by the prohibition is the possibility of
conflicting decisions being rendered by the different courts
upon the same issues.
Effect of absence of certification against forum shopping
in initiatory pleading
Failure to comply with the requirement of
incorporating the certification will result to the dismissal of the
case and the same shall not be cured by mere amendment of
the complaint. It shall cause the dismissal of the case but same
is without prejudice, upon motion and after hearing. In other
words, even if an initiatory pleading (complaint) does not have
any certification against forum shopping, the court cannot motu
propio dismiss the same because the dismissal should be
upon motion and after hearing.
For example:
A plaintiff files a complaint but there is no
certification against forum shopping. The same shall
be dismissed. He is not allowed to file an amended
complaint with the required certification against forum
shopping. He has to file another complaint.
Non-compliance of the undertaking/submission of false
certification
The performance of such act would constitute indirect
contempt without prejudice administrative and criminal actions.
If there was a case filed but was not alleged in the complaint,
then it will constitute indirect contempt and possibly the
dismissal of the case.
If the non-compliance constitutes as “willful and deliberate”
It would cause the dismissal with prejudice and direct contempt
and administrative sanctions
-- 00 –
Dismissal with prejudice vs. Dismissal without prejudice
Dismissal without prejudice means it could still be re filed. On
the other hand, if the dismissal is with prejudice, it could not be
filed anymore because the dismissal is considered based on
the merits. Even if there was no actual adjudication, it would be
considered as decided upon based on the merits.
--- 00 ---
Who will sign the certification against forum shopping?
The plaintiff/ principal party shall certify under oath. It
should be the party himself and not the counsel except if there
has been authorization through a Special Power of Attorney. It
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is different with verification because the counsel can sign the Ultimate facts or factum Evidentiary facts or
verification. probandum factum probans
The essential facts that
If there are several parties would constitute your cause
All of them shall sign except of action
1. When all the plaintiffs share a common These are the facts that if Facts that maybe excluded
action/defense or interests, one of them may sign in deleted the pleading would because not vital to your
the certification and is considered Substantial be insufficient or your cause of action
Compliance [Pacquing vs. Coca-cola Inc.-01/31/08] cause of action would be
2. If one of them is duly authorized through a Special insufficient.
Power of Attorney to sign in their behalf Facts that needs to be Fact by which factum
established probandum is established
If the party is a juridical person Hypothetical Existent
A juridical person is not actually a person but it is the law that
considers him as a person i.e. Corporation, partnership
In the Pleading:
Under the corporation code, it should be the person
duly authorized by the board to file the case and sign the Paragraph 1: contains the personal circumstances of the
certification against forum shopping however the SC stated parties
that even without the required board resolution; the following
may sign the certification: Paragraph 2:
1. Chairperson of the board of directors
2. President “that sometime on January 15, 2015, the defendant
3. General manager or acting General Manager [not the obtained a loan from the plaintiff in the amount of Php 5,000
Branch manager] payable within 1 year therefrom and that when due date came
4. Personnel officer the defendant failed to pay despite demands;
5. Employment specialist in labor case
Paragraph 3:
They are allowed to sign the certification because
they are in the position to check/verify the truthfulness and “That due to the stubborn refusal of the defendant to pay
correctness of the allegation in the petition. [Cagayan his load, the plaintiff is constrained to see the services of his
Valley Drug Corp vs. CIR – 02/13/08] lawyer in order to file the case”

Read: Valla Car Transit Inc. vs. Catubig – 05/30/11 this All these are what you call the ultimate facts.
case provides the distinction between certification of non- These facts are essential because they constitute your cause
forum shopping and verification of action.

The implication of not knowing the rules is the TN!

possibility of the case being dismissed. Upon dismissal, it  Mere presence of Cause of Action does not equate to
could still be refiled but you will be replaced as lawyer. winning the case because if the defendant denies the
There is likewise a need to pay again the docket fees. allegations, then the same should be proved in court.

RULE 8
Manner of making allegations in pleading
SEC.1
In general, the pleading shall contain a methodical
and logical form, a plain, concise and direct statement of the
ultimate facts on which the party pleading relies his claim or
defense
 Rule, your pleading should be easy to understand.
 It should not be disarranged in form and substance.
 Your pleading should contain Ultimate facts.
 The ultimate facts should be stated in logical and
methodical form in a plain, concise and direct
statement/allegation
 Methodical means there is format or chronological.
 Take note on the margin, paragraph and font
--- 00 ---
Ultimate Facts vs. Evidentiary Facts
You have to prove then that he obtained a loan from you
and that he did not pay such and that you were forced to hire a
lawyer.
Then, how do you prove that he indeed incurred a
load from you?
The same could be proved, through your personal
testimony or your witnesses’ testimony. This is what you call
Testimonial Evidence. Promissory note may be presented,
this is called Documentary Evidence.
All these would establish your ultimate facts that you
alleged in the complaint. So your testimonial and documentary
evidence are that you call evidentiary facts.
During Trial
You will be asked before the court:
Q: Do you know the defendant in this case?
A: Yes, because he was my former classmate in USJ-R.
College of law.
Q: Sometime on January 15, 2015, where we you at that time?

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What were you doing? Who were with you at that time?
A: I was celebrating my birthday and one of my guests was the
defendant.
Q: At that time when you were celebrating your birthday with
the defendant as one of your guest, what happened?
A: in the course of our conversation, he pleaded at me so that I
will lend him money that he would use in his business.
Q: How much amount did he borrow from you?
A: Php 5,000
Q: what is your proof?
A: promissory note duly signed by him.
Q: what happened when due date came?
A: he failed to pay
Q: what did you do after he failed to pay?
A: I sent a demand letter
Q: what is your proof?
A: I have a copy of the demand letter with his signature.
--- 00 ---
All these are what you call evidentiary facts. No need to state
evidentiary facts in the pleading, such as that there was a
birthday party and one of the guests was the defendant.
TN: Not all facts are required to be stated in the pleading,
ONLY ULTIMATE FACTS, facts which are essential to your
cause of action.
As to stating the LAW in the pleading,
CIVIL CASES, if:
a) Complaint -
NO. There is no need to state the law in your complaint.
The Rules only require the statement of ultimate facts. So, law
and legal basis need not be stated.
b) Answer -
Under the Rules you may state legal basis for your
defense. Particular provisions of law may be stated in your
defense.
CRIMINAL CASES:
The ultimate facts are found in the information or complaint.
--- 00 ---
Facts that need not be stated:
1. Facts presumed by law
2. Conclusion of fact and law
3. Facts of judicial notice
SEC. 2
Alternative causes of action or defenses
A party may set forth two or more statements of a
claim or defense alternatively or hypothetically, either in one
cause of action or defense or in separate causes of action or
defenses. When two or more statements are made in the
alternative and one of them if made independently would be
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
sufficient, the pleading is not made insufficient by the
insufficiency of one or more of the alternative statements.
For Example:
A man is about to board a bus, but when he was about to
step on the stairs, the driver moved the bus and the man was
drag and injured.
What would be the basis of your case? What is the basis
of your cause of action? Is it breach of contract or torts?
If you say torts, then you don’t have a contract. But
breach of contract then that presupposes that there is already
a contract between the parties. In this case, you may mention
2 causes of action in alternate. This is ALTERNATIVE
CAUSES OF ACTION.
For Example:
If defense is hypothetical, you say “the allegation as
to the load is false because the plaintiff’s signature appearing
in the promissory note was merely falsified”, then you further
stated “assuming (hypothetical) that the defendant has
obtained the load the same has already prescribed”.
This is what you call ALTERNATIVE DEFENSES
TN!
 If there are two or more causes of action in the
complaint and one of them are insufficient, the
complaint cannot be dismissed because the pleading
is not made insufficient by the insufficiency of one or
more of the alternative statements.
SEC. 3
Condition Precedent
In any pleading a general averment of the
performance or occurrence of all conditions precedent shall be
sufficient
Examples of condition precedent:
1. exhaustion of administrative remedies
2. certification to file action from the office of the
barangay captain
A General Averment would be sufficient.
Examples:
“Prior to the filing of this case in court, the
matter has been referred to the barangay but
there was not settlement”
“Before the filing of this case in court, the
matter has been referred to the Department
of Education but there was no settlement”
SEC. 4
Capacity
Facts showing the capacity of a party to sue or be
sued or the authority of a party to sue or be sued in a
representative capacity or the legal existence of an organized
association of person that is made a party must be averred. A
party desiring to raise an issue as to the legal existence of any
party or the capacity of any party to sue or be sued in a
representative capacity, shall do so by specific denial, which
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shall include such supporting particulars as are peculiarly
within the pleader's knowledge
Capacity to sue – must be averred.
a. Corporation - state that the corporation Is duly
registered with SEC to show its legal capacity.
b. Representative – state that he is equipped with
special power of attorney.
For Example:
Plaintiff XYZ is a duly registered corporation
under the SEC. Juan dela Cruz is duly authorized to
represent per BOD Resolution 123, dated ____.
A party desiring to raise an issue as to the legal existence
of any party or the capacity to sure or be sued in a
representative capacity shall do so by SPECIFIC DENIAL,
which shall be include such supporting particulars as are
peculiarly within the pleader’s knowledge.
So must specifically state in your answer that the
allegation in Paragraph 1 as to the plaintiff’s capacity is not
true.
For Example:
“The allegation in Paragraph 1 as to the legal
capacity of the plaintiff is specifically denied
because the truth of the matter is that he
is just a minor”
SEC. 5
Fraud, mistake, condition of mind
In all averments of fraud or mistake the circumstances
constituting fraud or mistake must be stated with particularity.
Malice, intent, knowledge, or other condition of the
mind of a person may be averred generally
Fraud or mistake - Must be stated with particularity.
Malice, intent, knowledge or other conditions of the mind –
averred generally.
For Example:
You filed a Petition for Nullity of Marriage on the
ground of Fraud. You must state it with particularity, as to what
constitutes that fraud.
SEC. 6
Judgment
In pleading a judgment or decision of a domestic or
foreign court, judicial or quasi-judicial tribunal, or of a board or
officer, it is sufficient to aver the judgment or decision without
setting forth matter showing jurisdiction to render it
How do you allege judgment? You allege res judicata, how will
you allege prior decision?
It is sufficient to allege the judgment or decision
without stating matters showing jurisdiction to render it.
You need not state that the said decision was rendered by a
court of competent jurisdiction.
SEC. 7
Action or defense based on document. — Whenever
an action or defense is based upon a written instrument or
document, the substance of such instrument or document shall
be set forth in the pleading, and the original or a copy thereof
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
shall be attached to the pleading as an exhibit, which shall be
deemed to be a part of the pleading, or said copy may with like
effect be set forth in the pleading.
Section 7 was already discussed this is about
statements of an action or defense based on an actionable
document. Again, section 7 is very important. Remember,
there are two ways of pleading an actionable document.
SEC. 8
When an action or defense is founded upon a written
instrument, copied in or attached to the corresponding pleading
as provided in the preceding section, the genuineness and due
execution of the instrument shall be deemed admitted unless
the adverse party, under oath specifically denies them, and
sets forth what he claims to be the facts, but the requirement of
an oath does not apply when the adverse party does not
appear to be a party to the instrument or when compliance with
an order for an inspection of the original instrument is refused
How to contest an actionable document?
TN! Mere specific denial is not sufficient.
It must be:
a) Coupled with an oath and
b) Set forth what he claims to be the facts.
TAKE NOTE of the exceptions.
Effect if actionable document is not properly contested
The genuineness and due execution of the actionable
document are deemed admitted. But other defenses are not
deemed waived i.e., defenses such as payment, prescription
and etc. Only the genuineness and the due execution
Exception:
 When he is not a party to that document;
 When he requested for an inspection of the original
but it was refused;
 When the document is not an actionable document.
SEC. 9
Official document or act
In pleading an official document or official act, it is
sufficient to aver that the document was issued or the act done
in compliance with law
SEC. 10 [5 STAR PROVISION]
SPECIFIC DENIAL
A defendant must specify each material allegation of
fact the truth of which he does not admit and, whenever
practicable, shall set forth the substance of the matters upon
which he relies to support his denial. Where a defendant
desires to deny only a part of an averment, he shall specify so
much of it as is true and material and shall deny only the
remainder. Where a defendant is without knowledge or
information sufficient to form a belief as to the truth of a
material averment made to the complaint, he shall so state and
this shall have the effect of a denial
Ways of making Specific denial [Already discussed]
One of the ways is -
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Defendant must specify each material allegation
of fact the truth of which he does not admit.
“Each Material allegation”
It means each allegation/statement must be looked
into whether the same must be denied or admitted.
For Example:
Sometime, on January 15, 2015, the defendant
obtained a loan in the amount of 500, 000.
This is a material allegation.
How are you going to admit it or deny?
If you’re going to admit it, there is no problem If you don’t want
to admit it, you have to deny specifically.
Aside from making specific denial, you should state
as much as possible what your version as to the truth is. So as
much as practicable, set forth the substance or the matter
upon which you rely to support your denial. To set forth means
to allege.
TN!
 If you fail to look into each allegation one by one,
even if you use the word “specific denial” they are
deemed admitted if you fail to follow section 10
 Even if you use the terms “specific denial”, your denial
would be a general denial which is considered an
admission.
Another way is
Deny it one by one.
For example:
Paragraph 2 is specifically denied because the truth of the
matter is….
Paragraph 3 is likewise specifically denied because…
Paragraph 4 is specifically denied because…..does not have
any knowledge. (Lack of information as to the truth of the
allegation must be done in good faith).
In the example:
Sometime, on January 15, 2015, the defendant
obtained a loan in the amount of 500, 000.
Q: If you deny this on lack of knowledge, was it in good faith?
Can’t you tell outright whether you had or had not obtained a
loan?
If you allege lack of knowledge here, that is denial in
bad faith. That is considered an admission.
TN! General denial is considered an admission.
“NEGATIVE PREGNANT”
It is a form of denial which is pregnant with admission of
the facts alleged in the pleading.
For example:
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
“That Sometime, on January 15, 2015, the defendant
obtained a loan in the amount of 500,000.00”
The defendant specifically denies that he obtained a loan
from the plaintiff on January 15, 2015 in the amount of
500,000.00
“The defendant specifically denies that he obtained a
loan from the plaintiff on January 15, 2015 in the amount of
500,000.00” - This could be construed as a denial with regards
to the amount of 500,000.00, it could be that defendant actually
obtained a loan for 400,000.00 only
It is the same as denying you have 82 secret bank
accounts because the truth of the matter is you only have 22
secret bank accounts. That is a negative pregnant.
Read the case, Capitol Motors Corp. vs. Yabot 32 SCRA 1
for an example of a specific denial deemed admitted.
SEC. 11
Allegations not specifically denied deemed admitted.
Material averment in the complaint, other than those
as to the amount of unliquidated damages, shall be deemed
admitted when not specifically denied.
Allegations of usury in a complaint to recover usurious
interest are deemed admitted if not denied under oath.
“Liquidated damages”
Liquidated damages refer to those that are specific.
For Example: (A contract with penal clause)
A contract which provides that when not completed,
there’s a penalty of 1,000.00 per day of delay. That is a
liquidated damage because it is easy to compute. No need
proof to come up with the amount. All you have to do is to look
at the contract.
“Unliquidated damages”
For Example:
When you say “suffered moral damages”, exemplary,
hospital expenses because it needs proof.
“Allegation of usury, however, in a complaint to recover
usurious interest is deemed admitted if not denied under
oath.”
For example:
Plaintiff files a case because he wants to recover the
excess for payment he made due to usurious interest. The
same must be denied otherwise deemed admitted. And the
rule requires it must be denied under oath. This is the same
case with actionable document.
For example:
I obtained a loan from you and I paid you way too
much due to usurious interest. I filed a case to recover for you
failed to return the excess when demanded. So in my
complaint, my cause of action is usurious interest.
In your answer, it must be done under oath
because if it is not under oath, deemed admitted.
SEC. 12
Striking out of pleading or matter contained therein
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As discussed by: Judge Debalucos
Upon motion made by a party before responding to a
pleading or, if no responsive pleading is permitted by these
Rules, upon motion made by a party within twenty (20)days
after the service of the pleading upon him, or upon the court’s
own initiative at anytime, the court may order any pleading to
be stricken out or that any sham or false, redundant,
immaterial, impertinent or scandalous matter be stricken out
therefrom.
As what we have discussed, your motions and/or
pleadings must contain temperate language. Must contain
true and correct facts, otherwise, the same may be stricken
out of record.
RULE 9
EFFECT OF FAILURE TO PLEAD
SEC. 1
Defenses and objections not pleaded
Defenses and objections not pleaded either in a
motion to dismiss or in the answer are deemed waived.
However, when it appears from the pleadings or the evidence
on record that the court has no jurisdiction over the subject
matter, that there is another action pending between the same
parties for the same cause, or that the action is barred by a
prior judgment or by statute of limitations, the court shall
dismiss the claim.
As a rule, defenses and objections not alleged either
in a motion to dismiss or in the answer are deemed waived.
So it is necessary that whatever are your objections
must be alleged in your answer or in a motion to dismiss.
For Example [Venue]
If the case is filed in an improper venue, there must
be a motion to dismiss if not it must be alleged in an answer as
an affirmative defense. Failure to allege in a motion to dismiss
or answer deemed waived.
But there are objections not considered waived even if not
raised in a motion to dismiss or in an answer.
[If these matters are apparent in the complaint or evidence on
record]
(Section 1, Rule 9)
1. When it appears from the pleadings or the evidence
on record that the court has no jurisdiction over the
subject matter;
2. There is another action pending between the same
parties for the same cause; (Litis Pendentia)
3. That the action is barred by a prior judgment or; (res
judicata)
4. By statute of limitations, the court shall dismiss the
claim (prescription)
Prescription here includes laches.
“Laches” unreasonable delay in bringing up the action
Those objections, again, are not considered waived
even if not raised in the answer or motion to dismiss.
In fact, if any of those grounds is present, the court
can motu proprio dismiss the case. Those are the only
grounds that the court can motu proprio dismiss a case.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
Since all other grounds are waiveable the court
cannot dismiss the case motu proprio.
For example: Improper venue.
If there is no motion to dismiss or if there is no
allegation in the answer objecting to the filing of the case at the
wrong venue, the court cannot motu proprio dismiss the case.
--- 00 ---
“Residual Prerogatives” refer to the power of the court to
dismiss a case motu proprio based on the four grounds
mentioned.
Case: Catud vs. Palanca Jr., September 7, 2004.
SEC. 2
Compulsory counterclaim, or cross-claim, not set up
barred
A compulsory counterclaim, or a cross-claim, not set
up shall be barred.
Compulsory Counterclaim or Cross-claim; we have discussed
this already. Again, if not alleged in the answer, they are
deemed waived or barred.
Q: Is there a possibility that a plaintiff becomes a defending
party?
A: yes, as regards permissive counterclaim. So this defending
party is not limited to a defendant.
If the defending party fails to answer within the time
allowed, the court shall upon motion with notice to the
defending party (there must be a motion and notice to the
defending party) and proof of such failure, the court shall
declare the defending party in default.
What is the effect after the court shall have properly
declared the defending party in default?
The court has two options:
1) To render judgment based on the allegations in the
complaint; or
2) To require plaintiff to present evidence ex parte.
“Ex-parte presentation of evidence” means without the
participation of the defending party. The reason is because
once the defending party is properly declared in default, he
lose his standing in court. In other words, he can't anymore
participate in the proceedings in court although he is entitled to
notices.
How is it done?
The ex-parte presentation of evidence by the
plaintiff can be done before the clerk of court.
“Clerk of Court” he is the court officer next to the
judge. He has supervisory powers. He is the head of
office. He is the supervisor of all personnel in the
court. The clerk of court from RTC to Supreme Court
should be a lawyer.
The clerk of court who can receive evidence
should be a lawyer. He will act like a judge.
Presenting evidence before the clerk of court is the
same as presenting evidence before the judge. The
receiving of evidence should be done before the clerk
of court because there's no hassle as there is no
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As discussed by: Judge Debalucos
opposing party, meaning no one will object. There is
no need for a ruling as to the receiving of evidence
because there is no opposing party.
 The declaration of default of the defending party, does
it mean that the victory of the plaintiff is imminent
If complaint insufficient/allegations not proved
The Court could dismiss the case for insufficiency of
cause of action or that the complaint is sufficient but the
allegations therein were not sufficiently proved despite the
absence of the defending party.
Effect of default
(a) Effect of order of default. — A party in default shall be
entitled to notice of subsequent proceedings but not to take
part in the trial.
A party in default should be entitled to notice on the
subsequent proceedings only. You cannot participate in the
proceedings because you lose your standing in court
For example:
The period to file an answer has lapsed then the
plaintiff didn't notice about it. Then you file a late answer.
Should the court consider your answer?
Yes, before the issuance of the order in default, the
court has to accept because there is no order yet declaring him
in default.
It is the issuance of the order that will cause lose
in the standing in court of the defendant. Without it, he can
still submit his answer.
EXCEPTION:
If the case is governed by the Rules on Summary
Procedure and Small Claims, under such Rules, filing of late
answer is strictly prohibited and filing a motion to declare in
default is not allowed.
(b) Relief from order of default. — A party declared in default
may at any time after notice thereof and before judgment file a
motion under oath to set aside the order of default upon proper
showing that his failure to answer was due to fraud, accident,
mistake or excusable negligence and that he has a meritorious
defense. In such case, the order of default may be set aside on
such terms and conditions as the judge may impose in the
interest of justice.
REMEDIES FROM THE ORDER OF DEFAULT
a) Before judgment
b) After judgment,
c) After the decision has become final and
executory.
BEFORE THE DECISION
Party in default can:
a. File a motion to set aside the default order, AND
b. He should indicate in his motion his reason/s why he
was not able to submit his answer within the time
given.
If it is due to Fraud, Accident, Mistake or Excusable
negligence (FAME), the motion must alleged specifically the
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
circumstances that would constitute FAME. If the defendant
would just simply alleged that he was not able to file an answer
because of FAME and without mentioning the circumstances,
then the motion would be denied.
“FRAUD”
This refers to the insidious words used by the
adverse party that prevented the defendant from filing his
answer.
For Example:
If a case was filed against the defendant and the latter
went to the plaintiff and begged the plaintiff to give him
additional time which was agreed by the plaintiff. Then a month
later, the defendant received an order of default. The reason
why he was not able to file an answer was because he was
assured by the plaintiff that he will be given enough time.
“ACCIDENT”
Defendant had a heart attack or was victimized by a typhoon.
“MISTAKE”
The mistake is on the part of the defendant.
For Example:
Defendant begged that he will just pay and the
plaintiff agreed. He thought that he didn't have to answer the
plaintiff. Defendant mistakenly believed that he no longer has
to file an answer.
“Excusable negligence”
The negligence is on the part on the defendant. Negligence
must be excusable.
For Example:
He was not able to file an answer because the answer
he made was left to his secretary to be filed before the court.
However, the secretary forgot to file it.
What should be done if the defendant was not able to file
an answer due to FAME?
a. The defendant should file a motion narrating the
circumstances.
For example:
In case of accident, it should be specified as
to what kind of accident happened that prevented you
from filing an answer. Same with other grounds
b. Aside from these circumstances, you should allege in
your motion that you have a meritorious defense.
While it is true that you haven't filed an
answer because of an accident but if you have a non-
sense defense, then no use. You should show to the
court that you have a meritorious defense.
And you should allege that in your motion (FAME).
Aside from alleging (FAME) as the reason why you failed to file
your answer on time, you should also indicate your meritorious
defense. Your defense must be meritorious.
c. You should also execute an affidavit.
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The circumstances constituting (FAME) plus
your meritorious defense must be alleged in the
affidavit.
That affidavit is what we call as AFFIDAVIT
OF MERIT. Your Affidavit of Merit must be attached to
your motion. Aside from that, your motion must be
verified.
“Verification”
Verification is an affidavit stating that the movant has
read the allegations, caused the preparation and the
allegations therein are true and correct based on his personal
knowledge or authentic records.
If your motion is not verified or not accompanied by
an affidavit of merits or if your motion does not allege any
circumstances, the motion will be denied.
Whenever we talk about FAME, these 4 requisites
should be present: [TN]
1. accompanied by affidavit of merit;
2. meritorious defense
3. verification
4. FAME
That is the remedy if the court has not yet rendered a decision.
For example:
If the reason why you were not able to file an answer
was not because of FAME, is there a need for an affidavit of
merit? i.e., you were not served with summons.
 If there is no summons served on you, then the order
of default as well as the decision is VOID because the
court has no jurisdiction over the case.
o You can file a motion to set aside the
default order on the ground of lack or
improper service of summons. If that is
the ground, then there is no need to attach
an affidavit of merits.
--- 00 ---
AFTER JUDGMENT BUT YET FINAL AND EXECUTORY
If the court has already rendered jurisdiction which
has not become final and executory, the aggrieved party may:
a. File a motion for new trial under Rule 37 or
b. File an Appeal.
--- 00 ---
AFTER THE DECISION HAS BECOME FINAL AND
EXECUTORY
If the decision has already become final and
executory, the remedies are:
a. Petition for Relief under Rule 38.
b. Petition for Certiorari if the judgment issued by the
court is improper or the court has acted grave abuse
of discretion amounting to lack or excess of
jurisdiction.
c. Annulment of judgment under Rule 47. Because if the
court does not acquire jurisdiction, example no proper
service of summons, the court does not have
jurisdiction over the person of the defendant so the
judgment shall be annulled under Rule 47.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
Read:
Gomez vs Montalban March 14, 2008
Lina v. Court of Appeals
The two cases enumerate the remedies available to a
party declared in default:
--- 00 ---
a) The defendant in default may, at any time after
discovery thereof and before judgment, file a motion,
under oath, to set aside the order of default on the
ground that his failure to answer was due to fraud,
accident, mistake or excusable negligence, and that
he has a meritorious defense (Sec. 3, Rule 18 [now
Sec. 3(b), Rule 9]);
b) If the judgment has already been rendered when the
defendant discovered the default, but before the same
has become final and executory, he may file a motion
for new trial under Section 1 (a) of Rule 37;
c) If the defendant discovered the default after the
judgment has become final and executory, he may file
a petition for relief under Section 2 [now Section 1] of
Rule 38; and
d) He may also appeal from the judgment rendered
against him as contrary to the evidence or to the law,
even if no petition to set aside the order of default has
been presented by him (Sec. 2, Rule 41).
In addition, and as this Court earlier mentioned, a
petition for certiorari to declare the nullity of a judgment by
default is also available if the trial court improperly declared a
party in default, or even if the trial court properly declared a
party in default, if grave abuse of discretion attended such
declaration.
[Jude D]
I had this case before. The client approached me,
when I studied his case I found out that the summons was
served through “habal-habal” driver, so there was improper
service of summons. So, we filed petition for certiorari to
declare the decision void.
--- 00 ---
Effect of partial default
(c) Effect of partial default. — When a pleading asserting a
claim states a common cause of action against several
defending parties, some of whom answer and the others fail to
do so, the court shall try the case against all upon the answers
thus filed and render judgment upon the evidence presented.
For Example:
Mr. X filed against D and E for collection of money as
solidary debtors. It was only Mr. D who answered. Mr E was
declared in default. So the court will try and hear the case
based only on the answer of Mr D.
If same common cause of action
When the defendants are sued under the same
common cause of action, and they have common defense, the
answer filed by the answering defendant will inure to the
benefit of the non-answering defendant.
Read:
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As discussed by: Judge Debalucos
 Heirs of Manguiat et al vs CA August 20, 2008
 Lim Tanhu vs Ramolete August 29, 1975
Extent of relief to be awarded
(d) Extent of relief to be awarded. — A judgment rendered
against a party in default shall not exceed the amount or be
different in kind from that prayed for nor award unliquidated
damages.
So the court cannot give more than what is asked for.
The court cannot also award unliquidated damages such as
moral and exemplary damages.
Where no defaults allowed
(e) Where no defaults allowed. — If the defending party in an
action for annulment or declaration of nullity of marriage or for
legal separation fails to answer, the court shall order the
prosecuting attorney to investigate whether or not a collusion
between the parties exists, and if there is no collusion, to
intervene for the State in order to see to it that the evidence
submitted is not fabricated.
Cases that the court cannot award default order,
cases such:
a) Annulment of Marriage
b) Legal separation.
RULE 10
Amended and Supplemental Pleadings
SEC. 1
Amendments in general
Pleadings may be amended by adding or striking out
an allegation or the name of any party, or by correcting a
mistake in the name of a party or a mistaken or inadequate
allegation or description in any other respect, so that the actual
merits of the controversy may speedily be determined, without
regard to technicalities, and in the most expeditious and
inexpensive manner.
Amendment is any change in your pleading.
How to indicate your amendment?
Your pleading shall be changed to Amended complaint,
Amended reply, etc.
What is the effect of your amended pleadings?
SEC. 8
Effect of amended pleadings
An amended pleading supersedes the pleading that it
amends. However, admissions in superseded pleadings may
be received in evidence against the pleader, and claims or
defenses alleged therein not incorporated in the amended
pleading shall be deemed waived.
 Make some indications like underline it or make it
bold.
 A prescriptive period is interrupted only upon the filing
of amended complaint if there is new cause of action
introduced. But if there is no new cause of action
introduced, the prescriptive period is deemed
interrupted upon the filing of the original.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
Amendment can be a matter of right or discretion upon the
court.
SEC. 2
Amendments as a matter of right
A party may amend his pleading once as a matter of
right at any time before a responsive pleading is served or, in
the case of a reply, at any time within ten (10) days after it is
served.
When is amendment a matter of right?
 As to plaintiff, it is before service of answer because
answer is a responsive pleading to the complaint.
 As to defendant, it is before filing of the reply by the
plaintiff. The responsive pleading is the reply.
Answer to Counterclaim is the responsive pleading of
counterclaim.
For Example:
Defendant obtained a loan. P demanded payment
before the loan became due. D refused. P filed a case but it
was before the due date. D filed motion to dismiss for failure to
state cause of action. While motion to dismiss was pending, P
filed an amended complaint alleging that the loan has already
become due.
Should the court admit the amended complaint?
No. When the case is filed prematurely, the same is
dismissible because there is failure to state the cause of
action, amendment is not proper when the purpose is to cure
the complaint which fails to state cause of action because of
prematurity [Swagman Hotels vs CA April 8, 2005]
A complaint whose cause of action has not yet
accrued cannot be cured or remedied by an amended or
supplemental pleading alleging the existence or accrual of a
cause of action while the case is pending. Such an action is
prematurely brought and is, therefore, a groundless suit, which
should be dismissed by the court upon proper motion
seasonably filed by the defendant. The underlying reason for
this rule is that a person should not be summoned before the
public tribunals to answer for complaints which are immature.
Also amendment cannot be done to confer jurisdiction
on the court.
For Example:
A case filed before RTC and the amount is only
200,000, the court has no jurisdiction. The plaintiff amended
the complaint to change the amount to confer jurisdiction on
the court. The same cannot be done because the court has no
jurisdiction over the case [Santi vs. Claraval GR No. 173915
Feb. 22, 2010]
While it is a basic jurisprudential principle that an
amendment cannot be allowed when the court has no
jurisdiction over the original complaint and the purpose of the
amendment is to confer jurisdiction on the court, here, the RTC
clearly had jurisdiction over the original complaint and
amendment of the complaint was then still a matter of right.
LIMITATIONS TO THE LIBERAL POLICY IN AMENDMENTS
TO PLEADINGS
When can the court refuse to allow the amendment and when
can you validly oppose it?
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1) When the amendment is for the purpose of making
the complaint confer jurisdiction upon the court
(Rosario vs. Carangdang, 96 Phil. 845);
2) When the amendment is to delay the action (Section
3);
3) When the amendment is for the purpose of curing a
premature or non-existing cause of action
(Limpangco vs. Mercado, 10 Phil. 508; Wong vs.
Yatco, 99 Phil. 791)
If the pleading is a REPLY, anytime within 10 days
after it is served
--- 00 ---
Q: [BAR QUESTION 2005] LACK OF JURISDICTION
On May 12, 2005, the plaintiff filed a complaint in the
RTC for collection of sum of money in the amount of P250,
000. The defendant filed a motion to dismiss the complaint on
the ground that the court has no jurisdiction over the action
since the amount falls within the exclusive jurisdiction of the
first level court, before the court could resolve the motion, the
plaintiff without leave of court, amended his complaint to allege
a new cause of action consisting the inclusion of an additional
amount of P200, 000 and hereby increasing the amount to
P450, 000.
Now plaintiff filed an opposition to the motion of the defendant.
Suggested Answer:
The motion to dismiss should be denied. The plaintiff
is entitled to amend his complaint as a matter of right before a
responsive pleading is served, even if there is a pending
motion to dismiss. The rule that a complaint cannot be
amended in order to confer jurisdiction, where the court has no
jurisdiction, applies only to an amendment made after the
responsive pleading has been served.
TN!
 A complaint cannot be amended in order to confer
jurisdiction
 If BEFORE a responsive pleading is filed – the rule
does not apply
 If AFTER a responsive pleading is filed – the rule
applies
If the court has no jurisdiction, the only power the
court has is to dismiss the case. Amendment cannot be
allowed if the purpose is to confer jurisdiction, because in the
first place, the court has no jurisdiction and it has no power to
entertain the case for lack of jurisdiction.
CASE: SANTI VS CLARAVALL
In the book of Dean Riano, he commented that:
amendment can be allowed even if the court does not have
jurisdiction over the case if the purpose of the amendment is to
confer jurisdiction provided that a responsive pleading has not
yet been filed.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
The problem here is that this is only the Dean’s
opinion and he did not cited any case, but in that 2005 bar
question, they cited an old case, GUMABAY VS BARALI 77
SCRA 258
SEC. 3
Amendments by leave of court
Except as provided in the next preceding section,
substantial amendments may be made only upon leave of
court. But such leave may be refused if it appears to the court
that the motion was made with intent to delay. Orders of the
court upon the matters provided in this section shall be made
upon motion filed in court, and after notice to the adverse
party, and an opportunity to be heard.
“Except as provided” meaning after a responsive pleading is
filed, leave of court should be secured first before an
amendment could be done, except when the amendment
merely refers to a FORMAL AMENDMENT which can be done
even if without leave of court even after the responsive
pleading has been filed.
SEC. 4
Formal amendments
A defect in the designation of the parties and other
clearly clerical or typographical errors may be summarily
corrected by the court at any stage of the action, at its initiative
or on motion, provided no prejudice is caused thereby to the
adverse party
“Formal Amendment”
This refers to amendment to correct clerical errors,
typographical errors, which can be done even if without leave
of court, but any amendment done more than clerical errors it
requires leave of court.
Amendment could be refused if the purpose is just to
delay the proceeding.
For Example:
The plaintiff wanted to amend his complaint and the
trial is almost over, it has been 10 years since the trial is
pending, and now you suddenly wanted to amend your
complaint. The court will not allow you to do so since it is
clearly a way to delay the proceedings. The adverse party will
also file his amended answer. It’s like back to square one.
Amendment is not proper and should be denied if the
purpose is just to delay the proceedings.
SEC. 5
Amendment to conform to or authorize presentation of
evidence
When issues not raised by the pleadings are tried with
the express or implied consent of the parties, they shall be
treated in all respects as if they had been raised in the
pleadings. Such amendment of the pleadings as may be
necessary to cause them to conform to the evidence and to
raise these issues may be made upon motion of any party at
any time, even after judgment; but failure to amend does not
affect the result of the trial of these issues. If evidence is
objected to at the trial on the ground that it is not within the
issues made by the pleadings, the court may allow the
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pleadings to be amended and shall do so with liberality if the
presentation of the merits of the action and the ends of
substantial justice will be subserved thereby. The court may
grant a continuance to enable the amendment to be made.
This is an amendment to conform to or authorize
presentation of evidence.
Be careful with Section 5 because this refers to an
amendment which intends to conform to or authorize
presentation of evidence.
For Example:
Plaintiff filed a complaint, in his complaint there is no
allegation that he made a demand before filing a case in court.
In a case for collection of sum of money, demand is required
before you can file a case in court because if you filed it
without the necessary demand, the same could be dismissed
for failure to state a cause of action.
That is stated in your obligations and contract, that
demand is needed before resorting to a court action.
Suppose it was not alleged, that there was a demand,
but it was not alleged in the complaint, the defendant did not
notice it, so during trial, the case is suppose to be dismissible,
but the defendant did not notice it and since he did not notice
it, he did not file a motion to dismiss.
Q:
During the presentation of evidence, the plaintiff presented
the demand letter, now the defendant again did not object,
what will happen now to the complaint?
A:
The complaint will now be deemed amended to conform to
the evidence presented.
That is the tenor of section 5 rule 10.
When issues not raised by the pleadings are tried with
the express or implied consent of the parties, they shall be
treated in all respects as if they had been raised in the
pleadings. Such amendment of the pleadings as may be
necessary to cause them to conform to the evidence and to
raise these issues may be made upon motion of any party at
any time, even after judgment.
Q:
Suppose during the trial, the defendant objected to the
presentation of the demand letter, what will happen?
A:
The plaintiff can file a motion to allow him to amend his
complaint. If there is no objection the complaint is deemed
amended, if there is objection the court may allow the
amendment even if after judgment.
The parties should be vigilant, in order to object at the
earliest possible time.
What do you mean by supplemental pleadings?
SEC. 6
Supplemental pleadings
Upon motion of a party the court may, upon reasonable
notice and upon such terms as are just, permit him to serve a
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
supplemental pleading setting forth transactions, occurrences
or events which have happened since the date of the pleading
sought to be supplemented. The adverse party may plead
thereto within ten (10) days from notice of the order admitting
the supplemental pleading
This means event that occurred after the filing of the pleading.
What is the difference between an amendment and a
supplement?
 AMENDMENT – supersedes the original pleading
 SUPPLEMENTAL PLEADING – does not result to
the withdrawal of the original pleading, it shall be
considered as a supplement, an additional to the
original pleading.
For Example:
Defendant borrows an amount of P1M payable in 10
monthly installments, when the first monthly installment
became due, the plaintiff now can file a case to collect the first
installment. While the case is pending, the second installment
became due, what will the plaintiff do?
The plaintiff will file a supplemental complaint, or he
can file a separate complaint because the second installment
constitutes another cause of action, the plaintiff has two
options, whether he will file a supplemental complaint or a
separate complaint.
The first complaint will not be dismiss unlike in the
amendment, the original is supersedes.
SEC. 7
Filing of amended pleadings
When any pleading is amended, a new copy of the
entire pleading, incorporating the amendments, which shall be
indicated by appropriate marks, shall be filed.
SEC. 8
Effect of amended pleadings
An amended pleading supersedes the pleading that it
amends. However, admissions in superseded pleadings may
be received in evidence against the pleader; and claims or
defenses alleged therein not incorporated in the amended
pleading shall be deemed waived.
Admissions in superseded pleadings may be received
in evidence against the pleader. If you have admissions that
the adverse party can use, they can be used against you.
How will the adverse party use it?
They will present it as evidence during trial.
RULE 11
When to File Responsive Pleadings
Sec. 1
Answer to the complaint.
The defendant shall file his answer to the complaint
within fifteen (15) days after service of summons, unless a
different period is fixed by the court.
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Sec. 2
Answer of a defendant foreign private juridical entity.
Where the defendant is a foreign private juridical
entity and service of summons is made on the government
official designated by law to receive the same, the answer shall
be filed within thirty (30) days after receipt of summons by such
entity.
TN!
 15 days – Defendant [Ordinary Period]
 30 days – Defendant is a Foreign private juridical
entity
 60 days – when the complaint is serve through
publication
SEC. 3
Answer to amended complaint
Where the plaintiff files an amended complaint as a
matter of right, the defendant shall answer the same within
fifteen (l5) days after being served with a copy thereof.
Where its filing is not a matter of right, the defendant
shall answer the amended complaint within ten (10) days from
notice of the order admitting the same. An answer earlier filed
may serve as the answer to the amended complaint if no new
answer is filed.
This Rule shall apply to the answer to an amended
counterclaim, amended cross-claim, amended third (fourth,
etc.) party complaint, and amended complaint-in-intervention.
SEC. 4
Answer to counterclaim or cross-claim
A counterclaim or cross-claim must be answered
within ten (10) days from service.
TN!
 Compulsory counterclaim or cross claim need not be
answered, it is only permissive counter claim that
has to be answered.
 Because if a compulsory counterclaim or cross claim
is not answered they are deemed controverted
SEC. 5
Answer to third (fourth, etc.)- party complaint.
The time to answer a third (fourth, etc.) party
complaint shall be governed by the same rule as the answer to
the complaint.
Same rule to the answer in a complaint.
SEC. 6
Reply
A reply may be filed within ten (10) days from service
of the pleading responded to.
When is amendment of a reply a matter of right?
It is matter of right within 10 days.
TN!
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
 Filing of reply is not compulsory, if there is no reply,
only matters alleged in the answer are deemed
controverted
 If the answer is based on an actionable document
reply is compulsory. Because if the answer is based
on an actionable document and there is no reply, it is
deemed admitted.
How about answer to supplemental complaint?
SEC. 7
Answer to supplemental complaint
A supplemental complaint may be answered within
ten (10) days from notice of the order admitting the same,
unless a different period is fixed by the court. The answer to
the complaint shall serve as the answer to the supplemental
complaint if no new or supplemental answer is filed.
The same rule applies as with amended complaint.
If there is no supplemental answer filed, the original
answer shall be considered the answer to the supplemental
complaint.
SEC. 8
Existing counterclaim or cross-claim
A compulsory counterclaim or a cross-claim that a
defending party has at the time he files his answer shall be
contained therein.
As what we have said Compulsory counterclaim or cross claim
must be alleged in the answer, if not, they are deemed waived.
What about if the supposed compulsory counter claim is
not yet due at the time when the answer is filed?
If it is still inexistent that is not a compulsory counter claim,
it is permissive.
Now, under section 9,
SEC. 9
Counterclaim or cross-claim arising after answer
A counterclaim or a cross-claim which either matured
or was acquired by a party after serving his pleading may, with
the permission of the court, be presented as a counterclaim or
a cross-claim by supplemental pleading before judgment.
The same with omitted counter claim or cross claim
through oversight or inadvertent, may with leave of court may
be set up as counter claim or cross claim by an amendment
before judgment.
What is the remedy if a party, for example the defendant, if
there is a difficulty in filing his answer on time?
Motion for extension of time to file an answer
But take note that this motion must be filed before the
lapse of the 15 day period. So it could be on the 15 th day or
before, because if you file it on the 16th day, you don’t have
any time to extend.
Secondly, do not expect that that this motion is
automatically granted by the court, although, usually it is
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 REMEDIAL LAW REVIEW
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granted by the court, but do not wait for the ruling of the court,
submit it immediately.
The court may also, upon like terms, allow an answer
or other pleading to be filed after the time fixed by these Rules.
As I was saying earlier that before the issuance of the
order, the defending party may thought that they are still
allowed to file an answer
CASE: PARAMOUNT INSURANCE CORP VS A.C.
ORDONEZ CORP, AUGUST 6, 2008.
-- 00 –
June 27, 2016
(Last time we talked about amendment to conform to
presentation of evidence)
[SEC.5 Amendment to conform to or authorize presentation of
evidence
When issues not raised by the pleadings are tried with
the express or implied consent of the parties they shall be
treated in all respects as if they had been raised in the
pleadings. Such amendment of the pleadings as may be
necessary to cause them to conform to the evidence and to
raise these issues may be made upon motion of any party at
any time, even after judgment; but failure to amend does not
effect the result of the trial of these issues. If evidence is
objected to at the trial on the ground that it is not within the
issues made by the pleadings, the court may allow the
pleadings to be amended and shall do so with liberality if the
presentation of the merits of the action and the ends of
substantial justice will be subserved thereby. The court may
grant a continuance to enable the amendment to be made.]
 During the trial, only those issues which are raised in
the pleadings maybe subject to presentation of
evidence.
 The issues referred are those which was not
admitted.
If there are issues brought out in the trial but not
raised in the pleading, the pleading are deemed amended in
order to conform to the evidence presented during trial if the
presentation of evidence was not objected by the adverse
party.
If the adverse party objected to the presentation of
evidence because it tends to prove issues that was not raised
in the pleading/s, the court may allow the concerned party to
amend his pleading. In other words, during the time of the trial
(Judge D: Put in mind, Trial = Presentation of evidence), if
there is evidence presented that would tend to prove a fact that
was not raised in the pleading i.e. complaint or answer, and the
adverse party did not object, the pleadings of such party is
deemed amended to conform to the evidence presented.
If the adverse party objected to the presentation of
evidence as it is irrelevant because such evidence was not
alleged in the pleading, the court may direct the concerned
party to amend his pleading (complaint/answer) before he can
be allowed to present the evidence [Mercadel vs. DBP, 332
SCRA 82] Remember the case of Suagman hotel, it was about
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
the filing of premature complaint, if the complaint filed states no
cause of action because it was filed prematurely, Sec. 5 will
not apply as there is nothing to amend or cure because there is
no cause of action. Sec.5 finds application when there is a
cause of action but had been omitted and not when there is no
cause of action because of prematurity.
[Summary]
 As a rule, only issues raised in the pleading could be
subject to presentation of evidence
 If a party present evidence which tends to prove
matters not alleged in the pleading
o If there is no objection (express or implied) –
the pleading is automatically deemed
amended to conform to the evidence
presented provided that the cause of action
is not premature
o If there is objection, the court may direct the
party to amend his pleading to conform to
the evidence
Rule 11
Filing of Responsive pleading
(Judge D: A matter of reading/memorizing/ take note of the
period)
Rule 12
Bill of Particulars
 Bill – means a list
 The purpose is to make particular or definite the
ultimate facts in the pleading.
 This presupposes that there is ambiguous or vague
allegation in the pleading.
 The solution is to file a Motion for Bill of Particular.
 A motion is a request addressed to the court. you are
asking the court directing that party to make the
allegations more specific/particular so that the movant
can answer or reply properly.
For Example:
A complaint for annulment of marriage, the
plaintiff alleges that her marriage with the defendant is
voidable on the ground of fraud. There is no allegation
as to the circumstances what makes it fraud. There is
no statement as to the particular act of the defendant
which makes it void. The statement that the defendant
committed act constituting fraud is vague, so in order
for the defendant to make an intelligent answer, the
complainant needs to make her allegations more
definite or particular. That is the function of the bill of
particular. [Motion for Bill of Particular] The motion
should be filed to make more definite ultimate facts
and not evidentiary facts.
SEC.1
When applied for; purpose
Before responding to a pleading, a party may move
for a definite statement or for a bill of particulars of any matter
which is not averted with sufficient definiteness or particularity
to enable him properly to prepare his responsive pleading. If
the pleading is a reply, the motion must be filed within ten (10)
days from service thereof. Such motion shall point out the
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defects complained of, the paragraphs wherein they are
contained, and the details desired.
When should the motion for the Bill of Particulars be filed?
It should be filed before responding the pleadings.
The filing is for him to intelligently respond to the
pleading. A party may move for a definite statement or a bill of
particular of any matter which is not averred with sufficient
particularity to enable him to prepare his responsive pleading.
If the pleading is a reply, the motion should be filed within
the 10 days from service thereof.
Such motion as it requires a more particular allegation, it
should point out the defects complaint of, the paragraph to
which they are contained and the details desired.
SEC.2
Action by the court
Upon filing of the motion, it shall be brought to the
attention of the judge and the judge then may deny it outright if
there is no merit to the motion or he can set it for hearing and
allow the parties to argue.
SEC.3
Compliance with order
If the motion is granted either in whole or in part, the
court would then direct the parties concerned to make more
particular the allegations pointed to within 10 days from receipt
of order unless a different period is allowed by the court. The
bill of particular or a more definite statement as required may
be filed in a separate or an amended pleading serving copy
thereof to the adverse party. in other words, if the plaintiff is
required to make more definite the allegation is his complaint,
then necessarily, he has to amend his complaint or if not he
can make a separate statement or pleading alleging stating
with particularity the allegations pointed to as vague.
The filing of the motion of bill of particular is not
available only to the defendant. The plaintiff may likewise file
the motion if he finds vague allegations in the answer.
SEC.4
Effect of non-compliance
If the order is not obeyed, or in case of insufficient
compliance therewith, the court may order the striking out of
the pleading or the portions thereof to which the order was
directed or make such other order as it deems just.
Effect if the party directed to make the allegation in his
pleading more particular failed to comply with the order of
the court
a. Plaintiff – failure would cause the dismissal of the
action
b. Defendant – failure would cause the striking out of
the record of the answer failed or the portion thereof
SEC.5
Stay of period to file responsive pleading
After service of the bill of particulars or of a more
definite pleading, or after notice of denial of his motion, the
moving party may file his responsive pleading within the period
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
to which he was entitled at the time of filing his motion, which
shall not be less than five (5) days in any event.
Effect of filing of motion to the period to file answer/reply
The filing of the motion for bill of particular would be
interrupted and the party filing would have the remaining period
to submit the responsive pleading but the remaining period
should not be shorter than 5 days.
For Example:
You filed a motion for bill of particulars asking the
plaintiff to make more definite the allegations in the complaint
on the 14th day because when you received the complaint you
had difficulty understanding the same and after 2 weeks still,
you don’t understand the complaint. The court denied your
motion because according to it, the allegation is not vague and
is definite to enable the defendant to file an intelligent
responsive pleading. So, how many days are left for you to file
the responsive pleading? The answer is 5 days. There is an
automatic extension.
Do not be confused with the Neypes ruling because
the same is applicable only when there already is a decision.
There is no decision yet in this case.
SEC.6
Bill a part of pleading
A bill of particulars becomes part of the pleading for
which it is intended.
For you to understand better, we will jump to Rule 14
Rule 14
Summons
 This rule tells us the service of summons
 Summons – Singular; Summonses – Plural
Summons is an order coming from the court requiring the
defendant to file his answer to the complaint or the petition.
There are two purpose of serving summons:
1. To acquire jurisdiction over the person of the
defendant
2. To notify him that a case has been filed against him
so that he may be given an opportunity to be heard of
the claim against him [Sagana vs. Francisco – 602
SCRA 184]
When is it issued?
SEC.1
Clerk to issue summons
Upon the filing of the complaint and the payment of
the requisite legal fees, the clerk of court shall forthwith issue
the corresponding summons to the defendants.
What are the Contents?
SEC.2
Contents
The summons shall be directed to the defendant,
signed by the clerk of court under seal and contain (a) the
name of the court and the names of the parties to the action;
(b) a direction that the defendant answer within the time fixed
by these Rules; (c) a notice that unless the defendant so
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answers plaintiff will take judgment by default and may be
granted the relief applied for.
A copy of the complaint and order for appointment of
guardian ad litem if any, shall be attached to the original and
each copy of the summons
The summons shall be directed to the defendant, signed by the
clerk of court under seal and contain
a) the name of the court and the names of the parties to
the action;
b) a direction that the defendant answer within the time
fixed by these Rules;
c) a notice that unless the defendant so answers plaintiff
will take judgment by default and may be granted the
relief applied for.
A copy of the complaint and order for appointment of
guardian ad litem if any shall be attached to the original and
each copy of the summons.
The one who will sign in behalf of the court would be the
Clerk of Court
What would be attached to the summons?
A copy of the complaint and original of the summons
Why is it important to attach the summons in the
complaint?
So that he will have knowledge on charge against him.
CASE:
The clerk of court or process server failed to attach a copy of
the complaint. What would be the effect?
The failure to attach a copy of the complaint to the
summons or a copy of the order appointing a guardian ad litem
are mere technical defects and the service of summon vest
jurisdiction to the court over the person of the defendant, who
may there be declared in default for failure to file answer.
(EUGENIA PAGALARAN v. VALENTIN BALLATAN, ET AL -
G.R. No. 4119 March 11, 1909)
Suppose the complaint has been amended, is there a need
to serve another summons?
 If there has been summons serve, there is no need.
 If no summons served yet, then there is a need to
serve summons; or
 Where the defendant has already been served with
summons on the original complaint BUT he has not
been declared in default - NEW summons must be
served on him if the complaint was AMENDED
because the original complaint is deemed withdrawn
due to said amendment. (Atkins Rule & Company
vs Domingo, 44 Phil 680)
Who will serve the summons?
SEC. 3
By whom served
The summons may be served by the sheriff, his
deputy, or other proper court officer, or for justifiable reasons
by any suitable person authorized by the court issuing the
summons
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
Not just any employee of the court. Only those court
employees wherein serving summons is part of his job.
The enumeration in Section 3 is EXCLUSIVE:
1. Sheriff
2. His deputy
3. “Other proper court officers” meaning employee of the
court where serving summons is part of his job such
as process server.
4. “For justifiable reasons, any suitable person
authorized by the court in issuing the summons”
persons who are not employees of the court or
employees of the court but serving summons is not
part of his job, there must be an ORDER of the court
directing him to serve summons.
For Example:
The process server retired or is absent, the
court interpreter or utility personnel may be authorized
to serve summons in addition to their regular duties
upon court order.
If defendant is member Abu Sayaf or living
on tip of Mt. Apo, court can authorize police to serve
summons to a member of Abu Sayaf.
Effect of non-compliance of serve of summons
If the court continues to trial, the proceeding shall be
void or the judgment shall be void because the court has not
acquired jurisdiction over the defendant.
SEC. 4
Return
When the service has been completed, the server
shall, within five (5) days therefrom, serve a copy of the return,
personally or by registered mail, to the plaintiff's counsel, and
shall return the summons to the clerk, who issued it,
accompanied by proof of service.
The copy the return shall be furnished to the plaintiff’s counsel.
Why is there a need to give the copy of the return to the
plaintiff’s counsel?
The reason is so that they can file the appropriate
motion to declare the defendant in default after the lapse of the
period given to file answer.
Example of Return:
“Respectfully return to the court with information that
the defendant cannot be served at the place
indicated in the complaint because he is nowhere to
be found in the place mentioned in the complaint.”
SEC. 5
Issuance of alias summons
If a summons is returned without being served on any
or all of the defendants, the server shall also serve a copy of
the return on the plaintiff's counsel, stating the reasons for the
failure of service, within five (5) days therefrom. In such a case,
or if the summons has been lost, the clerk, on demand of the
plaintiff, may issue an alias summons.
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As discussed by: Judge Debalucos
If a summons is returned and was not served, but defendant
appeared, what is issued? An alias summons may be issued.
--- 00 ---
Manner of Service of Summons
SEC. 6
Service in person on defendant
Whenever practicable, the summons shall be served
by handling a copy thereof to the defendant in person, or, if he
refuses to receive and sign for it, by tendering it to him
How to serve summons? [VERY IMPORTANT]
Whenever practicable, the summons shall be served by
handling a copy thereof to the defendant IN PERSON, or if he
refuses to receive and sign for it, by TENDERING IT TO HIM.
TN!
Your answer should be SERVICE IN PERSON NOT personal
service!
Improper service of summons
If service is not in accordance with the rules. The
consequence is the court does not acquire jurisdiction over the
person of the defendant BUT, the court may still acquire
jurisdiction over the defendant when he voluntarily appears in
court.
TN!
 Voluntary Appearance - not only limited by appearing
in person in court but also through filing of motions
such as Motion for Extension of Time. That is
considered voluntary appearance.
 The filing of a Motion of Bill of Particulars, even if
there was no service of summons or there was
improper service of summons, the same is considered
voluntary appearance.
For Example:
If defendant is not present at his house, but it was the
house helper who was there, Sheriff gave the summons
together with the complaint to the house helper and had her
signed that she receive the summons. Is there proper service
of summon?
NO! The summons was improperly served.
SEC. 7
Substituted service
If, for justifiable causes, the defendant cannot be
served within a reasonable time as provided in the preceding
section, service may be effected (a) by leaving copies of the
summons at the defendant's residence with some person of
suitable age and discretion then residing therein, or (b) by
leaving the copies at defendant's office or regular place of
business with some competent person in charge thereof.
For Example:
The sheriff went back to the defendant’s house for the
3rd time and it was still the house helper who was there. Sheriff
gave the summons to the house helper. Is there proper service
of summons?
YES, it is properly done. This is SUBSTITUTED
SERVICE OF SUMMONS.
TN!
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
 This is done if it would be impossible to make prompt
service in person on the defendant.
 Only for justifiable causes and defendant cannot be
served within reasonable time.
HOW?
a) Effected by leaving a copy of the summons at the
defendant’s residence with some person of suitable
age and discretion residing therein, OR
b) By leaving copies at the defendant’s office or regular
place of business with competent person in charge
thereof.
How to determine “Discretion”?
It refers the capability to know the importance of the
summons. Discretions means that the person to whom the
summons is given must know that the same must be given to
the defendant sooner.
When can substituted service of summons be availed of?
[LANDMARK CASE] MANUTOK vs CA 530 Phil 454
This has been reiterated in the case of [YUK LEE ONG vs CO,
G.R. No. 206653]
The Supreme Court held that in court proceedings, there
is no right more cherished than the right of every litigant to be
given an opportunity to be heard. This right begins at the very
moment that summons is served on the defendant. The
Supreme Court provided for its requisites:
Impossibility of Prompt Personal Service
There must be several attempts by the sheriff to
personally serve the summons within a reasonable period of
one month which eventually resulted in failure to prove
impossibility of prompt service.
"Several attempts" means at least three (3) tries, preferably
on at least two different dates. In addition, the sheriff must cite
why such efforts were unsuccessful. It is only then that
impossibility of service can be confirmed or accepted.
Specific Details in the Return
The sheriff must describe in the Return of Summons
the facts and circumstances surrounding the attempted
personal service. The efforts made to find the defendant and
the reasons behind the failure must be clearly narrated in detail
in the Return. The date and time of the attempts on personal
service, the inquiries made to locate the defendant, the name/s
of the occupants of the alleged residence or house of
defendant and all other acts done, though futile, to serve the
summons on defendant must be specified in the Return to
justify substituted service.
What must be stated in the Return?
 The facts and circumstances surrounding the
attempted personal service;
 The efforts made to find the defendant and the
reasons behind the failure must be clearly narrated in
details in the return;
 The date and time of the attempts on personal
service;
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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
 The inquiries made to locate the defendant;
 The name/s of the occupants of the alleged
residence;
 And all other acts done although futile.
All of the above must be specified in the return to justify
substituted service.
Procedure:
 Sheriff must state the name, determine if such person
found in the alleged residence is of legal age and let
that person sign;
 Determine the relationship of the recipient to the
defendant;
 Determine whether the said person comprehends the
significance of the receipt of the summons and his
duty to immediately deliver it to the defendant or at
least notify the defendant of said summons.
TN!
 In action in personam, jurisdiction over the person of
the defendant who does not voluntarily submits
himself to the authority of the court is necessary for
the court to validly try and decide the case through
personal service; If it is not possible that he be
personally served then through substituted service
(Rule 14, section 7)
 In an action strictly in personam, personal service to
the defendant is the preferred mode of service.
If he for justifiable reasons cannot be served with summons
within reasonable period then substituted service can be
resorted to.
See Belen v. Chavez March 26, 2008 “while substituted
service of summons is permitted, it is extraordinary in
character and in derogation of the usual method of service.”
CASE
FACTS:
Defendant lives in a subdivision where visitors cannot
freely get in without the residents’ prior consent or prior
instruction given to the subdivision’s security guard.
Defendant instructed the guard that no one can visit him
whenever he is out. So the sheriff could not reach the
defendant’s exact residence for the service of summons. After
several attempts, the sheriff decided to leave the summons
with the guard. The rules provide that substituted service must
be in the residence of the defendant or in the office. Defendant
in this case did not have an office or place of business.
ISSUE:
Was there proper substituted service?
See Robinson v. Miralles 510 SCRA
There was proper service of summons. Where the
summons was served upon the security guard of a subdivision
and where the defendant instructed the guard not to allow
anybody to proceed to her residence whenever she is out.”
Service in person on defendant
TN!
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
 The emphasis is on the DEFENDANT, it must be
received by the defendant himself, place of service is
not important.
For example:
You met the defendant in a restroom, and you serve
the summons. That’s a proper service of summons. (Wherever
the defendant is found)
Can summons be served through registered mail?
No. It should be served either service in person or
substituted service. Although in the later part of our discussion
you will learn that there is an instance where summons may be
served by registered mail. But actually service of summons
there is only complementary. (When service of summons is by
publication)
How is summons served upon an entity without juridical
personality?
SEC. 8
Service upon entity without juridical personality
When persons associated in an entity without juridical
personality are sued under the name by which they are
generally or commonly known, service may be effected upon
all the defendants by serving upon any one of them, or upon
the person in charge of the office or place of business
maintained in such name. But such service shall not bind
individually any person whose connection with the entity has,
upon due notice, been severed before the action was brought
 By serving summons on anyone of them.
TN!
 Once they filed their answer, they must enumerate all
the persons that consists the group.
--- 00 ---
What about if the defendant is a prisoner?
SEC. 9
Service upon prisoners
When the defendant is a prisoner confined in a jail or
institution, service shall be effected upon him by the officer
having the management of such jail or institution who is
deemed deputized as a special sheriff for said purpose
 Summons may be served on the jail warden. The jail
warden is deputized as a special sheriff for such
purpose.
For example:
You have a summons for Barok, but Barok is a
prisoner in CPDRC. To whom will you serve the summons?
You will serve it to the jail warden.
--- 00 ---
What if the defendant is a minor or insane?
SEC. 10
Service upon minors and incompetents
When the defendant is a minor, insane or otherwise
an incompetent, service shall be made upon him personally
and on his legal guardian if he has one, or if none his guardian
ad litem whose appointment shall be applied for by the plaintiff.
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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
In the case of a minor, service may also be made on his father
or mother.
 Summons shall be served on the minor/insane or
incompetent and the legal guardian.
--- 00 ---
SEC.11
Service upon domestic private juridical entity
When the defendant is a corporation, partnership or
association organized under the laws of the Philippines with a
juridical personality, service may be made on the president,
managing partner, general manager, corporate secretary,
treasurer, or in-house counsel.
TN!
 The enumeration in section 11, this is exclusive.
See Paramount Insurance Corporation v. A.C. Ordonez
Corp. August 6, 2008
[Judge D: Remember our discussion on who can sign the
certification of non-forum shopping]
In the case of a cooperative
Under the Cooperative Code of the Phils, every
cooperative is a juridical person, provided it is registered with
the Cooperative Development Authority. CDA [Cooperative
Development Authority] is the equivalent of SEC.
Under Section 51 of the Cooperative Code, every
cooperative shall have an official postal address, to which all
notices and communications shall be sent. Such address and
every change thereof shall be registered with the authority.
Here’s a case involving a cooperative.
FACTS:
Summons was served on the address of a cooperative,
but it was not received by any of its officers. However, it was
received by someone else who is not an officer of that
cooperative.
The defendant cooperative filed a motion to dismiss on the
ground that there was improper service of summons.
Plaintiff alleged that there was proper service of summons
citing section 51 of the Cooperative Code of the Phils.
ISSUE:
Was there proper service of summons?
HELD:
NO.
There was no proper service of summons.
The Cooperative Code cannot prevail over the provision of
the Constitution stating that the SC has the power to
promulgate rules regarding pleadings, practice and procedure.
SC held when it comes to procedure the Rules of Court
prevails even over a substantive law. To promulgate rules
regarding pleadings, practice and procedure is the exclusive
power of the SC.
See Cathay Metal Corporation v. Laguna West Multi-
purpose Cooperative Incorporated, GR 172204 July 2, 2014
--- 00 ---
SEC. 12
Service upon foreign private juridical entities
When the defendant is a foreign private juridical entity
which has transacted business in the Philippines, service may
be made on its resident agent designated in accordance with
law for that purpose, or, if there be no such agent, on the
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
government official designated by law to that effect, or on any
of its officers or agents within the Philippines
Remember your study of the Corporation Code. Under the
Corporation Code, even if the corporation had already been
dissolved, it can still sue and be sued.
In one case, where the defendant is still existing as a
corporation when the cause of action accrued summons may
still be properly served on it even if at the time of the issuance
and receipt of summons it had already been dissolved.
Defendant Corporation is subject to suit even if dissolved as
contemplated in section 122 of the Corporation Code.
See Rebollido v CA GR no. 81123 February 28, 1989
Before foreign private juridical entity may engaged in
business here in the Phils, they need to secure a license first.
One of the requirements before issuing a license is that the
foreign entity must have a local agent or local
representative. There must be a local agent authorized to
receive summons and processes in all legal proceedings.
Under Sec. 12, it provides that when the defendant is
a foreign private juridical entity which has transacted business
in the Philippines, service may be made on its resident agent
designated in accordance with law for that purpose
If there was no such resident agent, service is on the
government official designated by law to that effect or on any
of its officers or agents within the Philippines.
“Government officials designated by law”
 If the foreign entity is a bank - service is upon the
BSP (Bangko Sentral ng Pilipinas)
 If it’s a foreign insurance company - then service is on
the Insurance Commission.
 If it’s not a bank and not an insurance company - SEC
(Securities and Exchange Commission) if they don’t
have a local agent.
Section 12 has been amended by A.M no. 11-3-6-SC,
March 15, 2011
So, the rule is:
SEC. 12
Service upon foreign private juridical entities
When the defendant is a foreign private juridical entity
which has transacted business in the Philippines, service may
be made on its resident agent designated in accordance with
law for that purpose, or, if there be no such agent, on the
government official designated by law to that effect, or on any
of its officers or agents within the Philippines.
If the foreign private juridical entity is not registered in
the Philippines or has no resident agent, service may, with
leave of court, be effected out of the Phils through any of the ff.
means:
a) By personal service coursed through the
appropriate court in the foreign country with
the assistance of the DFA;
b) By publication once in a newspaper of
general circulation in the country where the
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As discussed by: Judge Debalucos
defendant may be found and by serving a
copy of the summons and the court order by
registered mail at the last known address of
the defendant;
c) By facsimile or any recognized electronic
means that could generate proof of service
or;
d) By such other means as the court may in its
discretion direct.
--- 00 ---
If the foreign private juridical entity is not registered in the
Philippines or has no resident agent, service with leave of court
may be effected out of the Philippine through any of the ff.
means:
a. by personal service course through the appropriate
court in the foreign country with the assistance of
DFA;
b. By publication once in a newspaper of general
circulation and in the country where the defendant
may be found and by serving a copy of the summons
and the court order by registered mail at the last
known address of the defendant;
c. By facsimile or any recognized electronic means that
could generate proof of service.
[For now, aside for foreign juridical entity, electronic
service of summons is not yet acknowledged]
d. By such other means as the court may in its discretion
direct.
These are the amendments on Sec. 12, Rule 14.
--- 00 ---
As what we have said earlier, a foreign corporation
shall have the right to transact business in the Philippines after
it has obtained a license in accordance with the Corporation
Code.
Among the requirements for the issuance of license to
do business is the appointment of a resident agent authorized
to accept summons and processes in all legal proceedings.
Now, a foreign corporation actually doing business in
the Philippines with or without a license is amenable to the
process and jurisdiction of our local courts. If it has a license,
then summons to it will be served to the agent designated by it
for the purpose or otherwise in accordance with provision in
the Corporation Code. If it has no license and has no agent,
then service of summons on it will be made pursuant to Sec.
12, Rule 14.
--- 00 ---
Case: Global Business Holdings vs Surecomp Software
As a rule, unlicensed foreign non-resident
corporations doing business in the Philippines cannot file suits
in the Philippines.
A corporation has a legal status only within the state
or territory in which it was organized. For this reason, a
corporation organized in another country has no personality to
file suits in the Philippines. In order to subject a foreign
corporation doing business in the country to the jurisdiction of
our courts, it must acquire a license from the Securities and
Exchange Commission and appoint an agent for service of
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
process. Without such license, it cannot institute a suit in
the Philippines.
The exception to this rule is the DOCTRINE OF ESTOPPEL.
Global is estopped from challenging Surecomps capacity
to sue.
A foreign corporation doing business in
the Philippines without license may sue in Philippine courts a
Filipino citizen or a Philippine entity that had contracted with
and benefited from it. A party is estopped from challenging the
personality of a corporation after having acknowledged the
same by entering into a contract with it. The principle is applied
to prevent a person contracting with a foreign corporation from
later taking advantage of its noncompliance with the statutes,
chiefly in cases where such person has received the benefits
of the contract.
Due to Global’s merger with ABC and because it is
the surviving corporation, it is as if it was the one which
entered into contract with Surecomp. In the merger of two
existing corporations, one of the corporations survives and
continues the business, while the other is dissolved, and all its
rights, properties, and liabilities are acquired by the surviving
corporation. This is particularly true in this case. Based on the
findings of fact of the RTC, as affirmed by the CA, under the
terms of the merger or consolidation, Global assumed all the
liabilities and obligations of ABC as if it had incurred such
liabilities or obligations itself. In the same way, Global also has
the right to exercise all defenses, rights, privileges, and
counter-claims of every kind and nature which ABC may have
or invoke under the law. These findings of fact were never
contested by Global in any of its pleadings filed before this
Court.
--- 00 ---
Service of summons by another court
Service of summons on the defendant can be done in another
court.
For example:
A case was filed in the Cebu City against the
defendant, but the latter lives in Batanes. The clerk of
court in Cebu City may mail the summons to the court
in Batanes and he shall address it to the clerk of court
with a request that the Sheriff in Batanes will be the
one to serve the summons. It is as if the Sheriff in
Cebu City has served the summons in Batanes.
--- 00 ---
What about service on public corporation?
SEC.13
Service upon public corporations
When the defendant is the Republic of the
Philippines, service may be effected on the Solicitor General;
in case of a province, city or municipality, or like public
corporations, service may be effected on its executive head, or
on such other officer or officers as the law or the court may
direct.
TN!
 Whenever the defendant is the Republic of the
Philippines or any of the agencies of the Republic, the
summons shall be served to the Solicitor General
because the Solicitor General is the lawyer of the
government.
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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
For Example:
If you will sue the Bureau of Telecommunications,
summons shall be served to the Solicitor General.
What about if the defendant is the local government, such as
the mayor?
Summons can be served on the city/provincial legal office
because the city/provincial legal office is the lawyer of the city
or of the province.
--- 00 ---
Section 14 is about service of summons by publication.
SEC.14
Service upon defendant whose identity or whereabouts
are unknown
In any action where the defendant is designated as an
unknown owner, or the like, or whenever his whereabouts are
unknown and cannot be ascertained by diligent inquiry, service
may, by leave of court, be effected upon him by publication in a
newspaper of general circulation and in such places and for
such time as the court may order."
“Any action” could be:
a) In rem
b) Quasi in rem or
c) In personam.
This is what we call as CONSTRUCTIVE SERVICE OF
SUMMONS, because the summons is served by publication.
In what cases shall Section 14 apply?
 It is valid when the defendant is a resident of the
Philippines and his whereabouts is unknown.
 It will not apply if the defendant is not residing in the
Philippines, because Section 15 that will apply.
For Example:
If a case is filed against the defendant for collection of
sum of money then upon service of summons, he no longer
lives in his residence. How will your serve the summons?
Section 14 will apply. The plaintiff through his counsel
may file a motion to serve the summons on the defendant
by publication. This is what we call as service of summons by
publication.
Summons should be in a newspaper of general circulation and
for such places and time as the court may direct.
Any newspaper as long as it is a a newspaper of
general circulation. It is not necessary that the newspaper is a
national circulation. It could be of Cebu City only or Visayas
wide.
How many times?
Section 14 does not mention the times as to the
number of publication. It could be once, twice or thrice. It could
be once a week for three weeks. So that in case he fails to
read the 1st publication then he still has the chance to read the
succeeding publication.
For example:
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
The defendant now lives in Luzon, is there proper
service of summons if the summons is published in a
newspaper circulated in Cebu only?
Yes. Because the rules provide that it should be
published in a newspaper of general circulation.
TN!
 Whenever summons is served by publication, there
should always be a Complimentary service of
summons by registered mail.
Why is it called complimentary?
It is because you know that he no longer lives there but you
still send him the summons. The summons is served by
registered mail at his last known address.
What will happen if there is no summons by registered
mail?
The service of summons by publication is void. So it must be
coupled with service of summons by registered mail.
--- 00 ---
SEC. 15
Extraterritorial service
When the defendant does not reside and is not found
in the Philippines, and the action affects the personal status of
the plaintiff or relates to, or the subject of which is, property
within the Philippines, in which the defendant has or claims a
lien or interest, actual or contingent, or in which the relief
demanded consists, wholly or in part, in excluding the
defendant from any interest therein, or the property of the
defendant has been attached within the Philippines, service
may, by leave of court, be effected out of the Philippines by
personal service as under section 6; or by publication in a
newspaper of general circulation in such places and for such
time as the court may order, in which case a copy of the
summons and order of the court shall be sent by registered
mail to the last known address of the defendant, or in any other
manner the court may deem sufficient. Any order granting such
leave shall specify a reasonable time, which shall not be less
than sixty (60) days after notice, within which the defendant
must answer.
Section 15 is about extraterritorial service.
Extraterritorial is because the defendant is found outside the
Philippines. He is not residing in the Philippines and is not
found in the Philippines. He may be a tourist only.
For example:
He found a girlfriend here and he got her
impregnated. The defendant left the Philippines. Now,
the child files a case for recognition. How will the
summons be served on the defendant? Section 15
tells us the procedure. There are 3 modes of serving
summons extraterritorially.
Is a case for recognition affects your status?
Yes because you establish the fact of being the child
of the defendant.
Actions purely in personam, i.e., collection for a sum of money-
The court must be able to acquire jurisdiction over the person
of the defendant. If the defendant already lives abroad, how
will you serve the summons?
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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
 Convert the action into Action quasi in rem.
How will you convert a case that is purely in personam
into action quasi in rem?
Ask the Court to issue a writ of attachment if he has a
property left here and by so doing the action is now be
converted into action quasi in rem.
Remember that when the action is action in rem or quasi in
rem, jurisdiction over the person of the defendant is not
required because it is enough that the court has jurisdiction
over the res/thing. Nevertheless, service summons over the
person of the defendant would still be required by the Court for
compliance of the requirement of due process.
--- 00 ---
Two purpose of summons:
1. To acquire jurisdiction over the person of the
defendant and
2. To notify him regarding the filing of the case against
him
(That is the compliance of the requirement of due process
and to be heard on his defense).
Section 15 is only applicable on cases which are in rem or
quasi in rem. Cases affecting the status of the plaintiff or
cases wherein the interest of the defendant over the property
subject in a case is involved.
How should summons be served under Section 15?
There are 3 modes:
1. By personal service as under Section 6.
“Personal service” means by going to his present location.
How can it be done? It could be course through DFA or could
be through the Philippine Embassy. You can ask the court
there, to serve the summons by their sheriff.
2. Then another by publication in a newspaper in a
general circulation.
Case:
Defendant lives in the US. He said, how would I be able to
read the one published in a newspaper circulating only in the
Philippines? But SC held that there was proper service of
summons because the rules do not require that the publication
shall be in the country where the defendant is found or
residing. The rules merely require that summons may be
published in a newspaper of general circulation.
3. “or in any other manner the court may deem
sufficient” (Sec. 15)
So the court has discretion.
Case:
P filed action for recognition. Since he is poor, he
cannot afford service of summons outside the country. He
cannot also afford publication in the newspaper. He asked the
court to allow him to serve summons by registered mail. The
court agreed. Was there proper service of summons? YES,
because the rules say, summons may be served in any other
manner the court may deem sufficient [Cariaga Jr. vs. Malaya
143 SCRA 441]
--- 00 ---
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
Section 15 is one instance when the court has
jurisdiction to try the case although it has not acquired
jurisdiction over the defendant as long has it has jurisdiction
over the res.
The other instance is in the case of foreign corporation doing
business in the Philippines without license.
Read:
 Sahagun vs CA June 3,1991
 Citizens’ Surety vs Herrera 38 SCRA 369
 Habana v. Vamenta 33 SCRA 569
 Gomez vs CA 420 SCRA 98
In an action in rem or quasi in rem, jurisdiction over the
defendant is not required and the court acquires jurisdiction
over an action as long as it acquires jurisdiction over the res.
The purpose of summons in these actions is not the acquisition
of jurisdiction over the defendant but mainly to satisfy the
constitutional requirement of due process.
For Section 14:
Santos Jr vs PNOC Corporation Sept. 23, 2008
The present rule expressly states that summons by
publication applies in any action where the defendant is
designated as an unknown owner, or the like, or whenever his
whereabouts are unknown and cannot be ascertained by
diligent inquiry. Thus, it now applies to any action, whether in
personam, in rem or quasi in rem [Case of Valmonte vs CA
252 SCRA 92]
SEC. 16
Residents temporarily out of the Philippines
When any action is commenced against a defendant
who ordinarily resides within the Philippines, but who is
temporarily out of it, service may, by leave of court, be also
effected out of the Philippines, as under the preceding section.
Substituted service is the primary mode of service of
summons to residents temporarily out of the country.
[Montefalcon vs Vasquez June 17, 2008]
SEC. 17
Leave of court
Any application to the court under this Rule for leave
to effect service in any manner for which leave of court is
necessary shall be made by motion in writing, supported by
affidavit of the plaintiff or some person on his behalf, setting
forth the grounds for the application.
In filing a motion for service of summons by
publication, there should be a motion and the reason why the
summons shall be served by publication.
SEC.18
Proof of service
The proof of service of a summons shall be made in
writing by the server and shall set forth the manner, place, and
date of service; shall specify any papers which have been
served with the process and the name of the person who
received the same; and shall be sworn to when made by a
person other than a sheriff or his deputy.
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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
SEC. 19
Proof of service by publication
If the service has been made by publication, service
may be proved by the affidavit of the printer, his foreman or
principal clerk, or of the editor, business or advertising
manager, to which affidavit a copy of the publication shall be
attached and by an affidavit showing the deposit of a copy of
the summons and order for publication in the post office,
postage prepaid, directed to the defendant by registered mail
to his last known address.
 As to the proof of service by publication, the publisher
of the newspaper where you published the summons
shall execute an affidavit stating that on that dates, he
caused the publication of the summons together with
the complaint coupled with complementary service of
summons by registered mail.
 The person who deposited the mail containing the
summons and the complaint, with the post office, shall
together execute affidavit. It could be the sheriff or the
process server.
SEC. 20
Voluntary Appearance
The defendant's voluntary appearance in the action
shall be equivalent to service of summons. The inclusion in a
motion to dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant shall not be
deemed a voluntary appearance. (Judge D: We already
discussed this)
--- 00 ---
Let’s go back now to Rule 13.
So summons is issued by the court after the filing of
complaint. But as regards the successive pleadings that may
reach the court and as regards the other orders that may come
from the court served to the parties, it is Section 13 that will
govern. So summons has nothing to do with Section 13.
RULE 13
Filing and Service of Pleadings, Judgments and Other Papers
SEC. 1
Coverage
This Rule shall govern the filing of all pleadings and
other papers, as well as the service thereof, except those for
which a different mode of service is prescribed.
SEC. 2
Filing and service, defined
Filing is the act of presenting the pleading or other
paper to the clerk of court.
Service is the act of providing a party with a copy of
the pleading or paper concerned. If any party has appeared by
counsel, service upon him shall be made upon his counsel or
one of them, unless service upon the party himself is ordered
by the court. Where one counsel appears for several parties,
he shall only be entitled to one copy of any paper served upon
him by the opposite side.
 Filing that refers to the court while Service refers to
the adverse party or the counsel.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
 When a party is represented by a lawyer, the copy of
the motion or order of the court should be served with
the counsel not with the party itself because if the
defendant would furnish his answer to the plaintiff
himself and not with the plaintiff’s counsel, he might
be declared in default because it is a requirement that
before filing any motion to the court, you have to
furnish first a copy to the other party.
For Example:
A defendant would file a motion for bill of particulars,
before you file that in court, you have to prove first that you
have already give a copy of your motion to the plaintiff.
Another is if you will file your answer, before filing that
in court, you should give first the other party a copy. So you
serve a copy first to the other party before you file in court. Not
vice versa. The same with the plaintiff in filing a reply and
answer to the counterclaim.
TN!
Service to a party who is represented by a counsel is
INVALID. And service on the counsel is binding upon the
client.
For Example:
A copy of the answer is served to the plaintiff’s
counsel, but the counsel failed to file a reply and reply is
required because the defense is based on an actionable
document, now the failure of the plaintiff’s counsel to file a
reply will result an admission as to the genuineness and due
execution of the actionable document attached to the answer,
will bind the plaintiff.
GR: Negligence of the counsel is binding upon the client.
EXC: when the negligence of the counsel would cause so
much injustice on the part of the client and the client is not
negligent.
SEC. 3
Manner of filing
The filing of pleadings, appearances, motions,
notices, orders, judgments and all other papers shall be made
by presenting the original copies thereof, plainly indicated as
such, personally to the clerk of court or by sending them by
registered mail. In the first case, the clerk of court shall
endorse on the pleading the date and hour of filing. In the
second case, the date of the mailing of motions, pleadings, or
any other papers or payments or deposits, as shown by the
post office stamp on the envelope or the registry receipt, shall
be considered as the date of their filing, payment, or deposit in
court. The envelope shall be attached to the record of the
case.
How to file? You have two options, either:
a) Personal or
b) By registered mail.
“Personal filing” is by personally handing the copy of the
motion or pleading to the clerk of court.
If the motion or pleading is filed through a Registered Mail
It is the date of mailing and not the date actual
receipt shall be considered the date of filing. The post office is
considered an extension of the court. But if it is by ordinary
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mail or private courier like LBC, it should be the date of actual  Offer of
receipt shall be considered the date of filing in court. judgment
 Other similar
So, if you file with court without proof of service to the papers
other party a copy, the same shall be denied by the court. It
shall be considered a useless piece of paper.
How served? How served?
SEC. 4 a) By delivering a) By handing a copy
Papers required to be filed and served personally a copy to thereof to the defendant in
Every judgment, resolution, order, pleading the party or his person, or,
subsequent to the complaint, written motion, notice, counsel, or b) If he refuses to receive
appearance, demand, offer of judgment or similar papers shall b) By leaving it in his and sign for it, by
be filed with the court, and served upon the parties affected. office with his clerk tendering it to him.
or with a person
SEC. 5 having charge
Modes of service thereof.
Service of pleadings motions, notices, orders,
judgments and other papers shall be made either personally or If no person is found in
by mail. his office, or his office is
not known, or he has no
SEC. 6 office, then by leaving
Personal service the copy, between the
Service of the papers may be made by delivering hours of eight in the
personally a copy to the party or his counsel, or by leaving it in morning and six in the
his office with his clerk or with a person having charge thereof. evening, at the party's or
If no person is found in his office, or his office is not known, or counsel's residence, if
he has no office, then by leaving the copy, between the hours known, with a person of
of eight in the morning and six in the evening, at the party's or sufficient age and
counsel's residence, if known, with a person of sufficient age discretion then residing
and discretion then residing therein. therein.

“Received personally”
We discussed service in person in which it is
important that it should be the defendant himself shall
personally receive the summons. If the party is the husband, it
should be the husband who shall receive and not the wife
otherwise that is already a substituted service of summons.
TN!
 Personal service is different with service in person as
regards summons.
In Rule 14, Sec6, for instance, the husband is being
sued and now the sheriff serve the summons but instead to the
husband, he gave it to the wife, this is not service in person but
this is now substituted service. But look at Sec. 6 Rule 13. The
two provisions are different.
[VERY IMPORTANT]
SEC 6, RULE 13 SEC 6, RULE 14
Personal Service Service in Person on Defendant
Personal service is more on the place of service.
For Example
Case:
Take note that personal service includes all papers
coming from the court whether it is an order or decision. In this
case, the process server left the service in one of the floors in
a building because such buildings have a several floors and
the office of the counsel is located on the 9 th floor. For some
reasons, the process server just left the service of the decision
in the front desk or reception of the said building.
Was there a proper service of the decision rendered by the
court to the defendant’s counsel?
According to the Supreme Court in the case of PLDT vs
NLRC 128 scra 402, the answer is NO. The service was
invalid.
TN! Personal service, it is different from service in person.

What are being served? What is being served? SEC. 7

 Judgment  Summons/summonses Service by mail
 Resolution Service by registered mail shall be made by
 Orders depositing the copy in the office, in a sealed envelope, plainly
 Pleading addressed to the party or his counsel at his office, if known,
subsequent to otherwise at his residence, if known, with postage fully pre-
complaint paid, and with instructions to the postmaster to return the mail
 Written motion to the sender after ten (l0) days if undelivered. If no registry
 Notice service is available in the locality of either the sender or the
 Appearance addressee, service may be done by ordinary mail.
 Demand

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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
TN!
 In case of service of pleadings other than complaint,
the preferred mode is personal service.
 Service by mail can only be avail if personal service
cannot be availed of for reasonable grounds.
What are these reasonable grounds that you cannot personally
deliver it to the adverse party’s counsel?
Lack of staff, distance,
TN!
 The reason must be stated in the motion why
personal service is not availed, or why service by
mail was availed instead of personal service.
 You must state the reasons or explanations. Without
your explanations, the motions or pleadings filed are
considered not serve on the adverse party.
SEC. 8
Substituted service
If service of pleadings, motions, notices, resolutions,
orders and other papers cannot be made under the two
preceding sections, the office and place of residence of the
party or his counsel being unknown, service may be made by
delivering the copy to the clerk of court, with proof of failure
of both personal service and service by mail. The service is
complete at the time of such delivery.
For Example:
You furnish a copy to the adverse party via registered
mail, or personally but is not found there, the office of the
counsel was already close say temporary close for inventory,
and you did not know where the counsel lives.
How will you serve it?
According to Sec. 8 of Rule 13, you may serve it to
the clerk of court, this is what you call substituted service, but
you must present proof that there was failure of service either
by personal or registered mail.
What if the counsel changes his address and the court
rendered its decision and addressed it to the old address
of the counsel?
It is the duty of the counsel to notify the court
whenever he changes his address. If he fails to notify it, the
service by the court of the decision to his previous address is
considered valid.
[Judge D: We are talking here about decisions and orders
rendered by the court. This is different from motions and
pleadings coming from the other party]
Secondly, we learned a while ago that personal
service is preferred rather than registered mail but this is not
applicable to the court, this preference is applicable to the
parties.
Section 8 rule 13 was asked in the bar 2 years ago.
--- 00 ---
SEC. 9
Service of judgments, final orders or resolutions
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
Judgments, final orders or resolutions shall be served
either personally or by registered mail. When a party
summoned by publication has failed to appear in the action,
judgments, final orders or resolutions against him shall be
served upon him also by publication at the expense of the
prevailing party.
 This is from the court judgments, final orders and
resolutions.
 This can be served either personally or by registered
mail, there is no preference unlike in motions and
pleadings coming from the parties.
 If the summons and the complaint were serve thru
publication and during trial the defendants did not
appear, the decision is likewise serve thru publication
at the expense of the prevailing party.
What should be published, the entire decision or the dispositive
portion?
Regalado has an opinion that it is ok that it is only the
dispositive portion is published.
But there is still no decision from the SC that dispositive portion
is ok.
--- 00 ---
SEC. 10
Completeness of service
Personal service is complete upon actual delivery.
Service by ordinary mail is complete upon the expiration of ten
(10) days after mailing, unless the court otherwise provides.
Service by registered mail is complete upon actual receipt by
the addressee, or after five (5) days from the date he received
the first notice of the postmaster, whichever date is earlier.
 If personal service - it is complete upon actual
delivery.
 If service by an ordinary mail - it is complete upon the
expiration of ten (10) days after mailing, unless the
court otherwise provides.
 If by registered mail - Service by registered mail is
complete upon actual receipt by the addressee, or
after five (5) days from the date he received the first
notice of the postmaster, whichever date is earlier.
There are others who pick up the registered mail in the post
office, no problem with that. The problem here is when he did
not pick up the registered mail, what will happen?
The service is deemed complete after 5 days from the
first notice of the postmaster or whichever date is earlier,
because in a registered mail, you will have to pick them up.
SEC. 11
Priorities in modes of service and filing
Whenever practicable, the service and filing of
pleadings and other papers shall be done personally. Except
with respect to papers emanating from the court, a resort to
other modes must be accompanied by a written explanation
why the service or filing was not done personally. A violation of
this Rule may be cause to consider the paper as not filed.
[Already discussed]
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As discussed by: Judge Debalucos
Just take note of the last sentence because the
defendant may be declared in default.
SEC. 12
Proof of filing
The filing of a pleading or paper shall be proved by its
existence in the record of the case. If it is not in the record, but
is claimed to have been filed personally, the filing shall be
proved by the written or stamped acknowledgment of its filing
by the clerk of court on a copy of the same; if filed by
registered mail, by the registry receipt and by the affidavit of
the person who did the mailing, containing a full statement of
the date and place of depositing the mail in the post office in a
sealed envelope addressed to the court, with postage fully
prepaid, and with instructions to the postmaster to return the
mail to the sender after ten (10) days if not delivered.
What is your proof of filing? Say you file a motion for
reconsideration? What if your motion has been misplace by the
court? What will be your remedy? You now call the attention of
the court by filing a motion to rule on that motion. And the
court asks you what is your proof that you had already file your
motion?
a) In case the motion was filed personally:
It is the stamp on the motion that is a proof that it was
filed on that said date and time
 Filing of a pleading or paper shall be proved by its
existence in the record of the case.
 If it is not in the record, but is claimed to have been
filed personally the filing shall be proved by the written
or stamped acknowledgment of its filing by the clerk
of court on a copy of the same
b) If thru registered mail:
a. The registry receipt and
b. The affidavit of the one who mailed it
Actually in the lower court, this is not so strict about
the compliance of the affidavit, the attachment of the registry
receipt in the motion as a proof that you have furnished a copy
to the adverse party will be enough. But in the Court of
Appeals and in the Supreme Court, they are very strict on the
execution of the affidavit.
Who executes the “affidavit”?
The one who mailed it, if you are the one who mailed it then
you execute an affidavit. It should be the registry receipt and
the affidavit of the person who did the mailing.
SEC. 13
Proof of service
Proof of personal service shall consist of a written
admission of the party served, or the official return of the
server, or the affidavit of the party serving, containing a full
statement of the date, place and manner of service. If the
service is by ordinary mail, proof thereof shall consist of an
affidavit of the person mailing of facts showing compliance with
section 7 of this Rule. If service is made by registered mail,
proof shall be made by such affidavit and the registry receipt
issued by the mailing office. The registry return card shall be
filed immediately upon its receipt by the sender or in lieu
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
thereof the unclaimed letter together with the certified or sworn
copy of the notice given by the postmaster to the addressee.
What do you mean by service? It is the furnishing of a copy to
the adverse party.
Preferred mode: Personal
What is your proof that you had given a copy to the defendant
or adverse party?
 If thru personal service: The signature of the adverse
party’s counsel or the clerk of court
“Service by Registered Mail”
There are two 2 receipts that you should get
1) First: when you deposit you should have the registry
receipt
2) Second: And if you wanted to have a proof that it was
actually received then you should attach the Registry
Return Card attached to the motion or you file just in
case your service of your copies of motions or
pleadings will be questioned.
You should take note of this because if you fail to
observe the proper filing or service it will affect your case.
--- 00 ---
SEC. 14
Notice of Lis Pendens
In an action affecting the title or the right of
possession of real property, the plaintiff and the defendant,
when affirmative relief is claimed in his answer, may record in
the office of the registry of deeds of the province in which the
property is situated a notice of the pendency of the action. Said
notice shall contain the names of the parties and the object of
the action or defense, and a description of the property in that
province affected thereby. Only from the time of filing such
notice for record shall a purchaser, or encumbrancer of the
property affected thereby, be deemed to have constructive
notice of the pendency of the action, and only of its pendency
against the parties designated by their real names.
The notice of Lis Pendens hereinabove mentioned
may be cancelled only upon order of the court, after proper
showing that the notice is for the purpose of molesting the
adverse party, or that it is not necessary to protect the rights of
the party who caused it to be recorded
--- 00 ---
This provision has nothing to do with service of
pleading, motions or orders. This is all about notice of Lis
Pendens.
“Lis Pendens”
This is a notice regarding a about a pendency of a
case involving real property. In an action affecting the title or
the right of possession of real property, the plaintiff and the
defendant, when affirmative relief is claimed in his answer,
may record in the office of the registry of deeds of the province
in which the property is situated a notice of the pendency of the
action.
Notice of Lis Pendens is a notice to the whole world.
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For Example:
You have a parcel of land, allegedly
possessed by another person who is not the owner
because you are the owner thereof; you file a
recovery of possession. What would be the possible
remedy of the person who filed a case against with?
Probably the defendant will sell the property. What will
do so that the future buyer of the said parcel of land
will be bound by your claim?
You file a notice of Lis Pendens.
“Notice of Lis Pendens”
It means you simply write the registry of deeds to
annotate on the back of the title that the said parcel of land is
under a pending case, with the case number of the case, in
what branch filed and title of the case. Because if you do not
annotate it, the future buyer will not be bound by the result of
the case
--- 00 ---
For Example:
What if the papers are not yet ready, and then you are
afraid that the adverse party will sell it, and that you did not file
yet a case? What will do?
You file a Notice of Adverse claim. It is only good for 30
days. This is what you will file in the registry of deeds if you did
not yet filed a case.
Is there a need for a court order to cause the
annotation of your pending case? No more because the
purpose is only for annotation. Just make a written request to
the office of the registry of deeds.
--- 00 ---
How will you cancel the Notice of Lis Pendens which is
annotated in the certificate of title? This cannot be done ex
parte the party should file a motion in court with notice to the
adverse party.
--- 00 ---
July 6, 2016
Rule 15
Motions
 Sometimes mistaken as a pleading but actually not
because pleading is a statement of the parties claims
or defenses. On the other hand, a motion is an
application for relief other than by a pleading
 It presupposes a case pending
SEC.1
Motion
A motion is an application for relief other than by a
pleading
SEC. 2
Motions must be in writing
All motions shall be in writing except those made in
open court or in the course of a hearing or trial.
GR: A motion must be in writing
EXC: those made in open court (trial/hearing)
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SEC. 3
Contents
A motion shall state the relief sought to be obtained
and the grounds upon which it is based, and if required by
these Rules or necessary to prove facts alleged therein, shall
be accompanied by supporting affidavits and other papers.
 A motion is the legal term for “REQUEST”
 Common motions filed are Motion to dismiss,
Motion for Extension of time, Motion for Bill
of particulars
For example:
You want to file a motion to lift a default order, the
motion would be incomplete if the same is not accompanied
with an Affidavit of Merit.
--- 00 ---
TAKE NOTE OF SEC.4 -6 [VERY IMPORTANT!]
SEC. 4
Hearing of motion
Except for motions which the court may act upon without
prejudicing the rights of the adverse party, every written motion
shall be set for hearing by the applicant.
Every written motion required to be heard and the
notice of the hearing thereof shall be served in such a manner
as to ensure its receipt by the other party at least three (3)
days before the date of hearing, unless the court for good
cause sets the hearing on shorter notice.
This is very important!
Every motion shall be set for hearing by the applicant or
the party filing the same.
 He shall set the date when he wants his motion to be
heard because as he is asking for relief or remedy, it
might prejudice the adverse party
For example:
Defendant filed a motion to dismiss. If the court would
dismiss the case, the plaintiff might be prejudice. That is the
reason why plaintiff must be heard.
“Plaintiff must be heard” – it means he must be required to
submit comment or objection on the motion if he has objection
in compliance with due process
 It means that the motion must contain a Notice of
Hearing
SEC. 5
Notice of hearing
The notice of hearing shall be addressed to all parties
concerned, and shall specify the time and date of the hearing
which must not be later than ten (10) days after the filing of the
motion.
It’s very simple but deadly when not included.
You file a motion, state the relief that you want and the ground
upon which it is based. Towards the end of the motion, you
address it to the adverse party through counsel:
“Atty. X, please take notice on DATE the foregoing
motion shall be submitted to the court for hearing and
approval”
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What is the effect if the motion does not contain a Notice
of Hearing?
The motion shall be considered as a USELESS
PIECE OF PAPER. The court will not cognizance nor read it
and most likely it will be denied.
“3 DAY NOTICE RULE”
So, every motion shall be set for hearing and the
notice of hearing thereof shall be served in such a manner that
would ensure receipt of the other party atleast 3 days before
the hearing. The purpose of furnishing the adverse party of the
notice at least 3 days is to enable him to read the motion and
prepare for counter-arguments and grounds (factual/legal) in
order to resist the motion. If the 3 day notice rule will be
violated, the motion shall be denied.
 The 3 day period shall be counted from the date the
adverse party actually received the notice unless the
court for good cause set the hearing on shorter
notice. The 3 day notice rule could then be dispensed
with.
The Notice of Hearing should be addressed to the
adverse party. Some lawyers would commit mistakes when
they addressed the motion to the Clerk of Court. The motion
addressed to the clerk of court does not comply with the
requirement of the rules.
The importance of complying with the requirements in
filing a motion is when for example you are filing a Motion for
Reconsideration, [the motion considered scrap of paper] it will
not stop the running of the reglementary period and the
decision shall become final and executory.
--- 00 ---
We have already agreed upon this that aside from complaint,
ALL other pleading and motion, you should serve a copy of the
same to the adverse party through counsel. There should be
proof of such service.
SEC.6
Proof of service necessary
No written motion set for hearing shall be acted upon
by the court without proof of service thereof.
Proof of service either:
a. Personal service
b. Registered mail
--- 00 ---
As by way of exception, there are motions that need not be set
for hearing.
There are so called “EX-PARTE MOTIONS” [NON –
LITIGIOUS MOTION] which are motions that are asking
remedies that will not prejudice the adverse party. The court
may grant the remedy even hearing the adverse party because
the relief sought will not prejudice him.
For Example
You are asking a Motion for Extension of time. The
granting of the same would not prejudice the adverse
party.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
However, even if it is an Ex Parte Motion, a copy of
the same must be served on the adverse party.
SEC.7
Motion day
Except for motions requiring immediate action, all
motions shall be scheduled for hearing on Friday afternoons,
or if Friday is a non-working day, in the afternoon of the next
working day
 The motion shall be set for hearing on a Friday
afternoon but there are instances that it may not be
heard on a Friday. However, such is an exception and
not the rule.
For example:
The judge in that court is not available on
that day because he is handling another court. Then
naturally, the motion shall not be heard on a Friday.
Another is when it is an urgent motion such as when
you ask for a remedy which could not wait on the next
Friday, then you could have it as soon as possible.
“OMNIBUS MOTION RULE”
SEC 8
Omnibus motion
Subject to the provisions of section 1 of Rule 9, a
motion attacking a pleading, order, judgment, or proceeding
shall include all objections then available, and all objections not
so included shall be deemed waived.
For Example:
A motion to dismiss filed by the defendant. The
motion is attacking the complaint. Under the Omnibus Motion
rule, all grounds available must be included in the motion
because those ground which are not included in the motion
shall be waived except those grounds that could not be waived
i.e., issue on jurisdiction.
A Motion for Reconsideration which is a motion
attacking the decision of the court. All grounds that could be
basis for the reconsideration should be stated in the motion
otherwise the same shall be considered waived.
--- 00 ---
SEC. 9
Motion for leave
A motion for leave to file a pleading or motion shall be
accompanied by the pleading or motion sought to be admitted
For Example:
After filing an Answer, amendment could only be
granted with prior leave of court. So before filing the
amended complaint, ask first permission from the
court. File a Motion for Leave to amend the
complaint, if an answer has already been filed.
In the motion, so that the court would be convinced
that there is a need to amend the complaint, the movant
(plaintiff) shall attach to the motion for leave the amended
complaint.
SEC. 10
Form
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The Rules applicable to pleadings shall apply to
written motions so far as concerns caption, designation,
signature, and other matters of form
You include as well the Roll No of the lawyer, the
MCLE, the PTR.
you have to read the allegations in the complaint in
order to determine the jurisdiction.
 The jurisdiction of the court does not depend on the
motion to dismiss filed by the defending party or on
the allegations in the answer or on the evidence
presented during the trial.

RULE 16 For Example:

Motion to Dismiss The complaint alleged that the defendant
[THIS IS VERY IMPORTANT!] has obtained a loan of 400,000 and despite demands
(Judge D: As this is very important, memorize or atleast he has not paid such loan so the case is filed against
familiarize and understand the grounds for a motion to dismiss) him in the RTC. In this case the RTC has jurisdiction.
But, during the trial, the plaintiff was only able to
When can a motion to dismiss be filed? prove that the remaining balance of the defendant is
It should be filed within the time to period to file a only 200,000. Is the court divested of jurisdiction over
responsive pleading. the case?
For Example: NO. The jurisdiction of the court depends on
As regard the complaint, the period to file the allegations in the complaint. Once the court
would be the 15 day period to file an answer. acquires jurisdiction over the case, jurisdiction stays
with the court until the end of the proceedings, this is
Who can file a motion to dismiss? Is it exclusive only called DOCTRINE OF CONTINUITY OF
to the defendant? JURISDICTION or DOCTRINE OF ADHERENCE ON
No. Any party against whom a claim is JURISDICTION.
asserted may file a motion to dismiss. That party
could be the defendant, the plaintiff as regard the (c) That venue is improperly laid;
counterclaim of the defendant. He could likewise be (TAKE NOTE of the venue for personal and real
the 3rd party defendant as regard the 3rd party action)
complaint.
(d) That the plaintiff has no legal capacity to sue;
SEC. 1 It means that the plaintiff does not have the
Grounds character of the representation that he claims
Within the time for but before filing the answer to the For Example:
complaint or pleading asserting a claim, a motion to dismiss The plaintiff is a minor. What would be your
may be made on any of the following grounds: ground for the Motion to Dismiss? The ground is
LACK OF LEGAL CAPACITY TO SUE.
(a) That the court has no jurisdiction over the person of --- 00 ---
the defending party;
[Judge D: Remember the instances when the court
acquires jurisdiction over the person of the defending
party] Lack of Legal Capacity vs. Lack of Legal Personality [BAR
Q]
This ground is used whenever the defendant is not LACK OF LEGAL LACK OF LEGAL
served with summons or the service was improper. CAPACITY PERSONALITY
Refers to the disability of The plaintiff is NOT the
(b) That the court has no jurisdiction over the subject the plaintiff to sue, due to real party in interest.
matter of the claim; minority or insanity
[Judge D: Remember the jurisdiction of the courts]
Plaintiff lacks cause of
action because he alleged
that he is an agent but
does not have the
necessary authority to file
the case.

Ground of Dismissal:
a) Failure to state
cause of action
because the alleged
TN! agent does not have
 Jurisdiction is conferred by law, HOWEVER to know necessary authority to
whether the court, where the case is filed, had file the case like
jurisdiction over the action, the ALLEGATIONS in the failure to equipped
complaint determine the jurisdiction. In other words, with a Special Power

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to Attorney
b) The plaintiff is
suffering from civil
interdiction, where his
civil rights are
suspended.
. was due to the lack of cause
(e) That there is another action pending between the
same parties for the same cause;
There is another action with the same cause,
this is called LITIS PENDENTIA. This is related to Forum
Shopping because whenever there is forum shopping,
there is always a litis pendentia or res judicata
(f) That the cause of action is barred by prior judgment
or is barred by the statute of limitations
RES JUDICATA - barred by prior judgment
STATUTE OF LIMITATIONS – prescription of action
(g) That the pleading asserting the claim states no cause
of action;
The plaintiff failed to allege the cause of action
in his complaint so the ground for the dismissal is failure
to state the cause of action.
For Example:
There is an action for collection of sum of money,
where the plaintiff has made a demand prior to filing of
the case. He made an oral and written demand BUT he
failed to include such fact in the complaint. In that case, it
can be dismissed on the ground of NO CAUSE OF
ACTION. Although there is a cause of action but
the same was not stated in the complaint.
FAILURE TO STATE A LACKS CAUSE OF ACTION
CAUSE OF ACTION
- Sec. 1 (g), Rule 16 Refers to the lack of
evidentiary value because
even if the complaint states a
cause of action, the same
could be dismissed if during
the trial the plaintiff failed to
prove his allegations.
For Example: The complaint
of the plaintiff states that the
defendant obtained a loan
from the plaintiff, which is
payable in 1 year. After the
lapse of the period, the
defendant failed to pay so the
plaintiff was forced to file a
case against him. Does this
mean the plaintiff already won
the case? NO, because the
plaintiff has to prove the
allegations in the complaint.
So his complaint cannot be
dismissed for failure to state
cause of action because all
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
the elements of his cause of
action are alleged, BUT it’s
possible that his case will be
dismissed upon failure to
present evidence to support
his allegations. DISMISSAL
of action.
Refers to the insufficiency
of evidence.
(h) That the claim or demand set forth in the plaintiff’s
pleading has been paid, waived, abandoned, or
otherwise extinguished;
For Example:
The defendant has already paid then he may
attach the proof in his motion to dismiss or answer.
(i) That the claim on which the action os founded is
unenforceable under the provision of the statute of
frauds;
Statute of frauds - the law that requires certain contracts
should be in writing, otherwise unenforceable.
(j) That a condition precedent for filing the claim has
not been complied with.
“CONDITION PRECEDENT”
Examples:
1) Exhaustion of administrative remedies
If the relief prayed for by the plaintiff is appealable
before an administrative body, the case must be
referred first to such administrative body. If the
plaintiff has already exhausted all his administrative
remedies = he should allege it in his complaint,
otherwise the complaint shall be dismissed.
2) Failure to refer the matter to Katarungang
Pambarangay
Read: Section 407- (onwards) , LGC
3) Parties belonging to the same family earnest efforts
should be exerted towards a compromise agreement
before the case is filed in court.
If the matter was not resolved despite, earnest
efforts, the same must be alleged in the complaint.
TN!
 The defendant should be mindful on these grounds
because if the same is not raised in his motion to
dismiss or answer, it will be considered WAIVED.
Matters NOT WAIVED, even if not raised:
a) Lack of jurisdiction over the subject matter
b) Litis pendentia
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c) Res judicata
d) Prescription
Dismissal of the case
GENERAL RULE: The Court cannot motu proprio dismiss a
case, there must be a motion to dismiss coming from the
defendant
EXCEPTIONS:
1. Lack of jurisdiction over the subject matter
2. Litis pendentia
3. Res judicata
4. Prescription
Provided these are apparent on the face of the
complaint
CASE:
RAFAEL ZULUETA, ET AL., vs. PAN AMERICAN
WORLD AIRWAYS, INC. G.R. No. L-28589 January 8,
1973
The plaintiff filed a complaint before the RTC, but
the jurisdictional amount is below the court’s jurisdictional
limit. The complaint is for the collection of 200,000. When
the defendant filed his answer, he raised the amount due,
which is now within the jurisdiction of the RTC.
Supreme Court held that such counterclaim
cured the defect in the complaint. (Rafael Zulueta vs.
Pan American World Airways, Inc)
--- 00 ---
LITIS PENDENTIA
Elements of Litis Pendentia [TN!]
1) The parties of the action are the same or at least such
parties represent the same interest in both actions or
at least there is substantial identity of the parties.
For Example:
Mr. P filed a case against Mr. D. Later on, Mr. P
filed a case over the same cause of action against MR. D
and his wife. You notice that the parties are not entirely
the same but there is substantial identity of the parties
involved in the case. Even if, Mr. W is added as a
defendant in the 2nd complaint, there is still substantial
identity of the parties.
TN!
 The inclusion of new parties does not remove the
case from the rule of litis pendentia.
2) The identity or the substantial identity of the cause of
action and relief/ remedies sought.
Reliefs are being founded on the same facts
or evidence.
3) The identity in the two cases should be that any
judgment should be rendered in one case regardless
of which party is successful would amount to res
judicata in the other case.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
For Example:
Where the mortgagor filed an annulment of real
estate mortgage against the mortgagee creditor
Mr. D filed for an annulment Mr. C filed an action for
of real estate mortgage foreclosure of mortgage
against C. against D.
Now for failure of Mr. D to pay his loan, consequently
Mr. C filed an action for foreclosure of mortgage. This time
it is C vs. D. Mr. D filed a motion to dismiss on the ground
of Litis Pendentia. According to him, there are two (2)
cases involving the same parties. Furthermore, he alleged
that the subject matter is substantially the same. Is there
Litis Pendentia here? Are the parties the same or is there
substantial identity of parties?
YES.
TN!
 the most important requirement is the third one,
Whoever wins in the two cases would create res judicata
in the other
Let us suppose that Mr. D would win in this case,
(action for annulment of real estate mortgage), naturally the
case for the foreclosure of real estate mortgage will be
dismissed because the real estate mortgage is void. But
suppose, he would lose then the other will prosper.
There is no Litis Pendentia here because the other
case does not prosper only when one party wins and in case of
losing the case, the other case prospers.
There is only Litis Pendentia when either of the two parties
wins, and such would result in res judicata in the other
case.
Another example:
[Tambunting v. Ong August 11, 1950]
Mr. P filed an action for recovery of possession and
ownership of a parcel of land. Later on, Mr. D filed a case for
Quieting of Title against Mr. P over the same parcel of land.
Mr. P filed a motion to dismiss on the ground of Litis
Pendentia. Is there Litis Pendentia? Suppose Mr. P wins the
case, (recovery of possession and ownership) would that
create res judicata in the Quieting of title case?
YES.
Suppose Mr. P losses and Mr. D wins, is there res judicata?
YES, there would still be res judicata. Remember,
Quieting of title is about ownership.
So, there is Litis Pendentia if whichever party wins in one
case there is res judicata in the other case.
TN!
 When there is Litis Pendentia, it does not necessarily
mean that the second case will be dismissed. It could
either be the first case or the second case. But
usually the motion to dismiss is filed in the second
case.
[Francisco v. Vda.de Blas 93 Phils. 1]
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There are two kinds of res judicata. The one being
referred here in our discussion is barred by prior judgment
.
KINDS OF RES JUDICATA:
1) Barred by prior judgment
Elements:
a. There must be a previous final judgment;
b. There must be jurisdiction over the subject
matter as well as jurisdiction over the parties
by the court rendering it;
c. The judgment is upon the merits;
d. There is identity/substantial identity of the
subject matter, cause of action and the
parties between the first and second cases.
2) Conclusiveness of Judgment
--- 00 ---
Litis Pendentia vs. Res Judicata
Litis Pendentia Res Judicata
Both cases are still pending There is already judgment
--- 00 ---
When may a motion to dismiss on the ground of lack of legal
capacity to sue be filed?
1) When the plaintiff is not a natural or juridical person
or an entity authorized by law
2) When the plaintiff is not in the exercise of his civil
rights (i.e. minor, incompetent or suffering civil
interdiction)
In what instance may one raise the ground of failure to state a
cause of action?
1) When the plaintiff is not a real party in interest
2) The pleading contains no allegation that there is an
act or omission by the defendant which violated the
plaintiff’s rights.
3) When the plaintiff’s cause of action is premature.
Whenever a motion to dismiss is filed for failure of the
complaint to state a cause of action, the court should rule on
the motion based on the four corners of the complaint.
How does the court determine whether the complaint indeed
fails to state a cause of action?
Court needs to read the allegations in the complaint
whether there is any cause of action in the allegations. Court
may consider the annexes to the complaint
Case: C-Land Service v. CA 327 SCRA 135
TN!
 The court is not required to allow the plaintiff to
present evidence because the question is merely on
the sufficiency of the allegation in the complaint.
 When the motion to dismiss is filed, the movant,
hypothetically, is deemed to have admitted the truth of
the facts alleged in the complaint.
“Deemed Admitted”
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
What are deemed admitted?
1) Material and relevant facts which are well-pleaded in
the complaint
It does not include:
a) Facts which are legally impossible
b) Facts which are inadmissible in evidence
c) Legal conclusions or Erroneous statements of
law
--- 00 ---
[Judge D reviews the past topic]
(Regarding the earnest effort towards compromise
agreements, if the parties belong in the same family)
TAKE NOTE OF ARTICLE 150 of the Family Code;
Article 150, Family Code; Family Relations include those:
1.) between husband and wife;
2.) between parents and children;
3.) among other ascendants and descendants; and
4.) among brothers and sisters whether of the full or
half-blood.
Remember when we discuss Rule 15 Motions.
If the defendant files a motion he should comply with all the
requirements in Rule 15 particularly section 4, 5 and 6
--- 00 ---
SEC. 4
Hearing of motion
Except for motions which the court may act upon
without prejudicing the rights of the adverse party, every
written motion shall be set for hearing by the applicant.
Every written motion required to be heard and the
notice of the hearing thereof shall be served in such a manner
as to ensure its receipt by the other party at least three (3)
days before the date of hearing, unless the court for good
cause sets the hearing on shorter notice.
SEC. 5
Notice of hearing
The notice of hearing shall be addressed to all parties
concerned, and shall specify the time and date of the hearing
which must not be later than ten (10) days after the filing of the
motion.
SEC. 6
Proof of service necessary
No written motion set for hearing shall be acted upon
by the court without proof of service thereof.
--- 00 ---
TN!
 The motion to dismiss should contain the grounds
relied upon.
 If there is a need to present evidence, there must be a
presentation thereof. Any evidence presented during
the hearing of such motion shall automatically
become part of the record of the case. During the trial
of the case, there is no need to reproduce such
evidence.
For example:
A witness has testified during the hearing of
the motion to dismiss then there is no need to call
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again that witness during the trial unless, there are
other matters that were not asked before.
--- 00 ---
TERMS TO REMEMBER:
RESOLUTION- for resolving motions
DECISION- for deciding the case
--- 00 ---
Possible actions of the court in the motion
Court may either:
1) Deny the motion;
2) Grant the motion;
3) Order the amendment of the pleading being attacked.
--- 00 ---
REMEDIES IF MOTION TO DISMISS IS DENIED:
Defendant’s remedy:
1) File an ANSWER; if defendant believes his grounds
in the motion to dismiss are meritorious, he should
reiterate the same in his ANSWER.
2) If ever he loses the case, file an APPEAL and cite
the denial of his motion to dismiss as one of the errors
of the court.
3) If defendant believes the court has really no
jurisdiction over the case, like instead of having it filed
in the RTC, it was filed in the first level courts;
defendant may file CERTIORARI AND/OR
PROHIBITION. Ask the higher court to nullify the
order denying his motion to dismiss
TN!
 Certiorari and Prohibition are separate actions
therefore it will not stop the action in the lower court
unless the higher court will issue restraining order. So
in the petition for certiorari and/or prohibition, he
should ask an issuance of restraining order.
If the higher court will not issue restraining order or preliminary
injunction, the proceeding in the lower court continues.
REMEDIES IF THE MOTION TO DISMISS IS GRANTED:
Plaintiff’s remedy:
1) REFILE THE CASE
If the ground for dismissal would allow re-filing like if the
ground is improper venue, then file it with the proper venue.
--- 00 ---
For example:
If the ground is lack of jurisdiction then file it with the
proper court or if the ground is improper venue then file it in the
proper venue.
If the ground is non-compliance with condition
precedent, comply the condition that is precedent.
If the ground for the dismissal of the case is prescription or if
the ground is res judicata, if you re-file it, it would be
dismissed. So that can't be filed anymore.
The remedy now is appeal because it is now
considered as a final order. If the case can't be re-filed
anymore, then appeal. If the granting of the motion is with
grave abuse of discretion, then avail of certiorari or prohibition.
The court may also order the amendment of the pleading. So if
it can be amended, then amend it. Now the court shouldn't
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“A Leap to Succeed”
defer the resolution of the motion for reason that the ground
relied upon is not clear. So the court has to issue a resolution.
--- 00 ---
In every case, the resolution or the order shall state clearly the
reasons therefor. It can't be done with one sentence e.g.:
“The motion to dismiss on the ground of improper venue is
denied / granted”
You have to explain the reason/s why you denied or granted
such motion. If the motion to dismiss is denied, then the
movant should file his answer within the balance of the period.
The remaining period shouldn't be less than five (5) days.
Again, don't confuse this with the Neypes rule. Neypes rule is
only available when there is already a decision declared by the
court.
A motion to dismiss based on:
 Res judicata,
 Prescription,
 Extinguishment of demand or claim shall bar the
refiling of the same action, because refiling is not
possible then the remedy is appeal.
Other grounds for the dismissal of the case aside
from Section 1, it can be found under Section 5, Rule 6.
Rule 6, Section 5
Defenses
Defenses may either be negative or affirmative.
1) A negative defense is the specific denial of the
material fact or facts alleged in the pleading of the
claimant essential to his cause or causes of action.
2) An affirmative defense is an allegation of a new
matter which, while hypothetically admitting the
material allegations in the pleading of the claimant,
would nevertheless prevent or bar recovery by him.
The affirmative defenses include fraud, statute of
limitations, release, payment, illegality, statute of
frauds, estoppel, former recovery, discharge in
bankruptcy, and any other matter by way of
confession and avoidance.
--- 00 ---
SEC. 6
Pleading grounds as affirmative defenses
If no motion to dismiss has been filed, any of the
grounds for dismissal provided for in this Rule may be pleaded
as an affirmative defense in the answer and, in the discretion
of the court, a preliminary hearing may be had thereon as if a
motion to dismiss had been filed.
This is the most practical thing the defendant could
do. You don't file a motion to dismiss, but instead you file an
answer and alleged the grounds for your supposed motion to
dismiss as among your affirmative defenses.
For example:
The case is filed in an improper venue and you didn't
file a motion to dismiss but you filed an answer. Can you allege
improper venue as a defense?
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Yes, as an affirmative defense. The effect is it is
as if a motion to dismiss has been filed. The advantage if
an answer has been filed instead of a motion to dismiss is
the plaintiff can't anymore amend his complaint as a
matter of right. Aside from that, the defendant can raise a
counterclaim.
In a motion to dismiss, the defendant can't raise
counterclaim because a motion to dismiss is not a responsive
pleading. Also, when you file a motion to dismiss, it will delay
the proceedings. When your motion to dismiss is denied, you
have to file an answer.
Another advantage, if for example if you file an
answer with counterclaim and one of your defenses is res
judicata and the court grants it and the case is dismissed
because of res judicata. Now, your counterclaim will
prosper. You might be awarded with damages. However, if
you will file a motion to dismiss, you can't raise
counterclaim.
When the defendant didn't file a motion to dismiss but
instead alleged in his answer the grounds which are supposed
to be grounds for a motion to dismiss, the court may set the
case for the hearing of the affirmative defense. A preliminary
hearing may be have thereon as if a motion to dismiss has
been filed, but it is entirely upon the discretion of the court.
CASE:
[Rioferio vs. CA, G.R. No. 129008. January 13, 2004]
Petitioners vehemently fault the lower court for
denying their motion to set the case for preliminary hearing on
their affirmative defense that the proper party to bring the
action is the estate of the decedent and not the respondents. It
must be stressed that the holding of a preliminary hearing
on an affirmative defense lies in the discretion of the
court. This is clear from the Rules of Court, thus:
SEC. 5. Pleadings grounds as affirmative defenses.-
Any of the grounds for dismissal provided for in this rule,
except improper venue, may be pleaded as an affirmative
defense, and a preliminary hearing may be had thereon as if a
motion to dismiss had been filed.
Certainly, the incorporation of the word may in the provision is
clearly indicative of the optional character of the preliminary
hearing. The word denotes discretion and cannot be construed
as having a mandatory effect. Subsequently, the electivity of
the proceeding was firmed up beyond cavil by the 1997 Rules
of Civil Procedure with the inclusion of the phrase in the
discretion of the Court, apart from the retention of the word
may in Section 6, in Rule 16 thereof.
--- 00 ---
What would you do if you filed a motion to dismiss which was
denied and then you file an answer? What would you do to the
grounds you cited in your motion to dismiss? Reiterate. Why?
It is because the order denying a motion to dismiss is merely
an interlocutory order. Being an interlocutory order, the court
can change it. If during the trial the court is convinced with your
grounds, the court may change its earlier ruling.
For example:
You file a motion to dismiss on the ground of res
judicata and it is denied. You filed an answer and reiterate it
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
but during the trial the court is convinced that there is res
judicata. The court may render a decision dismissing the case
on the ground of res judicata. The court can change its earlier
interlocutory order.
--- 00 ----
CASE:
[DE LASALA vs. SARNATE,
G.R. No. L-15925. November 29, 1960]
It is of no moment that the lower court had already
denied the bank’s first motion to dismiss (wherein res judicata
was pleaded) when the latter order sustaining the bank’s
second motion to dismiss was issued; because as already
stated, the same plea of res judicata was included as a special
defense in the bank’s answer to the third party complaint.
The order of the denial of the first motion to dismiss
being merely interlocutory, the lower court could at any time
thereafter, acting on the special defense of res judicata
pleaded in the bank’s answer, reconsider and reverse its first
order and issue another dismissing the third-party complaint,
under its inherent power "to amend and control its process and
orders so as to make them conformable to law and justice.
--- 00 ---
RULE 17
Dismissal of Actions
 A case would usually be dismissed at the instance of
the defendant.
 There are instances wherein a case would be
dismissed at the instance of the plaintiff.
Section 1 tells us about the dismissal upon mere notice of the
plaintiff, not a motion.
SEC. 1
Dismissal upon notice by plaintiff
A complaint may be dismissed by the plaintiff by filing
a notice of dismissal at any time before service of the answer
or of a motion for summary judgment. Upon such notice being
filed, the court shall issue an order confirming the dismissal.
Unless otherwise stated in the notice, the dismissal is without
prejudice, except that a notice operates as an adjudication
upon the merits when filed by a plaintiff who has once
dismissed in a competent court an action based on or including
the same claim.
“TWO DISMISSAL RULE”
Before the filing of the answer or a motion for
summary judgment, the plaintiff has the right to dismiss the
case by mere filing of a notice to the court.
The court cannot deny. The court has merely to
affirm. But if it is the second time already that the plaintiff files
such notice of dismissal, the dismissal now would be
considered as dismissal on the merits. The first dismissal is
without prejudice, but the second time it is done, the same
would be considered as dismissal on the merits or
dismissal with prejudice. This is what is we call as TWO
DISMISSAL RULE.
For Example:
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P files a collection case against D then D begged
P that he will pay within one month. Then P agreed to
dismiss the case. So, how to dismiss the case?
By mere filing of notice, not a motion and the
court have no option but to affirm the dismissal without
prejudice.
However, after one month D was still not able to pay P.
Can the case be refiled?
Yes.
But when P filed again the case, D begged P that he
will pay the debt. So, the case was dismissed. Can it be
refiled?
No. The dismissal now would be on the merits.
CASE:
[Dael vs. Beltran, G.R. No. 156470 April 30, 2008]
As to the propriety of dismissal of the complaint with
prejudice, Section 1, Rule 17 of the 1997 Rules of Civil
Procedure, provides the rule.
Under this provision, it is mandatory that the trial court
issue an order confirming such dismissal and, unless otherwise
stated in the notice, the dismissal is without prejudice and
could be accomplished by the plaintiff through mere notice of
dismissal, and not through motion subject to approval by the
court.
Dismissal is ipso facto upon notice and without
prejudice unless otherwise stated in the notice. The trial court
has no choice but to consider the complaint as dismissed,
since the plaintiff may opt for such dismissal as a matter of
right, regardless of the ground.
Respondents argue that the Motion to Dismiss they
filed precedes the Notice of Dismissal filed by petitioner and
hence, the trial court correctly gave it precedence and ruled
based on the motion.
This argument is erroneous. Section 1 of Rule 17
does not encompass a Motion to Dismiss. The provision
specifically provides that a plaintiff may file a notice of
dismissal before service of the answer or a motion for
summary judgment. Thus, upon the filing of the Notice of
Dismissal by the plaintiff, the Motion to Dismiss filed by
respondents became moot and academic and the trial court
should have dismissed the case without prejudice based on
the Notice of Dismissal filed by the petitioner.
Moreover, to allow the case to be dismissed with
prejudice would erroneously result in res judicata and imply
that petitioner can no longer file a case against respondents
without giving him a chance to present evidence to prove
otherwise.
If the plaintiff has filed a notice of dismissal but before
the court issued an order confirming the dismissal or even if it
has issued one but not yet final, the plaintiff need not file a
second complaint. He only needs to revive or set aside the
order of dismissal.
CASE:
[Ortigas and Co. vs Velasco, G. R. No. 109645 July 25,
1994]
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
The dismissal of the case, and the lapse of the
reglementary period to reconsider or set aside the dismissal,
effectively operated to remove the case from the Court's
docket. Even assuming the dismissal to be without prejudice,
the case could no longer be reinstated or "revived" by mere
motion in the original docketed action, but only by the filing of
another complaint accompanied, of course, by the payment of
the corresponding filing fees prescribed by law.
The situation is not at all altered by the circumstance
that the dismissal of the action was effected by the plaintiff as a
matter of right, without order of the court, in accordance with
Rule 17 of the Rules of Court. There having been a dismissal
or withdrawal of the action, albeit without prejudice, and the
order considering the action withdrawn having become final,
revival of the case could not be done except through the
commencement of a new action, i.e., by the filing of another
complaint and the payment of the concomitant docketing fees.
To be sure, a plaintiff who has dismissed his action by
notice under this provision may later change his mind and
decide to continue with it. In that event, since theoretically
every final disposition of an action does not attain finality until
after fifteen (15) days therefrom, and consequently within that
time the action still remains within the control of the Court, the
plaintiff may move to withdraw and set aside his notice of
dismissal and revive his action, before that period lapses. But
after the dismissal has become final through the lapse of the
fifteen-day reglementary period, the only way by which the
action may be resuscitated or "revived," is by the institution of
a subsequent action through the filing of another complaint and
the payment of the fees prescribed by law. This is so because
upon attainment of finality of the dismissal through the lapse of
said reglementary period, the Court loses jurisdiction and
control over it and can no longer make any disposition in
respect thereof inconsistent with such dismissal.
The order of Judge Velasco reviving the reconstitution
case was therefore legally inefficacious. It could not and did
not operate to reinstate the proceeding. And even assuming
that the amended petition submitted by Molina together with
her motion to revive the case may be deemed a new petition,
the non-payment of the requisite docketing fees precluded the
acquisition of jurisdiction by the Trial Court over the second
proceeding.
--- 00 ---
SEC. 2
Dismissal upon motion of plaintiff
Except as provided in the preceding section, a
complaint shall not be dismissed at the plaintiff's instance save
upon approval of the court and upon such terms and conditions
as the court deems proper. If a counterclaim has been pleaded
by a defendant prior to the service upon him of the plaintiff’s
motion for dismissal, the dismissal shall be limited to the
complaint. The dismissal shall be without prejudice to the right
of the defendant to prosecute his counterclaim in a separate
action unless within fifteen (15) days from notice of the motion
he manifests his preference to have his counterclaim resolved
in the same action. Unless otherwise specified in the order, a
dismissal under this paragraph shall be without prejudice. A
class suit shall not be dismissed or compromised without the
approval of the court.
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In Section 1, there is no yet an answer filed or a
motion for summary judgment. Supposed the defendant has
already filed an answer, can the plaintiff move to dismiss the
case?
Yes, but it must be in the form of a motion and
requires the approval of the court. Considering that there's
already an answer, it could be that the defendant has raised
counterclaim in his answer. If ever the court grant the motion to
dismiss filed by the plaintiff, then the dismissal should be
limited to the complaint and the counterclaim of the defendant
may prosper either in another case or in the same action-if the
defendant would manifest that his counterclaim would be
prosecuted in the same action. In other words, the court may
grant the motion but the counterclaim will prosper.
If you were the plaintiff and you agreed to dismiss
your case, you also tell the defendant to dismiss his
counterclaim. It is better if you make a compromise agreement
and you put in writing that you have agreed to dismiss the case
as well as the counterclaim. (KINAHANGLAN DI
MAGBINANGA GYUD !:D)
Under this Section, the dismissal may be without prejudice.
Meaning it can be refiled or dismissal not on the merits.
“Dismissal on the merits”
It means that it is as if that the case is dismissed
because of the evidence presented or due to insufficiency of
evidence so the case can't be refiled anymore. If it is refiled,
the defendant can raise res judicata.
--- 00 ---
SEC.3
Dismissal due to fault of plaintiff
If, for no justifiable cause, the plaintiff fails to appear
on the date of the presentation of his evidence in chief on the
complaint, or to prosecute his action for an unreasonable
length of time, or to comply with these Rules or any order of
the court, the complaint may be dismissed upon motion of the
defendant or upon the court's own motion, without prejudice to
the right of the defendant to prosecute his counterclaim in the
same or in a separate action. This dismissal shall have the
effect of an adjudication upon the merits unless otherwise
declared by the court.
--- 00 ---
For example:
The defendant filed a motion for bill of particulars, the
court granted the motion and requires the plaintiff to make
particularity in his allegations, but the plaintiff failed to comply
with such order or the court ordered to implead an
indispensable party.
The plaintiff failed to comply with the order of the
court, the consequence for failure to comply such order is that
the case would be dismissed. If the order does not specifically
mention that the dismissal is without prejudice, the
presumption is dismissal with prejudice.
What about the counterclaim of the defendant?
The counterclaim of the defendant may prosper in a separate
action.
GR: the court cannot dismiss a case Motu Proprio
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
EXC: Under the circumstances in Section 3 Rule 17 as well as
in Section 1 Rule 9.
Rule 9 Section 1. Defenses and objections not pleaded. —
Defenses and objections not pleaded either in a motion to
dismiss or in the answer are deemed waived. However, when it
appears from the pleadings or the evidence on record that the
court has no jurisdiction over the subject matter, that there is
another action pending between the same parties for the same
cause, or that the action is barred by a prior judgment or by
statute of limitations, the court shall dismiss the claim.
TN!
 The ground of the dismissal is failure of the defendant
to appear. If it is his lawyer who did not appear, that
cannot be aground for dismissal. The court may
impose disciplinary action and impose fine against the
lawyer for delaying the proceedings.
--- 00 ----
RULE 18
Pre-Trial
(You secure a copy of AM No. 03-1-09-SC Aug. 16, 2004
which provides the guidelines to be observed in Pre-Trial)
SEC.1
When conducted
After the last pleading has been served and filed, if
shall be the duty of the plaintiff to promptly move ex parte that
the case be set for pre-trial.
What could be the possible last pleading that could be filed in
court?
It could be the reply.
You can see in Section 1 that it is compulsory for the
plaintiff to move ex parte that the case be set for pre-trial. But
under AM No. 03-1-09-SC, if the plaintiff’s counsel failed to file
a motion, it is the clerk of court should set the case for pre-trial.
That’s the reason why the defendant should furnish a copy of
his answer to the plaintiff’s counsel because after the plaintiff’s
counsel received a copy if his answer, then he should now
move to set the case for pre-trial.
SEC. 2
Nature and purpose
The pre-trial is mandatory. The court shall consider:
(a) The possibility of an amicable settlement or of a
submission to alternative modes of dispute
resolution;
The pre-trial is mandatory both in civil and
criminal case. The purpose of the pre-trial is to
dismiss the case immediately. In a compromise
agreement, the parties will meet half-way. Before trial,
the parties are required by the court to go to the
Philippine Mediation Center. The referral of the case
to the barangay is also an alternative mode of settling
disputes.
What is/are the primary purpose/s of pre-trial?
[Scenario]
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There was a case involving siblings who happen to
have inherited a parcel of land from their parents. I asked
them, how much have you spent in buying this land?
The parties replied that it was an inheritance.
Judge said to settle the matter because if they won’t there will
be a possibility that the dispute will continue to the next
generations.
If there is no settlement, if there is no compromise
agreement, if the case is referred to mediation and no
settlement and it refers back to the court, if the parties do not
come up with a compromise agreement, then the court should
proceed to other matters:
(b) Simplification of issues –
Meaning what are the issues here, where can you
determine the issues in the case?
 From the allegations in the complaint
 From the allegations in the answer
 Those material allegations which are not admitted
would become issues
(c) Necessity of amendment of pleadings
For Example:
There is a need to implead necessary or
indispensable parties, and the pleading should be
amended
(d) The possibility of obtaining stipulations or
admissions of facts and of documents to avoid
unnecessary proof;
“Stipulations”
Stipulations are admissions
If the stipulations are admitted during pre-trial, there is
no need to present witness, because facts admitted during pre-
trial are considered judicial admissions and facts which are
judicially admitted need not be prove.
For Example:
In a complaint, it is alleged that the
defendant obtained a loan in the amount of P400,000
but payable in one year but when the due date came
the defendant failed to pay any amount, in his answer
the defendant all those material allegations. During
pre-trial the plaintiff may asked or allow the defendant
to admit all the allegations that was denied by the
defendant in his answer, and thus such defendant
might have change his mind.
Say during the pre-trial, the plaintiff said thru
his counsel, will say, will the defendant admit that he
has obtained a loan from the plaintiff, would the
defendant admit that he had obtained a loan on etc.,
in the amount of P400, 000. Then the counsel of the
defendant said to the plaintiff that we will only admit if
you present the original copy of the promissory note
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
indeed that the defendant really obtained a loan, not
just a mere machine or photocopy.
The plaintiff now said that, your honor here is
the copy of the original promissory note. The counsel
asks the defendant if it was his signature appearing in
the said promissory note and the defendant answers
in the affirmative.
Now the promissory is admitted, and
therefore no need to present evidence on trial.
How to make stipulations?
For Example:
Would the defendant admit that the loan is payable
within one year as stated in the promissory note?
 If admitted – that is another admission, there is no
need to prove such judicial admission
Would the defendant admit that when due date came,
still the defendant failed to pay any amount despite
demands?
If the admissions consist of admitting that
there was a loan which is unpaid despite demand
 If admitted – then there is no need for trial, the case
now can be decided base on the pleadings as there
was already a judicial admission on the part of the
defendant. The court now may render its decisions
base on their admissions.
 If denied- and would not admit those proposals for
stipulations, then those proposals which are not
admitted will become issues.
For Example:
PROPOSAL [1]
Would the defendant admit that he has obtained a loan?
Defendant denied the same
The denial of the stipulations will result into an issue
ISSUE:
Whether or not the defendant obtained a loan from the plaintiff
in the amount of P400, 000
PROPOSAL [2]
Would the defendant admit that he has not paid any amount to
the plaintiff despite demands?
Defendant denied because he insist that he did obtained any
loan
ISSUE:
Whether or not the defendant failed to pay his loans despite
demands
For Example:
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The genuineness and due execution of the
promissory note
 If admitted - there is no need to present evidence as
to its genuineness and due execution
(e) The limitation of the number of witnesses;
It means limiting the number of witnesses because some
witnesses’ testimonies are merely cumulative or
corroborative. Both apply to plaintiff and defendant.
Reason:
To save time of the court
(f) The advisability of a preliminary reference of
issues to a commissioner;
Who is a “commissioner”?
Commissioner is a person who is expert in a certain
issue in order to help the court to arrive a fair and intelligent
decision. There could be issues that are not within the
competence of the court or the judge and thus referred to a
commissioner.
For Example:
The case concerns about a land dispute as
to its actual boundaries, the judge is not expert as to
such matter, he refers it to a Geodetic Engineer,
unless at the same time the judge is also a geodetic
engineer, he may not refer the matter to a
commissioner.
Who shoulder the expenses in the referral of the case to a
commissioner?
The parties
(g) The propriety of rendering judgment on the
pleadings, or summary judgment, or of dismissing
the action should a valid ground therefor be found to
exist;
(h) The advisability or necessity of suspending the
proceedings;
Sometimes there is a need to suspend the
proceedings because the parties are trying to come up
with the terms and conditions of their compromise
agreement.
(i) Such other matters as may aid in the prompt disposition
of the action
There are other rules that we need to discuss in
connection with the pre-trial and that is the Judicial
Affidavit Rule.
Under the Judicial Affidavit Rule, the parties are
required to submit the affidavit of their respective
witnesses atleast five (5) days before the pre-trial
conference
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
--- 00 ---
SEC. 3
Notice of pre-trial
The notice of pre-trial shall be served on counsel, or
on the party who has no counsel. The counsel served with
such notice is charged with the duty of notifying the party
represented by him.
The notice of pre-trial shall be served on counsel and
it is the duty of the counsel to inform his clients. (Some courts
inform both the counsel and the client but again it is the duty of
the counsel to inform his client)
If the party has no counsel – the notice is served on
him (party)
SEC. 4
Appearance of parties [VIP]
It shall be the duty of the parties and their counsel to
appear at the pre-trial. The non-appearance of a party may be
excused only if a valid cause is shown therefor or if a
representative shall appear in his behalf fully authorized in
writing to enter into an amicable settlement, to submit to
alternative modes of dispute resolution, and to enter into
stipulations or admissions of facts and of documents.
The parties and their counsel should appear during
the pre-trial conference.
EFFECT OF ABSENCE OF PARTIES:
a) Plaintiff
The effect if the plaintiff did not appear during pre-trial
is that the case will be dismissed and the counter claim may be
prosecuted or prosper.
b) Defendant
If the defendant is absent during pre-trial the court
shall require the plaintiff to present evidence ex parte. It means
that the defendant losses his standing in court.
TN!
 The defendant in this rule cannot be declared in
default because he has already filed his answer.
 The court cannot also render judgment based on the
allegations of the complaint because the defendant
has already filed an answer.
 The decisions based on the complaints, is anchored
only if there is no answer filed by the defendant.
What if the non-appearance of a party is meritorious?
[Example: Suffered an illness which require confinement in the
hospital that prevents him to go to court]
He must send a representative and the representative must be
duly equipped with a special power of attorney and that the
SPA must contain that he is:
1) Authorized to enter into an amicable settlement,
2) To submit to alternative modes of dispute resolution
and
3) To enter into stipulations or admissions of facts and of
documents.
These 3 acts that the representative might do must be
stated in the authorization. There must be reason for the non -
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appearance. There must be a representative coupled with the
authority from the party.
In case of a corporation, the representative must have
authority or approval from the board of directors or there must
be a board resolution.
SEC. 5
Effect of failure to appear
The failure of the plaintiff to appear when so required
pursuant to the next preceding section shall be cause for
dismissal of the action. The dismissal shall be with prejudice,
unless otherwise ordered by the court. A similar failure on the
part of the defendant shall be cause to allow the plaintiff to
present his evidence ex parte and the court to render judgment
on the basis thereof.
What is the remedy of the defendant if he failed to appear?
The plaintiff is allowed to present evidence ex party.
The defendant may file a motion for reconsideration and state
his reason why he was not able to appear.
SEC. 6
Pre-trial brief
The parties shall file with the court and serve on the
adverse party, in such manner as shall ensure their receipt
thereof at least three (3) days before the date of the pre-trial,
their respective pre-trial briefs which shall contain, among
others:
(a) A statement of their willingness to enter into amicable
settlement or alternative modes of dispute resolution,
indicating the desired terms thereof;
(b) A summary of admitted facts and proposed stipulation of
facts;
(c) The issues to be tried or resolved;
(d) The documents or exhibits to be presented, stating the
purpose thereof;
(e) A manifestation of their having availed or their intention
to avail themselves of discovery procedures or referral
to commissioners; and
(f) The number and names of the witnesses, and the
substance of their respective testimonies.
Failure to file the pre-trial brief shall have the same
effect as failure to appear at the pre-trial.
When should a party file his pre-trial brief?
At least three (3) days before the date of the pre-trial
TN!
 This is not filing but it is service
SEC. 7
Record of pre-trial
The proceedings in the pre-trial shall be recorded.
Upon the termination thereof, the court shall issue an order
which shall recite in detail the matters taken up in the
conference, the action taken thereon, the amendments allowed
to the pleadings, and the agreements or admissions made by
the parties as to any of the matters considered. Should the
action proceed to trial, the order shall explicitly define and limit
the issues to be tried. The contents of the order shall control
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
the subsequent course of the action, unless modified before
trial to prevent manifest injustice.
The court shall issue an order which shall recite in
detail the matters taken up in the conference
For Example:
The Court shall state what are the facts
admitted if any, what are the exhibits marked.
--- 00 ---
July 11, 2016
RULE 19
Intervention
SEC. 1
Who may intervene?
A person who has a legal interest in the matter in
litigation, or in the success of either of the parties, or an
interest against both, or is so situated as to be adversely
affected by a distribution or other disposition of property in the
custody of the court or of an officer thereof may, with leave of
court, be allowed to intervene in the action. The court shall
consider whether or not the intervention will unduly delay or
prejudice the adjudication of the rights of the original parties,
and whether or not the intervenor's rights may be fully
protected in a separate proceeding.
“Legal interest in the matter of litigation”
For example:
In an action involving the estate of the decedent, the
heirs may intervene when they believe that the
administrator or the executor’s actions is prejudicial of
their interest.
“Interest in the success of either of the parties”
For example:
A creditor would file a case against the surety. The
principal debtor may intervene and unite with the surety to
resist the claim of the plaintiff creditor.
“Interest against both parties”
For example:
A case of recovery of possession over a parcel of
land: Mr. P filed against D for recovery of possession over a
parcel of land. Another person, Mr. O likewise claims to be the
owner of the party. He may intervene in the case.
--- 00 ---
The plaintiff filed a case against the defendant with
prayer of issuance of preliminary attachment. When the court
issued the writ, the sheriff attached a vehicle which is claimed
by another person. The sheriff believes that it was owned by
defendant but actually owned by the brother of the defendant.
What would be the remedy of the brother of the defendant? He
can file a motion for leave of court to intervene.
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The court will consider whether or not the intervention habeas corpus cases, election cases, special civil actions, and
will unduly delay or prejudice the adjudication of the right of the those so required by law.
original parties and whether or not the intervenor’s right may
be well protected in a separate proceeding.  After pretrial comes the trial, the duty to calendar the
cases scheduled for hearing belongs to the clerk of
Intervention is not a matter of right. It depends upon court.
the sound discretion of the court.  Preference are given to:
a) Habeas Corpus cases;
Remedies if Motion to intervene is denied b) Election cases;
1) File an appeal because the order of the court denying c) Special Civil Actions;
his motion is considered a final order or d) Those required by law
2) File a separate civil action;
3) File, if there is grave abuse of discretion, Mandamus SEC. 2
to compel the court to allow him to intervene Assignment of cases
--- 00 --- The assignment of cases to the different branches of
a court shall be done exclusively by raffle. The assignment
Third party complaint vs. Intervention shall be done in open session of which adequate notice shall
Third party Complaint Intervention be given so as to afford interested parties the opportunity to be
The third party plaintiff is The one who intervenes is not present.
already a party to the case a party to the case
as he is the defendant who  In multiple sala courts, the case is raffled to the
has a claim against a third different branches;
party  Some courts are subjected to electronic raffling (e-
--- 00 --- raffle) in preparation for the implementation of “E-
Court”
SEC. 2
Time to intervene
The motion to intervene may be filed at any time RULE 21
before rendition of judgment by the trial court. A copy of Subpoena
the pleading-in-intervention shall be attached to the motion and SEC. 1
served on the original parties. Subpoena and subpoena duces tecum
Subpoena is a process directed to a person requiring
him to attend and to testify at the hearing or the trial of an
action, or at any investigation conducted by competent
SEC. 3 authority, or for the taking of his deposition. It may also require
Pleadings-in-intervention him to bring with him any books, documents, or other things
The intervenor shall file a complaint-in-intervention if under his control, in which case it is called a subpoena duces
he asserts a claim against either or all of the original parties or tecum.
an answer-in-intervention if he unites with the defending party
in resisting a claim against the latter. Two kinds of Subpoena:
a. Subpoena Ad testificandum – required to present
Pleadings filed: oneself before the court;
 Complaint-in-intervention – if there is a claim b. Subpoena Duces Tecum – required to bring
against either/all of original parties; documents
 Answer-in-intervention – if intervenor unites with
defending party in resisting claim
Who can issue?
SEC. 4 SEC. 2
Answer to complaint-in-intervention By whom issued
The answer to the complaint-in-intervention shall be The subpoena may be issued by —
filed within fifteen (15) days from notice of the order (a) The court before whom the witness is required to
admitting the same, unless a different period is fixed by the attend;
court. (2[d]a, R12) (b) The court of the place where the deposition is to be
taken;
RULE 20 (c) The officer or body authorized by law to do so in
Calendar of Cases connection with investigations conducted by said
SEC. 1 officer or body; or
Calendar of cases (d) Any Justice of the Supreme Court or of the Court of
The clerk of court, under the direct supervision of the Appeals in any case or investigation pending within
judge, shall keep a calendar of cases for pre-trial, for trial, the Philippines.
those whose trials were adjourned or postponed, and those
with motions to set for hearing. Preference shall be given to When application for a subpoena to a
prisoner is made, the judge or officer shall examine

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As discussed by: Judge Debalucos
and study carefully such application to determine
whether the same is made for a valid purpose.
No prisoner sentenced to death, Reclusion
Perpetua or Life Imprisonment and who is confined in
any penal institution shall be brought outside the said
penal institution for appearance or attendance in any
court unless authorized by the Supreme Court.
“Officer or body authorized by law to do so in connection
with investigations conducted by said officer or body”
Issuance of subpoena is not exclusive to the court.
There are some agencies that can issue subpoena.
For Example:
1. Police
2. NBI
3. Prosecutor’s Office
SEC. 3
Form and contents
A subpoena shall state the name of the court and the
title of the action or investigation, shall be directed to the
person whose attendance is required, and in the case of a
subpoena duces tecum, it shall also contain a reasonable
description of the books, documents or things demanded which
must appear to the court prima facie relevant.
 Subpoena to state the name of the court and title of
the action/investigation
o Subpoena Ad Testificandum – directed to
the person who is required to attend
o Subpoena Duces Tecum – to also contain
reasonable description of the books,
documents, or things demanded. It is not
limited to documents but include objects i.e.
firearms, shabu.
For Example:
The police is required to bring the firearm
confiscated from the accused. A subpoena duces
tecum will be issued and the firearm must be
described i.e. caliber 45 with marking
SEC. 4
Quashing a subpoena
The court may quash a subpoena duces tecum upon
motion promptly made and, in any event, at or before the time
specified therein if it is unreasonable and oppressive, or the
relevancy of the books, documents or things does not appear,
or if the person in whose behalf the subpoena is issued fails to
advance the reasonable cost of the production thereof.
The court may quash a subpoena ad testificandum on
the ground that the witness is not bound thereby. In either
case, the subpoena may be quashed on the ground that the
witness fees and kilometrage allowed by these Rules were not
tendered when the subpoena was served.
“Quash” – to set aside
Grounds for quashing the subpoena:
a) Unreasonable and oppressive
b) The relevancy of the books, documents or things
does not appear;
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
c) The person in whose behalf the subpoena is issued
fails to advance the reasonable cost of the production
thereof
For Example:
You want the person to bring sacks of documents.
Where would he get the money to pay for the
transportation? Reasonable cost should be given.
d) If subpoena ad testificandum on the ground that the
witness is not bound thereby
“Viatory right of the witness”
For example:
In a civil case, the witness is not bound by a
subpoena ad testificandum if he is residing more than 100 km.
away from the court. the witness has the right to refuse the
subpoena if he is residing more than 100 km. away from the
court.
This right is available only to Civil Cases. In criminal
cases, the People of the Philippines has a lot of resources to
bring the witness to the court unlike in a civil case.
SEC. 5
Subpoena for depositions
Proof of service of a notice to take a deposition, as
provided in sections 15 and 25 of Rule 23, shall constitute
sufficient authorization for the issuance of subpoenas for the
persons named in said notice by the clerk of the court of the
place in which the deposition is to be taken. The clerk shall not,
however, issue a subpoena duces tecum to any such person
without an order of the court.
How should the subpoena be served?
SEC. 6
Service
Service of a subpoena shall be made in the same
manner as personal or substituted service of summons.
The original shall be exhibited and a copy thereof delivered to
the person on whom it is served, tendering to him the fees for
one day's attendance and the kilometrage allowed by these
Rules, except that, when a subpoena is issued by or on behalf
of the Republic of the Philippines or an officer or agency
thereof, the tender need not be made. The service must be
made so as to allow the witness a reasonable time for
preparation and travel to the place of attendance. If the
subpoena is duces tecum, the reasonable cost of producing
the books, documents or things demanded shall also be
tendered.
 Subpoena is served through service in person or
substituted service
SEC. 7
Personal appearance in court
A person present in court before a judicial officer may
be required to testify as if he were in attendance upon a
subpoena is issued by such court or officer.
Remedy in case witness fails to obey the subpoena
SEC. 8
Compelling attendance
In case of failure of a witness to attend, the court or
judge issuing the subpoena, upon proof of the service thereof
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and of the failure of the witness, may issue a warrant to the
sheriff of the province, or his deputy, to arrest the witness and
bring him before the court or officer where his attendance is
required, and the cost of such warrant and seizure of such
witness shall be paid by the witness if the court issuing it shall
determine that his failure to answer the subpoena was willful
and without just excuse.
 The court may issue a “Bench Warrant”. It is a
warrant issued by the court to a witness who disobeys
a subpoena.
In criminal procedure, a warrant is issued when a
case is already filed before the court. In this case, there is no
case filed against the witness. There is only an order
compelling him to be present or bring document or things. The
court then may issue a Warrant of Arrest or “Bench Warrant” to
compel attendance.
SEC. 9
Contempt
Failure by any person without adequate cause to
obey a subpoena served upon him shall be deemed contempt
of the court from which the subpoena is issued. If the
subpoena was not issued by a court, the disobedience thereto
shall be punished in accordance with the applicable law or
Rule.
 The court will likewise ask the witness why he should
not be cited in contempt. If the court is not satisfied,
the court will cite the witness in “Indirect Contempt”
under Rule 71 of the Rules of Court.
 It’s only the court that can declare or cite a person
with contempt. There are other offices such as the
Police or other Agencies, wherein they have the
power to issue subpoena; but they can’t cite person
with contempt. So they would file a petition in Court
to cite a person with indirect contempt for failure to
obey the subpoena.
SEC 10
Exceptions
The provisions of sections 8 and 9 of this Rule shall
not apply to a witness who resides more than one hundred
(100) kilometers from his residence to the place where he is to
testify by the ordinary course of travel, or to a detention
prisoner if no permission of the court in which his case is
pending was obtained
This is already discussed. Applicable only to CIVIL CASES
This section pertains to the VIATORY RIGHT of the witness,
which refers to the right of the witness not obey the subpoena
if he is residing more than 100 kilometers away from the court.
RULE 22
Calendar of Cases
Rule:
 Exclude the first but include the last.
 When the last day falls on a holiday/ Sunday/
Saturday = there is an automatic extension.
For Example:
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
The last day is on Saturday, there is an automatic
extension of 2 days, which is until Monday. If you want to file a
motion for extension on Monday, that is allowed still because
Monday is the last day, applying this rule.
MODES of DISCOVERY (6)
(MEMORIZE: ask in the BAR)
Judge D: already asked in the bar so might be asked in the
PRELIM, explain each briefly 
RULE 23-29
1. Deposition pending action (Rule 23)
2. Deposition before action or pending appeal (Rule 24)
3. Interrogatories to Parties (Rule 25)
4. Admission by Adverse Party (Rule 26)
5. Production or inspection of Documents or Things (Rule
27)
6. Physical and mental examination of Persons (Rule 28)
RULE 23
DEPOSITION PENDING APPEAL
What is a deposition?
It is the advance taking of the testimony of a witness
because there is a possibility that the witness could no longer
testify during the trial. It is just the same in court where there is
direct, re-direct, cross or re-cross examination, only that the
taking of the testimony is made in advance.
SEC 1
Depositions pending action, when may be taken
By leave of court after jurisdiction has been obtained
over any defendant or over property which is the subject of the
action, or without such leave after an answer has been served,
the testimony of any person, whether a party or not, may be
taken, at the instance of any party, by deposition upon oral
examination or written interrogatories. The attendance of
witnesses may be compelled by the use of a subpoena as
provided in Rule 21. Depositions shall be taken only in
accordance with these Rules. The deposition of a person
confined in prison may be taken only by leave of court on such
terms as the court prescribes.
a) WITH LEAVE OF COURT
 The taking of the testimony could be done by leave of
court after jurisdiction has been obtained over any
defendant or over the property which is the subject of
the action.
 NOT REQUIRED that the court has acquire
jurisdiction over all of the defendants, deposition
could be take if the court has already acquire
jurisdiction in ANY of the defendant.
b) WITHOUT LEAVE
 After an answer has been served.
Whose deposition is taken?
- Any person, whether a party or not.
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How is deposition taken?
- Orally but must be recorded OR under written
interrogatories.
What is a “written interrogatories”?
- The questions and answers of witness are done in
writing. The questions in the cross examination is also
in writing.
[Recap]
2 types of Deposition (Rule 23)
1. Oral but recorded (commonly availed of and this is
similar to the proceedings in court)
2. Written interrogatories
TN!
 The attendance of witnesses may be compelled by
the use of subpoena as provided under Rule 21.
Purpose of Modes of Discovery:
To know the material facts or evidences which the
adverse party is keeping which are adversarial to them.
When done?
 Before pre-trial, it could be right after the court
acquires jurisdiction of any of the defendants or it
could be upon filing of the answer. It could also be
done after pre-trial or during trial.
 There is no rule that limits the deposition taking only
during the period of pre-trial or before it. No
prohibition exists for the taking of the deposition after
pre-trial. [Pajarrilaga vs CA October 31, 2008]
But usually the modes of discovery before pre-trial or
trial because the purpose of availing the modes of discovery is
to know the evidence’s of the adverse party’s. (Judge D: aron
ma bisto, and the adverse party will have no other choice but
to enter into a compromise agreement)
Read the case: San Luis vs Rojas March 3, 2008,
about the making of a deposition.
The court should encourage the use of the modes of
discovery because it will facilitate amicable settlements;
therefore it would hasten the disposal of the case. Although,
the use of the mode of discovery is fairly encouraged, it is not
mandatory. But there are instances where the court may
sanction if some modes are not availed of, which we will
discuss later.
Benefits of the use of a deposition:
 The witness’ memory, while waiting for trial, will later
on fail because of the lapse of time. Most likely the
witness will already forget the details, whereas if a
deposition is taken when the circumstances of the
case are still fresh, then it will facilitate the truth.
 It would also prevent perjury or false testimony
because the matter that the witness will testify is still
fresh in his memory. And the witness is not coached.
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 It is also an effective means of detecting and
exposing fake, fraudulent and sham claims or
defenses and so on.
 It would also prevent delays because depositions may
expose false claims or defenses.
 There is a possibility that the parties will enter into
compromise agreement so that would facilitate the
disposal of the case.
Fortune Corp. v CA GR 108119 Jan. 19, 1994
What is the scope of the testimony of the witness?
SEC. 2
Scope of examination
Unless otherwise ordered by the court as provided by
section 16 or 18 of this Rule, the deponent may be examined
regarding any matter, not privileged, which is relevant to the
subject of the pending action, whether relating to the claim or
defense of any other party, including the existence, description,
nature, custody, condition, and location of any books,
documents, or other tangible things and the identity and
location of persons having knowledge of relevant facts
The witness can be examined on any matter except
those matters which are confidential or privilege by their nature
or prohibited by the court.
SEC. 3
Examination and cross-examination
Examination and cross-examination of deponents
may proceed as permitted at the trial under sections 3 to 18 of
Rule 132
NO DENIAL OF DUE PROCESS
Although the testimony of the witness is taken in
advance, the witness could also be subjected to cross-
examination so there is no denial of due process and the
proceedings is just similar to that in court.
For example:
Your witness is sick like he has cancer. How could he
testify if he were dead already by the time you needed him to
testify in court? That’s one circumstance when testimony is
taken in advance.
What if after taking depositions, your witness is cured
of cancer? And he was alive by the time he was scheduled to
testify? What should be done in this circumstance?
He should testify. If the witness is available at the time
he was set to testify-- he should testify. The deposition was
taken just in case he wouldn’t be available. So the witness
must go to court and testify.
Suppose the witness would not testify?
Subpoena will be issued on him. If he refused, a
warrant of arrest could be issued against him.
What will be the use now of his deposition if he is
already available to testify?
His deposition could be used to impeach his own
testimony. It could be used to destroy his credibility if it is
contrary to his open court testimony.
SEC. 4
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Use of depositions evidence is given much weight by the court.

At the trial or upon the hearing of a motion or an
interlocutory proceeding, any part or all of a deposition, so far Remember in evidence, when your witness is the
as admissible under the rules of evidence, may be used adverse party, you may use leading questions.
against any party who was present or represented at the taking
of the deposition or who had due notice thereof, in accordance Paragraph C
with any one of the following provisions; What if the witness was killed to prevent him from
a) Any deposition may be used by any party for the testifying in open court, will the deposition be allowed?
purpose of contradicting or impeaching the testimony No, because the non-production of the witness is
of deponent as a witness; caused by the party offering the deposition.
b) The deposition of a party or of any one who at the
time of taking the deposition was an officer, director, TN!
or managing agent of a public or private corporation,  If the witness is available he should testify in court; his
partnership, or association which is a party may be deposition can be used to impeach his testimony. But
used by an adverse party for any purpose; his deposition can’t take the place of his testimony.
c) The deposition of a witness, whether or not a party,
 But if for example, that deposition is that of the
may be used by any party for any purpose if the court
adverse party, such may be used by the other party.
finds: (1) that the witness is dead, or (2) that the
witness resides at a distance more than one hundred
SEC. 5
(100) kilometers from the place of trial or hearing, or
Effect of substitution of parties
is out of the Philippines, unless it appears that his
Substitution of parties does not affect the right to use
absence was procured by the party offering the
depositions previously taken; and, when an action has been
deposition, or (3) that the witness is unable to attend
dismissed and another action involving the same subject is
or testify because of age, sickness, infirmity, or
afterward brought between the same parties or their
imprisonment, or (4) that the party offering the
representatives or successors in interest, all depositions
deposition has been unable to procure the attendance
lawfully taken and duly filed in the former action may be used
of the witness by subpoena; or (5) upon application
in the latter as if originally taken therefor.
and notice, that such exceptional circumstances exist
as to make it desirable, in the interest of justice and
SEC. 6
with due regard to the importance of presenting the
Objections to admissibility
testimony of witnesses orally in open court, to allow
Subject to the provisions of section 29 of this Rule,
the deposition to be used; and
objection may be made at the trial or hearing, to receiving in
d) If only part of a deposition is offered in evidence by a
evidence any deposition or part thereof for any reason which
party, the adverse party may require him to introduce
would require the exclusion of the evidence if the witness were
all of it which is relevant to the part introduced, and
then present and testifying
any party may introduce any other parts.
OBJECTIONS ON DEPOSITION
Deposition can be introduced:
What if the deposition of the witness is produced
a) during the trial or
despite the availability of that witness, what would be the
b) upon the hearing of a motion or
ground for objection? How will you object? That can be
c) of an interlocutory proceeding.
objected on the ground of hearsay.
Any part or all of a deposition so far as admissible
During the taking of deposition the adverse party may
under the rules of evidence may be used against any party
raise objections just like in open court however considering
who was:
that the objection was not made in court but before a
 present; or
deposition officer, the deposition officer does not have the
 represented at the taking of the deposition; or
power to rule on the objection. The deposition officer can
 who had due notice thereof
merely note down the objections.
Suppose the witness died after the taking of the
testimony? The deposition will be taken in lieu of his open
For example:
court testimony.
He objects on the ground of hearsay. The deposition
officer merely says “Noted”.
For example:
P files a case against D; Can P use D as his witness
SEC. 7
during the trial? Yes.
Effect of taking depositions
A party shall not be deemed to make a person his
TN!
own witness for any purpose by taking his deposition.
 A party can use the adverse party as his witness. Of
course the adverse party will testify against the other The party taking the deposition of another person
party but there could be other matter that he could not cannot be considered as making that person as his witness
deny such as those matters that are supported by because deposition is merely a mode of discovery.
documents. SEC. 8
 When the adverse party testify and he admits matters Effect of using depositions
in his testimony favorable to the other party, such

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The introduction in evidence of the deposition or any
part thereof for any purpose other than that of contradicting or
impeaching the deponent makes the deponent the witness of
the party introducing the deposition, but this shall not apply to
the use by an adverse party of a deposition as described in
paragraph (b) of section 4 of this Rule.
The party taking the deposition cannot be compelled
to introduce such deposition as his evidence. But when he
introduced the same as his evidence then consequently the
deponent is considered as his witness.
SEC. 9
Rebutting deposition
At the trial or hearing any party may rebut any
relevant evidence contained in a deposition whether introduced
by him or by any other party.
REBUTTAL IN DEPOSITION
At the trial any party may rebut the contents of the deposition;
For example:
I took his deposition and part of it is unfavorable to me then I
can rebut it. As a rule, I am not compelled to introduce it as my
evidence and him as my witness even I take his depositions.
SEC. 10
Persons before whom depositions may be taken
within the Philippines
Within the Philippines depositions may be taken
before any judge, notary public, or the person referred to in
section 14 hereof.
Persons authorized to administer oaths aside from a notary
public:
 Mayor
 Governor
 Barangay Captain
What about in the foreign countries? Who can take the
deposition if the witness is in abroad?
SEC. 11
Persons before whom depositions may be taken
in foreign countries
In a foreign state or country, depositions may be
taken
a) on notice before a secretary of embassy or legation,
consul general, consul, vice-consul, or consular agent
of the Republic of the Philippines,
b) before such person or officer as may be appointed by
commission or under letters rogatory; or
c) The person referred to in section 14 hereof.
So the court will issue an order directing the taking of the
testimony of the deposition before the embassy consul etc.
That order of the court is called as "commission".
The court will issue an order authorizing the consul to take the
deposition of the witness.
--- 00 ---
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If the witness is living in a country where we don't have any
diplomatic relationship, how can the deposition of the witness
be taken? Through letters rogatory.
SEC. 12
Commission or letters rogatory
A commission or letters rogatory shall be issued only
when necessary or convenient, on application and notice, and
on such terms, and with such direction as are just and
appropriate. Officers may be designated in notices or
commissions either by name or descriptive title and letters
rogatory may be addressed to the appropriate judicial authority
in the foreign country.
“LETTERS ROGATORY”
It is a request made by the court where the case is
pending to another court outside our country where the witness
is found, to facilitate the taking of the deposition.
TN!
 Letters rogatory is a mere request. That can be
refused/agreed by the court. In issuing such request,
there should be an addendum stating "If you also
have a request, I will return the favor."
 Letters rogatory is available only if there's no
consulate office in the country where the witness is
found.
 The rules for the taking of the deposition is governed
by the rules of the foreign court where the letters
rogatory is sent.
SEC. 13
Disqualification by interest
No deposition shall be taken before a person who is a
relative within the sixth degree of consanguinity or affinity, or
employee or counsel of any of the parties, or who is a relative
within the same degree, or employee of such counsel; or who
is financially interested in the action.
In other words, a relative can't be a deposition officer. If the
parties will agree, the taking of the deposition can be done
before any person authorized to administer oath.
SEC. 14
Stipulations regarding taking of depositions
If the parties so stipulate in writing, depositions may
be taken before any person authorized to administer oaths, at
any time or place, in accordance with these Rules and when so
taken may be used like other depositions.
SEC. 15
Deposition upon oral examination; notice; time and place
A party desiring to take the deposition of any person
upon oral examination shall give reasonable notice in writing,
to every other party to the action. The notice shall state the
time and place for taking the deposition and the name and
address of each person to be examined, if known, and if the
name is not known, a general description sufficient to identify
him or the particular class or group to which he belongs. On
motion of any party upon whom the notice is served, the court
may for cause shown enlarge or shorten the time.
SEC. 16
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Orders for the protection of parties and deponents
After notice is served for taking a deposition by oral
examination, upon motion seasonably made by any party or by
the person to be examined and for good cause shown, the
court in which the action is pending may make an order that
the deposition shall not be taken, or that it may be taken only
at some designated place other than that stated in the notice,
or that it may be taken only on written interrogatories, or that
certain matters shall not be inquired into, or that the scope of
the examination shall be held with no one present except the
parties to the action and their officers or counsel, or that after
being sealed the deposition shall be opened only by order of
the court, or that secret processes, developments, or research
need not be disclosed, or that the parties shall simultaneously
file specified documents or information enclosed in sealed
envelopes to be opened as directed by the court or the court
may make any other order which justice requires to protect the
party or witness from annoyance, embarrassment, or
oppression.
SEC. 17
Record of examination, oath; objections
The officer before whom the deposition is to be taken
shall put the witness on oath and shall personally, or by
someone acting under his direction and in his presence, record
the testimony of the witness. The testimony shall be taken
stenographically unless the parties agree otherwise. All
objections made at the time of the examination to the
qualifications of the officer taking the deposition, or to the
manner of talking it, or to the evidence presented, or to the
conduct of any party, and any other objection to the
proceedings, shall be noted by the officer upon the deposition.
Evidence objected to shall be taken subject to the objections.
In lieu of participating in the oral examination, parties served
with notice of taking a deposition may transmit written
interrogatories to the officers, who shall propound them to the
witness and record the answers verbatim.
TN!
 After the notice is served for the taking of deposition
by oral examination, now upon motion the court in
which the action is pending may make an order that
the deposition may not be taken or it may be taken
but subject to conditions e.g it will be taken only in a
particular place or thru written interrogatories or
certain matters shall not be taken into.
 The deposition has no authority to rule on the
objection, he will only say "NOTED".
What will happen to the objection?
Once the deposition is submitted in the court and it will be used
as evidence. The Court will have to rule on the objection.
SEC. 18
Motion to terminate or limit examination
At any time during the taking of the deposition, on
motion or petition of any party or of the deponent, and upon a
showing that the examination is being conducted in bad faith or
in such manner as unreasonably to annoy, embarrass, or
oppress the deponent or party, the court in which the action is
pending or the Regional Trial Court of the place where the
deposition is being taken may order the officer conducting the
examination to cease forthwith from taking the deposition, or
may limit the scope and manner of the taking of the deposition,
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as provided in section 16 of this Rule. If the order made
terminates the examination, it shall be resumed thereafter only
upon the order of the court in which the action is pending.
Upon demand of the objecting party or deponent, the taking of
the deposition shall be suspended for the time necessary to
make a notice for an order. In granting or refusing such order,
the court may impose upon either party or upon the witness the
requirement to pay such costs or expenses as the court may
deem reasonable.
Where can you file the motion?
In the court where the case is pending or in any RTC where
the deposition is being taken
SEC. 19
Submission to witness; changes; signing
When the testimony is fully transcribed, the deposition
shall be submitted to the witness for examination and shall be
read to or by him, unless such examination and reading are
waived by the witness and by the parties. Any changes in form
or substance which the witness desires to make shall be
entered upon the deposition by the officer with a statement of
the reasons given by the witness for making them. The
deposition shall then be signed by the witness, unless the
parties by stipulation waive the signing or the witness is ill or
cannot be found or refuses to sign. If the deposition is not
signed by the witness, the officer shall sign it and state on the
record the fact of the waiver or of the illness or absence of the
witness or the fact of the refusal to sign together with the
reason be given therefor, if any, and the deposition may then
be used as fully as though signed, unless on a motion to
suppress under section 29 (f) of this Rule, the court holds that
the reasons given for the refusal to sign require rejection of the
deposition in whole or in part.
TN!
 State the reason/s why the witness was not able to
sign the deposition.
SEC. 20
Certification, and filing by officer
The officer shall certify on the deposition that the
witness was duly sworn to by him and that the deposition is a
true record of the testimony given by the witness. He shall then
securely seal the deposition in an envelope indorsed with the
title of the action and marked "Deposition of (here insert the
name of witness)" and shall promptly file it with the court in
which the action is pending or send it by registered mail to the
clerk thereof for filing.
SEC. 21
Notice of filing
The officer taking the deposition shall give prompt
notice of its filing to all the parties.
SEC. 22
Furnishing copies
Upon payment of reasonable charges therefor, the
officer shall furnish a copy of the deposition to any party or to
the deponent.
What would happen if the party giving notice to the deposition
failed to attend?
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SEC. 23
Failure to attend of party giving notice
If the party giving the notice of the taking of a
deposition fails to attend and proceed therewith and another
attends in person or by counsel pursuant to the notice, the
court may order the party giving the notice to pay such other
party the amount of the reasonable expenses incurred by him
and his counsel in so attending, including reasonable
attorney's fees.
What about if the party asking for the taking attended, but the
witness didn't attend?
SEC. 24
Failure of party giving notice to serve subpoena
If the party giving the notice of the taking of a
deposition of a witness fails to serve a subpoena upon him and
the witness because of such failure does not attend, and if
another party attends in person or by counsel because he
expects the deposition of that witness to be taken, the court
may order the party giving the notice to pay to such other party
the amount of the reasonable expenses incurred by him and
his counsel in so attending, including reasonable attorney's
fees.
TN!
 Written interrogatories mean that the questions are in
writing.
 It can be used in times when the witness lives in a far
place. So instead of letting the counsel go to the
witness, he can mail the questions to the deposition
officer.
 The other party may also serve his cross
interrogatories.
 The answer of the witness should be in writing.
SEC. 25
Deposition upon written interrogatories; service
of notice and of interrogatories
A party desiring to take the deposition of any person
upon written interrogatories shall serve them upon every other
party with a notice stating the name and address of the person
who is to answer them and the name or descriptive title and
address of the officer before whom the deposition is to be
taken. Within ten (10) days thereafter, a party so served may
serve cross-interrogatories upon the party proposing to take
the deposition. Within five (5) days thereafter, the latter may
serve re-direct interrogatories upon a party who has served
cross-interrogatories. Within three (3) days after being served
with re-direct interrogatories, a party may serve recross-
interrogatories upon the party proposing to take the deposition.
According to the Supreme Court, the adverse party
cannot claim that he is not given his right to cross because
under Section 25 the adverse party can serve cross
interrogatories.
SEC. 26
Officers to take responses and prepare record
A copy of the notice and copies of all interrogatories
served shall be delivered by the party taking the deposition to
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the officer designated in the notice, who shall proceed
promptly, in the manner provided by sections 17, 19 and 20 of
this Rule, to take the testimony of the witness in response to
the interrogatories and to prepare, certify, and file or mail the
deposition, attaching thereto the copy of the notice and the
interrogatories received by him.
TN!
 The questions should be given to the deposition
officer.
--- 00 ---
SEC. 27
Notice of filing and furnishing copies
When a deposition upon interrogatories is filed, the
officer taking it shall promptly give notice thereof to all the
parties, and may furnish copies to them or to the deponent
upon payment of reasonable charges therefor.
SEC. 28
Order for the protection of parties and deponents
After the service of the interrogatories and prior to the
taking of the testimony of the deponent, the court in which the
action is pending, on motion promptly made by a party or a
deponent, and for good cause shown, may make any order
specified in sections 15, 16 and 18 of this Rule which is
appropriate and just or an order that the deposition shall not be
taken before the officer designated in the notice or that it shall
not be taken except upon oral examination.
SEC. 29
Effect of errors and irregularities in depositions
a) As to notice. — All errors and irregularities in the
notice for taking a deposition are waived unless
written objection is promptly served upon the party
giving the notice.
b) As to disqualification of officer. — Objection to taking
a deposition because of disqualification of the officer
before whom it is to be taken is waived unless made
before the taking of the deposition begins or as soon
thereafter as the disqualification becomes known or
could be discovered with reasonable diligence.
c) As to competency or relevancy of evidence. —
Objections to the competency of witness or the
competency, relevancy, or materiality of testimony are
not waived by failure to make them before or during
the taking of the deposition, unless the ground, of the
objection is one which might have been obviated or
removed if presented at that time.
d) As to oral examination and other particulars. — Errors
and irregularities occurring at the oral examination in
the manner of taking the deposition in the form of the
questions or answers, in the oath or affirmation, or in
the conduct of the parties and errors of any kind
which might be obviated, removed, or cured if
promptly prosecuted, are waived unless reasonable
objection thereto is made at the taking of the
deposition.
e) As to form of written interrogatories. — Objections to
the form of written interrogatories submitted under
sections 25 and 26 of this Rule are waived unless
served in writing upon the party propounding them
within the time allowed for serving succeeding cross
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or other interrogatories and within three (3) days after
service of the last interrogatories authorized.
f) As to manner of preparation. — Errors and
irregularities in the manner in which the testimony is
transcribed or the deposition is prepared, signed,
certified, sealed, indorsed, transmitted, filed, or
otherwise dealt with by the officer under sections 17,
19, 20 and 26 of this Rule are waived unless a motion
to suppress the deposition or some part thereof is
made with reasonable promptness after such defect
is, or with due diligence might have been,
ascertained.
RULE 24
Depositions before Action or Pending Appeal
SEC. 1
Depositions before action; petition
A person who desires to perpetuate his own
testimony or that of another person regarding any matter that
may be cognizable in any court of the Philippines may file a
verified petition in the court of the place of the residence of any
expected adverse party.
TN!
 Under Section 1, there is no case yet filed. The
plaintiff has a prospective witness who may not be
able to testify during the trial. He has to file a verified
petition in court for the taking of the deposition.
In Rule 23, we learned that there is already a case filed in
court.
What you should file a petition? Not a motion?
Because a motion presupposes that there is already a pending
case.
 Since there is no pending case yet, what he has to file
is a petition to take deposition.
The latin term for this is depositions in Perpetuam Rei
Memoriam. If case has already been filed, Rule 23 will apply.
This rule shall be applicable only to civil cases.
SEC. 2
Contents of petition
The petition shall be entitled in the name of the
petitioner and shall show:
a) that the petitioner expects to be a party to an action in
a court of the Philippines but is presently unable to
bring it or cause it to be brought;
b) the subject matter of the expected action and his
interest therein;
c) the facts which he desires to establish by the proposed
testimony and his reasons for desiring to perpetuate it;
d) the names or a description of the persons he expects
will be adverse parties and their addresses so far as
known; and
e) the names and addresses of the persons to be
examined and the substance of the testimony which he
expects to elicit from each, and shall ask for an order
authorizing the petitioner to take the depositions of the
persons to be examined named in the petition for the
purpose of perpetuating their testimony.
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Where do you file this petition?
In the place of the residence of any expected adverse party.
The general rule on venue will not apply here.
SEC. 3
Notice and service
The petitioner shall serve a notice upon each person
named in the petition as an expected adverse party, together
with a copy of the petition, stating that the petitioner will apply
to the court, at a time and place named therein, for the order
described in the petition. At least twenty (20) days before the
date of the hearing, the court shall cause notice thereof to be
served on the parties and prospective deponents in the
manner provided for service of summons.
The court will not issue summons but instead notice.
--- 00 ---
SEC. 4
Order and examination
If the court is satisfied that the perpetuation of the
testimony may prevent a failure or delay of justice, it shall
make an order designating or describing the persons whose
deposition may be taken and specifying the subject matter of
the examination and whether the depositions shall be taken
upon oral examination or written interrogatories. The
depositions may be taken in accordance with Rule 23 before
the hearing.
SEC. 5
Reference to court
For the purpose of applying Rule 23 to depositions for
perpetuating testimony, each reference therein to the court in
which the action is pending shall be deemed to refer to the
court in which the petition for such deposition was filed.
SEC. 6
Use of deposition
If a deposition to perpetuate testimony is taken under
this Rule, or if, although not so taken, it would be admissible in
evidence, it may be used in any action involving the same
subject matter sub-sequently brought in accordance with the
provisions of sections 4 and 5 of Rule 23.
The taking of the depositions, the same rules in Rule
23 will apply.
SEC. 7
Depositions pending appeal
If an appeal has been taken from a judgment of a
court, including the Court of Appeals in proper cases, or before
the taking of an appeal if the time therefor has not expired, the
court in which the judgment was rendered may allow the taking
of depositions of witnesses to perpetuate their testimony for in
the event of further proceedings in the said court. In such case
the party who desires to perpetuate the testimony may make a
motion in the said court for leave to take the depositions, upon
the same notice and service thereof as if the action was
pending therein. The motion shall state
(a) the names and addresses of the persons to be
examined and the substance of the testimony which
he expects to elicit from each, and
(b) the reason for perpetuating their testimony. If the
court finds that the perpetuation of the testimony is
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As discussed by: Judge Debalucos
proper to avoid a failure or delay of justice, it may
make an order allowing the deposition to be taken,
and thereupon the depositions may be taken and
used in the same manner and under the same
conditions as are prescribed in these Rules for
depositions taken in pending actions.
This Section 7 is different because the case here has already
been decided, the decision has been rendered and the case
now is pending appeal. So why is there a need for
depositions? Is there presentation of evidence in the appeal?
For Example:
A party lost his case. Before the decision became
final he filed a motion for new trial because he found new and
material evidence or that he should be allowed to present a
newly discovered witness.
Supposed his motion for new trial is denied by the
court, what is your remedy? Appeal. Now the witness who is
going to present is dying. The court granted the appeal, so
because the witness is dying, you can ask to take deposition of
your dying witness. By this time you file motion (as compared
to petition) because there is already a pending case. So that is
Section 7.
RULE 25
Interrogatories to Parties
Written interrogatories through deposition vs. Interrogatories to
parties.
Written interrogatories Interrogatories to parties
through deposition
1. Deposition officer is 1. Deposition officer is
needed not needed
2. May serve to the 2. Given to the adverse
ordinary witness party
SEC. 1
Interrogatories to parties; service thereof
Under the same conditions specified in section 1 of
Rule 23, any party desiring to elicit material and relevant facts
from any adverse parties shall file and serve upon the latter
written interrogatories to be answered by the party served or, if
the party served is a public or private corporation or a
partnership or association, by any officer thereof competent to
testify in its behalf.
SEC. 2
Answer to interrogatories
The interrogatories shall be answered fully in writing
and shall be signed and sworn to by the person making them.
The party upon whom the interrogatories have been served
shall file and serve a copy of the answers on the party
submitting the interrogatories within fifteen (15) days after
service thereof unless the court on motion and for good cause
shown, extends or shortens the time.
TN of the word “shall”
What would be the effect if it is the plaintiff who submitted the
written interrogatories to the defendant and the defendant fails
to answer those questions?
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
Take note that he can be declared in default even if he has
already filed his answer.
What about if it is the defendant who served the written
interrogatories to the plaintiff and the plaintiff fails to answer?
The complaint could be dismissed. Or the parties can be cited
in contempt. The penalties can be found in Rule 29, Section 1
and 3 par.c.
 Interrogatories to parties can be resorted to even if
the party resorting to it has also resorted to deposition
because the modes of discovery are not mutually
exclusive.
 The availment of one would not exclude the others.
SEC. 3
Objections to interrogatories
Objections to any interrogatories may be presented to
the court within ten (10) days after service thereof, with notice
as in case of a motion; and answers shall be deferred until the
objections are resolved, which shall be at as early a time as is
practicable.
SEC. 4
Number of interrogatories
No party may, without leave of court, serve more than one set
of interrogatories to be answered by the same party.
SEC. 5
Scope and use of interrogatories
Interrogatories may relate to any matters that can be
inquired into under section 2 of Rule 23, and the answers may
be used for the same purposes provided in section 4 of the
same Rule.
SEC. 6
Effect of failure to serve written interrogatories
Unless thereafter allowed by the court for good cause
shown and to prevent a failure of justice, a party not served
with written interrogatories may not be compelled by the
adverse party to give testimony in open court, or to give a
deposition pending appeal.
So parties are encouraged avail modes of discovery so those
facts and evidence will come out and so they will compel to
enter compromise agreement.
--- 00 ---
RULE 26
Admission by Adverse Party
SEC. 1
Request for admission
At any time after issues have been joined, a party
may file and serve upon any other party may file and serve
upon any other party a written request for the admission by the
latter of the genuineness of any material and relevant
document described in and exhibited with the request or of the
truth of any material and relevant matter of fact set forth in the
request. Copies of the documents shall be delivered with the
request unless copy have already been furnished.
So this is a request for the admission of the genuineness of the
document.
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For Example:
A demand letter sent to the defendant. If admitted,
that is considered judicial admission and there is no need to
present a witness in order to prove the genuineness of the
document. But the documents here are not actionable
document because actionable document should be pleaded
properly.
SEC. 2
Implied admission
Each of the matters of which an admission is
requested shall be deemed admitted unless, within a period
designated in the request, which shall not be less than fifteen
(15) days after service thereof, or within such further time as
the court may allow on motion, the party to whom the request
is directed files and serves upon the party requesting the
admission a sworn statement either denying specifically the
matters of which an admission is requested or setting forth in
detail the reasons why he cannot truthfully either admit or deny
those matters.
Objections to any request for admission shall be
submitted to the court by the party requested within the period
for and prior to the filing of his sworn statement as
contemplated in the preceding paragraph and his compliance
therewith shall be deferred until such objections are resolved,
which resolution shall be made as early as practicable.
Matters already admitted in the answer or documents whose
genuineness had already been admitted need not be admitted
again.
What if you did not answer?
It is deemed admitted. It is considered as a judicial
admission and the effect of a judicial admission is that it no
longer requires proof.
TN!
 The admission is only available to that pending action
To whom request for admission be given?
The request for admission must be given to the party himself.
TN!
 this request for admission is an exception to the rule,
because when we know that if a party is represented
by a counsel, the papers pertaining to such case are
send to the counsel, but this request for admission
must be made to the party himself
[DUQUE VS CA 125383 JULY 2, 2002]
The copy of the request for admission was served
only upon the counsel of the party who requested, it was held
that there was insufficient compliance with rule 26, the general
rule that notices would be serve on the counsel of the parties
cannot apply where the rules expressly provides and thus it
should be serve upon a definite person. Section 1 of this rule
provides that the request for admission should be served on
the party to whom the request is directed. It must be served on
the party himself.
But the answer to the request for admission was held
by the court to be properly served, which was signed and
sworn by the counsel of the party so requested.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
SEC. 3
Effect of admission
Any admission made by a party pursuant to such request is for
the purpose of the pending action only and shall not constitute
an admission by him for any other purpose nor may the same
be used against him in any other proceeding
There can be withdrawal of the admission.
SEC. 4
Withdrawal
The court may allow the party making an admission
under the Rule, whether express or implied, to withdraw or
amend it upon such terms as may be just.
What is the effect for failure to fail and serve request for
admission? The party who fails to file and serve request for
admission cannot compel the party to be his witness
SEC. 5
Effect of failure to file and serve request for admission
Unless otherwise allowed by the court for good cause
shown and to prevent a failure of justice a party who fails to file
and serve a request for admission on the adverse party of
material and relevant facts at issue which are, or ought to be,
within the personal knowledge of the latter, shall not be
permitted to present evidence on such facts.
--- 00 ---
Another mode of discovery is:
RULE 27
Production or Inspection of Documents or Things
SEC. 1
Motion for production or inspection; order
Upon motion of any party showing good cause therefor, the
court in which an action is pending may (a) order any party to
produce and permit the inspection and copying or
photographing, by or on behalf of the moving party, of any
designated documents, papers, books, accounts, letters,
photographs, objects or tangible things, not privileged, which
constitute or contain evidence material to any matter involved
in the action and which are in his possession, custody or
control, or (b) order any party to permit entry upon designated
land or other property in his possession or control for the
purpose of inspecting, measuring, surveying, or photographing
the property or any designated relevant object or operation
thereon. The order shall specify the time, place and manner of
making the inspection and taking copies and photographs, and
may prescribe such terms and conditions as are just.
For Example:
The case involved is a boundary dispute, it is allowed
that one of the parties may request for surveying that is a
mode of discovery, say, the plaintiff files a case for recovery of
possession and ownership that the defendant encroaches a
portion of his property and so the defendant now wanted the
land to be surveyed. Is it allowed?
Yes, because it is a mode of discovery
For Example:
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If in case what you need is a document, which is in
possession of the adverse party, you can file a motion for the
production or inspection of the document.
According to the Supreme Court, this rule 27 is a sort
of fishing expedition or fishing of evidence.
SOLIDBANK CORPORATION VS GATEWAY
ELECTRONICS CORPORATION ET AL
GR 154805 APRIL 30, 2008
A motion for production and inspection of documents
should not demand a roving inspection of a promiscuous mass
of documents. The inspection should be limited to those
documents designated with sufficient particularity in the
motion, such that the adverse party can easily identify the
documents he is required to produce. Rule 27 permits “fishing
for evidence”.
The lament against fishing expedition no longer
precludes a party from prying into the facts underlying his
opponent’s case. Mutual knowledge of all relevant facts
gathered by both parties is essential to proper litigation. To that
end, either party may compel the other disclose whatever facts
he has in his possession. However, fishing for evidence is
allowed under the rules is not without limitations.
--- 00 ---
pending may in its discretion order him to submit to a physical
or mental examination by a physician.
SEC. 2
Order for examination
The order for examination may be made only on motion for
good cause shown and upon notice to the party to be
examined and to all other parties, and shall specify the time,
place, manner, conditions and scope of the examination and
the person or persons by whom it is to be made.
What are the requirements for the issuance of order of
examination?
The order for examination to be issued by the court may be
made only:
a. On motion for good cause shown; and
b. Upon notice to the party to be examined and to all
other parties; and
c. It shall specify the time, place, manner, conditions
and scope of the examination and the person or
persons by whom it is to be made.
Where the subject of the case involves the physical
and mental conditions of a person, the adverse party may avail
as a mode of discovery the conduct of a physical or mental
examination of the person subject of the case.

PRODUCTION AND INSPECTION OF DICUMENTS AND CASES THE SUBJECT OF WHICH IS THE PHYSICAL OR
THINGS UNDER RULE 27 vs. SUBPOENA DUCES TECUM MENTAL CONDITION OF A PERSON
UNDER RULE 21
1. GUARDIANSHIP over the person and property;
RULE 27 RULE 21
  Here is a petitioner files a petition for issuance of
 In production and  It is a writ or process letters of guardianship, asking the court to appoint him as
inspection of of compelling guardian over the said person alleging that he is already
documents and production of incapacitated to take care of himself as well as his properties.
things under rule 27, evidence When the affected relatives knew about this, they may
it is a mode of question the guardianship proceeding and may ask the court
discovery  It is directed against for a mental and physical examination of the ward if he is really
 It is directed to a any person which incapacitated to take care of himself as well as his properties.
party litigant includes litigants
2. CIVIL CASE involving damages, in case of a
 It is by means of a VICTIM of a vehicular accident;
 It can be availed of request issued which
by motion is issued ex parte The victim asks for damages in the amount of
P1million, the victim may be subject to physical examination
not for curing the victim but in order to assess the damages
inflicted to him

RULE 28 3. ANNULMENT OF MARRIAGE on the ground of

Physical and Mental Examination of Persons psychological incapacity of impotency

SEC. 1 The husband may subject himself for an examination

When examination may be ordered
In an action in which the mental or physical condition of a party
is in controversy, the court in which the action is pending may
in its discretion order him to submit to a physical or mental
examination by a physician.
When can an examination of party be ordered by the court?
In an action in which the mental or physical condition
of a party is in controversy, the court in which the action is
if he is really impotent.
--- 00 ---
SEC. 3
Report of findings
If requested by the party examined, the party causing
the examination to be made shall deliver to him a copy of a
detailed written report of the examining physician setting out
his findings and conclusions. After such request and delivery,
the party causing the examination to be made shall be entitled
upon request to receive from the party examined a like report

QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim) Page 83
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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
of any examination, previously or thereafter made, of the same
mental or physical condition. If the party examined refuses to
deliver such report, the court on motion and notice may make
an order requiring delivery on such terms as are just, and if a
physician fails or refuses to make such a report the court may
exclude his testimony if offered at the trial.
Judge discusses the answer to the questions:
What are the rules on the findings of the physician on the
examination conducted?
The rules on the findings of the physician on the
examination conducted on the physical or mental
examination of the party shall be as follows:
a. If requested by the party examined, the party causing
the examination to be made shall deliver to him a
copy of a detailed written report of the examining
physician setting out his findings and conclusions.
b. After such request and delivery, the party causing the
examination to be made shall be entitled upon
request to receive from the party examined a like
report of any examination, previously or thereafter
made, of the same mental or physical condition.
What are the effects in case of refusal to deliver report of
examination?
If the party examined refuses to deliver such report, the
court on motion and notice may make an order:
a. requiring delivery on such terms as are just; and
b. If a physician fails or refuses to make such a report
the court may exclude his testimony if offered at the
trial.
--- 00 ---
SEC. 4
Waiver of privilege
By requesting and obtaining a report of the
examination so ordered or by taking the deposition of the
examiner, the party examined waives any privilege he may
have in that action or any other involving the same
controversy, regarding the testimony of every other person
who has examined or may thereafter examine him in respect of
the same mental or physical examination.
What is the effect of submission to examination by the party?
By requesting and obtaining a report of the examination so
ordered or by taking the deposition of the examiner:
a. the party examined waives any privilege he may have
in that action; or
b. he also waive any privilege in any other involving the
same controversy, regarding the testimony of every
other person who has examined or may thereafter
examine him in respect of the same mental or
physical examination
--- oOo ---
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
July 25, 2016
1.
a. What is a personal action?
- A real action is an action which deals on title,
possession or any interest in real
property. All other actions are personal actions
b. What is an action in personam?
- An action in rem is an action where the decision
is binding against the whole world
- An action in personam is an action where the
decision is binding only to a particular person or
his successor in interest
2.
a. Can summons be served by fax?
- No, except if the defendant is a foreign juridical
entity. If the defendant is served by facsimile, he
could not be declared in default
b. If there are two defendants, one of the defendants
answered and the other did not, can the court
render decision against the non-answering
defendant?
- No, because the court has to render decision
based on the answer of the answering defendant.
If an action is filed based on a common cause of
action against 2 or more defendants, the answer
of one of the defendant will inure to the benefit of
the non-answering defendant.
3. What is the only power of the court if it does not have
power over the case filed?
- Dismiss the case
4. If the court has jurisdiction but during the trial the
evidence proved that it had no jurisdiction, should the
court dismiss the case?
- No, jurisdiction is conferred by law and to
determine whether or not the case filed is within
the court’s jurisdiction, the allegations in the
complaint and not the evidence presented
determines jurisdiction
5. Where should the case, which involves real property,
be filed?
- The case should be filed in the court which has
jurisdiction over the place where the property is
located or a portion thereof.
6. If there are 2 or more real properties located in
different cities or provinces, the case shall be filed in
the court where one of the real properties is located
provided the real properties are subject to a single
transaction.
7. Should the amount for moral damages, exemplary
damages, atty.’s fees be taken in the consideration in
determining the jurisdictional amount?
- No, as a general rule but if the principal remedy
sought by the plaintiff is recovery of damages
then moral, exemplary damages and atty.’s fees
shall be taken into consideration.
8. Is an affidavit of merit necessary when the motion for
lifting order of default is based on improper service of
summons?
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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
- No. An affidavit of merit is necessary if the motion
for lifting order of default is based on FAME but if
based on improper of service summons, the
same is not required.
9. Can the case be filed through registered mail?
- Yes
10. What should the court do when the required docket
fees are not paid?
- The court should allow the party to pay the
docket fees within the reglementary period
[Judge: Don’t worry if not all you studied came out, there are
still SERIES of exams coming; don’t forget the things you
learned in Remedial 1 because when we got to Remedial 2,
the coverage of the exam would cover Remedial 1]
--- oOo ---
[Judge: Familiarize if not memorize the different modes of
discovery as it had been asked a number of times in the bar]
RULE 29
REFUSAL TO COMPLY WITH MODES OF DISCOVERY
SEC. 1
Refusal to answer
If a party or other deponent refuses to answer any question
upon oral examination, the examination may be completed on
other matters or adjourned as the proponent of the question
may prefer. The proponent may thereafter apply to the proper
court of the place where the deposition is being taken, for an
order to compel an answer. The same procedure may be
availed of when a party or a witness refuses to answer any
interrogatory submitted under Rules 23 or 25.
If the application is granted, the court shall require the refusing
party or deponent to answer the question or interrogatory and if
it also finds that the refusal to answer was without substantial
justification, it may require the refusing party or deponent or
the counsel advising the refusal, or both of them, to pay the
proponent the amount of the reasonable expenses incurred in
obtaining the order, including attorney's fees.
If the application is denied and the court finds that it was filed
without substantial justification, the court may require the
proponent or the counsel advising the filing of the application,
or both of them, to pay to the refusing party or deponent the
amount of the reasonable expenses incurred in opposing the
application, including attorney's fees.
---
When the party refuses to answer the question upon oral or
written interrogatories, the proponent can file a motion in court
to issue an ORDER to compel that party to give an answer.
Grant of motion
If the motion is granted, the court will issue an ORDER and in
addition thereto, the refusing party or deponent shall be
required to reimburse the expenses incurred by the proponent
in filing the motion.
Denial of motion
If the court denies the motion because it finds the
grounds unjustifiable, it would be the proponent who would
reimburse the deponent for the expenses incurred in opposing
the application
Another consequence is Contempt of court:
SEC. 2
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
Contempt of court
If a party or other witness refuses to be sworn or refuses to
answer any question after being directed to do so by the court
of the place in which the deposition is being taken, the refusal
may be considered contempt of that court.
Section 3
Other consequences
If any party or an officer or managing agent of a party refuses
to obey an order made under section 1 of this Rule requiring
him to answer designated questions, or an order under Rule 27
to produce any document or other thing for inspection, copying,
or photographing or to permit it to be done, or to permit entry
upon land or other property or an order made under Rule 28
requiring him to submit to a physical or mental examination,
the court may make such orders in regard to the refusal as
are just, and among others the following:
a) An order that the matters regarding which the
questions were asked, or the character or description
of the thing or land, or the contents of the paper, or
the physical or mental condition of the party, or any
other designated facts shall be taken to be
established for the purposes of the action in
accordance with the claim of the party obtaining the
order;
[Matters asked are deemed established]
b) An order refusing to allow the disobedient party to
support or oppose designated claims or defenses or
prohibiting him from introducing in evidence
designated documents or things or items of testimony,
or from introducing evidence of physical or mental
condition;
[Example: a party wants the other party to produce certain
documents but that party refused, aside from possible
contempt, that document if introduced may not be admitted,
the court may prohibit such introduction by said party]
c) An order striking out pleadings or parts thereof,
or staying further proceedings until the order is
obeyed, or dismissing the action or proceeding or
any part thereof, or rendering a judgment by
default against the disobedient party; and
[TN!
The pleading may be strike out:
i. If complaint – the case may be
dismissed;
ii. If answer – the same may be
excluded, thus as if no answer is
filed resulting to possible declaring
him in default]
d) In lieu of any of the foregoing orders or in addition
thereto, an order directing the arrest of any party or
agent of a party for disobeying any of such orders
except an order to submit to a physical or mental
examination.
[Example: aside from other possible consequences, the court
may likewise order the arrest of the party for disobeying the
order except for an order to submit to a physical or mental
examination]
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SEC. 4
Expenses on refusal to admit
If a party after being served with a request under Rule 26
[Request for Admission] to admit the genuineness of any
document or the truth of any matter of fact serves a sworn
denial thereof and if the party requesting the admissions
thereafter proves the genuineness of such document or the
truth of any such matter of fact, he may apply to the court for
an order requiring the other party to pay him the reasonable
expenses incurred in making such proof, including attorney's
fees. Unless the court finds that there were good reasons for
the denial or that admissions sought were of no substantial
importance, such
order shall be issued.
SEC. 5
Failure of party to attend or serve answers
If a party or an officer or managing agent of a party willfully
fails to appear before the officer who is to take his deposition,
after being served with a proper notice, or fails to serve
answers to interrogatories submitted under Rule 25 after
proper service of such interrogatories, the court on motion and
notice, may strike out all or any part of any pleading of that
party, or dismiss the action or proceeding or any part thereof,
or enter a judgment by default against that party, and in its
discretion, order him to pay reasonable expenses incurred by
the other, including attorney's fees.
SEC. 6
Expenses against the Republic of the Philippines
Expenses and attorney's fees are not to be imposed upon the
Republic of the Philippines under this Rule.
--- oOo ---
[After Pre Trial is the Trial. The modes of discovery could be
availed of before or during trial. In deposition, the same could
be availed of before trial and even during appeal. So, it is
erroneous to say that the modes of discovery could only be
had during pre- trial. ]
RULE 30
TRIAL
SEC.1
Notice of Trial
Upon entry of a case in the trial calendar, the clerk shall notify
the parties of the date of its trial in such manner as shall
ensure his receipt of that notice at least five (5) days before
such date.
---
Usually, the parties would agree on the date of hearing as the
respective counsel are busy
SEC. 2
Adjournments and postponements
A court may adjourn a trial from day to day, and to any stated
time, as the expeditious and convenient transaction of
business may require, but shall have no power to adjourn a
trial for a longer period than one month for each adjournment
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
nor more than three months in all, except when authorized in
writing by the Court Administrator, Supreme Court.
SEC. 3
Requisites of motion to postpone trial for absence of
evidence
A motion to postpone a trial on the ground of absence of
evidence can be granted only upon affidavit showing the
materiality or relevancy of such evidence, and that due
diligence has been used to procure it. But if the adverse party
admits the facts to be given in evidence, even if he objects or
reserves the right to object to their admissibility, the trial shall
not be postponed.
----
Generally, postponement is not allowed, it is only allowed if
based on meritorious ground [there should be an affidavit
showing materiality/relevancy of such evidence]
“If the adverse party admits the facts to be given in
evidence”
Example: The court asks the purpose of presenting the witness
and he then asks the other party, would you admit the same? If
admitted, then there is no reason to postpone the trial]
SEC. 4
Requisites of motion to postpone trial for illness of party
or counsel
A motion to postpone a trial on the ground of illness of a party
or counsel may be granted if it appears upon affidavit or sworn
certification that the presence of such party or counsel at the
trial is indispensable and that the character of his illness is
such as to render his non-attendance excusable.
----
Postponement on the ground of illness of party/counsel
It can only be granted if supported by AFFIDAVIT OR
SWORN CERTIFICATION that:
1. The presence of such party or counsel at the trial is
indispensable and
2. That the character of his illness is such as to render
his non-attendance excusable
SEC. 5
Order of trial
Subject to the provisions of section 2 of Rule 31, and unless
the court for special reasons otherwise directs, the trial shall be
limited to the issues stated in the pre-trial order and shall
proceed as follows:
a) The plaintiff shall adduce evidence in support of his
complaint;
b) The defendant shall then adduce evidence in support
of his defense, counterclaim, cross-claim and third-
party complaints;
c) The third-party defendant if any, shall adduce
evidence of his defense, counterclaim, cross-claim
and fourth-party complaint;
d) The fourth-party, and so forth, if any, shall adduce
evidence of the material facts pleaded by them;
e) The parties against whom any counterclaim or cross-
claim has been pleaded, shall adduce evidence in
support of their defense, in the order to be prescribed
by the court;
f) The parties may then respectively adduce rebutting
evidence only, unless the court, for good reasons and
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As discussed by: Judge Debalucos
in the furtherance of justice, permits them to adduce
evidence upon their original case; and
g) Upon admission of the evidence, the case shall be
deemed submitted for decision, unless the court
directs the parties to argue or to submit their
respective memoranda or any further pleadings.
If several defendants or third-party defendants, and so forth,
having separate defenses appear by different counsel, the
court shall determine the relative order of presentation of their
evidence. (1a, R30)
---
Order of Presentation:
Normally,
Plaintiff – presents his EVIDENCE IN CHIEF [evidence that
establishes his cause of action]
Defendant – presents his EVIDENCE IN CHIEF [evidence that
establishes his defense]
Plaintiff may present REBUTTAL EVIDENCE
Court may then require parties to present MEMORANDA
[Summary of their arguments]
The defendant will now present his evidence in chief, meaning
this is evidence that will establish his defense.
The plaintiff may (optional) present his rebuttal evidence, which
will refute the evidence presented by the defendant.
The defendant may present his sur-rebuttal evidence. The
case will then be submitted for decision.
Memorandum
After the parties have presented their evidence, the court may
require them to submit memorandum. This is the summary of
their evidence, arguments and legal authorities.
PURPOSE: Memoranda
- To help the court to arrive at a fair and just decision.
TN! This is not mandatory because this may delay the
disposition of the case.
Q: What if there is a third party complaint?
A: when the defendant presents his evidence to establish his
defense, at the same time he will also present his evidence to
establish his cause of action as regards the third party
complaint.
Reversal of trial
This happens when the defendant would raise an affirmative
defense. An affirmative defense is an admission on the part of
the defendant but raise a defense which would not make him
liable.
EXAMPLE: In a case of collection of sum of money, as his
affirmative defense, the defendant may say that “yes, it is true
that I have obtained a loan but the same is already fully paid”.
TAKE NOTE: payment is an affirmative defense and since the
defendant already admitted the loan but he just reason out that
he is not liable because he has paid the same, then there
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
could be a reverse trial, meaning defendant will have to
present first then the plaintiff.
SEC. 6
Agreed statement of facts.
The parties to any action may agree, in writing, upon the facts
involved in the litigation, and submit the case for judgment on
the facts agreed upon, without the introduction of evidence.
If the parties agree only on some of the facts in issue, the trial
shall be held as to the disputed facts in such order as the court
shall prescribe.
During trial, there could be stipulation of facts.
If you can still recall, we discussed on stipulation of facts.
There could be proposal of admission.
- If the proposal was admitted, then there is no need for
presentation of evidence on those facts stipulated.
- “facts stipulated” means facts admitted
- Admissions in the course of the trial are called
JUDICIAL ADMISSIONS, which does not require the
presentation of evidence.
- Example: The defendant has admitted that the
plaintiff sent a demand letter. During trial, the plaintiff
need not present the said demand letter because of
the admission made by the defendant.
- TAKE NOTE: Admissions made in the answer are
judicial admission. Aside from the admissions made in
the answer, stipulations of facts also include those
which are made during pre-trial or availment of the
modes of discovery. Those admitted during pre-trial or
availment of the modes of discovery are deemed
established.
- During the trial, the parties could propose admissions
to the adverse party/ propose stipulation of facts.
- REPEAT: Presentation of evidence is required if there
are still factual issues or factual allegations not
admitted.
SEC. 7
Statement of judge.
During the hearing or trial of a case any statement
made by the judge with reference to the case, or to any of the
parties, witnesses or counsel, shall be made of record in the
stenographic notes.
SEC. 8
Suspension of actions.
The suspension of actions shall be governed by
the provisions of the Civil Code.
- ONLY if necessary.
- Example: The parties asked for a certain number of
days to come up with the compromise agreement
SEC. 9
Judge to receive evidence; delegation to clerk of court.
The judge of the court where the case is pending shall
personally receive the evidence to be adduced by the parties.
However, in default or ex parte hearings, and in any case
where the parties agree in writing, the court may delegate the
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reception of evidence to its clerk of court who is a member of
the bar. The clerk of court shall have no power to rule on
objections to any question or to the admission of exhibits,
which objections shall be resolved by the court upon
submission of his report and the transcripts within ten (10)
days from termination of the hearing.
GENERAL RULE: The judge presides the hearing for the
presentation of evidence. He must personally receive the
evidence.
- “TRIAL” means presentation of evidence – e.g.
witnesses.
- “HEARING” means broader term because there could
be hearing without presentation of evidence /trial.
- question of law or fact over cases pending before the
o EXAMPLE: there is a motion, it must be set
for hearing but may or may not required
presentation of evidence.
EXCEPTION: The reception of evidence may be done by the
Clerk of Court, who is a lawyer so it can only be done in the
RTC under the following instances:
1. Ex parte hearing (defendant declared in default)
2. The parties requited that the presentation of
evidence can be done before the clerk of court.
- Reception of evidence before the clerk of court is the
same with the judge wherein the parties will also call
the clerk as “your honor”.
- HOWEVER, in ruling the evidence, the clerk of court
does not have the power to rule on the objection,
similar with a deposition officer since the ruling on the
objection shall be done by the judge. The clerk cannot
deny or admit the evidence. Objections on the
evidence, the clerk merely say “noted”.
EXCEPTION TO THE EXCEPTION: Reception of evidence
shall always be done before the judge in the following
instances:
1. Annulment of marriage
2. Legal separation
3. Declaration of nullity
--- oOo ---
RULE 31
CONSOLIDATION and SEVERANCE
This is about consolidation of cases. Remember, the joinder of
causes of action. The rule on that would be the following:
- A party may join in one complaint two or more causes
of actions provided (1) if one of the causes of action
belongs to the RTC, the complaint shall be filed with
the RTC; (2) if all causes of action are for money
claims, the totality rule shall apply to deter jurisdiction.
- If the also includes joinder of parties, one of the rules
is that the cause of action must come from the same
transaction or contract.
Q: The joinder of causes of action is merely permissive and the
party files separate cases. What is the remedy?
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
A: Section 1 of Rule 31 is the remedy.
SEC. 1
Consolidation.
When actions involving a common question of law or
fact are pending before the court, it may order a joint hearing
or trial of any or all the matters in issue in the actions; it may
order all the actions consolidated; and it may make such
orders concerning proceedings therein as may tend to avoid
unnecessary costs or delay.
- Either of the parties may file for consolidation.
- Handled by one court which gives one decision for all
the cases consolidated.
- TAKE NOTE: Applicable only if there is one common
court. so the court may order the joint hearing or trial.
- PURPOSE: to avoid unnecessary costs or delay.
- EXAMPLE: if the other case is pending before
another court, usually the cases are consolidated in
the court which handles case number 1.
- This procedure is similar with criminal cases.
SEC. 2
Separate trials.
The court, in furtherance of convenience or to avoid prejudice,
may order a separate trial of any claim, cross-claim,
counterclaim, or third-party complaint, or of any separate issue
or of any number of claims, cross-claims, counterclaims, third-
party complaints or issues.
- This is the opposite of section 3.
--- oOo ---
RULE 32
TRIAL BY COMMISSIONER
- Meaning the trial is conducted by a person other than the
judge, to help the judge in resolving certain issues.
- This presupposes a factual issue that is outside the
expertise of the judge.
- EXAMPLE: boundary dispute – this requires the aid of a
geodectic engineer.
SEC. 1
Reference by consent.
By written consent of both parties, the court may order any or
all of the issues in a case to be referred to a commissioner to
be agreed upon by the parties or to be appointed by the court.
As used in these Rules, the word "commissioner" includes a
referee, an auditor and an examiner.
- May be agreed upon by the parties
- “Commissioner" includes a referee, an auditor and an
examiner.
- During pre-trial, one of the issues considered is
whether the case should be referred to a
commissioner.
- Payment is equally shared by the parties or subject to
the agreement of the parties, e.g. “the loser shall
shoulder the payment”
SEC. 2
Reference ordered on motion.
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When the parties do not consent, the court may, upon the
application of either or of its own motion, direct a reference to a
commissioner in the following cases:
- (a) When the trial of an issue of fact requires the
examination of a long account on either side, in which
case the commissioner may be directed to hear and
report upon the whole issue or any specific question
involved therein;
- (b) When the taking of an account is necessary for the
information of the court before judgment, or for
carrying a judgment or order into effect;
- (c) When a question of fact, other than upon the
pleadings, arises upon motion or otherwise, in any
stage of a case, or for carrying a judgment or order
into effect
Appointment of a commissioner usually happens during a trial
because there is factual issue that is technical which is not
familiar with the judge. It can also happen even if there's
already a decision by the court which is final and executory.
Why? To give effect to the decision of the court.
Example: In a case involving partition, the court decided to
partition the property and the decision is final and executory.
How to divide the property? So there is a need for a geodetic
engineer in order to divide the property.
SEC. 3
Order of reference; powers of the commissioner.
When a reference is made, the clerk shall forthwith
furnish the commissioner with a copy of the order of reference.
The order may specify or limit the powers of the commissioner,
and may direct him to report only upon particular issues, or to
do or perform particular acts, or to receive and report evidence
only and may fix the date for beginning and closing the
hearings and for the filing of his report. Subject to other
specifications and limitations stated in the order, the
commissioner has and shall exercise the power to regulate the
proceedings in every hearing before him and to do all acts and
take all measures necessary or proper for the efficient
performance of his duties under the order. He may issue
subpoenas and subpoenas duces tecum, swear witnesses,
and unless otherwise provided in the order of reference, he
may rule upon the admissibility of evidence. The trial or
hearing before him shall proceed in all respects as it would if
held before the court.xxx
The court will issue and order for the appointment of a
commissioner, then the court will have to give guidelines for
the conduct of the hearing of the commissioner.
Example: The Court will issue an order as to when and what
are the conduct for the relocation survey. The Court may
include in such order that all the parties during the relocation
survey must be notified. If the party is not present, then waive.
The geodetic engineer should set date and time for the
conduct of the relocation survey and shall notify the parties.
The Court should also set timeframe for the submission of the
written report.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
Q: How do you compare the power of the commissioner to that
of a clerk of court?
A: The commissioner is more powerful because the clerk of
court cannot rule to the admissibility of evidence. The clerk of
court just take note such objection. On the other hand, the
commissioner has to power the rule on the admissibility of
evidence.
SEC. 4
Oath of commissioner.
Before entering upon his duties the commissioner shall be
sworn to a faithful and honest performance thereof.
SEC. 5
Proceedings before commissioner.
Upon receipt of the order of reference and unless otherwise
provided therein, the commissioner shall forthwith set a time
and place for the first meeting of the parties or their counsel to
be held within ten (10) days after the date of the order of
reference and shall notify the parties or their counsel.
SEC 6
Failure of parties to appear before commissioner.
If a party fails to appear at the time and place appointed, the
commissioner may proceed ex parte or, in his discretion,
adjourn the proceedings to a future day, giving notice to the
absent party or his counsel of the adjournment.
TN! Adjourn means reset, but it should not be reset because it
will delay the proceedings unless the non-appearance is
justifiable. The proceedings should be done as long as the
parties as notified because due process does not mean actual
participation but simply giving the party the opportunity to
participate. If he doesn't want to participate, that's fine.
SEC. 7
Refusal of witness.
The refusal of a witness to obey a subpoena issued by the
commissioner or to give evidence before him, shall be deemed
a contempt of the court which appointed the commissioner
SEC. 8
Commissioner shall avoid delays.
It is the duty of the commissioner to proceed with all
reasonable diligence. Either party, on notice to the parties and
commissioner, may apply to the court for an order requiring the
commissioner to expedite the proceedings and to make his
report.
SEC. 9
Report of commissioner.
Upon the completion of the trial or hearing or
proceeding before the commissioner, he shall file with the court
his report in writing upon the matters submitted to him by the
order of reference. When his powers are not specified or
limited, he shall set forth his findings of fact and conclusions of
law in his report. He shall attach thereto all exhibits, affidavits,
depositions, papers and the transcript, if any, of the testimonial
evidence presented before him.
Q: Is the court bound by the findings of the commissioner?
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A: No, the court may admit or deny the report of the
commissioner. The Court may adopt, modify or reject the
report.
SEC. 10
Notice to parties of the filing of report.
Upon the filing of the report, the parties shall be
notified by the clerk, and they shall be allowed ten (10) days
within which to signify grounds of objections to the findings of
the report, if they so desire. Objections to the report based
upon grounds which were available to the parties during the
proceedings before the commissioner, other than objections to
the findings and conclusions therein, set forth, shall not be
considered by the court unless they were made before the
commissioner.
SEC. 11
Hearing upon report.
Upon the expiration of the period of ten (10) days
referred to in the preceding section, the report shall be set for
hearing, after which the court shall issue an order adopting,
modifying, or rejecting the report in whole or in part, or
recommitting it with instructions, or requiring the parties to
present further evidence before the commissioner or the court.
SEC. 12
Stipulations as to findings.
When the parties stipulate that a commissioner's
findings of fact shall be final, only questions of law shall
thereafter be considered.
TN! If the parties have agreed that whatever would be the
result of the commissioner's report, they would admit it as long
as it was conducted the way it should be. Then, there is no
need to conduct a hearing.
-What Court would resolve now is legal issues.
SEC. 13
Compensation of commissioner.
The court shall allow the commissioner such reasonable
compensation as the circumstances of the case warrant, to be
taxed as costs against the defeated party, or apportioned, as
justice requires.
TN!
-Usually shouldered by the parties or by the defeated parties.
There are cases when the appointment of a commissioner is
discretionary on the court. If the court can resolve the technical
issue without appointment of the court, then much better.
However, there are cases when the appointment of a
commissioner is mandatory:
1. Expropriation cases
2. Partition cases
--- oOo ---
RULE 33
DEMURRER TO EVIDENCE
SEC. 1
Demurrer to evidence.
After the plaintiff has completed the presentation of
his evidence, the defendant may move for dismissal on the
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
ground that upon the facts and the law the plaintiff has shown
no right to relief. If his motion is denied he shall have the right
to present evidence. If the motion is granted but on appeal the
order of dismissal is reversed he shall be deemed to have
waived the right to present evidence.
“DEMURRER OF EVIDENCE”
Demurrer to evidence is actually a motion to dismiss
on the ground of insufficiency of evidence. The evidence
presented by the plaintiff does not support his cause of action.
Proper time to file a demurrer to evidence
After the plaintiff has rested its case- meaning after
the plaintiff has completed his presentation of evidence.
In other words, if the defendant files a demurrer to
evidence and the court admits the same, but the plaintiff has
not yet filed his formal offer of exhibits- that is GRAVE ABUSE
OF DISCRETION. Because the rules require that demurrer to
evidence should be allowed after the plaintiff has rested its
case.
The defendant may move for the dismissal on the ground that
upon the facts and the law the plaintiff has shown no right to
relief.
TN! In civil cases, leave of court is not required- meaning if his
motion is denied, he shall have the right to present evidence.
The risks is on appeal.
-If the court grants the demurrer, but if the plaintiff files an
appeal to the order of the court granting the demurrer which is
reversed by the appellate court, the appellate court will not
anymore return the case to the trial court for the reception of
evidence. The appellate court will now decide the case based
on the evidence of the plaintiff.
-In criminal cases it is required otherwise, if the demurrer to
evidence is denied, the accused could no longer present his
evidence.
Q: What is the remedy if the demurrer to evidence is denied?
A: Defendant will present evidence.
If the court acted with grave abuse of discretion, then the
remedy is petition for certiorari.
Q: What about if the demurrer to evidence is granted?
A: If the demurrer to evidence is granted that is considered as
adjudication on the merits. It is as if the case is decided on the
merits. In other words, if the case is dismiss, a case involving
the same cause of action can't be refiled anymore because of
res judicata.
Q: What is the remedy of the plaintiff if the demurrer to
evidence of defendant is granted?
A: Appeal.
In criminal cases, once the demurrer to evidence is granted, it
is considered as dismissal on the merits and that's the end of
the case for the prosecution. The prosecution can't file an
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appeal because that would violate the right of the accused on
double jeopardy.
In civil cases, defendant can file an appeal.
--- oOo ---
RULE 34
JUDGMENT ON THE PLEADINGS
SEC. 1
Judgment on the pleadings.
Where an answer fails to tender an issue, or otherwise admits
the material allegations of the adverse party's pleading, the
court may; on motion of that party, direct judgment on such
pleading. However, in actions for declaration of nullity or
annulment of marriage or for legal separation, the material
facts alleged in the complaint shall always be proved.
Q: What would happen if the answer of the defendant admits
all factual allegations of the complaint?
A: The court now can render decision. No need for pre-trial nor
presentation of evidence. The plaintiff can file motion for
judgment on the pleadings.
Q: What do you mean by judgment on the pleading?
A: The Court is asks to render judgment based on the
pleadings submitted by the parties.
Q: Suppose the answer tenders an issue-meaning the answer
denied material allegations in the complaint but during pre-trial,
the defendant admitted those material allegations. Can there
be judgement on the pleadings?
A: Yes. There is no need for presentation of evidence because
everything is admitted during pre-trial.
Q: Suppose during availment of modes of discovery,
something was admitted which was denied on the answer. Can
there be judgment on the pleadings?
A: Yes.
--- oOo ---
RULE 35
SUMMARY JUDGMENTS
SEC. 1
Summary judgment for claimant.
A party seeking to recover upon a claim, counterclaim, or
cross-claim or to obtain a declaratory relief may, at any time
after the pleading in answer thereto has been served, move
with supporting affidavits, depositions or admissions for a
summary judgment in his favor upon all or any part thereof.
TAKE NOTE
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
- One of the distinctions between judgment on the pleadings
and summary judgment is that motion for the judgment on the
pleadings can be filed only by the plaintiff whereas summary
judgment can be filed either by the plaintiff or defendant.
SEC. 2
Summary judgment for defending party.
A party against whom a claim, counterclaim, or cross-claim is
asserted or a declaratory relief is sought may, at any time,
move with supporting affidavits, depositions or admissions for
a summary judgment in his favor as to all or any part thereof.
EXAMPLE: Plaintiff filed an action for damages against
defendant for running over him. Plaintiff is a victim of reckless
driving. In his answer the defendant admitted that it was his
fault, but he argued as to the amount of damages claimed. The
case now is good for summary judgment. Why? Because the
defendant has admitted his liability but there is only an issue as
to the amount of damages.
Q: How can the issue as to the amount of damages be
proved?
A: By presenting documents or by executing affidavits or
depositions.
SEC. 3
Motion and proceedings thereon.
The motion shall be served at least ten (10) days before the
time specified for the hearing. The adverse party may serve
opposing affidavits, depositions, or admissions at least three
(3) days before the hearing. After the hearing, the judgment
sought shall be rendered forthwith if the pleadings, supporting
affidavits, depositions, and admissions on file, show that,
except as to the amount of damages, there is no genuine issue
as to any material fact and that the moving party is entitled to a
judgment as a matter of law.
Puyat vs. Zabarte, G.R. No. 141536. February 26, 2001
Petitioner contends that by allowing summary judgment, the
two courts a quo prevented him from presenting evidence to
substantiate his claims. We do not agree. Summary judgment
is based on facts directly proven by affidavits, depositions or
admissions. In this case, the CA and the RTC both merely
ruled that trial was not necessary to resolve the
case. Additionally and correctly, the RTC specifically ordered
petitioner to submit opposing affidavits to support his
contentions that (1) the Judgment on Stipulation for Entry in
Judgment was procured on the basis of fraud, collusion, undue
influence, or a clear mistake of law or fact; and (2) that it was
contrary to public policy or the canons of morality.
For summary judgment to be valid, Rule 34, Section 3 of the
Rules of Court, requires (a) that there must be no genuine
issue as to any material fact, except for the amount of
damages; and (b) that the party presenting the motion for
summary judgment must be entitled to a judgment as a matter
of law. As mentioned earlier, petitioner admitted that a foreign
judgment had been rendered against him and in favor of
respondent, and that he had paid $5,000 to the latter in partial
compliance therewith. Hence, respondent, as the party
presenting the Motion for Summary Judgment, was shown to
be entitled to the judgment.
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The CA made short shrift of the first requirement. To show that
petitioner had raised no genuine issue, it relied instead on the
finality of the foreign judgment which was, in fact, partially
executed. Hence, we shall show in the following discussion
how the defenses presented by petitioner failed to tender any
genuine issue of fact, and why a full-blown trial was not
necessary for the resolution of the issues.
Garcia vs. Llamas, G.R. No. 154127. December 8, 2003
It must be stressed that the trial courts judgment against
petitioner was correctly treated by the appellate court as a
summary judgment, rather than as a judgment on the
pleadings. His Answer apparently raised several issues -- that
he signed the promissory note allegedly as a mere
accommodation party, and that the obligation was extinguished
by either payment or novation. However, these are not factual
issues requiring trial. We quote with approval the CAs
observations:
Although Garcias Answer tendered some issues, by way of
affirmative defenses, the documents submitted by [respondent]
nevertheless clearly showed that the issues so tendered were
not valid issues. Firstly, Garcias claim that he was merely an
accommodation party is belied by the promissory note that he
signed. Nothing in the note indicates that he was only an
accommodation party as he claimed to be. Quite the contrary,
the promissory note bears the statement: It is understood that
our liability under this loan is jointly and severally. Secondly,
his claim that his co-defendant de Jesus already paid the loan
by means of a check collapses in view of the dishonor thereof
as shown at the dorsal side of said check.
From the records, it also appears that petitioner himself moved
to submit the case for judgment on the basis of the pleadings
and documents. In a written Manifestation, he stated that
judgment on the pleadings may now be rendered without
further evidence, considering the allegations and admissions of
the parties.
In view of the foregoing, the CA correctly considered as a
summary judgment that which the trial court had issued against
petitioner.
Calubaquib vs. Republic, G.R. No. 170658 June 22, 2011
The filing of a motion and the conduct of a hearing on the
motion are therefore important because these enable the court
to determine if the parties’ pleadings, affidavits and exhibits in
support of, or against, the motion are sufficient to overcome
the opposing papers and adequately justify the finding that, as
a matter of law, the claim is clearly meritorious or there is no
defense to the action.41 The non-observance of the procedural
requirements of filing a motion and conducting a hearing on the
said motion warrants the setting aside of the summary
judgment.
In the case at bar, the trial court proceeded to render summary
judgment with neither of the parties filing a motion therefor. In
fact, the respondent itself filed an opposition when the trial
court directed it to file the motion for summary judgment.
Respondent insisted that the case involved a genuine issue of
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
fact. Under these circumstances, it was improper for the trial
court to have persisted in rendering summary judgment.
Considering that the remedy of summary judgment is in
derogation of a party's right to a plenary trial of his case, the
trial court cannot railroad the parties’ rights over their
objections.
More importantly, by proceeding to rule against petitioners
without any trial, the trial and appellate courts made a
conclusion which was based merely on an assumption that
petitioners’ defense of acquisitive prescription was a sham,
and that the ultimate facts pleaded in their
Answer (e.g., open and continuous possession of the property
since the early 1900s) cannot be proven at all. This
assumption is as baseless as it is premature and unfair. No
reason was given why the said defense and ultimate facts
cannot be proven during trial. The lower courts merely
assumed that petitioners would not be able to prove their
defense and factual allegations, without first giving them an
opportunity to do so.
It is clear that the guidelines and safeguards for the rendition of
a summary judgment were all ignored by the trial court. The
sad result was a judgment based on nothing else but an
unwarranted assumption and a violation of petitioners’ due
process right to a trial where they can present their evidence
and prove their defense.
SEC. 4
Case not fully adjudicated on motion.
If on motion under this Rule, judgment is not rendered upon
the whole case or for all the reliefs sought and a trial is
necessary, the court at the hearing of the motion, by examining
the pleadings and the evidence before it and by interrogating
counsel shall ascertain what material facts exist without
substantial controversy and what are actually and in good faith
controverted. It shall thereupon make an order specifying the
facts that appear without substantial controversy, including the
extent to which the amount of damages or other relief is not in
controversy, and directing such further proceedings in the
action as are just. The facts so specified shall be deemed
established, and the trial shall be conducted on the
controverted facts accordingly.
SEC. 5
Form of affidavits and supporting papers.
Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. Certified true
copies of all papers or parts thereof referred to in the affidavit
shall be attached thereto or served therewith.
SEC. 6
Affidavits in bad faith.
Should it appear to its satisfaction at any time that any of the
affidavits presented pursuant to this Rule are presented in bad
faith, or solely for the purpose of delay, the court shall forthwith
order the offending party or counsel to pay to the other party
the amount of the reasonable expenses which the filing of the
affidavits caused him to incur including attorney's fees, it may,
after hearing further adjudge the offending party
or counsel guilty of contempt.
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--- oOo --- Gotamco vs Chan Seng G.R. No. L-22737 November 28,
1924
SUMMARY JUDGMENT JUDGMENT ON THE
PLEADINS A judgment is the law's last word in a judicial controversy. It
As to basis of judgment may therefore be defined as the final consideration and
Based on the pleadings, Based solely on the determination of a court of competent jurisdiction upon the
depositions, admissions and pleadings. matters submitted to it in an action or proceeding. A more
affidavits. precise definition is that a judgment is the conclusion of the law
To whom available upon the matters contained in the record, or the application of
Available to both plaintiff and Generally, available only to the law to the pleadings and to the facts, as found by the court
defendant. the plaintiff, unless the or admitted by the parties, or deemed to exist upon their
defendant presents a default in a course of judicial proceedings. It should be noted
counterclaim. that only is a judgment which is pronounced between the
As to the issues tendered parties to an action upon the matters submitted to the court for
There is no genuine issue The answer fails to tender an decision. . . .
between the parties i.e there issue or otherwise admits the
may be issues but these are material allegations of the In the instant case there was not claim made, filed or
irrelevant. adverse party’s pleadings. presented by anyone. Legally speaking, the allowance of the
As to the notice required claim would be like rendering a judgment without the filing of a
Ten (10) day notice required. Three (3) day notice required. complaint, or even the making or presentment of a claim.
As to being a judgment on the merits
Upon the facts shown, to legalize the allowance of the claim
May be interlocutory (as in On the merits.
with all of the formalities and requisites of a final judgment,
the case of partial summary
would be a travesty upon justice. It appears from the record
judgment) or on the merits.
before us that the commissioners did not have any jurisdiction
As to filing of an answer
to allow the claim; that as to the claim in question their
- If filed by plaintiff, it must be proceedings were null and void ab initio, and hence they were
filed at any time after an not res judicata, and in addition to that, it clearly appears that
answer is served; the allowance of the claim was a fraud upon the appellee.
Source: San Beda Remedial Memory Aid 2016, p. 121
Requirements of a valid judgment:
1) It shall be in writing;
--- oOo ---
2) Personally and directly prepared by the judge;
RULE 36 - although some courts have legal researchers
JUGMENTS, FINAL ORDERS AND ENTRY 3) Shall state clearly and distinctly the facts and the law
on which it is based;
4) Shall be signed and after signing the same shall be
SEC. 1 submitted to the clerk of court.
Rendition of Judgments, Final Orders and Entry thereof; - Once the clerk received the decision, it shall
A judgment or final order determining the merits of the case be dated and such time and date is the
shall be in writing personally and directly prepared by the promulgation of judgment.
judge, stating clearly and distinctly the facts and the law on - After receipt of the clerk, it shall be furnished
which it is based, signed by him and filed with the clerk of the to the parties through their counsel and such
court. is deemed the publication.

TAKE NOTE:
 Section 1 gives us the requirements of a valid
judgment. The decision should be based on facts and law.

Decision Judgment
Special Forms of Judgment
-refers to the entire written -refers to the dispositive
instrument portion only. 1) Judgment by default
-the fallo, the “wherefore”
portion 2) Judgment on the pleadings
* there is not much difference
between the two as they are 3) Summary judgment
usually used interchangeably.
4) Judgment based on compromise agreement
Decision- is the final consideration and determination of a Compromise agreement- agreement based on mutual
court of competent jurisdiction upon the matters submitted to it concessions.
in an action or proceedings. - meaning the court did not anymore conduct
hearing but based its decision on the

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compromise agreement of the parties.
- this judgment is immediately executory.
Usually judgments become final and
executory after the lapse of the 15 days, but
judgment based on compromise agreement
is immediately executory.
- In case, one party wishes to appeal the
compromise agreement, he should first
nullify the compromise agreement.
- On what instance where a party to a
compromise agreement would appeal the
same? On the ground that his consent to the
agreement was obtained through coercion.
5) Judgment Nunc pro tunc
-the court requires the entry of the judgment
which has not been entered as rendered
6) Clarificatory Judgment
- when the decision of the court is vague, the
party may file a motion to let the court clarify
its decision.
7) Judgment upon confession
- Defendant confessed his liability to the court
or he acknowledged the validity of the
plaintiff’s claims.
- Defendant here did not file an answer, he
just wrote to the court acknowledging the
validity of plaintiff’s claims
- If he had filed an answer confessing to his
liability the same shall be deemed judgment
on the pleadings.
8) Judgment Note
- same with a Bill of attainder (judgment
rendered without judicial trial)
- For example; ---the promissory note contains
stipulations that the maker authorizes in
advance a confession of judgment against
him on occasion of non-payment of the note
on its maturity.
- this is void.
- and determine their ultimate rights and obligations.
PNB v. Manila Oil Refining Company 43 Phils. 444
- We are of the opinion that warrants of attorney to confess
judgment are not authorized nor contemplated by our law. We
are further of the opinion that provisions in notes authorizing
attorneys to appear and confess judgments against makers
should not be recognized in this jurisdiction by implication and
should only be considered as valid when given express
legislative sanction.
Under section 1;
The rules require that the court shall distinctly state
the facts and the law upon which it based its decision – this
requirement applies only to final orders not in interlocutory
orders.
SEC. 2
Entry of Judgments and Final Orders;
If no appeal or motion for new trial or reconsideration is filed
within the time provided in these rules, the judgment or final
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order shall forthwith be entered by the clerk in the book of
entries of judgments. The date of finality of the judgment or
final order shall be deemed to be the date of its entry. The
record shall contain the dispositive part of the judgment or final
order and shall be signed by the clerk with a certificate that
such judgment or final order has become final and executory.
 After the lapse of fifteen days, if there be no appeal or
motion for new trial or reconsideration then the
decision became final and executory;
 Date of finality is the date of entry of judgment;
 Why is the date of entry important? Because such
date is the reckoning date of the filing of Petition for
relief from Judgment as well as the counting for the
filing of the Motion for Issuance of the writ of
execution or the counting of the filing of the revival of
Judgment within the period of 10 years.
DOCTRINE OF IMMUTABILITY OF DECISION:
-When judgment has become final and executory the same is
immutable and unalterable.
- As a rule, decision once final it cannot be modified anymore
nor changed EXCEPT; clerical errors or to clarify ambiguity.
- but there are some decisions which are exempt from the
doctrine of immutability of decisions;
 Decisions involving support cases- this
may be modified anytime
Under section 2, the records shall contain the dispositive
portion of the judgment or final order and shall be signed by
the clerk with the certificate that such judgment or final order
has become final and executory.
- before decisions become final and executory
the court has the inherent power to amend
its decision
SEC. 3
Judgment for or against one or more of several parties;
Judgment may be given for or against one or more of several
plaintiffs and for or against one or more of several defendants.
When justice so demands, the court may require the parties on
each side to file adversary pleadings as between themselves
SEC. 4
Several Judgments;
In an action against several defendants, the court may, when a
several judgment is proper, render judgment against one or
more of them, leaving the action to proceed against the others.
 As a rule for one case= one decision.
 there are instances that court may render several
decision
 Example: Expropriation cases.
Municipality of Binan vs Garcia, G.R. No. 69260 December
22, 1989
It is now claimed by the Municipality that the issuance of such
a separate, final order or judgment had given rise "ipso facto to
a situation where multiple appeals became available." The
Municipality is right.
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In the case at bar, where a single complaint was filed against
several defendants having individual, separate interests, and a
separate trial was held relative to one of said defendants after
which a final order or judgment was rendered on the merits of
the plaintiff s claim against that particular defendant, it is
obvious that in the event of an appeal from that separate
judgment, the original record cannot and should not be sent up
to the appellate tribunal. The record will have to stay with the
trial court because it will still try the case as regards the other
defendants. As the rule above quoted settles, "In an action
against several defendants, the court may, when a several
judgment is proper, render judgment against one or more of
them, leaving the action to proceed against the others. " 47 In
lieu of the original record, a record on appeal will perforce have
to be prepared and transmitted to the appellate court. More
than one appeal being permitted in this case, therefore, "the
period of appeal shall be thirty (30) days, a record of appeal
being required as provided by the Implementing Rules in
relation to Section 39 of B.P. Blg. 129, supra. 48
SEC. 5
Separate judgments.
When more than one claim for relief is presented in an action,
the court, at any stage, upon a determination of the issues
material to a particular claim and all counterclaims arising out
of the transaction or occurrence which is the subject matter of
the claim, may render a separate judgment disposing of such
claim. The judgment shall terminate the action with respect to
the claim so disposed of and the action shall proceed as to the
remaining claims. In case a separate judgment is rendered the
court by order may stay its enforcement until the rendition of a
subsequent judgment or judgments and may prescribe such
conditions as may be necessary to secure the benefit thereof
to the party in whose favor the judgment is rendered.
-This may happen when there is joinder of separate action.
The court may render separate judgment.
SEC. 6
Judgment against entity without juridical personality.
When judgment is rendered against two or more persons sued
as an entity without juridical personality, the judgment shall set
out their individual or proper names, if known.
-So when a group of persons pretended to be corp. they can
be sued. But in their answer, they have to identify who are
those members. In the decision of the court, the court should
set out their proper names.
Now, let’s go to remedies. You have to master these.
Remedies against the decision or final order before the
finality:
1. Motion for Reconsideration (first aid)
2. Motion for New Trial
3. Appeal
4. Motion for Reopening of Trial
Remedies after finality:
1. Petition for Relief of Judgment or Final Order
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2. Petition for Annulment of Judgment
3. Petition for Certiorari
--- oOo ---
RULE 37
NEW TRIAL
SEC. 1
Grounds of and period for filing motion for new trial or
reconsideration.
Within the period for taking an appeal, the aggrieved party
may move the trial court to set aside the judgment or final
order and grant a new trial for one or more of the following
causes materially affecting the substantial rights of said party:
(a) Fraud, accident, mistake or excusable negligence which
ordinary prudence could not have guarded against and by
reason of which such aggrieved party has probably been
impaired in his rights; or
(b) Newly discovered evidence, which he could not, with
reasonable diligence, have discovered and produced at the
trial, and which if presented would probably alter the result.
Within the same period, the aggrieved party may also move for
reconsideration upon the grounds that the damages awarded
are excessive, that the evidence is insufficient to justify the
decision or final order, or that the decision or final order is
contrary to law.
-You remember FAME? It must be verified, accompanied by
affidavit of merits, setting out the particular circumstance that
would constitute FAME, meritorious defense. The fraud here
must be extrinsic fraud.
TAKE NOTE:
There are two kinds of fraud, intrinsic and extrinsic fraud.
Extrinsic fraud is a kind of fraud that prevented the aggrieved
party from presenting his case fully before the court. Example,
the plaintiff fraudulently informed him that there is no trial, or
that it would be alright that he would not attend in court
because they have already agreed as to payment. Any
misrepresentation or deceitful acts that prevented him to
present his case fully, is extrinsic fraud. Anything which would
not prevent the party to present his case fully is intrinsic fraud
which cannot be a ground for new trial. Example of intrinsic
fraud is a presentation of a false witness because presentation
of false witness will not prevent you.
Then accident. This is like a fortuitous event. Example, you
failed to appear before the trial because you suffer
hypertension.
Mistake. This is on the part of the aggrieved party. Example,
he believed that there is no need for him to go to court
because they have already agreed with the plaintiff, or that
they have already come out settlement.
Excusable Negligence. This is on the part of the aggrieved
party. This is a case to case basis.
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- For newly discovered evidence, this is not forgotten evidence.
This is discovered only after trial. Example, material witness.
This is an evidence that would change or alter the result. This
should not be merely corroborative.
Motion for Reconsideration – If you have not yet decide what to
do after rendition of judgment, file MR. But you think your MR
is impractical, then just file an Appeal. Don’t waste you client’s
money.
Q: What are the grounds for MR?
A: 1. the damages awarded are excessive
2. that the evidence is insufficient to justify the decision or final
order
3. that the decision or final order is contrary to law.
For newly discovered evidence.
Remember that negligence of the counsel binds the client.
Your motion for new trial on the ground of negligence may
refer to negligence of counsel.
SEC.2
Contents of motion for new trial or reconsideration and
notice thereof.
The motion shall be made in writing stating the ground or
grounds therefor, a written notice of which shall be served by
the movant on the adverse party.
A motion for new trial shall be proved in the manner provided
for proof of motion. A motion for the cause mentioned in
paragraph (a) of the preceding section shall be supported by
affidavits of merits which may be rebutted by affidavits. A
motion for the cause mentioned in paragraph (b) shall be
supported by affidavits of the witnesses by whom such
evidence is expected to be given, or by duly authenticated
documents which are proposed to be introduced in evidence.
A motion for reconsideration shall point out a specifically the
findings or conclusions of the judgment or final order which are
not supported by the evidence or which are contrary to law
making express reference to the testimonial or documentary
evidence or to the provisions of law alleged to be contrary to
such findings or conclusions.
A pro forma motion for new trial or reconsideration shall not toll
the reglementary period of appeal.
- What are the contents of MNT? Take note rule 15. It must
be set for hearing, must contain notice of hearing. It must be
supported of affidavits. In case for newly discovered evidence,
you include the affidavit of newly discovered witness or
documents. Otherwise you motion shall be denied.
- For MR, aside from complying the forms, it must point out
specifically the erroneous conclusion of facts or law as well as
the basis. In MR you are asking the court to re-examine the
records. You are asking the court to look again the evidence.
- What do you mean for pro-forma MR or MNT?
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If your motion does not comply with those requirements above,
that motion is considered pro forma. A pro forma motion does
not stop the running of reglementary period.
Remember the Neypes Rule. The Fresh Period Rule, if the
motion is not pro forma, will give the aggrieved party a fresh
period of 15 or 30 days (record on appeal) to file appeal.
You remember that a motion need be verified but a motion for
new trial must be verified.
SEC. 3
Action upon motion for new trial or reconsideration
The trial court may set aside the judgment or final order and
grant a new trial, upon such terms as may be just, or may deny
the motion. If the court finds that excessive damages have
been awarded or that the judgment or final order is contrary to
the evidence or law, it may amend such judgment or final order
accordingly.In MNT, if motion granted, then a trial shall
proceed and allow to present evidence. In MR, if the court is
convinced, the court may set aside or amend the decision or
final order. Motion shall be resolved within 30 days.
A party may file a second motion for new trial but the grounds
must be different from that of the first MNT. BUT as regards
MR, there is NO second MR. A Second MR is allowed only in
SC with prior permission from the SC. SO, in lower courts, no
second MR is allowed!
SEC. 4
Resolution of motion
A motion for new trial or reconsideration shall be resolved
within thirty (30) days from the time it is submitted for
resolution.
SEC. 5
Second motion for new trial.
A motion for new trial shall include all grounds then available
and those not so included shall be deemed waived. A second
motion for new trial, based on a ground not existing nor
available when the first motion was made, may be filed within
the time herein provided excluding the time during which the
first motion had been pending.
No party shall be allowed a second motion for reconsideration
of a judgment or final order.
SEC. 6
Effect of granting of motion for new trial
If a new trial is granted in accordance with the provisions of
this Rules the original judgment or final order shall be vacated,
and the action shall stand for trial de novo; but the recorded
evidence taken upon the former trial, insofar as the same is
material and competent to establish the issues, shall be used
at the new trial without retaking the same.
SEC. 7
Partial new trial or reconsideration
If the grounds for a motion under this Rule appear to
the court to affect the issues as to only a part, or less than an
of the matter in controversy, or only one, or less than all, of the
parties to it, the court may order a new trial or grant
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reconsideration as to such issues if severable without
interfering with the judgment or final order upon the rest.
SEC. 8
Effect of order for partial new trial
When less than all of the issues are ordered retried,
the court may either enter a judgment or final order as to the
rest, or stay the enforcement of such judgment or final order
until after the new trial.
SEC. 9
Remedy against order denying a motion for new trial or
reconsideration
An order denying a motion for new trial or reconsideration is
not appealed, the remedy being an appeal from the judgment
or final order.
MTC to RTC via NOTICE OF APPEAL rule 40
-Where filed: MTC
-Grounds: questions of law, facts or both
RTC (in the exercise of its appellate jurisdiction) to CA via
PETITION FOR REVIEW rule 42
-Where filed: CA
-Grounds: questions of law, facts or both
CA to SC via PETITION FOR REVIEW ON CERTIORARI rule
45
-Where filed: SC
-Grounds: pure questions of law
-RTC in the exercise of its appellate jurisdiction directly to
SC on pure questions of law: NOT ALLOWED

Question of Law Question of Fact

SKIP Rule 38, 39. JUMP TO RULE 40-45
 When the issue is on  When there is an
OVERVIEW OF APPEALS which law to be issue on the
applied evidence
From the MTC, the decision is appealable to the RTC that has  Exist when doubt or  Exists when doubt or
jurisdiction over the place. The mode of appeal is ordinary difference arises as difference arises as
appeal. An ordinary appeal is done by mere filing of a notice of what the law is, to the truth of the
appeal with the MTC that renders the decision. Do not forget based on a certain falsehood of alleged
this! There was one case, instead of filing notice of appeal with state of facts facts
the MTC which renders the judgment, he filed his appeal in the  Like:
RTC so the effect was that the judgment became final and -credibility of the witnesses
executory. Dili to taga San Jose kay ug taga San Jose pa, tuk- -visibility of the document or
on jud nako! Remedial pa jud. That is ignominy!  object
Whether admissible or not
Once the decision of MTC is appealed to the RTC, the MTC as
the trial court, the RTC as the appellate court, the RTC now will
review and render another decision. The RTC may reverse the FROM RTC (in the exercise of its appellate jurisdiction) to
decision of MTC or affirm in toto. The appeal from MTC to RTC CA
is both or either question of law or facts. (RULE 40)
Mode: Petition for Review under Rule 42
The decision of RTC is appealable to the CA. The mode of
appeal is petition for review. (RULE 42) The questions maybe raised are either question of law or facts
or both.
When we say question of law, the question is what law shall be
applied. In question of facts, the question is like, whether the The CA now will have to re examined the records, the
witness was telling the truth or not. Or is this document valid or evidence, and the applicable laws and will render its own
not. So the issue in question of facts refers to the admissibility decision.
of evidence.
What the CA reviewed now is the decision of the RTC, off
SC course the CA will read the decision of the MTC.
The CA will render its own decision. The aggrieved party of the
decision of the CA may go further to the CA through petition for
review on certiorari under rule 45.
CA
Q: Which court should the petition for review be filed?

A: the petition for review shall be filed with the CA

RTC Q: What about the petition for review on certiorari?

A: It should be filed with the SC

MTC The SC will only entertain pure questions of law,

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Reason: because the SC is not a trier of facts, the findings of

fact in the lower courts will be considered final under the rules
SC
As a rule the SC will not review the findings of facts by the
lower courts however there are exemptions:

People vs. Webb, G.R. No. 176864

There is only one way. A judge must keep an open mind. He

must guard against slipping into hasty conclusion, often arising
 CA
from a desire to quickly finish the job of deciding a case. A
positive declaration from a witness that he saw the accused
commit the crime should not automatically cancel out the
accused’s claim that he did not do it. A lying witness can make
as positive an identification as a truthful witness can. The lying RTC
witness can also say as forthrightly and unequivocally, "He did
it!" without blinking an eye.

Rather, to be acceptable, the positive identification must meet
at least two criteria:
First, the positive identification of the offender must come from
a credible witness. She is credible who can be trusted to tell
the truth,
usually based on past experiences with her. Her word has, to
one who knows her, its weight in gold.
And second, the witness’ story of what she personally saw
must be believable, not inherently contrived. A witness who
testifies about something she never saw runs into
inconsistencies and makes bewildering claims.
Here, as already fully discussed above, Alfaro and her
testimony fail to meet the above criteria.
From RTC (in the exercise of its original jurisdiction) to CA
Mode: ordinary appeal by filling a NOTICE OF APPEAL rule 41
Or
In cases where multiple appeals are allowed:
RECORD ON APPEAL
Where filed: RTC
Grounds: question of law, facts or both
Q: What is a record on appeal?
A: record on appeal is required in cases where multiple
appeals are allowed.
As a general rule: interlocutory orders are not appealable.

She did not show up at the NBI as a spontaneous witness INTERLOCUTORY ORDER VS FINAL ORDER
bothered by her conscience. She had been hanging around
that agency for sometime as a stool pigeon, one paid for INTERLOCUTORY FINAL ORDER
mixing up with criminals and squealing on them. Police assets ORDER
are often criminals themselves. She was the prosecution’s  Does not  Disposes of the
worst possible choice for a witness. Indeed, her superior completely subject matter in
testified that she volunteered to play the role of a witness in the dispose of the its entirety or
Vizconde killings when she could not produce a man she case but leaves terminates a
promised to the NBI. something else particular
to be decided proceeding or
Ultimately, Alfaro’s quality as a witness and her inconsistent, if upon. action, leaving
not inherently unbelievable, testimony cannot be the positive  Deals with nothing more to
identification that jurisprudence acknowledges as sufficient to preliminary be done except
jettison a denial and an alibi. matters and the to enforce by
trial on the execution what
The trial court has the first hand information on these matters merits is yet to the courts has
that is why the findings of the trial court are given high respect. be held and the determined.
judgment  A final order is
rendered. appealable.
Q: Can there be a direct appeal from the RTC to the SC?  As rule: not
appealable
A: where the RTC is exercising its appellate jurisdiction, there
can be no direct appeal to the SC, direct appeal is only allowed Reason: to avoid multiple
from RTC to SC when the RTC exercises its original appeals.
jurisdiction.
However there are cases
that allow appeal on
APPEAL IN CASES FILED BEFORE THE RTC IN ITS interlocutory order. Example:
ORIGINAL JURISDICTION

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- Probate The defendant filed a

proceedings Motion to dismiss on the RULE 43
- The order of the ground of res judicata.
court allowing Appeal from the decision of quasi-judicial bodies to the court of
the can be The order granting the appeals.
appealed. motion is a final order.
- Because it does
not entirely
dispose the QUASI JUDICIAL BODIES under this rule:
case 1. Civil service commission
2. Securities and exchange commission
Example of interlocutory 3. Office of the president
order: 4. Land registration authority
- An order 5. Social security commission
denying a 6. Civil aeronautics board
motion for new 7. Bureau of patents
trial. 8. Trademark and technology transfer
9. National electrification administration
10. National energy regulatory board
11. National telecommunications commission
12. Department of agrarian reform
“Record on appeal” 13. Government service insurance commission
Record on appeal is the copy of the entire record including the 14. Employees compensation commission
orders issued by the court. The original record of the case 15. Agricultural inventions board
remains in the trial court because there are still things that the 16. Insurance commission
trial court needs to be done. 17. Philippine atomic energy commission
18. Board of investments
This is required so that the appellate court will have its own 19. Construction industry arbitration commission
record. 20. Voluntary arbitrators authorized by law

In cases where record on appeal is required:

When you appeal you should file a notice of appeal and record Pursuant to AM NO. 05-11-07-CTA (2005) of RA 9282
on appeal.
CTA decisions are now appealable to the SC under rule 45
Time for filling:
CTA en banc will also exercise exclusive appellate jurisdiction
Within 30 days from the receipt of the order of the decision. It over decisions of the Central Board of Assessment Appeals in
is 30 days because it is not easy to file a record on appeal. the exercise of its appellate jurisdiction over cases involving
the assessment and taxation of real property originally decided
by the provincial or city board of assessment appeals.
FROM CA TO SC
Labor cases filed with the NLRC reviewed through rule 65,
Where filed: SC petition for certiorari, a remedy wherein the SC exercises
Mode: PETITION FOR REVIEW ON CERTIORARI rule 45 concurrent jurisdiction with the CA but as clarified “all petitions
Grounds: pure question of law should be initially filed with the CA in the strict observance of
the Doctrine of Hierarchy of Courts as the appropriate forum
Q: can there be a direct appeal from RTC to SC? for the relief desired. (St. Martin Funeral Homes vs NLRC)

A: yes through PETITION FOR REVIEW ON CERTIORARI
under rule 45
Raising pure questions of law
TN: direct recourse to SC from RTC is only available when the
RTC is exercising its ORIGINAL jurisdiction.
APPEALS FROM THE DECISION OF QUASI JUDICIAL
BODIES
How: through petition for review under rule 43
CA decision shall be appealed to the SC

How: through petition for review on certiorari under rule 45

SC
RULE 40
APPEAL FROM MUNICIPAL TRIAL COURTS TO TRIAL
COURTS

CA SEC. 1

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Quasi
judicial
 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos

Where to appeal. An appeal from a judgment or final order of
a Municipal Trial Court may be taken to the Regional Trial
Court exercising jurisdiction over the area to which the former
pertains. The title of the case shall remain as it was in the court
of origin, but the party appealing the case shall be further
referred to as the appellant and the adverse party as the
appellee.
Example:
appellant shall file a notice of appeal and a record on appeal
within thirty (30) days after notice of the judgment or final
order. The period of appeal shall be interrupted by a timely
motion for new trial or reconsideration. No motion for extension
of time to file a motion for new trial or reconsideration shall be
allowed
General Rule: The 15 day period is non extendible.

-If the defendant appeals the case, he is referred to as But there cases that the SC allowed the extension of filing a
notice of appeal.
JUAN DELA CRUZ, defendant – appellant
Q: How are you going to appeal?
-And the plaintiff shall be referred to as
A: The appeal is taken by filing a notice of appeal with the
JUANA DELA CRUZ, plaintiff – appellee court that rendered the judgment or final order appealed from.
The notice of appeal shall indicate the parties to the appeal,
Q: what if both the parties appealed? Is it allowed? the judgment or final order or part thereof appealed from, and
state the material dates showing the timeliness of the appeal.
A: yes
TAKE NOTE:
Q: how will they be referred to?
-This is not motion but a mere NOTICE
A: they will be both called appellants
-The trial court cannot deny the appeal.
Example:
-The material date must be stated.
JUAN DELA CRUZ, defendant – appellant
Q: What is this material date all about?
And the plaintiff shall be referred to as
A: Stating the date when the decision appealed from was
JUANA DELA CRUZ, plaintiff – appellant received and the expiration of the date when to appeal.

When both parties appeal, this is what we call as The filling fee or docket fees must also be paid within the
“CROSS APPEAL” period of taking an appeal.

TAKE NOTE: In land registration cases, wherein the MTC is
exercising a so called delegated jurisdiction, the decision of
the MTC is appealable to the court of appeals
Q: Why court of appeals?
A: Because the MTC exercise a delegated jurisdiction which is
supposedly to be exercise by the RTC.
-Non payment of docket fees is jurisdictional; it may result
to the dismissal of the appeal.
-The trial court upon receipt of the notice of appeal will issue
an order that it is giving due course to the appeal and require
the clerk of court to forward the entire records, together with
the transcript, stenographic notes and all exhibits to the RTC
within 15 days from the issuance of the order.

Another is in cases of election protest involving barangay Q: What will happen if the docket fees are not paid?
elections.
A: Dismiss
Q: Where filed?
-In appeals from MTC to RTC, the RTC has discretion to
A: MTC allow late payment of docket fees of the appeal

Q: Where to appeal? -In the CA and SC, they are very strict on the non payment of
docket fees, non payment - dismiss
A: COMELEC
Fontanar vs Bonsubre G.R. No. L-56315 November 25,
Take note that you will pay docket fees in the MTC and also 1986
with the COMELEC
The failure to pay the appellate court docket fee does not
automatically result in the dismissal of the appeal, much less
SEC. 2 affect the court's jurisdiction, the dismissal being discretionary
When to appeal. An appeal may be taken within fifteen (15) in the appellate court, and that this rule is applicable by
days after notice to the appellant of the judgment or final order analogy to Court of First Instance in the exercise of the
appealed from. Where a record on appeal is required, the appellate jurisdiction conferred upon them.

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SEC. 3
How to appeal. The appeal is taken by filing a notice of
appeal with the court that rendered the judgment or final order
appealed from. The notice of appeal shall indicate the parties
to the appeal, the judgment or final order or part thereof
appealed from, and state the material dates showing the
timeliness of the appeal.
A record on appeal shall be required only in special
proceedings and in other cases of multiple or separate
appeals.
The form and contents of the record on appeal shall be as
provided in section 6, Rule 41.
Copies of the notice of appeal, and the record on appeal where
required, shall be served on the adverse party. (n)
SEC. 4
Perfection of appeal; effect thereof. The perfection of the
appeal and the effect thereof shall be governed by the
provisions of section 9, Rule 41. (n)
SEC. 5
Appellate court docket and other lawful fees. Within the
period for taking an appeal, the appellant shall pay to the clerk
of the court which rendered the judgment or final order
appealed from the full amount of the appellate court docket
and other lawful fees. Proof of payment thereof shall be
transmitted to the appellate court together with the original
record or the record on appeal, as the case may be. (n)
SEC. 6
Duty of the clerk of court. Within fifteen (15) days from the
perfection of the appeal, the clerk of court or the branch clerk
of court of the lower court shall transmit the original record or
the record on appeal, together with the transcripts and exhibits,
which he shall certify as complete, to the proper Regional Trial
Court. A copy of his letter of transmittal of the records to the
appellate court shall be furnished the parties. (n)
SEC. 7
Procedure in the Regional Trial Court.
(a) Upon receipt of the complete record or the record on
appeal, the clerk of court of the Regional Trial Court shall notify
the parties of such fact.
(b) Within fifteen (15) days from such notice, it shall be
the duty of the appellant to submit a memorandum which shall
briefly discuss the errors imputed to the lower court, a copy of
which shall be furnished by him to the adverse party. Within
fifteen (15) days from receipt of the appellant's memorandum,
the appellee may file his memorandum. Failure of the appellant
to file a memorandum shall be a ground for dismissal of the
appeal.
(c) Upon the filing of the memorandum of the appellee, or
the expiration of the period to do so, the case shall be
considered submitted for decision. The Regional Trial Court
shall decide the case on the basis of the entire record of the
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proceedings had in the court of original and such memoranda
as are filed. (n)
DISCUSSION
The clerk of court of the RTC now requires the transmission of
the records from MTC to RTC and upon receipt of the entire
records, the clerk of court will notify the parties.
The court will issue an order to submit memorandum.
The date of the notice from the clerk of court notifying the
parties that the clerk of court received the records is very
important because it is the reckoning date of period when to
file a memorandum.
Failure of the appellant to file a memorandum is a ground for
dismissal.
Q: What is memorandum?
A: this is the argument of a party pointing the error of the MTC.
Meaning assignment of errors, if the appellant fails to assigned
errors will lead to the dismissal of the appeal
Q: Period to file memorandum?
A: Within 15 days
It is not mandatory for the appellee to submit his
memorandum.
The case is now ready for submission for decision
SEC. 8
Appeal from orders dismissing case without trial; lack of
jurisdiction. If an appeal is taken from an order of the lower
court dismissing the case without a trial on the merits, the
Regional Trial Court may affirm or reverse it, as the case may
be. In case of affirmance and the ground of dismissal is lack of
jurisdiction over the subject matter, the Regional Trial Court, if
it has jurisdiction thereover, shall try the case on the merits as
if the case was originally filed with it. In case of reversal, the
case shall be remanded for further proceedings.
If the case was tried on the merits by the lower court without
jurisdiction over the subject matter, the Regional Trial Court on
appeal shall not dismiss the case if it has original jurisdiction
thereof, but shall decide the case in accordance with the
preceding section, without prejudice to the admission of
amended pleadings and additional evidence in the interest of
justice. (n)
SEC. 9
Applicability of Rule 41. The other provisions of Rule 41 shall
apply to appeals provided for herein insofar as they are not
inconsistent with or may serve to supplement the provisions of
this Rule.
--- oOo ---
August 1, 2016
Discussion on Appeal includes Appeal in criminal cases
Page 101
 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos

Before, the mode of appeal is direct to the

SC If penalty imposed is RP or
SC if the penalty is RP/Death, but in the case of People vs.
Death, Appeal to SC is by
[Petition for Review on Mateo, the court provided for an intermediate appeal after the
Ordinary Appeal [Notice of
Certiorari] Appeal] SC realized that direct appeal to them resulted to a burdening
of their docket. If the case is dismissed by the CA, then it
would be the end of the case.

If the penalty imposed is DEATH, the appeal

is AUTOMATIC. It means the accused need not file an appeal
CA
as the case is appealed automatically because it is the life of
[Petition for Review]
Sandiganbayan the accused is at stake.
[Petition for Review]
[Ordinary Appeal] Importance of Appeal through Ordinary Appeal
There is review of facts not only limited to review of law.

c. If the case is cognizable by the

RTC
[Ordinary Appeal; via
Sandiganbayan, it shall be appealed
Notice of Appeal] through Rule 45 [Petition for Review on
Certiorari] because the finding of facts by the
Sandiganbayan is final
EXCEPT if the penalty imposed is RP or Life Sentence then
the appeal is by Ordinary Appeal.

MTC
“Finding of facts of the lower court”
Given high respect as the judge in the trial court was able to
see and observe the demeanor of the witness during trial.
In Criminal cases:
a) If not a public officer – the appeal procedure is the
--- oOo ---
same as in civil cases
b) If public officer and the crime committed is in
RULE 41
relation to the performance of his duties
APPEAL FROM TRIAL COURTS
a. If the case is cognizable in the MTC, the
[Appeal taken from the decision of the RTC acting in its original
appeal shall be taken to the RTC by Notice
jurisdiction]
of Appeal. However, instead of filing the
SEC. 1
appeal before the Court of Appeal, the
Subject of appeal
petition shall be filed before the
An appeal may be taken from a judgment or final
Sandiganbayan. From the Sandiganbayan,
order that completely disposes of the case or of a particular
further appeal can be taken before the
matter therein when declared by these Rules to be
Supreme Court via Petition for Certiorari
appealable.
b. If the case is cognizable in the RTC, the
appeal shall be taken before the
[Judge D: know the basics, such as distinction between final
Sandiganbayan through a notice of appeal or
and interlocutory order, not knowing this very basic knowledge
Ordinary appeal. Further appeal can made
merits flunking in the bar]
before the Supreme Court via Petition for
Review on Certiorari
“Particular matter declared by the rules to be appealable”
Example:
EXCEPT
a) Denial of Motion for Intervention – denial of such
When the penalty imposed by the RTC is RECLUSION
necessitates appeal as there is nothing left for him to do
PERPETUA or DEATH
in the trial court. the order of the court is already final
b) Denial of Motion to file third party complaint
If the penalty imposed is affirmed by the
Sandiganbayan, it shall be appealed to the Supreme Court by
No appeal may be taken from:
Ordinary appeal [Notice of Appeal]. This is pursuant to the
(a) An order denying a motion for new trial or
provision in the constitution that in cases where the lower court
reconsideration;
imposes RP/ Life Sentence or Death, the mode of appeal is
(b) An order denying a petition for relief or any similar
Ordinary appeal to the SC.
motion seeking relief from judgment;
(c) An interlocutory order;
The same procedure is available to Civilians
[not public officers] whose penalty imposed is RP or Death.
“Interlocutory Order”
After affirming the penalty by the CA, the appeal is to the SC.
Example:
The mode of appeal is by Ordinary Appeal to the Supreme
Denial of motion of dismiss, if the defendant believes
Court
that it was an error for the court to have denied the motion,
then he should file Certiorari alleging grave abuse of discretion.

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As discussed by: Judge Debalucos
Another option is to continue with the case. File an
answer and then go to trial. In the event he lost, file an appeal
and allege the ground for the denial motion to dismiss as one
of the errors of the court.
Q: Why is appeal from interlocutory appeal not allowed?
A: To avoid multiple appeals
The rules however does not totally prohibit multiple as it is
allowed in certain cases:
1) Special proceedings
a. i.e., Probate of will
2) Special Civil Actions
a. Expropriation
3) Foreclosure of mortgage
4) Action for partition of property with accounting
In cases where multiple appeals could be had,
RECORD OF APPEAL is required. The period of appeal is 30
days as the court needs to approve the record to be submitted
to the appellate court.
(d) An order disallowing or dismissing an appeal;
(e) An order denying a motion to set aside a judgment
by consent, confession or compromise on the
ground of fraud, mistake or duress, or any other
ground vitiating consent;
(f) An order of execution;
(g) A judgment or final order for or against one or
more of several parties or in separate claims,
counterclaims, cross-claims and third-party
complaints, while the main case is pending,
unless the court allows an appeal therefrom; and
(h) An order dismissing an action without prejudice.
“Order dismissing action without prejudice”
Example:
Dismissal on the ground of improper venue - remedy is to file
in proper venue
In all the above instances where the judgment or
final order is not appealable, the aggrieved party may file
an appropriate special civil action under Rule 65.
- Ground of dismissal is Res judicata
o Remedy: Appeal
- If appeal is not allowed
o Remedy: Petition for Certiorari
- If the case is dismissed because it does not contain a
certification against forum shopping.
o TAKE NOTE: this cannot be amended; the
court will dismiss the case.
o Remedy: Refile the case
SEC. 2 Modes of Appeal
a. Ordinary appeal
- The appeal to Court of Appeals pertains to those
cases decided by the RTC in its original jurisdiction,
meaning the case is filed in that court for the first time.
- Appeal is taken by ORDINARY APPEAL by filing a
NOTICE OF APPEAL with the court that rendered the
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decision or final order and furnishing a copy upon the
other party.
- TAKE NOTE: whatever is filed in court except the
initial pleading, you should furnish first to the adverse
party.
GENERAL RULE: No record on appeal is needed.
EXCEPTION: special cases which allows multiple appeals.
- TAKE NOTE: filing of the appeal must be couple with
the appeal fees, otherwise appeal would be
dismissed.
- Rule of the thumb: Trial court up to the Court of
Appeals including Sandiganbayan, except the
Supreme Court, either question of facts or law can be
raised.
- In the Supreme Court, only pure question of law
except in criminal cases where the penalty imposed is
reclusion perpetual or life sentence.
-
b. Petition for review
- This is for decisions rendered by the RTC in its
appellate jurisdiction, in other words the case
originated in the MTC.
- The appellant may raise question of law and facts; or
pure question of law; or pure question of facts.
- BUT: Those cases coming from RTC and directly
appealed the Supreme Court, such would refer to
decisions rendered by the Supreme Court in its
original jurisdiction. (pwede ka mu agi sa skyway, so
Rule 45)
- But if the case originated from the MTC, then
appealed to RTC and you are contented with the
finding of facts in the RTC, your only concern is the
application of the law, you cannot use the “skyway”,
Rule 45. Proper appeal is through the Court of
Appeals.
-
c. Appeal by certiorari
- Only questions of law
- Appeal is through the Supreme Court, but as
discussed earlier, these cases should only pertain to
those decisions rendered by the RTC in its original
jurisdiction. (for you to pass the “skyway”, no need to
go through CA)
CASE: FIVE STAR MARKETING VS BOOC, G.R. No. 143331
October 5, 2007
In the present case, petitioner comes before this Court raising
a pure question of law. It impugns the propriety of decision of
the RTC which would remand the ejectment case to the MTCC
for the reception of evidence and for further proceedings on the
issue of ownership of the subject property. Petitioner further
assails the finding of the RTC that the respondent was denied
due process when the MTCC decided on the basis of the
complaint alone for failure of the respondent and his counsel to
appear during the preliminary conference. Otherwise stated,
the issues are: the effect of the non-appearance of defendant
and counsel during the preliminary conference of an ejectment
case and the propriety of remanding the case for further
proceedings.
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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
Clearly, petitioner raises only questions of law which require
the interpretation and application of the rules of procedure laid
down by the Rules of Court. However, considering that the
assailed decision was rendered by the RTC in the exercise of
its appellate jurisdiction as it was brought before it from the
MTCC, petitioner should have elevated the case to the CA
under Rule 42 via the second mode of appeal, instead of
appealing directly before this Court under Rule 45.
Section 447 of Circular 2-90 in effect provides that an appeal
taken either to this Court or to the CA by the wrong mode or
inappropriate mode shall be dismissed. This rule is now
incorporated in Section 5, Rule 56 of the Rules of Court.
Moreover, the filing of the case directly with this Court departs
from the hierarchy of courts. Normally, direct resort from the
lower courts to this Court will not be entertained unless the
appropriate remedy cannot be obtained in the lower tribunals.
Petitioner, therefore, availed itself of the wrong or inappropriate
mode of appeal. On this score alone, the petition could have
been outrightly dismissed. Nevertheless, in the interest of
justice and in view of the erroneous conclusion of the trial
judge clearly shown in the RTC decision, this Court shall
proceed to address the issues involving a well-settled question
of law.
Q: if you appealed a decision of the MTC on pure question of
law, can you directly appeal to the SC?
A: No. You have to take the “ordinary route”. The
“skyway”(Rule 45) would only be used if the case is rendered
by the RTC in its original jurisdiction.
SEC. 3
Period of ordinary appeal
The appeal shall be taken within fifteen (15) days from notice
of the judgment or final order appealed from. Where a record
on appeal is required, the appellant shall file a notice of appeal
and a record on appeal within thirty (30) days from notice of
the judgment or final order.
The period of appeal shall be interrupted by a timely motion for
new trial or reconsideration. No motion for extension of time to
file a motion for new trial or reconsideration shall be allowed.
Period to file appeal
15 days: notice of appeal, petition for review or petition for
review on certiorari
30 days: record on appeal (multiple appeals are allowed by
law)
48 hours: habeas corpus cases
Petition for review
- As regards to NOTICE OF APPEAL, motion for
extension to file notice of appeal is NOT allowed.
Petition for review or petition for review on Certiorari in
the Supreme Court; or Petition for review to the Court of
Appeals
- Subject to motion for extension provided that
appropriate appeal fees have already been paid.
Period of Appeal; when interrupted
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- Upon filing a timely motion new trial or
reconsideration.
- CASE: Neypes vs Court of Appeals
o To standardize the appeal periods provided
in the Rules and to afford litigants fair opportunity to
appeal their cases, the Court deems it practical to
allow a fresh period of 15 days within which to file
the notice of appeal in the Regional Trial Court,
counted from receipt of the order dismissing a
motion for a new trial or motion for reconsideration.
o Henceforth, this “fresh period rule” shall also
apply to Rule 40 governing appeals from the
Municipal Trial Courts to the Regional Trial Courts;
Rule 42 on petitions for review from the Regional
Trial Courts to the Court of Appeals; Rule 43 on
appeals from quasi-judicial agencies to the Court of
Appeals; and Rule 45 governing appeals
by certiorari to the Supreme Court. The new rule
aims to regiment or make the appeal period uniform,
to be counted from receipt of the order denying the
motion for new trial, motion for reconsideration
(whether full or partial) or any final order or
resolution.
SEC. 4
Appellate court docket and other lawful fees.
Within the period for taking an appeal, the appellant shall pay
to the clerk of the court which rendered the judgment or final
order appealed from, the full amount of the appellate court
docket and other lawful fees. Proof of payment of said fees
shall be transmitted to the appellate court together with the
original record or the record on appeal.
- Appeal fee is jurisdictional
SEC. 5
Notice of appeal.
The notice of appeal shall indicate the parties to the appeal,
specify the judgment or final order or part thereof appealed
from, specify the court to which the appeal is being taken, and
state the material dates showing the timeliness of the appeal.
- The TIMELINESS must be indicated in the notice of
appeal/ petition for review/ petition for certiorari.
- Date of receipt of order or decision.
SEC. 6
Record on appeal; form and contents thereof.
The full names of all the parties to the proceedings shall be
stated in the caption of the record on appeal and it shall
include the judgment or final order from which the appeal is
taken and, in chronological order, copies of only such
pleadings, petitions, motions and all interlocutory orders as are
related to the appealed judgment or final order for the proper
understanding of the issue involved, together with such data as
will show that the appeal was perfected on time. If an issue of
fact is to be raised on appeal, the record on appeal shall
include by reference all the evidence, testimonial and
documentary, taken upon the issue involved. The reference
shall specify the documentary evidence by the exhibit numbers
or letters by which it was identified when admitted or offered at
the hearing, and the testimonial evidence by the names of the
corresponding witnesses. If the whole testimonial and
documentary evidence in the case is to be included, a
statement to that effect will be sufficient without mentioning the
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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos

names of the witnesses or the numbers or letters of exhibits. Plaintiff received a Defendant received
Every record on appeal exceeding twenty (20) pages must copy of the decision: a copy of the
contain a subject index. July 25 (service by mail decision: July 20
due to distance) (personal service)
PERIOD TO FILE APPEAL
SEC. 7
Approval of record on appeal. (exclude the 1st, (exclude the 1st,
include the last so the include the last so
Upon the filing of the record on appeal for approval and if no
objection is filed by the appellee within five (5) days from period to file appeal is the period to file
receipt of a copy thereof, the trial court may approve it as until August 9) appeal is until
presented or upon its own motion or at the instance of the August 4)
appellee, may direct its amendment by the inclusion of any SITUATION 1:
omitted matters which are deemed essential to the Suppose Mr. P did not Suppose Mr. D filed
determination of the issue of law or fact involved in the appeal. appeal yet. The court a NOTICE OF
If the trial court orders the amendment of the record, the has not completely lost APPEAL on July 30.
appellant, within the time limited in the order, or such extension it power over the case (appeal is deemed
thereof as may be granted, or if no time is fixed by the order because the other perfected as to Mr.
within ten (10) days from receipt thereof, shall redraft the party has not yet filed D)
record by including therein, in their proper chronological an appeal and the TAKE NOTE:
sequence, such additional matters as the court may have period to file has not
yet prescribed. By filing of a notice
directed him to incorporate, and shall thereupon submit the of appeal Mr. D
redrafted record for approval, upon notice to the appellee, in cannot anymore
like manner as the original draft. seek any ready from
the trial court
SEC. 8 because as far as he
Joint record on appeal. is concerned his
Where both parties are appellants, they may file a joint record remedy is with the
on appeal within the time fixed by section 3 of this Rule, or that Appellate court.
fixed by the court. SITUATION 2
- This is about CROSS APPEAL, when both parties Mr. P filed a notice of Mr. D filed a notice
are discontented with the decision then they may file appeal on August 1, of appeal
appeal. because he was not
- If both are appellants, they may file a joint record on contended with the
appeal. award given by the
SEC. 9 court even if he won
Perfection of appeal; effect thereof. the case.
A party’s appeal by notice of appeal is deemed perfected as to TAKE NOTE:
him upon the filing of the notice of appeal in due time. Upon filing, the court
lost its jurisdiction over
A party’s appeal by record on appeal is deemed perfected as the case because as
to him with respect to the subject matter thereof upon the far as both parties are
approval of the record on appeal filed in due time. concerned their
remedies are already
In appeals by notice of appeal, the court loses jurisdiction over now with the appellate
the case upon the perfection of the appeals filed in due time court.
and the expiration of the time to appeal of the other parties. SITUATION 3
In appeals by record on appeal, the court loses jurisdiction only If Mr. P did not file a Mr. D did not file a
over the subject matter thereof upon the approval of the notice of appeal, the notice of appeal, the
records on appeal filed in due time and the expiration of the court will lose its court will lose its
time to appeal of the other parties. jurisdiction upon jurisdiction upon
expiration to file appeal expiration to file
In either case, prior to the transmittal of the original record or appeal
the record on appeal, the court may issue orders for the TAKE NOTE: The same situation is application
protection and preservation of the rights of the parties which do when record on appeal is required, then party
not involve any matter litigated by the appeal, approve deemed have perfected his appeal upon filing
compromises, permit appeals of indigent litigants, order a notice of appeal and the approval of record
execution pending appeal in accordance with section 2 of Rule on appeal.
39, and allow withdrawal of the appeal.
-IMPORTANT PROVISION - After the parties shall have filed their appeal or after
the court has lost its jurisdiction over the case, the
court will issue an order directing the clerk of court to
- Example: Plaintiff vs. Defendant. forward the record for review.

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As discussed by: Judge Debalucos
GEN. RULE: upon perfection of the appeal or expiration of the
period to file appeal, the court loses its jurisdiction over the
case.
EXCEPTION: the court may allow certain remedies provided
that the record is NOT TRANSMITTED yet to the appellate
court. This is called RESIDUAL POWERS.
o The court may issue orders for the protection
and preservation of the rights of the parties
which do not involve any matter litigated by
the appeal
 Example: appointment of a receiver
o approve compromises
 Example: even if there is already an
appeal, parties can make a
compromise agreement.
 It can be made during pre-trial, trial,
appeal, after judgment and even if
the decision has become final and
executory.
o permit appeals of indigent litigants
o order execution pending appeal in
accordance with section 2 of Rule 39
o allow withdrawal of the appeal.
Execution Pending Appeal
- GENERAL RULE: Once there is an appeal, the
execution of judgment is stayed (held in abeyance).
- EXCEPTION: an order of execution pending appeal.
- The court may only issue execution pending appeal if
there are special and important reasons.
The court may issue an order of execution pending appeal
before the trial court forwards its records OR allow the
withdrawal of the appeal.
- TAKE NOTE: once the appeal is withdrawn, the
decision becomes final and executory.
CASE: Universal Far East vs CA
We hold that the trial court had jurisdiction to issue the order of
execution pending appeal because the motion for execution
was filed before Ching had perfected his appeal and it was
resolved before the trial court which on Ching's appeal and
elevated the record to the Appellate Court (See sec. 23,
Interim Rules). The execution pending appeal has to be a part
of the records to be elevated to the Appellate Court.
Said motion could not have been dispatched by the trial court
within the reglementary fifteen-day period for appeal because
respondent Ching himself asked for an extension of fifteen
days to file his opposition. As already noted, he filed his
opposition on February 3, 1984 after the perfection of his
appeal. He did not question the trial court's jurisdiction
It may be argued that the trial court should dispose of the
motion for execution within the reglementary fifteen-day period.
Such a rule would be difficult, if not impossible, to follow. It
would not be pragmatic and expedient and could cause
injustice. Hurried justice is not always authentic justice.
The motion for execution has to be set for hearing. The
judgment debtor has to be heard. The good reasons for
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execution pending appeal have to be scrutinized. These things
cannot be done within the short period of fifteen days. The trial
court may be confronted with other matters more pressing that
would demand its immediate attention.
The revamp law and its Interim Rules do not require that the
motion for execution be resolved within the fifteen-day period.
It should be noted that under the Rules of Court, where appeal
is by record on appeal, the trial court loses jurisdiction upon
approval of the record on appeal and appeal bond (Sec. 9,
Rule 41, Rules of Court). That may take place long after the
expiration of the thirty-day reglementary period for appeal.
For example:
Mr. D filed an appeal on July 29 and his last day to file the
same is on Aug.4, on Aug. 1 he decided to file a motion to
withdraw the appeal, the court granted the same and upon
receiving the order he immediately filed an MR.
Is that allowed? NO.
- Once the Notice of Appeal is filed; his remedy is with
the appellate court. When he filed his motion to
withdraw the appeal; the decision becomes final and
executory.
- He cannot anymore avail of remedies with the trial
court once he filed his appeal.
- If he filed an MR first, he could still have availed of
appeal and he would have a fresh period of 15 days.
SEC. 10
Duty of clerk of court of the lower court upon perfection of
appeal.
Within thirty (30) days after perfection of all the appeals in
accordance with the preceding section, it shall be the duty of
the clerk of court of the lower court:
(a) To verify the correctness of the original record or the
record on appeal, as the case may be aid to make certification
of its correctness;
(b) To verify the completeness of the records that will be,
transmitted to the appellate court;
(c) If found to be incomplete, to take such measures as
may be required to complete the records, availing of the
authority that he or the court may exercise for this purpose;
and
(d) To transmit the records to the appellate court.
If the efforts to complete the records fail, he shall indicate in his
letter of transmittal the exhibits or transcripts not included in
the records being transmitted to the appellate court, the
reasons for their non-transmittal, and the steps taken or that
could be taken to have them available.
The clerk of court shall furnish the parties with copies of his
letter of transmittal of the records to the appellate court.
-Once the NOA (notice of appeal) is filed the court shall issue
an order to the clerk of court to forward the records to the
appellate court within 30 days, the entire records including
TSN (transcript of Stenogprahic notes) and all the exhibits.
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SEC. 11
Transcript
Upon the perfection of the appeal, the clerk shall immediately
direct the stenographers concerned to attach to the record of
the case five (5) copies of the transcripts of the testimonial
evidence referred to in the record on appeal. The
stenographers concerned shall transcribe such testimonial
evidence and shall prepare and affix to their transcripts an
index containing the names of the witnesses and the pages
wherein their testimonies are found, and a list of the exhibits
and the pages wherein each of them appears to have been
offered and admitted or rejected by the trial court. The
transcripts shall be transmitted to the clerk of the trial court
who shall thereupon arrange the same in the order in which the
witnesses testified at the trial, and shall cause the pages to be
numbered consecutively.
SEC. 12
Transmittal
The clerk of the trial court shall transmit to the appellate court
the original record or the approved record on appeal within
thirty (30) days from the perfection of the appeal, together with
the proof of payment of the appellate court docket and other
lawful fees, a certified true copy of the minutes of the
proceedings, the order of approval, the certificate of
correctness, the original documentary evidence referred to
therein, and the original and three (3) copies of the transcripts.
Copies of the transcripts and certified true copies of the
documentary evidence shall remain in the lower court for the
examination of the parties.
SEC. 13
Dismissal of appeal
Prior to the transmittal of the original record or the record on
appeal to the appellate court, the trial court may motu proprio
on motion, dismiss the appeal for having been taken out of
time or for non-payment of the docket and other lawful fees
within the reglementary period. (as amended, AM no. 00-2-10-
SC, May 1, 2000)
RULE 44
-this is a continuation of rule 41.
-this is the proceedings in the appellate court (CA)
SEC. 1
Title of cases
In all cases appealed to the Court of Appeals under Rule 41,
the title of the case shall remain as it was in the court of origin,
but the party appealing the case shall be further referred to as
the appellant and the adverse party as the appellee.
SEC. 2
Counsel and guardians
The counsel and guardians ad litem of the parties in the court
of origin shall be respectively considered as their counsel and
guardians ad litem in the Court of Appeals. When others
appear or are appointed, notice thereof shall be served
immediately on the adverse party and filed with the court.
-The counsels shall be the same unless of course the counsel
withdrew from the case
SEC. 3
Order of transmittal of record
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
If the original record or the record on appeal is not transmitted
to the Court of Appeals within thirty (30) days after the
perfection of the appeal, either party may file a motion with the
trial court, with notice to the other, for the transmittal of such
record or record on appeal.
-If the record of the case has not been transmitted to the
appellate court then the appellate court shall issue an order
requiring the clerk of court of the trial court to forward the
record.
SEC.4
Docketing of case
Upon receiving the original record or the record on appeal and
the accompanying documents and exhibits transmitted by the
lower court, as well as the proof of payment of the docket and
other lawful fees, the clerk of court of the Court of Appeals
shall docket the case and notify the parties thereof.
Within ten (10) days from receipt of said notice, the appellant,
in appeals by record on appeal, shall file with the clerk of court
seven (7) clearly legible copies of the approved record on
appeal, together with the proof of service of two (2) copies
thereof upon the appellee.
Any unauthorized alteration, omission or addition in the
approved record on appeal shall be a ground for dismissal of
the appeal.
 the case shall be docketed; each case has its own
number in the court.
 Notify the parties.
SEC. 5
Completion of record
Where the record of the docketed case is incomplete, the clerk
of court of the Court of Appeals shall so inform said court and
recommend to it measures necessary to complete the record.
It shall be the duty of said court to take appropriate action
towards the completion of the record within the shortest
possible time.
 Even if the record is incomplete but if the court
already rendered decision then the court may decide
the case
SEC. 6
Dispensing with complete record
Where the completion of the record could not be accomplished
within a sufficient period allotted for said purpose due to
insuperable or extremely difficult causes, the court, on its own
motion or on motion of any of the parties, may declare that the
record and its accompanying transcripts and exhibits so far
available are sufficient to decide the issues raised in the
appeal, and shall issue an order explaining the reasons for
such declaration.
SEC. 7
Appellant's brief
It shall be the duty of the appellant to file with the court, within
forty-five (45) days from receipt of the notice of the clerk that all
the evidence, oral and documentary, are attached to the
record, seven (7) copies of his legibly typewritten,
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mimeographed or printed brief, with proof of service of two (2) Section 13; Contents of appellant’s brief Section 14;
copies thereof upon the appellee. Contents of appellee’s brief
Contents of Appellant’s Brief Contents of
 Appellant is required to file appellant’s brief Appellee’s Brief
 Within 45 days 1) Subject index 1) subject index
 This is mandatory failure on his part to file appellant’s 2) Assignment of errors 2) Statement of
brief shall cause the dismissal of the case. 3) Statement of the Facts
 In the appellant’s brief: Case 3) Argument
- Appellant shall recite the facts of the case; 4) Statement of Facts 4) Relief
- Most importantly, appellant must be able to 5) Statement of Issues
point out the errors committed by the lower 6) Argument
court (assignment of errors) 7) Relief
- Failure to state assignment of errors shall
cause the dismissal of the appeal. * brief must conform to form and substance, again failure to
SEC. 8 state Assignment of errors shall warrant the dismissal of the
Appellee's brief appeal.
Within forty-five (45) days from receipt of the appellant's brief,
the appellee shall file with the court seven (7) copies of his
legibly typewritten, mimeographed or printed brief, with proof of CIVIL CASES CRIMINAL CASES
service of two (2) copies thereof upon the appellant.
Only errors pointed to or The whole case is subjected
 After receiving copy of the appellant’s brief, the assigned shall be considered, to review even those errors
appellee may or may not file appellee’s brief. as a rule. not assigned.
 This is optional on the part of the appellee.
TAKE NOTE:
SEC. 9 Generally, only those errors clearly assigned and argued shall
Appellant's reply brief be considered.
Within twenty (20) days from receipt of the appellee's brief, the EXCEPTION: errors affecting jurisdiction and clerical errors
appellant may file a reply brief answering points in the
appellee's brief not covered in his main brief. VIRON TRANSPORTATION VS CA
SEC. 10. We do not agree with the petitioner. While it may be true that in
Time of filing memoranda in special cases their brief with the Court of Appeals the respondents did not
In certiorari, prohibition, mandamus, quo warranto and habeas assign as error the propriety of the pre-trial conference on May
corpus cases, the parties shall file in lieu of briefs, their 22, 1992, however, the Court of Appeals was not proscribed
respective memoranda within a non-extendible period of thirty from delving into and resolving the said issue.
(30) days from receipt of the notice issued by the clerk that all
the evidence, oral and documentary, is already attached to the In Catholic Bishop of Balanga v. Court of Appeals, we held
record. that:
The failure of the appellant to file his memorandum within the Guided by the foregoing precepts, we have ruled in a number
period therefor may be a ground for dismissal of the appeal. of cases that the appellate court is accorded a broad
discretionary power to waive the lack of proper assignment of
SEC. 11. errors and to consider errors not assigned. It is clothed with
Several appellants or appellees or several counsel for ample authority to review rulings even if they are not assigned
each party as errors in the appeal. Inasmuch as the Court of Appeals may
Where there are several appellants or appellees, each counsel consider grounds other than those touched upon in the
representing one or more but not all of them shall be served decision of the trial court and uphold the same on the basis of
with only one copy of the briefs. When several counsel such other grounds, the Court of Appeals may, with no less
represent one appellant or appellee, copies of the brief may be authority, reverse the decision of the trial court on the basis of
served upon any of them. grounds other than those raised as errors on appeal. We have
applied this rule, as a matter of exception, in the following
SEC. 12. instances:
Extension of time for filing briefs
Extension of time for the filing of briefs will not be allowed, (1) Grounds not assigned as errors but affecting
except for good and sufficient cause, and only if the motion for jurisdiction over the subject matter;
extension is filed before the expiration of the time sought to be
extended. (2) Matters not assigned as errors on appeal but are
evidently plain or clerical errors within contemplation of law;
 Parties may be allowed to file motion for extension
 Ofcourse, if you want to file a motion for extension (3) Matters not assigned as errors on appeal but
you must file it before the expiration of the period. consideration of which is necessary in arriving at a just
What is there to extend if the period has already decision and complete resolution of the case or to serve the
expired. interests of justice or to avoid dispensing piecemeal justice;

QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim) Page 108
“A Leap to Succeed”
 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
(4) Matters not specifically assigned as errors on appeal
but raised in the trial court and are matters of record having
some bearing on the issue submitted which the parties failed to
raise or which the lower court ignored;
(5) Matters not assigned as errors on appeal but closely
related to an error assigned; and
(6) Matters not assigned as errors on appeal but upon
which the determination of a question properly assigned, is
dependent.
It was proper for the Court of Appeals to resolve the issue on
the propriety of the pre-trial conference on May 22, 1992 to
enable said court to arrive at a just and complete resolution of
the appeal and serve the interests of justice. Besides, the
petitioner did not assail in its motion for reconsideration filed
with the Court of Appeals the actuation of said court of delving
into and resolving the issue of the propriety of the trial court
setting a second pre-trial conference after lifting its February 7,
1992 Order. The petitioner merely alleged in its motion for
reconsideration that the proper remedy of the respondents was
to file a motion for new trial under Rule 37 of the Rules of Court
and not to file a motion to lift the May 22, 1992 Order of the
trial court.
REMEMBER:
 Appellee can not assign errors, he cannot seek
remedy because he did not appeal.
 All the Appellee has to do is to defend the decision of
the lower court.
 But again the filing of appellee’s brief is optional.
COCA-COLA VS GARCIA
The Court agrees with petitioner that respondent can no longer
seek a review of the CA's ruling on the validity of her
termination from employment on the ground of abandonment
of work. Records do not show that respondent appealed from
the CA decision. For failure to appeal the decision of the CA to
this Court, respondent cannot obtain any affirmative relief other
than that granted in the decision of the CA. That decision of the
CA on the validity of her termination has become final as
against her and can no longer be reviewed, much less
reversed, by this Court.
It is well-settled that a party who has not appealed from a
decision cannot seek any relief other than what is provided in
the judgment appealed from.13 An appellee who has himself
not appealed may not obtain from the appellate court any
affirmative relief other than the ones granted in the decision of
the court below.14 The appellee can only advance any
argument that he may deem necessary to defeat the
appellant's claim or to uphold the decision that is being
disputed, and he can assign errors in his brief if such is
required to strengthen the views expressed by the court a
quo.15 These assigned errors in turn may be considered by
the appellate court solely to maintain the appealed decision on
other grounds, but not for the purpose of reversing or
modifying the judgment in the appellee's favor and giving him
other reliefs.
MARICALUM MINING VS REMINGTON
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
ISSUE: Whether the Court's Decisions in DBP v. CA and PNB
v. CA inured to the benefit of petitioner which was not a party
to either case, as to bar execution of the April 10, 1990 RTC
Decision, as affirmed in the October 6, 1995 CA Decision in
CA-G.R. CV No. 27720, against it
SC: Yes. Indeed, one party's appeal from a judgment will not
inure to the benefit of a co-party who failed to appeal; and as
against the latter, the judgment will continue to run its course
until it becomes final and executory. To this general rule,
however, one exception stands out: where both parties have a
commonality of interests, the appeal of one is deemed to be
the vicarious appeal of the other.
In Director of Lands v. Reyes the Court identified the
circumstances indicative of a commonality in the interests of
the parties, such as when: a) their rights and liabilities originate
from only one source or title; b) homogeneous evidence
establishes the existence of their rights and liabilities; and c)
whatever judgment is rendered in the case or appeal, their
rights and liabilities will be affected, even if to varying extents.
In DBP v. CA and PNB v. CA, the Court has conclusively
adjudicated the commonality in the interests of DBP, PNB and
petitioner, in relation to private respondent.
SEC. 15
Questions that may be raised on appeal
Whether or not the appellant has filed a motion for new trial in
the court below he may include in his assignment of errors any
question of law or fact that has been raised in the court below
and which is within the issues framed by the parties.
RULE 42
PETITION FOR REVIEW FROM THE RTC TO THE CA
(RTC exercising its appellate jurisdiction)
SEC. 1
How appeal taken; time for filing
A party desiring to appeal from a decision of the Regional Trial
Court rendered in the exercise of its appellate jurisdiction may
file a verified petition for review with the Court of Appeals,
paying at the same time to the clerk of said court the
corresponding docket and other lawful fees, depositing the
amount of P500.00 for costs, and furnishing the Regional Trial
Court and the adverse party with a copy of the petition. The
petition shall be filed and served within fifteen (15) days from
notice of the decision sought to be reviewed or of the denial of
petitioner's motion for new trial or reconsideration filed in due
time after judgment. Upon proper motion and the payment of
the full amount of the docket and other lawful fees and the
deposit for costs before the expiration of the reglementary
period, the Court of Appeals may grant an additional period of
fifteen (15) days only within which to file the petition for review.
No further extension shall be granted except for the most
compelling reason and in no case to exceed fifteen (15) days.
-this is for decisions rendered by RTC exercising appellate
jurisdiction
-must file a verified petition for review to the CA
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 REMEDIAL LAW REVIEW
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-must be filed within 15 days from the receipt of the decision
-may file an extension provided there is a motion and the
appeal fees were duly paid.
SEC. 2
Form and contents
The petition shall be filed in seven (7) legible copies, with the
original copy intended for the court being indicated as such by
the petitioner, and shall (a) state the full names of the parties to
the case, without impleading the lower courts or judges thereof
either as petitioners or respondents; (b) indicate the specific
material dates showing that it was filed on time; (c) set forth
concisely a statement of the matters involved, the issues
raised, the specification of errors of fact or law, or both,
allegedly committed by the Regional Trial Court, and the
reasons or arguments relied upon for the allowance of the
appeal; (d) be accompanied by clearly legible duplicate
originals or true copies of the judgments or final orders of both
lower courts, certified correct by the clerk of court of the
Regional Trial Court, the requisite number of plain copies
thereof and of the pleadings and other material portions of the
record as would support the allegations of the petition.
 again, the most important here is the assignment of
errors
 in a petition for review the court that rendered the
decision appealed from shall not be impleaded as a
party unlike in a petition for certiorari
 shall be accompanied by clearly legible duplicate
originals or true copies of the judgment or final orders
 again, even pure questions of law can be entertained
by the CA and even there is no question of fact is
involved, the appeal is with the CA.
 RTC rendered the decision in the exercise of its
appellate jurisdiction
 The petition must be accompanied with a certificate of
non-forum shopping.
 A copy of the petition must be furnished to the other
party.
SEC. 3 Effect of failure to comply with requirements.
The failure of the petitioner to comply with any of the foregoing
requirements regarding the payment of the docket and other
lawful fees, the deposit for costs, proof of service of the
petition, and the contents of and the documents which should
accompany the petition shall be sufficient ground for the
dismissal thereof.
-A copy of the petition must be furnished to the other party.
Example: You are a new lawyer and you have a messenger so
you will be the one to serve the other party of the copy of the
petition. You will have to execute an affidavit as a proof of
service of the petition.
SEC. 4 Action on the petition.
The Court of Appeals may require the respondent to file a
comment on the petition, not a motion to dismiss, within ten
(10) days from notice, or dismiss the petition if it finds the same
to be patently without merit, prosecuted manifestly for delay, or
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
that the questions raised therein are too insubstantial to require
consideration.
SEC. 5 Contents of comment.
The comment of the respondent shall be filed in seven (7)
legible copies, accompanied by certified true copies of such
material portions of the record referred to therein together with
other supporting papers and shall (a) state whether or not he
accepts the statement of matters involved in the petition; (b)
point out such insufficiencies or inaccuracies as he believes
exist in petitioner's statement of matters involved but without
repetition; and (c) state the reasons why the petition should not
be given due course. A copy thereof shall be served on the
petitioner. (a)
SEC. 6 Due course.
If upon the filing of the comment or such other pleadings as the
court may allow or require, or after the expiration of the period
for the filing thereof without such comment or pleading having
been submitted, the Court of Appeals finds prima facie that the
lower court has committed an error of fact or law that will
warrant a reversal or modification of the appealed decision, it
may accordingly give due course to the petition. (n)
SEC. 7 Elevation of record.
Whenever the Court of Appeals deems it necessary, it may
order the clerk of court of the Regional Trial Court to elevate
the original record of the case including the oral and
documentary evidence within fifteen (15) days from notice. (n)
SEC. 8 Perfection of appeal; effect thereof.
(a) Upon the timely filing of a petition for review and the
payment of the corresponding docket and other lawful fees, the
appeal is deemed perfected as to the petitioner.
The Regional Trial Court loses jurisdiction over the case upon
the perfection of the appeals filed in due time and the
expiration of the time to appeal of the other parties.
However, before the Court of Appeals gives due course to the
petition, the Regional Trial Court may issue orders for the
protection and preservation of the rights of the parties which do
not involve any matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with section 2 of Rule
39, and allow withdrawal of the appeal.
(b) Except in civil cases decided under the Rule on
Summary Procedure, the appeal shall stay the judgment or
final order unless the Court of Appeals, the law, or these Rules
shall provide otherwise.
-RTC has residual jurisdiction for the protection and
preservation of the rights of the parties.
-Decision which is now pending appeal cannot be executed.
GENERAL RULE: The appeal will stay the execution of the
decision. In other words, the execution is held in abeyance.
EXCEPTION: Cases falling under the Rule on Summary
Procedure.
Cases falling under the Rule on Summary Procedure
originated from MTC. If the decision of the MTC is affirmed by
the RTC, the decision could no longer be stayed by filing of an
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appeal in the CA. The decision has to be executed without
prejudice to further appeal.
SEC. 9 Submission for decision. If the petition is given due
course, the Court of Appeals may set the case for oral
argument or require the parties to submit memoranda within a
period of fifteen (15) days from notice. The case shall be
deemed submitted for decision upon the filing of the last
pleading or memorandum required by these Rules or by the
court itself.
RULE 43
APPEALS FROM THE COURT OF TAX APPEALS AND
QUASI-JUDICIAL AGENCIES TO THE COURT OF
APPEALSOF APPEALS
MODE OF APPEAL IS PETITION FOR REVIEW
Q: What are these quasi-judicial bodies?
A: SEC. 1
Scope.
This Rule shall apply to appeals from judgments or final orders
of the Court of Tax Appeals and from awards, judgments, final
orders or resolutions of or authorized by any quasi-judicial
agency in the exercise of its quasi-judicial functions. Among
these agencies are the Civil Service Commission, Central
Board of Assessment Appeals, Securities and Exchange
Commission, Office of the President, Land Registration
Authority, Social Security Commission, Civil Aeronautics
Board, Bureau of Patents, Trademarks and Technology
Transfer, National Electrification Administration, Energy
Regulatory Board, National Telecommunications Commission,
Department of Agrarian Reform under Republic Act No. 6657,
Government Service Insurance System, Employees
Compensation Commission, Agricultural Invention Board,
Insurance Commission, Philippine Atomic Energy Commission,
Board of Investments, Construction Industry Arbitration
Commission, and voluntary arbitrators authorized by law.
NOTE: Court of Tax Appeals is no longer included.
- Remember that CSC is a Constitutional Commission.
-Decisions of COA and COMELEC are not included in here-
there decisions could only be subject for petition for certiorari
under Rule 64. Findings of COA and COMELEC as regards to
the facts are FINAL.
Q: What about decisions of NLRC?
A: Not included.
SEC 2. Cases not covered. — This Rule shall not apply to
judgments or final orders issued under the Labor Code of the
Philippines
-Decisions of NLRC can be reviewed by the CA through Rule
65.
Q: What about decisions of the Ombudsman?
A: Decisions of OMB in administrative cases is appealable
through Rule 43. Decisions of OMB in criminal cases is
subject to Rule 65-SC
VILLANUEVA vs OPLE
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
Fabian v. Desierto held that appeals from the orders,
directives, or decisions of the OMB in administrative
disciplinary cases were cognizable by the Court of Appeals.
Tirol v. Del Rosario clarified that, in non-administrative cases
in which the OMB had acted with grave abuse of discretion
amounting to lack or excess of jurisdiction, a petition for
certiorari under Rule 65 may be filed directly with this Court.
Accordingly, Kuizon v. Desierto held that this Court had
jurisdiction over petitions for certiorari questioning the
resolutions or orders of the ombudsman in criminal cases.
Thus, petitioners committed a procedural error in resorting to a
Petition for Review under Rule 45 of the Rules of Court. To
challenge the dismissal of their Complaint and to require the
OMB to file an information, petitioners should have resorted to
a petition for certiorari under Rule 65 of the Rules of Court. The
only ground upon which this Court may entertain a review of
the OMBs resolution is grave abuse of discretion, not
reversible errors.
SALVADOR VS MAPA
Commenting on the petition, Tantoco, Reyes, Mapa, Zalamea
and Caringal argued that the petition suffers from a procedural
infirmity which warrants its dismissal. They claimed that the
PCGG availed of the wrong remedy in elevating the case to
this Court.
Indeed, what was filed before this Court is a petition captioned
as Petition for Review on Certiorari. We have ruled, time and
again, that a petition for review on certiorari is not the proper
mode by which resolutions of the Ombudsman in preliminary
investigations of criminal cases are reviewed by this Court. The
remedy from the adverse resolution of the Ombudsman is a
petition for certiorari under Rule 65, not a petition for review on
certiorari under Rule 45.
However, though captioned as a Petition for Review on
Certiorari, we will treat this petition as one filed under Rule 65
since a reading of its contents reveals that petitioner imputes
grave abuse of discretion to the Ombudsman for dismissing
the complaint. The averments in the complaint, not the
nomenclature given by the parties, determine the nature of the
action. In previous rulings, we have treated differently labeled
actions as special civil actions for certiorari under Rule 65 for
reasons such as justice, equity, and fair play.
-Remember the DOCTRINE OF PRIMARY JURISDICTION.
The doctrine of primary jurisdiction holds that if a case is
such that its determination requires the expertise,
specialized training and knowledge of the proper
administrative bodies, relief must first be obtained in an
administrative proceeding before a remedy is supplied by
the courts even if the matter may well be within their
proper jurisdiction.
SEC. 3
Where to appeal.
An appeal under this Rule may be taken to the Court of
Appeals within the period and in the manner herein provided,
whether the appeal involves questions of fact, of law, or mixed
questions of fact and law.
-Even if the appellant raised pure questions of law, the appeal
must be taken to the CA. This is another exception to the rule
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As discussed by: Judge Debalucos
that when question involves pure qeustions of law then
appealable to SC.
SEC. 4
Period of appeal
The appeal shall be taken within fifteen (15) days from notice
of the award, judgment, final order or resolution, or from the
date of its last publication, if publication is required by law for
its effectivity, or of the denial of petitioner's motion for new trial
or reconsideration duly filed in accordance with the governing
law of the court or agency a quo. Only one (1) motion for
reconsideration shall be allowed. Upon proper motion and the
payment of the full amount of the docket fee before the
expiration of the reglementary period, the Court of Appeals
may grant an additional period of fifteen (15) days only within
which to file the petition for review. No further extension shall
be granted except for the most compelling reason and in no
case to exceed fifteen (15) days.
SEC. 5
How appeal taken
Appeal shall be taken by filing a verified petition for review in
seven (7) legible copies with the Court of Appeals, with proof of
service of a copy thereof on the adverse party and on the court
or agency a quo. The original copy of the petition intended for
the Court of Appeals shall be indicated as such by the
petitioner.
Upon the filing of the petition, the petitioner shall pay to the
clerk of court of the Court of Appeals the docketing and other
lawful fees and deposit the sum of P500.00 for costs.
Exemption from payment of docketing and other lawful fees
and the deposit for costs may be granted by the Court of
Appeals upon a verified motion setting forth valid grounds
therefor. If the Court of Appeals denies the motion, the
petitioner shall pay the docketing and other lawful fees and
deposit for costs within fifteen (15) days from notice of the
denial. (n)
SEC. 6
Contents of the petition
The petition for review shall (a) state the full names of the
parties to the case, without impleading the court or agencies
either as petitioners or respondents; (b) contain a concise
statement of the facts and issues involved and the grounds
relied upon for the review; (c) be accompanied by a clearly
legible duplicate original or a certified true copy of the award,
judgment, final order or resolution appealed from, together with
certified true copies of such material portions of the record
referred to therein and other supporting papers; and (d) contain
a sworn certification against forum shopping as provided in the
last paragraph of section 2, Rule 42. The petition shall state
the specific material dates showing that it was filed within the
period fixed herein. (2a)
SEC. 7
Effect of failure to comply with requirements
The failure of the petitioner to comply with any of the foregoing
requirements regarding the payment of the docket and other
lawful fees, the deposit for costs, proof of service of the
petition, and the contents of and the documents which should
accompany the petition shall be sufficient ground for the
dismissal thereof.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
SEC. 8
Action on the petition
The Court of Appeals may require the respondent to file a
comment on the petition not a motion to dismiss, within ten
(10) days from notice, or dismiss the petition if it finds the same
to be patently without merit, prosecuted manifestly for delay, or
that the questions raised therein are too unsubstantial to
require consideration.
Q: What should the CA do upon the filing of the petition?
A: CA may require the respondent to file a comment.
SEC. 9
Contents of comment
The comment shall be filed within ten (10) days from notice in
seven (7) legible copies and accompanied by clearly legible
certified true copies of such material portions of the record
referred to therein together with other supporting papers. The
comment shall (a) point out insufficiencies or inaccuracies in
petitioner's statement of facts and issues; and (b) state the
reasons why the petition should be denied or dismissed. A
copy thereof shall be served on the petitioner, and proof of
such service shall be filed with the Court of Appeals.
SEC. 10
Due course
If upon the filing of the comment or such other pleadings or
documents as may be required or allowed by the Court of
Appeals or upon the expiration of the period for the filing
thereof, and on the records the Court of Appeals finds prima
facie that the court or agency concerned has committed errors
of fact or law that would warrant reversal or modification of the
award, judgment, final order or resolution sought to be
reviewed, it may give due course to the petition; otherwise, it
shall dismiss the same. The findings of fact of the court or
agency concerned, when supported by substantial evidence,
shall be binding on the Court of Appeals.
SEC. 11
Transmittal of record
Within fifteen (15) days from notice that the petition has been
given due course, the Court of Appeals may require the court
or agency concerned to transmit the original or a legible
certified true copy of the entire record of the proceeding under
review. The record to be transmitted may be abridged by
agreement of all parties to the proceeding. The Court of
Appeals may require or permit subsequent correction of or
addition to the record.
SEC. 12
Effect of appeal
The appeal shall not stay the award, judgment, final order or
resolution sought to be reviewed unless the Court of Appeals
shall direct otherwise upon such terms as it may deem just.
-As a rule, appeal will stay the execution.
-This is an exception.
SEC. 13
Submission for decision
If the petition is given due course, the Court of Appeals may
set the case for oral argument or require the parties to submit
memoranda within a period of fifteen (15) days from notice.
The case shall be deemed submitted for decision upon the
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filing of the last pleading or memorandum required by these
Rules or by the court of Appeals.
RULE 45
APPEAL BY CERTIORARI TO THE SUPREME
COURT
SEC. 1
Filing of petition with Supreme Court
A party desiring to appeal by certiorari from a judgment or final
order or resolution of the Court of Appeals, the
Sandiganbayan, the Regional Trial Court or other courts
whenever authorized by law, may file with the Supreme Court
a verified petition for review on certiorari. The petition shall
raise only questions of law which must be distinctly set forth.
-The petition is filed with the SC and only pure questions of law
should be entertained.
-The petition may include an application for writ of preliminary
injunction and other provisional remedies.
-In criminal cases, when the CA or SB impose reclusion
perpetua or life imprisonment, the decision can be appealed to
the SC by mere NOTICE OF APPEAL. It shall be filed with the
court that rendered the decision.
-Findings of facts of the lower courts are final and conclusive
upon the SC.
-As a rule, the SC will no longer review the findings of facts of
the lower courts because SC is not a trier of facts.
-Only pure questions of law can be reviewed by SC.
Exceptions: When SC will review findings of facts
1) when the findings are grounded entirely on speculations,
surmises or conjectures;
(2) when the inference made is manifestly mistaken, absurd or
impossible;
(3) when there is grave abuse of discretion;
(4) when the judgment is based on a misapprehension of facts;
(5) when the findings of fact are conflicting;
(6) when in making its findings the Court of Appeals went
beyond the issues of the case, or its findings are contrary to
the admissions of both the appellant and the appellee;
(7) when the findings are contrary to that of the trial court;
(8) when the findings are conclusions without citation of
specific evidence on which they are based;
(9) when the facts set forth in the petition as well as in the
petitioner’s main and reply briefs are not disputed by the
respondent; (10) when the findings of fact are premised on the
supposed absence of evidence and contradicted by the
evidence on record; or
(11) when the Court of Appeals manifestly overlooked certain
relevant facts not disputed by the parties, which, if properly
considered, would justify a different conclusion
SEC. 2
Time for filing; extension
The petition shall be filed within fifteen (15) days from notice of
the judgment or final order or resolution appealed from, or of
the denial of the petitioner's motion for new trial or
reconsideration filed in due time after notice of the judgment.
On motion duly filed and served, with full payment of the
docket and other lawful fees and the deposit for costs before
the expiration of the reglementary period, the Supreme Court
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may for justifiable reasons grant an extension of thirty (30)
days only within which to file the petition.
-There can be a motion for extension.
SEC. 3
Docket and other lawful fees; proof of service of petition
Unless he has theretofore done so, the petitioner shall pay the
corresponding docket and other lawful fees to the clerk of court
of the Supreme Court and deposit the amount of P500.00 for
costs at the time of the filing of the petition. Proof of service of
a copy, thereof on the lower court concerned and on the
adverse party shall be submitted together with the petition.
SEC. 4
Contents of petition
The petition shall be filed in eighteen (18) copies, with the
original copy intended for the court being indicated as such by
the petitioner and shall (a) state the full name of the appealing
party as the petitioner and the adverse party as respondent,
without impleading the lower courts or judges thereof either as
petitioners or respondents; (b) indicate the material dates
showing when notice of the judgment or final order or
resolution subject thereof was received, when a motion for new
trial or reconsideration, if any, was filed and when notice of the
denial thereof was received; (c) set forth concisely a statement
of the matters involved, and the reasons or arguments relied
on for the allowance of the petition; (d) be accompanied by a
clearly legible duplicate original, or a certified true copy of the
judgment or final order or resolution certified by the clerk of
court of the court a quo and the requisite number of plain
copies thereof, and such material portions of the record as
would support the petition; and (e) contain a sworn certification
against forum shopping as provided in the last paragraph of
section 2, Rule 42.
-Must indicate the timeliness of the filing of the petition. By
stating when the appellant received the decision
SEC.5
Dismissal or denial of petition.
The failure of the petitioner to comply with any of the foregoing
requirements regarding the payment of the docket and other
lawful fees, deposit for costs, proof of service of the petition,
and the contents of and the documents which should
accompany the petition shall be sufficient ground for the
dismissal thereof.
The Supreme Court may on its own initiative deny the petition
on the ground that the appeal is without merit, or is prosecuted
manifestly for delay, or that the questions raised therein are too
unsubstantial to require consideration.
-Petition must be sufficient in form and substance. Substantial
compliance is not enough
SEC. 6
Review discretionary
A review is not a matter of right, but of sound judicial
discretion, and will be granted only when there are special and
important reasons thereof. The following, while neither
controlling nor fully measuring the court's discretion, indicate
the character of the reasons which will be considered:
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(a) When the court a quo has decided a question of
substance, not theretofore determined by the Supreme Court,
or has decided it in a way probably not in accord with law or
with the applicable decisions of the Supreme Court; or
(b) When the court a quo has so far departed from the
accepted and usual course of judicial proceedings, or so far
sanctioned such departure by a lower court, as to call for an
exercise of the power of supervision.
SEC. 7
Pleadings and documents that may be required; sanctions
For purposes of determining whether the petition should be
dismissed or denied pursuant to section 5 of this Rule, or
where the petition is given due course under section 8 hereof,
the Supreme Court may require or allow the filing of such
pleadings, briefs, memoranda or documents as it may deem
necessary within such periods and under such conditions as it
may consider appropriate, and impose the corresponding
sanctions in case of non-filing or unauthorized filing of such
pleadings and documents or non-compliance with the
conditions therefor.
SEC. 8
Due course; elevation of records
If the petition is given due course, the Supreme Court may
require the elevation of the complete record of the case or
specified parts thereof within fifteen (15) days from notice.
SEC. 9
Rule applicable to both civil and criminal cases
The mode of appeal prescribed in this Rule shall be applicable
to both civil and criminal cases, except in criminal cases
where the penalty imposed is death, reclusion perpetua or
life imprisonment.
- When penalty imposed is death, reclusion perpetua or life
imprisonment, mode of appeal is by notice of appeal.
RULE 38
RELIEF FROM JUDGMENTS, ORDERS, OR OTHER
PROCEEDINGS
SEC. 1
Petition for relief from judgment, order, or other
proceedings
When a judgment or final order is entered, or any other
proceeding is thereafter taken against a party in any court
through fraud, accident, mistake, or excusable negligence, he
may file a petition in such court and in the same case praying
that the judgment, order or proceeding be set aside.
-Remember that once a decision becomes final and executory,
it becomes immutable; it cannot be changed.
-Petition of Relief is available when party has been denied in
his participation in a proceedings by reason FAME provided
that he has not availed of new trial or motion for
reconsideration.
-In, other words, the petition for relief is a second chance for a
party who has not availed of new trial or motion for
reconsideration.
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Section 3. Period of ordinary appeal. — The appeal
shall be taken within fifteen (15) days from notice of the
judgment or final order appealed from. Where a record on
appeal is required, the appellant shall file a notice of appeal
and a record on appeal within thirty (30) days from notice of
the judgment or final order.
The period of appeal shall be interrupted by a timely motion for
new trial or reconsideration. No motion for extension of time to
file a motion for new trial or reconsideration shall be allowed.
This petition for relief is an equitable remedy. This is not a
matter of right. This can be availed of solely based on grounds
mentioned by these rules. It should be filed in the same court
of the same case. So, it will not be given another docket
number. It will have the same docket number with case that
has become final and executory. Remember that this remedy
is not only available as remedy from judgment. It could also be
availed when the subject is order or other proceedings.
Example order denying appeal or in a writ of execution filed
against you, you can file petition for relief.
SEC. 2
Petition for relief from denial of appeal
When a judgment or final order is rendered by any court in a
case, and a party thereto, by fraud, accident, mistake, or
excusable negligence, has been prevented from taking an
appeal, he may file a petition in such court and in the same
case praying that the appeal be given due course.
-Remember the ground for petition for relief is FAME. Newly
discovered evidence is not available. This is an equitable
remedy. This is only allowed in exceptional cases. This is
allowed when other remedy is available. If for example the
remedy of motion for new trial, motion for reconsideration, and
appeal are available, but you did not avail of it, you cannot file
petition for relief from judgment.
Example you have been declared in default, because you have
not filed your answer due to fraud, then there is now the
decision. So the court rendered a writ of execution. Your
remedy is petition for relief on the ground of fraud. So FAME,
your motion must be verified, affidavit of merits, meritorious
defense or claim and the circumstances constitution FAME
must be clearly set out. You must state the circumstances that
constitute fraud because the court will look into it if it is really
extrinsic. The fraud committed outside the court or trial.
SEC. 3
Time for filing petition; contents and verification
A petition provided for in either of the preceding sections of this
Rule must be verified, filed within sixty (60) days after the
petitioner learns of the judgment, final order, or other
proceeding to be set aside, and not more than six (6) months
after such judgment or final order was entered, or such
proceeding was taken, and must be accompanied with
affidavits showing the fraud, accident, mistake, or excusable
negligence relied upon, and the facts constituting the
petitioner's good and substantial cause of action or defense, as
the case may be.
-These two periods are not extendible and can never be
interrupted.
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SEC. 4
Order to file an answer
If the petition is sufficient in form and substance to justify relief,
the court in which it is filed, shall issue an order requiring the
adverse parties to answer the same within fifteen (15) days
from the receipt thereof. The order shall be served in such
manner as the court may direct, together with copies of the
petition and the accompanying affidavits.
-There can be no default here. Whether or not there is answer,
the court will conduct a hearing to determine the merit of the
petition.
There are two hearings in a petition for relief from judgment.
First hearing is to determine the merit of the petition. If the
court finds that the petition is meritorious, then it will conduct
another hearing for the reception of evidence. So that’s the
second hearing. But the second hearing will not be conducted
if the petition found to be without merit.
The order either denying or granting the order of the petition is
NOT appealable. So your remedy is certiorari RULE 65.
SEC. 5
Preliminary injunction pending proceedings
The court in which the petition is filed may grant such
preliminary injunction as may be necessary for the
preservation of the rights of the parties, upon the filing by the
petitioner of a bond in favor of the adverse party, conditioned
that if the petition is dismissed or the petitioner fails on the trial
of the case upon its merits, he will pay the adverse party all
damages and costs that may be awarded to him by reason of
the issuance of such injunction or the other proceedings
following the petition, but such injunction shall not operate to
discharge or extinguish any lien which the adverse party may
have acquired upon, the property, of the petitioner.
SEC. 6
Proceedings after answer is filed
After the filing of the answer or the expiration of the period
therefor, the court shall hear the petition and if after such
hearing, it finds that the allegations thereof are not true, the
petition shall be dismissed; but if it finds said allegations to be
true, it shall set aside the judgment or final order or other
proceeding complained of upon such terms as may be just.
Thereafter the case shall stand as if such judgment, final order
or other proceeding had never been rendered, issued or taken.
The court shall then proceed to hear and determine the case
as if a timely motion for a new trial or reconsideration had been
granted by it.
SEC. 7
Procedure where the denial of an appeal is set aside
Where the denial of an appeal is set aside, the lower court
shall be required to give due course to the appeal and to
elevate the record of the appealed case as if a timely and
proper appeal had been made.
RULE 47
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ANNULMENT OF JUDGMENTS OF FINAL ORDERS AND
RESOLUTIONS
This is another equitable remedy. This can be availed of if the
aggrieved party was not able to avail appeal or motion for new
trial without his fault because if the aggrieved party has that
opportunity to file MNT or appeal but deliberately he did not, he
cannot be granted this remedy.
In petition for relief the grounds are FAME, here is just F-Fraud
and lack of jurisdiction and denial of due process as provided
by jurisprudence.
SEC. 1
COVERAGE
This Rule shall govern the annulment by the Court of Appeals
of judgments or final orders and resolutions in civil actions of
Regional Trial Courts for which the ordinary remedies of new
trial, appeal, petition for relief or other appropriate remedies
are no longer available through no fault of the petitioner.
So the petitioner here was not able to avail motion new trial,
appeal or petition for relief from judgment without his fault.
This remedy is not available to decisions rendered by quasi-
judicial bodies. This is available to decisions rendered by MTC
and RTC. This petition is filed in RTC if judgment is rendered
by MTC. Unlike in petition for relief, the petition is filed with
court which rendered the judgment. You remember that.
Remember that a petition for annulment of judgment is also
available even if the decision is fully executed.
Grounds:
1. Extrinsic Fraud
2. Lack of Jurisdiction
3. Denial of due process – mentioned in jurisprudence.
(Benatiro vs Cuyos July 13, 2008)
Take note that extrinsic fraud shall not be a valid ground of if
the same is not availed of in a petition for new trial or petition
for relief. Extrinsic fraud refers to a fraud which prevented the
party from participating the trial.
Void judgment can be attacked directly or collaterally if it is
void on its face.
In collateral attack, there is no need to file a case to have it
declared void. You can attack it in any case.
In direct attack, a case must be filed to have it declared void
such as by annulment of judgment or certiorari.
Annulment of judgment can be availed only if appeal, new trial
or petition for relief is no longer available without fault on the
part of the petitioner. But only on the ground of fraud.
ANCHETA VS ANCHETA
This is a case of annulment of marriage. What the husband
did, so the wife cannot receive a copy of the petition so she
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cannot file an answer, he deliberately state a wrong address.
So the sheriff left a copy of the petition, applying a substitution
of service erroneously. The wife declared in default. The wife
availed petition of judgment. But the problem is she failed to
state that she was not availed of appeal, new trial without her
fault. The CA dismissed the petition.
SC Ruling:
We, however, rule that the Court of Appeals erred in
dismissing the original petition and denying admission of the
amended petition. This is so because apparently, the Court of
Appeals failed to take note from the material allegations of the
petition, that the petition was based not only on extrinsic fraud
but also on lack of jurisdiction over the person of the petitioner,
on her claim that the summons and the copy of the complaint
in Sp. Proc. No. NC-662 were not served on her. While the
original petition and amended petition did not state a cause of
action for the nullification of the assailed order on the ground of
extrinsic fraud, we rule, however, that it states a sufficient
cause of action for the nullification of the assailed order on the
ground of lack of jurisdiction of the RTC over the person of the
petitioner, notwithstanding the absence of any allegation
therein that the ordinary remedy of new trial or reconsideration,
or appeal are no longer available through no fault of the
petitioner.
In a case where a petition for the annulment of a judgment or
final order of the RTC filed under Rule 47 of the Rules of Court
is grounded on lack of jurisdiction over the person of the
defendant/respondent or over the nature or subject of the
action, the petitioner need not allege in the petition that the
ordinary remedy of new trial or reconsideration of the final
order or judgment or appeal therefrom are no longer available
through no fault of her own. This is so because a judgment
rendered or final order issued by the RTC without jurisdiction is
null and void and may be assailed any time either collaterally
or in a direct action or by resisting such judgment or final order
in any action or proceeding whenever it is invoked, unless
barred by laches.
ANTONINO VS REGISTER OF DEEDS MAKATI
GR NO. 185663
June 20, 2012
The sole issue for the resolution of this Court is the propriety of
Antoninos use of the remedy of a petition for annulment of
judgment as against the final and executory orders of the RTC.
Annulment of judgment is a recourse equitable in character,
allowed only in exceptional cases as where there is no
available or other adequate remedy. Rule 47 of the 1997 Rules
of Civil Procedure, as amended, governs actions for annulment
of judgments or final orders and resolutions, and Section 2
thereof explicitly provides only two grounds for annulment of
judgment, i.e., extrinsic fraud and lack of jurisdiction. The
underlying reason is traceable to the notion that annulling final
judgments goes against the grain of finality of
judgment. Litigation must end and terminate sometime and
somewhere, and it is essential to an effective administration of
justice that once a judgment has become final, the issue or
cause involved therein should be laid to rest. The basic rule of
finality of judgment is grounded on the fundamental principle of
public policy and sound practice that at the risk of occasional
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error, the judgment of courts and the award of quasi-judicial
agencies must become final at some definite date fixed by
law.[23] (Citations omitted)
Let it be stressed at the outset that before a party can avail of
the reliefs provided for by Rule 47, i.e., annulment of
judgments, final orders, and resolutions, it is a condition sine
qua nonthat one must have failed to move for new trial in, or
appeal from, or file a petition for relief against said issuances
or take other appropriate remedies thereon, through no fault
attributable to him. If he failed to avail of those cited remedies
without sufficient justification, he cannot resort to the action for
annulment provided in Rule 47, for otherwise he would benefit
from his own inaction or negligence.[30] (Citation omitted)
Q: Within what time should petition for annulment of judgment
be filed?
A: if the ground is EXTRINSIC FRAUD it should be filed within
4 years from its discovery
However if it is base on LACK OF JURISDICTION it should be
filed within 10 years or even earlier before it is barred by
laches
Q: What would be the contents of the petition?
A: the contents must be verified alleging therein with
particularity the facts and the law relied upon for annulment, as
well as those supporting the petitioner’s good and substantial
cause of action or defense as the case may be
Remember that one of the components of FAME is still
present, if any of those four is present; it is automatic that the
following shall be complied with
Q: so if there is FAME, what are the required?
A: verification
Affidavit of Merits
Meritorious defense
The circumstances constituting fraud must be clearly set out.
The petition shall be filed in 7 copies clearly eligible copies,
together with sufficient copies corresponding to the number of
respondent.
TN of the EFFICIENT USE OF PAPER RULE (AM NO. 11-9-4-
SC)
( section 5. Copies to be filed. – unless otherwise directed by
the court, the number of court-bound papers that a party is
required or desires to file shall be as follows:
a. In the SC – 1 original (properly marked) and 4 copies,
unless the case is referred to the Court En Banc, in
which event, the parties shall file 10 additional copies.
For the En Banc, 2 set of annexes, one attached to the original
and an extra copy.
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For Division, 2 set of annexes, one attached to the original and
an extra copy.
b. In the CA and the Sandiganbayan, 1 original (properly
marked) and 2 copies with their annexes;
c. In the CTA,1 original (properly marked) and 8 copies
with their annexes;
d. In other courts, 1 original (properly marked) with
stated annexes attached to it.)
A certified true copy of the judgment or final order or resolution
shall be attached to the original copy of the petition intended
for the court and indicated as such by the petitioner.
The petitioner shall also submit together with the petition
affidavits of witnesses or documents supporting the cause of
action or defense and a sworn certification that A has not
theretofore commenced any other action involving the same
issues in the Supreme Court, the Court of Appeals or different
divisions thereof, or any other tribunal or agency; if there is
such other action or proceeding, he must state the status of the
same, and if he should thereafter learn that a similar action or
proceeding has been filed or is pending before the Supreme
Court, the Court of Appeals, or different divisions thereof, or
any other tribunal or agency, he undertakes to promptly inform
the aforesaid courts and other tribunal or agency thereof within
five (5) days therefrom.
Q: what would be the action of the court?
A:
SEC. 5. Action by the court.— Should the court find no
substantial merit in the petition, the same may be dismissed
outright with specific reasons for such dismissal.
Should prima facie merit be found in the petition, the same
shall be given due course and summons shall be served on the
respondent.
Unlike in petition for relief, the court will not issue summons but
ORDER.
Q: As to the procedure?
A: SEC. 6. Procedure.— The procedure in ordinary civil cases
shall be observed. Should a trial be necessary, the reception of
the evidence may be referred to a member of the court or a
judge of a Regional Trial Court.
Q: what will be the effect of judgment?
A:
SEC. 7. Effect of judgment .— A judgment of annulment shall
set aside the questioned judgment or final order or resolution
and render the same null and void, without prejudice to the
original action being refiled in the proper court. However,
where the judgment or final order or resolution is set aside on
the ground of extrinsic fraud, the court may on motion order the
trial court to try the case as if a timely motion for new trial had
been granted therein.
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Because the decision here could be void due to lack of
jurisdiction.
So it should be filed with the proper court.
SEC. 8. Suspension of prescriptive period. — The
prescriptive period for the refiling of the aforesaid original
action shall be deemed suspended from the filing of such
original action until the finality of the judgment of annulment.
However, the prescriptive period shall not be suspended where
the extrinsic fraud is attributable to the plaintiff in the original
action.
SEC. 9. Relief available.— The judgment of annulment may
include the award of damages, attorney’s fees and other relief.
If the questioned judgment or final order or resolution had
already been executed, the court may issue such orders of
restitution or other relief as justice and equity may warrant
under the circumstances. SEC. 10. Annulment of judgments or
final orders of Municipal Trial Courts.— An action to annul a
judgment or final order of a Municipal Trial Court shall be filed
in the Regional Trial Court having jurisdiction over the former.
It shall be treated as an ordinary civil action and sections 2, 3
4, 7, 8 and 9 of this Rule shall be applicable thereto.
Even if the judgment rendered is void, the petition for
annulment of judgment may still prosper.
Q: what if the judgment rendered is void and the judgment was
already executed?
A: the court may order restitution or other relief.
Q: supposed in the CA, what would be the remedy of the
aggrieved party?
For example the petitioner, filed a petition for the annulment of
marriage in the RTC, the court rendered a decision, CA also
granted the petition, what will be the relief of the husband
against the CA granting the petition?
A: rule 45 (LINZAG vs CA 291 scra 304)
Q: what if the decision is rendered by the MTC, where should
the petition for annulment of judgment be filed?
A: in the RTC
Remember the remedies after the decision has become final
and executor
1. Petition for relief
2. Annulment of judgment
3. Petition for Certiorari under rule 65
Because petition for certiorari can be filed within 60 days from
the notice of the decision in other words it can be filed even if
the decision has become final and executory.
RULE 46 and RULE 44 are procedures in the Court of
Appeals
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RULE 44 RULE 46
- Procedure in - Procedure in
appealed cases original cases
filed with the CA filed with the CA
SECTION 1. Title of Cases – In all cases originally filed in the
Court of Appeals, the party instituting the action shall be called
the petitioner and the opposing party the respondent.
Q: what are the original cases filed in the Court of Appeals?
A: Section 2. To what actions applicable. —
This Rules shall apply to original actions for certiorari,
prohibition, mandamus and quo warranto. Except as otherwise
provided, the actions for annulment of judgment shall be
governed by Rule 47, for certiorari, prohibition and mandamus
by Rule 65, and for quo warranto by Rule 66.
So in other words there are about 5 cases wherein the CA
have original jurisdiction, whether exclusive or concurrent.
1. Certiorari
2. Prohibition
3. Mandamus
4. Quo Warranto
5. Annulment of Judgment
The contents of filing of petitions
In actions filed under Rule 65, the petition shall further indicate
the material dates showing when notice of the judgment or final
order or resolution subject thereof was received, when a
motion for new trial or reconsideration, if any, was filed and
when notice of the denial thereof was received.
It shall be filed in seven (7) clearly legible copies together with
proof of service thereof on the respondent with the original
copy intended for the court indicated as such by the petitioner,
and shall be accompanied by a clearly legible duplicate original
or certified true copy of the judgment, order, resolution, or
ruling subject thereof, such material portions of the record as
are referred to therein, and other documents relevant or
pertinent thereto. The certification shall be accomplished by
the proper clerk of court or by his duly authorized
representative, or by the proper officer of the court, tribunal,
agency or office involved or by his duly authorized
representative. The other requisite number of copies of the
petition shall be accompanied by clearly legible plain copies of
all documents attached to the original. The petitioner shall also
submit together with the petition a sworn certification that he
has not theretofore commenced any other action involving the
same issues in the Supreme Court, the Court of Appeals or
different divisions thereof, or any other tribunal or agency; if
there is such other action or proceeding, he must state the
status of the same; and if he should thereafter learn that a
similar action or proceeding has been filed or is pending before
the Supreme Court, the Court of Appeals, or different divisions
thereof, or any other tribunal or agency, he undertakes to
promptly inform the aforesaid courts and other tribunal or
agency thereof within five (5) days therefrom. The petitioner
shall pay the corresponding docket and other lawful fees to the
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clerk of court and deposit the amount of P500.00 for costs at
the time of the filing of the petition. The failure of the petitioner
to comply any of the requirements shall be sufficient ground for
the dismissal of the petition.
It shall contain a certification against forum shopping because
it is an initiatory pleading. Then the docket fees. And of course
look at the last paragraph.
Section 4. Jurisdiction over person of respondent, how
acquired. — The court shall acquire jurisdiction over the
person of the respondent by the service on him of its
order or resolution indicating its initial action on the
petition or by his voluntary submission to such
jurisdiction.
In the CA, if you file Certiorari, Prohibition, Mandamus, Quo
Warranto – NO SUMMONS shall be issued except if you filed
ANNULMENT OF JUDGMENT. What will take place of the
summons is the ORDER to comment.
In case a petitioner filed a petition in court, the same with
petition for review, you have to serve copy of your petition to
the adverse party before filling it to the CA.
Q: how jurisdiction over person of the respondent is acquired?
A: The service of an order to comment is a mode of acquiring
jurisdiction over the respondent. The CA can acquire
jurisdiction over the respondent by the service of the order
requiring him to comment or voluntary submission to the
jurisdiction of the CA.
Section 5. Action by the court. — The court may dismiss the
petition outright with specific reasons for such dismissal or
require the respondent to file a comment on the same within
ten (10) days from notice. Only pleadings required by the court
shall be allowed. All other pleadings and papers, maybe filed
only with leave of court.
Section 6. Determination of factual issues. —Whenever
necessary to resolve factual issues, the court itself may
conduct hearings thereon or delegate the reception of the
evidence on such issue to any of its members or to an
appropriate court, agency or office
Section 7. Effect of failure to file comment. — When no
comment is filed by any of the respondents, the case may be
decided on the basis of the record, without prejudice to any
disciplinary action which the court may take against the
disobedient party.
RULE 48 – 51
This is all about CA.
RULE 48
PRELIMINARY CONFERENCE
SEC. 1
Preliminary conference
At any time during the pendency of a case, the court may call
the parties and their counsel to a preliminary conference.
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(a) To consider the possibility of an amicable settlement,
except when the case is not allowed by law to be compromised
(b) To define, simplify and clarify the issues for determination;
(c) To formulate stipulations of facts and admissions of
documentary exhibits, limit the number of witnesses to be
presented in cases falling within the original jurisdiction of the
court, or those within its appellate jurisdiction where a motion
for new trial is granted on the ground of newly discovered
evidence; and
(d) To take up such other matters which may aid the court in
the prompt disposition of the case. (Rule 7, CA Internal Rules)
SEC. 2
Record of the conference
The proceedings at such conference shall be recorded and,
upon the conclusion thereof, a resolution shall be issued
embodying all the actions taken therein, the stipulations and
admissions made and the issues defined. (n)
SEC. 3
Binding effect of the results of the conference
Subject to such modifications which may be made to prevent
manifest injustice, the resolution in the preceding section shall
control the subsequent proceedings in the case unless, within
five (5) days from notice thereof, any party shall satisfactorily
show valid cause why the same should not be followed.
In the CA, there could be preliminary conference, same with
the RTC.
RULE 49
ORAL ARGUMENT
SEC. 1
When allowed
At its own instance or upon motion of a party, the court may
hear the parties in oral argument on the merits of a case, or on
any material incident in connection therewith. (n) The oral
argument shall be limited to such matters as the court may
specify in its order or resolution. (1a, R48)
SEC. 2
Conduct of oral argument
Unless authorized by the court, only one counsel may argue
for a party. The duration allowed for each party, the sequence
of the argumentation, and all other related matters shall be as
directed by the court. (n)
There could also be oral argument.
Example:
When someone file petition for certiorari, the CA may
require the parties to appear and argue their case.
The procedure in the CA is different,
Look at section 3
SEC. 3
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
No hearing or oral argument for motions
Motions shall not be set for hearing and, unless the court
otherwise directs, no hearing or oral argument shall be allowed
in support thereof. The adverse party may file objections to the
motion within 5 days from service, upon expiration of which
such motion shall be deemed submitted for resolution.
What we have learned under rule 15, that if you filed a motion,
it must be set for hearing, but here under Rule 49, motions
shall not be set for hearing unless the court otherwise directs.
RULE 50
DISMISSAL OF APPEAL
This is important because these are the grounds for the
dismissal of an appeal.
Q: what are the grounds?
A: SEC. 1 Grounds for dismissal of appeal. — An appeal
may be dismissed by the Court of Appeals, on its own motion
or on that of the appellee, on the following grounds:
(a) Failure of the record on appeal to show on its face
that the appeal was taken within the period fixed by
these Rules;
(material data rule)
(b) Failure to file the notice of appeal or the record on
appeal within the period prescribed by these Rules;
(c) Failure of the appellant to pay the docket and other
lawful fees as provided in section 5,Rule 40 and
section 4 of Rule 41; (Bar Matter No. 803, 17
February 1998)
(d) Unauthorized alterations, omissions or additions in
the approved record on appeal as provided in section
4 of Rule 44;
(e) Failure of the appellant to serve and file the required
number of copies of his brief or memorandum within
the time provided by these Rules;
(f) Absence of specific assignment of errors in the
appellant's brief, or of page references to the record
as required in section 13, paragraphs (a), (c), (d) and
(f) of Rule 44;
(g) Failure of the appellant to take the necessary steps
for the correction or completion of the record within
the time limited by the court in its order;
(h) Failure of the appellant to appear at the preliminary
conference under Rule 48 or to comply with orders,
circulars, or directives of the court without justifiable
cause; and
(i) The fact that the order or judgment appealed from is
not appealable.
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TAKE NOTE ON SEC 3.
SEC. 2
Dismissal of improper appeal to the Court of Appeals
An appeal under Rule 41 taken from the Regional Trial Court
to the Court of Appeals raising only questions of law shall be
dismissed, issues purely of law not being reviewable by said
court. Similarly, an appeal by notice of appeal instead of by
petition for review from the appellate judgment of a Regional
Trial Court shall be dismissed.
An appeal erroneously taken to the CA shall not be
transferred to the appropriate court but shall be dismissed
outright.
You should memorize the proper mode of appeals.
Q: What will happen if the appeal is erroneously filed with the
CA.
A: we have learned that appeal on pure legal question shall be
filed directly with the SC through a petition for review on
certiorari over the decision rendered by the RTC in the
exercise of its original jurisdiction.
Q: If the appellant did not file the petition directly with the SC
but filed a petition for review with the CA?
A: The petition will be dismissed.
Q: What is the mode of review in decision of MTC appealed to
the RTC, then the RTC rendered a decision affirming the
decision of the MTC?
A: Petition for review
Q: But instead of petition for review you filed a notice of
appeal, what will happen?
A: It will be dismissed according to sec. 2.
In criminal cases, involving public officers and crimes
committed are in relation to their performance or duties and are
cognizable in the lower court
Q: where do you appeal?
A: from the RTC you appeal it to the sandiganbayan and not to
the CA.
But if you appealed it to the CA, the same will be dismissed.
According to Sec. 2.
Melencion v. Sandiganbayan
GR no. 150684
June 12, 2008
The accused is charged with violation of the anti-graft, his
defense counsel filed an appeal to the CA.
We ruled: An error in designating the appellate court is not fatal
to the appeal. However, the correction in designating the
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“A Leap to Succeed”
proper appellate court should be made within the 15-day
period to appeal. Once made within the said period, the
designation of the correct appellate court may be allowed even
if the records of the case are forwarded to the Court of
Appeals. Otherwise, the second paragraph of Section 2, Rule
50 of the Rules of court would apply. The second paragraph of
Section 2, Rule 50 of the Rules of Court reads:
“An appeal erroneously taken to the Court of Appeals shall not
be transferred
to the appropriate court but shall be dismissed outright.”
RULE 51
JUDGMENT
SEC. 1
When case deemed submitted for judgment
A case shall be deemed submitted for judgment:
A. In ordinary appeals. —
1) Where no hearing on the merits of the main case is held,
upon the filing of the last pleading, brief, or memorandum
required by the Rules or by the court itself, or the expiration of
the period for its filing.
2) Where such a hearing is held, upon its termination or upon
the filing of the last pleading or memorandum as may be
required or permitted to be filed by the court, or the expiration
of the period for its filing.
B. In original actions and petitions for review. —
1) Where no comment is filed, upon the expiration of the period
to comment.
2) Where no hearing is held, upon the filing of the last pleading
required or permitted to be filed by the court, or the expiration
of the period for its filing.
3) Where a hearing on the merits of the main case is held,
upon its termination or upon the filing of the last pleading or
memorandum as may be required or permitted to be filed by
the court, or the expiration of the period for its filing. (n)
SEC. 2
By whom rendered
The judgment shall be rendered by the members of the court
who participated in the deliberation on the merits of the case
before its assignment to a member for the writing of the
decision.
SEC. 3
Quorum and voting in the court
The participation of all three Justices of a division shall be
necessary at the deliberation and the unanimous vote of the
three Justices shall be required for the pronouncement of a
judgment or final resolution. If the three justices do not reach a
unanimous vote, the clerk shall enter the votes of the
dissenting Justices in the record. Thereafter, the Chairman of
the division shall refer the case, together with the minutes of
the deliberation, to the Presiding Justice who shall designate
two Justices chosen by raffle from among all the other
members of the court to sit temporarily with them, forming a
special division of five Justices. The participation of all the five
members of the special division shall be necessary for the
deliberation required in section 2 of this Rule and the
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concurrence of a majority of such division shall be required for
the pronouncement of a judgment or final resolution. (2a)
SEC. 4
Disposition of a case
The Court of Appeals, in the exercise of its appellate
jurisdiction, may affirm, reverse, or modify the judgment or final
order appealed from, and may direct a new trial or further
proceedings to be had. (3a)
SEC. 5
Form of decision
Every decision or final resolution of the court in appealed
cases shall clearly and distinctly state the findings of fact and
the conclusions of law on which it is based, which may be
contained in the decision or final resolution itself, or adopted
from those set forth in the decision, order, or resolution
appealed from. (Sec. 40, BP Blg.129) (n)
SEC. 6
Harmless error
No error in either the admission or the exclusion of evidence
and no error or defect in any ruling or order or in anything done
or omitted by the trial court or by any of the parties is ground
for granting a new trial or for setting aside, modifying, or
otherwise disturbing a judgment or order, unless refusal to take
such action appears to the court inconsistent with substantial
justice. The court at \ every stage of the proceeding must
disregard any error or defect which does not affect the
substantial rights of the parties.
SEC. 7
Judgment where there are several parties
In all actions or proceedings, an appealed judgment may be
affirmed as to some of the appellants, and reversed as to
others, and the case shall thereafter be proceeded with, so far
as necessary, as if separate actions had been begun and
prosecuted, and execution of the judgment of affirmance may
be had accordingly, and costs may be adjudged in such cases,
as the court shall deem proper.
TAKE NOTE OF section 8
SEC. 8
Questions that may be decided
No error which does not affect the jurisdiction over the subject
matter or the validity of the judgment appealed from or the
proceedings therein will be considered unless stated in the
assignment of errors, or closely related to or dependent on an
assigned error and properly argued in the brief, save as the
court may pass upon plain errors and clerical errors.
SEC. 9
Promulgation and notice of judgment
After the judgment or final resolution and dissenting or
separate opinions, if any, are signed by the Justices taking
part, they shall be delivered for filing to the clerk who shall
indicate thereon the date of promulgation and cause true
copies thereof to be served upon the parties or their counsel.
SEC. 10
Entry of judgments and final resolutions
If no appeal or motion for new trial or reconsideration is filed
within the time provided in these Rules, the judgment or final
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
resolution shall forthwith be entered by the clerk in the book of
entries of judgments. The date when the judgment or final
resolution becomes executory shall be deemed as the date of
its entry. The record shall contain the dispositive part of the
judgment or final resolution and shall be signed by the clerk,
with a certificate that such judgment or final resolution has
become final and executory. (2a, R36)
Section 11. Execution of judgment. — Except where the
judgment or final order or resolution, or a portion thereof, is
ordered to be immediately executory, the motion for its
execution may only be filed in the proper court after its entry.
In original actions in the Court of Appeals, its writ of execution
shall be accompanied by a certified true copy of the entry of
judgment or final resolution and addressed to any appropriate
officer for its enforcement. In appealed cases, where the
motion for execution pending appeal is filed in the Court of
Appeals at a time that it is in possession of the original record
or the record on appeal, the resolution granting such motion
shall be transmitted to the lower court from which the case
originated, together with a certified true copy of the judgment
or final order to be executed, with a directive for such court of
origin to issue the proper writ for its enforcement.
RULE 52
MOTION FOR RECONSIDERATION
SEC. 1
Period for filing
A party may file a motion for reconsideration of a judgment or
final resolution within fifteen (15) days from notice thereof, with
proof of service on the adverse party.
SEC. 2
Second motion for reconsideration
No second motion for reconsideration of a judgment or final
resolution by the same party shall be entertained.
SEC. 3
Resolution of motion
In the Court of Appeals, a motion for reconsideration shall be
resolved within ninety (90) days from the date when the court
declares it submitted for resolution.
SEC. 4
Stay of execution
The pendency of a motion for reconsideration filed on time and
by the proper party shall stay the execution of the judgment or
final resolution sought to be reconsidered unless the court, for
good reasons, shall otherwise direct.
Only one motion for reconsideration is allowed.
2nd motion for reconsideration is only allowed in the SC.
What the rules prohibit is the filing of a 2nd motion for
reconsideration of a judgment or final resolution
The Rules of Court does not expressly prohibit the filing of a
2nd motion for reconsideration of an interlocutory order.
RULE 53
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NEW TRIAL
SEC. 1
Period for filing; ground
At any time after the appeal from the lower court has been
perfected and before the Court of Appeals loses jurisdiction
over the case, a party may file a motion for a new trial on the
ground of newly discovered evidence which could not have
been discovered prior to the trial in the court below by the
exercise of due diligence and which is of such a character as
would probably change the result. The motion shall be
accompanied by affidavits showing the facts constituting the
grounds therefor and the newly discovered evidence.
SEC. 2
Hearing and order
The Court of Appeals shall consider the new evidence together
with that adduced at the trial below, and may grant or refuse a
new trial, or may make such order, with notice to both parties,
as to the taking of further testimony, either orally in court, or by
depositions, or render such other judgment as ought to be
rendered upon such terms as it may deem just.
SEC. 3.
Resolution of motion
In the Court of Appeals, a motion for new trial shall be resolved
within ninety (90) days from the date when the court declares it
submitted for resolution. (n)
SEC. 4
Procedure in new trial
Unless the court otherwise directs, the procedure in the new
trial shall be the same as that granted by a Regional Trial
Court.
There can be motion for new trial in the CA but on the ground
of newly discovered evidence, FAME is no longer included.
RULE 54 & 55– DO NOT READ
SC – PHILIPPINE REPORTS
CAR – COURT OF APPEALS REPORTS
RULE 56
ORIGINAL CASES
SEC.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.
Certiorari, prohibition and mandamus- can be filed with the SC
but take note of the doctrine of hierarchy of courts.
Doctrine of hierarchy of courts- the SC will not take cognizance
over these cases even if they have jurisdiction unless and until
you have proved that you cannot obtain remedies from the
lower courts. Only if there are SPECIAL AND IMPORTANT
reason
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
Special and important reasons- only the Supreme Court
knows.
SEC. 2
Rules applicable
The procedure in original cases for certiorari, prohibition,
mandamus, quo warranto and habeas corpus shall be in
accordance with the applicable provisions of the Constitution,
laws, and Rules 46, 48, 49, 51, 52 and this Rule, subject to the
following provisions:
a) All references in said Rules to the Court of Appeals shall be
understood to also apply to the Supreme Court;
b) The portions of said Rules dealing strictly with and
specifically intended for appealed cases in the Court of
Appeals shall not be applicable; and
c) Eighteen (18) clearly legible copies of the petition shall be
filed, together with proof of service on all adverse parties. The
proceedings for disciplinary action against members of the
judiciary shall be governed by the laws and Rules prescribed
therefor, and those against attorneys by Rules 139-B, as
amended.
Section 3. Mode of appeal. — An appeal to the Supreme Court
may be taken only by a petition for review on certiorari, except
in criminal cases where the penalty imposed is death, reclusion
perpetua or life imprisonment.
Mode of appeal= petition for review on certiorari Except in
criminal cases where the penalty imposed is Reclusion
perpetua or life sentence, because the mode of appeal is mere
notice of appeal to be filed with the CA or sandiganbayan.
As discussed earlier, if your appeal is erroneous, the appeal is
dismiss.
If you file petition for review under rule 42, if rendered by the
RTC in its appellate jurisdiction (supposedly rule 42 is CA) and
you a appeal it to the SC, here it wont be dismissed but is
referred to the CA or in cases where factual issues are raised.
SEC. 4
Procedure
The appeal shall be governed by and disposed of in
accordance with the applicable provisions of the Constitution,
laws, Rules 45, 48, sections 1, 2, and 5 to 11 of Rule 51, 52
and this Rule. (n)
SEC. 5
Grounds for dismissal of appeal
The appeal may be dismissed motu proprio or on motion of the
respondent on the following grounds:
(a) Failure to take the appeal within the reglementary period;
(b) Lack of merit in the petition;
(c) Failure to pay the requisite docket fee and other lawful fees
or to make a deposit for costs;
(d) Failure to comply with the requirements regarding proof of
service and contents of and the documents which should
accompany the petition;
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(e) Failure to comply with any circular, directive or order of the
Supreme Court without justifiable cause;
(f) Error in the choice or mode of appeal; and
(g) The fact that the case is not appealable to the Supreme
Court. (n)
SEC. 6
Disposition of improper appeal
Except as provided in section 3, Rule 122 regarding appeals in
criminal cases where the penalty imposed is death, reclusion
perpetua or life imprisonment, an appeal taken to the Supreme
Court by notice of appeal shall be dismissed.
An appeal by certiorari taken to the Supreme Court from the
Regional Trial Court submitting issues of fact may be referred
to the Court of Appeals for decision or appropriate action. The
determination of the Supreme Court on whether or not issues
of fact are involved shall be final.
SEC. 7
Procedure if opinion is equally divided
Where the court en banc is equally divided in opinion, or the
necessary majority cannot be had, the case shall again be
deliberated on, and if after such deliberation no decision is
reached, the original action commenced in the court shall be
dismissed, in appealed cases, the judgment or order appealed
from shall stand affirmed; and on all incidental matters, the
petition or motion shall be denied.
The following cases shall be heard by the SC en banc:
1. All cases involving the constitutionality of a treaty,
international agreement, executive agreement, and
law, and
2. all other cases which under the rules of court are
required to be heard en banc
3. all cases involving the constitutionality and application
or operation of PDs, Proclamations, Orders,
Instructions, Ordinances, and other regulations.
The SC is free to create divisions of 3,5, or 7 hence case may
be heard by the SC either en banc or division
Any doctrines laid down by the SC whether decided en banc or
division may only be overturned by an en banc decision.
_________________________________________________
August 8, 2012
BARANGAY CONCILIATION
[CONDITION PRECEDENT]
In taking a case, among the first thing to do is to see if
there is a need to refer the case to the barangay.
Under the Local government code, particularly Sec.
399:
SEC. 399. Lupong Tagapamayapa. - (a) There is
hereby created in each barangay a lupong
tagapamayapa, hereinafter referred to as the LUPON,
composed of the punong barangay as chairman and
ten (10) to twenty (20) members. The lupon shall be
constituted every three (3) years in the manner
provided herein.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
The barangay secretary shall serve as the secretary
of the LUPON. The Lupon shall be further subdivided to
smaller groups of 3 members called “PANGKAT NG
TAGAPAGSUNDO or PANGKAT”. The members of the
PANGKAT shall elect among themselves who shall be the
chairman and who shall act as secretary.
In performing their duties, the members of the lupon
of pangkat are considered as persons in authority.
“Matters that are brought before the Barangay before filing
in the court”
GR: All disputes shall be referred to the barangay [does not
distinguish whether cognizable in the RTC or MTC]
EXC:
A. [SEC. 408]
(a) Where one party is the government, or any
subdivision or instrumentality thereof;
(b) Where one party is a public officer or employee,
and the dispute relates to the performance of his
official functions;
(c) Offenses punishable by imprisonment exceeding
one (1) year or a fine exceeding Five thousand
pesos (P5,000.00);
GR: Criminal cases should be prosecuted
EXC: Under the Local Government Code, crimes
which are punishable by exactly 1 year or less or a
fine not exceeding 5,000 pesos shall be referred to
the Barangay
(d) Offenses where there is no private offended
party;
Example: carrying deadly weapon [no private
offended party
(e) Where the dispute involves real properties
located in different cities or municipalities unless
the parties thereto agree to submit their
differences to amicable settlement by an
appropriate lupon;
Ex.: A parcel of land located in Cebu City. Another
parcel of land is located in Mandaue or Lapu – Lapu.
The action need not be referred to the Barangay
(f) Disputes involving parties who actually reside in
barangays of different cities or municipalities,
except where such barangay units adjoin each
other and the parties thereto agree to submit
their differences to amicable settlement by an
appropriate lupon;
Ex.: Juan filed a case against Pedro. Pedro lives in
Mandaue while Juan lives in Cebu City. Is it needed
to refer the case to the Barangay, No, because they
are living in different cities.
Ex. Juan lives in lahug while Pedro lives in Ermita.
Different barangay but same city Is it needed to refer
the case to the Barangay? Yes, same city or
municipality.
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Filed in what Barangay? In the barangay where the
defendant is residing. The plaintiff in this case does
not have the option to choose where to file except if
they live in adjacent barangay or they agree in an
amicable settlement.
(g) Such other classes of disputes which the President
may determine in the interest of justice or upon the
recommendation of the Secretary of Justice
B. Other Exceptions are found in Sec. 412
(1) Where the accused is under detention;
(2) Where a person has otherwise been deprived of
personal liberty calling for habeas corpus
proceedings;
(3) Where actions are coupled with provisional
remedies such as preliminary injunction,
attachment, delivery of personal property, and
support pendente lite; and
According to the SC:
The prayer for provisional remedy should not be done
in bad faith. There should be basis for asking the
provisional remedy and not just for circumventing the
law.
(4) Where the action may otherwise be barred by the
statute of limitations.
IOW, the action is about to prescribe
C. Another exception not found in the law but on
jurisprudence and other law:
1) Agrarian Dispute;
2) Labor Dispute [Montoya vs. Escayo, 171 SCRA 442]
3) Complaint filed by or against a juridical person i.e.,
plaintiff is a bank, corporation or partnership or the
defendant in the case [TN: Estate of a person is a
juridical person]
Last Par. Of Sec.408:
“The court in which non-criminal cases not falling within
the authority of the lupon under this Code are filed may, at
any time before trial, motu proprio refer the case to the
lupon concerned for amicable settlement”
IOW, the court has the power to refer the case, which
is not covered by the barangay jurisdiction, to the barangay.
Purpose of referring to the barangay
The referral of the case of the barangay is one of the
modes of alternative mode of dispute resolution. So that cases
would not clog the dockets of the court, this procedure was
made.
VENUE
SEC. 409. Venue. –
(a) Disputes between persons [PERSONAL ACTION]
actually residing in the SAME BARANGAY shall be
brought for amicable settlement before the lupon of
said barangay.
(b) Those involving actual residents of DIFFERENT
BARANGAYS within the same city or municipality
shall be brought in the barangay where the
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
respondent or any of the respondents actually
resides, at the election of the complainant.
(c) All disputes involving [REAL ACTIONS] real property
or any interest therein shall be brought in the
barangay where the real property or the larger
portion thereof is situated.
If the properties are located in DIFFERENT CITIES,
MUNICIPALITIES:
The case NEED NOT be referred in the Barangay.
(d) Those arising at the workplace where the
contending parties are employed or at the institution
where such parties are enrolled for study, shall be
brought in the barangay where such workplace or
institution is located.
Objections to venue shall be raised in the mediation
proceedings before the punong barangay; otherwise, the
same shall be deemed waived.
Any legal question which may confront the punong
barangay in resolving objections to venue herein referred
to may be submitted to the Secretary of Justice, or his duly
designated representative, whose ruling thereon shall be
binding.
Procedure for Amicable Settlement
In initiating the complaint, there is no need to file a
written complaint
SEC. 410. Procedure for Amicable Settlement. –
(a) Who may initiate proceeding - Upon payment of the
appropriate filing fee, any individual who has a cause
of action against another individual involving any
matter within the authority of the lupon may complain,
orally or in writing, to the lupon chairman of the
barangay
What is needed is merely is to present oneself before
the barangay and payment of filing fee
Filing fee is not uniform. Some barangay asks 100
pesos while other asks less or more. So, it depends
upon the barangay. The fee is made to be used for the
transportation and other expenses incurred by the
Tanod is delivering the subpoena.
[Judge D: TN that the barangay is not a court. It is part of the
executive. Some lawyers creates confusion in themselves as
they refer it as the Barangay court which is not]
Proceeding
(b) Mediation by lupon chairman - Upon receipt of the
complaint, the lupon chairman shall within the next
working day summon the respondent(s), with notice to
the complainant(s) for them and their witnesses to
appear before him for a mediation of their conflicting
interests. If he fails in his mediation effort within fifteen
(15) days from the first meeting of the parties before
him, he shall forthwith set a date for the constitution of
the pangkat in accordance with the provisions of this
Chapter.
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Effect if parties will not appear:
a) if plaintiff – the case will be dismissed. No case will
then be filed in court as the case needs to be referred
to the Barangay
b) if respondent –
a. He CANNOT BE ALLOWED TO RAISE
COUNTER-CLAIM.
b. He could also be cited in contempt however,
as the Barangay Captain does not have
power of contempt, he has to file a petition in
court to cite the respondent for INDIRECT
CONTEMPT for failure to comply/obey with
the subpoena
c. Plaintiff may immediately ask for a
CERTIFICATION TO FILE ACTION.
c) If both parties appeared – the lupon chairman will try to
settle the parties. If he fails in his mediation, he shall
constitute a pangkat. A pangkat is a group of three
members.
i. The barangay captain will inform the
parties for the next hearing which will
be preceded by the pangkat.
ii. The pangkat will now try to settle the
parties.
iii. If not settled by the pangkat, the
certification to file action will be
issued.
TAKE NOTE: The certification to file
action will be issued if the
respondent does not appear during
the first barangay conciliation.
a. If the respondent
appears, it is not proper
to immediately issue a
certificate to file action,
such would be premature.
This will result to the
dismissal of the case
before the trial court for
non-compliance.
Section 410. Procedure for Amicable Settlement
The filing of the case before the barangay shall stop
the prescriptive period but the stay of the prescriptive
period shall not be longer than 60 days. The lupon
should resolve the matter within 60 days. After the
lapse of 60 days, even if not settled the
prescriptive period shall continue to run.
Section 411. Form of settlement
The form in case of settlement:
1. The settlement shall be reduced into writing and it
shall be in the dialect or language known or
understood by the parties(Section 411).
2. It shall be signed by them and attested to by the lupon
chairman or the pangkat, depending on who preceded
the settlement between the parties.
Effect for non referral of the case before the barangay:
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
b. DISMISSED, since this is one of the grounds for
dismissal for failure to comply with a condition
precedent. Prior to the amendment of the civil
procedure, this ground is failure to state cause of
action.
The ground dismissal of the case for non-compliance of
this rule is WAIVABLE.
TAKE NOTE: It does not affect the jurisdiction of the court.
c. If the defendant wants to object because the
matter was not brought before the barangay, it
must be raised in the motion to dismiss.
d. If no motion to dismiss is filed, it must raise in
the answer as an affirmative defence.
TAKE NOTE: Failure to raise that matter in the
motion to dismiss or in the answer is considered a waiver and
the defendant is no longer allowed to raise the ground on the
first time on appeal or during trial.
The proceeding before the barangay shall be public
and informal. The appearance shall be in person and lawyers
are not allowed to appear except when they themselves are
the parties involved.
Section 416. (very important)
Effect of amicable settlement
The amicable settlement before the barangay shall have the
force and effect of a final judgment of a court upon the
expiration of ten (10) days from the date thereof.
e. Within the 10 day period, the parties can still
repudiate/cancel/amend the amicable settlement
on the ground of fraud, mistake or threat.
2. Section 418. Repudiation. - Any party to
the dispute may, within ten (10) days
from the date of the settlement,
repudiate the same by filing with the
lupon chairman a statement to that
effect sworn to before him, where the
consent is vitiated by fraud, violence, or
intimidation. Such repudiation shall be
sufficient basis for the issuance of the
certification for filing a complaint as
hereinabove provided.
a. Otherwise, it shall have the force and effect of a
final judgment of a court.
3. Remedy: Petition to nullity of
amicable settlement which shall be
filed before the MTC.
Section 419. Transmittal of Settlement and Arbitration
The secretary of the lupon shall transmit the
settlement or the arbitration award to the appropriate
city or municipal court within five (5) days from the
date of the award or from the lapse of the ten-day
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period repudiating the settlement and shall furnish
copies thereof to each of the parties to the settlement
and the lupon chairman.
The non-transmittal of the copy will not affect the
validity of the amicable settlement.
TAKE NOTE: the court may refer the case to the barangay if
shown that it can be settled. Once an amicable settlement is
reached before the barangay, it shall be forwarded to the court
for approval.
Section 417. Execution.
The amicable settlement or arbitration award may be
enforced by execution by the lupon within six (6)
months from the date of the settlement. After the
lapse of such time, the settlement may be enforced by
action in the appropriate city or municipal court.
TAKE NOTE: The reckoning date is when the obligation is
due.
However, there are instances where the parties sign
today but the obligation become due only after 1
month.
EXAMPLE#1: X was sued for non-payment of rentals.
X and Y had a settlement that X will pay by the end of
the month (August 31, 2016). So the 6 months period
will not start today (August 8, 2016) but from the date
when it was due or demandable which is August 31,
2016.
TAKE NOTE: IRR of the Local Government Code. The
barangay chairman shall act as the sheriff in case of execution.
After the lapse of 6 months, the Lupon does not have
anymore jurisdiction to execute the amicable settlement. It is
now the court that has the power to execute provided there be
a case to be filed for the execution of the amicable settlement.
TN of the cause of action. If the cause of action is for
collection of sum of money in the Brgy. it’s not collection of
sum of money. It’s EXECUTION OF AMICABLE
SETTLEMENT.
Remember the reckoning date of counting the 6
months period; it is from the date the obligation becomes due
and demandable. See Vidal vs. Escueta December 10, 2003.
Remember, what you file in court is NOT a motion for
execution. You file a case of EXECUTION OF AMICABLE
SETTLEMENT. Again, the prayer for the grant of provisional
remedies should be made in good faith. See Perigrina vs.
Pades 133 SCRA 72.
Section 418. Grounds for repudiation;
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Any party to the dispute may, within ten 10 days from
the date of the settlement, repudiate the same by
filing with the lupon chairman a statement to that
effect sworn to before him, where the consent is
vitiated by fraud, violence or intimidation. Such
repudiation shall be sufficient basis for the issuance of
the certification for filing complaint as hereinabove
provided.
(Judge D: I have already discussed this)
Section 419. Transmittal of Settlement and Arbitration;
Award to the court- The secretary of the Lupon
shall transmit the settlement or the arbitration
award to the appropriate city or municipal court
within five (5) days from the date of the award or
from the lapse of the ten-day period repudiating
the settlement and shall furnish copies thereof to
each of the parties to the settlement and the lupon
chairman.
Referral of the case before the barangay is
MANDATORY if it is within the jurisdiction of the brgy. As to the
residence, it’s the same in civil procedure. Residence here is
the actual residence. Katarungang Pambarangay does not
refer to domicile.
In one case:
A party is staying in an apartment in Manila, 5 days a
week but goes home during weekends. Such party actually
resides in Manila within the meaning of residence in the
Katarungang Pambarangay.
Q: If the certification to file action is irregularly issued, is it
considered as “failure to comply with the requisites?
A: Yes. If it is hastily issued, then there is no compliance with
the requisites.
Q: Is a pending amicable settlement case considered as a
“case” or when is a case considered filed?
A: A pending amicable settlement in the brgy is not considered
as a “case”.
A case is considered filed when it is filed in an
appropriate agency.
Q: What is the remedy if a brgy refuses to issue a certification
or refuses to settle on the grounds of conflict of interest?
A: The bgry captain may inhibit and refer the case to the
pangkat if there is a reasonable ground of conflict of interest.
Remember, if you refuse to perform you duty, that could be
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neglect of duty, an administrative charge may be filed against
you. So you refer the case to the Pangkat.
Q: In an ejectment case, one party to a case purposedly made
it appear that the demand letter came from his place of
domicile (Liloan) not his actual residence (Cebu City) to avoid
going through the Katarungang Pambarangay.
A: You can question that in court. I gave you a case on that.
See Garces v. CA 162 SCRA 504
RULE ON SUMMARY PROCEDURE
One difference between regular procedure and summary
procedure is that the summary procedure is more speedy.
The Rule on Summary Procedure governs the following cases:
CIVIL CASES CRIMINAL CASES
1) All Ejectment cases 1) violations of traffic
-all cases of forcible laws, rules and
entry and unlawful regulations;
detainer, irrespective of 2) violations of rental law;
the amount of damages 3) violations of municipal,
or unpaid rentals sought provincial or city
to be recovered. ordinances;
4) violations of BP 22
5) all other cases where
the penalty prescribed by
law for the offense
charged is imprisonment
not exceeding 6 mos. or
a fine not exceeding
1,000.00 or both.
Provided, however that in
offenses involving
damage to property
through criminal
negligence, this rule shall
govern where the
imposable fine does not
exceed 10,000.00.
the ordinary procedure; nor to a criminal case
where the offense charged is necessarily related
to another criminal case subject to the ordinary
procedure.
Remember, joinder of actions? If the case is joined
with a civil case subject of ordinary procedure then the ordinary
procedure shall govern. The same with criminal cases.
Sec. 2. Determination of applicability.
Upon the filing of a civil or criminal action, the court
shall issue an order declaring whether or not the case
shall be governed by this Rule. A patently erroneous
determination to avoid the application of the Rule on
Summary Procedure is a ground for disciplinary
action.
Don't assume that in all cases the court will issue an
order. Actually, the court will only issue an order if it finds that
the case is governed by the rules on summary procedure.
However if the case is not governed by summary
procedure, then the court will not issue an order that it is not
governed by summary procedure.
Q: Why is there a need for the court to declare that a case is
governed by summary procedure?
A: In order to warn the parties because in summary procedure,
there are prohibited pleadings/motions.
A motion to dismiss is a prohibited pleading.
Q: If there is a ground to dismiss the case, what should the
court do?
A: The court can motu proprio the case.
In ordinary procedure, the court can't motu proprio
dismiss the case except in the ff: lack of jurisdiction over the
subject matter, litis pendentia, res judicata and prescription. In
summary procedure, the court can motu proprio dismiss the
case based on any ground which is apparent on the face of the
complaint, i.e wrong venue, non compliance with katarungang
pambarangay.

Don’t be confused with the Rule on Summary
Procedure and that of the Katarungang Pambarangay, in the
latter the penalty is 1 year or less or a fine of 5,000.00.
TN, it does not necessarily follow that once a case
has to comply with the Katarungang Pambarangay, it must
automatically be governed by the Rule on Summary
Procedure. The ceiling in Katarungang Pambarangay is higher
than Summary Procedure. Therefore, there are cases referred
in the Brgy. that are not governed by Summary Procedure.
If the court finds no ground for dismissal upon receipt
of the complaint, then it shall issue summons. In the summons,
there will be a warning that the case is under the summary
procedure.
Sec. 3. Pleadings.
A. Pleadings allowed. — The only pleadings allowed to be
filed are the complaints, compulsory counterclaims and cross-
claims' pleaded in the answer, and the answers thereto.

TN, Violations of BP 22 is governed by the rule on Counterclaims and cross-claims' should be pleaded in
Summary Procedure. the answer, otherwise it is barred. Since there is a
counterclaim, the plaintiff may file an answer to counterclaim.
This rule shall not apply to a civil case where the
plaintiff’s cause of action is pleaded in the same Permissive counterclaim is not allowed; only
complaint with another cause of action subject to compulsory counterclaim.

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B. Verifications. — All pleadings shall be verified.
What we know is that a pleading need not be verified
unless there is a law or rule which requires a certain pleading
to be verified. This is an exception.
Q: Supposed the answer is not verified, can it be deleted from
the record?
A: Verification is not jurisdictional. It will not affect the
jurisdiction of the court. In other words, the court may allow
that an answer be amended so that the verification will be
included. Court may order the correction of the pleading.
Sec. 4. Duty of court. — After the court determines that the
case falls under summary procedure, it may, from an
examination of the allegations therein and such evidence as
may be attached thereto, dismiss the case outright on any of
the grounds apparent therefrom for the dismissal of a civil
action. If no ground for dismissal is found it shall forthwith issue
summons which shall state that the summary procedure under
this Rule shall apply.
Sec. 5. Answer. — Within ten (10) days from service of
summons, the defendant shall file his answer to the complaint
and serve a copy thereof on the plaintiff. Affirmative and
negative defenses not pleaded therein shall be deemed
waived, except for lack of jurisdiction over the subject matter.
Cross-claims and compulsory counterclaims not asserted in
the answer shall be considered barred. The answer to
counterclaims or cross-claims shall be filed and served within
ten (10) days from service of the answer in which they are
pleaded.
Filing of motion of extension to file an answer is
prohibited.
Sec. 6. Effect of failure to answer. — Should the defendant
fail to answer the complaint within the period above provided,
the court, motu proprio, or on motion of the plaintiff, shall
render judgment as may be warranted by the facts alleged in
the complaint and limited to what is prayed for therein:
Provided, however, that the court may in its discretion reduce
the amount of damages and attorney's fees claimed for being
excessive or otherwise unconscionable. This is without
prejudice to the applicability of Section 4, Rule 15 of the Rules
of Court, if there are two or more defendants.
Admission of late answer is prohibited.
LUNA vs MIRAFUENTE, Sep. 26, 2005
Giving the provisions a directory application would
subvert the nature of the Rule and defeat its objective of
expediting the adjudication of the suits covered thereby. To
admit a late answer is to put a premium on dilatory maneuvers
the very mischief that the Rule seeks to redress.
In the present case, respondent gave a liberal
interpretation of the above-said Rule. Liberal interpretation or
construction of the law or rules, however, is not a free
commodity that may be availed of in all instances under the
cloak of rendering justice. Liberality in the interpretation and
application of Rules applies only in proper cases and under
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
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justifiable causes and circumstances. While it is true that
litigation is not a game of technicalities, it is equally true that
every case must be prosecuted in accordance with the
prescribed procedure to insure an orderly and speedy
administration of justice.
DON TINO REALTY CORPORATION VS FLORENTINO
In the case of Gachon vs. Devera, Jr., we ruled that
the use of the word shall in the Rule on Summary Procedure
underscores their mandatory character. Giving the provisions a
directory application would subvert the nature of the Rule on
Summary Procedure and defeat its objective of expediting the
adjudication of suits. Indeed, to admit a late answer, xxx, is to
put a premium on dilatory maneuvers-the very mischief that the
Rule seeks to redress.
In the case at bar, no satisfactory explanation was
offered by respondent why he was not able to file his answer
on time. His allegation that he is economically destitute fails to
convince as he did not even wait for the Municipal Trial Court
to resolve his motion where he alleged such fact. Thus, the
Municipal Trial Court acted correctly when it refused to admit
his answer. Consequently, it did not err when it proceeded to
render judgment in accordance with section 6 of the Revised
Rule on Summary Procedure.
The motion of extension will not stop the running of
reglementary period.
Q: The defendant failed to file his answer, can the plaintiff
move to declare the defendant in default?
A: No. Motion to declare the defendant in default is a prohibited
motion. Instead of filing a motion declare the defendant in
default, the plaintiff you file a motion to render decision
based on the complaint. Still, the court can render a decision
motu proprio even without such motion to render decision.
Decision is limited only as to what is prayed in the complaint.
Sec. 7. Preliminary conference; appearance of parties. —
Not later than thirty (30) days after the last answer is filed, a
preliminary conference shall be held. The rules on pre-trial in
ordinary cases shall be applicable to the preliminary
conference unless inconsistent with the provisions of this Rule.
The failure of the plaintiff to appear in the preliminary
conference shall be a cause for the dismissal of his complaint.
The defendant who appears in the absence of the plaintiff shall
be entitled to judgment on his counterclaim in accordance with
Section 6 hereof. All cross-claims shall be dismissed.
If a sole defendant shall fail to appear, the plaintiff
shall be entitled to judgment in accordance with Section 6
hereof. This Rule shall not apply where one of two or more
defendants sued under a common cause of action who had
pleaded a common defense shall appear at the preliminary
conference.
Preliminary conference is same with pre-trial
conference.
If it is the defendant who failed to appear, then the
court will render the decision as if there was no answer filed
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except when there are several defendants under a common
cause of action who had pleaded a common defense. Because
the court will have to decide the case based on the answer
filed by the defendant/s who filed his answer.
In ordinary procedure, if there is an affirmative
defense, the Court may conduct a hearing as to the affirmative
defense. In summary procedure, hearing on affirmative
defense is prohibited in order to prevent unnecessary delay.
Sec. 8. Record of preliminary conference. — Within five (5)
days after the termination of the preliminary conference, the
court shall issue an order stating the matters taken up therein,
including but not limited to:
(a) Whether the parties have arrived at an amicable
settlement, and if so, the terms thereof;
(b) The stipulations or admissions entered into by the parties;.
(c) Whether, on the basis of the pleadings and the stipulations
and admissions made by the parties, judgment may be
rendered without the need of further proceedings, in which
event the judgment shall be rendered within thirty (30) days
from issuance of the order;
(d) A clear specification of material facts which remain
controverted; and chanrobles virtual law library
(e) Such other matters intended to expedite the disposition of
the case.
The issuance of preliminary conference order is very
important because in cases under summary procedure, there
is no presentation of evidence. It is only during preliminary
conference that the parties would meet. There is no hearing.
Sec. 9. Submission of affidavits and position papers. —
Within ten (10) days from receipt of the order mentioned in the
next preceding section, the parties shall submit the affidavits of
their witnesses and other evidence on the factual issues
defined in the order, together with their position papers setting
forth the law and the facts relied upon by them.
The court would just require the parties to submit
position paper within 10 days from receipt of the preliminary
conference order. The evidences/documents should be
attached to the position paper and the witnesses should
execute an affidavit which should also be attached.
No cross examination because there is no
presentation of witness. The decision of the case should be
based on the affidavits and documents. No reception of
testimonial evidence nor formal offer of exhibits. The
documents should be attached in the position paper.
Q: How to know if such documents/affidavits attached are
genuine?
A: Ask for it during preliminary conference.
Sec. 10. Rendition of judgment. — Within thirty (30) days
after receipt of the last affidavits and position papers, or the
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
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expiration of the period for filing the same, the court shall
render judgment.
However should the court find it necessary to clarify certain
material facts, it may, during the said period, issue an order
specifying the matters to be clarified, and require the parties to
submit affidavits or other evidence on the said matters within
ten (10) days from receipt of said order. Judgment shall be
rendered within fifteen (15) days after the receipt of the last
clarificatory affidavits, or the expiration of the period for filing
the same.
The court shall not resort to the clarificatory procedure to gain
time for the rendition of the judgment.
After the submission of the position paper, the case is
submitted for decision. The Court will decide the case within 30
days from the receipt of last affidavit or position paper.
Q: What if the Court want to clarify something?
A: The Court can't call for a hearing. The Court will require the
parties to submit an affidavit within 10 days from receipt of
order.
Criminal Cases
Sec. 11. How commenced. — The filing of criminal cases
falling within the scope of this Rule shall be either by complaint
or by information: Provided, however, that in Metropolitan
Manila and in Chartered Cities. such cases shall be
commenced only by information, except when the offense
cannot be prosecuted de oficio.
The complaint or information shall be accompanied by the
affidavits of the compliant and of his witnesses in such number
of copies as there are accused plus two (2) copies for the
court's files.If this requirement is not complied with within five
(5) days from date of filing, the care may be dismissed.
Information is signed by the prosecutor while a
criminal complaint is signed by the complainant or the police or
any public officer who is in charged with the enforcement of the
law which is violated. Wordings in criminal complaint and in
information are just the same. The only difference is the
signatories.
If the case is governed by the summary procedure,
then it can be directly filed to the court except when the offense
cannot be prosecuted de oficio.
Sec. 12. Duty of court. —
(a) If commenced by compliant. — On the basis of the
compliant and the affidavits and other evidence accompanying
the same, the court may dismiss the case outright for being
patently without basis or merit and order the release of the
amused if in custody.
(b) If commenced by information. — When the case is
commenced by information, or is not dismissed pursuant to the
next preceding paragraph, the court shall issue an order which,
together with copies of the affidavits and other evidence
submitted by the prosecution, shall require the accused to
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submit his counter-affidavit and the affidavits of his witnesses
as well as any evidence in his behalf, serving copies thereof on
the complainant or prosecutor not later than ten (10) days from
receipt of said order. The prosecution may file reply affidavits
within ten (10) days after receipt of the counter-affidavits of the
defense.
Submission of late counter affidavit is prohibited.
CARRIAGA vs. ANASARIO, Feb. 3, 2003
The Revised Rule on Summary Procedure was
promulgated specifically to achieve an expeditious and
inexpensive determination of cases. In allowing the submission
of the accused’s counter-affidavits after 130 days from notice,
respondent judge violated the Rule. He should have observed
that Section 12(b) of the Rule provides that the court shall
issue an order "which shall require the accused to submit his
counter-affidavit and the affidavits of his witnesses" x x x "not
later than ten (10) days from receipt of said order." Section
19(e) of the same Rule also provides that a motion for
extension to file affidavits is prohibited. Clearly, these
provisions are mandatory.
When the law or rule is clear, there is no room for
interpretation and judges have no option but to obey.
We thus find that respondent judge is administratively
liable for violation of the Supreme Court Rules, specifically the
Revised Rule on Summary Procedure.
If the parties would like to submit additional affidavits,
it is fine provided it is done within 3 days after the preliminary
conference. The party concern should inform the court during
the preliminary conference.
Sec. 13. Arraignment and trial. — Should the court, upon a
consideration of the complaint or information and the affidavits
submitted by both parties, find no cause or ground to hold the
accused for trial, it shall order the dismissal of the case;
otherwise, the court shall set the case for arraignment and trial.
If the accused is in custody for the crime charged, he shall be
immediately arraigned and if he enters a plea of guilty, he shall
forthwith be sentenced.
Sec. 14. Preliminary conference. — Before conducting the
trial, the court shall call the parties to a preliminary conference
during which a stipulation of facts may be entered into, or the
propriety of allowing the accused to enter a plea of guilty to a
lesser offense may be considered, or such other matters may
be taken up to clarify the issues and to ensure a speedy
disposition of the case. However, no admission by the accused
shall be used against him unless reduced to writing and signed
by the accused and his counsel. A refusal or failure to stipulate
shall not prejudice the accused.
As what we have said earlier, if a party would like to
submit additional affidavits, he can be allowed to do so
provided he request before the court to allow him to submit
evidence 3 days from the termination of the pre-trial
conference. You can find that in Section 15 last paragraph.
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Sec. 15. Procedure of trial. — At the trial, the affidavits
submitted by the parties shall constitute the direct testimonies
of the witnesses who executed the same. Witnesses who
testified may be subjected to cross-examination, redirect or re-
cross examination. Should the affiant fail to testify, his affidavit
shall not be considered as competent evidence for the party
presenting the affidavit, but the adverse party may utilize the
same for any admissible purpose.
Except in rebuttal or surrebuttal, no witness shall be allowed to
testify unless his affidavit was previously submitted to the court
in accordance with Section 12 hereof.
However, should a party desire to present additional affidavits
or counter-affidavits as part of his direct evidence, he shall so
manifest during the preliminary conference, stating the purpose
thereof. If allowed by the court, the additional affidavits of the
prosecution or the counter-affidavits of the defense shall be
submitted to the court and served on the adverse party not
later than three (3) days after the termination of the preliminary
conference. If the additional affidavits are presented by the
prosecution, the accused may file his counter-affidavits and
serve the same on the prosecution within three (3) days from
such service.
This is like judicial affidavit. The purpose is to
expedite the proceedings and to save time. That judicial
affidavit is a direct examination in writing.
Only those witnesses who have submitted affidavits
can testify except in rebuttal or surrebuttal. So, it’s better here
in criminal cases because there is trial or hearing unlike in civil
cases there is none. Only position paper.
In an ordinary criminal procedure, upon filing of a
complaint, if the judge found probable cause, he will issue
warrant of arrest. But here it’s different. The court will not issue
warrant of arrest. But how can the court acquire jurisdiction
over the person of the accused? The court will issue an order
requiring him to submit counter affidavit. What if he will not
submit or appear before the court? Then arrest him. So, that’s
Section 16.
Sec. 16. Arrest of accused. — The court shall not order the
arrest of the accused except for failure to appear whenever
required. Release of the person arrested shall either be on bail
or on recognizance by a responsible citizen acceptable to the
court.
Then the court will render judgment.
Sec. 17. Judgment. — Where a trial has been conducted, the
court shall promulgate the judgment not later than thirty (30)
days after the termination of trial.
We have said earlier that motion to dismiss is not allowed as a
rule. There are only 2 grounds where you can file motion to
dismiss or motion to squash which are:
1. Non-referral of the case in the barangay or
2. Lack of jurisdiction
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Remember that if the accused is detained,
Katarungang Pambarangay shall not apply. Why? It is because
it is urgent when the accused is already detained.
Also remember that if Katarungang Pambarangay
applies and the same was referred in the barangay, the court
can motu proprio dismiss the case or upon motion. Perhaps
you will ask why is there motion to dismiss when it is prohibited
in summary procedure? Motion to dismiss is allowed on the
ground of non-referral to the barangay.
In civil case, objection to the non-referral to the
barangay must be raised in a motion to dismiss or in an
answer.
In criminal case, non-referral of the case to the
barangay should be raised before the arraignment of the
accused. Once the accused is arraigned and the accused did
not object that before arraignment, WAIVED.
Sec. 19. Prohibited pleadings and motions. — The following
pleadings, motions or petitions shall not be allowed in the
cases covered by this Rule:
(a) Motion to dismiss the complaint or to quash the complaint
or information except on the ground of lack of jurisdiction over
the subject matter, or failure to comply with the preceding
section;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgment, or
for opening of trial;
Motion for reconsideration over an interlocutory order
is ALLOWED. But motion for reconsideration of a judgment is
NOT ALLOWED. You remember that because if you file a
motion for reconsideration of a judgment, that will not stop the
running of the reglementary period. Why? Because that is a
prohibited motion. Your remedy instead is APPEAL.
(d) Petition for relief from judgment;
(e) Motion for extension of time to file pleadings, affidavits or
any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any
interlocutory order issued by the court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third party complaints;
(l) Interventions.
Sec. 20. Affidavits. — The affidavits required to be submitted
under this Rule shall state only facts of direct personal
knowledge of the affiants xxxx.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
Sec. 21. Appeal. — The judgment or final order shall be
appealable to the appropriate regional trial court which shall
decide the same in accordance with Section 22 of Batas
Pambansa Blg. 129. The decision of the regional trial court in
civil cases governed by this Rule, including forcible entry and
unlawful detainer, shall be immediately executory, without
prejudice to a further appeal that may be taken therefrom.
Section 10 of Rule 70 shall be deemed repealed.
So the case is from MTC then affirmed by the RTC, that is
immediately executory.
THE 2016 REVISED RULES OF PROCEDURE
ON SMALL CLAIMS CASES
This was amended in February 2016. The purpose is
to speed up the disposition of cases. This is introduced by
Chief Justice Puno.
SEC. 2. Scope.– These Rules shall govern the procedure in
actions before the Metropolitan Trial Courts (MeTCs),
Municipal Trial Courts in Cities (MTCCs), Municipal Trial
Courts (MTCs) and Municipal Circuit Trial Courts (MCTCs) for
payment of money where the value of the claim does not
exceed Two Hundred Thousand Pesos (P200,000.00)
exclusive of interest and costs.
This is only applicable to pure money claim where
the amount does not exceed 200,000. If the amount
collectible is more than 200,000 and the plaintiff files
under these rules, the excess is waived. Example, you
have collectible of 250K, but you file under these rules,
you can only recover up to 200K and the 50K is waived.
SEC. 5. Applicability.– The Metropolitan Trial Courts, Municipal
Trial Courts in Cities, Municipal Trial Courts, and Municipal
Circuit Trial Courts shall apply this Rule in all actions that are
purely civil in nature where the claim or relief prayed for by the
plaintiff is solely for payment or reimbursement of sum of
money.
The claim or demand may be:
(a) For money owed under any of the following:
1. Contract of Lease;
Supposed the plaintiff asks for the rental and to
vacate the premises, is it still covered under these rules? NO.
It should be purely money claim. If he asks other relief aside
from money, these rules will not apply.
2. Contract of Loan;
What if the creditor issued checks to the debtor in
relation to the contract of loan? If the creditor prefers to file
under these rules, he cannot anymore file a case against the
debtor under BP 22. Because in BP 22, if you file a criminal
case it is necessary the civil case shall be included. You
cannot file separate cases for the civil and criminal liability.
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As discussed by: Judge Debalucos
3. Contract of Services;
4. Contract of Sale;
Supposed you are asking for the rescission of the
contract of sale? That is not under these rules. It should be
purely for payment of money.
5. Contract of Mortgage;
If you are asking for foreclosure, that is not under
these rules.
Just remember, these rules are only for MONEY,
MONEY and MONEY.
(b) For liquidated damages arising from contracts;
(c) The enforcement of a barangay amicable settlement or an
arbitration award involving a money claim covered by this Rule
pursuant to Sec. 417 of Republic Act 7160, otherwise known
as The Local Government Code of 1991.
If the compromise agreement is for the payment of
money which does not exceed 200,000, that is still covered
under small claims.
Small claims action is commenced by a verified
Statement of Claim.
SECTION 6 commencement of small claims action.
Q: How small claims commence?
A: a small claims action is commenced
-by filing with the court an accomplished and verified
STATEMENT OF CLAIM (Form 1-SCC) in duplicate,
(instead of complaint, it is called Statement of Claim, in
duplicate copy)
accompanied by a
-Certification against Forum Shopping,
-Splitting a Single Cause of Action and
-Multiplicity of Suits (Form 1-A-SCC) and
and
-2 duly certified photocopies of the actionable document/s
subject of the claim,
Q: what is the usual actionable document attached?
A: Promissory note
- as well as the affidavits of witnesses and other evidence to
support the claim.
Forms of the Statement of Claims are available in courts. You
can ask for it, photocopy or even download in the internet.
This is like a fill in the blanks.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
You just have to fill up the necessary details like
Plaintiff’s name, address, how much is the money to be claim,
the defendant’s name, address and the like…
If the plaintiff does not know how to fill up the form, he may ask
the assistance of the court personnel or to a lawyer but the
lawyer cannot sign the form, it should be the plaintiff.
No evidence shall be allowed during the hearing
which was not attached to or submitted together with the
Statement of Claim, unless good cause is shown for the
admission of additional evidence.
The plaintiff must state in the Statement of Claim if he
engaged in the business of lending, banking and similar
activities, and the number of small claims cases filed within the
calendar year regardless of judicial station.
Q: why is it necessary that the number of small claims
filed should be stated?
A: because the more small claims cases you filed the
bigger docket fees to be paid.
Actually you are just making the court as a
collection agent.
Regardless of judicial station means anywhere in
the Philippines that you have filed a small claims case.
No formal pleading, other than the Statement of
Claim/s described in this Rule is necessary to initiate a small
claims action.
SECTION 7 Venue
This is a personal action.
Q: Where filed?
A: at the plaintiff’s choice.
The regular rules on venue shall apply.
Q: where filed if the plaintiff is a juridical person?
A: However, if the plaintiff is engaged in the business of
lending, banking and similar activities and has a branch within
the municipality or city where the defendant resides, the
Statement of Claims shall be filed where the branch is located.
Unlike in the ordinary procedure, it is more difficult because the
action should be filed where the principal office of the business
is located
The causes of action can be joined in one statement of claim.
SECTION 8 Joinder of Claims
Plaintiff may join in a single statement of claim one or more
separate small claims against a defendant provided that the
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As discussed by: Judge Debalucos
total amount claimed, exclusive of interest and costs does not
exceed two hundred thousand pesos (P200,000).
Requisites of a joinder of claims:
1. Total Amount to be claim is does exceed P200,000
exclusive of interest
2. Against only to 1 defendant, (no joinder of parties)
SECTION 9 Affidavits
The affidavits submitted under this rule shall state only facts of
direct personal knowledge of the affiants or based on authentic
records which are admissible in evidence.
Q: what should be stated in the affidavits?
A:
1. only facts of direct personal knowledge of
the affiant or
2. based on authentic records
A violation of this requirement shall subject the party and the
counsel who assisted the party in the preparation of the
affidavits, if any, to appropriate disciplinary action. The
inadmissible affidavits or portions thereof shall be expunged
from the record.
The non submission of the required affidavits will cause the
immediate dismissal of the claim or counterclaim.
In the preparation of the affidavit, the plaintiff may seek the
assistance of a lawyer, however the lawyer is prohibited from
appearing in court.
If you attached an affidavits based on hearsay, the case shall
be dismiss.
SECTION 10 Payment of Filing Fees
The plaintiff shall pay the docket fees and other legal
fees prescribed under Rule 141 of the Revised Rules of Court,
unless allowed to litigate as an indigent. Exemption from the
payment of filing fees shall be granted only by the Supreme
Court.
However, if more than 5 small claims are filed by 1
party within calendar year, regardless of the judicial station, an
additional filing fee of P500 shall be paid for every claim filed
after the 5th claim and an additional P100 or total of P600 for
every claim filed after the 10th claim, and another P100 or total
of P700 for every claim filed after the 15 th claim, progressively
and cumulatively.
If the plaintiff is engaged in the business of banking, lending
and similar activities, the amount of filing and other legal fees
shall be the same as those applicable to case filed under the
regular rules.
Q: what about if the plaintiff is indigent?
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
A: The statement of claim may be accompanied by a motion to
litigate as an indigent.
A claim filed with a motion to sure as indigent (Form 6-SCC)
shall be referred to the Executive Judge for immediate action in
case of a multi sala courts.
If the motion is granted by the Executive Judge, the
case shall be raffled off or assigned to the court designated to
hear small claims cases.
If the motion is denied, the plaintiff shall be given 5
days within which to pay the docket fees otherwise, the case
shall be dismissed without prejudice.
In no case shall a party, even if declared as indigent,
be exempt from the payment of P1000 fee for service of
summons and processes.
SECTION 11. Dismissal of the claim
After the court determines that the case falls under
these Rules, it may, from an examination of the allegations of
the Statement of Claim/s and such evidence attached thereto,
by itself, dismiss the case outright on any of the grounds for
the dismissal of the case. The order of dismissal shall state if it
is with or without prejudice.
[Any ground just like in summary procedure
If the ground is prescription the dismissal is with
prejudice, but if the ground is on improper venue, the
dismissal is without prejudice.]
If, during the hearing, the court is able to determine
that there exists a ground for dismissal of the
Statement of Claim/s, the court may, by itself, dismiss
the case even if such ground is not pleaded in the
defendant’s Response.
If plaintiff misrepresents that he/she/ it is not engaged
in the business of banking, lending or similar activities when in
fact he/she/it is so engaged, the Statement of Claim/s shall be
dismissed with prejudice and plaintiff shall be meted the
appropriate sanctions, such as direct contempt.
However, if the case does not fall under this Rule, but
falls under summary or regular procedure, the case shall not
be dismissed. Instead, the case shall be re-docketed under the
appropriate procedure, and returned to the court where it was
assigned, subject to payment of any deficiency in the
applicable regular rate of filing fees.
If a case is filed under the regular or summary
procedure, but actually falls under this
Rule, the case shall be referred to the Executive Judge for
appropriate assignment.
[there shall be no dismissal but only refers the case to the
proper procedure]
SECTION 12 Summons and Notice of Hearing.
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If no ground for dismissal is found, the court shall
forthwith issue Summons (Form 2- SCC) on the day of receipt
of the Statement of Claim/s, directing the defendant to submit a
verified Response.
The court shall also issue a Notice of Hearing (Form
4-SCC) to both parties, directing them to appear before it on a
specific date and time for hearing, with a warning that no
unjustified postponement shall be allowed, as provided in
Section 21 of this Rule.
The Summons to be served on the defendant shall be
accompanied by a copy of the Statement of Claim/s and
documents submitted by plaintiff, and a blank Response Form
(Form 3-SCC) to be accomplished by the defendant.
Summons is accompanied by the following:
1. summons
2. statement of claim/s and the annexes or
documents submitted by the plaintiff
3. Blank Response Form
4. Notice of Hearing (hearing which is set within 1
month from the filing)
5. Forms of Special Power of Attorney
Q: why is there a form of a special power of attorney?
A: just in case the defendant cannot appear in person for
valid reason, he can send a representative who is not a
lawyer.
A Notice of Hearing shall accompany the Summons
and shall contain:
(a) the date of the hearing, which shall not be more than thirty
(30) days from the filing of the Statement of Claim/s; and
(b) the express prohibition against the filing of a motion to
dismiss or any other motion under Section 16 of this Rule.
If Summons is returned without being served on any
or all of the defendants, the court shall order the plaintiff to
cause the service of summons and shall inform the court within
thirty (30) days from notice if said summons was served or not;
otherwise, the Statement of Claim/ s shall be dismissed without
prejudice as to those who were not served with summons.
SECTION 13 Response
The defendant shall file with the court and serve on
the plaintiff a duly accomplished and verified Response within
a non-extendible period of ten (10) days from receipt of
summons. The Response shall be accompanied by certified
photocopies of documents, as well as affidavits of witnesses
and other evidence in support thereof. No evidence shall be
allowed during the hearing which was not attached to or
submitted together with the Response, unless good cause is
shown for the admission of additional evidence.
SECTION 14 Effect of Failure to File Response
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
Should the defendant fail to file his/her/its Response
within the required period, and likewise fail to appear on the
date set for hearing, the court shall render judgment on the
same day, as may be warranted by the facts alleged in the
Statement of Claim/s.
Failure to file a response has no effect, as long as
the defendant appears during the hearing.
Supposed the defendant fails to file his response but
appears during the hearing, the court will ask him what
defense he has against the claim and the court will
consider his defense as if he was able to file a response.
Should the defendant fail to file his/her/its Response
within the required period but appears on the date set for
hearing, the court shall ascertain what defense he/she/it has to
offer which shall constitute his/ her/its Response, and proceed
to hear or adjudicate the case on the same day as if a
Response has been filed.
SECTION 15 Counterclaims within the coverage of this
rule
Q: can the defendant raise counterclaim?
A: yes even permissive counterclaim, unlike in the rule in
summary procedure, permissive counterclaims are not
allowed, in small claims permissive counterclaims are
allowed provided that the amount claim does not exceed
P200,000.
If not raise in the compulsory counter claim, it will be
barred. No docket fees required.
In the permissive counter claim docket fees are required
to be paid, otherwise dismissed.
Permissive counter claim actually is like an independent
cause of action, but in order to avoid multiplicity of suits,
the rules of court including the rules on small claims,
allows the incorporation of permissive counterclaim in the
response.
If at the time the action is commenced, the defendant
possesses a claim against the plaintiff that
(a) is within the coverage of this Rule, exclusive of
interest and costs;
(b) arises out of the same transaction or event that is
the subject matter of the plaintiff’s claim;
(c) does not require for its adjudication the joinder of
third parties; and
(d) is not the subject of another pending action, the
claim shall be filed as a counterclaim in the Response;
otherwise, the defendant shall be barred from suing on the
counterclaim.
The defendant may also elect to file a counterclaim
against the plaintiff that does not arise out of the same
transaction or occurrence, provided that the amount and nature
thereof are within the coverage of this Rule and the prescribed
docket and other legal fees are paid.
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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
SEC. 16. Prohibited Pleadings and Motion
The following pleadings, motions, or petitions shall not be
allowed in the cases covered by this Rule:
(a) Motion to dismiss the Statement of Claim/s;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgment, or
for reopening of trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file pleadings, affidavits, or
any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any
interlocutory order issued by the court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement; (j) Reply and rejoinder;
(k) Third-party complaints; and
(l) Interventions.
SEC. 17. Availability of Forms; Assistance by Court
Personnel
The Clerk of Court or other court personnel shall
provide such assistance as may be requested by a plaintiff or a
defendant regarding the availability of forms and other
information about the coverage, requirements as well as
procedure for small claims cases.
SEC. 18. Appearance
The parties shall personally appear on the designated
date of hearing. Appearance through a representative must be
for a valid cause. The representative of an individual-party
must not be a lawyer, and must be related to or next-of-kin of
the individual-party. Juridical entities shall not be represented
by a lawyer in any capacity. The representative must be
authorized under a Special Power of Attorney (Form 7-SCC) to
enter into an amicable settlement of the dispute and to enter
into stipulations or admissions of facts and of documentary
exhibits.
SEC. 19. Appearance of Attorneys Not Allowed
No attorney shall appear in behalf of or represent a
party at the hearing, unless the attorney is the plaintiff or
defendant. If the court determines that a party cannot properly
present his/her
claim or defense and needs assistance, the court may, in its
discretion, allow another individual who is not an attorney to
assist that party upon
the latter’s consent.
SEC. 20. Non-appearance of Parties
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
Failure of the plaintiff to appear shall be cause for the
dismissal of the Statement of Claim/s without prejudice. The
defendant who appears in the absence of the plaintiff shall be
entitled to judgment on a permissive counterclaim. Failure of
the defendant to appear shall have the same effect as failure to
file a Response under Section 14 of this Rule. This shall not
apply where one of two or more defendants who are sued
under a common cause of action and have pleaded a common
defense appears at the hearing.
Failure of both parties to appear shall cause the
dismissal with prejudice of both the Statement of Claim/s and
the counterclaim.
SEC. 21. Postponement When Allowed
Q: can there be postponement?
A: only once
A request for postponement of a hearing may be
granted only upon proof of the physical inability of the party to
appear before the court on the scheduled date and time. A
party may avail of only one (1) postponement.
SEC. 22. Duty of the Court
At the beginning of the court session, the judge shall
read aloud a short statement explaining the nature, purpose
and the rule of procedure of small claims cases.
SEC. 23. Hearing
At the hearing, the judge shall first exert efforts to
bring the parties to an amicable settlement of their dispute. If
efforts at settlement fail, the hearing shall immediately proceed
in an informal and expeditious manner and be terminated
within the same day. Any settlement (Form 8-SCC) or
resolution of the dispute shall be reduced into writing, signed
by the parties and submitted to the court for approval (Form 9-
SCC and Form 10-SCC).
SEC. 24. Decision.
After the hearing, the court shall render its decision based on
the facts established by the evidence (Form 11- SCC), within
twenty-four (24) hours from termination of the hearing.
The decision shall immediately be entered by the
Clerk of Court in the court docket for civil cases and a copy
thereof forthwith served on the parties.
The decision shall be final, executory and
unappealable.
SEC. 25. Execution
When the decision is rendered, execution shall issue
upon motion (Form 12-SCC) of the winning party.
SEC. 26. Certification of documents
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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
All documents attached to the Statement of Claim/s or
Response that are required to be certified, except public or
official documents, shall be certified by the signature of the
plaintiff or defendant concerned.
SEC. 27. Applicability of the Rules of Civil Procedure
The Rules of Civil Procedure shall apply suppletorily
insofar as they are not inconsistent with this Rule.
SEC. 28. Non-applicability
The rules on mediation/judicial dispute resolution shall
not apply, inasmuch as the parties may enter into compromise
at any stage of the proceedings
---- oOo ----
August 15, 2016
RULE 39
Execution, Satisfaction and Effect of Judgments
[Judge D: The last stage of the proceedings; fruit of the efforts
exerted during the case]
Sec. 1
Execution upon judgments or final orders
Execution shall issue as a matter of right, or
motion, upon a judgment or order that disposes of the
action or proceeding upon the expiration of the period to
appeal therefrom if no appeal has been duly perfected.
----
Once the decision becomes final and executory after
the lapse of 15 days if there is no appeal, if there is motion for
reconsideration or motion for new trial, the same has already
been ruled upon by the court. Its execution becomes a matter
of right of the prevailing party.
The court cannot motu proprio execute its own
judgment. There has to be a MOTION FROM THE
PREVAILING PARTY.
The issuance of the Writ of Execution is a matter of
right on the prevailing party once the motion becomes final and
executory. The court cannot deny the issuance of the writ of
execution.
The prevailing party needs to submit a MOTION FOR
THE ISSUANCE OF THE WRIT OF EXECUTION.
REMEDY IF COURT DENIES MOTION [NO APPEAL]
When the issuance of Writ of Execution is a matter of
right and the same is denied, the remedy of the prevailing party
is PETITION FOR MANDAMUS. [Greater Metropolitan Manila
Solid Waste Management Committee vs. Johncom
Environmental Corporation, June 30, 2006]
The order granting the Writ of Execution is not
appealable. The remedy in such is a Petition for Certiorari
under Rule 65.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
If the appeal has been duly perfected and finally
resolved, the execution may forthwith be applied for in the
court of origin, on motion of the judgment obligee,
submitting therewith certified true copies of the judgment
or judgments or final order or orders sought to be
enforced and of the entry thereof, with notice to the
adverse party.
------
If the decision of the MTC is appealed to the RTC and
the same was affirmed, thus the case becoming final and
executory, the motion for execution shall always be filed in the
COURT OF ORIGIN or COURT A QUO.
The Court devised this process in order to save time
as the procedure before was to await the record from the
appellate court. with the advent of this rule, even if the record
has not yet been returned to the court of origin, the decision
which has been affirmed by the appellate court can already be
executed by MERELY ATTACHING TO THE MOTION the:
a) Certified True Copy of the Decision of the Appellate
Court
b) Certificate of Finality or the Entry of Judgment from
the Appellate Court
The appellate court may, on motion in the same
case, when the interest of justice so requires, direct the
court of origin to issue the writ of execution.
REMEDY IF COURT DENIES MOTION [AFTER APPEAL]
If the prevailing party filed the motion for writ of
execution attached with the two documents required and the
same is denied by the court of origin, the remedy is to file a
MOTION IN THE APPELLATE COURT asking the Appellate
to issue an ORDER DIRECTING the COURT OF ORIGIN to
issue the Writ of Execution.
Generally, once the decision is final and executory,
the same could be enforced by execution.
However, in some cases decided by the Supreme
Court, there are instances when the judgment may not be
enforced:
1. There has been a change in the situation of the
parties which makes the execution is inequitable.
[SUPERVENING EFFECT DOCTRINE]
i.e The Cebu City government has a pending case
which involves expropriation against the Rallos. The
court already ordered the Cebu City government to
pay as the taking involves private property to be used
as a road. The case already reached the SC which
affirmed the decision of the lower court. The same
decision has already become final and executory.
Rallos filed a motion for execution. However, during
the time of former Mayor Michael Rama, the same
was opposed as they discovered a decision made in
the 1940s showing that there has already been a
compromising agreement wherein the same property
was already owned by the City. Thus, the City
objected because by paying Rallos in effect it would
be paying for a property which it already owned.
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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
The motion for execution is now questioned which
might ultimately reach again the SC.
This illustrates when the judgment might not be
enforced.
2. When it appears that the controversy was never
submitted to the judgment of the court
3. When the judgment was novated by subsequent
agreement of the parties [Compromise Agreement
between the parties]
4. When it appears that the Writ was improvidently
issued
5. When the Writ is defective in substance
Wolfzon vs. Del Rosario 46 Phil. 41
“Doctrine of Immutability of Decision”
Once the decision is final and executory, the same
could no longer be modified. Except:
a. Correct clerical errors
b. Clarify ambiguities
c. Judgment for support [can be amended from time
to time]
Before the decision becomes final and executory, the
court has PLENARY POWERS to amend, modify or even set
aside its own decision. [Francisco vs. Bautista, 12/19/1990]
Effect of appeal of one of the defendants
Once there is an appeal taken by any of the party, the
execution of the decision is held in abeyance until the appeal
has been resolved
Sec. 2
Discretionary execution
(a) Execution of a judgment or final order pending
appeal. — On motion of the prevailing party with
notice to the adverse party filed in the trial court
while it has jurisdiction over the case and is in
possession of either the original record or the
record on appeal, as the case may be, at the time
of the filing of such motion, said court may, in its
discretion, order execution of a judgment or final
order even before the expiration of the period to
appeal.
After the trial court has lost jurisdiction the
motion for execution pending appeal may be filed
in the appellate court.
Discretionary execution may only issue upon
good reasons to be stated in a special order after
due hearing.
“Good reasons, justifying discretionary execution”
1. Proven insolvency of the debtor [Lau vs. Mentias, 21
SCRA 1021]
2. The goods subject of the judgment will perish or
deteriorate during the pendency of the appeal [Ong
vs. CA 203 SCRA 38]
3. Failure to post Supersedeas bond or payment of
monthly rental in ejectment cases
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
Sec. 3 If the court grants execution pending appeal, the
adverse party can also stay the issuance of such issuance by
posting a supersedeas bond. The bond given may be
preceeded against on motion with notice to the surety. This
bond will answer to the damages while the case is pending
appeal.
Sec. 4 These are the judgments or decisions which cannot be
stayed by appeal so this belongs to the exception.
- Judgments in actions for injunction,
- Receivership,
- Accounting and support,
- Other judgments as are now or may hereafter be
declared to be immediately executory.
Two exceptions wherein the decision could be executed
even pending appeal:
1. Judgment which could be subject to discretionary
appeal
2. Judgments which are immediately executor (Sec 4)
EXAMPLE: if a party files a motion for execution
pending appeal or execution pending appeal and the
court grants the said motion. What is the remedy of
the aggrieved party?
TAKE NOTE: this is why the court may require the
prevailing party r the movant to post bond, to answer
whatever damages the defendant may suffer in case
the appellate court would reverse the decision of the
lower court. BUT, the Supreme Court opined that the
filing of bond alone cannot be considered as good
reason for the issuance of the execution pending
appeal. (Roxas vs CA, January 28, 1988)
o In other words, there has to be another
reason (GOOD REASON) aside from the
posting of the bond.
Sec. 5
This is about the effect of the reversal of the executed
judgment.
Where the executed judgment is reversed totally or partially, or
annulled, on appeal or otherwise, the trial court may, on
motion, issue such orders of RESTITUTION OR
REPARATION OF DAMAGES as equity and justice may
warrant under the circumstances.
TAKE NOTE: It is only the party who appealed that
can benefit from the favourable judgment or decision of the
appellate court.
EXCEPTION: VICARIOUS APPEAL, where the non-
appealing party may still benefit from the favourable
decision. When parties have the same defense or
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sued under common cause of action such as when
the party sued are solidary debtors.
MARICALUM MINING CORP. vs REMINGTON
“One parties’ appeal may not benefit a party who
failed to appeal however by way of exception where
both parties have a commonality of interest, the
appeal taken by one is deemed to be the vicarious
appeal of the other “.
Sec. 6
A final and executory judgment or order may be executed on
motion within five (5) years from the date of its entry.
TAKE NOTE: the date of entry and the date of finality
is the same.
After the lapse of such time, and before it is barred by the
statute of limitations, a judgment may be enforced by action.
TAKE NOTE: under the civil code, (statute of
limitation) it would mean that before the lapse of 10
years, the judgment may be enforced BY ACTION,
called REVIVAL OF JUDGMENT.
EXAMPLE: MR.X filed a collection case against Y, so
MR X’s cause of action is sum of money. Within 5
years, Mr. X may have the judgment executed by
mere motion. But after 5 years, the decision could no
longer be executed by mere motion. If Mr. X files a
motion for execution, it will be denied. What he should
do is to file a case for revival of judgment. The cause
of action for revival of judgment is not collection for
sum of money. The cause of action is revival of
judgment, which is beyond d pecuniary estimation.
YAU vs SILVESTRE SR. February 4, 2008
The Supreme Court mentioned that execution by
mere motion may be allowed even after the lapse of 5
years on meritorious ground such as when the delay
is caused by the defendant’s legal manoeuvrings.
(YAU vs SILVESTRE SR. February 4, 2008)
CANONIZADO vs BENITEZ, 127 SCRA 610
According to the Supreme Court the 5 year or 10 year
periods do not apply to special proceedings such as
land registration and cadastral cases; judgments for
support which do not become dormant and can
always be executed by motion despite by the lapse of
the 5 year period because obligation to give support is
a continuing one and the court never loses jurisdiction
to enforce the same.
MIRANDA vs MIRANDA G.R. 179638,July 8, 2013
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An action for revival of judgment is a new and
independent action. It is different and distinct from the
original judgment sought to be revived or enforced as
such a party aggrieved by the decision of the court in
an action for revival of judgment may appeal the
decision but only in so far as the merit of the revival is
concerned. The original judgment, which final and
executor, may no longer be reverse or modified. An
action for revival of judgment may be filed either in the
same court where the judgment is rendered or in the
place where the plaintiff or defendant resides or in
any other place designated by the statutes which treat
the venue of actions in general.
Sec. 7
In case of the death of a party, execution may issue or be
enforced in the following manner:
(a) In case of the death of the judgment obligee, upon
the application of his executor or administrator, or
successor in interest;
(b) In case of the death of the judgment obligor,
against his executor or administrator or successor in
interest, if the judgment be for the recovery of real or
personal property, or the enforcement of a lien
thereon;
(c) In case of the death of the judgment obligor, after
execution is actually levied upon any of his
property, the same may be sold for the satisfaction of
the judgment obligation, and the officer making the
sale shall account to the corresponding executor or
administrator for any surplus in his hands.
Sec. 8
The writ of execution shall: (1) issue in the name of the
Republic of the Philippines from the court which granted the
motion; (2) state the name of the court, the case number and
title, the dispositive part of the subject judgment or order; and
(3) require the sheriff or other proper officer to whom it is
directed to enforce the writ according to its terms.
- The dispositive portion of the decision must be quoted
in toto.
(a) If the execution be against the property of the
judgment obligor, to satisfy the judgment, with
interest, out of the real or personal property of such
judgment obligor.
(b) If it be against real or personal property in the hands
of personal representatives, heirs, devisees, legatees,
tenants, or trustees of the judgment obligor, to satisfy
the judgment, with interest, out of such property;
(c) If it be for the sale of real or personal property to sell
such property describing it, and apply the proceeds in
conformity with the judgment, the material parts of
which shall be recited in the writ of execution;
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(d) If it be for the delivery of the possession of real or
personal property, to deliver the possession of the
same, describing it, to the party entitled thereto, and
to satisfy any costs, damages, rents, or profits
covered by the judgment out of the personal property
of the person against whom it was rendered, and if
sufficient personal property cannot be found, then out
of the real property; and
(e) In all cases, the writ of execution shall specifically
state the amount of the interest, costs, damages,
rents, or profits due as of the date of the issuance of
the writ, aside from the principal obligation under the
judgment. For this purpose, the motion for execution
shall specify the amounts of the foregoing reliefs
sought by the movant
EXAMPLE #1: partition cases where small property
(100 sqm) to be divided among 10 individuals. The
court may order the sale of the property and the
proceeds be divided among the parties.
EXAMPLE #2: if the decision if for payment of money,
the clerk of court should already compute the principal
including the interest. The sheriff will be the one who
enforces the decision of the court.
Sec. 9
Q: how is the claim for money be executed?
A: if the defendant is ordered to pay, then the sheriff will go to
the defendant. If the plaintiff is present together with the sheriff
the defendant can pay to the sheriff, who shall turnover, the
same to the clerk of court. The clerk of court shall now inform
the plaintiff.
But the defendant can also pay upon promulgation of the
court’s decision. If the plaintiff does not accept the said
payment, it will be deposited to the clerk of court.
Payments shall be received by the creditor if he is present. If
the creditor is absent, payment shall be made by the debtor to
the sheriff who shall in turn give the payment to the clerk of
court or the sheriff may deposit it to the bank. And the clerk of
court shall turn it over the creditor.
(b) Satisfaction by levy. — If the judgment obligor
cannot pay all or part of the obligation in cash,
certified bank check or other mode of payment
acceptable to the judgment obligee, the officer shall
levy upon the properties of the judgment obligor of
every kind and nature whatsoever which may be
disposed, of for value and not otherwise exempt from
execution giving the latter the option to immediately
choose which property or part thereof may be levied
upon, sufficient to satisfy the judgment. If the
judgment obligor does not exercise the option, the
officer shall first levy on the personal properties, if
any, and then on the real properties if the personal
properties are insufficient to answer for the judgment.
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The sheriff shall sell only a sufficient portion of the
personal or real property of the judgment obligor
which has been levied upon.
When there is more property of the judgment obligor
than is sufficient to satisfy the judgment and lawful
fees, he must sell only so much of the personal or real
property as is sufficient to satisfy the judgment and
lawful fees.
Real property, stocks, shares, debts, credits, and
other personal property, or any interest in either real
or personal property, may be levied upon in like
manner and with like effect as under a writ of
attachment.
Suppose defendant cannot pay because he has no money, but
he has property, sheriff now will have to levy upon his property.
Levy- means setting apart or appropriating certain
properties of judgment obligor for the purpose of
auction sale.
Levy is the pre-requisite of auction sale.
If the defendant does not have personal property or if he has
any, the same is not sufficient for the satisfaction of the
judgment, then will have to levy upon his real property.
Personal property first, then, real property. But the debtor shall
be given the option to choose which property to be levied first
to satisfy the judgment. If the debtor will not choose, then
sheriff shall levy first the personal property then real property.
The sheriff shall sell only a sufficient portion of the personal
or real property of the judgment obligor which has been levied
upon.
How to levy real property?
The sheriff will have to annotate or give notice to the Registrar
of Deeds where the property is located. If it is shares of stocks,
by giving notice to the president or managing agent.
(c) Garnishment of debts and credits. — The officer
may levy on debts due the judgment obligor and other
credits, including bank deposits, financial interests,
royalties, commissions and other personal property
not capable of manual delivery in the possession or
control of third parties. Levy shall be made by serving
notice upon the person owing such debts or having in
his possession or control such credits to which the
judgment obligor is entitled. The garnishment shall
cover only such amount as will satisfy the judgment
and all lawful fees.
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The garnishee shall make a written report to the court
within five (5) days from service of the notice of
garnishment stating whether or not the judgment
obligor has sufficient funds or credits to satisfy the
amount of the judgment. If not, the report shall state
how much funds or credits the garnishee holds for the
judgment obligor. The garnished amount in cash, or
certified bank check issued in the name of the
judgment obligee, shall be delivered directly to the
judgment obligee within ten (10) working days from
service of notice on said garnishee requiring such
delivery, except the lawful fees which shall be paid
directly to the court.
In the event there are two or more garnishees holding
deposits or credits sufficient to satisfy the judgment,
the judgment obligor, if available, shall have the right
to indicate the garnishee or garnishees who shall be
required to deliver the amount due, otherwise, the
choice shall be made by the judgment obligee.
The executing sheriff shall observe the same
procedure under paragraph (a) with respect to
delivery of payment to the judgment obligee.
How garnishment is done?
Sheriff will give notice to the bank and ask whether defendant
maintains an account with said bank. The bank will have to
make written reports to the bank within five (5) days from
service. Stating in the report whether or not the judgment
obligor has sufficient funds with the bank. If the funds are
insufficient, the report shall state how much is the exact funds
the garnishee holds for the judgment obligor. The garnished
amount in cash or in certified bank check issued in the name of
the judgment obligee shall be delivered directly to the judgment
obligee within ten (10) days.
Sect. 10 Execution of judgments for specific act.
For example: Defendant is directed to execute a Deed of Sale.
Defendant sold a parcel of land but he refused to execute a
deed of sale. The court, upon the complaint of the plaintiff,
rendered a decision directing the defendant to execute a deed
of sale.
What if the defendant still refused to execute a deed of sale as
directed by the court?
(a) Conveyance, delivery of deeds, or other specific
acts; vesting title. — If a judgment directs a party
to execute a conveyance of land or personal
property, or to deliver deeds or other documents,
or to perform, any other specific act in connection
therewith, and the party fails to comply within the
time specified, the court may direct the act to be
done at the cost of the disobedient party by some
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other person appointed by the court and the act
when so done shall have like effect as if done by
the party. If real or personal property is situated
within the Philippines, the court in lieu of directing
a conveyance thereof may by an order divest the
title of any party and vest it in others, which shall
have the force and effect of a conveyance
executed in due form of law.
So the court has two options.
 May direct the clerk of court to issue deed of sale or;
 Order the Register of deeds to cancel title of the
defendant and issue another title to the plaintiff as
well as the city/ municipal assessor to cancel the tax
declaration of the defendant and issue in the name of
the plaintiff.
(b)Sale of real or personal property. — If the judgment
be for the sale of real or personal property, to sell
such property, describing it, and apply the proceeds in
conformity with the judgment.
In ejectment cases, what will you do when there is already a
decision final and executory but defendant refused to vacate?
File a motion for execution and once the court issues the writ
of execution, the sheriff now will forcibly remove the defendant
from the place.
Case: Defendant refused to vacate, the plaintiff filed a motion
for execution to which the court granted a writ and when the
sheriff went to the place, it was locked. The sheriff breaks open
the house and restore the possession to the plaintiff. Did the
sheriff acted in accordance with the order of the court?
(Arcadio v. Ilagan, 43 SCRA 168) When the premises was
padlocked and no one was therein at the time the execution
was carried in effect, there was no need for the sheriff and the
plaintiff to secure a break-open order inasmuch as the
character of the writ in their hands authorizes them to break
open the said premises if they could not otherwise execute.
(c) Delivery or restitution of real property. — The
officer shall demand of the person against whom the
judgment for the delivery or restitution of real property
is rendered and all persons claiming rights under him
to peaceably vacate the property within three (3)
working days, and restore possession thereof to the
judgment obligee, otherwise, the officer shall oust all
such persons therefrom with the assistance, if
necessary, of appropriate peace officers, and
employing such means as may be reasonably
necessary to retake possession, and place the
judgment obligee in possession of such property. Any
costs, damages, rents or profits awarded by the
judgment shall be satisfied in the same manner as a
judgment for money.
See Manuel v. Escalante Aug.13, 2002.
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When the order to vacate is accompanied by the order for
payment of back rentals or rentals in arrears refer to Section 9
as regards the execution of money judgment.
Another situation, what if the defendant is the owner of the
house? See paragraph d;
(d) Removal of improvements on property subject of
execution. — When the property subject of the
execution contains improvements constructed or
planted by the judgment obligor or his agent, the
officer shall not destroy, demolish or remove said
improvements except upon special order of the court,
issued upon motion of the judgment obligee after the
hearing and after the former has failed to remove the
same within a reasonable time fixed by the court.
This (d) applies to informal settlers where a writ of execution is
not enough to remove them. There must be another order –
writ of demolition.
Plaintiff files a motion for issuance of writ of demolition
attaching thereto the return of the sheriff stating that defendant
refuses to comply with the writ of execution. There should be a
hearing. So there must be a motion and a hearing. The court
will give another time- reasonable time (discretionary on the
court). For example, in the order for writ of demolition the court
may give one month for the defendants to voluntarily demolish
their houses. If defendants still refused, sheriff shall bring men
to help in demolition.
There must be a special order and the defendant must be
given reasonable time fixed by the Court. The Court has
discretion.
(e) Delivery of personal property. — In judgment for
the delivery of personal property, the officer shall take
possession of the same and forthwith deliver it to the party
entitled thereto and satisfy any judgment for money as therein
provided.
Example:
Suppose the defendant was order to vacate the premises in an
ejectment case but he refused to vacate despite the issuance
of the writ of execution. The plaintiff filed a motion to cite him
for indirect contempt. Will the petition prosper?
No. Take note that a writ of execution or writ of demolition is
address to the sheriff. And so it is the sheriff that will execute
the order
Suppose the defendant is directed by the court to execute a
deed of sale over a parcel of land which he earlier sold to the
plaintiff. The court issued a writ of execution directing the
defendant to execute the deed of sale, but he refused. The
plaintiff filed a motion to cite him indirect contempt. Will the
petition prosper?
No. The remedy is not to cite the defendant for contempt. If
the defendant is ordered to execute a deed of conveyance of a
certain properties what the court should do is to order some
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other person to execute the document or to directly issue an
order directing the concern office or agency to issue the title.
Non-compliance in the decision for money claims or in the
decision for the performance of a specific act cannot be
the subject of contempt.
Are there decisions of the court that can be the subject of
contempt?
Yes! In cases of special judgments.
Sec. 11 Execution of special judgments. — When a
judgment requires the performance of any act other than those
mentioned in the two preceding sections, a certified copy of the
judgment shall be attached to the writ of execution and shall be
served by the officer upon the party against whom the same is
rendered, or upon any other person required thereby, or by
law, to obey the same, and such party or person may be
punished for contempt if he disobeys such judgment
What is a special judgment?
It is a kind of judgment that requires the defendant to perform
acts other than those acts i.e payment of money or deliver
property.
Sample of special judgment- Decision in a petition for
certiorari/mandamus/prohibition. If you disobey such decision
then your act can be considered as contemptuous.
Payment of money/ delivery of property or execution of
judgment- ordinary judgment
Sec. 12 Effect of levy on execution as to third person. —
The levy on execution shall create a lien in favor of the
judgment obligee over the right, title and interest of the
judgment obligor in such property at the time of the levy,
subject to liens and encumbrances then existing.
Sec. 13 Property exempt from execution. — Except as
otherwise expressly provided by law, the following property,
and no other, shall be exempt from execution:
(a) The judgment obligor's family home as provided by
law, or the homestead in which he resides, and land
necessarily used in connection therewith;
Under the Family Code, the value of family home that can be
exempt from execution is P300,000. At present, the value of
the family home is already disregarded. The family home is
totally exempt from execution regardless of the value.
However, it doesn't necessarily mean that it will be exempt
from foreclosure if the house is the security.
(b) Ordinary tools and implements personally used by
him in his trade, employment, or livelihood;
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T.N Firearms of the security agency is not exempt from
execution.
CASE: PENTAGON SECURITY AGENCY VS JIMENEZ, G.R.
No. 88114 : December 20, 1990
The term "tools and implements" refers to instruments of
husbandry or manual labor needed by an artisan craftsman or
laborer to obtain his living. Here petitioner is a business
enterprise. It does not use the firearms personally, but they are
used by its employees. Not being a natural person, petitioner
cannot claim that the firearms are necessary for its livelihood.
Private respondent invites the Court to take judicial notice of
the fact that there are security guards rendering service without
firearms.
There is no question, in our mind, that a security agency
without firearms to equip its guards is useless.
However, it would appear that the exemption contemplated by
the provision involved is personal, available only to a natural
person, such as a dentist's dental chair and electric fan. As
pointed out by the Solicitor General, if properties used in
business are exempt from execution, there can hardly be an
instance when a judgment claim can be enforced against the
business entity.
(c) Three horses, or three cows, or three carabaos, or
other beasts of burden, such as the judgment obligor may
select necessarily used by him in his ordinary occupation;
(d) His necessary clothing and articles for ordinary
personal use, excluding jewelry;
(e) Household furniture and utensils necessary for
housekeeping, and used for that purpose by the judgment
obligor and his family, such as the judgment obligor may
select, of a value not exceeding one hundred thousand pesos;
(f) Provisions for individual or family use sufficient for
four months;
(g) The professional libraries and equipment of judges,
lawyers, physicians, pharmacists, dentists, engineers,
surveyors, clergymen, teachers, and other professionals, not
exceeding three hundred thousand pesos in value;
(h) One fishing boat and accessories not exceeding the
total value of one hundred thousand pesos owned by a
fisherman and by the lawful use of which he earns his
livelihood;
(i) So much of the salaries, wages, or earnings of the
judgment obligor for his personal services within the four
months preceding the levy as are necessary for the support of
his family;
(j) Lettered gravestones;
(k) Monies, benefits, privileges, or annuities accruing or
in any manner growing out of any life insurance;
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(l) The right to receive legal support, or money or
property obtained as such support, or any pension or gratuity
from the Government;
CASE: People vs. Yahun
We hold that Section 8(g) of R.A. No. 9262, being a later
enactment, should be construed as laying down an exception
to the general rule above-stated that retirement benefits are
exempt from execution. The law itself declares that the court
shall order the withholding of a percentage of the income or
salary of the respondent by the employer, which shall be
automatically remitted directly to the woman "[n]otwithstanding
other laws to the contrary.
(m) Properties specially exempted by law.
But no article or species of property mentioned in this section
shall be exempt from execution issued upon a judgment
recovered for its price or upon a judgment of foreclosure of a
mortgage thereon.
Now the claims for exemption must be raised at the time of
levy and not later than the auction sale.
CASE: GOMEZ VS GEALONE , G.R. No. L-58281
November 13, 1991
Unfortunately, however, it was only on 12 December 1974, or
nearly six (6) months after the execution of the Final Bill of
Sale on 24 June 1974, that appellants filed their motion to set
aside the execution sale. They did not object to both the levy
on the property and the auction sale thereof. Neither did they
oppose the execution of the certificate of sale and the Final Bill
of Sale by the Sheriff. In short, they did not assert their right to
claim exemption until six (6) months after the lapse of the one-
year period to redeem the property.
Although the Rules of Court does not prescribe the period
within which to claim the exemption, the rule is, nevertheles,
well-settled that the right of exemption is a personal
privilege granted to the judgment debtor and as such, it
must be claimed not by the sheriff, but by the debtor
himself at the time of the levy or within a reasonable
period thereafter:
In the absence of express provision it has variously
held that claim [for exemption] must be made at the time
of the levy if the debtor is present, that it must be made within
a reasonable time, or promptly, or before the creditor
has taken any step involving further costs, or before
advertisement of sale, or at any time before sale, or within a
reasonable time before the sale, or before the sale has
commenced, but as to the last there is contrary
authority.
In the light of the facts above summarized, it is self-evident that
appellants did not assert their claim of exemption within a
reasonable time. Certainly, reasonable time, for purposes of
the law on exemption, does not mean a time after the
expiration of the one-year period provided for in Section 30 of
Rule 39 of the Rules of Court for judgment debtors to redeem
the property sold on execution, otherwise it would render
nugatory final bills of sale on execution and defeat the very
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purpose of execution — to put an end to litigation. We said
before, and We repeat it now, that litigation must end and
terminate sometime and somewhere, and it is essential to an
effective administration of justice that, once a judgment has
become final, the winning party be not, through a mere
subterfuge, deprived of the fruits of the verdict. We now rule
that claims for exemption from execution of properties under
Section 12 of Rule 39 of the Rules of Court must be presented
before its sale on execution by the sheriff.
Sec. 14 Return of writ of execution. — The writ of execution
shall be returnable to the court issuing it immediately after the
judgment has been satisfied in part or in full. If the judgment
cannot be satisfied in full within thirty (30) days after his receipt
of the writ, the officer shall report to the court and state the
reason therefor. Such writ shall continue in effect during the
period within which the judgment may be enforced by motion.
The officer shall make a report to the court every thirty (30)
days on the proceedings taken thereon until the judgment is
satisfied in full, or its effectivity expires. The returns or periodic
reports shall set forth the whole of the proceedings taken, and
shall be filed with the court and copies thereof promptly
furnished the parties.
A return means report. Writ of execution is effective within the
same period that the judgment can be enforced by motion. In
other words, 5 years.
Example: If the decision will effective for 5 years this
december, then it is only now that you will a motion for
exection- the court will issue a writ of execution. The writ of
execution will only be effective up to December this year
because it is only up to that time that the judgment can be
enforced by a motion.
Sec. 15 Notice of sale of property on execution. — Before
the sale of property on execution, notice thereof must be given
as follows:
(a) In case of perishable property, by posting written
notice of the time and place of the sale in three (3) public
places, preferably in conspicuous areas of the municipal or city
hall, post office and public market in the municipality or city
where the sale is to take place, for such time as may be
reasonable, considering the character and condition of the
property;
Example of conspicuous areas: Municipal hall, churches,
market, cock arena.
How many days should be given to the debtor before the sale?
Within reasonable time because it is perishable.
(b) In case of other personal property, by posting a
similar notice in the three (3) public places above-mentioned
for not less than five (5) days;
(c) In case of real property, by posting for twenty (20)
days in the three (3) public places abovementioned a similar
notice particularly describing the property and stating where
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the property is to be sold, and if the assessed value of the
property exceeds fifty thousand (P50,000.00) pesos, by
publishing a copy of the notice once a week for two (2)
consecutive weeks in one newspaper selected by raffle,
whether in English, Filipino, or any major regional language
published, edited and circulated or, in the absence thereof,
having general circulation in the province or city;
(d) In all cases, written notice of the sale shall be given to
the judgment obligor, at least three (3) days before the sale,
except as provided in paragraph (a) hereof where notice shall
be given the same manner as personal service of pleadings
and other papers as provided by section 6 of Rule 13.
The notice shall specify the place, date and exact time of the
sale which should not be earlier than nine o'clock in the
morning and not later than two o'clock in the afternoon. The
place of the sale may be agreed upon by the parties. In the
absence of such agreement, the sale of the property or
personal property not capable of manual delivery shall be held
in the office of the clerk of court of the Regional Trial Court or
the Municipal Trial Court which issued the writ of or which was
designated by the appellate court. In the case of personal
property capable of manual delivery, the sale shall be held in
the place where the property is located.
After levy, there will be an auction sale.
Q: What is auction sale?
A: The properties levied shall be sold to the highest bidder.
It is a requirement that there should be a notice before the
auction sale and among the persons to be notified is the
judgment debtor himself- because the debtor during the
auction sale can also bid or before the auction sale, he can pay
his obligation in full in order to forestall the auction sale.
If there is no notice, the sale is void.
Notice must specify the date, time and place.
Sec. 16 Proceedings where property claimed by third
person. — If the property levied on is claimed by any person
other than the judgment obligor or his agent, and such person
makes an affidavit of his title thereto or right to the possession
thereof, stating the grounds of such right or title, and serves
the same upon the officer making the levy and copy thereof,
stating the grounds of such right or tittle, and a serves the
same upon the officer making the levy and a copy thereof upon
the judgment obligee, the officer shall not be bound to keep the
property, unless such judgment obligee, on demand of the
officer, files a bond approved by the court to indemnity the
third-party claimant in a sum not less than the value of the
property levied on. In case of disagreement as to such value,
the same shall be determined by the court issuing the writ of
execution. No claim for damages for the taking or keeping of
the property may be enforced against the bond unless the
action therefor is filed within one hundred twenty (120) days
from the date of the filing of the bond.
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The officer shall not be liable for damages for the taking or
keeping of the property, to any third-party claimant if such bond
is filed. Nothing herein contained shall prevent such claimant
or any third person from vindicating his claim to the property in
a separate action, or prevent the judgment obligee from
claiming damages in the same or a separate action against a
third-party claimant who filed a frivolous or plainly spurious
claim.
When the writ of execution is issued in favor of the Republic of
the Philippines, or any officer duly representing it, the filing of
such bond shall not be required, and in case the sheriff or
levying officer is sued for damages as a result of the levy, he
shall be represented by the Solicitor General and if held liable
therefor, the actual damages adjudged by the court shall be
paid by the National Treasurer out of such funds as may be
appropriated for the purpose.
Scenario:
Mr. C filed a collection case against Mr. D. Mr. D failed to pay.
Mr. C filed a motion for the issuance of writ of execution and
the court grants the same. The sheriff went to the house of Mr.
D and levied upon the car found in the house of Mr. D. Mr. E,
the brother of D, objected to the taking of the car arguing that
the car doesn't belong to Mr. D, but to him. It was just
borrowed to Mr. D. What is the remedy of Mr. E who claimed to
be the true owner of the car levied upon by the sheriff?
Ans: The remedy is just to execute an affidavit stating his right
or ownership over the property. This is what we call-
TERCERIA/ third party claim.
A copy of the the affidavit must be furnished to the sheriff and
to the judgment creditor. The sheriff is not bound to retain the
car- he has to return the car because of the affidavit executed
by E unless the plaintiff would put up a bond equivalent to the
value of the property to answer whatever damages that the
claimant would suffer by virtue of the levy.
This is what we call as third party claim and it is different from
third party complaint.
DISTINGUISH:
Third party claim- refers to an affidavit of a third person
whose property is levied upon by the sheriff.
Third party complaint refers to a pleading filed by the
defendant against a third party for possible reimbursement,
subrogation or contribution and such party is not yet a party to
the case.
In case of disagreement of the value of the property, the court
shall determine its value.
"No claim for damages for the taking or keeping of the property
may be enforced against the bond unless the action therefor is
filed within one hundred twenty (120) days from the date of the
filing of the bond."- damages should be filed against the
plaintiff and not the sheriff.
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Aside from executing a third party claim, another remedy of the
claimant is to file a separate action to prove his claim over the
property. Example: Recovery of possession, replevin.
If he wants to prevent the auction sale, he can ask the court
where the case if filed to issue a restraining order or
preliminary injuction against the sheriff. Take note that the
case is filed in another court. Is it not considered as
interference by another court?
NO. The property is not own by the plaintiff. A third person who
claims property levied upon on execution may vindicate such
claim by action. Obviously a judgment rendered in his favor,
that is, declaring him to be the owner of the property, would not
constitute interference with the powers or processes of the
court which rendered the judgment to enforce which the
execution was levied. If that be so — and it is so because the
property, being that of a stranger, is not subject to levy — then
an interlocutory order such as injunction, upon a claim and
prima facie showing of ownership by the claimant, cannot be
considered as such interference either. (Abierra vs CA G.R
No. L-26292)
A third person may vindicate such claim by a separate
action. A judgment in his favor declaring him to be the owner of
the property, would not constitute an interference because the
property being that of a stranger is not subject to levy. Thus an
interlocutory order such as injunction upon a claim and prima
facie showing of ownership by the claimant cannot be
considered as such as interference. The court did not direct the
sheriff to levy on the particular properties in dispute, the order
was for him to levy upon properties of the judgment debtor
without specifying them. (Abiera vs CA 45 SCRA 314)
Another case: Polaris Mktg Corp vs Plan G.R. No. L-
40666
The situation here is that the Court of First
Instance of Rizal rendered a money judgment against
the husband in a foreclosure proceeding. The
mortgaged lands were sold at public auction. To
satisfy the deficiency judgment, the sheriff levied upon
the conjugal assets found in Isabela. The wife
contested the levy against the conjugal assets by
suing the judgment creditor and the sheriff in the
Court of First Instance of Isabela. She contended that
the levy was void and that it should be enjoined.
The wife, in assailing the alias writ of
execution, which was enforced against the conjugal
assets to satisfy a money judgment against her
husband, did so in a separate action and did not
move to set aside the execution in the case where the
judgment was rendered.
The issue is whether the Isabela court, ill
deferring action on the motion to dismiss the wife's
complaint and in enjoining the levy on the conjugal
assets, acted without jurisdiction or with grave abuse
of discretion.
The Isabela court has jurisdiction to entertain
the complaint of the wife, Natalia A. Santos. She was
not a party in the foreclosure case against the
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husband. So it would seem that she was not bound by
the proceedings therein.
The mandatory injunction issued by the
Isabela court cannot be considered as an interference
with the writ of execution issued by a court of
coordinate and co-equal jurisdiction. The alias writ of
execution was issued by the Rizal court for the
purpose of levying upon the properties of the
judgment debtor and not the properties of other
persons.
Aside from terceria, third party claimant can file a
separate civil action.
Another remedy, the third-party claimant can file a
complaint with the court itself who issues the action because
the sheriff that executes writ of execution is under the
supervisory power of the court. So, the third party claimant
may invoke the supervisory power of the court which
authorized the execution. The third party claimant can file a
motion before the court, asking the court to determine whether
the property levied upon by the sheriff is really the property of
the debtor.
Imani vs Metropolitan Bank 635 scra 357.
When the sheriff thus seizes property of a
third person in which the judgment debtor holds no
right or interest, and so incurs in error, the supervisory
power of the Court which has authorized execution
may be invoked by the third person. Upon due
application by the third person, and after summary
hearing, the Court may command that the property be
released from the mistaken levy and restored to the
rightful owner or possessor. What the Court can do in
these instances however is limited to a determination
of whether the sheriff has acted rightly or wrongly in
the performance of his duties in the execution of the
judgment, more specifically, if he has indeed taken
hold of property not belonging to the judgment debtor.
The Court does not and cannot pass upon the
question of title to the property, with any character of
finality. It can treat the matter only in so far as may be
necessary to decide if the Sheriff has acted correctly
or not.
However, the remedy of terceria or a
separate action under Section 16, Rule 39 is no
longer available to Sina Imani because he is not
deemed a stranger to the case filed against petitioner:
The husband of the judgment debtor cannot
be deemed a "stranger" to the case prosecuted and
adjudged against his wife. Thus, it would have been
inappropriate for him to institute a separate case for
annulment of writ of execution.
The purpose of the bond filed by the judgment oblige
is to indemnify the third party claimant not the sheriff. The
amount of the bond is not less than the value of the property
levied upon. The officer shall not be liable for damages for the
taking or keeping of the property, to any third-party claimant if
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such bond is filed. The judgment oblige may claim damages
against a third party claimant in the same or separate action.
The third claimant, aside from posting the bond, in
order that the auction would push through, he can also ask for
payment for damages against the claimant. He can file a
motion with same court or a separate action for damages.
Intervention is no longer allowed as judgment has already
been rendered. Intervention under Rule 19 is allowed before
judgment is rendered. He cannot also appeal or file a petition
for certiorari against the judgment of the court because he is
not a party to the case.
Sec. 17 Penalty for selling without notice, or removing or
defacing notice. — An officer selling without the notice
prescribed by section 15 of this Rule shall be liable to pay
punitive damages in the amount of five thousand (P5,000.00)
pesos to any person injured thereby, in addition to his actual
damages, both to be recovered by motion in the same action;
and a person willfully removing or defacing the notice posted, if
done before the sale, or before the satisfaction of the judgment
if it be satisfied before the sale, shall be liable to pay five
thousand (P5,000.00) pesos to any person injured by reason
thereof, in addition to his actual damages, to be recovered by
motion in the same action.
Remember that an auction sale without notice is void
and the sheriff who conducted the sale without notice is liable
to pay for damages under Section 17.
Sec. 19 How property sold on execution; who may direct
manner and order of sale. — All sales of property under
execution must be made at public auction, to the highest
bidder, to start at the exact time fixed in the notice. After
sufficient property has been sold to satisfy the execution, no
more shall be sold and any excess property or proceeds of the
sale shall be promptly delivered to the judgment obligor or his
authorized representative, unless otherwise directed by the
judgment or order of the court. When the sale is of real
property, consisting of several known lots, they must be sold
separately; or, when a portion of such real property is claimed
by a third person, he may require it to be sold separately.
When the sale is of personal property capable of manual
delivery, it must be sold within view of those attending the
same and in such parcels as are likely to bring the highest
price. The judgment obligor, if present at the sale, may direct
the order in which property, real or personal shall be sold,
when such property consists of several known lots or parcels
which can be sold to advantage separately. Neither the officer
conducting the execution sale, nor his deputies, can become a
purchaser, nor be interested directly or indirectly in any
purchase at such sale.
Sec. 20 Refusal of purchaser to pay. — If a purchaser refuses
to pay the amount bid by him for property struck off to him at a
sale under execution, the officer may again sell the property to
the highest bidder and shall not be responsible for any loss
occasioned thereby; but the court may order the refusing
purchaser to pay into the court the amount of such loss, with
costs, and may punish him for contempt if he disobeys the
order. The amount of such payment shall be for the benefit of
the person entitled to the proceeds of the execution, unless the
execution has been fully satisfied, in which event such
proceeds shall be for the benefit of the judgment obligor. The
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officer may thereafter reject any subsequent bid of such
purchaser who refuses to pay.
Sec. 21 Judgment obligee as purchaser. — When the
purchaser is the judgment obligee, and no third-party claim has
been filed, he need not pay the amount of the bid if it does not
exceed the amount of his judgment. If it does, he shall pay only
the excess.
So if the bid price is just equivalent to the debt, he
need not pay. There will be set-off. But there is a third party
claimant he needs to pay the purchase price because the
purchase price shall be deposited in court.
Instances when the creditor needs to pay the
purchase price:
1. When there is a third party claimant
2. When the bid price is higher than the obligation of
the debtor. He has to pay the excess.
Sec. 22 Adjournment of sale. — By written consent of the
judgment obligor and obligee, or their duly authorized
representatives, the officer may adjourn the sale to any date
and time agreed upon by them. Without such agreement, he
may adjourn the sale from day to day if it becomes necessary
to do so for lack of time to complete the sale on the day fixed in
the notice or the day to which it was adjourned.
Sec. 23 Conveyance to purchaser of personal property
capable of manual delivery. — When the purchaser of any
personal property, capable of manual delivery, pays the
purchase price, the officer making the sale must deliver the
property to the purchaser and, if desired, execute and deliver
to him a certificate of sale. The sale conveys to the purchaser
all the rights which the judgment obligor had in such property
as of the date of the levy on execution or preliminary
attachment.
If the personal property is incapable of manual
delivery like a car, then the sheriff shall execute a certificate of
sale. If it is a real property, the sheriff has to execute a
certificate of sale, but such certificate will not give right to the
property yet because as regards real property, two must be
executed. First is the certificate of sale. Second is issued after
the lapse of period of redemption which is the deed of
conveyance. The deed of conveyance shall be executed by the
sheriff after the lapse of 1 year period to redeem. In the
execution sale of real property, the owner has a 1 year
redemption period reckoned from the registration of the
certificate of sale.
Sec. 24 Conveyance to purchaser of personal property not
capable of manual delivery. — When the purchaser of any
personal property, not capable of manual delivery, pays the
purchase price, the officer making the sale must execute and
deliver to the purchaser a certificate of sale. Such certificate
conveys to the purchaser all the rights which the judgment
obligor had in such property as of the date of the levy on
execution or preliminary attachment.
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Sec. 25 Conveyance of real property; certificate thereof given
to purchaser and filed with registry of deeds. — Upon a sale of
real property, the officer must give to the purchaser a
certificate of sale containing:
(a) A particular description of the real property sold;
(b) The price paid for each distinct lot or parcel;
(c) The whole price paid by him;
(d) A statement that the right of redemption expires one
(1) year from the date of the registration of the certificate of
sale.
Such certificate must be registered in the registry of deeds of
the place where the property is situated.
Without the registration, the one year period to
redeem will not to run.
Sec. 26 Certificate of sale where property claimed by third
person. — When a property sold by virtue of a writ of execution
has been claimed by a third person, the certificate of sale to be
issued by the sheriff pursuant to sections 23, 24 and 25 of this
Rule shall make express mention of the existence of such
third-party claim.
Right of redemption is available only when the subject
a real property and not personal property.
Sec. 27 Who may redeem real property so sold. — Real
property sold as provided in the last preceding section, or any
part thereof sold separately, may be redeemed in the manner
hereinafter provided, by the following persons:
(a) The judgment obligor; or his successor in interest in
the whole or any part of the property;
(b) A creditor having a lien by virtue of an attachment,
judgment or mortgage on the property sold, or on some part
thereof, subsequent to the lien under which the property was
sold. Such redeeming creditor is termed a redemptioner.
Example: A property is subject of an auction. This is
own by the debtor. It is possible that this property has other
encumbrances like mortgage. Creditor here is C and the debtor
is D. D has also a debt to X and Y. So, who can redeem this
property? The judgment debtor. He can exercise it within 1
year. C here is the highest bidder so he get the property. If the
judgment debtor has exercised his right of redemption, these
junior encumbrancers (X, Y) cannot redeem. But if the
judgment debtor, will not immediately exercise his right of
redemption, these junior encumbrancers may redeem the
property. The first junior encumbrancer (X) has also 1 year
from registration. So, after X redeemed the property, this one
(Y) who has also a right of the property, he can also redeem
but it should be within 60 days from the time X redeemed.
Then if there are still more, then another 60 days to redeem.
So, if X will redeem, he will pay all the expenses made by C
plus interest, 12% per annum.
So, the first redeemer has 1 year period to redeem
but the successive has 60 days only even if the same would go
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beyond 1 year as long the period from the last redeemer would
not exceed 60 days.
Sec. 28 Time and manner of, and amounts payable on,
successive redemptions; notice to be given and filed.
Q: when to redeem the property sold?
A: The judgment obligor, or redemptioner, may redeem the
property from the purchaser, at any time within one (1) year
from the date of the registration of the certificate of sale.
Q: How will he redeem the property?
A: by paying the purchaser
Q: what amount shall be paid?
A:
1. the amount of his purchase, with one per centum per
month interest thereon in addition, up to the time of
redemption,
2. the amount of any assessments or taxes which the
purchaser may have paid thereon after purchase,
3. interest on such last named amount at the same rate;
and
4. if the purchaser be also a creditor having a prior lien
to that of the redemptioner, other than the judgment
under which such purchase was made, the amount of
such other lien, with interest.
Meaning to say if the judgment obligor wants to exercise his
right of redemption all he has to do is to pay the purchaser but
of course this is with interest.
Q: can property redeemed be redeemed again?
A: Property so redeemed may again be redeemed within sixty
(60) days after the last redemption upon compliance with the
following:
1. payment of the sum paid on the last redemption,
2. with two per centum thereon in addition,
3. the amount of any assessments or taxes which the
last redemptioner may have paid thereon after
redemption by him,
4. with interest on such last-named amount,
5. in addition, the amount of any liens held by said last
redemptioner prior to his own, with interest.
Now if the judgment debtor will not exercise his right of
redemption, any of the redemptioners can redeem the property
within 60 days from the last redemption.
Q: when can a subsequent redemption be made?
A: yes. The property may be again, and as often as a
redemptioner is so disposed, redeemed from any previous
redemptioner within sixty (60) days after the last redemption,
on paying the sum paid on the last previous redemption, with
two per centum thereon in addition, and the amounts of any
assessments or taxes which the last previous redemptioner
paid after the redemption thereon, with interest thereon, and
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the amount of any liens held by the last redemptioner prior to
his own, with interest.
The debtor has 1 year from the registration of the
certificate of sale in the civil registry.
If the debtor will redeem his property by paying the
purchase price plus interest and other expenses the
redemptioners cannot exercise their right of redemption.
However if the debtor will not exercise his right of
redemption, any redemptioner can exercise his right of
redemption.
The first redemptioner has 1 year (same with the
debtor) but the succeeding redemptioner has only 60 days.
Example:
A mortgaged the property 3 times.
B
A -------- C
D
A is the debtor
The creditors here are B, C, D
If B, he exercises the first redemption, B has 1 year from the
date of the registration of the certificate of sale.
If C, a junior encumbrancer wanted to redeem, even if the 1
year period has lapse, C may exercise the redemption within
60 days, the same with D within 60 days.
Only the first redemption has a 1 year period to redeem,
The succeeding redemption is only within 60 days.
BUT off course, if the if it is still in the 1 year period, the
judgment obligor can exercise his right of redemption even if
already redeem by any of the creditors, the judgment obligor
may redeem the property either from the purchaser or the
redemptioner.
Q: to whom notice shall be given?
A: Written notice of any redemption must be given to:
1. the officer who made the sale;
2. a duplicate filed with the registry of deeds of the
place; and
3. if any assessments or taxes are paid by the
redemptioner or if he has or acquires any lien other
than that upon which the redemption was made,
notice thereof must in like manner be given to the
officer and filed with the registry of deeds; if such
notice be not filed, the property may be redeemed
without paying such assessments, taxes, or liens.
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Sec. 29 Effect of redemption by judgment obligor, and a
certificate to be delivered and recorded thereupon; to whom
payments on redemption made.
Q: What is the effect if the judgment obligor redeemed the
property?
A: If the judgment obligor redeems, he must make the same
payments as are required to effect a redemption by a
redemptioner, whereupon, no further redemption shall be
allowed and he is restored to his estate.
Q: what is the duty of the person whom payment was
made?
A: The person to whom the redemption payment is made must
perform the following:
1. execute and deliver to him a certificate of redemption
2. acknowledged before a notary public or other officer
authorized to take acknowledgments of conveyances
of real property.
3. Such certificate must be filed and recorded in the
registry of deeds of the place in which the property is
situated;
4. and
5. the registrar of deeds must note the record thereof on
the margin of the record of the certificate of sale.
Q: To whom the payment shall be made?
A: The payments mentioned in this and the last preceding
sections may be made to the purchaser or redemptioner, or for
him to the officer who made the sale.
Sec. 30. Proof required of redemptioner.
Q: what must the redemptioner submit?
A redemptioner must comply with the following:
1. produce to the officer, or person from whom he seeks
to redeem, and serve with his notice to the officer a
copy of the judgment or final order under which he
claims the right to redeem,
2. certified by the clerk of the court wherein the
judgment or final order is entered; or,
3. if he redeems upon a mortgage or other lien, a
memorandum of the record thereof, certified by the
registrar of deeds; or an original or certified copy of
any assignment necessary to establish his claim; and
4. an affidavit executed by him or his agent, showing the
amount then actually due on the lien.
Not just any person can be a redemptioner, you have
to show that you have an interest in the property.
A redemptioner under this section has to comply with
the above mentioned.
So he has to present his interest over the property
such as that he is a mortgagee or a creditor of the judgment
obligor with real estate mortgage.
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Sec. 31 Manner of using premises pending redemption; waste
restrained.
Remember that within 1 year period or within the 1
year period wherein the judgment debtor can exercise his right
of redemption, the debtor shall continue to occupy the
property.
Situations may arise like: you are the judgment
obligor, you owned the house, and you already knew that you
have no means to redeem the property, what will be the
possible scenario may arise, the owner judgment obligor may
neglect the maintenance of the house because he knew that
soon he will deliver it to the redemptioner.
The same with you loaned a car from a bank, you
knew you can no longer pay, and you are just waiting for the
period of redemption to expire, you don’t care about the car,
you just drive it recklessly.
Under section 31, the court may restrain the
commission of waste on the property by injunction on the
application of the purchaser or judgment oblige.
In case of real properties, like a vast land of coconuts,
you try to cut all of them, because you knew you no longer own
it after the redemption period.
The court may appoint a receiver in order to preserve
the property.
Q: What are the rule on the use of and waste of the
property?
A: Until the expiration of the time allowed for redemption, the
court may, as in other proper cases, order subject to the
following rules;
1. restrain the commission of waste on the property by
injunction, on the application of the purchaser or the
judgment obligee, with or without notice;
2. it is not waste for a person in possession of the
property at the time of the sale, or entitled to
possession afterwards, during the period allowed for
redemption, to continue to use it in the same manner
in which it was previously used; or
3. to use it in the ordinary course of husbandry; or
4. to make the necessary repairs to buildings thereon
while he occupies the property.
Sec. 32 Rents, earnings and income of property pending
redemption.
Q: who is entitled to the rents, earnings and income of the
property pending redemption?
A: The purchaser or a redemptioner shall not
1. be entitled to receive the rents, earnings and income
of the property sold on execution, or the value of the
use and occupation thereof when such property is in
the possession of a tenant.
2. All rents, earnings and income derived from the
property pending redemption shall belong to the
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judgment obligor until the expiration of his period of
redemption.
Sec. 33 Deed and possession to be given at expiration of
redemption period; by whom executed or given.
Q: what is the right of the purchaser if no redemption was
made within the time allowed?
A: If no redemption be made within one (1) year from the date
of the registration of the certificate of sale, the purchaser is
entitled to a conveyance and possession of the property;
Q: Who is entitled to possession if there is a redemption
after 60 days?
A: if so redeemed whenever sixty (60) days have elapsed and
no other redemption has been made, and notice thereof given,
and the time for redemption has expired, the last redemptioner
is entitled to the conveyance and possession;
Q: Who is entitled to the possession for the period of 1
year of redemption?
A: In all cases the judgment obligor shall have the entire period
of one (1) year from the date of the registration of the sale to
redeem the property.
Q: Who shall make the deed of conveyance?
A: The deed shall be executed by the officer making the sale or
by his successor in office, and in the latter case shall have the
same validity as though the officer making the sale had
continued in office and executed it.
Q: What are the rights of the purchaser or redemptioner
after the expiration of period of redemption?
Upon the expiration of the right of redemption, the purchaser or
redemptioner shall be:
1. Substituted to and acquire all the rights, title, interest
and claim of the judgment obligor to the property as of
the time of the levy.
2. The possession of the property shall be given to the
purchaser or last redemptioner by the same officer
unless a third party is actually holding the property
adversely to the judgment obligor.
As regards to real properties which is levied on execution,
there are 2 documents to be prepared by the sheriff:
1. Certificate of sale– executed after the auction
2. Deed of Conveyance –
Sec. 34 Recovery of price if sale not effective; revival of
judgment.
Now, what is the remedy of the purchaser of the real property
sold or his successor in interest if he fails to recover the
possession thereof or evicted therefrom, in consequence of
irregularities in the proceedings concerning the sale, or
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because the judgment has been reversed or set aside, or
because a third person has vindicated his claim to the
property.
What will be his remedy in case he will be excluded from the
property?
Example: you were the one who bought the property in the
auction sale, and such property was taken from you.
What will be your remedy if you fail to possess the property or
if you are already in possession you were evicted or ejected?
One reason why you are ejected is that there were
irregularities in the auction sale. You knew already what those
requisites are such as publication, posting, supposed there is
irregularities and the auction sale is declared void and as a
consequence the purchaser was divested of his possession or
ownership over this property.
What is his remedy?
Under this rule, he can file motion in the same action or he can
file a separate action to recover from the creditor the price
paid, or he may also upon motion have the original judgment
revived in his name for the whole price with interest, or so
much thereof as has been delivered to the judgment obligor.
Remember that the purchaser here is not part of the case. This
is different from revival of judgment. This revival of judgment
under Section 34, this is only for the purpose of collection this
is only for the purpose of having the purchaser collect from the
judgment debtor.
Q: What are the remedies of the purchaser if he fails to
recover the property?
A: If the purchaser of real property sold on execution, or his
successor in interest, fails to recover the possession thereof, or
is evicted therefrom, in consequence of irregularities in the
proceedings concerning the sale, or because the judgment has
been reversed or set aside, or because the property sold was
exempt from execution, or because a third person has
vindicated his claim to the property, he may on motion in the
same action or in a separate action:
1. recover from the judgment obligee the price paid, with
interest, or so much thereof as has not been delivered
to the judgment obligor; or
2. he may, on motion, have the original judgment
revived in his name for the whole price with interest,
or so much thereof as has been delivered to the
judgment obligor.
3. The judgment so revived shall have the same force
and effect as an original judgment would have as of
the date of the revival and no more.
Sec. 35 Right to contribution or reimbursement.
This about a right of solidary debtor to recover or
compel contribution from his co-debtors, he may compel the
contribution to others. So do you remember solidary debtors?
So the creditor can collect from any one of them. For example,
A, B, C, D, they are solidary debtors. The creditor can run after
from any one of them. So for example Mr. A was the one who
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is compelled to pay, he can demand contribution from his co-
debtors.
Of course that pre-supposes they were joined as
defendant.
Q: What is the remedy of the person who paid or satisfied
the execution?
A: When property liable to an execution against several
persons is sold thereon, and more than a due proportion of the
judgment is satisfied out of the proceeds of the sale of the
property of one of them, or one of them pays, without a sale,
more than his proportion, he may, subject to the following
rules:
1. compel a contribution from the others; and
2. when a judgment is upon an obligation of one of
them, as security for another, and the surety pays the
amount, or any part thereof, either by sale of his
property or before sale, he may compel repayment
from the principal.
Sec. 36 Examination of judgment obligor when judgment
unsatisfied.
Sections 36 to 43 this sections provide proceedings
supplementary to execution.
This presupposes that there has been an execution.
There is execution, there is already a writ of execution issued
by the court, but the judgment is still unsatisfied.
Why unsatisfied? Because the debtor has no more
properties to answer for the judgment.
Now, Sections 36 to 43 these are the proceedings after the
execution that the judgment creditor or oblige may undertake in
order to satisfy the judgment.
Q: what is the remedy of the judgment obligor when the
judgment is unsatisfied?
A: When the return of a writ of execution issued against
property of a judgment obligor, or any one of several obligors
in the same judgment, shows that the judgment remains
unsatisfied, in whole or in part, the judgment obligee, at any
time after such return is made, may avail a remedy subject to
the following conditiond:
1. he is entitled to an order from the court which
rendered the said judgment, requiring such judgment
obligor to appear and be examined concerning his
property and income before such court or before a
commissioner appointed by it, at a specified time and
place; and
2. proceedings may thereupon be had for the application
of the property and income of the judgment obligor
towards the satisfaction of the judgment.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
Meaning to say the plaintiff, the prevailing party can file a
motion in court to have the obligor examined under oath the
whereabouts of his property including his income.
Q: What is the limitation on the examination of judgment
obligor?
A: No judgment obligor shall be so required to appear before a
court or commissioner outside the province or city in which
such obligor resides or is found.
So the obligor is not required to appear outside the
city or outside the province. He can be examined only w/in the
province or city where he is residing.
What’s the purpose? This is the same as the mode of
discovery, under oath, of course if you are found to be telling a
lie, you can be cited for contempt.
Another, what if he has no property, even personal
property but you learned that he has collectibles or he has a
bank deposits. Look at section 37.
Sec. 37 Examination of obligor of judgment obligor.
Q: What is the remedy of the judgment oblige if there is an
obligor of a judgment obligor?
A: When the return of a writ of execution against the property
of a judgment obligor shows that the judgment remains
unsatisfied, in whole or in part, and upon proof to the
satisfaction of the court which issued the writ, that a person,
corporation, or other juridical entity has property of such
judgment obligor or is indebted to him, the court may, by an
order, require such person, corporation, or other juridical entity,
or any officer or member thereof, to appear before the court or
a commissioner appointed by it, at a time and place within the
province or city where such debtor resides or is found, and be
examined concerning the same.
Now, this person now to be examined is different from
the defendant. They are other persons who are indebted to the
debtor.
Example:
The plaintiff has obtained information that the debtor
has a bank deposit in this certain bank or has shares of stocks
or has collectibles against any person or corporation.
What will the plaintiff do?
That person who is the debtor of the judgment debtor,
who is indebted to the debtor, shall be examined as to the
extent of the collectible, as to the amount of collectible of the
judgment obligor.
He will be examined in order to ascertain how much
the collectible amount from such debtor is.
If the judgment obligor has a bank account, the same
can be garnish for the satisfaction of the judgment.
Q: What is the effect of the service of the order?
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A: The service of the order shall
1. bind all credits due the judgment obligor
2. all money and property of the judgment obligor in the
possession or in the control of such person,
corporation, or juridical entity from the time of service;
3. and the court may also require notice of such
proceedings to be given to any party to the action in
such manner as it may deem proper.
Sec. 38 Enforcement of attendance and conduct of
examination.
Q: how will the attendance of the person for examination
be enforced?
A: A party or other person may be compelled, by an order or
subpoena to;
1. attend before the court or commissioner
2. to testify as provided in the two preceding sections,
and
3. Upon failure to obey such order or subpoena or to be
sworn, or to answer as a witness or to subscribe his
deposition, may be punished for contempt as in other
cases.
Q: how will the conduct of examination be done?
A: the following rules shall be observed in the examination of
the person:
1. Examinations shall not be unduly prolonged, but the
proceedings may be adjourned from time to time, until
they are completed.
2. If the examination is before a commissioner, he must
take it in writing and certify it to the court.
3. All examinations and answers before a court or
commissioner must be under oath, and when a
corporation or other juridical entity answers, it must be
on the oath of an authorized officer or agent thereof.
If the refuse to obey with subpoena or refuse to
answer question, they can be punish for contempt as in other
cases.
Sec. 39 Obligor may pay execution against obligee.
Q: what is the duty of the person indebted to the judgment
obligor served with writ?
A: After a writ of execution against property has been issued, a
person indebted to the judgment obligor may pay to the sheriff
holding the writ of execution the amount of his debt or so much
thereof as may be necessary to satisfy the judgment, in the
manner prescribed in section 9 of this Rule, and the sheriff’s
receipt shall be a sufficient discharge for the amount so paid or
directed to be credited by the judgment obligee on the
execution.
Sec. 40 Order for application of property and income to
satisfaction of judgment.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
Q: what are the courses of action of the court on the
property of the judgment obligor?
A: The court may order that:
1. any property of the judgment obligor, or money due
him, not exempt from execution, in the hands of either
himself or another person, or of a corporation or other
juridical entity, to be applied to the satisfaction of the
judgment, subject to any prior rights over such
property.
2. If, upon investigation of his current income and
expenses, it appears that the earnings of the
judgment obligor for his personal services are more
than necessary for the support of his family, the court
may order that he pay the judgment in fixed monthly
installments, and upon his failure to pay any such
installment when due without good excuse, may
punish him for indirect contempt.
Sec. 41 Appointment of receiver.
Q: What may the court do during execution?
A: the court during execution may;
1. The court may appoint a receiver of the property of
the judgment obligor; and
2. it may also forbid a transfer or other disposition of, or
any interference with, the property of the judgment
obligor not exempt from execution.
Sec. 42 Sale of ascertainable interest of judgment obligor in
real estate.
Q: What is the duty of the receiver on the interest of
judgment obligor in a real estate?
A: If it appears that the judgment obligor has an interest in real
estate in the place in which proceedings are had, as mortgagor
or mortgagee or otherwise, and his interest therein can be
ascertained without controversy, the receiver subject to the
following conditions may be:
1. ordered to sell and convey such real estate or the
interest of the obligor therein;
2. such sale shall be conducted in all respects in the
same manner as is provided for the sale of real estate
upon execution, and
3. the proceedings thereon shall be approved by the
court before the execution of the deed.
Sec. 43 Proceedings when indebtedness denied or another
person claims the property.
Q: what is the rule if the person denies the indebtedness
of the being claimed by another person?
A: If it appears that a person or corporation, alleged to have
property of the judgment obligor or to be indebted to him,
claims an interest in the property adverse to him or denies the
debt, the court may:
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1. authorize, by an order made to that effect, the
judgment obligee to institute an action against such
person or corporation for the recovery of such interest
or debt,
2. forbid a transfer or other disposition of such interest or
debt within one hundred twenty (120) days from
notice of the order, and
3. may punish disobedience of such order as for
contempt.
4. Such order may be modified or vacated at any time by
the court which issued it, or by the court in which the
action is brought, upon such terms as may be just.
For example, here is a person wherein it is suspected that
he is holding the property of the judgment debtor and that the
plaintiff believes that this person is only a dummy in order to
evade execution,
What will be the plaintiff’s remedy?
Under section 43, the court may authorize the creditor
to file a collection case or to recover the property.
So for example the plaintiff really believes that this
person is just a dummy of the judgment obligor, so he believe
that the owner of the property is really the judgment debtor,
and in order to escape execution,
now under section 43 the court may authorize the judgment
creditor to file a case for collection or to recover the property
from that person who is claiming to be the owner of the
property.
In other words under section 43, if the person
believed to have in his possession the property of the judgment
debtor, and he denies the same, the court has no power to
determine whether the property really belongs to the judgment
debtor and to order such person to pay the judgment creditor.
What the court can do is to merely authorize the judgment
creditor to file a case to recover the property.
Sec. 44 Entry of satisfaction of judgment by clerk of court.
Q: what is the duty of the clerk of court in case of
satisfaction of judgment?
A: Satisfaction of a judgment shall be entered by the clerk of
court in the court docket, and in the execution book, upon the
return of a writ of execution showing:
1. the full satisfaction of the judgment, or
2. upon the filing of an admission to the satisfaction of
the judgment executed and
3. acknowledged in the same manner as a conveyance
of real property by the judgment obligee or by his
counsel unless a revocation of his authority is filed, or
upon the endorsement of such admission by the
judgment obligee or his counsel on the face of the
record of the judgment.
If the judgment has already been satisfied the same shall
be recorded in the judgment book or the execution book.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
Sec. 45 Entry of satisfaction with or without admission.
Q: what is the rule on the entry of satisfaction with or
without admission?
A: Whenever a judgment is satisfied in fact, or otherwise than
upon an execution, on demand of the judgment obligor, the
judgment obligee or his counsel must:
1. execute and acknowledge, or indorse, an admission
of the satisfaction as provided in the last preceding
section, and
2. after notice and upon motion the court may order
either the judgment obligee or his counsel to do so, or
3. may order the entry of satisfaction to be made without
such admission.
If in case the debtor does not wait for the writ of execution,
because he voluntarily paid.
What will be his proof that he already paid?
The obligor or defendant can demand from the
plaintiff or his counsel to execute and acknowledge that he has
already satisfied the judgment.
Sec. 46 When principal bound by judgment against surety.
Q: When will the surety become liable?
A: When a judgment is rendered against a party who stands as
surety for another, the latter is also bound from the time that he
has notice of the action or proceeding, and an opportunity at
the surety’s request to join in the defense.
Now under this rule, when the surety is being sued by
the creditor the principal debtor would not be bound by the
decision if the principal debtor is not notified. So this rule
applied where the surety is sued by the creditor w/o joining the
principal, now the surety should notify the principal.
---- oOo ----
August 22, 2016
SEC. 47
EFFECT OF JUDGMENTS OR FINAL ORDERS
----
RES JUDICATA OR DOCTRINE OF PRECLUSION OF
CLAIMS
There are two concepts
1) Bar by Prior Judgment
Requisites:
a. Former judgment or order must be final;
b. It must be judgment or order on the merits
“Judgment on the merits”
- It must be rendered after consideration of
those evidence or stipulation submitted by
the parties
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- There are instances that are considered
judgment on the merits. In those instances, it
is considered that the case was decided on
the evidence presented even if there is no
presentation of evidence occurred.
Example:
During the pre-trial, the plaintiff failed to appear. The case
could be dismissed and the dismissal could be with prejudice if
the court does not specify if the dismissal is with prejudice of
without prejudice and it is the presumption that the dismissal is
with prejudice
c. It must have been rendered by the court which
has jurisdiction over the subject matter and the
parties [Court with competent jurisdiction]
d. There must be between the 1st and 2nd cases:
a. identity of parties or substantial identity
of parties
b. identity of subject matter or substantial
identity of subject matter
c. identity of cause of action or substantial
identity of cause of action
* This requisite is satisfied if the two cases substantial identity
2) Conclusiveness of Judgment – there are two
cases. There is an issue in a former case and such
issue was already judicially passed upon by a court of
competent jurisdiction. As far that party to the case is
concerned, the same cannot be litigated again in any
future action between such parties.
There is only identity of issues and no identity of cause of
action. Stated otherwise, it bars re litigation in a second case of
a question or issue already settled in a previous case. The
second case may proceed provided it will no longer touch on
the same fact or issue already adjudged or ruled by the court in
the first case.
Conclusiveness of judgment merely requires the identity of
issues and parties and not cause of action.
For better understanding of Res Judicata, read the case of
ALAMAYRI vs. PABALLE GR 151243 April 30, 2008
Res Judicata presupposes that there are two cases where one
is already terminated. If both cases are still pending, there can
be no Res Judicata but there might be litis pendentia. There is
forum shopping when there is Res Judicata or Litis Pendentia.
------
The effect of a judgment or final order rendered by a court
of the Philippines, having jurisdiction to pronounce the
judgment or final order, may be as follows:
(a) In case of a judgment or final order against a
specific thing, or in respect to the probate of a
will, or the administration of the estate of a
deceased person, or in respect to the personal,
political, or legal condition or status of a
particular person or his relationship to another,
the judgment or final order is conclusive upon the
title to the thing, the will or administration or the
condition, status or relationship of the person,
however, the probate of a will or granting of
letters of administration shall only be prima
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
facie evidence of the death of the testator or
intestate;
----
This involves an action in rem.
----
(b) In other cases, the judgment or final order is, with
respect to the matter directly adjudged or as to
any other matter that could have been missed in
relation thereto, conclusive between the parties
and their successors in interest, by title
subsequent to the commencement of the action
or special proceeding, litigating for the same
thing and under the same title and in the same
capacity; and
Case:
There are 10 siblings. The parents left a parcel of land. The 3
of the siblings are occupying the lot. The 7 filed a partition case
against the 3. During pre –trial both parties did not appear. The
court dismissed the case for failure of both parties to appear.
The order became final. After some years, the 7 siblings
executed a falsified extra judicial settlement of estate
purportedly showing that the siblings agreed to divide the
properties. The same is falsified as the 3 left did not
participate.
Then, the 7 sold their shares of the property to another person.
The title of the property was transferred to the buyer. When the
3 siblings learned about the transaction, they filed a case of
quieting of title over the entire property. They filed the case
against the 7 siblings as well as the buyer of the property. They
argued they were the owners of the property as the same was
given to them by their parents.
The 7 siblings on the other hand, raised as counterclaim,
partition. Of course the plaintiffs [3 siblings] filed an answer to
the counterclaim and their defenseswas res judicata.
Question: Was there res judicata?
See: Kintos vs. Nicolas June 25, 2014 GR 210252
---
Par. A and B are about Bar by Prior Judgment in Action in
rem and in personam
Par. C is about Conclusiveness of Judgment – just like in res
judicata, there are 2 cases. The first case is already
terminated. In the first case, there was a factual issue ruled
upon by the court. such issue if brought out again in the
second case would no longer be entertained by the court as
the same was already ruled upon by the court.
Example:
Mr. X filed a collection case against Y for the amount of
P500,000. The court served summon on Y and then Y filed an
answer denying the same. the court rendered judgment
dismissing the case. Mr. X did not file an appeal. However, two
months thereafter, Mr. X filed a case over the same collectible
amount against Y.
Question: Would the 2nd case prosper?
No. it is already barred by prior judgment. The prior judgment
is already final, rendered by a court of competent jurisdiction.
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There is likewise identity of parties, subject matter and cause
of action.
“Substantial Identity”
Suppose in the first case, it was only Y who was sued
but on the second case, his wife was included in the suit.
There is Res Judicata because even if the parties are not the
same due to the inclusion of the wife, there is still substantial
identity of the parties
Example: Suppose in the first case, it is only for collection of
sum of money, but in the second case, the title is not anymore
for collection of money but collection of sum of money AND
damages. Are causes of action the same?
A: NO, but they are substantially the same.
Example: Suppose during the pre-trial, X, plaintiff, failed to
appear, the court dismissed the case with prejudice. X did not
file an appeal after receiving the order. Two months after, X
filed another case over the same cause of action. Will the
second case prosper?
A: NO. The ground is res judicata.
TAKE NOTE: Res judicata will apply to decisions in land
registration proceedings as well as quasi-judicial bodies.
CONCLUSIVENESS OF JUDGMENT
Example: X obtained a loan from Y, with the amount of P 1M
payable in 5 equal monthly instalments. Y filed a case against
X for failure to pay the 1st monthly instalment of P200,000. In
this case, X raised the defense of falsification since his
signature in the promissory note is forged. The court rendered
decision against X, ordering him to pay P200,000. Y filed
another case against X for collection of the 2 nd instalment. X
raised again the defense of forgery. Will the second defense
of X prosper in the second case?
A: No, because this has been ruled upon in the first case, this
is what we call conclusiveness of judgment, where there is an
issue in the first case that has already been rule upon by the
court and as between the parties that issue is already closed. It
cannot be again re-litigated in the second case.
TAKE NOTE: As a rule, there is only one case for every
contract (single contract) because it can only be violated once.
HOWEVER, if the contract is capable of several performances
then each failure to perform on the part of the obligor would
constitute a cause of action, this is the exception.
CASE: MALLION vs. ALCANTARA, G.R. No.141528
The husband filed a declaration of nullity of their marriage on
the ground of psychological incapacity. The court dismissed
the case. Later on, he filed another case for annulment of
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
marriage on the ground that their marriage did not have any
marriage license. The wife filed an answer raising res judicata.
Is this meritorious?
Ruling: A plaintiff is mandated to place in issue in
his pleading, all the issues existing when the suit
began. A lawsuit cannot be tried piecemeal. The
plaintiff is bound to set forth in his first action every
ground for relief which he claims to exist and upon
which he relied, and cannot be permitted to rely
upon them by piecemeal in successive action to
recover for the same wrong or injury.
A party seeking to enforce a claim, legal or
equitable, must present to the court, either by the
pleadings or proofs, or both, on the grounds upon
which to expect a judgment in his favor. He is not
at liberty to split up his demands, and prosecute it
by piecemeal or present only a portion of the
grounds upon which a special relief is sought and
leave the rest to the presentment in a second suit
if the first fails. There would be no end to litigation
if such piecemeal presentation is allowed.
In sum, litigants are provided with the options
on the course of action to take in order to obtain
judicial relief. Once an option has been taken and a
case is filed in court, the parties must ventilate all
matters and relevant issues therein. The losing
party who files another action regarding the same
controversy will be needlessly squandering time,
effort and financial resources because he is barred
by law from litigating the same controversy all over
again.
SECTION 48
Effect of foreign judgments or final orders. — The effect of a
judgment or final order of a tribunal of a foreign country, having
jurisdiction to render the judgment or final order is as follows:
(a) In case of a judgment or final order upon a specific thing,
the judgment or final order, is conclusive upon the title to the
thing, and
(b) In case of a judgment or final order against a person, the
judgment or final order is presumptive evidence of a right as
between the parties and their successors in interest by a
subsequent title.
In either case, the judgment or final order may be repelled by
evidence of a want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law or fact.
TAKE NOTE: Our courts cannot take judicial notice of foreign
judgment, unless alleged and proven in court.
 action in rem = the judgment or final order is
conclusive.
 action in personam = it is only prima facie or
presumptive evidence of a right.
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The party who wants the judgment to be executed has to file a
case in court. The cause of action is the enforcement of the
judgment.
Example: X files a case in Japan and the judgment is not
executed there because the defendant is the Philippines, X
must file a case in the Philippines for it to be executed. The
cause of action is ENFORCEMENT OF A FOREIGN
JUDGMENT.
 Similar to the enforcement of a
compromise agreement = After the lapse of
6 months and the same has not been
executed, you must file a case in court for it
to be executed. The cause of action is
ENFORCEMENT OF THE COMPROMISE
AGREEMENT not anymore the collection of
sum of money or the ejectment.
Defences in an action for enforcement of a foreign judgment:
1. Lack of jurisdiction of the foreign court
2. Lack of jurisdiction of the subject matter
3. Lack of jurisdiction over his person
4. Want of notice to the party
5. Collusion
6. Fraud
7. Clear mistake of law or fact
TAKE NOTE: The foreign judgment cannot be enforced here
but will only create a right of action. It is necessary that a suit
be brought in our local court.
 Take note: DOCTRINE OF PROCESSUAL
PRESUMPTION.
CASE ASSIGMENTS:
G.R. No. 112573
NORTHWEST ORIENT AIRLINES, INC. vs. COURT
OF APPEALS and C.F. SHARP & COMPANY INC.
Doctrine: A foreign judgment is presumed to be valid
and binding in the country from which it comes, until
the contrary is shown. It is also proper to presume the
regularity of the proceedings and the giving of due
notice therein. The judgment may, however, be
assailed by evidence of want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of
law or fact. Also, under Section 3 of Rule 131, a court,
whether of the Philippines or elsewhere, enjoys the
presumption that it was acting in the lawful exercise of
jurisdiction and has regularly performed its official duty.
Consequently, the party attacking a foreign judgment
has the burden of overcoming the presumption of its
validity.
G.R. No. 103493
PHILSEC INVESTMENT CORPORATION, BPI-
INTERNATIONAL FINANCE LIMITED, and ATHONA
HOLDINGS, N.V., vs. THE HONORABLE COURT
OF APPEALS
Doctrine: While this Court has given the effect of res
judicata to foreign judgments in several cases, it was
after the parties opposed to the judgment had been
given ample opportunity to repel them on grounds
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
allowed under the law. It is not necessary for this
purpose to initiate a separate action or proceeding for
enforcement of the foreign judgment. What is essential
is that there is opportunity to challenge the foreign
judgment, in order for the court to properly determine
its efficacy. This is because in this jurisdiction, with
respect to actions in personam, as distinguished from
actions in rem, a foreign judgment merely constitutes
prima facie evidence of the justness of the claim of a
party and, as such, is subject to proof to the contrary.
G.R. 128803
ASIAVEST LIMITED, vs. THE COURT OF APPEALS
AND ANTONIO HERAS
Doctrine: Under paragraph (b) of Section 50, Rule 39
of the Rules of Court, which was the governing law at
the time this case was decided by the trial court and
respondent Court of Appeals, a foreign judgment
against a person rendered by a court having
jurisdiction to pronounce the judgment is presumptive
evidence of a right as between the parties and their
successors in interest by the subsequent
title. However, the judgment may be repelled by
evidence of want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law or fact.
Also, Section 3(n) of Rule 131 of the New Rules of
Evidence provides that in the absence of proof to the
contrary, a court, or judge acting as such, whether in
the Philippines or elsewhere, is presumed to have
acted in the lawful exercise of jurisdiction.
Hence, once the authenticity of the foreign judgment is
proved, the burden to repel it on grounds provided for
in paragraph (b) of Section 50, Rule 39 of the Rules of
Court is on the party challenging the foreign judgment -
- HERAS in this case.
PROVISIONAL REMIDIES
- To preserve and protect the rights of plaintiff while the
case is pending.
- Ancillary, because these remedies depend on the
main case.
- Issued by the court where the main case is pending.
- Can the first level court issue a provisional remedy?
Yes, if the main case is filed before the court.
KINDS: (PPRRS)
1. Preliminary attachment
2. Preliminary injunction
3. Receivership
4. Replevin
5. Support pendete lite
RULE 57
PRELIMINARY ATTACHMENT
Section 1 (MEMORIZE/FAMILIARIZE)
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- Certain properties of the defendant are taken into
custody by the court so that these properties will be
used in the event that the plaintiff wins the case.
- WHEN ISSUED: upon the filing or anytime before
entry of judgment (before finality of the judgment).
- WHO CAN APPLY: Any party that has a claim; the
plaintiff or the defendant (as regards his courter claim/
third claim).
Grounds:
(a) In an action for the recovery of a specified amount of
money or damages, other than moral and exemplary, on a
cause of action arising from law, contract, quasi-contract, delict
or quasi-delict against a party who is about to depart from the
Philippines with intent to defraud his creditors;
Requisite #1: action for the recovery of a specified amount of
money or damages
Example 1: collection of sum of money, which is based on
promissory note.
TAKE NOTE: unliquidate damages not included.
Example 2: In a construction of a house - contact states that
for every day of delay the contractor shall pay you P 1,000.
The amount can be determined so this is liquidated.
Requisite # 2: Against a party who is about to depart from the
Philippines with
Requisite #3: Intent to defraud his creditors.
For example:
A borrowed money from B.
A failed to pay despite demands. B filed a collection case
against A.
B, in his complaint, prayed for the issuance of preliminary
attachment because A is already insolvent at the time he
filed his complaint.
Q: Is the prayer for the issuance of a preliminary attachment
meritorious?
 No, because insolvency is not a ground for
issuance of preliminary attachment.
Q: Suppose, A is insolvent and is about to depart from the
Phils., is the issuance of Preliminary attachment meritorious?
 No, because the departure must be with
“intent to defraud his creditors”.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
Rule 57, section 1;
(b) in an action for money or property embezzled or
fraudulently misapplied or converted to his own use by a public
officer or an officer of a corporation or an attorney, factor,
broker, agent or clerk in the course of his employment as such,
or by any other person in a fiduciary capacity or for a wilful
violation of duty;
The main action, here could be a criminal case. Intent to
defraud is no longer required under this paragraph. But the
action here is the recovery of money or property fraudulently
misapplied.
( c) In an action to recover the possession of property unjustly
or fraudulently taken, detained or converted when the property
or any part thereof, has been concealed, removed or disposed
of to prevent its being found or taken by the applicant or an
authorized person;
The main action here could be recovery of ownership over real
property.
(d) In an action against a party who has been guilty of a fraud
in contracting the debt or incurring the obligation upon which
the action is brought, or in the performance thereof.
Remember, estafa through issuance of bouncing check. The
accused in the issuance of bouncing check incurred an
obligation through fraud. So if an offended party would bring an
action against the defendant, offended party can ask issuance
of preliminary attachment.
(e) In an action against a party who has removed or disposed
of his property or is about to do so, with intent to defraud his
creditors;
(f) In an action against a party who does not reside and is not
found in the Phils., or on whom summons may be served by
publication.
Remember our discussions about summons. Preliminary
attachment can convert an action purely in personam into an
action quasi in rem.
For example;
X, a foreigner, owes you money but he ran away. Yet,
he has properties in the Phils. Since, you cannot serve him
summons, because extraterritorial service of summons is
applicable only when the action is recovery of possession and
ownership of property or the subject of the action is property or
status.
But here, the action is purely in personam. An action purely in
personam may be converted into an action quasi in rem by
asking the court an issuance of preliminary attachment.
If the prayer for preliminary attachment is incorporated in the
complaint, the complaint must allege:
 the grounds;
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 the requisites for the issuance of preliminary
attachment.
Mostly, if not all, Provisional remedies require AFFIDAVIT and
BOND.
Kinds of Attachment:
1. Preliminary Attachment- one that is issued at the
commencement of the action or at anytime before
entry of judgment, for the satisfaction of any judgment
that may be recovered in cases provided by the rules.
2. Garnishment- a kind of attachment in which the
plaintiff reaches the credits such as bank deposits
belonging to the defendant and those persons owing
to him.
3. Levy on execution- an order directing the sheriff to get
the properties of the defendant so that the same shall
be sold to satisfy the judgment.
TAKE NOTE: familiarize the kinds of attachment.
Attachment; its nature:
 In rem or
 Quasi in rem
When availed in an action purely in personam, it shall become
an action quasi in rem.
Action in personam- an action where the decision is binding
only between the parties and their successors in interest.
Section 2. Issuance and Contents of Order;
An order of attachment may be issued either exparte or upon
motion with notice and hearing by the court in which the action
is pending or by the Court of Appeals or the Supreme Court
and must require the sheriff of the court to attach so much of
the property in the Phils. of the party against whom it is issued
not exempt from execution, as may be sufficient to satisfy the
applicant’s demand, unless such party makes deposit or gives
a bond as hereinafter provided in an amount equal to that fixed
in the order, which may be the amount sufficient to satisfy the
applicant’s demand or the value of the property to be attached
as stated by the applicant, exclusive of costs. Several writs
may be issued at the same time to the sheriffs of the courts of
different judicial regions.
An order of an attachment may be issued either;
 Exparte or
 Upon motion with notice and hearing.
Properties to be attached:
 Those not exempt from execution
Q: Why do the rules allow issuance of the order ex-parte?
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
A: For practical reasons- to avoid the defendant from disposing
of his properties.
Q: What do you mean by exparte?
A: without knowledge or without notice to the adverse party.
3 stages in the grant of Preliminary Attachment:
1st stage: Issuance of the Order
Who: by the judge
could be issued ex parte.
2nd stage: Issuance of the Writ of preliminary attachment
Who: by the clerk of court
could be ex parte
3rd stage: Implementation/ execution of the Writ
Who: by the sheriff
Take note: must be either:
 preceded by service of summons or
 contemporaneously/simultaneously with the service
of summons
See Mangela vs. CA GR 125027 August 12, 2002
Implementation of the writ of attachment without the required
jurisdiction over the person of the defendant is null and void.
See BAC Manufacturing v. CA 200 SCRA 130
The implementation of the writ could only be lifted:
 when defendant makes cash deposit with the court
equivalent to his obligation;
 or when he gives counter bond in an amount equal to
that fixed in the order of the court or value of the
property to be attached.
Section 3. Affidavit and bond required;
An order of attachment shall be
granted only when it appears by the affidavit of the applicant or
of some other person who personally knows the facts, that a
sufficient cause of action exists, that the case is one of those
mentioned in Section 1 hereof, that there is no other sufficient
security for the claim sought to be enforced by the action, and
that the amount due to the applicant or the value of the
property the possession of which he is entitled to recover is as
much as the sum for which the order is granted above all legal
counterclaims. The affidavit and the bond required by the next
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succeeding section must be duly filed with the court before the
order issues.
If the application for the issuance of preliminary attachment is
through a motion;
 the motion must be verified.
If the application is incorporated in the complaint;
 the complaint must be verified.
Q: Who puts up the attachment bond as contemplated in
section 3?
A: The applicant.
And the bond will answer for any damages the defendant will
suffer in the event that the court will adjudge that the applicant
was not entitled to the remedies asked.
The requisites for preliminary attachment are provided for in:
 section 1. the grounds;
 section 2. the issuance of the order and
 section 3. the affidavit and bond.
Remember there are instances that the plaintiff may be
required to pay damages even he wins the case, if the
preliminary attachment was issued but there is no sufficient
basis for such issuance.
Section 5. Manner of attaching property
 The sheriff shall only attach so much of the property
sufficient to satisfy the applicant’s demand.
 If the defendant wants to set aside the writ, his
remedies:
 Makes a cash deposit equivalent to the claim
of plaintiff or;
 Gives counter bond in an amount equal to
that fixed in the order or to the value of the
property to be attached
Purpose of counter bond: To answer to whatever claim the
plaintiff may have if plaintiff wins the case.
 No levy on attachment shall be enforced unless
preceded or contemporaneously accompanied by
service of summons. Except:
- where the summons could not be served
personally or by substituted service despite
diligent efforts or
- the defendant is a resident of the Phils.
temporarily absent therefrom; or
- the defendant is a non-resident of the Phils.
or
- the action is one in rem or quasi in rem.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
In other words, the requirement of contemporaneous service of
summons is mandatory only in in action in personam.
Section 7. Attachment of real and personal property;
recording thereof. — Real and personal property shall be
attached by the sheriff executing the writ in the following
manner:
(a) Real property, or growing crops thereon, or any
interest therein, standing upon the record of the registry of
deeds of the province in the name of the party against whom
attachment is issued, or not appearing at all upon such
records, or belonging to the party against whom attachment is
issued and held by any other person, or standing on the
records of the registry of deeds in the name of any other
person, by filing with the registry of deeds a copy of the order,
together with a description of the property attached, and a
notice that it is attached, or that such real property and any
interest therein held by or standing in the name of such other
person are attached, and by leaving a copy of such order,
description, and notice with the occupant of the property, if
any, or with such other person or his agent if found within the
province. Where the property has been brought under the
operation of either the Land Registration Act or the Property
Registration Decree, the notice shall contain a reference to the
number of the certificate of title, the volume and page in the
registration book where the certificate is registered, and the
registered owner or owners thereof.
The registrar of deeds must index attachments filed under this
section in the names of the applicant, the adverse party, or the
person by whom the property is held or in whose name it
stands in the records. If the attachment is not claimed on the
entire area of the land covered by the certificate of title, a
description sufficiently accurate for the identification of the land
or interest to be affected shall be included in the registration of
such attachment;
How to attach real property?
-The sheriff will just notify the register of deeds by furnishing a
copy of the writ of attachment and the same shall be annotated
at the back of the title.
-So that if the defendant will sale the property, there will be an
annotation that the property is attached.
(b) Personal property capable of manual delivery, by
taking and safely keeping it in his custody, after issuing the
corresponding receipt therefor.
-The sheriff has to take them and keep the custody.
(c) Stocks or shares, or an interest in stocks or shares, of
any corporation or company, by leaving with the president or
managing agent thereof, a copy of the writ, and a notice stating
that the stock or interest of the party against whom the
attachment is issued is attached in pursuance of such writ;
(d) Debts and credits, including bank deposits, financial
interest, royalties, commissions and other personal property
not capable of manual delivery, by leaving with the person
owing such debts, or having in his possession or under his
control, such credits or other personal property, or with his
agent, a copy of the writ, and notice that the debts owing by
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him to the party against whom attachment is issued, and the
credits and other personal property in his possession, or under
his control, belonging to said party, are attached in pursuance
of such writ;
-This is what we call- GARNISHMENT
(e) The interest of the party against whom attachment is
issued in property belonging to the estate of the decedent,
whether as heir, legatee, or devisee, by serving the executor or
administrator or other personal representative of the decedent
with a copy of the writ and notice that said interest is attached.
A copy of said writ of attachment and of said notice shall also
be filed in the office of the clerk of the court in which said
estate is being settled and served upon the heir, legatee or
devisee concerned.
Q: Can a property which is in custodia legis be attached?
A: Yes.
If the property sought to be attached is in custodia legis, a copy
of the writ of attachment shall be filed with the proper court or
quasi-judicial agency, and notice of the attachment served
upon the custodian of such property.
Example: Property which is already under writ of replevin can
be attached.
-However, if the property is under writ of attachment can't be
the subject of writ of replevin because in writ of replevin you
have to take the property while in writ of attachment it can be
effected by mere notice.
PNB vs. PABALAN
The reliance of petitioner Philippine National Bank in this
certiorari and prohibition proceeding against respondent Judge
Javier Pabalan who issued a writ of execution, followed
thereafter by a notice of garnishment of the funds of
respondent Philippine Virginia Tobacco Administration,
deposited with it, is on the fundamental constitutional law
doctrine of non-suability of a state, it being alleged that such
funds are public in character.
This petition must be dismissed.
Petitioner Philippine National Bank would invoke the doctrine
of non-suability. If the funds appertained to one of the regular
departments or offices in the government, then, certainly, such
a provision would be a bar to garnishment. Such is not the
case here. Garnishment would lie. Only last January, as noted
in the opening paragraph of this decision, this Court, in a case
brought by the same petitioner precisely invoking such a
doctrine, left no doubt that the funds of public corporations
could properly be made the object of a notice of garnishment.
Accordingly, this petition must fail.
The alleged grave abuse of discretion, the basis of this
certiorari proceeding, was sought to be justified on the failure
of respondent Judge to set aside the notice of garnishment of
funds belonging to respondent Philippine Virginia Tobacco
Administration. National Shipyard and Steel Corporation v.
Court of Industrial Relations is squarely in point. "The
allegation to the effect that the funds of the NASSCO are
public funds of the government, and that, as such, the
same may not be garnished, attached or levied upon, is
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
untenable for, as a government owned and controlled
corporation, the NASSCO has a personality of its own.
distinct and separate from that of the Government. To
repeat, the ruling was the appropriate remedy for the
prevailing party which could proceed against the funds of
a corporate entity even if owned or controlled by the
government.
2. By engaging in a particular business thru the
instrumentality of a corporation, the government divests itself
pro hac vice of its sovereign character, so as to render the
corporation subject to the rules of law governing private
corporations.
MUNICIPALITY OF SAN MIGUEL vs. FERNANDEZ
Hence, the present petition on the issue whether the funds of
the Municipality of San Miguel, Bulacan, in the hands of the
provincial and municipal treasurers of Bulacan and San Miguel,
respectively, are public funds which are exempt from execution
for the satisfaction of the money judgment in Civil Case No.
604-B.
Well settled is the rule that public funds are not subject to levy
and execution. The reason for this was explained in the case of
Municipality of Paoay vs. Manaois, 86 Phil. 629 "that they are
held in trust for the people, intended and used for the
accomplishment of the purposes for which municipal
corporations are created, and that to subject said properties
and public funds to execution would materially impede, even
defeat and in some instances destroy said purpose." And, in
Tantoco vs. Municipal Council of Iloilo, 49 Phil. 52, it was held
that "it is the settled doctrine of the law that not only the public
property but also the taxes and public revenues of such
corporations Cannot be seized under execution against them,
either in the treasury or when in transit to it. Judgments
rendered for taxes, and the proceeds of such judgments in the
hands of officers of the law, are not subject to execution unless
so declared by statute." Thus, it is clear that all the funds of
petitioner municipality in the possession of the Municipal
Treasurer of San Miguel, as well as those in the possession of
the Provincial Treasurer of Bulacan, are also public funds and
as such they are exempt from execution.
Besides, Presidential Decree No. 477, known as "The Decree
on Local Fiscal Administration", Section 2 (a), provides:
SEC. 2. Fundamental Principles. — Local government
financial affairs, transactions, and operations shall be governed
by the fundamental principles set forth hereunder:
(a) No money shall be paid out of the treasury except in
pursuance of a lawful appropriation or other specific statutory
authority.
Otherwise stated, there must be a corresponding
appropriation in the form of an ordinance duly passed by
the Sangguniang Bayan before any money of the
municipality may be paid out. In the case at bar, it has not
been shown that the Sangguniang Bayan has passed an
ordinance to this effect.
Furthermore, Section 15, Rule 39 of the New Rules of Court,
outlines the procedure for the enforcement of money judgment:
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(a) By levying on all the property of the debtor, whether
real or personal, not otherwise exempt from execution, or only
on such part of the property as is sufficient to satisfy the
judgment and accruing cost, if he has more than sufficient
property for the purpose;
(b) By selling the property levied upon;
(c) By paying the judgment-creditor so much of the
proceeds as will satisfy the judgment and accruing costs; and
(d) By delivering to the judgment-debtor the excess, if
any, unless otherwise, directed by judgment or order of the
court.
The foregoing has not been followed in the case at bar.
Section 8. Effect of attachment of debts, credits and all
other similar personal property. — All persons having in their
possession or under their control any credits or other similar
personal property belonging to the party against whom
attachment is issued, or owing any debts to him, at the time of
service upon them of the copy of the writ of attachment and
notice as provided in the last preceding section, shall be liable
to the applicant for the amount of such credits, debts or other
similar personal property, until the attachment is discharged, or
any judgment recovered by him is satisfied, unless such
property is delivered or transferred, or such debts are paid, to
the clerk, sheriff, or other proper officer of the court issuing the
attachment.
-If what is attached is debts, credit, bank deposits there will be
FORCE NOVATION.
Section 9. Effect of attachment of interests in property
belonging to the estate of a decedent. — The attachment of
the interest of an heir, legatee, or devisee in the property
belonging to the estate of a decedent shall not impair the
powers of the executor, administrator, or other personal
representative of the decedent over such property for the
purpose of administration. Such personal representative,
however, shall report the attachment to the court when any
petition for distribution is filed, and in the order made upon
such petition, distribution may be awarded to such heir, legatee
or devisee, but the property attached shall be ordered
delivered to the sheriff making the levy, subject to the claim of
such heir, legatee, or devisee, or any person claiming under
him.
Section 10. Examination of party whose property is
attached and persons indebted to him or controlling his
property; delivery of property to sheriff. — Any person owing
debts to the party whose property is attached or having in his
possession or under his control any credit or other personal
property belonging to such party, may be required to attend
before the court in which the action is pending, or before a
commissioner appointed by the court, and be examined on
oath respecting the same. The party whose property is
attached may also be required to attend for the purpose of
giving information respecting his property, and may be
examined on oath. The court may, after such examination,
order personal property capable of manual delivery belonging
to him, in the possession of the person so required to attend
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
before the court, to be delivered to the clerk of the court or
sheriff on such terms as may be just, having reference to any
lien thereon or claim against the same, to await the judgment
in the action.
-This refers to examination of the people who are indebted to
the defendant.
Section 11. When attached property may be sold after
levy on attachment and before entry of judgment. — Whenever
it shall be made to appear to the court in which the action is
pending, upon hearing with notice to both parties, that the
property attached is perishable, or that the interests of all the
parties to the action will be subserved by the sale thereof, the
court may order such property to be sold at public auction in
such manner as it may direct, and the proceeds of such sale to
be deposited in court to abide the judgment in the action.
-As a rule, the attached property shall not be disposed until the
termination of the case. It will just be placed under the custody
of the court.
-Section 11 is an exception.
Section 12. Discharge of attachment upon giving
counter-bond. — After a writ of attachment has been enforced,
the party whose property has been attached, or the person
appearing on his behalf, may move for the discharge of the
attachment wholly or in part on the security given. The court
shall, after due notice and hearing, order the discharge of the
attachment if the movant makes a cash deposit, or files a
counter-bond executed to the attaching party with the clerk of
the court where the application is made, in an amount equal to
that fixed by the court in the order of attachment, exclusive of
costs. But if the attachment is sought to be discharged with
respect to a particular property, the counter-bond shall be
equal to the value of that property as determined by the court.
In either case, the cash deposit or the counter-bond shall
secure the payment of any judgment that the attaching party
may recover in the action. A notice of the deposit shall
forthwith be served on the attaching party. Upon the discharge
of an attachment in accordance with the provisions of this
section, the property attached, or the proceeds of any sale
thereof, shall be delivered to the party making the deposit or
giving the counter-bond, or to the person appearing on his
behalf, the deposit or counter-bond aforesaid standing in place
of the property so released. Should such counter-bond for any
reason be found to be or become insufficient, and the party
furnishing the same fail to file an additional counter-bond, the
attaching party may apply for a new order of attachment.
-The order as well as the writ of attachment can be issued ex-
parte. However, when the adverse party wants the same to be
lifted, the court cannot set aside the writ of attachment without
hearing. There must be a notice and hearing.
-Defendant must necessarily file a motion for the discharge or
setting aside of the preliminary attachment.
-Remember the grounds for setting aside the attachment.
-The making of cash deposit will not automatically set aside the
preliminary attachment. After making cash deposit, the
defendant has to file a motion to set aside the attachment.
Section 13. Discharge of attachment on other grounds.
— The party whose property has been ordered attached may
file a motion with the court in which he action is pending,
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before or after levy or even after the release of the attached
property, for an order to set aside or discharge the attachment
on the ground that the same was improperly or irregularly
issued or enforced, or that the bond is insufficient. If the
attachment is excessive, the discharge shall be limited to the
excess. If the motion be made on affidavits on the part of the
movant but not otherwise, the attaching party may oppose the
motion by counter-affidavits or other evidence in addition to
that on which the attachment was made. After due notice and
hearing, the court shall order the setting aside or the
corresponding discharge of the attachment if it appears that it
was improperly or irregularly issued or enforced, or that the
bond is insufficient, or that the attachment is excessive, and
the defect is not cured forthwith.
Other grounds for discharing attachment.
-Irregularly issued- when it is not issued based on the grounds
set forth in Sec. 1
-Irregulary enforced- issued ex parte but when it is enforced
there was no service of summons.
-Bond is insufficient- the court fixed a certain amount but the
plaintiff did not post the amount
Section 14. Proceedings where property claimed by third
person. — If the property attached is claimed by any person
other than the party against whom attachment had been issued
or his agent, and such person makes an affidavit of his title
thereto, or right to the possession thereof, stating the grounds
of such right or title, and serves such affidavit upon the sheriff
while the latter has possession of the attached property, and a
copy thereof upon the attaching party, the sheriff shall not be
bound to keep the property under attachment, unless the
attaching party or his agent, on demand of the sheriff, shall file
a bond approved by the court to indemnify the third-party
claimant in a sum not less than the value of the property levied
upon. In case of disagreement as to such value, the same shall
be decided by the court issuing the writ of attachment. No
claim for damages for the taking or keeping of the property
may be enforced against the bond unless the action therefor is
filed within one hundred twenty (120) days from the date of the
filing of the bond.
The sheriff shall not be liable for damages for the taking or
keeping of such property to any such third-party claimant, if
such bond shall be filed. Nothing herein contained shall
prevent such claimant or any third person from vindicating his
claim to the property, or prevent the attaching party from
claiming damages against a third-party claimant who filed a
frivolous or plainly spurious claim, in the same or a separate
action.
When the writ of attachment is issued in favor of the Republic
of the Philippines, or any officer duly representing it, the filing
of such bond shall not be required, and in case the sheriff is
sued for damages as a result of the attachment, he shall be
represented by the Solicitor General, and if held liable therefor,
the actual damages adjudged by the court shall be paid by the
National Treasurer out of the funds to be appropriated for the
purpose.
-This is TERCERIA. He must make an affidavit stating the
circumstances of his ownership.
-The moment the third party claimant executes an affidavit and
furnished it to the sheriff, then the sheriff is not anymore bound
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
to keep the property unless the plaintiff will put up another
bond- that would answer to whatever damages the third party
claimant may suffer.
REMEDY: Aside from executing an affidavit, the third party
claimant can also enforce his right over the property by filing a
separate action or file a motion to intervene- because he
has interest in the property that is attached.
-When he files a separate case, he can ask the court for
preliminary injunction and that cannot be considered as
interfence because it is sanction by the rules of court.
-Also, considering that the property is own by a third person
who is not a party to the case, then it is not included in the
order of the court because the order of the court is to attach
properties owned by the defendant, not by third person.
REMEDY: Invoke the supervisory power of the court. So he
can file a motion to determine the propriety of the act of the
sheriff in attaching his property or to determine whether the
sheriff acted correctly in attaching his property.
CHING vs CA, G.R. No. 124642. February 23, 2004
We agree with the petitioners that the petitioner-wife had the
right to file the said motion, although she was not a party in
Civil Case No. 142729.
In Ong v. Tating, we held that the sheriff may attach only those
properties of the defendant against whom a writ of attachment
has been issued by the court. When the sheriff erroneously
levies on attachment and seizes the property of a third person
in which the said defendant holds no right or interest, the
superior authority of the court which has authorized the
execution may be invoked by the aggrieved third person in the
same case. Upon application of the third person, the court shall
order a summary hearing for the purpose of determining
whether the sheriff has acted rightly or wrongly in the
performance of his duties in the execution of the writ of
attachment, more specifically if he has indeed levied on
attachment and taken hold of property not belonging to the
plaintiff. If so, the court may then order the sheriff to release
the property from the erroneous levy and to return the same to
the third person. In resolving the motion of the third party, the
court does not and cannot pass upon the question of the title to
the property with any character of finality. It can treat the
matter only insofar as may be necessary to decide if the sheriff
has acted correctly or not. If the claimants proof does not
persuade the court of the validity of the title, or right of
possession thereto, the claim will be denied by the court. The
aggrieved third party may also avail himself of the remedy of
terceria by executing an affidavit of his title or right of
possession over the property levied on attachment and serving
the same to the office making the levy and the adverse party.
Such party may also file an action to nullify the levy with
damages resulting from the unlawful levy and seizure, which
should be a totally separate and distinct action from the former
case. The above-mentioned remedies are cumulative and any
one of them may be resorted to by one third-party claimant
without availing of the other remedies.
In this case, the petitioner-wife filed her motion to set
aside the levy on attachment of the 100,000 shares of
stocks in the name of petitioner-husband claiming that the
said shares of stocks were conjugal in nature; hence, not
liable for the account of her husband under his continuing
guaranty and suretyship agreement with the PBMCI. The
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petitioner-wife had the right to file the motion for said
relief.
Suppose the claim of the third party claimant is ficititious and
he was just used by the defendant to defeat the preliminary
attachment?
-He can file for damages against the false claimant either in the
same case or different case.
Section 15. Satisfaction of judgment out of property
attached, return of sheriff. — If judgment be recovered by the
attaching party and execution issue thereon, the sheriff may
cause the judgment to be satisfied out of the property attached,
if it be sufficient for that purpose in the following manner:
(a) By paying to the judgment obligee the proceeds of all
sales of perishable or other property sold in pursuance of the
order of the court, or so much as shall be necessary to satisfy
the judgment;
(b) If any balance remains due, by selling so much of the
property, real or personal, as may be necessary to satisfy the
balance, if enough for that purpose remain in the sheriff's
hands, or in those the clerk of the court;
(c) By collecting from all persons having in their
possession credits belonging to the judgment obligor, or owing
debts to the latter at the time of the attachment of such credits
or debts, the amount of such credits and debts as determined
by the court in the action, and stated in the judgment, and
paying the proceeds of such collection over to the judgment
obligee.
The sheriff shall forthwith make a return in writing to the court
of his proceedings under this section and furnish the parties
with copies thereof.
Q: What is the purpose of attachment?
A: To serve as security for any judgment in favor of the
plaintiff.
Section 16. Balance due collected upon an execution;
excess delivered to judgment obligor. — If after realizing upon
all the property attached, including the proceeds of any debts
or credits collected, and applying the proceeds to the
satisfaction of the judgment less the expenses of proceedings
upon the judgment any balance shall remain due, the sheriff
must proceed to collect such balance as upon ordinary
execution. Whenever the judgment shall have been paid, the
sheriff, upon reasonable demand, must return to the judgment
obligor the attached property remaining in his hands, and any
proceeds of the sale of the property attached not applied to the
judgment.
-Any surplus should be returned to the defendant.
Section 17. Recovery upon the counter-bond. — When
the judgment has become executory, the surety or sureties on
any counter-bond given pursuant to the provisions of this Rule
to secure the payment of the judgment shall become charged
on such counter-bond and bound to pay the judgment obligee
upon demand the amount due under the judgment, which
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amount may be recovered from such surety or sureties after
notice and summary hearing in the same action.
-If the attachment was set aside or discharge because the
defendant put up a counterbond, now the plaintiff wins the
case. How to satisfy if the defendant has no money?
Ans: Plaintiff can run after the counterbond.
Section 18. Disposition of money deposited. — Where
the party against whom attachment had been issued has
deposited money instead of giving counter-bond, it shall be
applied under the direction of the court to the satisfaction of
any judgment rendered in favor of the attaching party, and after
satisfying the judgment the balance shall be refunded to the
depositor or his assignee. If the judgment is in favor of the
party against whom attachment was issued, the whole sum
deposited must be refunded to him or his assignee.
-One of the grounds for the discharge of preliminary
attachment is by putting up cash deposit.
-If there's judgment and the defendant can't satisfy, then the
cash deposit shall be satisified.
Section 19. Disposition of attached property where
judgment is for party against whom attachment was issued. —
If judgment be rendered against the attaching party, all the
proceeds of sales and money collected or received by the
sheriff, under the order of attachment, and all property
attached remaining in any such officer's hands, shall be
delivered to the party against whom attachment was issued,
and the order of attachment discharged.
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.
If the judgment of the appellate court be favorable to the party
against whom the attachment was issued he must claim
damages sustained during the pendency of the appeal by filing
an application in the appellate court, with notice to the party in
whose favor the attachment was issued or his surety or
sureties, before the judgment of the appellate court becomes
executory. The appellate court may allow the application to be
heard and decided by the trial court.
Nothing herein contained shall prevent the party against whom
the attachment was issued from recovering in the same action
the damages awarded to him from any property of the
attaching party not exempt from execution should the bond or
deposit given by the latter be insufficient or fail to fully satisfy
the award.
EFFECT: If judgment is rendered against the attaching party-
The writ of preliminary attachment shall be discharged and if
the defendant suffered damages because of the issuance of
preliminary attachment, he may file a motion in the same court
and claim damages against the attachment bond.
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Q: What if the trial court rendered decision in favor of the
plaintiff but on appeal it was reversed?
A: The defendant can claim for damages with the appellate
court.
The claim for damages against the plaintiff cannot be a subject
of separate action, but it should be by a mere motion in the
same case except where the principal case was dismissed
because for lack of jurisidiction or where the damages by
reason of attachment was sustained by a third person who was
not a party to the action.
SANTOS vs CA G.R. No. L-6436. June 30, 1954
The rule that recovery of damages are sought not because the
writ of attachment was illegally or wrongful issued by the court,
but because said writ was caused to be levied upon the
property of the plaintiff which was not a party in the case where
the attachment was issued.
The respondent has never claimed that the writ of attachment
was wrongfully issued in Civil Case No. 241, it appears that the
latter case was dismissed for lack of jurisdiction, and no claim
for damages could therefore properly have been presented in
said case, because the Court of First Instance of Cotabato,
thus lacking jurisdiction, was in fact prevented from rendering
any final judgment therein which could include such damages.
Avoidance of multiplicity of suite presupposes the competence
of the court in the first or earlier case.
RULE 58
Preliminary Injunction
Section 1. Preliminary injunction defined; classes. — A
preliminary injunction is an order granted at any stage of an
action or proceeding prior to the judgment or final order,
requiring a party or a court, agency or a person to refrain from
a particular act or acts. It may also require the performance of
a particular act or acts, in which case it shall be known as a
preliminary mandatory injunction.
-Another provisional remedy.
-to refrain from a particular act or acts- prohibitory
preliminary injuction
-require the performance of a particular act or acts- mandatory
preliminary injunction
PURPOSE: Either to restore or preserve the status quo.
Q: What do you mean by status quo?
A: The last, actual, peaceful and uncontested situation.
-Considering that this is preliminary, therefore this is
temporary.
-Ancillary remedy: can't exist alone. There must be a main
case and the main case could be injunction. i.e Injunction with
preliminary injuction and prayer for issuance of temporary
restraining order
Example: Mr. X is charged with attempted murder and the case
is filed in the MTC. The MTC does not have jurisdiction. You
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file to quash but it was denied. What is your remedy to prevent
the court from conducting further proceedings?
The remedy of the accused is to file a petition for
certiorari over the order denying his motion to quash. Petition
for certiorari with prayer for the issuance of the preliminary
injunction and temporary restraining order.
Bar Q: The NAWASA cut-off the water service to X residence
for non-payment of bills for 6 months. X claimed that he has
paid all the water bills as evidence by receipts. Nawasa claims
the receipts to be fake and refused to restore the water
service. As counsel for X what action will you take and why?
Answer: As counsel for X I would file specific performance with
damages and for the issuance of preliminary mandatory
injunction.
Section 2. Who may grant preliminary injunction. — A
preliminary injunction may be granted by the court where the
action or proceeding is pending. If the action or proceeding is
pending in the Court of Appeals or in the Supreme Court, it
may be issued by said court or any member thereof.
Any court can grant PI where the main case is pending.
In what case may the first level court issue PI? Ejectment
cases.
Limitations Preliminary Injunction:
 The effectivity of PI is limited only within the territorial
jurisdiction of the court that issued the order. It is not
the same with temporary protection order where the
effectivity if nationwide.
 It cannot be issued in labor cases. The court has no
jurisdiction to restrain the labor arbiter.
 The court cannot issue PI or interfere with the court of
concurrent jurisdiction. An RTC cannot another RTC
except in a third party claim.
 The court cannot issue PI restraining the Collector of
Customs even through petition for certiorari or
mandamus. The Collector of Customs has exclusive
jurisdiction to hear and determine all questions
touching on the seizure and forfeiture of dutiable
goods. (Hao vs CA 249 SCRA 35, Chua vs Villanueva
GR NO. 157591 12/16/2005)
 Courts (except Supreme Court) cannot issue PI or
TRO against national government infrastructure
projects pursuant to RA No. 8975.
But see the case of Citystate Savings Bank Inc vs Aguinaldo
GR No. 200018 4/6/2015
In this case the SC said, the RTC can issue injunctive
relief against government infrastructure projects those
undertaking by local governments considering the prohibition
under section 3 of RA No. 8975 only mentioned national
projects.
 As a rule injunction will not apply to restrained a
criminal prosecution.
Section 3. Grounds for issuance of preliminary injunction. — A
preliminary injunction may be granted when it is established:
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(a) That the applicant is entitled to the relief demanded, and
the whole or part of such relief consists in restraining the
commission or continuance of the act or acts complained of, or
in requiring the performance of an act or acts either for a
limited period or perpetually;
(b) That the commission, continuance or non-performance of
the act or acts complained of during the litigation would
probably work injustice to the applicant; or
(c) That a party, court, agency or a person is doing,
threatening, or is attempting to do, or is procuring or suffering
to be done some act or acts probably in violation of the rights
of the applicant respecting the subject of the action or
proceeding, and tending to render the judgment ineffectual.
Requisites for the issuance of PI or TRO:
1. Verified petition
2. The applicant must established that he has a right to relief or
a right to be protected and that the act against which the
injunction is sought violates such right
3. Applicant must established that there is a need to restrain
the commission on continuance of the acts complained of and
if not enjoined would work injustice to him.
4. Bond unless exempted by the court (injunction bond)
5. Threatened injury must be incapable of pecuniary estimation
Section 4. Verified application and bond for preliminary
injunction or temporary restraining order. — A preliminary
injunction or temporary restraining order may be granted only
when:
(a) The application in the action or proceeding is verified, and
shows facts entitling the applicant to the relief demanded; and
(b) Unless exempted by the court the applicant files with the
court where the action or proceeding is pending, a bond
executed to the party or person enjoined, in an amount to be
fixed by the court, to the effect that the applicant will pay to
such party or person all damages which he may sustain by
reason of the injunction or temporary restraining order if the
court should finally decide that the applicant was not entitled
thereto. Upon approval of the requisite bond, a writ of
preliminary injunction shall be issued. (4a)
(c) When an application for a writ of preliminary injunction or a
temporary restraining order is included in a complaint or any
initiatory pleading, the case, if filed in a multiple-sala court,
shall be raffled only after notice to and in the presence of the
adverse party or the person to be enjoined. In any event, such
notice shall be preceded, or contemporaneously accompanied,
by service of summons, together with a copy of the complaint
or initiatory pleading and the applicant's affidavit and bond,
upon the adverse party in the Philippines.
However, where the summons could not be served personally
or by substituted service despite diligent efforts, or the adverse
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party is a resident of the Philippines temporarily absent
therefrom or is a nonresident thereof, the requirement of prior
or contemporaneous service of summons shall not apply.
(d) The application for a temporary restraining order shall
thereafter be acted upon only after all parties are heard in a
summary hearing which shall be conducted within twenty-four
(24) hours after the sheriff's return of service and/or the
records are received by the branch selected by raffle and to
which the records shall be transmitted immediately.
So as a rule the issuance of PI or TRO requires notice and
hearing. Unlike preliminary attachment can be issued ex parte.
TRO is an order to maintain the status quo between the parties
until the determination of the prayer for preliminary injunction.
PI takes long to be issued so you avail TRO first.
Example: You were denied in your enrolment without any
reason. Then tomorrow is the last day to enroll. So that’s why
you need a TRO kay “dinalian”.
Distinction between status quo order issued by the Sc from
TRO:
Status Quo Order by the SC TRO
Not prayed for by any of the It is prayed by any parties.
parties to the case. It is The court cannot issue TRO
initiative of the SC. without such prayer.
Based on equitable grounds Based on gounds, as stated
(Is it fair? Is it just?) by the Rules of Court?
More on cease and desist Direct the doing or undong of
order and it does not direct an act.
the doing and not doing of an
act.
Does not require posting of a Requires the posting of a
bond. bond unless exempt.
Section 5. Preliminary injunction not granted without notice;
exception. — No preliminary injunction shall be granted without
hearing and prior notice to the party or person sought to be
enjoined. If it shall appear from facts shown by affidavits or by
the verified application that great or irreparable injury would
result to the applicant before the matter can be heard on
notice, the court to which the application for preliminary
injunction was made, may issue a temporary restraining order
to be effective only for a period of twenty (20) days from
service on the party or person sought to be enjoined, except as
herein provided. Within the said twenty-day period, the court
must order said party or person to show cause, at a specified
time and place, why the injunction should not be granted,
determine within the same period whether or not the
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preliminary injunction shall be granted, and accordingly issue
the corresponding order. (Bar Matter No. 803, 17 February
1998)
Irreparable injury means not susceptible of mathematical
computation. It is incapable of pecuniary estimation. It cannot
be quantified.
The 20 days cannot be extended. If the court would not issue
PI, then the TRO would automatically ceased after the lapse of
20 days. But if the court will issue PI within 20 days, the acts
prohibited to be committed the defendant should not commit
the act that is prohibited by the court.
Sec. 5. Preliminary injunction not granted without notice;
exception.
No preliminary injunction shall be granted without hearing and
prior notice to the party or person sought to be enjoined. If it
shall appear from facts shown by affidavits or by the verified
application that great or irreparable injury would result to the
applicant before the matter can be heard on notice, the court to
which the application for preliminary injunction was made, may
issue ex parte a temporary restraining order to be effective
only for a period of twenty (20) days from service on the party
or person sought to be enjoined, except as herein
provided.
- If the Temporary Restraining Order is issued, the
defendant should not done any act prohibited by the
TRO
Q: what is the reckoning date for the counting of the 20
day period?
A: from service
Q: Effectivity period of the 20 day TRO?
A: it includes the non working days, except when the last day
falls on a non working day then the TRO will be effective until
the next day which is a working day.
BPI VS. CA, JUNE 8, 2006
The effectivity period of TRO is inclusive of non-working days,
including non-working days. A working day is only excluded
when the last day of TRO falls on a non-working day. In which
case, the TRO is still valid on the next working day.
Q: What are the actions of the court within the 20 day
period?
A:
Within the said twenty-day period, the court must
1. order said party or person to show cause, at a
specified time and place, why the injunction
should not be granted,
2. Determine within the same period whether or not
the preliminary injunction shall be granted, and
3. Accordingly issue the corresponding order.
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However, and subject to the provisions of the preceding
sections, if the matter is of extreme urgency and the applicant
will suffer grave injustice and irreparable injury, the executive
judge of a multiple-sala court or the presiding judge of a single-
sala court may issue ex parte a temporary restraining order
effective for only seventy-two (72) hours from issuance but he
shall immediately comply with the provisions of the next
preceding section as to service of summons and the
documents to be served therewith.
- In courts having multiple salas, the cases are required
to be raffle, but raffling of the cases is not everyday, it
is only done once a week, say every Monday for civil
cases and Friday for criminal cases.
Q: What if you filed a civil case on Wednesday, are you
going to still wait for Monday in order that your application
for TRO shall be raffled and acted upon by the court and
your case is very urgent?
A: the executive judge of a multiple-sala court or the presiding
judge of a single-sala court may issue ex parte a temporary
restraining order effective for only seventy-two (72) hours from
issuance but he shall immediately comply with the provisions
of the next preceding section as to service of summons and
the documents to be served therewith.
- 72 hours shall be reckoned from the issuance of the
TRO.
Thereafter, within the aforesaid seventy-two (72) hours, the
judge before whom the case is pending shall conduct a
summary hearing to determine whether the temporary
restraining order shall be extended until the application for
preliminary injunction can be heard.
In no case shall the total period of effectivity of the temporary
restraining order exceed twenty (20) days, including the
original seventy-two hours provided herein.
In the event that the application for preliminary injunction is
denied or not resolved within the said period, the temporary
restraining order is deemed automatically vacated.
- There was one case when a court issued a TRO good
for 30 days – after the lapse of the 20 day period the
TRO is automatically vacated because the 20 day
period is not extendible.
The effectivity of a temporary restraining order is not extendible
without need of any judicial declaration to that effect and no
court shall have authority to extend or renew the same on the
same ground for which it was issued.
Q: What is the lifetime of the TRO issued by the CA?
A: if issued by the Court of Appeals or a member thereof, the
temporary restraining order shall be effective for sixty (60) days
from service on the party or person sought to be enjoined.
Q: What is the lifetime of the TRO issued by the SC?
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A: A restraining order issued by the Supreme Court or a
member thereof shall be effective until further orders.
- It can issue TRO 120 days it depends upon the SC
Q: Who can issue TRO in the CA and SC?
A: - it can be issued by the Court en banc, division or any
member thereof in cases of extreme urgency
The trial court, the Court of Appeals, the Sandiganbayan, or
the Court of Tax Appeals that issued a writ of preliminary
injunction against a lower court, board, officer, or quasi-judicial
agency shall decide the main case or petition within six (6)
months from the issuance of the writ. (As amended by A.M.
No. 07-7-12-SC, December 12, 2007.)
- Example:
When the RTC issued a TRO against a lower court, it is only
good for 20 days supposed the RTC did not issue a PI then the
first level court should continue the proceeding of the case,
because the 20 day TRO is automatically lifted. That is what
you call ipso facto – automatically lifted after the lapse of 20
day period.
Q: What are the grounds for the denial or dissolution of an
injunction or restraining order?
A:
Sec. 6. Grounds for objection to, or for motion of dissolution of,
injunction or restraining order.
1. The application for injunction or restraining order may
be denied, upon a showing of its insufficiency.
“The application for injunction or restraining order may be
denied, upon a showing of its insufficiency.”
Meaning the allegations in the complaint, motion or affidavit is
insufficient or do not constitute of a proper ground for the
issuance of the TRO, there is nothing to restraint.
2. The injunction or restraining order may also be
denied, or, if granted, may be dissolved, on other
grounds upon affidavits of the party or person
enjoined, which may be opposed by the applicant also
by affidavits.
3. It may further be denied, or, if granted, may be
dissolved, if it appears after hearing that although the
applicant is entitled to the injunction or restraining
order, the issuance or continuance thereof, as the
case may be, would cause irreparable damage to the
party or person enjoined while the applicant can be
fully compensated for such damages as he may
suffer, and the former files a bond in an amount fixed
by the court conditioned that he will pay all damages
which the applicant may suffer by the denial or the
dissolution of the injunction or restraining order.
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4. If it appears that the extent of the preliminary
injunction or restraining order granted is too great, it
may be modified.
“Other grounds” – example is bond is insufficient or
insufficiency of the bond, or if the plaintiff did not comply with
the bond required by the court.
After the issuance of the restraining order, the defendant may
file a verified motion to dissolve the preliminary injunction or
TRO.
Sec. 7. Service of copies of bonds; effect of disapproval of
same.
The party filing a bond in accordance with the provisions of this
Rule shall forthwith serve a copy of such bond on the other
party, who may except to the sufficiency of the bond, or of the
surety or sureties thereon.
Q: What are the grounds for the dissolution of the
injunction?
A: the injunction issued by the court shall be dissolved if
the applicant’s bond is found to be:
1. insufficient in amount;
2. or if the surety or sureties thereon fail to justify, and
3. the bond sufficient in amount with sufficient sureties
approved after justification is not filed forthwith, the
injunction shall be dissolved.
Q: What are the grounds for the granting or restoration of
injunction?
A: The injunction issued by the court shall be granted or
restored if the bond filed by the adverse party is found to
be:
1. insufficient in amount, or
2. the surety or sureties thereon fail to justify a bond
sufficient in amount with sufficient sureties approved
after justification is not filed forthwith,
If the counter bond is insufficient, then the preliminary
injunction shall be restored.
Q: What is the purpose of the counter-bond?
A: To answer for whatever damages that the plaintiff or
applicants of the restraining order or preliminary Injunction may
suffer. Because the injunction order is lifted.
Q: What are the reasons for the dissolution of the
injunction order or preliminary injunction?
1. The complaint is insufficient/insufficiency of the complaint.
2. If the applicant is entitled to the injunction or restraining
order, the issuance or continuance thereof, as the case may
be, would cause irreparable damage to the party or person
enjoined while the applicant can be fully compensated.
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3. Where the bond posted by the applicant turned out to
be insufficient or defective. Be sure to remember that
the motion dissolve preliminary injunction or TRO
must be verified.
Sec 8 this is about damages that a party may suffer by reason
of the issuance of the writ of preliminary injunction.
He can file a motion in the same case to require the surety
bond to compensate him, or he can file a motion to run after
the bond of the plaintiff to compensate him of the damages he
suffered.
Sec. 8. Judgment to include damages against party and
sureties.
At the trial, the amount of damages to be awarded to either
party, upon the bond of the adverse party, shall be claimed,
ascertained, and awarded under the same procedure
prescribed in section 20 of Rule 57.
Sec. 9. When final injunction granted.
If after the trial of the action it appears that the applicant is
entitled to have the act or acts complained of permanently
enjoined, the court shall grant a final injunction perpetually
restraining the party or person enjoined from the commission
or continuance of the act or acts or confirming the preliminary
mandatory injunction.
RULE 59
RECEIVERSHIP
Q: Who is a receiver?
A: Receiver for a layman’s term – caretaker of the property
- This receivership under the rules of court is different
from receivership in the corporation code.
Q: Object of appoint of a receiver:
A: its object is the prevention of imminent danger to the
property.
Receivership can be the main case.
Q: How commence?
A: Upon a verified application, one or more receivers of the
property subject of the action or proceeding may be appointed
Q: What court can appoint a receiver?
A: one or more receivers of the property subject of the action
or proceeding may be appointed by
1. the court where the action is pending, or
2. by the Court of Appeals or
3. by the Supreme Court, or a member thereof,
Q: What are the grounds for the appointment of a
receiver?
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A: in the following cases:
(a) 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, removed, or
materially injured unless a receiver be appointed to administer
and preserve it;
- there is a property or money involve in the case that is
in danger or being lost, removed or materially injured
- The applicant must have interest in the property.
(b) 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
mortgage;
(c) 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;
- This receivership can be availed even after judgment
remember rule 39 on the execution of judgment
where there is redemption period of 1 year, it is
possible that the judgment obligor within the 1 year
period to neglect the property or destroy it, so the
judgment oblige or buyer of the auctioned property
may recourse to a receiver in order to prevent the
dissipation and injury of the property
- This can be applied even if judgment has become
final and executory, or in the execution stage. creditor
should apply for the appointment of a receiver
- Remember section 41 of rule 39
(d) 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.
During the pendency of an appeal, the appellate court may
allow an application for the appointment of a receiver to be
filed in and decided by the court of origin and the receiver
appointed to be subject to the control of said court.
- Remember the residual power of the court.
Appointment of receiver is one of the residual powers
of the court. But take note of the requirements before
the court could exercise its residual power. That is the
record of the case should not be elevated or
forwarded to the higher court.
BAR QUESTION (1995)
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In a suit for the collection of a sum of money, the plaintiff
applied for the appointment of a receiver of the defendant’s
property to assure payment of the obligation. Should the court
grant the application?
Suggested answer:
The court should deny the application. Receivership is
not available in a mere suit for collection of sum of money for
the purpose of assuring the collection of the debt. It is available
when the property or fund, that is subject of the litigation is in
danger of being lost, removed or materially injured which is not
in the case at bar. (Sec 1 rule 59, rules of court)
Q: what are the requirements for the issuance of an order
of a receiver?
A:
Sec. 2. Bond on appointment of receiver.
Before issuing the order appointing a receiver the court shall
require the applicant to
1. file a bond executed to the party against whom the
application is presented, in an amount to be fixed by
the court, to the effect that the applicant will pay such
party all damages he may sustain by reason of the
appointment of such receiver in case the applicant
shall have procured such appointment without
sufficient cause; and
2. the court may, in its discretion, at any time after the
appointment, require an additional bond as further
security for such damages.
- this is the applicant’s bond
- most of the remedies under provisional remedies
requires the posting of bond
Q: What are the grounds for denial or discharge of
application?
A: these are mentioned in Sections 3-5 of this rule
Sec. 3. Denial of application or discharge of receiver.
The application may be denied, or the receiver discharged,
when:
1. the adverse party files a bond executed to the
applicant, in an amount to be fixed by the court,
to the effect that such party will pay the applicant
all damages he may suffer by reason of the acts,
omissions, or
2. other matters specified in the application as
ground for such appointment.
3. The receiver may also be discharged if it is
shown that his appointment was obtained without
sufficient cause.
- The adverse party can oppose for the denial of the
receivership.
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- all damages the applicant may suffer from the acts,
omissions, or other matters specified in the
application as ground for such appointment.
Q: What are the requirements before a receiver can
assume his functions?
A:
Sec. 4. Oath and bond of receiver.
Before entering upon his duties,
1. the receiver shall be sworn to perform them faithfully,
and
2. shall file a bond, executed to such person and in such
sum as the court may direct, to the effect that he will
faithfully discharge his duties in the action or
proceeding and obey the orders of the court.
- The purpose of the bond of the receiver is to assure
that he would perform his duties, faithfully and
diligently, and to obey the orders of the court. It is a
security against the receiver
- If he fails to fulfill his duties, then his bond shall
answer for the damages.
There are two kinds of bonds posted here:
1. The applicants bond
2. The receivers bond
Sec. 5. Service of copies of bonds; effect of disapproval of
same.
Q:What is the duty of the person filling the bond?
A: The person filing a bond in accordance with the provisions
of this Rule shall forthwith (or immediately) serve a copy
thereof on each interested party, who may except to its
sufficiency or of the surety or sureties thereon.
Q: What are the grounds for the denial of the bond?
A:
1. If either the applicant’s or the receiver’s bond is found
to be insufficient in amount, or
2. if the surety or sureties thereon fail to justify, and a
bond sufficient in amount with sufficient sureties
approved after justification is not filed forthwith, the
application shall be denied or the receiver discharged,
as the case may be.
3. If the bond of the adverse party is found to be
insufficient in amount or the surety or sureties thereon
fail to justify, and a bond sufficient in amount with
sufficient sureties approved after justification is not
filed forthwith, the receiver shall be appointed or
reappointed, as the case may be.
Page 168
 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos

Q: What are the powers of a general receiver?
A:
Sec. 6. General powers of receiver.
Subject to the control of the court in which the action or
proceeding is pending, a receiver shall have the power
1. to bring and defend, in such capacity, actions in his
own name;
2. to take and keep possession of the property in
controversy;
3. to receive rents;
4. to collect debts due to himself as receiver or to the
fund, property, estate, person, or corporation of which
he is the receiver ;
5. to compound for and compromise the same;
6. to make transfers;
7. to pay outstanding debts;
8. to divide the money and other property that shall
remain among the persons legally entitled to receive
the same; and
9. Generally to do such acts respecting the property as
the court may authorize.
10. However, funds in the hands of a receiver may be
invested only by order of the court upon the written
consent of all the parties to the action.
exists, it shall, after due notice to all interested parties and
hearing,
1. settle the accounts of the receiver,
2. direct the delivery of the funds and other property in
his possession to the person adjudged to be entitled
to receive them, and
3. order the discharge of the receiver from further duty
as such.
Q: What are the entitlements of a receiver after
termination?
A:
The court shall allow the receiver such reasonable
compensation as the circumstances of the case warrant, to be
taxed as costs against the defeated party, or apportioned, as
justice requires.
Sec. 9. Judgment to include recovery against sureties.
Q: How to recover against the sureties?
A:
The amount, if any, to be awarded to any party upon any bond
filed in accordance with the provisions of this Rule, shall be
claimed, ascertained, and granted under the same procedure
prescribed in section 20 of Rule 57.

SUITS AGAINST A RECEIVER: -oOo-

September 5, 2016
- No action may be filed by or against a receiver
without leave of the court which appointed him. [Judge D discussing answers to Midterms]

Sec. 7. Liability for refusal or neglect to deliver property to 1. What is an action Quasi in Rem
receiver. It is an action directed against a particular person but seeks
the sale of defendant’s property or subjects the same to lien or
Q: What are the liabilities of a person who refuse to deliver encumbrance.
the property to the receiver?
2. Is motion for reconsideration allowed in Rules of
A: A person who refuses or neglects, upon reasonable Procedure for Small Claim cases?
demand, to deliver to the receiver all the property, money,
No. It is prohibited motion.
books, deeds, notes, bills, documents and papers within his
power or control, subject of or involved in the action or Is appeal under said rules allowed?
proceeding, or in case of disagreement, as determined and
ordered by the court, may be No. The decision in small claim cases is final and
unappealable.
1. punished for contempt and 3. What is the effect if joinder of parties is not allowed and
2. shall be liable to the receiver for the money or the thus affecting jurisdictional amount?
value of the property and other things so refused or
neglected to be surrendered, The case could be dismissed for lack of jurisdiction over the
3. together with all damages that may have been subject matter
sustained by the party or parties entitled thereto as a 4. What are the remedies to lift or discharge the writ of
consequence of such refusal or neglect. preliminary attachment?
Sec. 8. Termination of receivership; compensation of receiver. a. Put up cash deposit
b. Put up counter bond
Q: What are the duties and responsibilities of the court in
case of termination of receiver? c. Motion to discharge on the ground that the
writ of attachment was irregularly issued
A:
Whenever the court, motu proprio or on motion of either party, d. That bond is insufficient
shall determine that the necessity for a receiver no longer e. Attachment was excessive

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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos

5. If the complaint is coupled with prayer for issuance of -- oOo --

Provisional Remedy, does it need to go through
Katarungang Pambarangay? RULE 60 – REPLEVIN
[Recovery of possession of personal property]
No. It is part of the exception to the general rule that all
complaints must go through the Katarungang Pambarangay The main action could be Replevin with prayer for the
issuance of WRIT OF REPLEVIN.
6. Suppose the RTC will render decision, what mode of
appeal and court will you file the same if the same SEC. 1
involves pure questions of law? Application
The mode of appeal is Petition for Review on Certiorari under A party praying for the recovery of possession of
Rule 45 filed before the Supreme Court. personal property may, [WHEN AVAILED?] at the
commencement of the action or at any time before answer,
TAKE NOTE: Petition for Review on Certiorari shall only be apply for an order for the delivery of such property to him, in
filed in the Supreme Court. the manner hereinafter provided
 Prayer asked from the court for property to be taken
7. Q: What is the remedy of the plaintiff after the Supreme while the case is pending.
Court has resolved the appeal, which has already become  Ordinarily availed by Appliance, Car, or Motorcycle
final and executor. But the defendant still refused to dealers.
comply with the decision?
REMEDY: File a MOTION FOR EXECUTION with the court a TN!
quo (court of origin) IF PRELIMINARY ATTACHEMENT: Any time before
judgment.
TAKE NOTE: Motion to direct the lower court to issue writ of IF RECEIVERSHIP: anytime even after judgment (final and
execution, if there is an appeal. executory). Take note in receivership, there is property or
money that needs to be preserved.
8. Q: Demurrer to Evidence.
Difference between Replevin and Preliminary Attachment
A: This is a Motion to Dismiss. If the trial court will grant the PRELIMINARY
Demurrer to Evidence as a consequence the case is REPLEVIN
ATTACHMENT
dismissed. If the appellate court will reverse the order granting As to purpose
the demurrer to evidence, the trial court shall render decision To have the property put in the
based on evidence on record and the defendant is considered custody of the court to secure
to have deemed waived his right to present evidence. To recover personal property
the satisfaction of the judgment
capable of manual delivery
that may be rendered in favor
9. Q: What are the grounds for Motion for New Trial? from the defendant
of the plaintiff at some future
A: FAME and Newly discovered evidence. If based on fraud it time
must be based on extrinsic fraud. This is a kind of fraud that As to subject property
prevented a party from participating in the trail or proceedings The property either belongs
The property does not belong
or was not able to present his evidence fully- such as his to the plaintiff or one over
to the plaintiff but to the
lawyer was bought. which the plaintiff has a right
defendant
of possession
10. Q: What is the remedy if the lawyer failed to file his notice Nature of principal action
of appeal because of heart attack? Notice of appeal has May be sought only when
been filed out of time. Available even if recovery is
the principal action is for the
only incidental to the relief
recovery of personal
REMEDY: PETITION FROM RELIEF OF ORDER denying the sought
property
appeal on the ground of accident.
Possession of subject property
Q: how should the defendant deny the allegations in the Can be sought only when
May be resorted to even if the
complaint? defendant is in actual or
property is in possession of a
constructive possession of
third person
A: the property
Note: Judge D – give at least 2 distinctions.
1. Specific denial + state the facts (truth) according
to him. SEC. 2
Affidavit and bond
2. If actionable document = Specific denial the The applicant must show by his own affidavit or that
genuineness and due execution + state the truth of some other person who personally knows the facts:
of the matter + under oath. a) That the applicant is the owner of the property
claimed, particularly describing it, or is entitled to
Take note: The allegation of lack of knowledge must be used in the possession thereof;
good faith. [Judge D: Not necessary that applicant be the owner,
right to possession is enough]

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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
“The provisional remedy of replevin is in the
nature of a possessory action and the applicant who
seeks immediate possession of the property involved
need not be holder of the legal title to the property. It
suffices, if at the time he applied for a writ of replevin,
he is, in the words of Section 2, rule 60, “entitled to
the possession thereof” [Yang vs. Valdes 177 SCRA
141]
b) 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 ;
c) 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
[Judge D: a property that is already under writ of
attachment could no longer be under a writ of
replevin]
d) The actual market value of the property.
The applicant must also give a bond, executed to the adverse
party in double the value of the property as stated in the
affidavit aforementioned, for the return of the property to the
adverse party if such return be adjudged, and for the payment
to the adverse party of such sum as he may recover from the
applicant in the action.
--
The value of the property is the basis for the bond
Amount of the bond is double the value of the property as
stated in the complaint.
--- oOo ---
SEC. 3
Order
Upon the filing of such affidavit and approval of the
bond, the court shall issue an order and the corresponding writ
of replevin, describing the personal property alleged to be
wrongfully detained and requiring the sheriff forthwith to take
such property into his custody
--
Writ of replevin can be served anywhere in the Philippines,
unlike in preliminary injunctions where the order could only be
served within the territorial jurisdiction of the court. [Fernandez
v. International Corporate Bank October 7, 1999]
SEC. 4
Duty of the sheriff
Upon receiving such order, the sheriff must serve a
copy thereof on the adverse party, together with a copy of the
application, affidavit and bond, and must forthwith take the
property, if it be in the possession of the adverse party, or his
agent, and retain it in his custody. If the property or any part
thereof be concealed in a building or enclosure, the sheriff
must demand its delivery, and if it be not delivered, he must
cause the building or enclosure to be broken open and take the
property into his possession. After the sheriff has taken
possession of the property as herein provided, he must keep it
in a secure place and shall be responsible for its delivery to the
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
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party entitled thereto upon receiving his fees and necessary
expenses for taking and keeping the same.
--
Sheriff must deliver it to the plaintiff within 5 days from taking.
For whatever reason, if the sheriff fails to deliver within 5 days
to the plaintiff, he should return the property to the defendant.
SEC. 5
Return of property
[Remedy of defendant whose property is subjected to
replevin]
If the adverse party objects to the sufficiency of the
applicant's bond, or of the surety or sureties thereon, he cannot
immediately require the return of the property, but if he does
not so object, he may, at any time before the delivery of the
property to the applicant, require the return thereof, by filing
with the court where the action is pending a bond executed to
the applicant, in double the value of the property as stated in
the applicant's affidavit for the delivery thereof to the applicant,
if such delivery be adjudged, and for the payment of such sum,
to him as may be recovered against the adverse party, and by
serving a copy of such bond on the applicant.
--
“RE-DELIVERY BOND”
[One of the remedies of the owner]
The re-delivery bond must be put-up within 5 days, serving a
copy of such bond to the applicant.
The amount of the re-delivery bond is also double the
value of the property.
Purpose of re-delivery bond:
To answer whatever damages the plaintiff will suffer
-- oOo –
SEC. 6
Disposition of property by sheriff
If within five (5) days after the taking of the property
by the sheriff, the adverse party does not object to the
sufficiency of the bond, or of the surety or sureties thereon; or
if the adverse party so objects and the court affirms its
approval of the applicant's bond or approves a new bond, or if
the adverse party requires the return of the property but his
bond is objected to and found insufficient and he does not
forthwith file an approved bond, the property shall be delivered
to the applicant. If for any reason the property is not delivered
to the applicant, the sheriff must return it to the adverse party.
When is the defendant entitled to the return of the
property subjected to writ of replevin?
1) When he put up RE-DELIVERY BOND and serve
copy of such bond to the plaintiff within 5 days
from the taking
TN!
Both requirements are mandatory and must
be complied with within 5-day period, the reckoning
point is from taking.
2) When the plaintiff’s bond is found to be
insufficient or defective
3) The property is not delivered to the plaintiff for
any reason.
Page 171
 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
---oOo--
SEC. 7
Proceedings when property claimed by third
person- If the property taken is claimed by any person other
than the party against whom the writ of replevin had been
issued or his agent, and such person makes an affidavit of
his title thereto, or right to the possession thereof, stating the
grounds therefor, and serves such affidavit upon the sheriff
while the latter has possession of the property and a copy
thereof upon the applicant, the sheriff shall not be bound to
keep the property under replevin or deliver it to the applicant
unless the applicant or his agent, on demand of said sheriff,
shall file a bond approved by the court to indemnify the third-
party claimant in a sum not less than the value of the property
under replevin as provided in section 2 hereof. In case of
disagreement as to such value, the court shall determine the
same. No claim for damages for the taking or keeping, of the
property may be enforced against the bond unless the action
therefor is filed within one hundred twenty (120) days from the
date of the filing of the bond.
The sheriff shall not be liable for damages, for the taking or
keeping of such property, to any such third-party claimant if
such bond shall be filed. Nothing herein contained shall
prevent such claimant or any third person from vindicating his
claim to the property, or prevent the applicant from claiming
damages against a third-party claimant who filed a frivolous or
plainly spurious claim, in the same or a separate action.
When the writ of replevin is issued in favor of the Republic of
the Philippines, or any officer duly representing it, the filing of
such bond shall not be required, and in case the sheriff is sued
for damages as a result of the replevin, he shall be
represented by the Solicitor General, and if held liable therefor,
the actual damages adjudged by the court shall be paid by the
National Treasurer out of the funds to be appropriated for the
purpose.
- Application
Remedies of a third person claiming ownership:
Execute terceria
[Judge D: See discussion on preliminary attachment, it’s the
same remedies to third person]
SEC. 8
Return of Papers
The sheriff must file the order, with his proceedings
indorsed, thereon, with the court within ten (10) days after
taking the property mentioned therein.
SEC.9
Judgment
After trial of the issues the court shall determine who
has the right of possession to and the value of the property and
shall render judgment in the alternative for the delivery thereof
to the party entitled to the same, or for its value in case
delivery cannot be made, and also for such damages as either
party may prove, with costs.
SEC. 10
Judgment to include recovery against sureties
The amount, if any, to be awarded to any party upon
any bond filed in accordance with the provisions of this Rule,
shall be claimed, ascertained, and granted under the same
procedure as prescribed in section 20 of Rule 57.
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--oOo--
RULE 61
SUPPORT PENDENTE LITE
 The main action here could be support.
For example:
A wife left by her husband for another woman but
the problem is, he totally abandoned the first family
where he had 5 children, what is the remedy of the
wife?
She could file under VAWC or under RA 7610 or file
an action for support based on the Family Code.
But since filing and deciding cases usually takes time,
the wife upon filing her complaint must allege therein
that she is in urgent need of support and pray that the
court grant support while the case is pending- that is
what you call Support pendente lite.
 Complaint must be verified and accompanied with
affidavits.
TN!
No posting of bond required; the only remedy that
does not need a bond.
 A woman who is married is not entitled to support but
the children are entitled to support.
 The children must have been acknowledged if not,
support must be coupled with recognition.
 To prove that a child has been acknowledged, i.e., at
the back of the certificate of live birth, the father’s
signature is found.
SEC. 1
At the commencement of the proper action or
proceeding, or at any time prior to the judgment or final order,
a verified application for support pendente lite may be filed by
any party stating the grounds for the claim and the financial
conditions of both parties, and accompanied by affidavits,
depositions or other authentic documents in support thereof.
All allegations could be incorporated in the complaint just like
the other provisional remedies, or you may file a support
without prayer for support pendente lite and then later on, you
file a motion for support pendente lite. But usually, it is in the
prayer upon filing the support.
--
TN! Complaint must be verified.
SEC. 2
Comment
A copy of the application and all supporting
documents shall be served upon the adverse party, who shall
have five (5) days to comment thereon unless a different
period is fixed by the court upon his motion. The comment
shall be verified and shall be accompanied by affidavits,
depositions or other authentic documents in support thereof.
--
Adverse party is required to comment within 5 days unless
the court gives a different period.
SEC. 3
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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
Hearing
After the comment is filed, or after the expiration of
the period for its filing, the application shall be set for hearing
not more than three (3) days thereafter. The facts in issue shall
be proved in the same manner as is provided for evidence on
motions.
--
Action of the court:
If the court finds the application meritorious, the court shall
issue order directing defendant to provide provisional support.
TN!
 The court may change the amount after the trial for
support, since it is only provisional.
 There is no fixed amount of support because the
amount depends on:
1. Needs/ necessity of the applicant (food,
education, transportation)
2. Capacity of the defendant to give
 If the support is for a minor, the mother shall file the
application.
 If married, the mother will file the case on her behalf
and in behalf of their minor children.
SEC. 4
Order
The court shall determine provisionally the pertinent
facts, and shall render such orders as justice and equity may
require, having the regard to the probable outcome of the case
and such other circumstances as may aid in the proper
resolution of the question involved. If the application is granted,
the court shall fix the amount of money to be provisionally paid
or such other forms of support as should be provided, taking
into account the necessities of the applicant and the resources
or means of the adverse party, and the terms of payment or
mode for providing the support. If the application is denied, the
principal case shall be tried and decided as early as possible.
SEC. 5
Enforcement of Order
If the adverse party fails to comply with an order
granting support pendente lite, the court shall, motu proprio or
upon motion; issue an order of execution against him, without
prejudice to his liability for contempt.
When the person ordered to give support pendente
lite refuses or fails to do so, any third person who furnished
that support to the applicant may, after due notice and hearing
in the same case obtain a writ of execution to enforce his right
of reimbursement against the person ordered to provide such
support.
--
In Rule 39, in order for the decision to be executed the
prevailing party must file a motion for execution. The court
cannot motu propio issue the writ. There has to be a motion.
But in Support, the court may motu propio issue an order of
execution. This is an exception without prejudice to his liability
for contempt.
Remedy if defendants fails to comply with order of court
 Any third person who furnished that support to the
applicant may, after due notice and hearing in the
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same case obtain a writ of execution to enforce his
right of reimbursement against the person ordered to
provide such support.
 The parents of the defendant or the grandparents of
the children may furnish the support but with right of
reimbursement from the defendant.
--oOo--
SEC. 6
Support in criminal cases
In criminal actions where the civil liability includes
support for the offspring as a consequence of the crime and
the civil aspect thereof has not been waived, reserved and
instituted prior to its filing, the accused may be ordered to
provide support pendente lite to the child born to the offended
party allegedly because of the crime. The application therefor
may be filed successively by the offended party, her parents,
grandparents or guardian and the State in the corresponding
criminal case during its pendency, in accordance with the
procedure established under this Rule.
--
Especially in VAWC cases and rape cases
Support in criminal cases is not a violation of the accused
presumption of innocence as provided for in section 6 of rule
61, even if the case is still pending.
In the event, it will be found out later on, after trial, that the
plaintiff is not entitled to support, i.e., wife who abandoned the
family home.
The remedy is:
SEC. 7
Restitution
When the judgment or final order of the court finds
that the person who has been providing support pendent lite is
not liable therefor, it shall order the recipient thereof to return to
the former the amounts already paid with legal interest from
the dates of actual payment, without prejudice to the right of
the recipient to obtain reimbursement in a separate action from
the person legally obliged to give the support. Should the
recipient fail to reimburse said amounts, the person who
provided the same may likewise seek reimbursement thereof in
a separate action from the person legally obliged to give such
support.
TN!
 Decision in Support cannot be stayed on appeal.
GR: When the decision is appealed, the same cannot be
executed, except in few instances when execution
pending appeal is allowed. E.g support. Decision is
immutable-cannot be changed after it has become final
and executory.
EXC: Support cases--amount can be changed depending
upon the circumstances.
For Example:
Upon filing of the case, the husband is a janitor, he
can only give Php 3,000 for support. However, later on he
was promoted- became manager and the owner of the
company. So the amount of the support will change.
Page 173
 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos

the value of the jewelry amounted to Php 100,000. Later on,

TN! the news was spread and many people claimed the pieces of
Decision in support cases cannot be dormant. jewelry. What’s the remedy?
Decision can be executed by mere motion even after the lapse Interpleader
of 5 years.
[Canonizado vs Benitez 127 SCRA 610] SEC. 1
When interpleader proper
There are only 5 provisional remedies. Whenever conflicting claims upon the same
subject matter are or may be made against a person who
---oOo— claims no interest whatever in the subject matter, or an interest
which in whole or in part is not disputed by the claimants, he
SPECIAL CIVIL ACTIONS may bring an action against the conflicting claimants to compel
What are the different special civil actions? them to interplead and litigate their several claims among
 Interpleader themselves.
 Expropriation --
 Foreclosure of mortgage The interpleader must not claim any interest over the subject
 Contempt matter.
 Ejectment,
 Partition Court which has jurisdiction:
 Quo warranto MTC or RTC depending on the value of the property
 Declaratory relief
For example:
 Certiorari, Prohibition and Mandamus
A person who is renting an apartment and the owner died.
Here comes, three women presenting themselves as the legal
Ordinary civil actions and special civil actions are governed by
wives. There is only one wife. So the tenant has to file an
the Rules on Ordinary civil actions, but there are rules that are
action for interpleader.
applicable to a particular special civil action.
 If there is a need to deposit or deliver the money or
Special civil actions follow the rules of ordinary civil actions, in
property to the court, then it should direct that the
addition to that, there are special rules which are applicable to
subject be paid or delivered to the court while waiting
special civil actions.
for the outcome of the case.
Special civil actions commenced thru a complaint:
SEC. 2
 Interpleader
Order
 Expropriation Upon the filing of the complaint, the court shall issue
 Foreclosure an order requiring the conflicting claimants to interplead with
 Partition one another. If the interests of justice so require, the court may
 Forcible entry/unlawful detainer direct in such order that the subject matter be paid or delivered
to the court.
Special civil actions commenced thru a petition:
 Certiorari SEC. 3
 Prohibition Summons
 Mandamus Summons shall be served upon the conflicting
 Quo warranto claimants, together with a copy of the claimant and order.
 Declaratory relief.
SEC. 4
There is no substantial difference between the two, only the Motion to dismiss
title. There are SCA which are cognizable by the municipal trial Within the time for filing an answer, each claimant
court-e.g ejectment, interpleader (could also be with the RTC may file a motion to dismiss on the ground of impropriety of the
depending upon the value of the property), contempt. interpleader action or on other appropriate grounds specified in
---oOo— Rule 16. The period to file the answer shall be tolled and if
the motion is denied, the movant may file his answer within
RULE 62 the remaining period, but which shall not be less than five (5)
INTERPLEADER days in any event, reckoned from notice of denial.

Interpleader - is a special civil action filed by a person against SEC. 5

whom conflicting claims are made upon the same subject
matter/ property over which he claims no interest to compel the
claimants to enter interplead and litigate their several claims
among themselves.
For Example:
Remember before that a scavenger found a paper
bag which contains pieces of jewelry. They tried to pawn it and
Answer and other pleadings
Each claimant shall file his answer setting forth his
claim within fifteen (15) days from service of the summons
upon him, serving a copy thereof upon each of the other
conflicting claimants who may file their reply thereto as
provided by these Rules. If any claimant fails to plead within
the time herein fixed, the court may, on motion, declare him in

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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
default and thereafter render judgment barring him from any
claim in respect to the subject matter.
--
The parties in an interpleader action may file counterclaims,
cross-claims, third-party complaints and responsive pleadings
thereto, as provided by these Rules.
SEC. 6
Determination
After the pleadings of the conflicting claimants have
been filed, and pre-trial has been conducted in accordance
with the Rules, the court shall proceed to determine their
respective rights and adjudicate their several claims.
SEC. 7
Docket and other lawful fees, costs and litigation
expenses as liens
The docket and other lawful fees paid by the party
who filed a complaint under this Rule, as well as the costs and
litigation expenses, shall constitute a lien or charge upon the
subject matter of the action, unless the court shall order
otherwise.
Difference between Interpleader and Intervention
INTERPLEADER INTERVENTION
a special civil action (original an ancillary action meaning
action) it presupposes that there is
already a pending case
In intervention, the the plaintiff does not have
movant/intervenor has an any interest over the subject
interest over the case matter.
 Distinguish interpleader from a receiver- find the answer
--oOo--
RULE 63
DECLARATORY RELIEF
SEC. 1
Who may file petition
Any person interested under a deed, will, contract or
other written instrument, whose rights are affected by a statute,
executive order, or regulation, ordinance, or any other
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.
TN!
 Declaratory relief is different from cause of action.
 Declaratory Relief is different with filing a case, which
requires a cause of action.
 Normally, filing a case requires a violation of a right.
However, in DR there is no damage or violation yet
because if there is already a violation, this remedy will
not apply.
For example:
A city council would pass an ordinance that would
eliminate public utility vehicles that are more than 10 years old.
You question the validity of that ordinance because you are
operating a jeepney. So you file a petition for Declaratory
Relief.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
 It is called a declaratory relief because you want
the court to declare the validity of such law or
ordinance. You should also remember your
Constitution. Among the powers of the court is to
determine the constitutionality of the law.
 If the effect of the law is far-reaching, you can file
a certiorari and/or prohibition.
For Example: [Based on case]
All candidates are required to undergo
mandatory drug test. That was questioned. Pimentel,
father of Koko Pimentel, questioned the
constitutionality. He did not use DR to question it but
used the remedy of certiorari and/or prohibition. The
court has the power to determine whether or not any
office or instrumentality of the government has acted
with grave abuse of discretion. That is judicial power
of the Supreme Court or the constitutional certiorari.
So, if a Congress will enact a law that will
violate the Constitution, that can be questioned
through certiorari with the Supreme Court. Also the
President if he will issue a Executive Order, example
he will issue an order allowing the burial of Marcos in
Libingan Ng Mga Bayani, certiorari and/or prohibition
can also be availed of.
In other words, the validity or constitutionality
of a law can be questioned through a Declaratory
Relief, or if it has a so-called far-reaching implication
or effect, it can be brought to the Supreme Court
through a certiorari and/or prohibition or mandamus.
(Pimentel vs Comelec GR No. 161658 November 3,
2008)
Another Example:
A case, in which a DR is a proper remedy, is
the case of Orbecido. He questioned what are his
duties and rights provided by the Family Code, when
his wife became an American citizen, filed divorce
against him. So he filed an action for Declaratory
Relief to determine whether he could remarry.
(Republic vs Orbecido, October 5, 2005)
Only persons whose rights are affected can file DR.
Based on the example, as to the ordinance passed by
the city council, if a person is not an operator of a public utility
vehicle, then he does have a personality to file a case.
REQUISITES OF A PETITION FOR DECLARATORY
RELIEF: (Republic vs Orbecido)
(1) There must be a justiciable controversy;
(2) The controversy must be between persons whose
interests are adverse;
(3) That the party seeking the relief has a legal interest in
the controversy; and
(4) That the issue is ripe for judicial determination.
Declaratory Relief can also be used to question a
deed, will, contract or other written instrument, provided that
the person is interested with that deed, will, contract or written
instrument.
He must be a party to that instrument to determine what his
rights are.
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TN! The enumeration in Section 1 is exclusive.
 The decision of the court in Declaratory Relief is
merely declaratory and not executory.
 An action for the reformation of an instrument, to quiet
title to real property or remove clouds therefrom, or to
consolidate ownership under Article 1607 of the Civil
Code, may be brought under this Rule.
o Rule 63 does not only mention Declaratory
Relief. It also mentioned other reliefs such as
reformation of instrument, quieting of title,
consolidation of ownership.
TN! If there is already a violation, Declaratory Relief is not
a proper remedy but an ordinary action filed in court.
[Tolentino vs Board of Accountancy 90 Phil. 83]
Purpose of Declaratory Relief:
 To seek interpretation of instrument or for a judicial
declaration of person’s right under a statute and not
to seek an affirmative relief.
 It is not brought to settle a breached or violation.
---oOo---
SEC. 2
Parties
All persons who have or claim any interest which
would be affected by the declaration shall be made parties;
and no declaration shall, except as otherwise provided in these
Rules, prejudice the rights of persons not parties to the action.
[Judge D: In Declaratory Relief, the rule on joinder of parties
does not apply.]
SEC. 3
Notice on Solicitor General
In any action which involves the validity of a statute,
executive order or regulation, or any other governmental
regulation, the Solicitor General shall be notified by the party
assailing the same and shall be entitled to be heard upon such
question.
--
The Solicitor General needs to be notified because he is the
counsel of the government.
SEC. 4
Local government ordinances
In any action involving the validity of a local
government ordinance, the corresponding prosecutor or
attorney of the local governmental unit involved shall be
similarly notified and entitled to be heard. If such ordinance is
alleged to be unconstitutional, the Solicitor General shall also
be notified and entitled to be heard.
SEC. 5
Court action discretionary
Except in actions falling under the second paragraph
of section 1 of this Rule, the court, motu proprio or upon
motion, may refuse to exercise the power to declare rights
and to construe instruments in any case where a decision
would not terminate the uncertainty or controversy which
gave rise to the action, or in any case where the
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
declaration or construction is not necessary and proper
under the circumstances.
SEC. 6
Conversion into ordinary action
If before the final termination of the case, a breach or
violation of an instrument or a statute, executive order or
regulation, ordinance, or any other governmental regulation
should take place, the action may thereupon be converted into
an ordinary action, and the parties shall be allowed to file such
pleadings as may be necessary or proper.
--oOo--
RULE 64
REVIEW OF JUDGMENTS AND FINAL ORDERS OR
RESOLUTIONS OF THE COMMISSION ON ELECTIONS
AND THE COMMISSION ON AUDIT
[PETITION FOR CERTIORARI]
 Rule 64 is similar to Rule 65 only that the provisions
of Rule 64 are applicable only to petition for
certiorari filed before the Supreme Court against
the COMELEC and the COA.
 MODE OF REVIEW over decisions or judgments,
final orders or resolution of the COMELEC and COA
[CSC not included]
Remedy for decisions and final orders of CSC [Civil Service
Commission]
RULE 43 – appeals from the court of tax appeals and
quasi – judicial agencies to the court of appeals. “Petition for
Review”
It is filed before the Court of Appeals
SEC. 1
Scope
This Rule shall govern the review of judgments and
final orders or resolutions of the Commission on Elections and
the Commission on Audit.
--
 Not a mode of appeal but just a mode of review.
 A limited review, because what the Supreme Court
will review is that whether or not the court has acted
with grave abuse of discretion, because the findings
of facts are final.
SEC. 2
Mode of review
A judgment or final order or resolution of the
Commission on Elections and the Commission on Audit may
be brought by the aggrieved party to the Supreme Court on
certiorari under Rule 65, except as hereinafter provided.
[Judge D: This is the difference with Rule 65]
SEC. 3
Time to file petition
The petition shall be filed within thirty (30) days from
notice of the judgment or final order or resolution sought to be
reviewed. The filing of a motion for new trial or reconsideration
of said judgment or final order or resolution, if allowed under
the procedural rules of the Commission concerned, shall
interrupt the period herein fixed. If the motion is denied, the
aggrieved party may file the petition within the remaining
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period, but which shall not be less than five (5) days in any
event, reckoned from notice of denial.
--
TN!
Under RULE 65, the period in which to file the petition
is within 60 DAYS, unlike here is it is only within 30 days.
RESOLUTION vs. DECISION
 DECISION – final adjudication of the court
 RESOLUTION – when there are incidental motions in
the case, the court will resolve it through a resolution,
o Motion to dismiss – the Court will resolve it
through a resolution
[Judge D: if you are asked in the bar, decide the motion to
dismiss, do not answer I will dismiss the motion to dismiss, but
instead you answer whether you will grant it or deny it, so I
WILL DENY/GRANT the motion to dismiss]
TN! NEYPES DOCTRINE will not apply here.
It is done in order to speed up the process. Considering
that the said doctrine will further delay the proceedings, it will
not apply.
The filing of a motion for new trial or reconsideration of
said judgment or final order or resolution, if allowed under the
procedural rules of the Commission concerned, shall interrupt
the period herein fixed. If the motion is denied, the aggrieved
party may file the petition within the remaining period, but
which shall not be less than five (5) days in any event,
reckoned from notice of denial.
--
So: Instead of a fresh period, filing a Motion for New
Trial/Reconsideration, if allowed, the aggrieved party may file
the petition:
a) Within the remaining period; but
b) Shall not be less than 5 days in any event
---oOo---
SEC. 4
Docket and other lawful fees
Upon the filing of the petition, the petitioner shall pay
to the clerk of court the docket and other lawful fees and
deposit the amount of P 500.00 for costs.
SEC. 5
Form and contents of petition
The petition shall be verified and filed in eighteen (18)
legible copies. The petition shall name the aggrieved party as
petitioner and shall join as respondents the Commission
concerned and the person or persons interested in sustaining
the judgment, final order or resolution a quo. The petition shall
state the facts with certainty, present clearly the issues
involved, set forth the grounds and brief arguments relied upon
for review, and pray for judgment annulling or modifying the
questioned judgment, final order or resolution. Findings of
fact of the Commission supported by substantial evidence
shall be final and non-reviewable.
--
The Supreme Court will not review the findings of fact the
Commission but only the question on jurisdiction.
TN! Mere abuse of discretion is not actionable; it must be
grave
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
The petition shall be accompanied by a clearly legible
duplicated original or certified true copy of the judgment, final
order or resolution subject thereof, together with certified true
copies of such material portions of the record as are referred to
therein and other documents relevant and pertinent thereto.
The requisite number of copies of the petition shall contain
plain copies of all documents attached to the original copy of
said petition.
--
MATERIAL DATA RULE
 In all kinds of appeal, the date of receipt of the
decision must be stated. The timeliness must be
stated in your petition.
 The petition shall state the specific material dates
showing that it was filed within the period fixed herein,
and shall contain a sworn certification against
forum shopping as provided in the third paragraph of
Section 3, Rule 46.
 The petition shall further be accompanied by proof
of service of a copy thereof on the Commission
concerned and on the adverse party, and of the
timely payment of docket and other lawful fees.
Effect of failure to comply
The failure of petitioner to comply with any of the foregoing
requirements shall be sufficient ground for the dismissal of
the petition.
[Judge D: This is different from the ordinary civil action, in an
ordinary civil action, upon filing of a complaint the court will
issue a summon in order that the adverse party will know about
the complaint, here, the court will not issue summon, but
instead the other party will be provided with a copy of the
petition. That is why the petition must be accompanied of a
proof of service of a copy on the adverse party.
Under section 6, instead of issuing summons the Supreme
Court will order the party to file their comments.
SEC. 6
Order to comment
If the Supreme Court finds the petition sufficient in
form and substance, it shall order the respondents to file their
comments on the petition within ten (10) days from notice
thereof; otherwise, the Court may dismiss the petition outright.
The court may also dismiss the petition if it was filed manifestly
for delay, or the questions raised are too unsubstantial to
warrant further proceedings.
--
The service of the order to comment is a mode of
acquiring jurisdiction.
In a petition for certiorari, the court or the tribunal who
rendered the decision which is in question should be
impleaded as a nominal party. Unlike in the petition for review
on certiorari, the court that rendered the decision need not be
impleaded.
The respondent in the petition, upon receipt of the petition will
not immediately file a comment. He must wait for an order of
the Supreme Court to comment because after all upon filing of
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As discussed by: Judge Debalucos

the petition the Supreme Court can dismiss the petition outright Not a mode of appeal;
on any or certain grounds. A mode of appeal Availed only when there is
The Supreme Court can motu proprio dismiss the petition. no plain, speedy or
adequate remedy
For Example: Petition is based on Petition is based on
If the Supreme Court finds that the required questions of law question of jurisdiction
docket fees are not paid, if the petition is short of the Filed not later than 60
requirement, such as in Rule 64 where it requires that Filed within 15 days from
days from the notice of
it should be in 18 copies and the petition is only of 7 notice of the final order,
judgment, final order or
copies. Then there is a lacking requirement then it judgment or resolution
resolution sought to be
can be dismissed outright. appealed from
reviewed
The court rendering the The court rendering the
SEC. 7 decision need not be decision must be
Comments of respondents impleaded impleaded
The comments of the respondents shall be filed in
eighteen (18) legible copies. The original shall be accompanied SEC. 1
by certified true copies of such material portions of the record Petition for certiorari
as referred to therein together with other supporting papers. When any tribunal, board or officer exercising judicial
The requisite number of copies of the comments shall contain or quasi-judicial functions has acted without or in excess of
plain copies of all documents attached to the original and a its or his jurisdiction, or with grave abuse of discretion
copy thereof shall be served on the petitioner. No other amounting to lack or excess of jurisdiction, and there is
pleading may be filed by any party unless required or allowed no appeal, nor any plain, speedy, and adequate remedy in
by the Court. the ordinary course of law, a person aggrieved thereby may
[INSERT RULE ON EFFICIENT USE OF PAPER] file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered annulling or
SEC. 8 modifying the proceedings of such tribunal, board or officer,
Effect of filing and granting such incidental reliefs as law and justice may
The filing of a petition for certiorari shall not stay the require.
execution of the judgment or final order or resolution sought to The petition shall be accompanied by a certified
be reviewed, unless the Supreme Court shall direct otherwise true copy of the judgment, order or resolution subject
upon such terms as it may deem just. thereof, copies of all pleadings and documents relevant and
-- pertinent thereto, and a sworn certification of non-forum
It will not stay the execution unless the same is enjoined by the shopping as provided in the third paragraph of section 3, Rule
SC 46.

SEC. 9 TN!
Submission for decision  One of the requisites of a petition for certiorari is that
Unless the Court sets the case for oral argument, or there must be a motion for reconsideration.
requires the parties to submit memoranda, the case shall be
deemed submitted for decision upon the filing of the comments For Example:
on the petition, or of such other pleadings or papers as may be When the defendant files a motion to dismiss
required or allowed, or the expiration of the period to do so. for lack of jurisdiction because the case is filed with
-- the MTC and the subject matter is incapable of
When is the case deemed submitted for decision? pecuniary estimation and the court denied the motion,
 Upon filing of the comments on the petition or other the remedy could be certiorari.
pleading required --oOo--
 If none filed, the expiration of the period to so September 26, 2016
Unless the case is set for ORAL ARGUMENT
TN! RULE 64, is exclusive for COMELEC and COA. RULE 65
---oOo--- Certiorari, Prohibition and Mandamus

RULE 65 SEC. 1
CERTIORARI, PROHIBITION, MANDAMUS PETITION FOR CERTIORARI
When any tribunal, board or officer exercising judicial
 These 3 special civil actions can be combined i.e., or quasi-judicial functions has acted without or in excess its or
certiorari and prohibition. his jurisdiction, or with grave abuse of discretion amounting to
 These remedies can be availed if there is no ASAP lack or excess of jurisdiction, and there is no appeal, or any
[Appeal, Speedy, Adequate, Plain] remedy. plain, speedy, and adequate remedy in the ordinary course
of law, a person aggrieved thereby may file a verified petition
RULE 45 vs. RULE 65 [VIP] in the proper court, alleging the facts with certainty and praying
Rule 45 that judgment be rendered annulling or modifying the
Rule 65
Petition for Review on proceedings of such tribunal, board or officer, and granting
Petition for Certiorari
Certiorari under such incidental reliefs as law and justice may require.

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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
[Judge D: These petitions are akin to Canned Sardines,
availed only if there is no other remedy available]
[Basic: Be sure to distinguish Petition for Certiorari vs. Petition
for Review on Certiorari]
 Rule 41 provides matters that are subject to appeal
and those are not. For those matters that are not
appealable, petition for certiorari may be the remedy
i.e., interlocutory order.
 It is necessary that the respondent has acted with
grave abuse or with no jurisdiction.
For Example:
A motion to dismiss was filed on the ground
of lack of jurisdiction – action incapable of pecuniary
estimation filed in the MTC. The MTC denied the
motion. Believing that the court has no jurisdiction,
what is your remedy, the speedy remedy?
The remedy is to file a PETITION FOR
CERTIORARI questioning the order denying the
motion to dismiss. Another remedy is to file an
ANSWER, go to Trial, and if the decision is adverse
then file an APPEAL assigning the lack of jurisdiction
as one of the errors. However, this remedy would take
time.
TN! Memorize BP 129 for purposes of knowing jurisdiction
over the subject matter.
“Grave Abuse of discretion”
The court has jurisdiction only that it acted in a despotic,
capricious or whimsical manner.
Petition for Certiorari is different from the Certiorari mentioned
in Article VIII, Section 1 of the 1987 Constitution. The latter is
the certiorari exercised by the court when any instrumentality
of the government has acted with grave abuse of discretion
resulting to lack or in excess of jurisdiction.
Petition for
Constitutional
Certiorari [Sec.1,
Certiorari [Sec.1, Article
Rule 65 of the
VIII of the Constitution]
Rules of Court]
As to whom Applies to judicial Applies to any
applicable body instrumentality
As to
Those provided by Any act of any
subject
the Rules of Court instrumentality
covered
In Jardeleza vs. Sereno et.al, G.R. No. 213181, August 19,
2014, the SC said, a petition for certiorari is a proper remedy to
question any act of a branch or instrumentality of the
government on the ground of grave abuse of discretion
resulting the lack or excess of jurisdiction by any branch or
instrumentality of the government even if the latter does not
exercise quasi-judicial or ministerial function [Article VIII, Sec.1
of the 1987 Constitution]
In Magallona vs. Ermita, G.R. No. 187167, August 16, 2011,
writs of certiorari or prohibition could not be issued absent any
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
showing of grave abuse of discretion in the exercise of judicial,
quasi-judicial or ministerial functions. This holds true to
ordinary civil proceedings.
However, when the SC exercises its constitutional power of
judicial review, writs of certiorari and prohibition are
proper vehicles to test the constitutionality of statutes and
acts of other branches of the government.
[Judge D: Don’t confuse yourself with DECLARATORY
RELIEF as it is one of the methods of questioning the
constitutionality of a law. Remember, the PRINCIPLE OF
HIERARCHY OF COURTS. The SC will only entertain a
petition when the same has Special and Important reasons,
which only the SC knows. The petition shall be accompanied
by a certified true copy of the judgment, order or resolution
subject thereof, copies of all pleadings and documents relevant
and pertinent thereto, and a sworn certification of non-forum
shopping as provided in the third paragraph of section 3, Rule
46.]
TN!
 Under this rule, these remedies are special civil action
and are separate.
For Example:
A motion to dismiss was filed then you file petition for
certiorari based on grave abuse of discretion. That petition
is different from the action pending in the lower court that
is why it needs to comply with the requirements on the
filing of an initiatory pleading.
 Certiorari is not a substitute for lost appeal.
 A petition for certiorari will not interrupt the
proceedings in the lower court unless the higher court
will issue a restraining order.

CERTIORARI PROHIBITION MANDAMUS
With respect to the kind of act
Discretionary Discretionary and
Purely ministerial
acts ministerial acts
Purpose
To prevent the To compel the
To correct and
commission or carrying performance of an
act
out of an act act
GR: Before filing a petition for certiorari, filing a motion for
reconsideration is required.
 If the aggrieved party has not filed a motion for
reconsideration, it cannot be said that the aggrieved
party has no other remedy.
 If motion for reconsideration is denied, then it is the
proper time to file a petition for certiorari because
there is no other remedy available.
EXC: MR is dispensed with when –
a) The proceeding is a patent nullity;
b) Petitioner was deprived of due process and
there is extreme urgency for relief;
c) Urgent necessity for resolution of the question
and any further delay would prejudice the interest
of the government;
d) Proceedings in the lower court were a nullity
for lack of due process.
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GR: If appeal is available, certiorari cannot be availed.
EXC:
a) if cannot appeal cannot be considered speedy and
adequate remedy;
b) In criminal cases, the court rejects rebuttal evidence
for the prosecution;
c) The order is a patent nullity;
(Judge D – read other enumeration in your book, it’s a matter
of memorization)
SEC. 2
PETITION FOR PROHIBITION
When the proceedings of any tribunal, corporation,
board, officer or person, whether exercising judicial, quasi-
judicial or ministerial functions, are without or in excess of its
or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no
appeal or any other plain, speedy, and adequate remedy in the
ordinary course of law, a person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered commanding
the respondent to desist from further proceedings in the action
or matter specified therein, or otherwise granting such
incidental reliefs as law and justice may require.
The petition shall likewise be accompanied by a
certified true copy of the judgment, order or resolution subject
thereof, copies of all pleadings and documents relevant and
pertinent thereto, and a sworn certification of non-forum
shopping as provided in the third paragraph of section 3, Rule
46.
TN!
 Availed on Discretionary or ministerial acts
 Prohibition may be joined with certiorari, so there can
be a Petition for Certiorari and Prohibition.
For Example:
The court cited a council for direct contempt
(uttering offensive language). What is the REMEDY?
File a Petition for Prohibition to the higher court,
asking the higher court by commanding the
respondent to desist from proceedings in the action.
Motion to dismiss for lack of jurisdiction was
filed, but the court denied the motion. What is the
REMEDY?
File a Petition for certiorari and prohibition, asking the
higher court to desist or prohibit from conducting
further proceedings.
 In Rule 58 – Preliminary injunction (P. Prohibitory and
P. Mandatory injunction), these are only
PROVISIONAL REMEDIES. Don’t be confused!
For Example:
A petitioner files a Petition for Prohibition, but
the case takes a long time to be resolved, in such
instance he can avail of a provisional remedy.
(Petition for Prohibition with prayer for issuance of
TRO/ PI)
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
 Even if a Petition for certiorari and prohibition is filed,
if there is NO PRAYER for issuance of TRO or PI, the
petition alone will NOT STOP the proceedings.
 In Civil procedure, it is prohibited to join ordinary
action and special civil action, but there is no
prohibition if you join 2 special civil actions.
For Example:
A criminal cannot prohibit the prosecutor’s office
from filing a criminal action in court except if there is
double jeopardy. In case the prosecutor files an
action, the remedy is to file a Petition for Prohibition.
SEC. 3
PETITION FOR MANDAMUS
When any tribunal, corporation, board, officer or
person unlawfully neglects the performance of an act
which the law specifically enjoins as a duty resulting from
an office, trust, or station, or unlawfully excludes another
from the use and enjoyment of a right or office to which
such other is entitled, and there is no other plain, speedy
and adequate remedy in the ordinary course of law, the
person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and praying that
judgment be rendered commanding the respondent,
immediately or at some other time to be specified by the court,
to do the act required to be done to protect the rights of the
petitioner, and to pay the damages sustained by the petitioner
by reason of the wrongful acts of the respondent.
The petition shall also contain a sworn certification of
non-forum shopping as provided in the third paragraph of
section 3, Rule 46
 MEMORIZE THE GROUNDS / REQUISITES –
Judge D
TN!
 Availed only when ministerial
CASE:
USC vs CA G.R. 79237 (1988)
The petitioner enrolled in architecture but failed in
some subjects, so he transferred to Commerce. His
grades on average including those which he failed, he
would still graduate with honors. In order to graduate with
honors, a graduating student must not have any failing
mark in any of his subjects. He filed a petition for
mandamus asking the court to direct the school to grant
him with honors. Is the petition meritorious?
Answer:
NO, the school has an existing policy and that policy
has been made known to the students.
According to SC, mandamus is not available
to control discretion. But writ of mandamus may
issue to compel the exercise of discretion-- not
the discretion itself.
In other words, even if an office or a body
has discretion, it can be compelled to exercise its
discretion.
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 Mandamus is not available to control discretion but
the writ may issue to compel the exercise of such
discretion.
[See Sharp International Marketing v CA GR no.
93661 Sept 4, 1991]
 Mandamus is not the proper remedy to enforce a
contractual obligation, the proper remedy is an action
for specific performance
[See Province of Pangasinan v. Reparation
Commission GR L-27448 Nov. 29, 1977]
 If the law imposes a duty upon a public officer
and gives him the right to decide how or when the
duty should be performed then such duty is
discretionary not ministerial.
 “Where a municipality fails without justifiable cause to
pay a final money judgment against it, the claimant
may avail of mandamus to compel the enactment and
the corresponding disbursement of municipal funds
therefore”.
[Municipality of Makati v. CA GR nos. 89889-99 Oct.
1, 1990]
---oOo---
SEC. 4
When and where to file the petition
The petition shall be filed not later than sixty (60)
days from notice of the judgment, order or resolution. In
case a motion for reconsideration or new trial is timely filed,
whether such motion is required or not, the sixty (60) day
period shall be counted from notice of the denial of said
motion.
The petition shall be filed in the Supreme Court or, if it
relates to the acts or omissions of a lower court or of a
corporation, board, officer or person, in the Regional Trial
Court exercising jurisdiction over the territorial area as defined
by the Supreme Court. It may also be filed in the Court of
Appeals whether or not the same is in aid of its appellate
jurisdiction or in the Sandiganbayan if it is in aid of its appellate
jurisdiction. If it involves the acts or omissions of a quasi-
judicial agency, unless otherwise provided by law or these
Rules, the petition shall be filed in and cognizable only by the
Court of Appeals.
No extension of time to file the petition shall be granted except
for compelling reason and in no case exceeding fifteen (15)
days. (Bar Matter No. 803, 21 July 1998; A.M. No. 00-2-03-SC)
Certiorari is also available as post-judgment remedy.
Although the SC, CA, Sandiganbayan have jurisdiction to
nullify the decision of the MTC, always remember the
PRINCIPLE OF JUDICIAL HIERARCHY.
If the petition involves an act or an omission of a quasi-judicial
agency unless otherwise provided by law or these rules, the
petition shall be filed with and be cognizable only by the Court
of Appeals.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
 Determine which court take cognizance of your
appeal because the same court is where the petition
for certiorari should be filed
For example:
MTC, where do u appeal? RTC, the petition
for certiorari should be filed in RTC.
In election cases, in cases of an act or
omission of the MTC or RTC then the petition is to be
filed with COMELEC.
For congressmen, there is the HRET not the
COMELEC.
For presidential or vice presidential, there is the PET
not the COMELEC.
Case:
[Galang Jr. v. Geronimo April 22, 2011]
Taking cognizance of a petition for certiorari questioning
an interlocutory order of RTC in an electoral protest case
can be considered in aid of appellate jurisdiction of the
COMELEC.
SEC. 5
Respondents and costs in certain cases
When the petition filed relates to the acts or omissions
of a judge, court, quasi-judicial agency, tribunal, corporation,
board, officer or person, the petitioner shall join, as private
respondent or respondents with such public respondent
or respondents, the person or persons interested in
sustaining the proceedings in the court; and it shall be the
duty of such private respondents to appear and defend, both in
his or their own behalf and in behalf of the public respondent or
respondents affected by the proceedings, and the costs
awarded in such proceedings in favor of the petitioner shall be
against the private respondents only, and not against the
judge, court, quasi-judicial agency, tribunal, corporation, board,
officer or person impleaded as public respondent or
respondents.
Unless otherwise specifically directed by the court
where the petition is pending, the public respondents shall
not appear in or file an answer or comment to the petition
or any pleading therein. If the case is elevated to a higher
court by either party, the public respondents shall be included
therein as nominal parties. However, unless otherwise
specifically directed by the court, they shall not appear or
participate in the proceedings therein. (5a)
---
This provision is common to all- certiorari, prohibition and
mandamus
In a petition for certiorari, prohibition and mandamus, the public
respondent such as the judge, should be included as a
respondent together with the private respondent.
For example:
X versus Y. Mr. X filed a petition for
certiorari against the judge. Now, the judge shall be
the main respondent and he shall be joined by the
private respondent, Y.
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 REMEDIAL LAW REVIEW
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While the judge is impleaded as public respondent but he
cannot defend himself. The private respondent will be the one
who will defend the judge. He would be the one to file answers,
motions… the public respondent judge cannot appear in the
petition, and he cannot file his answer nor appear in court.
Unless directed by the court, the public respondent
[JUDGE] should not answer.
There were some judges who were subjected to disciplinary
actions for filing their answers. It only shows ignorance of the
rules. Look at second paragraph of section 5. Again, although
the decision being questioned is his decision, the public
respondent judge cannot defend himself.
Effect of failure to implead the judge
Petition shall be dismissed.
Effect of failure to implead the private respodent
In one case, the SC held that non-inclusion as private
respondent of the party interested in sustaining the
proceedings in the lower court is not a ground for dismissal of
the petition. [See PP. v. Cuyo Oct 12, 2011]
---oOo---
SEC. 6
Order to Comment
If the petition is sufficient in form and substance to
justify such process, the court shall issue an order requiring the
respondent or respondents to comment on the petition within
ten (10) days from receipt of a copy thereof. Such order shall
be served on the respondents in such manner as the court
may direct together with a copy of the petition and any
annexes thereto.
In petitions for certiorari before the Supreme Court
and the Court of Appeals, the provisions of section 2, Rule 56,
shall be observed. Before giving due course thereto, the court
may require the respondents to file their comment to, and not a
motion to dismiss, the petition. Thereafter, the court may
require the filing of a reply and such other responsive or other
pleadings as it may deem necessary and proper.
--
 A petition for certiorari does not have summons, when
you file the petition, you furnish the opponent a copy
thereof.
 The order to comment is the equivalent of summons.
That is the way of acquiring jurisdiction over the
respondent.
 The party filing the petition is called the petitioner, the
adverse party—respondent (public and private)
SEC. 7
Expediting proceedings; injunctive relief
The court in which the petition is filed may issue
orders expediting the proceedings, and it may also grant a
temporary restraining order or a writ of preliminary injunction
for the preservation of the rights of the parties pending such
proceedings. The petition shall not interrupt the course of the
principal case unless a temporary restraining order or a writ of
preliminary injunction has been issued against the public
respondent from further proceeding in the case. (7a)
--
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
The petition for certiorari, mandamus and prohibition is an
independent civil action. It will not interrupt the proceedings in
the lower court, unless the court where the petition is filed will
issue a restraining order.
And of course such court will only issue a restraining order if
there is a prayer for it.
The public respondent shall proceed with the
principal case within ten (10) days from the filing a petition
for certiorari with a higher court or tribunal, absent a
temporary restraining order or a preliminary injunction, or
upon its expiration. Failure of the public respondent to
proceed with the principal case may be ground for an
administrative charge.
--
Upon filing of a certiorari, the public respondent should wait for
10 days. If there’s no issue, then the public respondent should
proceed.
If there’s a TRO that has been issued, for how long will it be?
RTC? 20 days. After 20 days there is no preliminary
injunction, what should the respondent do? Proceed
For example:
There is a period in the TRO, but the period
is for 50 days. If you were the MTC judge, what you
should follow? 20 days or 50 days?
Only 20 days.
What will happen to the public respondent if he fails to
proceed with the proceedings if there’s no TRO
issued or if the period has already lapsed? He can be
subjected to an administrative charge.
---oOo---
SEC. 8
Proceedings after comment is filed
After the comment or other pleadings required by the
court are filed, or the time of filing thereof has expired, the
court may hear the case or require the parties to submit
memoranda. If, after such hearing or filing of memoranda or
upon the expiration of the period for filing, the court finds that
the allegations of the petition are true, it shall render judgment
for such relief to which the petitioner is entitled.
However, the court may dismiss the petition if it finds
the same patently without merit or prosecuted manifestly
for delay, or if the questions raised therein are too
unsubstantial to require consideration. In such event, the
court may award in favor of the respondent treble costs
solidarily against the petitioner and counsel, in addition to
subjecting counsel to administrative sanctions under Rule 139
and 139-B of the Rules of Court.
The Court may impose motu proprio, based on res
ipsa loquitur, other disciplinary sanctions or measures on
erring lawyers for patent dilatory and unmeritorious petitions for
certiorari.
--
Action of the court:
a) Render Judgment or
b) Motu proprio dismiss the case if the petition is
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As discussed by: Judge Debalucos

o Patently without merit
o Prosecuted manifestly for delay
o Question raised therein are too unsubstantial to
require consideration.
There is no hearing in petition for certiorari. The main question
here is whether or not the court has jurisdiction. The law
merely requires the parties to submit memoranda.
There will be no presentation of evidence.
SEC. 9
Service and enforcement of order or judgment
A certified copy of the judgment rendered in
accordance with the last preceding section shall be served
upon the court, quasi-judicial agency, tribunal, corporation,
board, officer or person concerned in such manner as the court
may direct, and disobedience thereto shall be punished as
contempt. An execution may issue for any damages or costs
awarded in accordance with Section 1 of Rule 39.
Supposed the public respondent failed to comply with the
decision, he may be cited for contempt.
The decision of the court in petition for certiorari, mandamus or
prohibition, is called as SPECIAL JUDGMENT. This kind of
decision can be the cause of contempt.
As a rule, the decision of the court cannot be the cause of
contempt- the remedy is to file a motion for the execution of
judgment.
Quo warranto is the remedy to try disputes with respect to the
title to a public office.
For example:
A public officer is being replaced by another
person without any valid reason or without any
justification. The remedy of the aggrieved party is to
file a PETITION FOR QUO WARRANTO, an action
for usurpation of a public office.
SEC. 2 [COMPULSORY QUO WARRANTO]
When Solicitor General or public prosecutor must
commence action
The Solicitor General or a public prosecutor, when
directed by the President of the Philippines, or when upon
complaint or otherwise he has good reason to believe that any
case specified in the preceding section can be established by
proof, must commence such action.
Who may file?
The Solicitor General may file because he is the lawyer of the
government.
Who should be the defendant?
The person who usurps or intrudes or unlawfully holds or
exercises public office
Quo warranto is also the remedy against group of persons who
acts as a corporation without being legally registered or without
any lawful authority to act as a corporation.

For example: TN!

Judgment in a money claim—the remedy is
motion for execution; not contempt. If it is the decision
for petition for certiorari or prohibition or mandamus
and is ignored —said person may be cited for
contempt.
---oOo---
 Quo warranto under the Election law is different from
the quo warranto under Rule 66.
For example:
There is someone who will run as a Mayor who
happens to be an American citizen.
The remedy is Quo warranto under Election Code.

Rule 66 For example:

QUO WARRANTO The principal in a public school is transferred to
another place. He can question the validity of the
“Quo warranto” appointment of the one who replaces him.
Literally means “by what authority” or “by what order” or “by The remedy is Quo Warranto under Rule 66. If your
what law”. replacement will be disqualified, then you will succeed
him.
SEC. 1
Action by Government against individuals QUO WARRANTO
An action for the usurpation of a public office, Under Omnibus Election
position or franchise may be commenced by a verified petition Under Rule 66
Code
brought in the name of the Republic of the Philippines against: Elective Office Appointive Office
a) A person who usurps, intrudes into, or unlawfully Issue is eligibility or Issue is the validity of the
holds or exercises of a public office, position or disloyalty to the Republic appointment
franchise; If quo warranto will prosper,
b) A public officer who does or suffers an act which, Petitioner may possibly
the petitioner will not replace
by the provision of law, constitutes a ground for the succeed.
the officer
forfeiture of his office; Petition must be filed within 1
c) An association which acts as a corporation within Petition must be filed within
year from the petitioner’s
the Philippines without being legally incorporated ten (10) days from the
ouster from the office, or the
or without lawful authority so to act. proclamation of the results of
right of the petitioner to hold
the election.
the office or position, arose.

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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
For example:
A provincial prosecutor who was assigned in
Negros Oriental was illegally transferred to Tarlac.
According to him, his transfer to Tarlac was illegal.
What should be the remedy to question the
appointment of the person who replaced him?
Quo warranto
Quo warranto lies in favor of the public officer illegally
removed and replaced.
There is only one Solicitor General, however he has many
assistants. However, even if he has assistants, they cannot still
handle the case due to heavy workload. That’s why the public
prosecutor can be deputized. [Lacson vs Romero 84 Phil.
740]
SEC. 3 [DISCRETIONARY QUO WARRANTO]
When Solicitor General or public prosecutor may
commence action with permission of the court
The Solicitor General or a public prosecutor may,
with the permission of the court in which the action is to
be commenced, bring such an action at the request and
upon the relation of another person; but in such case the
officer bringing it may first require an indemnity for the
expenses and costs of the action in an amount approved by
and to be deposited in the court by the person at who request
and upon whose relation the same is brought.
--
For Discretionary Quo Warranto
The Solicitor General/Public Prosecutor could file a petition for
quo warranto in behalf of another person
Thus, there are two steps involve:
1. File a permission for petition to file quo warranto with
the court
2. If granted, file a petition quo warranto
SEC.4
When hearing had on application for permission to
commence action
Upon application for permission to commence such
action in accordance with the next preceding section, the court
shall direct that notice be given to the respondent so that he
may be heard in opposition thereto; and if permission is
granted, the court shall issue an order to that effect, copies of
which shall be served on all interested parties, and the petition
shall then be filed within the period ordered by the court.
SEC. 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.
--
Two options of public officer who was ousted:
1. Coordinate with the Sol Gen in order to file the
petition for quo warranto
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
2. Or he himself may file a petition for quo warranto
(Sec. 5)
TN!
 He must be claiming to be entitled. You must state in
your petition that you are entitled for the position.
 If the person filing the petition does not claim to be
entitled to the office, the petition shall be dismissed.
For Example: [Case of Marcos]
He was elected for 2 consecutive terms for
President. Supposedly his last term would expire in
1973. How come he lasted until 1986?
The year before his term expires; he declared martial
law so there was no election. When his term expired,
a group of lawyers, Civil Liberty Union, went to the
Supreme Court questioning the validity of his stay.
The SC dismissed the petition. According to the SC,
among the petitioners no one is entitled to the
position. It is required that a private person filing a
petition for quo warranto must be claiming such
position.
SEC. 6
Parties and contents of petition against
usurpation
When the action is against a person for usurping a
public office, position or franchise, the petition shall set forth
the name of the person who claim to be entitled thereto, if any,
with an averment of his right to the same and that the
respondent is unlawfully in possession thereof. All persons
who claim to be entitled to the public office, position or
franchise may be made parties, and their respective rights to
such public office, position or franchise determined, in the
same action.
SEC. 7
Venue
An action under the preceding six sections can be
brought only in the Supreme Court, the Court of Appeals,
or in the Regional Trial Court exercising jurisdiction over the
territorial area where the respondent or any of the respondents
resides, but when the Solicitor General commences the
action, it may be brought in a Regional Trial Court in the City
of Manila, in the Court of Appeals, or in the Supreme Court.
SEC. 8
Period for pleadings and proceedings may be reduced;
action given precedence
The court may reduce the period provided by these
Rules for filing pleadings and for all other proceedings in the
action in order to secure the most expeditious determination of
the matters involved therein consistent with the rights of the
parties. Such action may be given precedence over any other
civil matter pending in the court.
SEC. 9
Judgment where usurpation found
When the respondent is found guilty of usurping into,
intruding into, or unlawfully holding or exercising a public office,
position or franchise, judgment shall be rendered that such
respondent be ousted and altogether excluded therefrom, and
that the petitioner or relator, as the case may be, recover his
costs. Such further judgment may be rendered determining the
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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
respective rights in and to the public office, position or
franchise of all the parties to the action as justice requires.
SEC. 10
Rights of persons adjudged entitled to public office;
delivery of books and papers; damages
If judgment be rendered in favor of the person averred in
the complaint to be entitled to the public office he may, after
taking the oath of office and executing any official bond
required by law, take upon himself the execution of the office,
and may immediately thereafter demand of the respondent all
the books and papers in the respondent's custody or control
appertaining to the office to which the judgment relates. If the
respondent refuses or neglects to deliver any book or paper
pursuant to such demand, he may be punished for contempt
as having disobeyed a lawful order of the court. The person
adjudged entitled to the office may also bring action against the
respondent to recover the damages sustained by such person
by reason of the usurpation.
--
The public officer illegally removed can file separate action for
damages. He cannot recover damages for the same action; he
has to file a separate action.
SEC. 11
Limitations
Nothing contained in this Rule shall be construed to
authorize an action against a public officer or employee for his
ouster from office unless the same be commenced within
one (1) year after the cause of such ouster, or the right of
the petitioner to hold such office or position, arose, nor to
authorize an action for damages in accordance with the
provisions of the next preceding section unless the same be
commenced within one (1) year after the entry of the judgment
establishing the petitioner's right to the office in question.
--
Quo warranto is civil action.
The criminal liability of the person who was in the position but
subsequently found illegal is usurpation of public function. The
filing of administrative remedy does not interrupt the 1 year
period.
[Judge D: this quo warranto is different with the quo warranto
under the Omnibus Election Code. Here, it has something to
do with the illegal removal of an entitled public officer. ]
---oOo---
RULE 67
Expropriation
 Rule 67 is connected with Political Law.
 The power of eminent domain is the power of the
government to take private property for public use
upon payment of just compensation.
SEC. 1
The complaint
The right of eminent domain shall be exercised by the
filing of a verified complaint which shall state with certainty
the right and purpose of expropriation, describe the real or
personal property sought to be expropriated, and join as
defendants all persons owning or claiming to own, or
occupying, any part thereof or interest therein, showing, so far
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
as practicable, the separate interest of each defendant. If the
title to any property sought to be expropriated appears to be in
the Republic of the Philippines, although occupied by private
individuals, or if the title is otherwise obscure or doubtful so
that the plaintiff cannot with accuracy or certainty specify who
are the real owners, averment to that effect shall be made in
the complaint.
--
[Judge D: This is not only available to real property but it is
also avail to personal property]
“Limitations in the exercise of eminent domain”
a) Exercised only by the state or its entities authorized
by law, such as the local government unit
b) There must be just compensation to be determine by
the court
c) Due process must be observed [Purpose of Rule 67]
 Rule 67 primarily governs the eminent domain
powers of the state acting through the national
government.
 As regards to the power of the Local Government
Unit to exercise the power of eminent domain, the
legal basis of which is under the Local Government
Code.
SEC. 2
Entry of plaintiff upon depositing value with authorized
government depositary
Upon the filing of the complaint or at any time
thereafter and after due notice to the defendant, the plaintiff
shall have the right to take or enter upon the possession of the
real property involved if he deposits with the authorized
government depositary an amount equivalent to the
ASSESSED VALUE OF THE PROPERTY for purposes of
taxation to be held by such bank subject to the orders of the
court. Such deposit shall be in money, unl8ess in lieu thereof
the court authorizes the deposit of a certificate of deposit of a
government bank of the Republic of the Philippines payable on
demand to the authorized government depositary.
--
“PRELIMINARY DEPOSIT”
If it is really urgent the government can take over the property
immediately upon the filing of the complaint provided that the
government will make a deposit an amount equivalent to the
ASSESSED VALUE OF THE PROPERTY. The assessed
value can be found on the Tax Declaration.
The Preliminary deposit shall be made before any authorized
government depository which is required if the government
immediately possess the property. In case if the government
does not want to immediately possess the property, which is
unusual, NO PRELIMINARY DEPOSIT IS REQUIRED.
Purpose of the Preliminary Deposit
It will serve as advance payment of the just
compensation if the government will win the case. If the
government will lose the case, it will serve as advance
payment for damages.
Preliminary Deposit for Personal Property
The value shall be fixed by the court. If personal property
is involved, its value shall be provisionally ascertained and the
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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos

amount to be deposited shall be promptly fixed by the court. with the scheme of immediate payment in cases
After such deposit is made the court shall order the sheriff or involving national government infrastructure projects
other proper officer to forthwith place the plaintiff in possession is indeed very clear.
of the property involved and promptly submit a report thereof to
the court with service of copies to the parties.
REPUBLIC vs. HOLY TRINITY ROYALTY APRIL 14,
TN! 2008
 There is a new law RA 8974 - An act to facilitate the If expropriation is engaged in by the national
acquisition of right of way, site, or location for national government for purposes other than national
government infrastructure projects and for other infrastructure projects the assessed value standard
purposes.” and the deposit mode prescribed under rule 67 shall
apply. Issue here is whether or not it is a national
Rule 67 RA 8974 infrastructure project.
Payment is made to the Payment is made directly
bank to the owner SEC. 3
Expropriation in general Only when national Defenses and objections
government expropriates If a defendant has no objection or defense to the
property for national action or the taking of his property, he may file and serve a
infrastructure projects notice of appearance and a manifestation to that effect,
Government is required Government is required specifically designating or identifying the property in which he
to make an initial deposit to make immediate claims to be interested, within the time stated in the summons.
payment to the owner Thereafter, he shall be entitled to notice of all proceedings
upon filing of the affecting the same.
complaint
Equal to the assessed Equal to the market value If a defendant has any objection to the filing of or the
value of the property for of the property as stated allegations in the complaint, or any objection or defense to the
taxation purposes in the tax declaration or taking of his property, he shall serve his answer within the time
100% of the value of the stated in the summons. The answer shall specifically designate
property based on the or identify the property in which he claims to have an interest
current relevant zonal state the nature and extent of the interest claimed, and adduce
value of the BIR, all his objections and defenses to the taking of his property. No
whichever is higher and counterclaim, cross-claim or third-party complaint shall be
the value of the alleged or allowed in the answer or any subsequent pleading.
improvements and/or --
structures using No counterclaim, cross-claim or third-party complaint shall be
replacement cost alleged or allowed in the answer or any subsequent pleading—
methods in order to avoid delay.

A defendant waives all defenses and objections not

RA 8974
 This law requires payment directly to the owner.
 The basis shall be the market value of the property as
stated in the tax declaration or the zonal valuation
provided by the BIR.
 NEW SYSTEM OF IMMEDIATE PAYMENT UNDER
RA 8974 – applies in instances when the national
government expropriates property for national
government infrastructure projects.
REPUBLIC VS GINGOYON
This case is about the NAIA 3, the issue was what
law shall prevail in the determination of just
compensation is it RULE 67 or RA 8974? The trial
court said that there is a new law regarding to that
RA 8974, then the National Gov’t argue that it
should be RULE 67. The Supreme Court sustained
the ruling of the TRIAL COURT.
Thus, if expropriation is engaged in by the national
government for purposes other than national
infrastructure projects, the assessed value
standard and the deposit mode prescribed in RULE
67 continues to apply. The intent of RA 8974 to
supersede the system of deposit under RULE 67
so alleged but the court, in the interest of justice, may permit
amendments to the answer to be made not later than ten (10)
days from the filing thereof. However, at the trial of the issue of
just compensation whether or not a defendant has previously
appeared or answered, he may present evidence as to the
amount of the compensation to be paid for his property, and he
may share in the distribution of the award.
 Motion to dismiss is not allowed.
 File answer at the trial of the issue of just
compensation whether or not a defendant has
previously appeared or answered, he may present
evidence as to the amount of the compensation to
be paid for his property, and he may share in the
distribution of the award.
 No default here even if the respondent has been
declared in default for failure to file an answer he can
still present evidence as regards to the amount for
just compensation.
---oOo---
October 2, 2016

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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
RULE 67
Expropriation
SEC. 3
Defenses and objections
If a defendant has no objection or defense to the
action or the taking of his property, he may file and serve a
notice of appearance and a manifestation to that effect,
specifically designating or identifying the property in which he
claims to be interested, within the time stated in the summons.
Thereafter, he shall be entitled to notice of all proceedings
affecting the same.
--
The defendant shall be served with SUMMONS.
He shall have 2 options.
1. File MANIFESTATION or NOTICE to the court – if
he does not have objection to the expropriation
2. File ANSWER – if he has objection
If a defendant has any objection to the filing of or the
allegations in the complaint, or any objection or defense to the
taking of his property, he shall serve his answer within the time
stated in the summons. The answer shall specifically designate
or identify the property in which he claims to have an interest,
state the nature and extent of the interest claimed, and adduce
all his objections and defenses to the taking of his property. No
counterclaim, cross-claim or third-party complaint shall be
alleged or allowed in the answer or any subsequent
pleading.
--
 Counterclaim, cross-claim or third party complaints
are not allowed to avoid delay.
 Motion to dismiss is not likewise allowed. If the
defendant has grounds for a motion to dismiss, the
defendant should allege the same in his answer.
A defendant waives all defenses and objections not
so alleged but the court, in the interest of justice, may permit
amendments to the answer to be made not later than ten
(10) days from the filing thereof. However, at the trial of the
issue of just compensation whether or not a defendant has
previously appeared or answered, he may present evidence as
to the amount of the compensation to be paid for his property,
and he may share in the distribution of the award.
--
The defendant who did not file any answer, just the same he
would be allowed to present evidence to prove just
compensation.
IOW, in expropriation proceedings, the defendant who is
declared in default does not really suffer the full effects of a
defaulted defendant.
In Expropriation, mostly the main issue is JUST
COMPENSATION.
---oOo---
SEC. 4
Order of expropriation
If the objections to and the defenses against the right
of the plaintiff to expropriate the property are overruled, or
when no party appears to defend as required by this Rule, the
court may issue an order of expropriation declaring that the
plaintiff has a lawful right to take the property sought to be
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
expropriated, for the public use or purpose described in the
complaint, upon the payment of just compensation to be
determined as of the DATE OF THE TAKING of the
property or the filing of the complaint, whichever came
first.
-
In Expropriation proceedings, there are two stages:
1. For the court to determine if expropriation is
proper;
The plaintiff [government] will present evidence that
expropriation is proper while the defendant will
present his objections thereto if he has though an
answer.
Once the court issues an ORDER finding that the
expropriation is proper. Said ORDER although
considered interlocutory, can be subject of an
APPEAL.
In expropriation proceedings, it is one of those which
allow multiple appeals. The Notice and Record on
Appeal are filed within 30 days from receipt of the
order. The Record on appeal is required because the
proceedings in the lower court continue, as what is
appealed is only the interlocutory order.
2. For the court to determine the Just
Compensation.
Just compensation is to be determined as of the
DATE OF THE TAKING OF THE PROPERTY OR THE
FILING OF THE COMPLAINT, whichever came first.
---oOo---
A final order sustaining the right to expropriate the
property may be appealed by any party aggrieved thereby.
Such appeal, however, shall not prevent the court from
determining the just compensation to be paid.
While the appeal as regards the order sustaining the right of
the government to expropriate, the proceedings to determine
the just compensation of the properties expropriated shall
continue
[Record on Appeal – these are certified true copies of the
records in the trial court. They are merely copied as the trial is
still pending with the trial court.]
After the rendition of such an order, the plaintiff shall
not be permitted to dismiss or discontinue the proceeding
except on such terms as the court deems just and equitable.
SEC. 5
Ascertainment of compensation
Upon the rendition of the order of expropriation, the
court shall appoint not more than three (3) competent and
disinterested persons as commissioners to ascertain and
report to the court the just compensation for the property
sought to be taken. The order of appointment shall designate
the time and place of the first session of the hearing to be held
by the commissioners and specify the time within which their
report shall be submitted to the court.
--
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The court, in order to ascertain just compensation, appoints
commissioners. Rule 32 provides similar procedure for
appointing commissioners. The difference is that in:
 Rule 32 – appointment is discretionary
 Rule 67 – appointment of commissioners are
Mandatory!
The findings of the commissions are recommendatory which
means the court is not bound to follow the same. The
commissioners appointed are those who are experts such as
tax assessors or realtors or other experts when it comes to real
properties.
Copies of the order shall be served on the parties.
Objections to the appointment of any of the commissioners
shall be filed with the court within ten (10) days from service,
and shall be resolved within thirty (30) days after all the
commissioners shall have received copies of the objections.
(5a)
SEC. 6
Proceedings by commissioners
Before entering upon the performance of their duties,
the commissioners shall take and subscribe an oath that they
will faithfully perform their duties as commissioners, which oath
shall be filed in court with the other proceedings in the case.
Evidence may be introduced by either party before the
commissioners who are authorized to administer oaths on
hearings before them, and the commissioners shall, unless the
parties consent to the contrary, after due notice to the parties,
to attend, view and examine the property sought to be
expropriated and its surroundings, and may measure the
same, after which either party may, by himself or counsel,
argue the case. The commissioners shall assess the
consequential damages to the property not taken and deduct
from such consequential damages the consequential benefits
to be derived by the owner from the public use or purpose of
the property taken, the operation of its franchise by the
corporation or the carrying on of the business of the
corporation or person taking the property. But in no case shall
the consequential benefits assessed exceed the consequential
damages assessed, or the owner be deprived of the actual
value of his property so taken.
“Consequential Damages and Benefits”
These are taken into consideration as for example when a road
is built on a road-less piece of land, the price would be much
higher.
The Consequential benefits are deducted from the
Consequential damages.
SEC.7
Report by commissioners and judgment
thereupon
The court may order the commissioners to report
when any particular portion of the real estate shall have been
passed upon by them, and may render judgment upon such
partial report, and direct the commissioners to proceed with
their work as to subsequent portions of the property sought to
be expropriated, and may from time to time so deal with such
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
property. The commissioners shall make a full and accurate
report to the court of all their proceedings, and such
proceedings shall not be effectual until the court shall have
accepted their report and rendered judgment in accordance
with their recommendations. Except as otherwise expressly
ordered by the court, such report shall be filed within sixty
(60) days from the date the commissioners were notified
of their appointment, [JUDGE D: This period can be
extended from case to case basis i.e., when there are many
defendants] which time may be extended in the discretion of
the court. Upon the filing of such report, the clerk of the court
shall serve copies thereof on all interested parties, with notice
that they are allowed ten (10) days within which to file
objections to the findings of the report, if they so desire.
SEC. 8
Action upon commissioners' report
Upon the expiration of the period of ten (10) days
referred to in the preceding section, or even before the
expiration of such period but after all the interested parties
have filed their objections to the report or their statement of
agreement therewith, the court may, after hearing, accept
the report and render judgment in accordance therewith,
or, for cause shown, it may recommit the same to the
commissioners for further report of facts, or it may set
aside the report and appoint new commissioners; or it
may accept the report in part and reject it in part and it may
make such order or render such judgment as shall secure to
the plaintiff the property essential to the exercise of his right of
expropriation, and to the defendant just compensation for the
property so taken.
Court’s action on Commissioner’s report
a) Accept the report and render judgment based on such
report
b) Recommit the report to the commissioners for further
report of facts if there are cause shown
c) Set aside the report and appoint new commissioners
d) Accept the report in part and reject the report in part
[Judge D: Normally, the court would just accept the report of
the commissioners]
SEC. 9
Uncertain ownership; conflicting claims
If the ownership of the property taken is uncertain, or
there are conflicting claims to any part thereof, the court may
order any sum or sums awarded as compensation for the
property to be paid to the court for the benefit of the
person adjudged in the same proceeding to be entitled
thereto. But the judgment shall require the payment of the sum
or sums awarded to either the defendant or the court before
the plaintiff can enter upon the property, or retain it for the
public use or purpose if entry has already been made.
SEC. 10
Rights of plaintiff after judgment and payment
Upon payment by the plaintiff to the defendant of the
compensation fixed by the judgment, with legal interest thereon
from the taking of the possession of the property, or after
tender to him of the amount so fixed and payment of the costs,
the plaintiff shall have the right to enter upon the property
expropriated and to appropriate it for the public use or
purpose defined in the judgment, or to retain it should he have
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As discussed by: Judge Debalucos
taken immediate possession thereof under the provisions of
section 2 hereof.
--
“Upon payment by the plaintiff of the compensation fixed
by the judgment xxxxx The plaintiff shall have the right to
enter upon the property expropriated”
This is when the plaintiff has not yet taken possession of the
property.
However, with the government, they would enter the property
or take possession upon filing of the complaint. If the
government is already in possession of the property, upon
payment of just compensation, the government would retain
possession thereof.
If the defendant and his counsel absent themselves
from the court, or decline to receive the amount tendered, the
same shall be ordered to be deposited in court and such
deposit shall have the same effect as actual payment thereof
to the defendant or the person ultimately adjudged entitled
thereto.
SEC. 11
Entry not delayed by appeal; effect of reversal
The right of the plaintiff to enter upon the property of
the defendant and appropriate the same for public use or
purpose shall not be delayed by an appeal from the
judgment..
--
Normally, the effect of appeal is to stay/hold/suspend the
execution of the judgment.
However, in Expropriation, because it is intended for Public
Welfare or Public Use, the same could not stayed by an
Appeal.
But if the appellate court determines that plaintiff has
no right of expropriation, judgment shall be rendered ordering
the Regional Trial Court to forthwith enforce the restoration to
the defendant of the possession of the property, and to
determine the damages which the defendant sustained and
may recover by reason of the possession taken by the plaintiff.
--
For Just Compensation, ordinarily what comes to mind is only
the value of the property, HOWEVER, the SC in several cases
has ruled that Just Compensation refers not only to the
correct amount but also paying the land within reasonable
time [Land Bank of the Phils. v. Rodriguez – May 2010] [Apo
Fruits Corp. v. CA – Feb.6, 2007]
SEC. 12
Costs, by whom paid
The fees of the commissioners shall be taxed as a
part of the costs of the proceedings. All costs, except those of
rival claimants litigating their claims, shall be paid by the
plaintiff, unless an appeal is taken by the owner of the property
and the judgment is affirmed, in which event the costs of the
appeal shall be paid by the owner.
Sec. 13
Recording judgment, and its effect
The judgment entered in expropriation proceedings
shall state definitely, by an adequate description, the particular
property or interest therein expropriated, and the nature of the
public use or purpose for which it is expropriated. When real
estate is expropriated, a certified copy of such judgment shall
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
be recorded in the registry of deeds of the place in which the
property is situated, and its effect shall be to vest in the plaintiff
the title to the real estate so described for such public use or
purpose.
Sec.14
Power of guardian in such proceedings
The guardian or guardian ad litem of a minor or of a
person judicially declared to be incompetent may, with the
approval of the court first had, do and perform on behalf of his
ward any act, matter, or thing respecting the expropriation for
public use or purpose of property belonging to such minor or
person judicially declared to be incompetent, which such minor
or person judicially declared to be incompetent could do in
such proceedings if he were of age or competent
Effect if the government will not pay
Where expropriation judgment is final and executory,
the non-payment of the expropriation authority (meaning the
government) of just compensation does not entitle the land
owner to recover possession of their expropriated land. To
argue for the return of the property would ignore the fact that
their right against the expropriating authority is different from
that of an unpaired seller in ordinary sale to which the remedy
of rescission might perhaps apply, being an in rem proceeding
condemnation acts against the property.
[REYES vs. NATIONAL HOUSING AUTHORITY, January 20,
2003]
HOWEVER,
In another decision of the Supreme Court held that
nevertheless while the prevailing doctrine is that the non-
payment of just compensation does not entitle the land owner
the right of possession of the expropriated land, in cases
where the government failed to pay just compensation within 5
years from the finality of the judgment in the expropriation
proceeding the owner shall have the right to recover
possession of his property. This is in consonance with the
principle that the government cannot keep the property and
dishonor the judgment. [REPUBLIC vs LIM, June 29, 2005]
In such case, the landowner has the RIGHT TO
POSSESS. According to the Supreme Court, the expropriated
property has been used for 5 years while non-payment was
effected through legal maneuvers of the LCU which
expropriated the property.
[MAKATI vs CA, Oct 1, 1990]
The claimant could have availed of the remedy of
MANDAMUS, to compel the enactment of the necessary
appropriation ordinance and the disbursement of municipal
funds therefor.
[YUJUICO vs ATIENZA, Jr, October 12, 2005]
Two Options of the Unpaid Owner of real property
expropriated:
1. Repossess the property; or
2. File mandamus
TN!
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 The concept of just compensation refers not only the
correct amount to be paid to the owner but also the
payment within reasonable time from its taking.
UNDER THE LOCAL GOVERMENT CODE
SECTION 19, LGC:
A Local Government Unit, through its chief
executive and acting through its ordinance, may exercise
the power of eminent domain for PUBLIC USE or
PURPOSE or WELFARE FOR THE BENEFIT FOR THE
POOR AND THE LANDLESS, upon payment of just
compensation, provided however that the power of
eminent domain may not be exercise unless a valid and
definite offer has been previously made to the owner and
such offer was not accepted; provided further, that the
local government may immediately take possession of the
property upon the filing of the expropriation proceeding
and upon making a deposit with the proper court of at
least 15% of the fair market value at the time the
taking.
“Benefit for the poor and the landless”
No longer for public use, it is considered private use such
as socialize housing.
 Under the LGC, deposit must be made with the
proper court, unlike in Rule 67; it must be made with
the bank.
 Amount of deposit : LGC: at least 15% of the FMV
---oOo---
RULE 68
FORECLOSURE OF REAL ESTATE MORTGAGE
SEC.1
In an action for the foreclosure of a mortgage or other
encumbrance upon real estate, the complaint shall set forth the
date and due execution of the mortgage; its assignments, if
any; the names and residences of the mortgagor and the
mortgagee; a description of the mortgaged property; a
statement of the date of the note or other documentary
evidence of the obligation secured by the mortgage, the
amount claimed to be unpaid thereon; and the names and
residences of all persons having or claiming an interest in the
property subordinate in right to that of the holder of the
mortgage, all of whom shall be made defendants in the action.
--
 Real estate mortgage is an accessory contract and
usually the principal contract is a contract of loan.
TYPES OF FORECLOSURE:
1. EXTRAJUDICIAL FORECLOSURE - foreclosure not
order by the court and merely agreed by the parties.
The requirement for the creditor to avail of the
extrajudicial foreclosure is that the owner of the
property must be able to execute a SPECIAL
POWER OF ATTORNEY, authorizing the creditor
to conduct forecloses proceedings in the event
the debtor fails to pay his loan.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
The creditor can go to the sheriff or notary public to
conduct the auction sale but there must be prior
notice.
RIGHT OF REDEMPTION:
[Right is also available on execution sale]
 NATURAL PERSONS - 1 year from registration
 JURIDICAL PERSON - 90 days from registration
2. JUDICIAL FORECLOSURE – initiated by filing a
foreclosure complaint with the court and show before
the court that debtor failed to pay.
All subsequent mortgages or those who have interest
over the subject land must be included in the case
because their rights will be affected.
HEARING must be conducted.
“EQUITY OF REDEMPTION”
If the court finds that the complaint is meritorious, the
court will require the debtor to pay. The period to pay
is called EQUITY OF REDEMPTION.
Period: 90 – 120 days from the entry of
judgment
GR: There is no right of redemption under Judicial
Foreclosure sale.
EXC: When the creditor is a BANK, the debtor can
exercise his right of redemption (90days) and also the
equity of redemption.
AFTER THE LAPSE OF THE PERIOD TO
PAY:
The real property will be subject to public
auction. (JUDICIAL FORECLOSURE SALE)
TN!
 In Rule 39 [Execution of judgment], the procedure is
called EXECUTION SALE while in Rule 68 it is called
FORECLOSURE SALE.
REMEDIES OF A CREDITOR
a) File an action for judicial foreclosure of the real estate
mortgage; or
b) File a collection case – sum of money
 Once you have availed of the 2nd remedy, which is the
filing of the collection case, you can no longer
foreclose the real estate. If in the collection case, the
debtor failed to pay, the real property may be subject
to execution sale.
BAR QUESTION: [Distinguish the 3 types of sale]
1. Execution sale
2. Judicial Foreclosure sale
3. Extrajudicial Foreclosure sale
SEC. 2
If upon the trial in such action the court shall find the
facts set forth in the complaint to be true, it shall ascertain the
amount due to the plaintiff upon the mortgage debt or
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obligation, including interest and other charges as approved by
the court, and costs, and shall render judgment for the sum so
found due and order that the same be paid to the court or to
the judgment obligee within a period of not less than ninety
(90) days nor more than one hundred twenty (120) days from
the entry of judgment, and that in default of such payment the
property shall be sold at public auction to satisfy the judgment.
SEC. 3
Sale of mortgaged property; effect
When the defendant, after being directed to do so as
provided in the next preceding section, fails to pay the amount
of the judgment within the period specified therein, the court,
upon motion, shall order the property to be sold in the manner
and under the provisions of Rule 39 and other regulations
governing sales of real estate under execution. Such sale shall
not affect the rights of persons holding prior encumbrances
upon the property or a part thereof, and when confirmed by an
order of the court, also upon motion, it shall operate to divest
the rights in the property of all the parties to the action and to
vest their rights in the purchaser, subject to such rights of
redemption as may be allowed by law.
Upon the finality of the order of confirmation or upon
the expiration of the period of redemption when allowed by law,
the purchaser at the auction sale or last redemptioner, if any,
shall be entitled to the possession of the property unless a third
party is actually holding the same adversely to the judgment
obligor. The said purchaser or last redemptioner may secure a
writ of possession, upon motion, from the court which ordered
the foreclosure.
SEC. 4
Disposition of proceeds of sale
The amount realized from the foreclosure sale of the
mortgaged property shall, after deducting the costs of the sale,
be paid to the person foreclosing the mortgage, and when
there shall be any balance or residue, after paying off the
mortgage debt due, the same shall be paid to junior
encumbrances in the order of their priority, to be ascertained
by the court, or if there be no such encumbrances or there be a
balance or residue after payment to them, then to the
mortgagor or his duly authorized agent, or to the person
entitled to it.
--
Manner of how proceeds will be distributed
1. Mortgage debt
2. Costs of the sale
3. Balance/ residue - junior encumbrances (subsequent
mortgagee)
SEC. 5
How sale to proceed in case the debt is not all due
If the debt for which the mortgage or encumbrance
was held is not all due as provided in the judgment, as soon as
a sufficient portion of the property has been sold to pay the
total amount and the costs due, the sale shall terminate; and
afterwards, as often as more becomes due for principal or
interest and other valid charges, the court may, on motion,
order more to be sold. But if the property cannot be sold in
portions without prejudice to the parties, the whole shall be
ordered to be sold in the first instance, and the entire debt and
costs shall be paid, if the proceeds of the sale be sufficient
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
therefor, there being a rebate of interest where such rebate is
proper.
SEC.6
Deficiency judgment
If upon the sale of any real property as provided in the
next preceding section there be a balance due to the plaintiff
after applying the proceeds of the sale, the court, upon motion,
shall render judgment against the defendant for any such
balance for which, by the record of the case, he may be
personally liable to the plaintiff, upon which execution may
issue immediately if the balance is all due at the time of the
rendition of the judgment; otherwise, the plaintiff shall be
entitled to execution at such time as the balance remaining
becomes due under the terms of the original contract, which
time shall be stated in the judgment.
SEC.7
Registration
A certified copy of the final order of the court
confirming the sale shall be registered in the registry of deeds.
If no right of redemption exists, the certificate of title in the
name of the mortgagor shall be cancelled, and a new one
issued in the name of the purchaser.
Where a right of redemption exists, the certificate of
title in the name of the mortgagor shall not be cancelled, but
the certificate of sale and the order confirming the sale shall be
registered and a brief memorandum thereof made by the
registrar of deeds upon the certificate of title. In the event the
property is redeemed, the deed of redemption shall be
registered with the registry of deeds, and a brief memorandum
thereof shall be made by the registrar of deeds on said
certificate of title.
If the property is not redeemed, the final deed of sale
executed by the sheriff in favor of the purchaser at the
foreclosure sale shall be registered with the registry of deeds;
whereupon the certificate of title in the name of the mortgagor
shall be cancelled and a new one issued in the name of the
purchaser.
---oOo---
RULE 69
PARTITION
 Presupposes the existence of co-ownership.
TWO MODES OF PARTITION:
1. EXTRAJUDICIAL PARTITION- all the co-owners
have to do is to sign an extrajudicial deed of partition
and then registered to the registry of deeds.
This can only be availed if all the co-owners agree to
the partition.
2. JUDICIAL PARTITION
Two stages of Judicial Partition:
a) The court will determine whether co-ownership
really exists and whether partition is proper.
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Instances when co-ownership exists but
partition is improper
o Donor or testator prohibits the partition for a
certain period (20 years).
o Co-owners themselves have agreed not to
partition the property within a period of 10
years
b) The court will determine how to divide the
property.
SEC. 1
Complaint in action for partition of real estate
A person having the right to compel the partition of
real estate may do so as provided in this Rule, setting forth in
his complaint the nature and extent of his title and an adequate
description of the real estate of which partition is demanded
and joining as defendants all other persons interested in the
property.
--
For example:
In the case of 5 siblings where only 2
decided to file a case against one and the remaining 2
were hesitant
Unwilling plaintiffs should be included as defendants
because they are indispensable parties.
SEC. 2
Order for partition and partition by agreement thereunder
If after the trial the court finds that the plaintiff has the
right thereto, it shall order the partition of the real estate among
all the parties in interest. Thereupon the parties may, if they
are able to agree, make the partition among themselves by
proper instruments of conveyance, and the court shall confirm
the partition so agreed upon by all the parties, and such
partition, together with the order of the court confirming the
same, shall be recorded in the registry of deeds of the place in
which the property is situated.
A final order decreeing partition and accounting may
be appealed by any party aggrieved thereby.
--
 After the first stage, the court will have to issue an
order that indeed co-ownership exists and partition is
proper.
 If parties are able to agree, they shall make partition
among themselves. The court will give them the
opportunity to decide how partition be done.
 They shall submit “PROJECT OF PARTITION”- a
proposal on how partition be done.
 If they don’t agree among themselves, the court will
determine the partition.
TN! In Partition just like expropriation, multiple appeals
are allowed.
 The order of the court ordering partition can be
subject of an appeal.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
Under the Civil Code, the RIGHT TO ASK PARTITION is
IMPRESCRIPTIBLE, provided, the co-owners acknowledge
co-ownership.
 If the co-owners or co-owner claims to be the
exclusive owner/s, prescription will start to run.
The right of action to demand partition does not prescribe
except when one of the co-owners openly and adversely
occupies the property without recognizing co-ownership, in
which case Acquisitive prescription may set in. [See Quintos v.
Nicholas et al. June 25, 2014]
In this case SC affirmed that the right of action for partition is
imprescriptible. SC held that the dismissal of action for failure
to prosecute in case of partition is considered without
prejudice.
SEC.3
Commissioners to make partition when parties fail to
agree
If the parties are unable to agree upon the partition,
the court shall appoint not more than three (3) competent and
disinterested persons as commissioners to make the partition,
commanding them to set off to the plaintiff and to each party in
interest such part and proportion of the property as the court
shall direct.
--
Just like in expropriation, the appointment of commissioners in
partition is MANDATORY.
TN!
 There will only be commissioners when parties fail to
agree among themselves.
SEC. 5
Assignment or sale of real estate by
commissioners
When it is made to appear to the commissioners that
the real state, or a portion thereof, cannot be divided without
prejudice to the interests of the parties, the court may order it
assigned to one of the parties willing to take the same,
provided he pays to the other parties such amount as the
commissioners deem equitable, unless one of the interested
parties asks that the property be sold instead of being so
assigned, in which case the court shall order the
commissioners to sell the real estate at public sale under such
conditions and within such time as the court may determine.
--
Suppose the property is so small and it is impractical to divide
the property, what should be done?
For example:
A 100-sq meter property located in Colon,
(valued at Php70,000 per sq meter). There are 8
siblings. It would be impractical to divide.
The property may be assigned to one of the
parties willing to take it provided he pays the other
parties.
If one of the parties asks that the property is sold
instead of being so assigned. Proceeds of the sale
shall be divided among them.
SEC. 6
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Report of commissioners; proceedings not binding until
confirmed
The commissioners shall make a full and accurate report
to the court of all their proceedings as to the partition, or the
assignment of real estate to one of the parties, or the sale of
the same. Upon the filing of such report, the clerk of court shall
serve copies thereof on all the interested parties with notice
that they are allowed ten (10) days within which to file
objections to the findings of the report, if they so desire. No
proceeding had before or conducted by the commissioners and
rendered judgment thereon.
--
Under section 6, the commissioners shall be required to submit
report to the court. After the submission of the report, the
parties will be required to COMMENT OR OBJECT to the
report.
The court then will make a ruling or order whether to accept
the report or disregard the report or return it to the
commissioners for further study.
IOW, the court is not bound by the report of the
commissioners.
---oOo---
SEC. 8
Accounting for rent and profits in action for
partition
In an action for partition in accordance with this Rule,
a party shall recover from another his just share of rents and
profits received by such other party from the real estate in
question, and the judgment shall include an allowance for such
rents and profits.
SEC. 9
Power of guardian in such proceedings.
The guardian or guardian ad litem of a minor or person
judicially declared to be incompetent may, with the approval of
the court first had, do and perform on behalf of his ward any
act, matter, or thing respecting the partition of real estate,
which the minor or person judicially declared to be incompetent
could do in partition proceedings if he were of age or
competent.
SEC. 10
Costs and expenses to be taxed and collected
The court shall equitably tax and apportion between
or among the parties the costs and expenses which accrue in
the action, including the compensation of the commissioners,
having regard to the interests of the parties, and execution may
issue therefor as in other cases.
SEC. 11
The judgment and its effect; copy to be recorded in
registry of deeds
If actual partition of property is made, the judgment
shall state definitely, by metes and bounds and adequate
description, the particular portion of the real estate assigned to
each party, and the effect of the judgment shall be to vest in
each party to the action in severalty the portion of the real
estate assigned to him. If the whole property is assigned to one
of the parties upon his paying to the others the sum or sums
ordered by the court, the judgment shall state the fact of such
payment and of the assignment of the real estate to the party
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
making the payment, and the effect of the judgment shall be to
vest in the party making the payment the whole of the real
estate free from any interest on the part of the other parties to
the action. If the property is sold and the sale confirmed by the
court, the judgment shall state the name of the purchaser or
purchasers and a definite description of the parcels of real
estate sold to each purchaser, and the effect of the judgment
shall be to vest the real estate in the purchaser or purchasers
making the payment or payments, free from the claims of any
of the parties to the action. A certified copy of the judgment
shall in either case be recorded in the registry of deeds of the
place in which the real estate is situated, and the expenses of
such recording shall be taxed as part of the costs of the action.
--
The court now will have to indicate the portion that goes to A,
B, C and so on.
But if the whole property is assigned to one of the parties upon
his paying to the others the sum or sums ordered by the court,
the judgment shall state the fact of such payment and of the
assignment of the real estate to the party making the payment.
SEC. 12
Neither paramount rights nor amicable partition affected
by this Rule
Nothing in this Rule contained shall be construed so
as to prejudice, defeat, or destroy the right or title of any
person claiming the real estate involved by title under any
other person, or by title paramount to the title of the parties
among whom the partition may have been made, nor so as to
restrict or prevent persons holding real estate jointly or in
common from making an amicable partition thereof by
agreement and suitable instruments of conveyance without
recourse to an action
--
IOW, rights of other persons such as the mortgagee shall not
be affected by the partition.
SEC. 13
Partition of personal property
The provisions of this Rule shall apply to partitions of
estates composed of personal property, or of both real and
personal property, in so far as the same may be applicable.
---oOo---
RULE 70
FORCIBLE ENTRY AND UNLAWFUL DETAINER
 Two forms of ejectment.
 It is basic to know the difference between the two.
1. FORCIBLE ENTRY
2. UNLAWFUL DETAINER
Three ways of recovering possession of real property:
1. ACCION REIVINDICATORIA – recovery of
ownership and possession. The possession of the
plaintiff is based on ownership. Both plaintiff and
defendant is claiming possession and ownership.
2. ACCION PUBLICIANA - The defendant is not
claiming to be an owner but he is withholding
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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
possession from the plaintiff. This is a case when the
ejectment case was not filed within 1 year.
3. ACCION INTERDICTAL / EJECTMENT
a. Forcible Entry and Unlawful Detainer
b. The issue here is possession not ownership.
 Rule 70 is 99% copied from the Summary Procedure.
SEC. 1
Who may institute proceedings, and when
Subject to the provisions of the next succeeding
section, a person deprived of the possession of any land or
building by FORCE, INTIMIDATION, THREAT, STRATEGY,
OR STEALTH, [FISTS] or a lessor, vendor, vendee, or other
person against whom the possession of any land or
building is unlawfully withheld after the expiration or
termination of the right to hold possession, by virtue of
any contract, express or implied, or the legal
representatives or assigns of any such lessor, vendor,
vendee, or other person, may, at any time within one (1) year
after such unlawful deprivation or withholding of possession,
bring an action in the proper Municipal Trial Court against the
person or persons unlawfully withholding or depriving of
possession, or any person or persons claiming under them, for
the restitution of such possession, together with damages and
costs.
--
The MANNER OF DISPOSSESSION will determine the cause
of action. [Through FISTS]
a) If dispossessed of the property – Forcible
Entry
The entry of the defendant is unlawful such as
through FISTS, then your cause of action is
Forcible Entry
b) If possession unlawfully withheld – Unlawful
detainer
If the entry is lawful such as through a contract,
express or implied, or with the permission or
tolerance by the owner, your cause of action is
Unlawful Detainer
 Do not state in your answer all of those (FISTS).
 If ousted through stealth, just alleged that he was
dispossessed through stealth, do not include the
others like force. Just state only 1.
 But the force, intimidation and threat can be combine
and also the stealth and strategy.
 But there is no such thing as force and stealth.
There is stealth if the defendant enters the property
without knowledge of the owner or he were not
present when he enters the property.
For Example:
Your sibling asked to build a house in your
lot and you allowed him. Now, your child wanted to
build a house in your lot also. You are now asking
your sibling if he can leave but he refused and asked
payment for what he built. So that is by tolerance or
with permission. So, what is now your remedy? You
go to court, at any time within 1 year from the unlawful
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
deprivation and file for Unlawful Detainer. Where? In
the first level court.
 All cases of Forcible Entry and Unlawful Detainer
regardless of the rental collectibles or the amount
of damages, shall be filed with the first level
courts.
o As regards, UD, the counting of 1 year
period shall be reckoned from the date of
the demand. If there were more than 1
demand made, then the date of the last
demand.
o As regards FE, if the plaintiff is ousted
through FIST, then 1 year from the date of
dispossession. If you are ousted through
stealth, then 1 year from the date of
discovery.
 In FE, demand to vacate is NOT necessary unlike in
UD.
 In FE, the entry was unlawful from the start, while in
UD entry was lawful from the start.
SEC. 2
Lessor to proceed against lessee only after
demand
Unless otherwise stipulated, such action by the lesser
shall be commenced only after demand to pay or comply with
the conditions of the lease and to vacate is made upon the
lessee, or by serving written notice of such demand upon the
person found on the premises if no person be found thereon,
and the lessee fails to comply therewith after fifteen (15) days
in the case of land or five (5) days in the case of buildings.
--
Only applies to Unlawful Detainer.
TN!
 it must be DEMAND TO PAY AND TO VACATE. But
this applies only if you are asking for the rentals. This
does not apply when the stay was by tolerance as in
our previous example.
 If the defendant/lessee is updated on his payment but
he violated some of the terms of the contract. Send
first a demand to comply with the condition. But if he
violated the terms of the contract and did not also pay
for the rentals, then send DEMAND TO COMPLY
WITH THE CONDITION, DEMAND TO PAY, AND
DEMAND TO VACATE.
 Fifteen (15) days in the case of land or five (5) days in
the case of buildings period.
 If you failed to comply with such period, you do not
have a cause of action.
For Example:
The terms in the contract is that no sub leasing.
But the defendant sub-leases the property so he
violated the terms.
Supposing, after the demand to pay and vacate was
received by the lessee, he paid the rentals only but he
did not vacate, will the ejectment case prosper?
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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
Yes, because both must be complied.
[Read Fernandez vs Amagna 601 SCRA 330]
 It is the demand to pay and vacate which makes
the possession unlawful. Mere failure to pay the
rent, or mere violation of the conditions, does not
make the possession. [Canaynay vs Sarmiento 79
Phil. 36]
 If the plaintiff will file an ejectment case without a prior
demand, the case will be dismissed because demand
to pay and vacate is a JURISDICTIONAL
REQUIREMENT.
“TACITA RECONDUCCION”
It is the automatic renewal of the contract of lease if
upon expiration, no demand to pay and vacate is made. The
contract shall then be for period depending how payment is
made i.e., month to month basis.
 Accion Publiciana is an ordinary proceeding to
determine the better right of possession of realty
independent of title. It is an ejectment suit filed after
the expiration of 1 year from the accrual of the cause
of action or from the unlawful withholding of
possession of the realty.
[Modesto vs Orbina 633 SCRA 383]
 The subsequent acceptance of the lessor of the rental
/ payment does not legitimize the unlawful character
of the possession unless it can be understood that the
plaintiff consented to the continuous possession of
the tenant. So, if after the plaintiff sends the demand
to pay and vacate, the defendant pays the rentals,
then plaintiff accepts and he did not pursue filing a
case, then that will be consent to the continued
occupation of the tenant.
CRUZ vs CATAPANG FEB 12, 2008
There are 4 siblings. One sibling consented/allowed a
friend to live in the property. The 3 complained. Can
the 3 eject the friend? Yes
A co-owner cannot give a valid consent to another to
build a house on the co-owned property which is an
act tantamount to devoting the property to his own or
his exclusive use.
Another distinction between FE and UD, in FE it is necessary
that the plaintiff must be of prior possession of the property
from that of the defendant, whereas in UD, the plaintiff need
not be in prior possession.
For Example:
A is the owner of the lot. He leases the lot
with B. Here comes C, enters the property. Can A file
a Forcible Entry case against C? NO, because A is
not in prior possession but B. We are talking here of
possession.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
What determines the cause of action, whether it is FE
or UD, is the nature of the defendant’s entry into the
property. If the entry is lawful from the start, but later
on becomes unlawful, the cause of action is Unlawful
Detainer.
Supposed, the complaint did not alleged as
to the manner of entry, what will happen? The case
will be dismissed for lack of jurisdiction.
CASE:
A was the owner of a parcel of land located
somewhere in Santander, Cebu. A, for the mean time
did not occupy the said land while he was working in
Cebu City. When he got home to Santander, he
noticed that a certain B was already occupying his
land.
In the course of their conversation A and B
agreed for the time being that B will occupy the same
and look upon the land while A is away and shall
vacate the same when A decided to use the land.
After 5 years, when A was dismissed from
work, he decided to go back to Santander. B now
refused to vacate. A filed an action for ejectment.
Will the case prosper?
NO. The first entry was made through stealth; the
action should be forcible entry however the 1 year
period has already lapsed.
The proper action should be accion publiciana which
recovery of possession which is brought when the
dispossession lasted for more than 1 year.
Why forcible entry? Because there was stealth
when B occupy the land
TN!
 The tolerance must be present right at the start of
the stay or occupation, if tolerance or permission is
given later, it will not convert the action from forcible
entry to unlawful detainer, and the demand to vacant
does not change the cause of action.
 Unlawful detainer and forcible entry belongs to the
jurisdiction of the first level courts while accion
publiciana depends on the assessed value of the
property. The same with accion reinvindicatoria.
 In cases of accion publiciana and reinvindicatoria, if
the amount of the assessed value of the property is
not stated in the complaint, the same shall be dismiss.
MUNOZ vs. CA 214 SCRA 216
Demand to vacate made by the plaintiff cannot
change the nature of the possession or convert the
action from forcible entry to unlawful detainer.
When the complaint fails to aver facts constitutive of
forcible entry or unlawful detainer, as when it does not
state how the entry was effected or how and when the
dispossession started, the action should either be an
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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
accion publiciana or accion reinvindicatoria.
PTA vs. HERZENSTIEL ET AL.,
GR NO 196741 JULY 17, 2013
[Judge D decided the case in the MTC]
Facts:
Petitioner Philippine Tourism Authority is the owner of
the subject property and other parcels of land located
Moalboal, Cebu since February 12, 1981 when it
bought the same from Tri-Island Corporate Holdings,
Inc.
It had then been in actual, physical, continuous, and
uninterrupted possession of the subject property and
had declared the same for taxation purposes.
Sometime in 1997, however, respondents Pedro
Tapales, Luis Tapales, Romeo Tapales (Tapaleses),
and Sabandal Herzenstiel (respondents) by force,
strategy and stealth entered into the 2,940 square
meter portion of the subject property, on which they
proceeded to cut down some coconut trees,
introduced improvements and fenced the area.
Petitioner made demands to vacate, which
respondents ignored, prompting the filing of a forcible
entry complaint against them before the 12th
Municipal Circuit Trial Court of Moalboal-Alcantara-
Badian-Alegria, Cebu (MCTC).
In their Answer with Counterclaim, the Tapaleses
acknowledged that the subject property had already
been sold by its administrator, Josefina Abrenica, to
Tri-Island. They, however, claimed that the sale was
tainted with force and intimidation and hence void,
including the subsequent transactions covering the
same property. Notwithstanding the sale, they
remained in actual and physical possession of the
subject property and even introduced improvements
thereon. Consequently, absent any proof of prior
possession on the part of petitioner, they claimed that
the forcible entry complaint must necessarily be
dismissed.
MCTC RULING:
ordering respondents to: (a) vacate the subject
property and remove all the improvements introduced
therein; (b) pay petitioner, jointly and severally, the
amount of P2,000.00 as monthly rental from the date
of judicial demand, i.e., March 18, 1998, until they
have effectively vacated the premises; and (c) pay
the costs of suit.
The MCTC declared that petitioner is the lawful owner
of the subject property and had been in prior
possession thereof as shown by the following: (a) the
deed of sale dated February 12, 1981; (b) the tax
declarations issued in its name; and (c) its act of
leasing portions of the subject property to others in
the exercise of its right of ownership and possession.
In contrast, respondents failed to substantiate their
claim of ownership and possession. Neither have
they established any relationship with Abrenica, the
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
previous owner of the subject property. On the other
hand, Sabandal-Herzenstiel never claimed to be the
owner of the same and even acknowledged
petitioner’s ownership when she offered to buy back
the land
RTC RULING: affirmed MCTC
CA: reversed
Issue: Whether or not the respondents may be
lawfully ejected from the subject property.
RULING:
Yes. In an action for forcible entry, the plaintiff must
prove that he was in prior possession of the disputed
property and that the defendant deprived him of his
possession by any of the means provided for in
Section 1, Rule 70 of the Rules, namely: force,
intimidation, threats, strategy, and stealth.
In this case, respondents failed to establish their prior
and continued possession of the subject property
after its sale in favor of petitioner in 1981. On the
contrary, they even admitted in their answer to the
complaint that petitioner exercised dominion over the
same by instituting caretakers and leasing portions
thereof to third persons. Suffice it to state that
possession in the eyes of the law does not mean that
a man has to have his feet on every square meter of
the ground before he is deemed in possession. Thus,
finding petitioner’s assertion to be well-founded, the
MCTC properly adjudged petitioner to have prior
possession over the subject property as against
Sabandal-Herzenstiel, who never claimed ownership
or possession thereof.
Petitioner’s supposed failure to describe in detail the
manner of respondents’ entry into the subject
property is inconsequential. Jurisprudence states that
proving the fact of unlawful entry and the exclusion of
the lawful possessor – as petitioner had sufficiently
demonstrated – would necessarily imply the use of
force
SEC. 16
Resolving defense of ownership
When the defendant raises the defense of ownership
in his pleadings and the question of possession cannot be
resolved without deciding the issue of ownership, the issue of
ownership shall be resolved only to determine the issue of
possession.
--
 In unlawful detainer and forcible entry cases the issue
to be resolve is merely possession and not
ownership.
 The issue to be resolve is “Who between the
defendant and the plaintiff has the better right to
possess the property.
 The court does not resolve the issue on ownership
unless the issue on possession cannot be resolve
without resolving the issue on ownership.
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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
GR: issue is only on POSSESSION
EXC: if both of the parties claim ownership over the
disputed property
[Ruling of the court on the issue of ownership is merely
temporary or provisional and does not amount to res
judicata]
 The party or any of the party should file an
appropriate case in court just to resolve the issue on
ownership.
 No res judicata because in ejectment cases, what is
merely to be resolve is on the issue of possession.
---oOo---
“DEMAND TO VACATE”
GR: In an unlawful detainer, demand to pay and vacate must
be made before filing the case in court.
EXC: demand to vacate is not necessary when:
1. Where the purpose of the case is to terminate the
lease by reason of the expiry of the term and is not
failure to pay the rentals and failure to comply with the
terms and conditions of the lease contract.
2. When the defendant is not a tenant but a mere
intruder
3. Where the purpose of the ejectment is for the
enforcement of the terms of the contract.
[Republic vs Sunbar Realty Corporation, June 20,
2012]
“UNLAWFUL DETAINER”
Elements:
1. Possession over the property by the defendant was
by contract or by mere tolerance of the plaintiff
2. Possession became illegal upon the plaintiff’s notice
of demand to vacate
3. Defendant remains in possession of the property and
deprives the plaintiff of the latter’s enjoyment over the
property
4. Within one year from the last demand, the plaintiff
files an action for unlawful detainer.
SEC. 3
Summary procedure
Except in cases covered by the agricultural tenancy
laws or when the law otherwise expressly provides, all actions
for forcible entry and unlawful detainer, irrespective of the
amount of damages or unpaid rentals sought to be recovered,
shall be governed by the summary procedure hereunder
provided.
--
TN!
In ejectment cases, there are only two kinds of damages that
the court may award:
1) Rentals, back rentals or rentals in arrears in a form of
actual damages
2) Attorney’s fees
[As to exemplary and moral damages, the same is
awarded ONLY to the defendant if he wins]
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
“DEFENSE OF TENANCY”
GR: the answer of the defendant cannot dismiss the case
EXC: if the defendant in his answer alleged agricultural
tenancy under RA 9700 amending the carp law.
OFELADA VS ANDAL
JANUARY 26, 2015
A court does not lose jurisdiction over an
ejectment case by simple expedient of a party
raising as a defense therein the alleged existence
of a tenancy relationship between the parties. It is
the duty of the court to receive evidence to
determine the veracity of the allegations of
tenancy.
While it is true that the jurisdiction of the
court in a suit for ejectment is determined by the
allegations in the complaint, yet where tenancy is
averred as a defense and upon hearing is shown
to be the real issue, the court should dismiss the
case or want of jurisdiction.
The mere assertion of tenancy as a
defense does not ipso facto deprive the court of
jurisdiction over an ejectment case.
If there is an allegation of tenancy, what the court should do is
refer it to the DAR and require the DAR to investigate to prove
that whether it is true that there was an agricultural tenancy
relationship exists between the parties.
SEC. 4
Pleadings allowed
The only pleadings allowed to be filed are the
complaint, compulsory counterclaim and cross-claim pleaded
in the answer, and the answers thereto. All pleadings shall be
verified.
--
 Complaint
 Answer which may contain compulsory counterclaim
and cross claim.
 Answer to the compulsory counter claim and cross
claim
IOW, there are only three pleadings allowed, the same as
summary procedure. No other pleadings allowed. Permissive
counter claim is not allowed.
SEC. 5
Action on complaint
The court may, from an examination of the allegations
in the complaint and such evidence as may be attached
thereto, dismiss the case outright on any of the grounds for the
dismissal of a civil action which are apparent therein. If no
ground for dismissal is found, it shall forthwith issue summons.
--
Action of the court
Upon the filing of the case in court, the court has to
determine whether or not there is a ground for the dismissal of
a case found in the face of the complaint.
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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
Remember Rule 16: proper venue, jurisdiction, etc.
 If upon examination the allegations in the complaint,
the court finds any of the grounds to dismiss the case,
the court can motu proprio dismiss the case.
 This is different from an ordinary case. Those cases
under the ordinary procedure the court cannot motu
proprio, as a rule, dismiss the case the court has to
wait motion to dismiss from the defendant.
 Although there are instances that the court may
dismiss the case motu proprio in the ordinary cases,
however here this is the same with the rule on
summary procedure; motion to dismiss is a prohibited
pleading.
 If upon examination the allegations in the complaint,
the court finds any of the grounds to dismiss the case,
the court can motu proprio dismiss the case.
SEC. 6
Answer
Within ten (10) days from service of summons, the
defendant shall file his answer to the complaint and serve a
copy thereof on the plaintiff. Affirmative and negative defenses
not pleaded therein shall be deemed waived, except lack of
jurisdiction over the subject matter. Cross-claims and
compulsory counterclaims not asserted in the answer shall be
considered barred. The answer to counterclaims or cross-
claims shall be served and filed within ten (10) days from
service of the answer in which they are pleaded.
--
If the court finds a ground for dismissal then it shall issue
summons and the defendant is given only 10 days (usually in
ordinary proceeding: 15 days but under the summary
procedure it is only ten days).
GR: Affirmative and negative defenses not pleaded therein
shall be deemed waived
EXC: Lack of jurisdiction over the subject matter. Cross-claims
and compulsory counterclaims not asserted in the answer shall
be considered barred if not alleged in the answer.
The answer to counterclaims or cross-claims shall be served
and filed within ten (10) days.
SEC. 7
Effect of failure to answer
Should the defendant fail to answer the complaint
within the period above provided, the court, motu proprio or on
motion of the plaintiff, shall render judgment as may be
warranted by the facts alleged in the complaint and limited to
what is prayed for therein. The court may in its discretion
reduce the amount of damages and attorney’s fees claimed for
being excessive or otherwise unconscionable, without
prejudice to the applicability of section 3(c), Rule 9 if there are
two or more defendants.
--
Effect if the defendant fails to file an answer
The plaintiff cannot file a motion to declare the defendant in
default. That is a prohibited pleading.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
In the event that the defendant fails to file his answer, the
court can motu proprio render decision (not dismiss the
case) based on the allegation in the complaint, motu proprio or
upon motion of the plaintiff. In other words when the defendant
fails to file an answer, instead of filing a motion to declare the
defendant in default, the plaintiff will file MOTION TO RENDER
THE DECISION.
JOSE VS ALFUERTO
GR. NO 169380
The title was for unlawful detainer and there was no
allegation in the body as to the manner of entry, so
that is not an unlawful detainer.
According to the SC, the court cannot treat the
action as one of accion publiciana or accion
reinvindicatoria because these actions are not
interchangeable, and their differences constitutes
far more than technical
SEC. 8
Preliminary conference; appearance of parties
Not later than thirty (30) days after the last answer is
filed, a preliminary conference shall be held. The provisions of
Rule 18 on pre-trial shall be applicable to the preliminary
conference unless inconsistent with the provisions of this Rule.
The failure of the plaintiff to appear in the preliminary
conference shall be cause for the dismissal of his
complaint. The defendant who appears in the absence of the
plaintiff shall be entitled to judgment on his counterclaim in
accordance with the next preceding section. All cross-claims
shall be dismissed.
If a sole defendant shall fail to appear, the plaintiff
shall likewise be entitled to judgment in accordance with the
next preceding section. This procedure shall not apply where
one of two or more defendants sued under a common cause of
action who had pleaded a common defense shall appear at the
preliminary conference.
No postponement of the preliminary conference shall
be granted except for highly meritorious grounds and without
prejudice to such sanctions as the court in the exercise of
sound discretion may impose on the movant.
--
There must be a filing of the the pre-trial brief, the trial court in
ejectment cases can require the parties to submit pre-trial brief.
 Failure to appear on the part of the plaintiff shall
cause the dismissal of the case.
 Failure on the defendant to appear shall cause the
plaintiff to have the case decided based on the
allegation of the complaint except when there are two
or more defendants.
 If there are two or more defendants and some of the
defendants file the answer while the others did not
and they have common defenses or they are sued
under common cause of action then they defaulted
Page 198
 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
defendants can benefit from the answer of the
answering defendants.
TN!
 There is no trial in ejectment cases; the same with
summary procedure, the court will just require the
parties to submit their positions attaching all
supporting evidence. The witness testimony shall be
thru an affidavit.
SEC. 9
Record of preliminary conference
Within five (5) days after the termination of the
preliminary conference, the court shall issue an order stating
the matters taken up therein, including but not limited to:
1. Whether the parties have arrived at an amicable
settlement, and if so, the terms thereof;
2. The stipulations or admissions entered into by the
parties;
3. Whether, on the basis of the pleadings and the
stipulations and admissions made by the parties,
judgment may be rendered without the need of further
proceedings, in which event the judgment shall be
rendered within thirty (30) days from issuance of the
order;
4. A clear specification of material facts which remain
controverted; and
5. Such other matters intended to expedite the
disposition of the case.
“PRELIMINARY CONFERENCE ORDER”
After the preliminary conference and once it is terminated
the court will issue an order stating what transpired during
the preliminary conference, such as whether there was
amicable settlement; what are the facts stipulated; what are the
exhibits marked; who are the witnesses to be presented
--
 Usually there is only one issue in the ejectment case:
“which of the parties is entitled to physical possession
or whether or not the defendant can be legally ejected
from the premises.”
 Then there are also sub-issues: “which of the parties
is entitled to claim for damages or attorney’s fees can
be awarded.”
TN!
 The Preliminary conference order to be issued by the
court is very important. It is important because the
date of receipt by the parties of the copy of the order
would be the reckoning period for the counting of
the ten-day period.
“10-day period”
The period within which the parties are required to submit
position papers
 In ejectment cases there is no trial, meaning there is
no reception of evidence. There is no presentation of
witnesses.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
 What would happen is after preliminary conference
the parties will just be required to submit position
papers.
SEC. 10
Submission of affidavits and position papers
Within ten (10) days from receipt of the order
mentioned in the next preceding section, the parties shall
submit the affidavits of their witnesses and other evidence on
the factual issues defined in the order, together with their
position papers setting forth the law and the facts relied upon
by them.
--
Ten (10) days from the receipt of order the parties should
submit their position paper and attached to the position papers
should be the affidavits of their witnesses. Since there is no
presentation of witnesses, the witnesses will have to execute
affidavits and their affidavit should be attached to their position
papers.
For example:
It is claimed that a party is diligently paying the rentals
then the receipts must be attached.
SEC. 11
Period for rendition of judgment
Within thirty (30) days after receipt of the affidavits
and position papers, or the expiration of the period for filing the
same, the court shall render judgment.
However, should the court find it necessary to clarify
certain material facts, it may, during the said period, issue an
order specifying the matters to be clarified, and require the
parties to submit affidavits or other evidence on the said
matters within ten (10) days from receipt of said order.
Judgment shall be rendered within fifteen (15) days after the
receipt of the last affidavit or the expiration of the period for
filing the same.
The court shall not resort to the foregoing procedure
just to gain time for the rendition of the judgment.
--
Period to render decision
Within 30 days from:
a) Receipt of the affidavits and position papers
b) Expiration of the period to file the same
SEC. 12
Referral for conciliation
Cases requiring referral for conciliation, where there is
no showing of compliance with such requirement, shall be
dismissed without prejudice, and may be revived only after that
requirement shall have been complied with.
--
GR: A motion to dismiss is not allowed to be filed
EXC: Motion to dismiss based on:
1. On the ground of lack of jurisdiction
2. Non- compliance of Katarungan Pambarangay.
When non-referral to Barangay Conciliation raised
 In civil cases, it must be raised in the answer or
motion to dismiss if allowed
Page 199
 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
 In criminal cases, it must be raised before
arraignment. Otherwise, it is deemed waived.
SEC. 13
Prohibited pleadings and motions
The following petitions, motions, or pleadings shall not be
allowed:
1. Motion to dismiss the complaint except on the ground
of lack of jurisdiction over the subject matter, or failure
to comply with section 12;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
 If discontented with the decision of the court, file
an appeal.
 If a motion for reconsideration is filed, the period
to file an appeal will not be stopped because that
is a prohibited pleading and therefore the
decision will now become final and executory.
TN!
 The Rule in Summary Procedure applies
only in the first level courts.
 When the case is appealed in the RTC,
summary procedure will no longer apply. So,
when the RTC renders a decision, motion for
reconsideration can be filed over the
judgment.
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings,
affidavits or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints;
12. Interventions.
--
 If an ejectment case is filed against the defendant
who also claims ownership over the property, the
defendant filed another case. Is there litis pendentia?
NO! Because the issues are different. Here, the issue
is possession while in the other case it is ownership.
 If the defendant files a cancellation of title because
the plaintiff was able to obtain a title over the land, the
defendant questioned the validity of the title. Would
that create res judicata? Litis pendentia? NO! The
issue here is merely possession.
 Injunction suit, accion publiciana, quieting of title,
specific performance, reconveyance of property,
annulment of sale- these cases do not create litis
pendentia or res judicata. (REMEMBER THE
REQUISITES OF RES JUDICATA AND LITIS
PENDENTIA
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
CASE: HILARIO VS CA
In Wilmon Auto Supply Corporation, et al. vs. Court of
Appeals, et al., the Court catalogued the cases which should
not be regarded as prejudicial to an ejectment suit, to wit:
1. Injunction suits instituted in the RTC by defendants in
ejectment actions in the municipal trial courts or other
courts of the first level do not abate the latter; and
neither do proceedings on consignation of rentals
2. An "accion publiciana" does not suspend an
ejectment suit against the plaintiff in the former.
3. A "writ of possession case" where ownership is
concededly the principal issue before the Regional
Trial Court does not preclude nor bar the execution of
the judgment in an unlawful detainer suit where the
only issue involved is the material possession or
possession de facto of the premises.
4. An action for quieting of title to property is not bar to
an ejectment suit involving the same property.
5. Suits for specific performance with damages do not
affect ejectment actions (e.g., to compel renewal of a
lease contract).
6. An action for reformation of instrument (e.g., from
deed of absolute sale to one of sale with pacto de
retro) does not suspend an ejectment suit between
the same parties.
7. An action for reconveyance of property or "accion
reinvindicatoria" also has no effect on ejectment suits
regarding the same property; annulment of sale and
reconveyance.
8. Neither do suits for annulment of sale, or title, or
document affecting property operate to abate
ejectment actions respecting the same property
SEC. 14
Affidavits
The affidavits required to be submitted under this
Rule shall state only facts of direct personal knowledge of the
affiants which are admissible in evidence, and shall show their
competence to testify to the matters stated therein.
A violation of this requirement may subject the party
or the counsel who submits the same to disciplinary action,
and shall be cause to expunge the inadmissible affidavit or
portion thereof from the record.
SEC. 15
Preliminary injunction
The court may grant preliminary injunction, in
accordance with the provisions of Rule 58 hereof, to prevent
the defendant from committing further acts of dispossession
against the plaintiff.
Page 200
 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
A possessor deprived of his possession through
forcible from the filing of the complaint, present a motion in the
action for forcible entry or unlawful detainer for the issuance of
a writ of preliminary mandatory injunction to restore him in his
possession. The court shall decide the motion within thirty (30)
days from the filing thereof.
SEC.16
Resolving defense of ownership
When the defendant raises the defense of ownership
in his pleadings and the question of possession cannot be
resolved without deciding the issue of ownership, the issue of
ownership shall be resolved only to determine the issue of
possession.
--
The issue in ejectment case is possession which is a DE
FACTO POSSESSION.
“DE FACTO POSSESSION”
A kind of possession which is not based on ownership
because the defendant usually does not claim ownership
Possession which is the subject matter of the action is
merely material or physical possession which has nothing to do
with ownership. It is not the same with possession that arises
from ownership.
SEC. 17
Judgment
If after trial court finds that the allegations of the
complaint are true, it shall render judgment in favor of the
plaintiff for the restitution of the premises, the sum justly due as
arrears of rent or as reasonable compensation for the use and
occupation of the premises, attorney's fees and costs. If a
counterclaim is established, the court shall render judgment for
the sum found in arrears from either party and award costs as
justice requires.
--
 If the plaintiff will win, the Court will order the
defendant to vacate plus payment of damages.
 Damages to be awarded: back rentals or rentals in
arrear and attorney's fees.
 No moral damages or exemplary damages on the part
of the plaintiff.
SEC. 18
Judgment conclusive only on possession; not conclusive
in actions involving title or ownership
The judgment rendered in an action for forcible entry
or detainer s hall be conclusive with respect to the possession
only and shall in no wise bind the title or affect the ownership
of the land or building. Such judgment shall not bar an action
between the same parties respecting title to the land or
building.
The judgment or final order shall be appealable to the
appropriate Regional Trial Court which shall decide the same
on the basis of the entire record of the proceedings had in the
court of origin and such memoranda and/or briefs as may be
submitted by the parties or required by the Regional Trial
Court.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
SEC. 19
Immediate execution of judgment; how to stay
same
If judgment is rendered against the defendant,
execution shall issue immediately upon motion unless an
appeal has been perfected and the defendant to stay execution
files a sufficient supersedeas bond, approved by the Municipal
Trial Court and executed in favor of the plaintiff to pay the
rents, damages, and costs accruing down to the time of the
judgment appealed from, and unless, during the pendency of
the appeal, he deposits with the appellate court the amount of
rent due from time to time under the contract, if any, as
determined by the judgment of the Municipal Trial Court. In the
absence of a contract, he shall deposit with the Regional Trial
Court the reasonable value of the use and occupation of the
premises for the preceding month or period at the rate
determined by the judgment of the lower court on or before the
tenth day of each succeeding month or period. The
supersedeas bond shall be transmitted by the Municipal Trial
Court, with the papers, to the clerk of the Regional Trial Court
to which the action is appealed.
All amounts so paid to the appellate court shall be
deposited with said court or authorized government depositary
bank, and shall be held there until the final disposition of the
appeal, unless the court, by agreement of the interested
parties, or in the absence of reasonable grounds of opposition
to a motion to withdraw, or for justifiable reasons, shall decree
otherwise. Should the defendant fail to make the payments
above prescribed from time to time during the pendency of the
appeal, the appellate court, upon motion of the plaintiff, and
upon proof of such failure, shall order the execution of the
judgment appealed from with respect to the restoration of
possession, but such execution shall not be a bar to the appeal
taking its course until the final disposition thereof on the merits.
After the case is decided by the Regional Trial Court,
any money paid to the court by the defendant for purposes of
the stay of execution shall be disposed of in accordance with
the provisions of the judgment of the Regional Trial Court. In
any case wherein it appears that the defendant has been
deprived of the lawful possession of land or building pending
the appeal by virtue of the execution of the judgment of the
Municipal Trial Court, damages for such deprivation of
possession and restoration of possession and restoration of
possession may be allowed the defendant in the judgment of
the Regional Trial Court disposing of the appeal.
--
For example:
If the defendant losses, then in the case it
was only the defendant spouses who were impleaded
as parties, the children and other family members
were not included, can the non-impleaded parties be
also ordered to vacate?
Yes, judgment on ejectment suit is also
binding not only upon the defendants but also against
those not parties thereto if they are;
1. Trespassers
2. Squatters
3. Agents of the defendant
4. Guest of the occupants of the premises
5. Transferees pendente lite
6. Subleases
7. Co-leases
Page 201
 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
8. Members of the family; and
9. Other privies of the defendant
 Ejectment case is a real action but in personam which
means binding only between the parties.
 In ejectment case, decision is immediately
executory.
 Mere filing of a notice of appeal will not stay the
execution.
In order to stay the execution, the following should be done:
1. File a notice of appeal within the period
2. Post superdeas bond.
 Superdeas bond will answer the amount of damages
awarded by the court particularly the back rental.
 The amount of superdeas bond can be easily
determined, look at the amount of the back rentals
awarded by the Court.
 The Court does not need to fix the superdeas bond.
For Example:
The court did not award back rentals because the
defendant was staying by mere tolerance but the court
awarded attorney’s fees in the amount of Php20,000. Is
the defendant required to post a supersedeas bond? No.
Because supersedeas bond refers only to the back
rentals.
When should the supersedeas bond be posted?
Within the period to file an appeal
Where should you post supersedeas bond?
With the clerk of court.
3. While the case is pending with the RTC, the
defendant should pay periodically the rentals.
TN! Failure to do any of the 3 things will warrant the
execution of the judgment pending appeal.
Which court will issue the writ of execution?
It depends where the records are:
a) MTC – if the record is not yet forwarded to the RTC. It
still exercises residual jurisdiction
b) RTC – if the record is already received
Form of the Supersedeas bond
Need not be in cash, it could be in surety bond
Validity of the supersedeas bond
Supersedeas bond cannot be withdrawn unless the
RTC will render a decision on the case.
TN!
After the RTC decide on the case, and the RTC
affirms the decision of the MTC, the supersedeas can
no longer hold the execution. In other words, the
defendant will be evicted.
However, there is still a remedy.
File petition for review in CA.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
The execution can still be stayed provided that in his
petition for review, the defendant will pray for TRO or
preliminary injunction. If it will be granted by the CA,
then the execution will be held in abeyance.
If the CA will not issue a TRO and the plaintiff now
would like to execute the decision, what would the
plaintiff do?
The plaintiff will file a motion for execution pending
appeal.
Where should it be filed?
The motion for execution shall be filed with
the RTC and it is a ministerial duty on the
part of the court. If the CA will not issue a
TRO, it will become a ministerial duty. It is a
matter of right on the part of the plaintiff to
ask for the issuance of a writ of execution.
Northcastle Properties and Estate Corporation
vs. Paas October 22, 1999
The decision of the Regional Trial Court in an
ejectment case is immediately executory without
prejudice to a petition for review with the Court of
Appeals.
Judge Paas based her decision on her personal
experience in an ejectment case, where the Court
of Appeals restrained the execution of the
judgment rendered by the Regional Trial Court.
However, she missed one point the TRO issued
by the Court of Appeals in that case had in no way
amended the law. It was just an isolated incident
which ought not to restrain her from applying the
correct legal provision in the absence of any TRO
or injunction issued by a superior court.
Judge Paas application of Section 19 showed her
utter lack of familiarity with the Rules, which
undermines the public confidence in the
competence of our courts. Such act constitutes
gross ignorance of the law.
[So, since there was no TRO, the judge should
have executed the decision as it is immediately
executory
-Does the CA have the power to issue a TRO or
preliminary injunction?- Yes.
City of Naga vs. Asuncion 557 SCRA 528
This is not to say that the losing defendant in an
ejectment case is without recourse to avoid
immediate execution of the RTC decision. The
defendant may, as in this case, appeal said
judgment to the Court of Appeals and therein
apply for a writ of preliminary injunction.
Thus, as held in Benedicto v. Court of Appeals,
even if RTC judgments in unlawful detainer cases
are immediately executory, preliminary injunction
may still be granted.
In the present case, the Court of Appeals denied
petitioners application for a writ of preliminary
Page 202
 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
injunction because the RTC has yet to rule on
respondents Motion to Issue Writ of Execution.
Significantly, however, it also made a finding that
said application was without merit. On this score,
we are unable to agree with the appellate court.
A writ of preliminary injunction is available to
prevent threatened or continuous irremediable
injury to parties before their claims can be
thoroughly studied and adjudicated. Its sole
objective is to preserve the status quo until the
merits of the case can be heard fully. Status quo
is the last actual, peaceable and uncontested
situation which precedes a controversy.
SEC. 20
Preliminary mandatory injunction in case of
appeal
Upon motion of the plaintiff, within ten (10) days from
the perfection of the appeal to the Regional Trial Court, the
latter may issue a writ of preliminary mandatory injunction to
restore the plaintiff in possession if the court is satisfied that
the defendant's appeal is frivolous or dilatory or that the appeal
of the plaintiff is prima facie meritorious.
SEC. 21
Immediate execution on appeal to Court of Appeals or
Supreme Court
The judgment of the Regional Trial Court against the defendant
shall be immediately executory, without prejudice to a further
appeal that may be taken therefrom.
--oOo—
October 3, 2016
RULE 71
Contempt
Classification of Contempt
As to the manner of commission:
a) Direct Contempt – committed in the presence or so
near a court
b) Indirect [Constructive] Contempt – committed away
from the court
However, the use of contemptuous language in a
pleading or motion against a particular judge submitted
before the same judge would constitute direct contempt.
As to the nature
a) Criminal Contempt
b) Civil Contempt
DIRECT CONTEMPT
SEC. 1
Direct contempt punished summarily
A person guilty of misbehavior in the presence of or
so near a court as to obstruct or interrupt the proceedings
before the same, including disrespect toward the court,
offensive personalities toward others, or refusal to be sworn or
to answer as a witness, or to subscribe an affidavit or
deposition when lawfully required to do so, may be summarily
adjudged in contempt by such court and punished by a fine
not exceeding two thousand pesos or imprisonment not
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
exceeding ten (10) days, or both, if it be a Regional Trial Court
or a court of equivalent or higher rank, or by a fine not
exceeding two hundred pesos or imprisonment not exceeding
one (1) day, or both, if it be a lower court.
--
“Direct Contempt”
It refers to any act committed in the presence of or so
near a court which would interrupt or obstruct the proceeding
before the court. It includes disrespectful language.
Contempt of Court is disobedience by acting in opposition to its
authority, justice and dignity. [Sy v. NLRC – August 25, 2005]
Examples:
 During a conduct of hearing and people are
shouting outside, their conduct interrupts the
hearing, the court may summarily punish them in
Direct Contempt.
 A person who walks around in the court room
while the court is hearing a case looking for
Pokémon
 Advised to switch off his phone or put it on silent
mode, and the same was not heeded, later on
the phone rings. Said person could be cited in
direct contempt
 Challenging the judge or fellow lawyer to a fist
fight
[Judge D: Some courts even punish those audiences who do
not sit properly or those who eats while inside the courtroom.]
It is called direct contempt because they will be cited
in contempt without any court hearing. The court would just
order the sheriff or any law enforcement officer to arrest them
in order to put them in jail or have them pay the fine.
[Judge D: Though a lawyer may disagree with the ruling of the
court, he should still show respect to the order or decision of
the same. Anyway, there are several remedies available.]
“Summarily adjudged in contempt”
The person cited in contempt will not be given opportunity to
be heard.
Punishment:
a) RTC [Either or Both]
Imprisonment – not exceeding 10 days
Fine – not exceeding P2,000.00
b) MTC [Either or Both]
Imprisonment – not exceeding 1 day
Fine – not exceeding P200.00
TN!
 The use of contemptuous language in a motion or
pleading submitted before the same judge, the use of
disrespectful language in motion or pleading
submitted or filed before the same judge – that would
constitute DIRECT CONTEMPT.
HOWEVER, if the motion or pleading which contains
disrespectful language is filed with another court –
that would constitute INDIRECT CONTEMPT. (ANG
vs CASTRO, 136 SCRA 453)
Page 203
 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
For Example:
A motion for reconsideration is filed and the judge
is called incompetent and ignorant. Now, since it is
filed with the same judge – it constitutes DIRECT
CONTEMPT.
 Citing a person direct contempt is without
prejudice to a criminal prosecution. The
disrespectful language or defamatory words
when reduced into writing may constitute a crime
of LIBEL.
“CIVIL CONTEMPT”
It is the failure to do something ordered by the court
for the benefit of a party.
“CRIMINAL CONTEMPT”
It refers to a conduct directed against the dignity or
authority of the court.
TN!
The power to punish for contempt does not and will
not prevent a prosecution for libel and the power to
punish for contempt and the power to disbar are
different and the exercise of one does not exclude the
exercise of the other. [PEOPLE vs GUDOY, 243
SCRA 64]
Administrative bodies have no contempt power, especially
those who which exercise disciplinary power
 Contempt power is EXCLUSIVE for the courts. Quasi-
judicial bodies may file a complaint for indirect
contempt of court. They can only initiate the filing of
indirect contempt.
KATARUNGANG PAMBARANGAY – if the defendant is
subpoenaed and he fails to appear, the Barangay Captain may
initiate the filing of indirect contempt in the court. It can be filed
with the MTC.
 It is not within their jurisdiction to decide indirect
contempt cases. These matters are within the
jurisdiction of the courts. [LANDBANK OF THE
PHILIPPINES vs LISTANA, 408 SCRA 308]
 The court should be slow to punish for contempt, as
this drastic remedy should be exercise upon the
preservative and not upon the vindictive principle. The
court should use the contempt power sparingly.
(GAMBOA vs TEODORO, 91 Phil 270)
REMEDY OF THE AGGRIEVED PARTY OF DIRECT
CONTEMPT
The remedy is CERTIORARI and/ or PROHIBITION.
The execution of the judgment shall be suspended pending
resolution of such petition provided that such person posts a
bond fixed by the court and condition that he will abide by and
comply with the judgment should the petition be decided
against him.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
The order of the court citing direct contempt is NOT
appealable.
SEC. 3 [INDIRECT CONTEMPT]
Indirect contempt to be punished after charge and hearing
After a charge in writing has been filed, and an
opportunity given to the respondent to comment thereon within
such period as may be fixed by the court and to be heard by
himself or counsel, a person guilty of any of the following acts
may be punished for indirect contempt:
(a) Misbehavior of an officer of a court in the performance
of his official duties or in his official transactions;
(b) Disobedience of or resistance to a lawful writ, process,
order, or judgment of a court, including the act of a
person who, after being dispossessed or ejected from
any real property by the judgment or process of any
court of competent jurisdiction, enters or attempts or
induces another to enter into or upon such real
property, for the purpose of executing acts of
ownership or possession, or in any manner disturbs
the possession given to the person adjudged to be
entitled thereto;
(c) Any abuse of or any unlawful interference with the
processes or proceedings of a court not constituting
direct contempt under section 1 of this Rule;
(d) Any improper conduct tending, directly or indirectly, to
impede, obstruct, or degrade the administration of
justice;
(e) Assuming to be an attorney or an officer of a court, and
acting as such without authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a person or
property in the custody of an officer by virtue of an
order or process of a court held by him.
But nothing in this section shall be so construed as to
prevent the court from issuing process to bring the respondent
into court, or from holding him in custody pending such
proceedings.
--
TN!
 As regards to indirect contempt, a person could only
be cited with indirect contempt after NOTICE and
HEARING.
TWO WAYS OF INITIATING INDIRECT CONTEMPT:
1. Initiated by the court
The court should issue a “SHOW CAUSE ORDER”
“SHOW CAUSE ORDER”
A Show Cause Order is an order issued by
the court requiring the person who committed the
disrespectful act or who uttered a disrespectful
language to show cause or to give reason or explain
why he should not be cited for indirect contempt.
Thereafter, after submission of his comment, there
should be a hearing.
2. Initiated by a party
The plaintiff wants the defendant to be cited
with contempt for committing an act which is
prohibited by the court.
Page 204
 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
For Example:
The court issued a TRO, directing the
defendant not to commit such act but the
defendant disobeys the said order. How should
the plaintiff initiate the proceedings in order to
cite the defendant for indirect contempt?
The plaintiff should file a separate and
independent petition for indirect contempt and the
petition should comply with all requirement of
an initiatory pleading.
TN!
 Motion to cite indirect contempt is an INVALID MODE
of initiating the indirect contempt.
 It should be a SEPARATE PETITION and
incompliance with all the requirements of an initiatory
pleading. It must contain a Certification against form
shopping and verification, etc.
Acts that can be punished for indirect contempt
a) Misbehavior of an officer of a court in the performance
of his official duties or in his official transactions;
For Example:
The Sheriff will not comply with the order of
the court. The lawyers of the parties (considered as
office of the court)
b) Disobedience of or resistance to a lawful writ,
process, order, or judgment of a court, including the
act of a person who, after being dispossessed or
ejected from any real property by the judgment or
process of any court of competent jurisdiction, enters
or attempts or induces another to enter into or upon
such real property, for the purpose of executing acts
of ownership or possession, or in any manner disturbs
the possession given to the person adjudged to be
entitled thereto.
“Judgment of a court”
This refers to special judgments such as judgment
in certiorari, prohibition and mandamus.
It does not refer to judgment such as collection of sum
of money, specific performance. The remedy for a party who
fails to obey these judgments is MOTION FOR EXECUTION.
For example:
Defendant refuses to sign the deed of sale
after the plaintiff has fully paid the obligation. The
remedy of the plaintiff is not to file petition for indirect
contempt but he must ask the court to require the
clerk of court to sign the deed of sale and the
same shall have the effect as if the defendant
executed it OR he can ask the court to issue an
order directing the registry of deeds to cancel the
title and issue another title in favor of the plaintiff.
Another Example:
In an ejectment case, the remedy of the
plaintiff in case the defendant ordered to vacate
refused to do so is to file motion for execution.
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
“A Leap to Succeed”
The court issued writ of execution, but still
defendant did not obey. Is it contemptuous?
Still not contemptuous, remember a writ of
execution is directed to the sheriff and not to the
defendant. The defendant here cannot be cited in
contempt.
When defendant may be cited in contempt
The defendant left the property and a year after he re-
entered the property.
c) Any abuse of or any unlawful interference with the
processes or proceedings of a court not constituting
direct contempt under section 1 of this Rule;
For example:
A party keeps on asking motion for
postponement, or keep on filing motion for
reconsideration.
d) Any improper conduct tending, directly or indirectly, to
impede, obstruct, or degrade the administration of
justice;
For example:
A lawyer harasses the witnesses of the
adverse party or bought the witness of the adverse
party. That is an improper conduct that tends to
impede or obstruct the administration of justice.
Another Example:
A media man or a columnist gives comments
to a pending case, the said comments tend to
influence the court. That is what we call SUBJUDICE.
Your comments tend to degrade or obstruct the
administration of justice. That’s contemptuous.
e) Assuming to be an attorney or an officer of a court,
and acting as such without authority;
f) Failure to obey a subpoena duly served;
Rule 21, if a witness is subpoenaed and he disregard
the subpoena without valid reason, then that is
contemptuous.
g) The rescue, or attempted rescue, of a person or
property in the custody of an officer by virtue of an
order or process of a court held by him.
For Example:
A property subject of replevin and you attempt
to get it back- this is also contemptuous.
In indirect contempt, the person cited for it is not imprisoned
right away. He will be given the opportunity to be heard.
However, the court may order your arrest if the court finds it
proper.
For example:
A witness was issued a subpoena, but
without valid reason or justification, he did not obey.
Again, that is contemptuous. Since a petition for
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 REMEDIAL LAW REVIEW
As discussed by: Judge Debalucos
indirect contempt takes time and having you in court
as a witness is urgent then the court may issue
warrant for your arrest while the contempt proceeding
is still pending.
Indirect contempt proceedings are different from ordinary civil
action.
If there is a petition for indirect contempt, respondent will not
be served with summons.
Respondent won’t be required to file answer but to comment. A
hearing will be set wherein respondent will be required to
appear and give reason why he should not be cited for
contempt.
A respondent if he will not comply with the order of the court to
file his comment, cannot be declared in default. There is no
declaration of default. The court does not declare the
respondent in a contempt charge in default.
According to the SC, contempt proceedings are similar to a
criminal case and in a criminal case there is no default.
AGAIN, disobedience to a writ of execution does not constitute
contempt because it is directed to the sheriff and not to the
defendant.
[See Pascua v. Simeon, May 31, 1988]
---oOo---
SEC. 4
How proceedings commenced
Proceedings for indirect contempt may be
initiated motu propio by the court against which the contempt
was committed by an order or any other formal charge
requiring the respondent to show cause why he should not be
punished for contempt.
In all other cases, charges for indirect contempt shall
be commenced by a verified petition with supporting particulars
and certified true copies of documents or papers involved
therein, and upon full compliance with the requirements for
filing initiatory pleadings for civil actions in the court concerned.
If the contempt charges arose out of or are related to a
principal action pending in the court, the petition for contempt
shall allege that fact but said petition shall be docketed, heard
and decided separately, unless the court in its discretion orders
the consolidation of the contempt charge and the principal
action for joint hearing and decision.
--
There are two ways of initiating indirect contempt proceedings.
1) When it is a court-initiated proceeding, the court will
issue a show cause order.
2) To file a verified petition, a separate, independent
petition for indirect contempt with supporting
particulars and certified true copies of docs or papers
involved.
A petition for indirect contempt shall be raffled except in a
single-sala. There could also be consolidation.
[See Regalado v. Go Feb 6, 2007]
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The petition could be filed by a third person. Indirect charge
could be filed by a person who is not a party to the case.
[See Reyes v. Palcis 193 SCRA 649]
SEC. 5
Where charge to be filed
Where the charge for indirect contempt has been
committed against a Regional Trial Court or a court of
equivalent or higher rank, or against an officer appointed by it,
the charge may be filed with such court. Where such contempt
has been committed against a lower court, the charge may be
filed with the Regional Trial Court of the place in which the
lower court is sitting; but the proceedings may also be
instituted in such lower court subject to appeal to the Regional
Trial Court of such place in the same manner as provided in
section 11 of this Rule.
--
Where the Petition may be filed
 If committed in the RTC - petition to be filed in RTC
o But then again in a multiple-sala court, the
petition shall be raffled.
 If committed in the lower court, either MTC or RTC.
SEC. 6
Hearing; Release on bail.
If the hearing is not ordered to be had forthwith, the
respondent may be released from custody upon filing a bond,
in an amount fixed by the court, for his appearance at the
hearing of the charge. On the day set therefor, the court shall
proceed to investigate the charge and consider such comment,
testimony or defense as the respondent may make or offer.
--
The court may issue warrant of arrest while the contempt
proceeding is pending:
For Example:
Witness W, did not appear despite notice, the
court may issue an order requiring W within 5 days
from receipt to explain why he should not be cited for
indirect contempt.
You can include:
“Let a warrant of arrest be issued against the
witness”.
SEC. 7
Punishment for indirect contempt
If the respondent is adjudged guilty of indirect
contempt committed against a Regional Trial Court or a court
of equivalent or higher rank, he may be punished by a fine not
exceeding thirty thousand pesos or imprisonment not
exceeding six (6) months, or both. If he is adjudged guilty of
contempt committed against a lower court, he may be
punished by a fine not exceeding five thousand pesos or
imprisonment not exceeding one (1) month, or both. If the
contempt consists in the violation of a writ of injunction,
temporary restraining order or status quo order, he may also
be ordered to make complete restitution to the party injured by
such violation of the property involved or such amount as may
be alleged and proved.
The writ of execution, as in ordinary civil actions, shall issue for
the enforcement of a judgment imposing a fine unless the court
otherwise provides.
--
Penalty:
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a) RTC –
o Fine not exceeding P30, 000 or
o Imprisonment not exceeding 6 months or
both.
b) MTC
o Fine not exceeding P5,000 or
o Imprisonment not exceeding 1 month or
both.
SEC. 8
Imprisonment until order obeyed.
When the contempt consists in the refusal or
omission to do an act which is yet in the power of the
respondent to perform, he may be imprisoned by order of the
court concerned until he performs it.
--
In case a witness, when are ordered to testify and refused to,
he shall be in jail until he agrees to testify.
SEC. 9
Proceeding when party released on bail fails to
answer
When a respondent released on bail fails to appear
on the day fixed for the hearing, the court may issue another
order of arrest or may order the bond for his appearance to be
forfeited and confiscated, or both; and, if the bond be
proceeded against, the measure of damages shall be the
extent of the loss or injury sustained by the aggrieved party by
reason of the misconduct for which the contempt charge was
prosecuted, with the costs of the proceedings, and such
recovery shall be for the benefit of the party injured. If there is
no aggrieved party, the bond shall be liable and disposed of as
in criminal cases.
--
“Bench Warrant”
This is a warrant of arrest issued by the court
whenever the respondent fails to appear in court; or
whenever a witness who is subpoena or against whose
subpoena is issued, the warrant maybe issued by the court is
called bench warrant.
 As held by the Supreme Court, a bench warrant is a
writ issued directly by a judge to a law enforcement
officer for the arrest of the person who has been held
in contempt, has disobeyed subpoena, or failed to
appear for a hearing or trial.
 According to the SC, the primary requisite before a
bench warrant shall be issued is that the absent
party was duly informed of the hearing date but
unjustifiably failed to do so.
 In case of a witness who has been issued a
subpoena, it must be proved that he was able to
receive the subpoena and the same did not appear in
court.
SEC. 10
Court may release respondent
The court which issued the order imprisoning a
person for contempt may discharge him from imprisonment
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
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when it appears that public interest will not be prejudiced by his
release.
--
The court who issued the bench warrant shall also be the one
who can order the release of the subject of the warrant.
[Inoturan vs Limsiaco 458 SCRA 48]
SEC. 11
Review of judgment or final order; bond for stay
The judgment or final order of a court in a case of
indirect contempt may be appealed to the proper court as in
criminal cases. But execution of the judgment or final order
shall not be suspended until a bond is filed by the person
adjudged in contempt, in an amount fixed by the court from
which the appeal is taken, conditioned that if the appeal be
decided against him he will abide by and perform the judgment
or final order.
--
The proceeding in contempt order is the same with the
criminal case.
 Although in a criminal case, the decision shall be read
in an open court, in contempt, the decision of the
court need not read.
 In contempt proceeding, if the accused is acquitted,
there is no appeal available for the petitioner just like
in a criminal case.
GR: There can only be appeal if it is the respondent who filed
the appeal.
EXC: Civil contempt maybe appealed even if the decision is for
dismissal [Ceniza vs Wistehauff GR No. 165734 June 16,
2006]
SEC. 12
Contempt against quasi-judicial entities
Unless otherwise provided by law, this Rule shall
apply to contempt committed against persons, entities, bodies
or agencies exercising quasi-judicial functions, or shall have
suppletory effect to such rules as they may have adopted
pursuant to authority granted to them by law to punish for
contempt. The Regional Trial Court of the place wherein the
contempt has been committed shall have jurisdiction over such
charges as may be filed therefor.
----oOo----
---oOo---
A.M. No. 11-1-6-SC
CONSOLIDATED AND REVISED GUIDELINES TO
IMPLEMENT THE EXPANDED COVERAGE OF COURT-
ANNEXED MEDIATION (CAM) AND JUDICIAL DISPUTE
RESOLUTION (JDR)
One of the legal basis for making this is the RA No. 9285 The
Use of the Alternative Dispute Resolution.
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 The purpose of ADR is to decongest the dockets of Under this circular, you remember Katarungang Pambarangay
the court. These are the modes of settling dispute (KP), all civil cases are subject of the KP unless it falls under
without going to trial. the exceptions, and you remember the exceptions.

The Katarungan Pambarangay, Diversion for the minors, are Q: In case of Criminal Cases, are there cases that requires to
part of ADR. be under KP?
What are those criminal cases cognizable by the KP?

There are 3 stages of Alternative Modes Dispute Relations as A: those cases with an imposable penalty of not more than 1
regards cases filed in court: year

1. Court – Annexed Mediation (CAM) Q: How about in cases under Mediation?

A: criminal cases where the imposable penalty does not

This is availed of as part of the pre-trial or before the pre-trial
exceed 6 years
proper. This is after the last pleading is filed which is the Reply.
So, before the pre-trial proper, the court may refer the case to
Under section 3
the Philippine Mediation Center. But not all courts have CAM.
In mediation, there are mediators there who are well-trained.
Mandatory Coverage for Court-Annexed Mediation (CAM)
After the settlement, the mediator shall reduced in writing the
and Judicial Dispute Resolution (JDR)
agreement then send the amicable settlement to the court and
the court now will render judgment based on the settlement.
The following cases shall be
And the case ends. But if the case was not settled in the CAM,
1) referred to Court-Annexed
the case will be return to the sending court then the court will
Mediation (CAM) and
refer the case to Judicial Dispute Resolution. It is now the
judge who will mediate. The judge in JDR is different with the
2) be the subject of Judicial Dispute Resolution (JDR)
trial judge. If settled, there will be decision based on
proceedings:
compromise agreement. But if not, the case will, there will be
trial (presentation of evidence) to be conducted by another
(1) All civil cases and the civil liability of criminal cases covered
judge. It will not be with the JDR judge because he may be
by the Rule on Summary Procedure, including the civil liability
biased as he has previous knowledge of the case.
for violation of B.P. 22, except those which by law may not be
compromised;

The proceedings in the CAM and JDR are confidential. (2) Special proceedings for the settlement of estates;

We have CAM, We have JDR, if ever it will not be settled in (3) All civil and criminal cases filed with a certificate to file
JDR, what will happen? action issued by the Punong Barangay or the Pangkat ng
Tagapagkasundo under the Revised Katarungang
Then we will have a trial. Pambarangay Law
In the middle of the trial, there is can be a JDR
That is what we call mid JDR (4) The civil aspect of Quasi-Offenses under Title 14 of the
Revised Penal Code;
If in case the JDR is appealed, we have this so called
APPEALS COURT MEDIATION. Article 365 of RPC

If the case is appealed to the RTC – ACM is also conducted in (5) The civil aspect of less grave felonies punishable by
the RTC correctional penalties not exceeding 6 years imprisonment,
where the offended party is a private person;
If the case is appealed in the CA –ACM is conducted in the CA
(6) The civil aspect of estafa, theft and libel;
This is the last stage f mediation.
All kinds of estafa, theft and libel
There are 3 stages of diversion:
(7) All civil cases and probate proceedings, testate and
1. Court Annexed – Mediation intestate, brought on appeal from the exclusive and original
2. Judicial Dispute Resolution jurisdiction granted to the first level courts under Section 33,
3. Appeals Court Mediation par.
(1) of the Judiciary Reorganization Act of 1980;
These 3 have the same purpose which is to settle the case
amicably the same with the Katarungang Pambarangay, so (8) All cases of forcible entry and unlawful detainer brought on
that the Judiciary should be the last recourse. appeal from the exclusive and original jurisdiction granted to
the first level courts under Section 3, par. (2) of the Judiciary
Reorganization Act of 1980;

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(9) All civil cases involving title to or possession of real
property or an interest therein brought on appeal from the
exclusive and original jurisdiction granted to the first level
courts under Section 33, par.(3) of the Judiciary
Reorganization Act of 1980; and
(10) All habeas corpus cases decided by the first level courts in
the absence of the Regional Trial Court judge, that are brought
up on appeal from the special jurisdiction granted to the first
level courts under Section 35 of the Judiciary Reorganization
Act of
1980;
Q: Are there habeas corpus filed in the first level court?
A: Yes, in the absence of all Regional Trial Court judge
The following cases shall not be referred to CAM and JDR:
1. Civil cases which by law cannot be compromised (Article
2035, New Civil Code);
2. Other criminal cases not covered under paragraphs 3 to 6
above;
3. Habeas Corpus petitions;
4. All cases under Republic Act No. 9262 (Violence against
Women and Children); and
5. Cases with pending application for Restraining
Orders/Preliminary Injunctions.
However, in cases covered under 1, 4 and
5 where the parties inform the court that they have agreed to
undergo mediation on some aspects thereof, e.g., custody of
minor children, separation of property, or support pendente lite,
the court shall refer them to mediation.
COURT-ANNEXED MEDIATION (CAM)
ALL JUDGES OF COURTS WHERE PHILIPPINE
MEDIATION CENTER (PMC) UNITS HAVE BEEN
ESTABLISHED.
There are courts where there is no CAM.
Procedure
When will the case be referred to CAM?
1. After the last pleading has been filed, the judge shall issue
an order requiring the parties to forthwith appear before the
concerned Philippine Mediation Center (PMC) Unit staff to start
the process for the settlement of their dispute through
mediation. On the same date, the court shall give to the PMC a
copy of the Order for mediation.
There shall be payment of a mediation fee
How much? P500 per party
Where to pay? In the court where the case is filed
QUANTUM LEAP – BATCH 2017 (Jecar, Roslyn, Nilgie, Colleen, Joan, Sheena, Kim)
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2. Individual parties are required to personally appear for
mediation. In the event they cannot do so, they can send their
representatives who must be fully authorized to appear,
negotiate and enter into a compromise, through a Special
Power of Attorney.
The special power of attorney must fully authorize the
representative to represent on his behalf.
Even without the approval of the principal, the representative
can negotiate and enter into comprise by virtue of that SPA.
3. Corporations, partnerships, or other juridical entities shall be
represented by a ranking corporate officer fully authorized by a
Board Resolution to offer, negotiate, accept, decide and enter
into a compromise agreement, without need of further approval
by or notification to the authorizing party.
4. The Order issued shall include a clear warning that
sanctions may be imposed upon a party for failure to comply
therewith, in accordance with the Section below on sanctions.
Remember that CAM and JDR are part of the pre-trial and
failure to appear has sanctions including the dismissal of the
case, if you fail to appear.
5. On the date set in the Order, the parties shall proceed to
select a mutually acceptable mediator from among the list of
accredited mediators. If no agreement is reached, the PMC
Unit Staff shall, in the presence of the parties and the
Mediators, choose by lot the one who will mediate the dispute
from among the Mediators inside the Unit, ensuring a fair and
equal distribution of cases: Provided, however, that in
exceptional circumstances where special qualifications are
required of the mediator, the parties shall be given an
opportunity to select from the entire list of accredited
mediators.
6. The Mediator shall be considered an officer of the court
while performing his duties as such or in connection therewith.
7. The concerned Mediator shall forthwith start the mediation
process, unless the parties and mediator agree to reset the
initial mediation conference, which shall not be later than five
(5) days from the original date.
8. At the initial conference, the Mediator shall explain to both
parties the mediation process, stressing the benefits of an
early settlement of their dispute based on serving their mutual
interests, rather than the legal positions taken by them.
9. With the consent of both parties, the Mediator may hold
separate caucuses with each party to determine their
respective real interests in the dispute. Thereafter, another
joint conference may be held to consider various options that
may resolve the dispute through reciprocal concessions and on
terms that are mutually beneficial to both the parties.
10. The Mediator shall not record in any manner the
proceedings of the joint conferences or of the separate
caucuses. No transcript or minutes of mediation proceedings
shall be taken. If personal notes are taken for guidance, the
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notes shall be shredded and destroyed. Should such record
exist; they shall not be admissible as evidence in any other
proceedings.
Separate Caucuses – wherein the mediator talk with the party
one on one and separately
No recording of the proceeding is allowed, strictly prohibited, if
violated you can be cited for contempt.
11. If no settlement has been reached at the end of the period
given, the case must be returned to the referring judge.
TN: that this mediation is provided in order to come up with a
speedy disposition of a case and come up with a win-win
solution between the parties.
TN: the decision in the mediation is not appealable and it is
immediately executory because the parties already agreed on
the settlement and on the decision.
TN: this is for the speedy disposal of the case in order to
decongest the courts
TN: the proceedings are informal and confidential.
Sanctions
The court, upon recommendation of the Mediator,
may impose sanctions upon a party who fails to appear before
the Philippine Mediation Center (PMC) Unit as directed by the
referring judge, or upon any person who engages in abusive
conduct during mediation proceedings, as provided for in the
Rules of Court as part of the Pre-Trial and other issuances of
the Supreme Court, including, but not limited to censure,
reprimand, contempt, requiring the absent party to reimburse
the appearing party his costs, including attorney’s fees for that
day up to treble such costs, payable on or before the date of
the re-scheduled setting. Sanctions may also be imposed by
the referring judge upon his own initiative or upon motion of the
interested party.
Upon justifiable cause duly proved in the hearing
called on the motion to reconsider filed by the absent party,
concurred in by the concerned mediator, the sanctions
imposed may be lifted or set aside in the sound discretion of
the referring judge.
Duration of Mediation in the PMC
Maximum of 60 days
The Mediator shall have a period of not exceeding
thirty (30) days to complete the mediation process. Such
period shall be computed from the date when the parties first
appeared for the initial conference as stated in the Order to
appear. An extended period of another thirty (30) days may be
granted by the court, upon motion filed by the Mediator, with
the conformity of the parties.
1:57
What are the sanctions?
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-The court, upon recommendation of the Mediator, may impose
sanctions upon a party who fails to appear before the
Philippine Mediation Center (PMC) Unit as directed by the
referring judge, or upon any person who engages in abusive
conduct during mediation proceedings, as provided for in the
Rules of Court as part of the Pre-Trial and other issuances
ofthe Supreme Court, including, but not limited to censure,
reprimand, contempt, requiring the absent party to
reimburse the appearing party his costs, including
attorney’s fees for that day up to treble such costs,
payable on or before the date of the re-scheduled setting.
Sanctions may also be imposed by the referring judge
upon his own initiative or upon motion of the interested
party.
Duration of Mediation in the PMC
The Mediator shall have a period of not exceeding thirty (30)
days to complete the mediation process. Such period shall be
computed from the date when the parties first appeared for the
initial conference as stated in the Order to appear. An
extended period of another thirty (30) days may be granted
by the court, upon motion filed by the Mediator, with the
conformity of the parties.
Suspension of periods
The period during which the case is undergoing mediation shall
be excluded from the regular and mandatory periods for trial
and rendition of judgment in ordinary cases and in cases under
summary proceedings.
Settlement
If full settlement of the dispute is reached, the parties, assisted
by their respective counsels, shall draft the compromise
agreement which shall be submitted to the court for judgment
upon compromise or other appropriate action. Where
compliance is forthwith made, the parties shall instead submit
a satisfaction of claims or a mutual withdrawal of the case and,
thereafter, the court shall enter an order dismissing the case.
If partial settlement is reached, the parties shall, with the
assistance of counsel, submit the terms thereof for the
appropriate action of the court, without waiting for resolution of
the unsettled part.
In relation to the unsettled part of the dispute, the court shall
proceed to conduct JDR proceedings in accordance with PART
THREE hereof where JDR is available.
DISCUSSION
-If there is settlement, the parties will draft a compromise
agreement and the court will render a decision based on the
compromise agreement.
-If there is no settlement, then the parties will proceed to JDR.
Judicial Dispute Resolution
-If it is a multiple sala, the judge of the court where the case is
filed will serve as the JDR judge. If he cannot settle it, then it
shall be raffled to another judge except when the parties would
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make a written request that it is the JDR judge will try. If there's
no written request, then the case should be raffled.
-If it is a single sala court, first the judge will refer it to CAM
then if it will return to him, he will refer it to other court in
another town who will serve as the JDR judge.
-Only those judges who have undergone JDR seminar are
authorized to conduct JDR.
I. Mandate
Unless otherwise directed by the Supreme Court, all judges
who have undergone orientation in JDR procedures and
completed their training in mediation, conciliation and
neutral evaluation, are authorized to conduct JDR
proceedings in accordance with these guidelines for the
settlement of disputes pending in their courts, after the parties
failed to settle their disputes during Court Annexed Mediation
at the Philippine Mediation Center Units (PMCU).
II. Procedure
Judicial proceedings shall be divided into two stages: (1) from
the filing of a complaint to the conduct of CAM and JDR
during the pre-trial stage, and (2) pre-trial proper to trial
and judgment. The judge to whom the case has been
originally raffled, who shall be called the JDR Judge, shall
preside over the first stage. The judge, who shall be called the
trial judge, shall preside over the second stage.
-JDR is applicable in RTC, commercial courts, specialized
courts and family courts. If there are many family courts, then
the rule in multiple sala shall apply. If there is only one family
court, then the rule in single sala court shall apply, meaning the
JDR judge is not a judge of the family court.
-JDR judge will convince the parties to arrive at an amicable
settlement.
-What is the difference between the CAM-mediator and JDR
judge?
CAM-mediator is not a lawyer, then the judge is a lawyer. The
latter knows who among the parties has a chance to win.
Mediation is not based on the merits. It is based on the
agreement of the parties and as long as the agreement is not
contrary to law, morals, customs, policy. The purpose of the
mediation is to end the dispute as soon as possible.
-The judge may also talk to the parties one by one. It is called
as early neutral evaluation.
SETTLEMENT PERIOD
-First level courts- 30 days
-Second level courts- 60 days
-Both are subject to extension.
A longer period, however, may be granted upon the discretion
of the JDR judge if there is a high probability of settlement and
upon joint written motion of the parties. Both periods shall be
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computed from the date when the parties first appeared for
JDR proceedings as directed in the respective Orders issued
by the judge. As far as practicable, JDR conferences shall be
set not more than two (2) weeks apart so as to afford the
parties ample time to negotiate meaningfully for settlement.
CAM- mediator cannot give his opinion about the case while
the JDR judge can talk to the parties personally.
TAKE NOTE: In criminal cases, there are two aspects: a) civil
and b) criminal. If the civil aspect is settled, then the problem
lies with the criminal aspect. What is usually done is whenever
they settle on the civil case, they will include in their agreement
the dismissal of the criminal aspect. In order to ensure
payment, if there is, they will state that it is not a permanent
outright dismissal, but provisional dismissal.
How long is the provisional dismissal?- For lower courts, 1
year.
In criminal cases covered by CAM and JDR, where settlement
on the civil aspect has been reached but the period of payment
in accordance with the terms of settlement exceeds one (1)
year, the case may be archived upon motion of the
prosecution, with notice to the private complainant and
approval by the judge.
SETTLEMENT
A. CIVIL CASES
If full settlement of the dispute is reached, the parties,
assisted by their respective counsels, shall draft the
compromise agreement which shall be submitted to the
court for a judgment upon compromise, enforceable by
execution.
Where full compliance with the terms of the compromise is
forthwith made, the parties, instead of submitting a
compromise agreement, shall submit a satisfaction of claims or
a mutual withdrawal of the parties’ respective claims and
counterclaims. Thereafter, the court shall enter an order
dismissing the case.
If partial settlement is reached, the parties shall, with the
assistance of counsel, submit the terms thereof for the
court’s approval and rendition of a judgment upon partial
compromise, which may be enforced by execution without
waiting for resolution of the unsettled part.
In relation to the unsettled part of the dispute, the court shall
proceed to conduct trial on the merits of the case should the
parties file a joint motion for him to do so, despite confidential
information that may have been divulged during the
conciliation/mediation stage of the proceedings. Otherwise, the
JDR Judge shall turn over the case to a new judge by re-raffle
in multiple sala courts or to the originating court in single sala
courts, for the conduct of pre-trial proper and trial.
B. CRIMINAL CASES:
If settlement is reached on the civil aspect of the criminal case,
the parties, assisted by their respective counsels, shall draft
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the compromise agreement which shall be submitted to the

court for appropriate action.

Action on the criminal aspect of the case will be determined by

the Public Prosecutor, subject to the appropriate action of the
court.

If settlement is not reached by the parties on the civil aspect of

the criminal case, the JDR judge shall proceed to conduct the
trial on the merits of the case should the parties file a joint
written motion for him to do so, despite confidential information
that may have been divulged during the JDR proceedings.
Otherwise, the JDR Judge shall turn over the case to a new
judge by re-raffle in multiple sala courts or to the originating
court in single sala courts, for the conduct of pretrial proper
and trial.

-If the JDR will fail, the case will be tried by another judge.
During the pre-trial, the parties will try to reach an amicable
settlement.

-READ THE GUIDELINES RE: PRE TRIAL

-During the proceedings the CAM and JDR are confidential.

The parties, the mediator, and the JDR judge should not reveal
what transpired during the proceeding.

-What about the documents presented during the JDR? Can

they be presented? Yes

I. Confidentiality

Any and all matters discussed or communications made,

including requests for mediation, and documents presented
during the mediation proceedings before the Philippine
Mediation Center or the JDR proceedings before the trial
judge, shall be privileged and confidential, and the same shall
be inadmissible as evidence for any purpose in any other
proceedings. However, evidence or information that is
otherwise admissible does not become inadmissible
solely by reason of its use in mediation or conciliation.

Further, the JDR judge shall not pass any information obtained
in the course of conciliation and early neutral evaluation to the
trial judge or to any other person. This prohibition shall include
all court personnel or any other person present during such
proceedings. All JDR conferences shall be conducted in
private.

- Where should the mediation be conducted? In the chamber of

the Judge or in the court room. It should be exclusive only to
the parties.

-The lawyers should not be in their combative position. They

should help the judge to arrive at a decision.

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