Rule 33

Demurrer to Evidence

1997 Rules on Civil Procedure

2001 Edition

Rule 33

DEMURRER TO EVIDENCE
Q: Define demurrer to evidence.
A: Demurrer to evidence is a motion to dismiss filed by the defendant after the plaintif
had rested his case, on the ground of insufficiency of evidence. (Ballentines Law Dict., 2nd
Ed., p. 358)
SEC. 1. Demurrer to evidence. - After the plaintiff has completed the
presentation of his evidence, the defendant may move for dismissal on the ground
that upon the facts and the law the plaintiff has shown no right to relief. If
his motion is denied, he 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. (1a, R35)

Now, there is a similar rule in criminal procedure under Rule 119, Section 23 demurrer
to evidence in criminal cases. Rule 33 is demurrer to evidence in civil cases.
DEMURRER TO EVIDENCE IN CRIMINAL CASES (Review)
Q: By way of review what is the rule on demurrer to evidence in criminal cases all
about? What is the procedure on demurrer in criminal cases?
A: In the rules on criminal procedure: Trial. The prosecution presents evidence to prove
the crime and that the accused committed the crime. After that, tapos na the
prosecution has rested. It is now the turn of the accused to present evidence to prove his
defense. Alright, thats the procedure.
But under the rules on demurrer to evidence in criminal cases, the accused, instead of
presenting evidence, may opt to file instead a demurrer. It is a motion by the accused to
dismiss the criminal case on the ground that the prosecution failed to prove his guilt.
Remember that under the Constitution, the accused is presumed innocent until his guilt is
proven. It is the burden of the prosecution to prove his guilt, to destroy the presumption of
innocence.
Now, suppose the prosecution fails to prove the crime or the guilt of the accused.
There is no evidence. The evidence is insufficient to prove that the accused is guilty. So,
the prosecution failed to meet its burden. It failed to rebut the presumption of innocence.
The accused may ask, why will I present evidence? Why will I prove my innocence when
Im still presumed innocent? Because my guilt has not been established. Therefore, the
accused will file a demurrer. Actually, it is a motion to dismiss challenging the sufficiency
of the evidence for the prosecution.
SEC. 23. Demurrer to evidence. After the prosecution rests its case, the
court may dismiss the action on the ground of insufficiency of evidence (1) on
its own initiative after giving the prosecution the opportunity to be heard or
(2) upon demurrer to evidence filed by the accused with or without leave of
court.
If the court denies the demurrer to evidence filed with leave of court, the
accused may adduce evidence in his defense. When the demurrer to evidence is
filed without leave of court, the accused waives the right to present evidence
and submits the case for judgment on the basis of the evidence for the
prosecution. (15a)
The motion for leave of court to file demurrer to evidence shall
specifically state its grounds and shall be filed within a non-extendible period
of five (5) days after the prosecution rests its case. The prosecution may
oppose the motion within a non-extendible period of five (5) days from its
receipt.
If leave of court is granted, the accused shall file the demurrer to
evidence within a non-extendible period of ten (10) days from notice. The
prosecution may oppose the demurrer to evidence within a similar period from its
receipt.
The order denying the motion for leave of court to file demurrer to evidence
or the demurrer itself shall not be reviewable by appeal or by certiorari before
judgment. (n)

Lakas Atenista
Ateneo de Davao University College of Law

54

1997 Rules on Civil Procedure

2001 Edition

Rule 33
Demurrer to Evidence

It is now emphasized in Section 23, Rule 119 that a demurrer may be filed with or
without leave of court. If you file demurrer with or without leave and it is granted, then you
have no problem because the accused will be acquitted.
The problem is, if your demurrer is denied. Meaning, the court says that there is
sufficient evidence to prove at least the guilt of the accused. If the demurrer was filed with
prior leave of court and it is subsequently denied, the accused is allowed to present
evidence to prove his defense.
But if he filed the demurrer without prior leave of court and the demurrer is denied,
then you are already convicted because the accused has forfeited his right to present
evidence. It is practically equivalent to a waiver of his right to present evidence. So
conviction automatically follows.
NOTE: Under the new rules on Criminal Procedure, when the accused will file a leave of
court to file a demurrer, he must specifically state the grounds. (c.f. Rule 119, Section 23,
third paragraph)
Alright, that is in criminal cases. There is a similar rule in civil cases, Rule 33.
DEMURRER TO EVIDENCE IN CIVIL CASES
Q: Under the Rule on Trial, who presents evidence first?
A: It is the plaintif. The plaintif presents evidence to prove his cause of action. He
must prove his case or his claim by preponderance of evidence.
Q: Suppose after the plaintif has rested, the plaintif has not proven his cause of
action?
A: Im the defendant, why will I prove my defense when you have not proven your
claim? So, instead of presenting evidence, the defendant may move to dismiss the
complaint on the ground of insufficiency of evidence and that is known as the demurrer.
To borrow the language of the law, after the plaintif has completed the presentation of
his claim, the defendant may move for dismissal on the ground that upon the facts and
the law, the plaintif has shown no right to relief. Meaning, you have not proven your
cause of action by preponderance of evidence.
Q: Now, suppose the defendant filed that motion to dismiss (demurrer) but the court
disagrees with the defendant. In the opinion of the court, plaintif had presented sufficient
evidence to prove his cause of action. Meaning, the motion is denied. What will happen
now?
A: Defendant will now present evidence to prove his defense. That is why under Section
1, If his motion is denied, he shall have the right to present evidence.
So, no harm done no? Because if I will file my motion to dismiss and it is denied, I will
be given my right to present my side. So, there is no prejudice on the part of the
defendant by filing a motion to dismiss and his motion to dismiss is denied. What is risky is
when your motion is granted.
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.

Q: Suppose the court agrees with the defendant and his motion is granted. In other
words, the defendant has succeeded in dismissing the complaint without even presenting
his own side I won a boxing bout without even throwing a single punch. What will happen
now?
A: The court will dismiss the case. BUT if plaintif appeals to the CA and insists that his
evidence is sufficient to prove his cause of action, therefore the order of the dismissal by
the RTC is wrong, and CA agrees with the plaintif that the plaintifs evidence is sufficient
55
Lakas Atenista
Ateneo de Davao University College of Law

1997 Rules on Civil Procedure

2001 Edition

Rule 33
Demurrer to Evidence

to prove his claim the CA will reverse the order of dismissal. The CA will immediately now
decide the case in favor of the plaintif and the plaintif will automatically win.
Q: The defendant may argue: Well, the order was reversed. Eh di ibalik ang kaso.
Lets go back to the RTC and let me present my side. Is the defendant correct?
A: NO. Under Section 1, if your demurrer is granted by the trial court and is reversed on
appeal, the defendant loses forever his right to present his evidence. Therefore defendant
has no more right to present his side. That is tantamount to saying the defendant
automatically loses the case.
So, that is what a demurrer in civil cases is all about. Very risky no? If you file a
demurrer and your motion is denied, Okay lang no prejudice I will present my evidence.
You do not waive your right to present evidence. BUT if the court agrees with you and
grants your motion, that is the start of your headache. In other words, if the plaintif
appeals, you better pray that the appellate court will sustain or affirm the order of
dismissal. Otherwise if it is reversed, talo ka na automatically and you cannot say, Alright,
ibalik natin ang kaso. Lets return the case to the RTC because I will now present my
side. No, you have already waived it.
Favorite BAR QUESTION: How do you distinguish the rule on demurrer of evidence in
civil cases with the rule of demurrer in criminal cases?
A: The following are the distinctions:
1. In CIVIL cases when the demurrer is denied, the defendant will now present his
evidence to prove his defense because the defendant does not waive his
right to present in the event the demurrer is denied; whereas
In CRIMINAL cases, if the demurrer of the accused is denied the accused is no
longer allowed to present evidence if he had no prior leave of court;
2. In CIVIL cases, if the defendants demurrer is granted and the case is dismissed
and the plaintif appeals to the appellate court and on appeal the court
reverses the order of dismissal, the appellate court renders judgment
immediately in favor of the plaintif. Goodbye! talo na ang defendant.
There is no more remanding. The defendant loses his right to present
evidence; whereas
In CRIMINAL cases, if the demurrer is granted, there is no more appeal by the
prosecution because the accused has already been acquitted. Otherwise,
there will be a case of double jeopardy;
3. In CIVIL cases, the court cannot on its own initiative, dismiss the case after the
plaintif rests without any demurrer by the defendant. There is no such thing
as motu propio demurrer; whereas
In CRIMINAL cases, the court may dismiss the action on its own initiative after
giving the prosecution the chance to present its evidence.
In both cases, the motion is raised only after the prosecution or the plaintif has
presented his case and the ground is based on insufficiency of evidence.
Take note that under Rule 9 of the Old Rules of Court, defenses and objections not
pleaded either in a motion to dismiss or in the answer are deemed waived. Among the
exceptions (lack of jurisdiction, res adjudicata, etc.) is when there is no cause of action.
Meaning, the ground of no cause of action cannot be waived. The same can be raised at
any stage during the trial or even on appeal.
Now, such ground is not anymore found under the New Rules. What does it mean? Do
you mean to tell me that such ground is waivable now? NO. The ground of no cause of
action is now incorporated under Rule 33, such that during the trial when there is really no
cause of action, your remedy is to file a demurrer to evidence under Rule 33. So there is
no need to refer to Rule 9 anymore.

Lakas Atenista
Ateneo de Davao University College of Law

56

1997 Rules on Civil Procedure

2001 Edition

Rule 33
Demurrer to Evidence

Q: One thing, what is the diference between the no cause of action under Rule 16
and the no cause of action under Rule 33?
A: Under Rule 16, the ground of no cause of action is based on the complaint, while
under Rule 33, the ground of no cause of action is based on the plaintifs evidence.
NOTE: If the complaint states cause of action, the defendant cannot file a motion to dismiss under
Section 1[g], Rule 16 because he hypothetically admits the allegations in the complaint. So they have
to go to trial. Now, if during the trial, the plaintif failed to prove his cause of action (meaning, there is
really no cause of action), it is now proper for the defendant to file a motion to dismiss on the ground
of insufficiency of evidence under Rule 33, and not under Rule 16 because in the first place, the
plaintifs complaint states cause of action.

ENOJAS vs. COMELEC

283 SCRA 229 [1997]
HELD: The motion to dismiss on the ground of jurisdiction can be easily be
diferentiated from a motion to dismiss on demurrer to evidence in that, in the
latter case, the movant admits the truth or factual allegations in the complaint
and moves for the dismissal of the case on the ground of insufficiency of
evidence. The legal efect and consequence of a demurrer to evidence is that in
the event that the motion to dismiss on demurrer to evidence is granted and the
order of dismissal is reversed on appeal, the movant loses his right to present
evidence in his behalf.
However, in a motion to dismiss on the ground of lack of jurisdiction, the
movant does not lose his right to present evidence.
It likewise bears stressing that a demurrer to evidence under Rule 33 is in
the nature of a motion to dismiss on the ground of insufficiency of evidence and
is presented after the plaintif rests its case. It thus difers from a motion to
dismiss under Rule 16 which is grounded on preliminary objections and is
presented at the outset of the case, that is before a responsive pleading is filed
by the movant and within the period for the filing thereof.

Lakas Atenista
Ateneo de Davao University College of Law

57