NOTES IN CIVIL PROCEDURE
Dean Willard Riano (SSC-R Institute of Law)
CHAP. 1: FUNDAMENTAL CONCEPTS
I. THE BASICS OF THE CIVIL LITIGATION PROCESS
- A significant element of the Philippine judicial process is its
employment of the adversarial system as an indispensable
tool in dispute resolution. Under this system, the contending
parties present before a court their conflicting versions of an
occurrence by shaping both the facts, the issues and even the
evidence to suit their perspectives, designs and strategies in
accordance with a body of rules that provides the framework
for the entire litigation process. This body of rules likewise
not only guides the court in its determination of legal
controversies but also prevents it from rendering arbitrary
orders, resolutions and decisions. In this jurisdiction, these
rules have been collectively called the Rules of Court.
- Lawsuits are neither inventions of the court nor of the
judicial system. The system is in reality a passive entity. A
court for example, while having jurisdiction over certain
subject matters, does not on its own accord call on the
parties to litigate between or among themselves. Even the
rules of procedure on their own are mere mishmash of letters
and words. They are just assortments of sentences and
paragraphs, dormant and virtually lifeless.
- Lawsuits actually originate from an individual, from one
who feels aggrieved by the acts of another. A litigation arises
because someone goes to court and seeks redress from it for
a perceived wrong against his person or property. It is the
individual who decides to start the litigation process and
breaths life into the rules of procedure by invoking the
jurisdiction of the court and when a lawsuit is commenced,
the judicial machinery is activated, is infused with life and
continues to grind until the dispute is resolved and the
decision executed.
- The material that follows presents the most basic aspects of
the civil litigation process and does not pretend to be an
exhaustive treatise of all the issues which may arise in all
litigations. There are certain matters in the litigation process
which suddenly occur in the course of the proceedings and
which cannot be reasonably foreseen. Besides, there are
topics which due to the demands of both scope and priorities
have to be intentionally left out not being indispensable to
the acquisition of the core knowledge required to pass the
bar examinations and to start a career in trial practice. The
other more complicated situations in remedial law would
later automatically present themselves to the new lawyer as
he acquires experience in the field.
- Care has been taken to avoid the use of impenetrable
legalese because emphasis has been made in bringing civil
procedure to a more understandable and workable level.
Topics in the Rules of Court have been rearranged to help the
reader break free from an overly technical approach to the
subject, release the mind from the "book mode" developed in
law school and to approximate the application of procedural
rules in both the bar examinations and the real world.
Experience has told us fairly well that it is the ability to
conceptualize the relationships among procedural rules,
which enables one to respond with ease to even the most
cerebrally formulated questions in the bar. Although there
are aspects of the Rules, in fact a substantial number of
them, which have to be committed to memory, route
memory has never been the key to success in the
examinations in procedural law.
- Whenever necessary, principles in substantive law have
been included in the discussion of the topics found in this
work so the reader may see the rules from a better
perspective. Substantive law after all, constitutes the
foundation of procedural law.
- The concepts that follow represent the most fundamental
stages in the civil litigation process. The mastery of these
concepts will enable the reader to grasp the most essential
procedural principles, to proceed to a higher level of
understanding of those principles and consequently to help
him demystify important aspects of remedial law, a subject
traditionally but quite erroneously regarded as both abstract
and difficult.
I. Complaint
- Both experience and common reason have taught us that
before a person learns to walk, he should learn how to crawl
and before he learns to run, he should learn how to walk.
- Similarly, before one could appreciate the intricacies of
remedial law, one has to start with its basics. These so-called
basics are actually the elementary processes of ordinary civil
actions. The student of remedial law has to know that an
overwhelming majority of bar concepts most frequently
tested during the past thirty years of bar examinations,
involve the operations of ordinary civil actions.
- As a starting point it must be emphasized that the rules of
civil procedure will come into play only with the filing of a
complaint or in some actions, a petition. Without a complaint
being filed, said rules would simply be meaningless. It is the
filing of a complaint that gives life to procedural rules and
triggers their application.
- The complaint is the first pleading filed with the court by a
party called the plaintiff. The primary purpose of this
pleading is to apprise the adverse party, called the
defendant of the nature and the basis of the claim.
A. Right of action and cause of action
1. A complaint is filed not because one simply wants to file a
complaint. Also, the litigation process involves much more
than the mere mechanical act of the drafting of a complaint
and the filing of the same with the court. Before filing the
complaint, the lawyer initially determines whether or not his
client, the plaintiff has a cause of action against the
defendant in accordance with the provisions of substantive
law. An inquiry into substantive law is imperative because
such law is the very basis of procedural law. This cause of
action involves a right on the part of the plaintiff and a
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violation of this right by the defendant. Without a right and a
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violation of this right, there can be no cause of action.
Without this cause of action there would be no right to file a
suit against the defendant. This right to file a suit is called a
right of action. The right of action which is procedural in
character is the consequence of the violation of the right of
the plaintiff. Hence, the rule: There is no right of action
where there is no cause of action.
B. Jurisdiction, venue and parties, prescription and
conditions precedent
1. If a cause of action exists, the lawyer may now start
considering the preparation of the complaint. But before
doing so, he proceeds to determine the court that should
take cognizance of the action. This involves an inquiry into
the rules on jurisdiction because the plaintiff is left with no
choice but to file his complaint in the court upon which the
law has conferred jurisdiction over the subject matter of the
action. Filing the complaint in the wrong court is a ground
for a motu proprio dismissal of the same.
- The counsel then goes on to determine the place where the
action is to be filed. In procedural terms, this place is called
the venue of the action. A complaint filed in the court with
the appropriate jurisdiction runs the risk of being dismissed
on motion if lodged in the wrong geographical area.
- Counsel likewise ascertains whether or not his client, the
plaintiff is a real party in interest. A plaintiff who claims to
be one must sufficiently allege ownership of a right violated
by the adverse party. Then he expands his analysis by
determining those who are to be impleaded as defendants.
This determination is vital because as a rule, a suit can be
commenced only against one averred to have violated the
plaintiff's rights. All these determinations mean that he sees
to it that the rules on parties are complied with. In short, as
a starting point, the lawyer meticulously pours over the
principles governing actions, right of action, causes of action,
jurisdiction, venue and parties.
2. The plaintiff, normally through his chosen counsel,
thoroughly and carefully verifies from the substantive laws
whether or not there still exists a sustainable cause of action
by confronting himself with a fundamental question: Is the
action barred by the statute of limitations? If it is, then the
right of action has ceased. It has ceased because it has
prescribed and prescription is one of the well-recognized
grounds for the dismissal of a complaint, the same being a
mode of extinguishment of a legal obligation. For example,
under Art. 1144 of the Civil Code of the Philippines an action
upon a written contract prescribes after ten (10) years from
the accrual of the cause of action. Under Art. 1147 of the
same Code, actions for forcible entry and unlawful detainer
must be commenced within one (1) year from the accrual of
the cause of action. Enshrined in the Rules is the dictum that
when it appears from the pleadings or from the evidence on
record that the action has prescribed, the court is mandated
by the Rules to dismiss the claim.
3. If the action requires the performance of conditions
precedent, then compliance with these conditions is
imperative and cannot be conveniently ignored. Compliance
is not sufficient. The compliance must likewise be alleged in
the complaint. For instance, an action between or among
individuals residing in the same barangay are generally
required to avail of the barangay conciliation proceedings
before invoking judicial intervention.
- There are also conditions precedents which actually
constitute elements of the plaintiff's cause of action. An
action for collection of a sum of money for example, must be
preceded by a demand to pay pursuant to Art. 1169 of the
Civil Code of the Philippines. An action for unlawful detainer
predicated upon the non-payment of rentals must likewise
come only after a demand upon the defendant to pay and to
vacate the premises and such demand is not heeded by the
latter. By virtue of the provisions of Art. 151 of the Family
Code of the Philippines, actions between members of the
same family must be preceded by attempts to have the
controversy settled and compromised. Also, when there is a
need to exhaust administrative remedies before judicial
intervention is sought, then the plaintiff should allege and
show compliance with this condition.
C. Preparation of the complaint
1. The preparation of a complaint requires recognition and a
mastery of certain principles. Most prominent among these is
the rule that the complaint or any other pleading is not
designed to be a narration of evidentiary matters but a
statement only of the ultimate facts which constitute a
party's claim or defense and which must be set forth in a
methodical and logical form. Evidence has its own place in
the trial, not in a pleading.
2. The complaint must specify the relief sought although the
rule allows the addition of a general prayer for such other
reliefs as the court may deem just or equitable. Although
part of the complaint, the relief or prayer is not a part of the
cause of action. The nature of the cause of action is
determined by the allegations in the body of the complaint
and not by the prayer.
3. The complaint must be dated. It must likewise be signed
by the party or by the counsel representing him. Signing the
complaint is mandatory because an unsigned pleading
produces no legal effect.
4. When it is counsel who signs the pleading, this signature
constitutes a certificate by him that he has read the
pleading, that to the best of his knowledge, information and
belief, there are good grounds to support it and that it is not
interposed for delay.
5. The complaint must designate the address of the party or
his counsel. This address cannot be a post-office box.
6. Should a complaint or any other pleading be verified or be
under an oath? The general rule on the matter is that a
pleading need not be verified unless a verification is
specifically mandated by law or by a particular rule. For
example, all pleadings under the Rules on Summary
Procedure have to be verified.
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7. The complaint and other initiatory pleading must contain
or be accompanied by a certification against forum shopping
where the plaintiff or principal party certifies, among others,
that he has not commenced any action or filed any claim
involving the same issues in any other tribunal. Failure to
comply with this requirement is a ground for the dismissal of
the complaint upon motion and after a hearing.
8. Depending upon the nature of the action, the plaintiff may
avail of any of the provisional remedies provided for under
the rules like preliminary attachment, preliminary
injunction, receivership, replevin or support pendente lite. In
an action for forcible entry for example, the plaintiff may
ask for a writ of preliminary mandatory injunction to restore
him in his possession during the pendency of the main case.
- For example, in an action for collection of a sum of money,
the plaintiff may, at the commencement of the action, apply
for the issuance of a writ of preliminary attachment of the
defendant's properties where it is shown that the defendant
is about to depart from the Philippines with the intention of
defrauding the plaintiff-creditor. This attachment is obtained
to secure the judgment to avoid the sad spectacle of a
winning party literally holding an empty bag because the
sheriff cannot find properties of the obligor to satisfy the
judgment. In an action for support, the resolution of which
may possibly come only after a protracted litigation, the
plaintiff may ask the court to order the defendant to give
support to the plaintiff during the pendency of the action.
This support is known in the Rules its support pendente lite.
In an action for damages against an electric company which
wrongly cut off the power supply to the plaintiff's factory,
the latter may ask the court to issue a writ of preliminary
mandatory injunction to restore power in the meantime that
litigation on the damage suit is in progress.
D. Filing of the complaint
1. After all those mentioned above have been considered and
duly complied with, the complaint shall now be filed. The
filing of the complaint is the act of presenting the same
before the clerk of court.
2. The rule in this jurisdiction is that when an action is filed,
the filing must be accompanied by the payment of the
requisite docket and filing fees. The fees must be paid
because as a rule, the court acquires jurisdiction over the
case only upon payment of the prescribed fees. Without
payment, the general rule is that the complaint is not
considered filed. Payment of the full amount of the docket
fee is mandatory and jurisdictional. This rule was however,
relaxed by the Supreme Court when in one case, it allowed
the payment of the fee within a reasonable time but not
beyond the prescriptive period. If the fees are not paid at
the time of the filing, the court acquires jurisdiction only
upon full payment of the fees within a reasonable time as the
court may grant, barring prescription.
3. Even on appeal, the general rule is that payment of docket
fees within the prescribed period is mandatory for the
perfection of the appeal although there are instances when
the rule has been applied with liberality. It is well-
established that the payment of docket fees within the
prescribed period is mandatory for the perfection of an
appeal. This is so because a court acquires jurisdiction over
the subject matter of the action only upon the payment of
the correct amount of docket fees regardless of the actual
date of filing of the case in court.
4. When the complaint is filed and the prescribed fees are
paid, the action is deemed commenced. The court then
acquires jurisdiction over the person of the plaintiff and the
running of the prescriptive period for the action is tolled.
E. Dismissal of the action by the plaintiff
1. Sometimes after filing the action, the plaintiff may have
second thoughts over the filing of the complaint. For reasons
personal or otherwise, he may entertain doubts as to the
propriety of the filing of the action. In this case, he may
dismiss his own complaint. If the dismissal is before the
adverse party had served an answer or a motion for summary
judgment, he may have his own complaint dismissed by the
mere filing of a notice of dismissal. Upon such notice, the
court shall issue an order confirming the dismissal. The
dismissal by notice of dismissal is without prejudice to its
being refiled, unless otherwise stated in the notice of
dismissal or when the refiling is barred by what jurisprudence
calls `the two-dismissal' rule.
2. After service of the answer or a motion for summary
judgment, the plaintiff can no longer have his action
dismissed by mere notice. The plaintiff must now file a
motion to dismiss his complaint. The granting or the denial of
the motion to dismiss is now a matter addressed to sound
judicial discretion because this type of dismissal is no longer
a matter of right. If the court allows the dismissal of the
complaint, only the complaint is dismissed. A counterclaim
already pleaded prior to the service upon the defendant of
the motion for dismissal, is not affected and is without
prejudice to the right of the defendant to prosecute his
counterclaim in the same or in a separate action. A dismissal
under this rule, is deemed a dismissal without prejudice,
unless otherwise stated in the order of the court.
F. Amendment of the complaint
1. Instead of dismissing his complaint as explained in the
immediately preceding paragraphs, it frequently happens
that the plaintiff finds the need to amend his complaint.
Amendment of his pleading is a matter of right as long as the
said amendment is made before the other party has served a
responsive pleading. So if the plaintiff desires to amend his
complaint before the defendant serves his answer, the
amendment may be done as a matter of right and the court
has no discretion on the matter. In such a case, the
amendment has to be accepted. If the court refuses to
accept an amendment made as a matter of right, the court
may be compelled to do so through the special civil action of
mandamus. Note that an amendment made as a matter of
right may, by the terms of the Rules, be made only once.
2. May the plaintiff amend his complaint as a matter of right
even after a motion to dismiss has been served? He may. This
is because a motion to dismiss is not a responsive pleading.
Thus, his right to amend his complaint is not affected by the
filing of the motion to dismiss. After a responsive pleading
has been served, amendment must be by leave of court. This
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means that after the answer has been served, an amendment
may be done only with the approval of the court. Example: A
complaint was filed. The defendant served an answer to the
complaint. The plaintiff now decides to amend his complaint.
The amendment is no longer a matter of right because an
answer has already been served by the defendant. The
amendment would now require leave of court and the
amendment has become a matter of judicial discretion.
3. Although existing jurisprudence adopts a liberal policy on
amendments, the amendment may be refused if it appears to
the court that the amendment is intended for delay. It may
also be denied if the amendment is no longer a matter of
right and the proposed amendment would result in a drastic
change in the cause of action or defense or a change in the
theory of the case. Also, when the court has no jurisdiction
over the subject matter of the action and the amendment is
for the purpose of conferring jurisdiction upon the court
where the amendment is no longer a matter of right, the
amendment shall not be allowed. In the latter case, since the
court is without jurisdiction over the action, it has no
jurisdiction to act on the motion for leave to amend.
4. An amendment may also arise by implication when issues
not raised in the pleadings are tried with the express or
implied consent of the parties as when no objection is
interjected on the evidence offered on a matter not raised in
the pleadings. When this occurs, the issues tried with the
consent of the parties shall be treated as if they had been
raised in the pleadings. The pleadings may then be amended
to conform to the evidence although an actual amendment
need not be made because failure to so amend the pleadings
will not affect the result of the trial on said issues.
II. Summons
1. Upon the filing of the complaint and the payment of the
requisite legal fees, the clerk of court shall issue the
corresponding summons to the defendant directing him to
file an answer to the complaint and that unless he does so,
the court may render a judgment against him by default and
grant to the plaintiff the relief applied for. Attached to the
summons is a copy of the complaint.
- The summons and a copy of the complaint are to be served
upon the defendant in person but if the defendant cannot be
served despite efforts to serve him in person, summons may
be served by an alternative mode called substituted service.
This consists in serving the summons at the residence of the
defendant or his regular place of business with a person
qualified to so receive the summons in accordance with the
Rules. Subject to certain exceptions, the long standing rule is
that summons by publication is not a recognized mode of
service for the purpose of acquiring jurisdiction over the
person of the defendant.
2. Recall that the filing of the complaint enables the court to
acquire jurisdiction over the person of the plaintiff. This
jurisdiction however, does not extend to the person of the
defendant. It is the service of summons in actions requiring
jurisdiction over the person of the defendant (in personam
actions) which enables the court to acquire jurisdiction over
the person of said defendant. The summons is a coercive
process which places the person, even of the unwilling
defendant, under the jurisdiction of the court. Service of
summons likewise represents a compliance with the rule on
notice, an essential element of constitutional due process.
3. Although the summons directs the defendant to file tin
answer to the complaint, the defendant need not file an
answer. There are other procedural options available to the
defendant. For instance, if after reading the complaint, the
defendant finds that because of the ambiguity in certain
material allegations of the complaint he cannot possibly file
an intelligent answer, he need not file his answer unless and
until the alleged ambiguities are clarified by the plaintiff.
These ambiguities may be sought to be clarified through a
bill of particulars submitted by the plaintiff upon order of the
court and procured by the adverse party by his filing of a
motion for bill of particulars. It must be clarified that a
motion for.bill of particulars is not solely directed to the
complaint. Any other pleading may be the object of a motion
for bill of particulars.
4. After the plaintifl'submits a bill of particulars which
clarifies the ambiguities in the complaint, the defendant may
now file his answer. If however, from the reading of the
complaint, a solid basis exists for the immediate dismissal of
the action, the defendant, instead of filing his answer, may
opt to file a motion to dismiss.
5. There are numerous grounds for a motion to dismiss and
these grounds must be invoked by filing the requisite motion.
Normally, a court will wait for a party to file a motion to
dismiss even if the ground for dismissal is known to it. For
instance, unless the case is covered by the Rules on Summary
Procedure, the court will and ought to refrain from
dismissing a complaint on the ground of improper venue even
if the venue is blatantly defective. Venue is a matter
designed for the convenience of the parties and if no party
complains about the venue, it is not for the court to take up
the cudgels for them. There are however, grounds for
dismissal which the court will recognize on its own motion.
Lack ofjurisdiction over the subject matter of the action, litis
pendencia, res judicata and prescription are reasons for the
court to effect a motu proprio dismissal of the complaint
whenever any of these grounds appears from the pleadings or
from the evidence on record.
III. Answer
1. If there exists no ground for a motion to dismiss or if the
motion is rightfully denied, the defendant has to file his
answer. The answer is the pleading which is the responsive
pleading to the complaint. The answer gives notice to the
plaintiff as to which allegations in the complaint he decides
to contest and thus, put in issue. The answer contains both
the negative and affirmative defenses of the defendant.
2. The filing of an answer is important. Failure of the
defendant to file an answer will entitle the plaintiff to file a
motion to declare the defendant in default. When he is
declared in default the defendant loses his standing in court
and the court may proceed to render judgment granting the
plaintiff the relief as his complaint may warrant, unless in its
discretion, the court requires the plaintiff to submit evidence
on his claim.
3. The answer to the complaint must specifically deny the
material averments of the complaint because material
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averments not specifically denied are deemed admitted. If
the answer admits the material averments of the complaint,
the answer is deemed to have failed to tender an issue. Since
there are no triable issues, a trial is completely unnecessary.
The plaintiff may then file a motion for a judgment on the
pleadings and the court may direct a judgment based on the
pleadings already filed.
4. A judgment on the pleadings is not to be confused with a
summary judgment. A judgment on the pleadings is rendered
because, as disclosed by the pleadings, there is no issue in
the case either because the answer fails to tender an issue or
because it admits the material allegations of the complaint.
A judgment on the pleadings is based, just as the name tells
us, on the pleadings of the parties. A summary judgment is
based not only on the pleadings of the parties but also on
their affidavits, depositions or admissions. The basis of a
summary judgment is not the absence of an issue but the
absence of a genuine issue in the case. Where there is an
issue in the case but the issue does not concern any material
fact, as when the issue is merely the amount of damages,
there is no genuine issue and a summary judgment is proper.
5. It happens frequently enough that the defendant has his
own claim against the plaintiff. When the defendant files his
answer to the complaint, said answer may be coupled with a
counterclaim, which is a pleading in its own right. It is a
pleading which sets forth a claim which a defending party
may have against an opposing party. A counterclaim is always
directed against an opposing party.
6. There are instances when two or more defendants are
named in a complaint. It also happens that one defendant
has a claim against his co-defendant, a claim arising out of
the transaction or occurrence which is the subject matter of
the complaint. The claiming defendant may then in his
answer, interpose a pleading against his co-defendant. This
pleading is known as a cross-claim. This is a pleading
containing the claim by one party against a co-party. Thus, if
P files an action for a sum of money against A and B,A may
file a cross-claim against B, his co-defendant. If A files a
claim against P, such claim is called a counterclaim, not a
cross-claim.
7. There are also cases when a defendant named in the
complaint, has a cause of action against one who is not a
party to the action. This cause of action is a claim against
the third person either for contribution, indemnity,
subrogation or any other relief in respect of the plaintiff's
claim. The defendant may bring in the third person into the
suit and implead him as a party by filing, with leave of court,
a third-party complaint against him, thus making him a party
to the action.
8. Recall that the defendant files an answer to the
complaint. This answer is the responsive pleading to the
complaint. May the plaintiff likewise make his own response
to the answer? The plaintiff' can. Upon receipt of the answer
of the defendant, the plaintiff may respond to the answer.
This response is done through a pleading called a reply. The
purpose of a reply is to deny or allege facts in denial or
avoidance of new matters alleged in the answer. It is the
plaintiff's responsive pleading to the answer of the defendant
to the complaint. Note however, that a reply, unlike the
answer is not a compulsory pleading. While the failure to file
an answer may lead to a declaration of default, the failure to
file a reply does not have the same consequence. The failure
to file a reply will not likewise result in the implied
admission of the material allegations in the answer because
allegations of new matters in the answer even if not replied
to, are deemed controverted or denied.
9. Recall also that a person not a party to the original action
may be impleaded by an original party and brought into the
action through a pleading called a third-party complaint.
Now, what if a person not a party to the complaint, on his
own accord and volition wants to be a party to the action,
with no party impleading him as a defendant through a third-
party complaint? How could this be procedurally possible?
There are provisions in the Rules that adequately meet this
kind of situation. This is made possible through a process
called intervention. Under the Rules, if at any time before
judgment, a person not a party to the action believes that he
has a legal interest in the matter in litigation in a case in
which he is not a party, he may, with leave of court, file a
complaint-inintervention in the action if he asserts a claim
against one or all of the parties. On the other hand, if he
unites with the defending party in resisting a claim against
said party, he may file an answer-in-intervention.
IV. Pre-trial
1. After the last pleading has been served and filed, it is the
duty of the plaintiff to promptly move ex parte that the case
be set for pre-trial. A pre-trial is mandatory and failure to
appear by either party will result in adverse consequences
for the absent party. In a pre-trial, the parties shall, among
others, consider the possibility of an amicable settlement or
submission of the case to alternative modes of dispute
resolution.
2. During the pre-trial stage and generally at any time before
trial, the parties may obtain information from each other
through the employment of devices collectively known as
discovery procedures. Thus, a party may avail of the various
modes of discovery like depositions, interrogatories to
parties, request for admission, production and inspection of
documents, and physical and mental examinations of
persons.
V. Trial
- Should there be no amicable settlement or a compromise
forged between the parties, the case will be set for trial.
During the trial, the parties present their evidences on their
claims and defenses. The plaintiff presents his evidence first.
After he rests his case the defendant will present his own
evidence. However, if the defendant believes that upon the
facts and the law, the plaintiff' is not entitled to relief, he
may, instead of presenting his own evidence, move for the
dismissal of the case. He does so by way of a demurrer to
evidence. If the demurrer is denied, the defendant still has
the right to present his evidence. If the demurrer is granted
but on appeal the order of dismissal is reversed, the
defendant is deemed to have waived his right to present
evidence.
VI. Judgment
1. A judgment is rendered after the submission of the
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evidences of the parties has been concluded. It is the
decision of the court and represents its official determination
of the respective rights and obligations of the parties to the
case.
2. There is no oral judgment under the Rules. It has to be in
writing personally and directly prepared by the judge, stating
clearly the facts and the law on which it is based, signed by
him, and filed with the clerk of court.
3. Central to the concept of a judgment is the date of entry
of the judgment which under current procedure should also
be the date of the finality of the judgment. The date of entry
of the judgment finds relevance when the judgment is to be
executed or when later on a litigant files a petition for relief
from judgment.
VII. Post judgment remedies
1. The judgment will declare inevitably that a party wins and
a party loses the litigation. The judgment is not the end for
the losing party because he is afforded remedies against the
adverse judgment. These remedies may be categorized into
(a) remedies before the judgment becomes final and
executory, and (b) remedies after the judgment becomes
final and executory.
2. Before the judgment becomes final and executory the
aggrieved party may file (a) a motion for reconsideration, (b)
a motion for new trial, or (c) an appeal.
3. After the judgment becomes final and executory, a party
may no longer appeal because the period for appeal has
already lapsed. The judgment has become final and
executory and the prevailing party may, at anytime within
five years from its entry, file a motion for the execution of
the judgment rendered in his favor. The losing partypay
however, avail of extraordinary remedies at this stage like
(a) a petition for relief, (b) an action to annul the judgment,
or even (c) certiorari. Depending upon the circumstances as
when the nullity of the judgment is plain and evident on its
face, he may be allowed to attack the judgment collaterally.
VIII. Execution
- When all the remedies available to a party have been
exhausted and the case is finally decided, the judgment of
the court shall then be subject to execution. This is the
remedy afforded by procedural rules for the enforcement of
the judgment. It is the fruit as well as the end of the action.
- Postscript: At the end of this material is a discussion on
actions known under the Rules as special civil actions and are
socalled because although they are governed by the rules for
ordinary civil actions, there are special rules applicable only
to them.
II. POWERS OF THE SUPREME COURT
I. Rule-making power of the Supreme Court
- The Supreme Court has the constitutional power to
promulgate rules concerning pleading, practice and
procedure (Sec. 5[5], Art. VIII, Constitution of the
Philippines).
II. Limitations on the rule-making power of the Supreme
Court
- The following limitations are imposed by the constitution on
the rule-making power of the Supreme Court:
(a) The rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases;
(b) The rules shall be uniform for courts of the same grade;
and
(c) The rules shall not diminish, increase, or modify
substantive rights (Sec. 5[5], Art. VIII, Constitution of the
Philippines).
III. Legislative power and the rule-making power of the
Supreme Court
1. The 1973 Constitution empowered the then Batasang
Pambansa to repeal, alter or supplement the Rules
promulgated by the Supreme Court concerning pleading,
practice and procedure (Sec. 5[51, Art. X, 1973 Constitution).
This provision however, no longer appears in the 1987
Constitution. Should the silence of the 1987 Constitution on
the subject be construed as a bar on Congress to exercise the
power it had under the 1973 Constitution?
2. Arguments that weigh in favor of the congressional power
to repeal, alter, or supplement existing procedural rules laid
down by the Supreme Court normally invoke the plenary
power of Congress to legislate which accordingly must
include the power to legislate on pleading, practice and
procedure.
3. Reference is often made to the Transitory Provisions of the
1987 Constitution (Sec. 10, Art. XVIII) to support the opinion
that the power to promulgate rules of procedure is not
intended by the fundamental law to be the sole prerogative
of the Supreme Court but is a power shared with Congress.
The provision reads:
" * * * The provisions of the existing Rules of Court,
judiciary acts, and procedural laws not inconsistent with
the Constitution shall remain operative unless amended or
repealed by the Supreme Court or Congress" (Italics
supplied).
4. It has been observed that Congress has not inhibited itself
from enacting laws involving matters of procedure even after
the effectivity of the 1987 Constitution. For example,
Republic Act 7438 (Act Defining Certain Rights of Persons
Arrested, Detained or Under Custodial Investigation),
provides procedural rules on the conduct of custodial
investigation, on the waiver of the right to counsel and on
the making of extrajudicial confessions. Republic Act 6981
(Witness Protection, Security and Benefit Act) lays down the
procedure for admission into the program. Republic Act 8493
(Speedy Trial Act of 1998) contains rules on criminal
procedure which have the effect of either amending or
supplementing existing rules. Pursuant to said law and in
order to accelerate the disposition of criminal cases, the
Supreme Court subsequently issued Circular No. 39-38 which
took effect on September 15, 1998.
5. It is of interest to note that the Supreme Court has
gravitated towards an interpretation favoring the view that
the rule-making power of the Court concerning pleading,
practice and procedure is no longer shared with Congress.
Although it may be argued that the pronouncements by the
Page6
Court on the subject are mere obiter dicta and thus, have no
doctrinal value, the same unmistakably disclose the Court's
leanings. The following pronouncements of the Court are
instructive:
" * * * The rule-making power of this Court has
expanded. This Court for the first time, was given the
power to disapprove rules of procedure of special courts
and quasi-judicial bodies. But most important, the 1987
Constitution took away the power of Congress to repeal,
alter or supplement rules concerning pleading, practice
and procedure. In fine, the power to promulgate rules of
pleading, practice and procedure is no longer shared by
this Court with Congress, more so with the executive * * *"
(Echegaray us. Secretary of Justice, 301 SCRA 96, 112;
Italics supplied).
- In a case of more recent vintage, the Court, in describing
its rule-making power opined:
"It has the sole prerogative to amend, repeal, or
even establish new rules for a more simplified and
inexpensive process, and the speedy disposition of cases
(Neypes vs.Court ofAppeals, 469 SCRA 633, 643-644; Italics
supplied).
IV. Liberal construction of the Rules of Court (Bar 1998)
1. The Rules of Court are to be liberally construed ii order to
promote their objective of securing a just, speedy, an(
inexpensive disposition of every action or proceeding (Sec. 6
Rule 1, Rules of Court). The emerging trend in the rulings o
the Supreme Court is to afford every party litigant the
amples opportunity for the proper and just determination of
his cause free from the constraints of technicalities. Time
and again, the Highest Tribunal has consistently held that
rules must not be applied rigidly so as not to override
substantial justice because rules of procedure must be used
to facilitate, not to frustrate justice.
2. Liberal construction of the rules has been allowed by the
Supreme Court in cases (1) where a rigid application will
result in a manifest failure or miscarriage of justice
especially if a party successfully shows that the alleged
defect in the questioned final and executory judgment is not
apparent on its face or from the recitals contained therein;
(2) where the interest of substantial justice will be served;
(3) where the resolution of the motion is addressed solely to
the sound and judicious discretion of the court; and (4)
where the injustice to the adverse party is not commensurate
to the degree of his thoughtlessness in not complying with
the procedure prescribed.
3. The rigid application of the Rules may be relaxed so that
the ends of justice may be better served. However, such
liberality may not be invoked if it would result in the wanton
disregard of the rules, and cause needless delay. Save for the
most persuasive of reasons, strict compliance with the Rules
is enjoined to facilitate the orderly administration of justice.
4. The rule on liberal construction does not mean that
procedural rules are to be ignored or disdained at will to suit
the convenience of a party. Procedural law has its own
rationale in the orderly administration of justice, namely, to
ensure the effective enforcement of substantive rights by
providing for a system that obviates arbitrariness, caprice,
despotism, or whimsicality in the settlement of disputes.
5. "The `liberal construction rule' is not a license to violate
procedural requirements. Procedural rules are designed to
facilitate the adjudication of cases. Courts and litigants alike
are enjoined to abide strictly by the rules. And while the
Court, in some instances, allows a relaxation in the
application of the rules, this, we stress, was never intended
to forge a bastion for erring litigants to violate the rules with
impunity. The liberality in the interpretation and application
of the rules applies only in proper cases and under 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.
Concomitant to a procedure adopting a liberal application
of the rules should be an effort on the part of the party
invoking liberality to explain his failure to abide by the rules.
Illustration (Bar 1998)
1. xxx
2. How shall the Rules of Court be construed?
Suggested answer:
The Rules of Court shall be liberally construed in
order to promote their objective of securing a just, speedy
and inexpensive disposition of every action and proceeding
(Sec. 6, Rule 1, Rules of Court).
V. Power of the Supreme Court to suspend its own rules
1. The courts have the power to relax or suspend technical or
procedural rules or to except a case from their operation
when compelling reasons so warrant or when the purpose of
justice requires it. What constitutes good and sufficient
cause that would merit suspension of the rules is
discretionary upon the courts.
2. There are, indeed, reasons which would warrant the
suspension of the Rules:
(a) the existence of special or compelling circumstances;
(b) the merits of the case;
(c) a cause not entirely attributable to the fault or
negligence of the party favored by the suspension of rules;
(d) a lack of any showing that the review sought is merely
frivolous and dilatory; and
(e) the other party will not be unjustly prejudiced thereby.
3. While the rules may be relaxed or even suspended by the
Supreme Court, it will only do so for persuasive and weighty
reasons as to relieve a litigant of an injustice commensurate
with his failure to comply with the prescribed procedure and
the mere invocation of substantial justice is not a magical
incantation that will automatically compel the Court to
suspend procedural rules.
Page7
4. Technical rules may be suspended whenever the purposes
of justice warrant it, such as where substantial and
important issues await resolution because the courts have
the power to relax or suspend technical or procedural rules
or to except a case from their operation when compelling
reasons so warrant or when the purpose of justice requires it.
What constitutes good and sufficient cause that would merit
suspension of the rules is discretionary upon the courts.
5. Procedural rules are not to be belittled or dismissed simply
because their non-observance may have resulted in prejudice
to the parties' substantive rights. Like all rules, they are
required to be followed except only for the most persuasive
of reasons as when "transcendental matters" of life, liberty or
state security are involved. Litigation is not a game of
technicalities. It is equally true, however, that every case
must be presented in accordance with the prescribed
procedure to ensure an orderly and speedy administration of
justice.
6. The rule on suspension of the rules of procedure is aptly
described in one case, thus: " * * * compliance with the
procedural rules is the general rule, and abandonment
thereof should only be done in the most exceptional
circumstances"
VI. Power to amend the rules
- The constitutional power of the Supreme Court to
promulgate rules of practice and procedure necessarily
carries with it the power to overturn judicial precedents on
points of remedial law through the amendment of the Rules
of Court.
Power to stay proceedings and control its processes
1. The power to stay proceedings is incidental to the power
inherent in every court to control the disposition of the cases
on its dockets, considering its time and effort, and that of
counsel and the litigants. But if proceedings must be stayed,
it must be done in order to avoid multiplicity of suits and
prevent vexatious litigations, conflicting judgments,
confusion between litigants and courts
2. The inherent power of a court to amend and control its
processes and orders includes the right to reverse itself if
only to make its findings and conclusions conformable to law
and justice. Every court has the power and the corresponding
duty to review, amend or reverse its findings and conclusions
whenever its attention is seasonably called to any error or
defect that it may have committed.
III. THE RULES OF COURT
I. The procedural rules under the Rules of Court are not laws
- The Rules of Court as a whole, constitutes the body of rules
governing pleading, practice and procedure. As they do not
originate from the legislature, they cannot be called laws in
the strict sense of the word. However, since they are
promulgated by authority of law, they have the force and
effect of law if not in conflict with positive law. The Rules
are subordinate to statute, and in case of conflict, the
statute will prevail.
II. Substantive law distinguished from remedial law (Bar
2005)
- Substantive law creates, defines and regulates rights and
duties concerning life, liberty or property which when
violated gives rise to a cause of action.
- Remedial law prescribes the methods of enforcing those
rights and obligations created by substantive law by providing
a procedural system for obtaining redress for the invasion of
rights and violations of duties and by prescribing rules as to
how suits are filed, tried and decided upon by the courts.
III. Prospective effect of the Rules of Court
- The Rules of Court are not penal laws and are not to be
given retroactive effect and are to govern cases brought
after they take effect, except to the extent that in the
opinion of the court their application would not be feasible
or would work injustice, in which event the former rule shall
apply (Rule 144, Rules of Court).
IV. Applicability to pending actions; retroactivity
1. Rules of procedure however, may be made applicable to
actions pending and undetermined at the time of their
passage, and are deemed retroactive in that sense and to
that extent. As a general rule, the retroactive application of
procedural laws cannot be considered violative of any
personal rights because no vested right may attach to nor
arise therefrom. The rules are retroactive only in this sense.
2. For example, the Court applied to pending actions, a new
rule, promulgated through a case which standardized the
period for appeal by allowing 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. Said the Court:
"xxx In the light of this decision, a party litigant
may now file his notice of appeal either within fifteen days
from receipt of the original decision or within fifteen days
from the receipt of the order denying the motion for
reconsideration. Being procedural in nature, Neypes is
deemed to be applicable to actions pending and
undetermined at the time of its effectivity and is thus
retroactive in that sense and to that extent" (First Aqua
Traders, Inc. vs. Bank of the Philippine Islands, GR. No.
154034, February 5, 2007).
V. When procedural rules do not apply to pending actions
- While a procedural rule may be made applicable to actions
pending and undetermined at the time of their passage and is
retroactive in that sense, the rule does not apply:
(a) where the statute itself or by necessary implication
provides that pending actions are excepted from its
operation;
(b) if applying the rule to pending proceedings would
impair vested rights;
(c) when to do so would not be feasible or would work
injustice; or
(d) if doing so would involve intricate problems of due
process or impair the independence of the courts.
VI. Applicable actions or proceedings
- The Rules apply to civil actions, criminal actions and special
proceedings (Sec. 3, Rule 1, Rules of Court). The Rules shall
also apply in all courts, except as otherwise provided by the
Page8
Supreme Court (Sec. 2, Rule 1, Rules of Court).
VII. Inapplicable actions or proceedings
1. The Rules of Court shall not apply to:
(a) election cases,
(b) land registration cases,
(c) cadastral cases,
(d) naturalization cases, and
(e) insolvency proceedings except by analogy or in a
suppletory character and whenever practicable and
convenient (Sec. 4, Rule 1, Rules of Court).
2. As a rule, affidavits are hearsay but the argument that the
affidavits attached to the case are hearsay because the
affiants were not presented in court for cross-examination is
not persuasive because the rules of evidence are not strictly
observed in proceedings before administrative bodies like the
NLRC where decisions may be reached on the basis of
position papers only. Rules that prevail in judicial
proceedings are not controlling before the labor arbiter and
the NLRC. Technicalities have no room in labor cases where
the Rules of Court are applied only in a suppletory manner
and only to effectuate the objectives of the Labor Code and
not to defeat them.
- Labor disputes are not governed by the strict and technical
rules of evidence and procedure observed in the regular
courts of] aw. Technical rules of procedure are not
applicable in labor cases, but may apply only by analogy or in
a suppletory character, for instance, when there is a need to
attain substantial justice and an expeditious, practical and
convenient solution to a labor problem.
- A reliance on the technical rules of evidence in labor cases
is misplaced. To apply the concept of judicial admissions in
such cases is to exact compliance with technicalities contrary
to the demands of substantial justice.
3. In one case, the petitioner contends that under Sec. 34,
Rule 132 of the Rules of Court, only evidence which has been
formally offered shall be considered by the court. Under this
rule, a formal-offer of evidence is made in the trial court and
not for the first time in the appellate court. The contention
however, of the petitioner that the Court of Appeals erred in
deciding against his petition on the basis of documentary
evidences presented only for the first time on appeal and
which do not form part of the records of the trial court, is
not tenable. The rule on formal offer of evidence is not
applicable to a case involving a petition for naturalization.
4. In one case, the petitioner contended that under Sec. 34,
Rule 132 of the Rules of Court, only evidence which has been
formally offered shall be considered by the court. Under this
rule, a formal offer of evidence is made in the trial court and
not for the first time in the appellate court. The contention
however, of the petitioner that the Court of Appeals erred in
deciding against his petition on the basis of documentary
evidences presented only for the first time on appeal and
which do not form part of the records of the trial court, was
ruled by the Supreme Court as bereft of merit. The rule on
formal offer of evidence is not applicable to a case involving
a petition for naturalization.
5. Administrative bodies are not bound by the technical
niceties of the rules obtaining in a court of law. Hence,
administrative due process cannot be fully equated with due
process in strict judicial terms.
It is settled that rules of procedure are, as a matter of
course, construed liberally in proceedings before
administrative bodies. Thus, technical rules of procedure
imposed in judicial proceedings are unavailing in cases before
administrative bodies. Administrative bodies are not bound
by the technical niceties of law and procedure and the rules
obtaining in the courts of law. Rules of procedure are not to
be applied in a very rigid and technical manner, as they are
used only to help secure and not to override substantial
justice.
VIII. Scope of civil procedure
- Civil procedure includes:
(a) ordinary civil actions (Rules 1-56);
(b) provisional remedies (Rules 57-61); and
(c) special civil actions (Rules 62-71).
IV. NATURE OF PHILIPPINE COURTS
I. Courts of law and equity
- Philippine courts are both courts of law and equity. Hence,
both legal and equitable jurisdiction is dispensed with in the
same tribunal.
II. Application of equity; equity jurisdiction
1. Equity administers justice according to the basic tenets of
fairness. Equity denotes a concept of fairness, justness and
right dealing among men (Blacks, 5th Ed., 540). Equity seeks
to reach and to do complete justice where the courts of law
are incompetent to do so because of the inflexibility of the
rules and the lack of power to adapt their judgments to the
special circumstances of cases. Equity regards the spirit of
the law and not its letter, the intent and not the form, the
substance rather than the circumstance.
2. Equity however, is not to be applied in all cases. Equity
does not apply when there is a law applicable to a given
case. For all its conceded merits, equity is available only in
the absence of law and not as replacement. It cannot
supplant, although it may, as it often happens, supplement
the law. It is availed of only in the absence of a law and is
never availed of against statutory law or judicial
pronouncements.
3. In one case, the petitioner, upon sensing the inadequacy
of her legal arguments pleaded that "those who have less in
life should have more in law" She also sought the application
of the Filipino values of pakikisama and pakikipagkapwa tao
in resolving her case. In reaction to her plea, the Court
declared:
"Such appeal of petitioner is based on equity which
has been aptly described as `justice outside legality'.
However, equity is applied only in the absence of, and never
against, statutory law or judicial rules of procedure. As found
by respondent court * * * such equitable arguments cannot
prevail over the legal findings"
4. In an action to annul a contract of sale of a land, the
buyer moved for the court to order the seller to deposit in
court the amount initially given to the seller as consideration
Page9
for the land to prevent the dissipation of the amount paid.
The seller opposed the motion arguing that a deposit is not
among the provisional remedies enumerated in the Rules of
Court. The Court nevertheless granted the motion. The Court
considered the case as one that clearly showed a hiatus in
the Rules of Court and in the law because deposit is not so
provided under the Rules as a provisional remedy. If the
hiatus is left alone, it will result in unjust enrichment in
favor of the seller at the expense of the buyer. It may also
imperil the obligation of restitution, a precondition to the
annulment of a contract. This is a case of insufficiency of the
law and Article 9 of the Civil Code mandates a ruling despite
the "silence, obscurity or insufficiency of the laws." This calls
for the application of equity, which fills the open spaces of
the law. In ordering the deposit, the court accordingly
exercised its "equity jurisdiction"
5. The various rulings of the court indicate that the term
equity jurisdiction is used to describe the power of the court
to resolve issues presented in a case in accordance with the
natural rules of fairness and justice in the absence of a clear,
positive law governing such issues.
III. Principle of judicial hierarchy
1. The judicial system follows a ladderized scheme which in
essence requires that lower courts initially decide on a case
before it is considered by a higher court. Specifically, under
a judicial policy recognizing the hierarchy of courts, a higher
court will not entertain direct resort to it unless the redress
cannot be obtained in the appropriate courts.
Thus, while it is true that the issuance of a writ of
prohibition under Rule 65 of the Rules of Court is within the
jurisdiction of the Supreme Court, a petitioner cannot seek
relief from the Supreme Court where the issuance of such
writ is also within the competence of the Regional Trial Court
or the Court of Appeals. The Supreme Court is a court of last
resort. It cannot and should not be burdened with the task of
deciding cases in the first instance. Its jurisdiction to issue
extraordinary writs should be exercised only where
absolutely necessary or where serious and important reasons
exist.
2. This is an established policy necessary to avoid inordinate
demands upon the Court's time and attention which are
better devoted to those matters within its exclusive
jurisdiction, and to preclude the further clogging of the
Court's docket.
3. The following rulings are enlightening:
"The Supreme Court is a court of last resort, and
must so remain if it is to satisfactorily perform the functions
assigned to it by the fundamental charter and immemorial
tradition. It cannot and should not be burdened with the task
of dealing with causes in the first instance. Its original
jurisdiction to issue the so-called extraordinary writs should
be exercised only where absolutely necessary or where
serious and important reasons exist therefore. Where the
issuance of an extraordinary writ is also within the
competence of the Court ofAppeals or a Regional Trial Court,
it is in either of these courts that the specific action for the
writ's procurement must be presented. This is and should
continue to be the policy in this regard, a policy that courts
and lawyers must strictly observe.
"This concurrence of jurisdiction among the
Supreme Court, Court of Appeals and Regional Trial Courts in
certain cases should not be construed as giving to parties
unrestrained freedom of choice of the court to which
application therefore will be directed. There is a principle of
hierarchy of courts to be followed. A becoming regard for
that judicial hierarchy most certainly indicates that petitions
for the issuance of extraordinary writs against first level
courts should be filed with the Regional Trial Court, and
those against the latter, with the Court of Appeals. A direct
invocation of the Supreme Court's original jurisdiction to
issue these writs should be allowed only when there are
special and important reasons therefore, clearly and
specifically set out in the petition. This is established policy.
It is a policy that is necessary to prevent inordinate demands
upon the Court's time and attention which are better devoted
to those matters within its exclusive jurisdiction, and to
prevent further over-crowding of the Court's docket."
IV. When the doctrine of hierarchy of courts may be
disregarded
- The Supreme Court however, may disregard the principle of
hierarchy of courts if warranted by the nature and
importance of the issues raised in the interest of speedy
justice and to avoid future litigations. Under the principle of
liberal interpretation, it may, for example, take cognizance
of a petition for certiorari directly filed before it. The
Supreme Court has, in not a few cases, suspended its own
rules and excepted a particular case from their operation
whenever the interests of justice so require (Declarador vs.
Bansales, G.R. No. 159208, August 18, 2006). But a direct
invocation of the Supreme Court's original jurisdiction to
issue these writs should be allowed only when there are
special and important reasons therefore, clearly and
specifically set out in the petition (Lim vs. Vianzon, G.R. No.
137187, August 3, 2006) such as cases of national interest
and of serious implications, justify the availment of the
extraordinary remedy of writ of certiorari, prohibition, or
mandamus calling for the exercise of its primary jurisdiction.
- The following pronouncements emphatically sum up the
rule:
A direct recourse of the Supreme Court's original
jurisdiction to issue these writs should be allowed only when
there are special and important reasons therefore, clearly
and specifically set out in the petition.
V. Doctrine of non-interference or doctrine of judicial
stability
1. This principle holds that courts of equal and coordinate
jurisdiction cannot interfere with each other's orders.
Hence, a Regional Trial Court has no power or authority to
nullify or enjoin the enforcement of a writ of possession
issued by another Regional Trial Court.
The principle also bars a court from reviewing or
interfering with the judgment of a co-equal court over which
it has no appellate jurisdiction or power of review.
2. The doctrine of non-interference applies with equal force
to administrative bodies. When the law provides for an
`
appeal from the decision of an administrative body to the
Supreme Court or Court of Appeals, it means that such body
is co-equal with the Regional Trial Court in terms of rank and
stature, and logically beyond the control of the latter.
Page10
VI. Constitutional and statutory courts
1. A constitutional court is one created by a direct
Constitutional provision. Example of this court is the
Supreme Court of the Philippines. It owes its creation from
the Constitution itself (Sec. 1, Art. VIII, Constitution of the
Philippines). In the Philippines, only the Supreme Court is a
constitutional court.
2. A statutory court is one created by a law other than the
Constitution. All courts in the Philippines except the Supreme
Court, are statutory courts. They have been created
by statutory enactments. The Sandiganbayan is not a
constitutionally created court. It was not directly created by
the Constitution but was created by law pursuant to a
constitutional mandate. The 1973 constitution required the
then Batasang Pambansa to create a special court to be
known as the Sandiganbayan (Sec. 5, Art. XIII, 1973
Constitution) and its existence continues to be recognized by
the 1987 Constitution. While its existence is mandated by the
Constitution, its creation was through and by Presidential
Decree 1486, issued by President Ferdinand E. Marcos
pursuant to his legislative powers under Amendment No. 6 of
the 1973 Philippine Constitution.
VII. Civil and criminal courts
1. Civil courts are those which determine controversies
between private persons. Criminal courts are those which
adjudicate offenses alleged to have been committed against
the state.
2. Philippine courts exercise both civil and criminal
jurisdictions.
VIII. Courts of record and courts not of record
1. `Courts of record' are those which keep a written account
of its proceedings. Those courts which are not bound to keep
such records are `courts not of record'.
2. One attribute of a court of record is the strong
presumption as to the veracity of its records that cannot be
collateraly attacked except for fraud.
3. The test that is entitled to considerable weight in
determining whether or not a court is one of record is
whether the legislature creating the court has or has not
declared it to be a court of record.
4. All Philippine courts, including inferior courts, are now
courts of record (R.A. 2613).
IX. Superior and inferior courts
1. In the general sense, a court is `superior or `inferior' in
relation to another court. Hence, a Municipal Trial Court is
inferior to a Regional Trial Court while the latter is inferior
to the Court of Appeals. All courts in the Philippines are
inferior to the Supreme Court.
2. A superior court is one with controlling authority over
other courts, and with an original jurisdiction of its own. An
inferior court is one which is subordinate to another court
the judgment of which may be reviewed by a higher tribunal.
X. Courts of general and special jurisdiction
1. Courts of general jurisdiction are those with competence
to decide on their own jurisdiction and to take cognizance of
all cases, civil and criminal, of a particular nature. Courts of
special (limited) jurisdiction are those which have only a
special jurisdiction for a particular purpose or are clothed
with special powers for the performance of specified duties
beyond which they have no authority of any kind.
2. A court may also be considered `general' if it has the
competence to exercise jurisdiction over cases not falling
within the jurisdiction of any court, tribunal, person or body
exercising judicial or quasi judicial functions (Sec. 19[6], Sec.
20, BP 129, Judiciary Reorganization Act of 1980). It is in this
context that the Regional Trial Court is considered a court of
general jurisdiction.
XI. Courts of original and appellate jurisdiction
1. A court is one with original jurisdiction when actions or
proceedings are original filed with it. A court is one with
appellate jurisdiction when it has the power of review over
the decisions or orders of a lower court.
2. Metropolitan Trial Courts, Municipal Circuit Trial Courts
and Municipal Trial Courts are courts of original jurisdiction.
These courts have no appellate jurisdiction. The Regional
Trial Court is likewise a court of original jurisdiction with
respect to cases originally filed with it. It is also a court of
appellate jurisdiction with respect to cases decided by the
Municipal Trial Courts within its territorial jurisdiction (Sec.
22, BP 129).
3. The Court of Appeals is primarily a court of appellate
jurisdiction with competence to review judgments of the
Regional Trial Courts and specified quasi judicial agencies
(Sec.9[3], BP 129). It also is a court of original jurisdiction
with respect to cases filed before it involving issuance of
writs of certiorari, mandamus, quo warranto, habeas corpus,
and prohibition. It is also a court of original jurisdiction (and
exclusive) over notions for annulment of judgments of
Regional trial Courts (Sec. 9111(2_1, BP 129).
4. The Supreme Court is also fundamentally a court of
appellate jurisdiction but it may also be a court of original
jurisdiction over cases affecting ambassadors, public
ministers and consuls, and in cases involving petitions for
certiorari, prohibition and mandamus (Sec. 5[11, Art. VIII,
Constitution of the Philippines). Note: The Supreme Court en
banc is not an appellate court to which decisions or
resolutions of a division of the Supreme Court may be
appealed (Bar 1990).
XII. Original and exclusive jurisdiction distinguished
1. Original jurisdiction means jurisdiction to take cognizance
of a cause at its inception, try it and pass judgment upon the
law and facts, while exclusive jurisdiction precludes the idea
of co-existence and refers to jurisdiction possessed to the
exclusion of others.
2. A court may be conferred both original and exclusive
jurisdiction over a particular subject matter. Examples: (a)
The Municipal Trial Court has exclusive original jurisdiction
over cases of forcible entry and unlawful detainer (Sec.
33[21, BP 129, as amended); (b) The Regional Trial Court has
Page11
exclusive original jurisdiction over all civil actions in which
the subject matter of the litigation is incapable of pecuniary
estimation (Sec. 19[1], BP 129, as amended); (c) The Court of
Appeals has exclusive original jurisdiction over actions for
annulment of judgments of the Regional Trial Court (Sec.
9[2], BP 129, as amended).
XIII. Concurrent jurisdiction
1. This type of jurisdiction also called `coordinate'
jurisdiction, is the power of different courts to take
cognizance of the same subject matter. Where there is
concurrent jurisdiction, the court first taking cognizance of
the case assumes jurisdiction to the exclusion of the other
courts.
- Examples:
(a) The Supreme Court has concurrent original jurisdiction
with Regional Trial Courts in cases affecting ambassadors,
other public ministers and consuls (Art. VIII, Sec. 5,
Constitution of the Philippines; Sec. 21[21, BP 129);
(b) The Supreme Court has concurrent original jurisdiction
with the Court ofAppeals in petitions for certiorari,
prohibition and mandamus against the Regional Trial Courts
(Art. VIII, Sec. 5, Constitution of the Philippines; Sec. 9[11,
BP 129);
(c) The Supreme Court has concurrent original jurisdiction
with the Court of Appeals and the Regional Trial Courts in
petitions for certiorari, prohibition and mandamus against
lower courts and bodies and in petitions for quo warranto and
habeas corpus (Art.
VIII, Sec. 5, Constitution of the Philippines; Sec. 9[11, BP
129; Sec. 21[21, BP 129).
2. The concurrent jurisdiction among courts of different
ranks is subject to the doctrine of hierarchy of courts. For
example, while it is true that the original jurisdiction of the
Supreme Court to issue writs of certiorari, prohibition,
mandamus, quo warranto, habeas corpus and injunction is
concurrent with or shared by the Supreme Court with the
Regional Trial Courts and the Court of Appeals, a direct
invocation of the Supreme Court's original jurisdiction to
issue these writs should be allowed only when there are
special and important reasons therefore, clearly and
specifically set out in the petition (Lim vs. Vianzon, G.R. No.
137187, August 3, 2006). The rule simply means that the
petition must, as a rule, be filed first with the court of the
lowest rank unless there are special countervailing reasons
justifying its filing in the first instance with a higher court.
XIV. Meaning of `court'
> court - an organ of government belonging to the judicial
department the function of which is the application of the
laws to controversies brought before it as well as the public
administration of justice (Black's, 5th Edition, 356).
A court is called upon and authorized to administer
justice. Sometimes it refers to the place where justice is
administered
XV. Court distinguished from a judge
- Although the terms have often been erroneously used
interchangeably, they have the following marked
distinctions:
Court Judge
a. a tribunal officially a. simply an officer of such
assembled under authority of tribunal
law;
b. an organ of the government (Black's, 5th Edition 318) with
a personality separate and distinct from the person or judge
who sits on it
c. a being in imagination c. a physical person.
comparable to a corporation
d. may be considered an d. a public officer
office.
e. The circumstances of the court are not affected by the
circumstance that would affect the judge. The continuity of
a court and the efficacy of its proceedings are not affected
by the death, resignation, or cessation from the service of
the judge presiding over it. In other words, the judge my
resign, become incapacitated, or be disqualified to hold
office, but the court remains. The death of the judge does
not mean the death of the court.
XVI. Katarungang :Pambarangay Law (Sacs. 399-422, Chapter
7, Title One, Book III, R.A. 7160)
1. The proceedings before the Lupong Tagapamayapa or the
Pangkat ng Tagapagkasundo of the Barangay are not judicial
proceedings. Legally, there is no barangay court. The Lupon
and the Pangkat do not have inherent adjudicatory powers.
They resolve disputes or attempt to do so through mediation
and conciliation. Any adjudicatory power exercised by any of
these bodies must be agreed upon by the parties in writing.
Such agreement may involve their willingness to abide by any
arbitral award given by the Lupon or the Pangkat (Sec. 413,
Chapter 7, Title One, Book III, R.A 7160).
2. The primordial aim of the Katarungang Pambarangay Law
is to reduce the number of court litigations and prevent the
deterioration of the quality of justice which has been brought
about by the indiscriminate filing of cases in the courts.
XVII. Initiation of proceedings
1. 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 chairman of the Lupon (Sec.
410[a], R.A. 7160). The chairman of the Lupon is the Punong
Barangay (Sec. 399, R.A. 7160). The fact that the complaint
was addressed to the barangay captain is of no moment
because he is the chairman of the Lupong Tagapamayapa.
2. Upon receipt of the complaint, the chairman shall summon
the respondents within the next working day to appear. If the
chairman fails in his mediation efforts within fifteen (15)
days from the first meeting, he shall set a date to constitute
the Pangkat Tagapagkasundo (Sec. 410[b], R.A. 7160).
XVIII. Personal appearance of parties
- The parties must appear in person in all Katarungang
Pambarangay proceedings and without the assistance of
counsel or representatives, except for minors and
incompetents who may be assisted by their next-of-kin who
are not lawyers (Sec. 415, R.A. 7160; Magno vs. Velaasco-
Jacoba, 475 SCRA 584; Bar 1999).
Page12
XIX. Parties to the proceedings
- Only individuals shall be parties to the proceedings either
as complainants and respondents. Hence, no complaint by or
against corporations, partnerships or other juridical entities
shall be filed, received or acted upon (Sec. 1, Rule VI,
Katarungang Pambarangay Rules).
XX. Subject matters for settlement
- The general rule declares that all disputes may be the
subject of the barangay proceedings for amicable
settlement, except the following:
(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 for which the law prescribes a maximum
penalty of imprisonment exceeding one (1) year or a fine
exceeding five thousand pesos (P5,000.00);
(d) Offenses where there is 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;
(f) Disputes involving parties who actually reside in
different 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. Note:
Where the parties are not actual residents in the same city
or municipality or adjoining Barangays, there is no
mandatory requirement for them to submit their dispute to
the Lupon.
(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.
XXI. Referral to the Lupon by the court
- The court in which a non-criminal case is filed may motu
proprio refer the case, at any time before trial, to the Lupon
concerned for amicable settlement, the foregoing rules
notwithstanding and even if the case does not fall within the
authority of the Lupon (Sec. 1, Rule VI, Katarungang
Pambarangay Rules, Sec. 408, R.A. 7160).
XXII. Form of settlement
- All amicable settlements shall be in writing, in a language
or dialect known to the parties, signed by them and attested
to by the lupon chairman or the pangkat chairman, as the
case may be (Sec. 411, R.A. 7160).
XXIII. Effect of amicable settlement and award
1. The amicable settlement and arbitration award shall have
the effect of a final judgment of a court upon the expiration
of ten (10) days from the date thereof, unless repudiation of
the settlement has been made or a petition to nullify the
award has been filed before the proper city or municipal
court (Sec. 416, R.A. 7160).
2. 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 (Sec. 419, R.A. 7160). Failure to repudiate
the settlement within the ten-day period shall be deemed a
waiver of the right to challenge the settlement on said
grounds (Sec. 14, Rule VI, Katarungang Pambarangay Rules).
XXIV. Execution of award or settlement
1. Execution shall issue upon the expiration of ten (10) days
from date of settlement or receipt of award (Sec. 1, Rule VII,
Katarungang Pambarangay Rules).
2. The amicable settlement or award may be enforced by
execution by the Lupon within six (6) months from date of
the settlement of the settlement or date of receipt of the
award or from the date the obligation stipulated or adjudged
in the settlement becomes due and demandable. After the
lapse of such time, the settlement or award may be enforced
by the appropriate local court pursuant to the applicable
provisions of the Rules of Court (Sec. 1, Rule VII, Katarungang
Pambarangay Rules). The time line of six months should be
computed from the date of settlement.
3. The disputants may file a motion with the Punong
Barangay, copy furnished to the other disputants, for the
execution of a final settlement or award which has not been
complied with (Sec. 3, Rule VII, Katarungang Pambarangay
Rules).
XXV. Importance of barangay conciliation proceedings
1. The absence of a prior recourse to the barangay mediation
and conciliation machinery when required by law, bars the
filing of the criminal or civil action in court.
2. "No complaint, petition, action, or proceeding involving
any matter within the authority of the Lupon shall be filed or
instituted directly in court or any other government office
for adjudication, unless there has been a confrontation
between the parties before the Lupon chairman or the
pangkat, and that no conciliation or settlement has been
reached as certified by the Lupon secretary or pangkat
secretary as attested to by the Lupon or Pangkat chairman or
unless the settlement has been repudiated" (Sec. 412, R.A.
7160; Zamora vs. Heirs of lzquierdo, 443 SCRA 224).
- The repudiation shall be sufficient basis for the issuance of
the certification for filing a complaint (Sec. 418, R.A. 7160).
3. Under the Rules on Summary Procedure, a motion to
dismiss may be filed on the ground of the failure to undergo
the barangay conciliation proceedings (Sec. 19[a], Rules on
Summary Procedure). Under Sec. 18 of the same Rule, "Cases
requiring referral to the Lupon for conciliation * * * where
there is no showing of compliance with such requirement,
shall be dismissed without prejudice and may be revived only
after such requirement shall have been complied with * * *."
- Under Sec. 1(j) of Rule 16 a motion to dismiss a civil
complaint may likewise be filed if a condition precedent to
the filing of an action is not complied with.
4. The conciliation proceedings required is not a
jurisdictional requirement because the failure to have prior
recourse to it does not deprive the court of its jurisdiction.
Prior to the amendment of the Rules, the ground for
dismissal of a civil complaint is not lack of jurisdiction but
failure to state a cause of action or prematurity.
The proper ground to be invoked since July 1, 1997, the
date when the amendment to the Rules took effect, should
Page13
be: "That a condition precedent for filing the claim has not
been complied with" (Sec. 101, Rule 16, Rules of Court).
V. PLEADINGS IN CIVIL CASES
I. Nature of pleadings
- Pleadings are the written statements of the respective
claims and defenses of the parties submitted to the court for
appropriate judgment (Sec. 1, Rule 6, Rules of Court). Under
the Rules of Court, pleadings cannot be oral because they are
clearly described as "written" statements.
II. Necessity and purpose of pleadings
1. Pleadings are necessary to invoke the jurisdiction of the
court. It is necessary, in order to confer jurisdiction on a
court, that the subject matter be presented for its
consideration in a mode sanctioned by law and this is done by
the filing of a complaint or other pleading. Unless a
complaint or other pleading is filed, the judgment of a court
of record is void and subject to collateral attack even though
it may be a court which has jurisdiction over the subject
matter referred to in the judgment.
2. Pleadings are intended to secure a method by which the
issues may be properly laid before the court. Pleadings are
designed to present, define and narrow the issues, to limit
the proof to be submitted in the trial, to advise the court and
the adverse party of the issues and what are relied upon as
the causes of action or defense. The pleadings of the parties
present the issue to be tried and determine whether such
issue is of law or of fact.
III. Construction of pleadings
1. In this jurisdiction, all pleadings shall be liberally
construed so as to do substantial justice. Pleadings should
receive a fair and reasonable construction in accordance with
the natural intendment of the words and language used and
the subject matter involved. The intention of the pleader is
the controlling factor in construing a pleading and should be
read in accordance with its substance, not its form.
2. While it is the rule that pleadings should be liberally
construed, it has also been ruled that a party is strictly
bound by the allegations, statements or admissions made in
his pleadings and cannot be permitted to take a
contradictory position.
IV. Construction of ambiguous allegations in pleadings
- In case there are ambiguities in pleadings, the same must
be construed most strongly against the pleader and that no
presumptions in his favor are to be indulged in. This rule
proceeds from the theory that it is the pleader who selects
the language used and if his pleading is open to different
constructions, such ambiguities must be at the pleader's
peril.
V. System of pleading in the Philippines
- The system of pleading used in the Philippines is Code
Pleading following the system observed in some states of the
United States like California and New York. This system is
based on codified rules or written set of procedure as
distinguished from common law procedure.
VI. Pleadings allowed by the Rules of Court (Bar 1996)
- The following are the pleadings allowed by the Rules of
Court:
(a) complaint;
(b) answer;
(c) counterclaim;
(d) crossclaim;
(e) third (fourth, etc.) -party complaint;
(f) complaint-in-intervention; and
(g) reply (Sec. 2, Rule 6, Rules of Court).
VII. Pleadings allowed under the Rules on Summary Procedure
- Note however, that when a case falls under the Rules on
Summary Procedure, the only pleadings allowed to be filed
are:
(a) complaint;
(b) compulsory counterclaim;
(c) cross-claim pleaded in the answer; and
(d) answers thereto (Sec. 3/A] II, Rules on Summary
Procedure).
Permissive counterclaims, third-party complaints:, replies
and pleadings-in-intervention are prohibited under the Rules
on Summary Procedure (Sec. 9, IV, Rules on Summary
Procedure).
VIII. Caption of the pleading
- The caption contains the following:
(a) the name of the court;
(b) the title of the action; and
(c) the docket number, if assigned (Sec. 1, Rule 7, Rules of
Court).
IX. Title of the action
- The title of the action contains the names of the parties
whose participation in the case shall be indicated. This
means the parties shall be indicated as either plaintiff or
defendant. They shall all be named in the original complaint
or petition; but in subsequent pleadings, it shall be sufficient
if the name of the first party on each side be stated with an
appropriate indication whether there are other parties.
Example: Pedro Reyes, et al. (Sec. 1, Rule 7, Rules of Court).
X. Variance between caption and allegations in the pleading
1. It is not the caption of the pleading but the allegations
therein which determine the nature of the action and the
court shall grant relief warranted by the allegations and
proof even if' no such relief is prayed for.
Thus, a complaint captioned as unlawful detainer is
actually an action for forcible entry where the allegations
show that the possessor of the land was deprived of the same
by force, intimidation, strategy, threat or stealth. Likewise,
a complaint for unlawful detainer is actually an action for
collection of a sum of money where the allegations of the
complaint do not disclose that the plaintiff demanded upon
the defendant to vacate the property but merely demanded
to pay the rentals in arrears.
2. In one case, while the complaint was denominated as one
for specific performance, the allegations of the complaint
and the relief prayed for actually and ultimately sought for
the execution of a deed of conveyance to effect a transfer of
ownership of the property in question. The action therefore,
is a real action.
Also, although the complaint was denominated as one for
reformation of the instrument, the allegations of the
Page14
complaint did not preclude the court from passing upon the
real issue of whether or not the transfer between the parties
was a sale or an equitable mortgage as the said issue has
been squarely raised in the complaint and had been the
subject of arguments and evidence of the parties.
3. If the petitioner filed before the Supreme Court a petition
captioned "Petition for Certiorari" based on Rule 65 but the
allegations show that the issues raised are pure questions of
law, the cause of action is not one based on Rule 65 which
raises issues of jurisdiction, but on Rule 45 which raises pure
questions of law. The allegations of the pleading determine
the cause of action and not the title of the pleading.
XI. Body of the pleading
1. 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 (Sec. 2, Rule 7,
Rules of Court).
2. The allegations in the body of the pleading shall be
divided into paragraphs and shall be so numbered for ready
identification. This numbering scheme is significant because
in subsequent pleadings, a paragraph may be referred to only
by its number without need for repeating the entire
allegations in the paragraph. Each paragraph shall contain a
statement of a single set of circumstances so far as that can
be done with convenience (Sec. 2, Rule 7, Rules of Court).
XII. Designation of causes of actions joined in one complaint
- When two or more causes of action are joined, the first
cause of action shall be prefaced with the words, "first cause
of action," of the second cause of action by the words,
"second cause of action," and so on for the others (Sec. 2,
Rule 7, Rules of Court).
XIII. Allegations of ultimate facts
1. Every pleading, including the complaint, is not supposed to
allege conclusions. A pleading must only aver facts because
conclusions are for the court to make.
2. Not all facts may be allowed as averments in a pleading.
Under Sec. 1 of Rule 6, every pleading shall omit from its
allegations statements of mere evidentiary facts. The rule
prohibiting allegations of evidentiary facts in a pleading is
not difficult to understand. Evidentiary matters are to be
presented during the trial of the case, not in the pleadings of
the parties. The conclusions and evidentiary matters
contained in a pleading may be the subject of a motion to
strike.
3. The rule requires that a pleading should contain only
allegations of "ultimate facts,"i.e., the facts essential to a
party's cause of action or defense (Sec. 1, Rule 6, Rules of
Court). These ultimate facts are to be stated in a logical
form and in a plain and concise manner (Sec. 1, Rule 6, Rules
of Court).
XIV. Relief
1. Following the averments of the cause of action of the
plaintiff, the complaint must contain a statement of the
relief sought from the court and to which he believes he is
entitled. This portion of the complaint is oftentimes referred
to as the "prayer" or sometimes called the "Wherefore"
clause. The Rules of Court (Sec. 2[c], Rule 7) requires that
the relief sought be specified, although the statement may
include a "general prayer for such further or other relief as
may be deemed just or equitable."
2. The relief or prayer, although part of the complaint, does
not constitute a part of the statement of the cause of action.
It does not also serve to limit or narrow the issues presented.
3. It is the material allegations of the complaint, not the
legal conclusions made therein or the prayer that determines
the relief to which the plaintiff is entitled.
4. It is important to remember that the court may grant a
relief not prayed for as long as the relief is warranted by the
allegations of the complaint and the proof.
XV. Signature and address
1. The complaint must be signed by the plaintiff or counsel
representing him indicating his address. This address should
not be a post office box (Sec. 3, Rule 7). A party who is not
represented by counsel must sign his own pleading.
- In the absence of a proper notice to the court of a change
of address, service upon the parties must be made at the last
address of their counsel of record.
2. A signed pleading is one that is signed either by the party
himself or his counsel. Section 3, Rule 7 is clear on this
matter. It requires that a pleading must be signed by the
party or counsel representing him. Therefore, only the
signature of either the party himself or his counsel operates
to validly convert a pleading from one that is unsigned to one
that is signed.
XVI. Effect of an unsigned pleading
- The signature in a pleading is important for it to have a
legal effect. Under the Rules of Court (Sec. 3, Rule 7), "an
unsigned pleading produces no legal effect." The court
however, is authorized to allow the pleader to correct the
deficiency if the pleader shows to the satisfaction of the
court, that the failure to sign the pleading was due to mere
inadvertence and not to delay the proceedings (Sec. 3, Rule
7, Rules of Court).
XVII. Significance of the signature of counsel (Bar 1996)
1. The signature of a counsel in a pleading is significant. His
signature constitutes a certificate by him that (a) he has read
the pleading, (b) that to the best of his knowledge,
information and belief there is good ground to support it, and
(c) that it is not interposed for delay (Sec. 3, Rule 7, Rules of
Court,).
2. A counsel who deliberately files an unsigned pleading shall
be subject to an appropriate disciplinary action. A
disciplinary action will likewise be taken against him if he
signs II pleading in violation of the Rules, when he alleges
scandalous or indecent matter in his pleading, or when he
fails to promptly report to the court a change in his address
(Sec. 3, Rule 7, Rules f Court).
3. "It has been held that counsel's authority and duty to sign
a pleading are personal to him." He may not delegate it to
Page15
,just any person because the signature of counsel constitutes
an assurance by him that he has read the pleading; that to
the best of his knowledge, information and belief, there is a
good ground to support it; and that it is not interposed for
delay. Under the Rules of Court, it is counsel alone, by
affixing his signature, who can certify to these matters.
- "The preparation and signing of a pleading constitute legal
work involving practice of law which is reserved exclusively
for the members of the legal profession. Accordingly
however, counsel may delegate the signing of a pleading to
another lawyer but cannot do so in favor of one who is not. In
so ruling the Court cites The Code of Professional
Responsibility, the pertinent provision on which provides:
Rule 9.01 - A lawyer shall not delegate to any
unqualified person the performance of any task which by law
may only be performed by a member of the Bar in good
standing.
- "A signature by agents of a lawyer amounts to signing by
unqualified persons, something the law strongly proscribes.
Therefore, the blanket authority entrusted to just anyone is
void. Any act taken pursuant to that authority is likewise
void. hence, there is no way it could be cured or ratified by
counsel."
XVIII. When counsel is subject to disciplinary action
- A counsel shall be subject to disciplinary action in the
following cases: (a) when he deliberately files an unsigned
pleading; (b) when he signs a pleading in violation of the
Rules; (c) when he alleges in the pleading scandalous or
indecent matter; or (d) when he fails to promptly report to
the court a change of his address (Sec. 3, Rule 7, Rules of
Court).
XIX. Verification in a pleading
- The pleading need not be under oath. This means that a
pleading need not be verified. This is the general rule. A
pleading will be verified only when a verification is required
by a law or by a rule (Sec. 4, Rule 7, Rules of Court).
XX. How a pleading is verified
- A pleading is verified by an affidavit. This affidavit declares
that: (a) the affiant has read the pleading, and (b) that the
allegations therein are true and correct of his personal
knowledge or based on authentic records (Sec. 4, Rule 7,
Rules of Court as amended by A.M. No. 00-2-10, May 1,
2000).
XXI. Significance of a verification
- The verification requirement is significant, as it is intended
to secure an assurance that the allegations in a pleading are
true and correct and not the product of the imagination or a
matter of speculation, and that the pleading is filed in good
faith. The absence of a proper verification is cause to treat
the pleading as unsigned and dismissible.
The purpose of requiring a verification is to secure an
assurance that the allegations of the petition have been
made in good faith, or are true and correct, not merely
speculative.
XXII. Effect of lack of a verification
1. A pleading required to be verified but lacks the proper
verification shall be treated as an unsigned pleading (Sec. 4,
Rule 7, Rules of'Court). Hence, it produces no legal effect
(Sec. 3, Rule 7, Rules of Court).
2. It has however, been held that the absence of a
verification or the non-compliance with the verification
requirement does not necessarily render the pleading
defective. It is only a formal and not a jurisdictional
requirement. The requirement is a condition affecting only
the form of the pleading and non-compliance therewith does
not necessarily render it fatally defective.
3. The absence of a verification may be corrected by
requiring an oath. The rule is in keeping with the principle
that rules of procedure are established to secure substantial
justice and that technical requirements may be dispensed
with in meritorious cases.
The court may order the correction of the pleading or act
on an unverified pleading if the attending circumstances are
such that strict compliance would not fully serve substantial
justice, which after all, is the basic aim for the rules of
procedure.
XXIII. Certification against forum shopping
1. The certification against forum shopping is a sworn
statement certifying to the following matters:
(a) that the party has not commenced or filed any claim
involving the same issues in any court, tribunal, or quasi
judicial agency and, to the best of his knowledge, no such
other action or claim is pending;
(b) that if there is such other pending action or claim, a
complete statement of the present status thereof; and
(c) that if he should therefore learn that the same or
similar action or claim has been filed or is pending, he
shall report that fact within five (5) days therefrom to the
court wherein his aforesaid complaint or initiatory
pleading has been filed (Sec. 5, Rule 7, Rules of Court).
2. The certification is mandatory under Sec. 5 of Rule 7 but
not jurisdictional.
XXIV. Meaning of forum shopping
1. There is forum shopping when, as a result of an adverse
opinion in one forum, a party seeks a favorable opinion,
other than by appeal or certiorari in another. There can also
be forum shopping when a party institutes two or more suits
in different courts, either simultaneously or successively, in
order to ask the courts to rule on the same or related causes
and/or to grant the same or substantially the same reliefs on
the supposition that one or the other court would make a
favorable disposition or increase a party's chances of
obtaining a favorable decision or action.
2. It is an act of a party against whom an adverse judgment
has been rendered in one forum of seeking and possibly
getting a favorable opinion in another forum, other than by
appeal or the special civil action of certiorari, or the
institution of two or more actions or proceedings grounded
on the same cause on the supposition that one or the other
court would make a favorable disposition.
3. Forum shopping is an act of malpractice, as the litigants
trifle with the courts and abuse their processes. It is
improper conduct and degrades the administration of justice.
If the act of the party or its counsel clearly constitutes willful
Page16
and deliberate forum-shopping, the same shall constitute
direct contempt, and a cause for administrative sanctions, as
well as a ground for the summary dismissal of the case with
prejudice.
XXV. Rationale against forum shopping
- The rationale against forum shopping is that a party should
not be allowed to pursue simultaneous remedies in two
different fora. Filing multiple petitions or complaints
constitutes abuse of court processes, which tends to degrade
the administration of justice, wreaks havoc upon orderly
judicial procedure, and adds to the congestion of the heavily
burdened dockets of the courts. Thus, the rule proscribing
forum shopping seeks to promote candor and transparency
among lawyers and their clients in the pursuit of their cases
before the courts to promote the orderly administration of
justice, prevent undue inconvenience upon the other party,
and save the precious time of the courts. It also aims to
prevent the embarrassing situation of two or more courts or
agencies rendering conflicting resolutions or decisions upon
the same issue.
XXVI. How to determine existence of forum shopping
1. To determine whether a party violated the rule against
forum shopping, the most important question to ask is
whether the elements of litis pendentia are present or
whether a final judgment in one case will result to res
judicata in another. Otherwise stated, to determine forum
shopping, the test is to see whether in the two or more cases
pending, there is: (a) identity of parties, (b) identity of rights
or causes of action, and (c) identity of reliefs sought.
2. Forum-shopping exists when the elements of litis
pendentia are present or where a final judgment in one case
will amount to res judicata in another. Litis pendentia
requires the concurrence of the following requisites: (1)
identity of parties, or at least such parties as those
representing the same interests in both actions; (2) identity
of rights asserted and reliefs prayed for, the reliefs being
founded on the same facts; and (3) identity with respect to
the two preceding particulars in the two cases, such that any
judgment that may be rendered in the pending case,
regardless of which party is successful would amount to res
adjudicata in the other case.
3. What is pivotal in determining whether forumshopping
exists or not is the vexation caused the courts and parties-
litigants by a party who asks different courts and/or
administrative agencies to rule on the same or related causes
and/or grant the same or substantially the same reliefs, in
the process creating possibility of conflicting decisions being
rendered by the different courts and/or administrative
agencies upon the same issues.
4. Where the reliefs sought in the two actions are different,
there is no forum shopping even if the parties in the actions
are the same. Where one action is for a permanent
injunction and the other is a petition for certiorari, there is
no identity of reliefs.
5. Where the reliefs sought in two courts involving the same
parties is to restrain a government official from
implementing the same order, there is forum shopping
because there is identity of reliefs.
6. The filing of six appeals, complaints or petitions to
frustrate the execution of as judgment is a clear case of
forum shopping.
7. The concept of forum shopping applies not only with
respect to suits filed in the courts but also in connection with
litigations commenced in the courts while an administrative
proceeding is pending in order to defeat administrative
processes and in anticipation of an unfavorable
administrative ruling.
XXVII. Who executes the certification against forum shopping
(Bar 2000)
1. It is the plaintiff or principal party who executes the
certification under oath (Sec. 5, Rule 7, Rules of Court). The
certification must be executed by the party, not the
attorney.
It must be signed by the party himself and cannot be
signed by his counsels.
- It is the petitioner and not the counsel who is in the best
position to know whether he or it actually filed or caused the
filing of a petition. A certification signed by counsel is a
defective certification and is a valid cause for dismissal. This
is the general rule and the prevailing rule.
2. Thus, in a fairly recent case, Go vs. Rico, petitioners
admitted that neither of them signed the certification
against forum shopping. Only their counsel did. The Court in
this case emphatically stressed that a certification by counsel
and not by the principal party himself is no certification at
all. The reason for requiring that it must be signed by the
principal party himself is that he has actual knowledge, or
knows better than anyone else, whether he has initiated
similar action/s in other courts, agencies or tribunals. Their
lawyer's explanation that they were out-of-town at the time
their petition was filed with the Court ofAppeals is bereft of
basis. That explanation is an afterthought as it was not
alleged by counsel in her certification against forum
shopping.
XXVIII. Liberal interpretation of the rules on the signing of
the certification against forum shopping
1. It has also been held that the rules on forum shopping,
which were precisely designed to promote and facilitate the
orderly administration of justice, should not be interpreted
with such absolute literalness as to subvert its own ultimate
and legitimate objective which is the goal of all rules of
procedure - that is, to achieve substantial justice as
expeditiously as possible.
Hence, the rule is subject to the power of the Supreme
Court to suspend procedural rules and to lay down exceptions
to the same.
- Examples: While a petition for certiorari is flawed where
the certificate of non-forum shopping was signed only by
counsel and not by the party, this procedural lapse was
overlooked by the Court in the interest of justice. In another
case, the fact that the parties were abroad at a time when
the petition was filed, was considered a reasonable cause to
exempt the parties from compliance with the requirement
Page17
that they personally execute the certification against forum
shopping. In De Guia vs. De Guia, the Supreme Court went to
the extent of invoking its power to suspend the Rules by
disregarding the absence of the certification against forum
shopping in the interest of substantial justice.
2. In Dar vs. Alonzo-Legasto, where the petitioners were sued
jointly as "Mr. and Mrs." over a property in which they were
alleged to have common interest, the signing of the
certification against forum shopping by one of the petitioners
was held to be a substantial compliance of the rule. In a
subsequent ruling in the case of Docena vs. Lapesura, where
only the husband signed the certificate against forum
shopping in a petition involving the conjugal residence of the
spouses, the Supreme Court considered the certification as
having substantially complied with the requirements of the
Rules of Court.
3. In Ca vile vs. Heirs of Clarita Cavile, a similar ruling was
made where the Court held that there was substantial
compliance with the Rules where only one petitioner signed
the certification against forum shopping in behalf of all the
other petitioners being all relatives and co-owners of the
properties in dispute, and who shared a common interest in
them, had a common defense in the complaint for partition,
filed the petition collectively, and raised only one argument
to defend their rights over the properties in question.
4. A liberal interpretation of the rule has likewise been
adopted in Bases Conversion Authority. While in this case,
only one petitioner signed the verification and certification
of non-forum shopping, it was held that such fact is not fatal
to the petition. The Court ruled that the signature of a
principal party in the certification of non-forum shopping
satisfies the requirement of the Rules of Court if he is a
principal party because accordingly, under the Rules, it is
clear that the certification of non-forum shopping may be
signed by a principal party.
XXIX. Signing the certification when the plaintiff is a juridical
entity
- A juridical entity, unlike a natural person, can only perform
physical acts through properly delegated individuals. The
certification against forum shopping where the plaintiff or a
principal party is a juridical entity like a corporation, may be
executed by properly authorized persons. This person may be
the lawyer of a corporation. As long as he is duly authorized
by the corporation and has personal knowledge of the facts
required to be disclosed in the certification against forum
shopping, the certification may be signed by the authorized
lawyer.
XXX. Pleadings requiring a certification against forum
shopping
1. The certification against forum shopping applies to the
complaint and other initiatory pleadings asserting a claim
(Sec. 5, Rule 7, Rules of Court). This initiatory pleadings
include not only the original complaint but also a permissive
counterclaim, cross-claim, third (fourth, etc.) -party
complaint, complaint-in-intervention, petition or any
application in which a party asserts his claim for relief. The
rule does not require a certification against forum shopping
for a compulsory counterclaim because it cannot be the
subject of a separate and independent adjudication. It is
therefore, not an initiatory pleading.
2. It bears stressing that the Rule distinctly provides that the
required certification against forum shopping is intended to
cover an initiatory pleading, meaning an incipient application
of a party asserting a claim for relief. The answer with a
counterclaim is a responsive pleading, filed merely to
counter petitioners' complaint that initiates the civil action
and is a claim for relief that is derived only from, or is
necessarily connected with, the main action or complaint. It
is not an initiatory pleading.
XXXI. Effects of non-compliance with the rule on certification
against forum shopping (Bar 1996)
1. The failure to comply with the required certification is
"not curable by a mere amendment" and shall be a cause for
the dismissal of the action (Sec. 5, Rule 7, Rules of Court).
2. The dismissal for failure to comply with the certification
requirement is not to be done by the court motu proprio. The
rule requires that the dismissal be upon motion and after
hearing (Sec. 5, Rule 7, Rules of Court).
3. If the case is dismissed for failure to comply with the
certification requirement, the dismissal is, as a rule, "without
prejudice," unless the order of dismissal otherwise provides
(Sec. 5, Rule 7, Rules of Court). Hence, where the dismissal
is silent as to the character of the dismissal, the dismissal is
presumed to be without prejudice to its being refiled.
XXXII. No appeal from an order of dismissal
- May the plaintiff' appeal from the order of the dismissal
without prejudice? He cannot appeal from the order. This is
because an order dismissing an action without prejudice is
not appealable. The remedy provided for under Sec. 1 of
Rule 41 is to avail of the special civil action of certiorari
under Rule 65 (Sec. 1[h1, Rule 41, Rules of Court).
XXXIII. Effect of willful and deliberate forum shopping
- If the acts of the party or his counsel clearly constitute
willful and deliberate forum shopping, the same shall be a
ground for summary dismissal. Here, no motion to dismiss
and a hearing are required. The dismissal in this case is also
with prejudice and shall constitute direct contempt, as well
as cause for administrative sanctions (Sec. 5, Rule 7, Rules of
Court).
XXXIV. Effect of submission of a false certification
- It may happen that the pleading has been filed with the
required certification against forum shopping but the
allegations therein or the matters certified to therein are
false. Under the Rules, the submission of a false certification
shall constitute indirect contempt of court without prejudice
to the corresponding administrative and criminal sanctions
(Sec. 5, Rule 7, Rules of Court).
XXXV. Effect of non-compliance with the undertakings
- Failure to comply with the undertakings in the certification
against forum shopping has the same effect as the submission
of a false certification (Sec. 5, Rule 7, Rules of Court).
Page18
VI. FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND
OTHER PAPERS IN CIVIL CASES
I. Meaning of `filing'
> Filing - the act of presenting the pleading or other papers
to the clerk of court (Sec. 2, Rule 13, Rules of Court).
II. Meaning of `service'
> Service - the act of providing a party with a copy of the
pleading or paper concerned (Sec. 2, Rule 13, Rules of
Court).
III. Upon whom service shall be made
1. If a party has not appeared by counsel,: then service must
be served upon him.
2. If a party has appeared by counsel, then service shall be
made upon his counsel or one of them; unless service upon
the party himself is ordered by the court (Sec. 2, Rule 13,
Rules of Court). The rule is that when a party is represented
by counsel in an action in court, notices of all kinds,-
including motions, pleadings, and orders must be served on
said counsel and notice to him is notice to the client.
3. Where one counsel appears for several parties, service
shall be made upon said counsel but he shall be entitled only
to one copy of any paper served upon him by the opposite
side (Sec. 2, Rule 13, Rules of Court).
IV. Manner of filing
1. There are two modes of filing, to wit: (a) by presenting
the original copy of the pleading, notice, appearance,
motion, order or judgment personally to the clerk of court;
or (b) by registered mail.
2. In the first mode, the clerk of court shall indicate or
endorse on the pleading or paper filed, the date and hour of
filing.
3. In the second mode, the date of mailing as shown by the
post office stamp on the envelope or registry receipt, shall
be considered as the date of filing (Sec 3, Rule 13, Rules of
Court).
V. How to prove filing
1. 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 in a copy of the same (Sec 12,
Rule 13, Rules of Court).
2. If the pleading or paper is filed by registered mail, proof
of filing is by the registry receipt and by the affidavit of the
person 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 (Sec. 12, Rule 13, Rules of Court).
VI. Papers required to be filed and served
- The following papers are required to be filed in court and
served upon the parties affected:
(a) judgments,
(b) resolutions,
(c) orders,
(d) pleadings subsequent to the complaint,
(e) written motion,
(f) notices,
(g) appearances,
(h) demands,
(i) offers of judgment, or
(j) similar papers (Sec. 4, Rule 13, Rules of Court).
VI. Modes of service
- There are two modes of service of pleadings, judgments,
motions, notices, orders, judgments and other papers: (a)
personally, or by (b) mail. However, if personal service and
service by mail cannot be made, service shall be done by
`substituted service'.
VII. Personal service
1. Personal service is the preferred mode of service (Sec. 11,
Rule 13, Rules of Court). If another mode of service is used
other than personal service, the service must be
accompanied by a written explanation why the service of
filing was not done personally. Exempt from this explanation
are papers emanating from the court. A violation of this
explanation requirement may be cause for the paper to be
considered as not having been filed (Sec. 11, Rule 13, Rules
of Court).
2. Personal service is made by:
(a) delivering a copy of the papers served personally to the
party or his counsel, or
(b) or by leaving the papers in his office with his clerk or a
person having charge thereof. If no person is found in the
office, or his office is not known or he has no office, then by
leaving a copy of the papers at the party's or counsel's
residence, if known, with a person of sufficient age and
discretion residing therein between eight in the morning and
six in the evening (Sec. 6, Rule 13, Rules of Court).
3. As a rule, personal service of judgments is done by
delivering them personally to the party or his counsel, or
when they are left in his office, with his clerk or with a
person having charge thereof. In case this is not possible, the
copy of the judgment may be left at the party's or his
counsel's residence with a person of sufficient age or
discretion residing therein.
- In one case, service of the COA resolution was made to the
resident corporate auditor of the petitioner, DBP The auditor
holds office in the premises of petitioner DBP and is actually
an employee of the COA assigned to DBP by COA.
- Respondent COA contends that the service of the COA
resolution to petitioner's resident corporate auditor is
tantamount to a service upon the petitioner itself.
Petitioner, on the other hand, argues that the resident
corporate auditor is not its employee but that of the
respondent.
- The Supreme Court agreed with the contention of DBP that
the resident corporate auditor of the DBP is neither an
Page19
official nor an employee of the DBP He does not come within
the definition of "clerk or person having charge" of the office
that may be validly served with a copy of the resolution of
the respondent as contemplated by the Rules. In fact, the
resident corporate auditor is an extension of the respondent
COA and no department of the petitioner was actually served
with a copy of the resolution.
VIII. When personal service is deemed complete
- Upon actual delivery following the above procedure, service
is deemed complete (Sec. 10, Rule 13, Rules of Court).
IX. Service by mail
1. The preferred service by mail is by registered mail. Service
by ordinary mail may be done only if no registry service is
available in the locality of either the sender or the addressee
(Sec. 7, Rule 13, Rules of Court).
2. Service by registered mail shall be done by depositing the
copy in the, post office, in a sealed envelope, plainly
addressed to the party or his counsel at his office, if known,
or otherwise' at his residence, if known, with postage fully
prepaid, and with instructions to the postmaster to return
the mail to the sender after ten (10) days if not delivered
(Sec. 7, Rule 13, Rules of Court).
X. When service by mail is deemed complete
1. Service by ordinary mail is complete upon the expiration
of ten (10) days after mailing, unless the court otherwise
provides.
2. 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 is
earlier (Sec. 10, Rule 13, Rules of Court).
XI. Substituted service
1. This mode is availed of only when there is failure to effect
service personally or by mail. This failure occurs when the
office and residence of the party or counsel is unknown (Sec.
8, Rule 13, Rules of Court).
2. Substituted service is effected by delivering the copy to
the clerk of court, with proof of failure of both personal
service and service by mail (Sec. 8, Rule 13, Rules of Court).
XII. When substituted service is complete
- Substituted service is complete at the time of delivery of
the copy to the clerk of court (Sec. 8, Rule 13, Rules of
Court).
XIII. How to prove service,
1. Proof of personal service shall consist of the written
admission of the party served. It may also be proven by the
official return of the server, or the affidavit of the party
serving, containing full information of the date, place and
manner of service (Sec. 13, Rule 13, Rules of Court). .
2. If the service is by ordinary mail, proof thereof shall
consist of the affidavit of the person mailing of the facts
showing compliance with Sec. 7 of Rule 13 (Sec. 13, Rule 13,
Rules of Court).
3. If service is by registered mail, the proof shall consist of
such affidavit and the registry receipt issued by the mailing
office. The registry return card is to be filed immediately
upon its receipt by the sender, or in lieu thereof the
unclaimed letter together with the certified or sworn copy of
the notice given by the postmaster to the addressee (Sec. 13,
Rule, 13, Rules of Court).
VII. MOTIONS IN CIVIL CASES
I. Definition of a motion
> motion - an application for relief other than by a pleading
(Sec. 1, Rule 15, Rules of Court).
II. Form of motions
1. All motions must be in writing. Excepted by this written
requirement are those motions (a) made in open court, and
(b) motions made in the course of a hearing or trial (Sec. 2,
Rule 15, Rules of Court).
2. The rules that apply to pleadings shall also apply to
written motions so far as concerns caption, designation,
signature, and other matters of form (Sec. 10, Rule 15, Rules
of Court).
III. Contents of a motion
- Motions are to contain the following: (a) a statement of the
relief sought to be obtained; (b) the grounds upon which the
motion is based; and (c) the supporting affidavits and other
papers. The last requirement applies only when so mandated
by the Rules or when necessary to prove facts stated in the
motion (Sec. 3, Rule 15, Rules of Court).
IV. Hearing of the motion
1. As a rule, every written motion shall be set for hearing by
the applicant (Sec. 4, Rule 15, Rules of Court). This provision
therefore, establishes the general rule that every written
motion is deemed a litigated motion, i.e., one which requires
the parties to be heard before a ruling on the motion is made
by the court. An ex parte motion, on the contrary, is one
which does not require that the parties be heard. And which
the court may act upon without prejudicing the rights of the
other party. This kind of motion is not covered by the hearing
requirement of the Rules (Sec. 2, Rule 15, Rules of Court).
- The Court has consistently held that a motion which does
not meet the requirements of Sections 4 and 5 of Rule 15 of
the Rules of Court on hearing and notice of the hearing is a
mere scrap of paper, which the clerk of court has no right to
receive and the trial court has no authority to act upon.
Service of a copy of a motion containing a notice of the time
and the place of hearing of that motion is a mandatory
requirement, and the failure of movants to comply with
these requirements renders their motions fatally defective.
2. An ex parte motion, on the contrary, is one which does not
require that the parties be heard and which the court may
act upon without prejudicing the rights of the other party.
This kind of motion is not covered by the hearing
requirement of the Rules (Sec. 2, Rule 15, Rules of Court). An
example of an ex parte motion is that one filed by the
plaintiff pursuant to Sec. 1 of Rule 18 in which he moves
promptly that the case be set for pre-trial. A motion to
dismiss (Rule 16), a motion for judgment on the pleadings
(Rule 34) and a summary judgment (Rule 35), on the other
hand, are litigated motions.
Page20
3. A motion for extension of time is not a litigated motion
where notice to the adverse party is necessary to afford the
latter an opportunity to resist the application, but an ex
parte motion made to the court in behalf of one or the other
of the parties to the action, in the absence and usually
without the knowledge of the other party or parties. It has
been said that ex parte motions are frequently permissible in
procedural matters, and also in situations and under
circumstances of emergency; and an exception to a rule
requiring notice is sometimes made where notice or the
resulting delay might tend to defeat the objective of the
motion"
V. Notice of the motion
1. The motion which contains the notice of hearing 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. 4, Rule 15, Rules of Court).
2. The notice of hearing shall be addressed to all the parties
concerned (Sec. 5, Rule 15, Rules of Court).
3. The notice of hearing shall specify the time and date of
the hearing which shall not be later than ten (10) days after
the filing of the motion (Sec. 5, Rule 15, Rules of Court).
VI. Service of the motion
- The motion must be served upon the other party. A motion
set for hearing shall not be acted upon by the court without
proof of service thereof (Sec. 6, Rule 15, Rules of Court).
VII. Motion day
- All hearings shall be scheduled for hearing on Friday
afternoons, or if Friday is a non-working holiday, in the
afternoon of the next working day. This rule does not apply
to motions requiring immediate attention (Sec. 7, Rule 15,
Rules of Court).
Effect of failure to met the motion for hearing, to include a
notice of hearing and to serve the motion (Sees. 4, 8, 6 of
Rule 18)
- The well-settled rule is that a motion which fails to comply
with the requirements under Sees. 4, 5 and 6 of Rule 15, is a
useless piece of paper. It is pro forma presenting no question
which the court could decide. If filed, such motion is not
entitled to judicial cognizance and does not stop the running
of the period for filing the requisite pleading. A motion which
does not comply with the rules on motion is considered pro
forma and thus,` will be treated as one filed merely to delay
the proceedings.
VIII. The omnibus motion rule
1. The rule is a procedural principle which requires that
every motion that attacks a pleading, judgment, order or
proceeding shall include all grounds then available, and all
objections not so included shall be deemed waived (Sec. 8;
Rule 15, Rules of Court). Since the rule is subject to the
provisions of Sec. 1 of Rule 9, the objections mentioned
therein are not deemed waived even if not included in the
motion. These objections are: (a) that the court has no
jurisdiction over the subject matter; (b) that there is another
action pending between the same parties for the same cause
(litis pendencia) (c) that the action is barred by a prior
judgment (res judicata); and (d) that the action is 'barred by
the `statute of limitations (prescription) (Sec. 1, par. 2, Rule
9, Rules of Court).
2. A motion to dismiss is a typical example of a motion
subject to the omnibus motion rule, since a motion to dismiss
attacks a complaint which is a pleading. Following the
omnibus
motion rule,' if a motion to dismiss is filed, then the motion
must invoke all objections which are available at the time of
the filing of said motion. If the objection which is available
at the time is not included in the motion, that, ground is
deemed waived. It can no longer be invoked as an affirmative
defense in the answer which the movant may file following
the denial of his motion to dismiss.
3. To illustrate: In a case filed with the RTC, the defendant
filed a motion to dismiss invoking the following as objections:
(a) the complaint's failure to state a cause of action, (b) lack
of jurisdiction over the person of the defendant, and (c) that
the contract violates the statute of frauds. Two objections
available at the time the motion is filed, namely, improper
venue and prescription were not included in the motion. The
motion to dismiss was denied. May the defendant in his
answer, filed after the denial of his motion to dismiss, invoke
the affirmative defenses of improper venue and prescription,
objections which were not included in the motion to dismiss?
Answer: Improper venue is deemed waived. It was available
as a defense at the time the motion was filed and should
have been invoked. Failure to so include the same in the
motion is to be construed as waiver of the objection.
Prescription, on the other hand, is not waived and can still
be interposed as an affirmative defense in the answer. It is a
defense that is not deemed waived under the explicit
provisions of Sec. l of Rule 9.
CHAP. II CAUSE OF ACTION AND ACTIONS
I. CAUSE OF ACTION (Rule 2)
A. Meaning
> cause of action - the act or omission by which a party
violates the rights of another (Sec. 2, Rule 2, Rules of Court)
B. Elements of a cause of action
- The elements of a cause of action are as follows:
(a) A right in favor of the plaintiff by whatever means and
under whatever law it arises or is created;
(b) An obligation on the part of the named defendant to
respect or not to violate such right; and
(c) Act or omission on the part of such defendant in
violation of the right of the plaintiff or constituting a
breach of the obligation of the defendant to the plaintiff
for which the latter may maintain an action for recovery of
damages or other appropriate relief.
- Briefly stated, it is the reason why the litigation has come
about, it is the act or omission of defendant resulting in the
violation of someone's rights.
- While the concept of a cause of action is one that is
Page21
essential to the existence of a civil action, in administrative
cases however, the issue is not whether the complainant has
a cause of action against the respondent, but whether the
respondent has breached the norms and standards of the
office.
C. Cause of action in specific cases
1. The cause of action for breach of contract does not
require an allegation and proof of the negligence of the
defendant. The elements of this cause of action are (a) the
existence of a contract, and (b) the breach of the contract.
Thus, if a carrier is sued based on a breach of contract of
carriage, negligence need not be proved by the plaintiff,
negligence not being an element of the cause of action of a
suit predicated upon a breach of contract. This is true
whether or not the defendant is a public or a private carrier.
However, where the defendant is a common carrier there is
an additional reason: negligence of the common carrier is
presumed (Art. 1735 & Art. 1756, Civil Code of the
Philippines).
2. Negligence is an element of a quasi-delict and must be
alleged and proved (Art. 2176, Civil Code of the Philippines)
but the negligence of those persons under Art. 2 180 is
presumed.
3. Where the cause of action rests on a promissory note,
filing the action before the due date of the obligation would
be premature because the obligation is one with a period.
Whenever a period is designated in an obligation, the
obligation becomes demandable only when the period
arrives. Such period is presumed to be for the benefit of both
parties and of course, also of the debtor. He cannot be
charged before the due date (Art. 1196, Civil Code of the
Philippines) unless he loses the right to make use of the
period (Art. 1198, Civil Code of the Philippines).
Illustration (Bar 1999)
A sued B to recover P500,000.00 bayed on a
promissory note due and payable on December 5, 1998. The
Complaint was filed on November 30, 1998, and summons
was served on B on December 7, 1.998. B interposes a motion
to dismiss on the ground that the Complaint states no cause
of action. If you were the judge, how would you rule on the
motion?
Suggested answer:
The motion must be granted. The complaint states
no cause of action for having been filed prematurely. The
defect could not be cured by the service of summons on the
defendant after the due date of the promissory note.
4. In an unlawful detainer case, the cause of action does not
accrue unless there is a demand to vacate and is not
complied with. If however, the suit is based on expiration of
the lease, notice and demand are not required.
- If the unlawful detainer case is predicated upon the
defendant's failure to pay the rentals, the demand should not
be "to pay or vacate" but should be to pay and vacate (Sec. 2,
Rule 70, Rules of Court). The first type of demand does not
give rise to an unlawful detainer case since it is in essence an
action for a sum of money. Thus, if the amount of rentals to
be collected is P900,000.00, the action should be filed with
the Regional Trial Court which has jurisdiction over the
amount demanded. If the demand is "to pay and vacate, the
cause of action is one for unlawful detainer and should be
filed in the Municipal Trial Court."
- If the unlawful detainer case is anchored upon the failure of
the defendant to comply with the conditions of the lease, the
demand must not be "to comply.. or vacate" but should be "to
comply. . . and vacate" (Sec. 2, Rule 70, Rules of Court). The
first type of demand is not one for unlawful detainer but one
for specific performance.
Illustration (Bar 2004)
AX, a Makati.-bound paying passenger utility bus,
died instantly on board the bus on account of the fatal head
wounds he sustained as a result of the strong impact of the
collision between the bus and a dump truck. The accident
happened while the bus was still traveling on EDSA towards
Makati. The foregoing facts among others, were duly
established on evidence-in-chief by the plaintiff TY, sole heir
of AX in TY's action against the subject common carrier for
breach of contract of carriage. After TY had rested his case,
the common carrier filed a demurrer to evidence contending
that plaintiff's evidence is insufficient because it did not
show (1) that defendant was negligent, and (2) that such
negligence was the proximate cause of the collision.
Should the court grant or deny defendant's
demurrer to evidence? Discuss briefly.
Suggested answer.
The demurrer to evidence should be denied. A
demurrer is to be granted only when under the facts and the
law, the plaintiff is not entitled to relief as when the
evidence is insufficient to support the claim of the plaintiff.
Under the circumstances, the failure to prove
the negligence of the defendant does not in any way indicate
an insufficiency of evidence. In a suit based on breach of
contract, especially a breach of a contract of carriage against
a common carrier, the negligence of the defendant is
presumed (Art. 1756, Civil Code of the Philippines). Besides,
negligence is not an element of a cause of action based on
breach of contract.
5. For a malicious prosecution suit to prosper, the plaintiff
must prove the following:
(1) the prosecution did occur, and the defendant was himself
the prosecutor or that he instigated its commencement;
(2) the criminal action finally ended with an acquittal;
(3) in bringing the action, the prosecutor acted without
probable cause; and
(4) the prosecution was impelled by legal malice - an
improper or a sinister motive. The gravamen of malicious
prosecution is not the filing of a complaint based on the
wrong provision of law, but the deliberate initiation of an
action with the knowledge that the charges were false and
groundless.
D. Action distinguished from cause of action (Bar
1999)
- An action is the suit filed in court for the enforcement or
protection of a right, or the prevention or redress of a wrong
(Sec. 3[a], Rule 2, Rules of Court). A cause of action is the
basis of the action filed because every "...action must be
Page22
based on a cause of action" (Sec. 1, Rule 2, Rules of Court).
E. Failure to state a cause of action
1. The mere existence of a cause of action is not sufficient
for a complaint to prosper. Even if in reality the plaintiff has
a cause of action against the defendant, the complaint may
be dismissed if the complaint or the pleading asserting the
claim "states no cause of action" (Sec. 1[g], Rule 16). This
means that the cause of action must unmistakably be stated
or alleged in the complaint or that all the elements of the
cause of action required by substantive law must clearly
appear from the mere reading of the complaint. To avoid an
early dismissal of the complaint, the simple dictum to be
followed is: "If you have a cause of action, then by all means,
state it!" Where there is a defect or an insufficiency in the
statement of the cause of action, a complaint may be
dismissed not because of an absence or a lack of a cause of
action but because the complaint "states no cause of action."
The dismissal will therefore, be anchored on a "failure to
state a cause of action."
2. The failure to state a cause of cause of action does not
mean that the plaintiff has "no cause of action." It only
means that the plaintiff's allegations are insufficient for the
court to know that the rights of the plaintiff were violated by
the defendant. Thus, even if indeed the plaintiff suffered
injury, if the same is not set forth in the complaint, the
pleading will state no cause of action even if in reality the
plaintiff has a cause of action against the defendant.
F. Failure to state a cause of action and lack of a
cause of action
1. A fair reading of jurisprudence likewise shows that a
failure to state a cause of action is not the same as an
absence or a lack of a cause of action. The former refers to
an insufficiency in the allegations of the complaint while the
latter means the failure to prove or to establish by evidence
one's cause of action.
2. In one case the Court was more succinct: "While the
former is determined by referring to the allegations of the
pleading asserting the claim, the latter is determined by
referring to the evidence adduced. Usually, the declaration
that a plaintiff failed to establish a cause of action is
postponed until after the parties are given the opportunity to
present all relevant evidence on questions of fact."
3. Under Rule 16, the ground for dismissal in relation to a
cause of action is not "lack of a cause of action" or "no cause
of action." The ground is that "the pleading asserting the
claim states no cause of action (Sec. 1(g], Rule 16; San
Lorenzo Village Association, Inc. vs. Court ofAppeals, 288
SCRA 115 [1998]). The ground for dismissal based on the fact
that the pleading asserting the claim states no cause of
action is different from the ground that the case of the
claimant should be dismissed for lack of a cause of action.
The first is raised in a motion to dismiss under Rule 16 before
a responsive pleading is filed and can be determined only
from the allegations of the pleading and not from evidentiary
matters. The second is raised in a demurrer to evidence
under Rule 33 after the plaintiff has rested his case and can
be resolved only on the basis of the evidence he has
presented in support of his claim.
- A motion to dismiss based on lack of cause of action is filed
by the defendant after the plaintiff has presented his
evidence on the ground that the latter has shown no right to
the relief sought. While a motion to dismiss under Rule 16 is
based on preliminary objections which can be ventilated
before the beginning of the trial, a motion to dismiss under
Rule 33 is in the nature of a demurrer to evidence on the
ground of insufficiency of evidence and is presented only
after the plaintiff has rested his case.
4. There is a failure to state a cause of action if allegations
in the complaint taken together, do not completely spell out
the elements of a particular cause of action.
- Thus, in actions for forcible entry, three (3) requisites have
to be alleged for the municipal trial court to acquire
jurisdiction over the case. First, the plaintiff must allege his
prior physical possession of the land or building. Second, he
must also assert that he was deprived of possession of the
property either by (force, intimidation, threat, strategy, or
stealth. Third, the action must be filed within one (1) year
from the time he learned of his deprivation of physical
possession of the property.
- Even if in truth he has a cause of action for forcible entry,
if the complaint fails to allege an essential element of a
forcible entry case, as for instance, the fact that he was,
prior to the deprivation, in actual physical possession of the
property, there is a failure to state a cause of action. In a
similar vein, if in an action for a sum of money arising from a
loan, the plaintiff fails to allege that the debt is due and
demandable, the complaint asserting the claim states no
cause of action even if in truth the plaintiff has a cause of
action for collection of the debt.
5. It has been held that in a motion to dismiss based on the
ground that the complaint fails to state a cause of action,
the question submitted to the court for determination is the
sufficiency of the allegations in the complaint, and to
determine the sufficiency of the cause of action, only the
facts alleged in the complaint, and no others should be.
G. Test of the sufficiency of the statement of a
cause of action
1. The test of the sufficiency of the facts alleged in the
complaint as constituting a cause of action is whether or not
admitting the facts alleged, the court could render a valid
verdict in accordance with the prayer of the complaint.
2. Jurisprudence likewise tells us that in determining the
sufficiency of the cause of action, the truth or the falsity of
the allegations are beside the point because the allegations
in the complaint are hypothetically admitted. Thus, a motion
to dismiss on the ground that the complaint fails to state a
cause of action, hypothetically admits the matters alleged in
the complaint. The hypothetical admissions however, extend
only to the relevant and material facts well pleaded in the
complaint as well as to inferences fairly deductible
therefrom. The admission does not include conclusions or
interpretations of law.
H. Allegations of the complaint determine whether
Page23
or not complaint states a cause of action
l. In determining whether an initiatory pleading states a
cause of action, "the test is as follows: admitting the truth of
the facts alleged, can the court render a valid judgment in
accordance with the prayer?" To be taken into account are
only the material allegations in the complaint; extraneous
facts and circumstances or other matters aliunde are not
considered but the court, mny consider- in addition to the
complaint the trppended annexes or documents, other
pleadings of the plaintiff, or admissions in the records.
2. Current jurisprudence establishes the rule that the court
ought not to consider matters outside of the complaint in
determining whether or not a complaint states a cause of
action. The court should only consider the allegations of the
complaint and there is no need to require the presentation of
evidence to determine whether or not the complaint states a
cause of action because the allegations of the complaint will
disclose the compliance or non-compliance of the required
statement of the cause of action.
- In determining whether or not a cause of action is
sufficiently stated in the complaint, the statements in the
complaint may be properly considered. It is error for the
court to take cognizance of external facts or to hold
preliminary hearings to determine its existence (Diaz vs.
Diaz, 331 SCRA 302, 316). The sufficiency of the statement of
the cause of action must appear on the face of the complaint
and its existence may be determined only by the allegations
of the complaint, consideration of other facts being
proscribed and any attempt to prove extraneous
circumstances not being allowed. However, the annexes to
the complaint may be considered in determining whether or
not a complaint states a cause of action because such
annexes are considered parts of the complaint.
- The cause of action in a complaint is not what the
designation of the complaint states, but what the allegations
in the body of the complaint define and describe. The
designation or caption is not controlling, more than the
allegations in the complaint themselves are, for it is not even
an indispensable part of the complaint.
I. Allegations of the complaint also determine the
nature of the cause of action
1. The nature of the cause of action is determined by the
facts alleged in the complaint and not by the prayer therein
2. A complaint captioned as an unlawful detainer case would
actually be an action for forcible entry where the complaint
alleges that the plaintiff was deprived of the possession of
the premises by force, intimidation, stealth, threat or
strategy.
3. In one case, the complaint filed in the Regional Trial Court
was captioned "Collection of a Sum of Money with Damages."
The complaint alleged that he demanded payment of the
rentals in arrears and for the defendant to vacate the
premises. The Supreme Court held that the nature of the
allegations make out a cause of action for unlawful detainer,
not an action for collection of a sum of money. An action for
unlawful detainer is one within the jurisdiction of the
Municipal Trial Court. The Regional Trial Court therefore,
had no jurisdiction over the action even if the action was
denominated as an action to collect a sum of money.
4. Similarly, a petition denominated as a petition for review
on certiorari under Rule 45 may considered by the Court as a
petition for certiorari under Rule 65 because the petition
alleged grave abuse of discretion amounting to lack of
jurisdiction
5. Where from a reading of the allegations of the complaint
and the reliefs prayed for, the ultimate objective of the
plaintiffs is to obtain title to real property, it should be filed
in the proper court having jurisdiction over the assessed
value of the property subject thereof even if the complaint is
denominated as an action for reconveyance or an action to
annul a deed of sale to real property. The nature of an action
is not determined by the caption of the complaint but by the
allegations therein together with the reliefs prayed for.
6. Thus, where the allegations of the complaint state that
the actual transaction between the parties was not a sale but
an equitable mortgage, and that the issues and evidences in
the proceedings revolved on the true nature of the
transaction, the trial court correctly resolved the issue even
if the action was erroneously labeled as an action for
reformation.
7. It is settled jurisprudence that what determines the nature
of an action as well as which court or body has jurisdiction
over it are the allegations of the complaint and the character
of the relief sought, whether or not plaintiff is entitled to
any and all of the reliefs prayed for. The jurisdiction of the
court or tribunal over the nature of the action cannot be
made to depend upon the defenses set up in the court or
upon a motion to dismiss, for otherwise, the question of
jurisdiction would depend almost entirely on defendant.
Hence, if the allegations of the complaint make out a case
for unlawful detainer, the Municipal Trial Court is not
divested of its jurisdiction to take cognizance of the case
merely because the defendant claims ownership over the
property subject of the action.
J. How to state the cause of action
1. The pleading asserting the claim or the cause of action
must contain only the ultimate facts. These facts must be
stated in a plain, concise, methodical and logical form.
Evidentiary facts must be omitted (Sec. 1, Rule 8, Rules of
Court). Since the rule requires that pleadings should contain
only the ultimate facts, the same should not contain mere
conclusions of law because conclusions are not facts.
2. The ultimate facts refer to the essential facts of the
claim. A fact is essential if it cannot be stricken out without
leaving the statement of the cause of action insufficient
(Ceroferr Realty Corporation vs. Court of Appeals, 376 SCRA
144). The ultimate facts are the important and substantial
facts which form the basis of the primary right of the
plaintiff and which make up the wrongful act or omission of
the defendant. The ultimate facts do not refer to the details
of probative matter or to the particulars of evidence by
which the material elements are to be established. They are
the principal, determinate, constitutive facts, upon the
existence of which, the entire cause of action rests.
Page24
3. The complaint, in stating the cause of action, should not
contain sham, false, redundant, immaterial, impertinent, or
scandalous matters. These matters may be stricken out upon
motion by a party within twenty (20) days after service of the
pleading upon him or upon the court's own initiative at any
time (Sec. 12, Rule 8, Rules of Court).
K. Conditions precedent
1. Common usage refers to conditions precedent as matters
which must be complied with before a cause of action arises.
When a claim is subject to a condition precedent, the
compliance of the same must be alleged in the pleading.
2. The following are examples of conditions precedents:
(a) A tender of payment is required before making a
consignation (Art. 1256, Civil Code of the Philippines).
(b) Exhaustion of administrative remedies is required in
certain cases before resorting to judicial action.
(c) Prior resort to barangay conciliation proceedings is
necessary in certain cases (Book III, Title I, Chapter 7,
Local Government Code of 1991).
(d) Earnest efforts toward a compromise must be
undertaken when the suit is between members of the same
family and if no efforts were in fact made, the case must
be dismissed (Art. 151, Family Code of the Philippines).
3. The failure to comply with a condition precedent is an
independent ground for a motion to dismiss: that a condition
precedent for filing the claim has not been complied with
(Sec. 1fj], Rule 16, Rules of Court).
L. Pleading a 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.
There is no need to allege matters showing the jurisdiction to
render the judgment or decision (Sec. 6, Rule 8, Rules of
Court) because under this rule, jurisdiction is presumed.
M. Pleading an official document or act
- In pleading a document or an act, it is sufficient to aver
that the document was issued in compliance with law. With
respect to an act, it is likewise sufficient to allege that the
act was done also in compliance with law (Sec. 9, Rule 8,
Rules of Court).
N. Pleading capacity to sue or be sued
- Facts showing the capacity of a party to sue or be sued
must be averred. If a party is suing or sued in a
representative capacity, the same must be averred. If a party
is an organized association of persons, its legal existence
must likewise be averred (Sec. 4, Rule 8, Rules of Court).
O. Pleading, fraud, mistake or condition of the mind
1. When making averments of fraud or mistake, the
circumstances constituting such fraud or mistake must be
stated with particularity (Sec. 5, Rule 8, Rules of Court). It is
not enough therefore, for the complaint to allege that he
was defrauded by the defendant. Under this provision, the
complaint must state with particularity the fraudulent acts of
the adverse party. These particulars would necessarily
include the time, place and specific acts of fraud committed
against him.
2. Malice, intent, knowledge or other conditions of the mind
of a person may be averred generally (Sec. 5, Rule 8, Rules of
Court). Unlike in fraud or mistake, they need not be stated
with particularity. The rule is borne out of human
experience. It is difficult to state the particulars constituting
these matters. Hence, a general averment is sufficient.
P. Pleading alternative causes of actions or
defenses
1. Under Sec. 2 of Rule 8, 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.
2. This provision recognizes that the liability of the
defendant may possibly be based on either one of two causes
of action. The plaintiff, may for example, believe that the
liability of the carrier may be based either on a breach of
contract of carriage or on a quasi delict but he may not be
certain which of the causes of action would squarely fit the
set of facts alleged in the complaint, although he is certain
that he is entitled to relief. He may therefore, state his
causes of action in the alternative. This provision in effect,
also relieves a party from being compelled to choose only
one cause of action.
- The landmark case of La Mallorca us. Court ofAppeals
illustrates this rule particularly well. Here, the plaintiffs
were allowed to sue based upon a quasi- delict theory and in
the alternative, upon a breach of contract, where the death
of their child occurred when they were no longer on board
the bus of the common carrier but at the time the father was
in the process of retrieving the family's personal belongings
from the bus. Although ultimately the case was ruled to be a
breach of contract of carriage, the procedural device of
pleading alternative causes of action was strongly reaffirmed
in this case.
3. The same provision is similar to the rule (Sec. 13, Rule 3,
Rules of Court) which authorizes suing two or more
defendants in the alternative. For instance, the plaintiff
insurance company, which paid for the loss of the goods
insured, may sue in the alternative the shipping company
that transported the goods and the warehouse company that
stored the goods if the plaintiff is uncertain which between
the defendants is responsible for the loss.
4. Pleading alternative causes of action normally leads to
inconsistent claims. For instance, the elements of a cause of
action based on a contractual theory are inconsistent with
those of a cause of action based on a quasi-delict. As
previously discussed, a suit based on a breach of contract of
carriage for example, does not require an allegation and
proof of negligence because it is not an element of a breach
of contract suit. On the other hand, negligence, as a rule, is
an essential element of a suit based on a quasi-delict (Art.
2176, Civil Code of the Philippines).
- Under Sec. 2 of Rule 8, this situation is permissible as long
as the allegations pleaded within a particular cause of action
are consistent with the cause of action relied upon as an
Page25
alternative. Thus, if the alternative cause of action is a
breach of contract, the allegations therein must support the
facts constituting the breach of the contract.

5. Sec. 2 of Rule 8 likewise allows a party to interpose
alternative defenses even if such defenses are inconsistent
with each other. The defendant may therefore, in his answer
to the complaint, defend by alleging that the debt has been
paid or that it has prescribed.
6. Sec. 2 of Rule 8 does not require that all of the alternative
causes of action be sufficient for the plaintiff to be entitled
to relief. It is enough that one of them if made
independently would be sufficient to support a cause of
action. The same principle applies to alternative defenses.
"When two or more statements are made in the alternative
and one of them if made independently would be sufficient,
the pleading is not made insufficient by the insufficiency of
one or more of the alternative statements" (Sec. 2, Rule 8,
Rules of Court).
Q. Pleading actionable documents
1. A substantial number of complaints reaching the courts
shows that the plaintiff's cause of action or the defendant's
defense is based upon a written instrument or a document.
- The document used in such cases is what is commonly
termed an "actionable document" and in current usage is
referred to as the document relied upon by either the
plaintiff and the defendant.
For example, in an action for collection of a sum of
money, the actionable document would be a promissory
note. In an action for foreclosure of a mortgage, the
actionable document would be the deed of mortgage. On the
other hand, if the defendant defends by alleging that the
debt has been paid, the receipt of payment issued by the
plaintiff would constitute the actionable document.
- Whenever an actionable document' is the' basis of a
pleading, the rule specifically directs the pleader to set forth
in the pleading the substance of the instrument or the
document, (a) and to attach the original or the copy of the
document to the pleading as an exhibit and to be part of the
pleading; or (b) with like effect, to set forth in the pleading
said copy of the instrument or document (Sec. , Rule S, Rules
of Court). This manner of pleading a document applies only
to one which is the basis of action or a defense. Hence, if the
document does not have the character of an actionable
document, as when it is merely evidentiary, it need not be
pleaded strictly in the manner prescribed by Sec. 7 of Rule 8.
R. How to contest an actionable document
1. When the action is founded upon a document pleaded in
the manner required by Sec. 7 of Rule 8, the party who has
no intent of admitting the genuineness and due execution of
the document, must contest the same by (a) specifically
denying the genuineness and due execution of the document
under oath; and (b) setting forth what he claims to be the
facts (Sec. 8, Rule 8, Rules of Court).
2.A mere specific denial of the actionable document is
insufficient. The denial must be coupled with an oath. In
current usage, this means that the denial must be verified.
The absence of an oath will result in the implied admission of
the due execution and genuineness of the document (Sec. 8,
Rule 8, Rules of Court).
3. The requirement of a specific denial under oath will not
apply in either of the following:
(a) when the adverse party does not appear to be a party
to the document, or
(b) when compliance with an order for an inspection of the
original instrument is refused (Sec. 8, Rule 8, Rules of
Court).
- Thus, if a son is sued as a substitute party under a
document signed by his deceased father, a specific denial
may be made without the same being under oath because the
son is not a party to the document. Also, if the court grants a
motion filed by a party for the inspection of the original
document in the possession of the adverse party, and the
latter refuses to comply with the order, the former may deny
the document without an oath.
Illustration (Bar 1987)
"A"filed suit against "B" and "C" for the recovery of
personal property which, according to the complaint, had
been sold to him by the defendant's father during the latter's
lifetime under a document entitled Bill of Sale. The
substance of the bill was pleaded in the complaint and a copy
thereof was attached to the complaint as an exhibit. "B" and
"C" filed an answer which disclaimed knowledge or
information about the Bill of Sale and averred that the
signature thereon allegedly belonging to their father
\appears to be a forgery. At the trial of the case, "B" and "C"
Icommenced through counsel and by means of an expert
witness, to adduce evidence to prove that the seller's
signature was a forgery. "A" objected, saying that the
genuineness and due execution of the Bill of Sale was
deemed admitted because the answer was unverified, as a
matter of law, inasmuch as the verification was made only on
the express basis of best information and belief.
Resolve the objection with basis.
Suggested answer:
The objection should be overruled. "B" and "C" do
not have to deny the bill of sale under oath since they are
not parties to the Bill of Sale alleged to have been executed
by their deceased father. A specific denial of the genuineness
and due execution of the document is sufficient.
S. Defenses cut-off by the admission of genuineness and due
execution
- When a party is deemed to have admitted the genuineness
and due execution of an actionable document, defenses that
are implied from said admission are necessarily waived like
the defenses of forgery of the document, lack of authority to
execute the document, that the party charged signed the
document in some other capacity than that alleged in the
pleading, or that the document was never delivered. Also cut
off by the admission is the defense that the document was
not in words and figures as set out in the pleadings.
T. Defenses not cut-off by the admission of genuineness and
due execution
- The following defenses, among others, on the other hand,
may be interposed despite the implied admission of the
genuineness and due execution of the document:
Page26
(a) payment;
(b) want of consideration;
(c) illegality of consideration;
(d) usury; and
(e) fraud.
These defenses are not inconsistent with the admission of
the genuineness and due execution of the instrument and are
not therefore, barred.
It is submitted that prescription, release, waiver, statute
of frauds, estoppel, former recovery or discharge in
bankruptcy are not likewise barred.
Illustration (Bar 2005)
In a complaint for recovery of real property, the
plaintiff averred, among others, that he is the owner of the
said property by virtue of a deed of sale executed by the
defendant in his favor. Copy of the deed of sale was
appended to their complaint as "Annex A" thereof.
In his unverified answer, the defendant denied the
allegation concerning the sale of the property in question, as
well as the appended deed of sale, for lack of knowledge of
information sufficient to form a belief as to the truth
thereof.
Is it proper for the court to render judgment
without trial?
Suggested answer.
Where no other issue exists in the case, the court
may render a judgment without a trial through a judgment
on the pleadings. This judgment is rendered by the court,
where the answer fails to tender an issue or otherwise admits
the material allegations of the adverse party's pleading (Sec.
1, Rule 34, Rules of Court).
The deed of sale appended to the complaint is in
the nature of an actionable document because it is the basis
of the plaintiff's claim. Under the Rules, the genuineness and
due execution of the document shall be deemed admitted
unless the adverse party denies them under oath (Sec. 8,
Rule 8, Rules of Court). The unverified answer therefore,
failed to tender an issue.
Also, the averment of lack of knowledge is obviously
one done in bad faith. A denial that the defendant is without
any knowledge of his having signed a deed of mortgage when
the facts and the actionable document forming the basis of
the claim incontrovertibly show that he so executed the
document denied, is a denial in bad faith. This denial
Amounts to an admission.
While a pleader is allowed to allege that he is
without knowledge or information sufficient to form a belief
as to the truth of a material averment made in the
complaint, this rule shall not apply where the fact as to
which a lack of knowledge is asserted is, to the knowledge of
the court, so plainly within the defendant's knowledge that
his averment of ignorance must be palpably untrue.
Illustration (Bar 2004)
In his complaint for foreclosure of mortgage to
which was duly attached a copy of the mortgage deed,
plaintiff PP alleged inter alia as follows: (1) that defendant
DD duly executed the mortgage deed, copy of which is
attached as Annex "A" of the complaint and made an integral
part thereof; and (2) that to prosecute his complaint,
plaintiff contracted a lawyer, CC for a fee of P50,000.00 In
his answer, defendant alleged, inter alia, that he had no
knowledge of the mortgage deed, and he also denied liability
for plaintiff's contracting with a lawyer for a fee.
Does defendant's answer as to plaintiff's allegation
No. 1 x x x sufficiently raise an issue of fact?
Suggested answer:
The answer of defendant does not sufficiently raise
an issue of fact because the answer admitted the material
allegations of the complaint. First, the complaint was based
on the mortgage deed, an actionable document. The
genuineness and due execution of the deed were all admitted
when the defendant failed to make a specific denial under
oath (Sec. 8, Rule 8, Rules of Court). Second, the averment
of lack of knowledge is obviously one done in bad faith. A
denial that the defendant is without any knowledge of his
having signed a deed of mortgage when the facts and the
actionable document forming the basis of the claim
incontrovertibly that he so executed the document denied, is
a denial in bad faith. This denial amounts to an admission.
While a pleader is allowed to allege that he is without
knowledge or information sufficient to form a belief as the
truth of a material averment made in the complaint, this rule
shall not apply where the fact as to which a lack of
knowledge is asserted is, to the knowledge of the court, so
plainly within the defendant's knowledge that his averment
of ignorance must be palpably untrue.
Illustration (Bar 1991)
In an action for collection of P2,000,000.00,
plaintiff bank alleged that defendant, Oriental Textile Mills,
Inc. for valuable consideration, executed in favor of the bank
a promissory note for said amount. Defendant filed an answer
to the complaint denying liability and alleging that Jesus Lim
had no authority to negotiate and obtain a loan in its behalf
nor to sign the promissory note. The answer was not verified.
During the trial, defendant sought to introduce evidence to
show that Jesus Lim was not authorized to enter into the
transaction and to sign the promissory note for and in behalf
of the defendant corporation. Plaintiff objected to such
evidence, claiming that Lim's authority had been admitted by
defendant's failure to verify the answer.
(a) The judge sustained the objection. Was the
ruling correct?
(b) xxx
Suggested answer.
The ruling of the court is correct. Where the claim
is based on an actionable document like a promissory note,
the genuineness and due execution of the note are deemed
admitted where such matters are not specifically denied
under oath. In the instant case, the defendant in not
verifying his answer did not make a denial under oath.
When a party is deemed to have admitted the
genuineness and due execution of an actionable document,
defenses that are implied from said admission are necessarily
waived like the defenses of forgery of the document, lack or
authority to execute the document, that the party charged
signed the document in some other capacity than that
alleged in the pleading, or that the document was never
delivered.
Illustration (Bar 1990)
In his answer to the complaint, Mario Reyes alleged
Page27
that he does not owe Norma Alajar any sum of money, and
that he executed the promissory note only to enable Norma
Alajar to show the same to her husband to explain the
disappearance of the amount from the conjugal funds as
Norma Alajar lost the same in the casino. The answer is not
verified. At the trial, the lawyer of Norma Alajar objected to
the testimony of Mario Reyes as to his accommodation story
because, as the answer is not verified, he is deemed to have
admitted the genuineness and due execution of the
promissory note.
Decide on the objection with reasons.
Suggested answer:
The objection should be overruled. When an
actionable document is not denied under oath, the
genuineness and the due execution of the document are
deemed admitted.
When a party is deemed to have admitted the
genuineness and due execution of an actionable document,
defenses that are implied from said admission are necessarily
waived like the defenses of forgery of the document, lack or
authority to execute the document, that the party charged
signed the document in some other capacity than that
alleged in the pleading, or that the document was never
delivered.
The defense of absence of consideration is not
however, deemed admitted. This defense is not inconsistent
with the admission of the genuineness and due execution of
the instrument.
U. Splitting a single cause of action
l. Splitting a single cause of action is the act of instituting
two or more suits for the same cause of action (Sec. 4, Rule
2, Rules of Court). In splitting a cause of action, the pleader
divides a single cause of action, claim or demand into two or
more parts, brings a suit for one of such parts with the intent
to reserve the rest for another separate action. It also occurs
when a party brings a suit for each part of the same action
that was split.
V. Prohibition against splitting a single cause of action
1. Splitting a cause of action is not allowed by the Rules of
Court. "A party may not institute more than one suit for a
single cause of action" (Sec. 3, Rule 2, Rules of Court).
2. The practice of splitting a single cause of action is
discouraged because it breeds multiplicity of suits, clogs the
court dockets, leads to vexatious litigation, operates as an
instrument of harassment, and generates unnecessary
expenses to the parties.
3. The rule against splitting a single cause of action applies
not only to complaints but also to counterclaims and cross-
claims.
4. To illustrate: The act of a defendant in taking possession
of the plaintiff's land by means of force and intimidation
constitutes a single act of dispossession but gives rise to two
reliefs: (a) recovery of possession, and (b) damages arising
from the loss of possession. Both of these reliefs result from
a single wrong hence, constitute but a single cause of action.
Each of them cannot be the subject of two separate actions.
It is procedurally erroneous for the, plaintiff to file an action
to recover possession and another action for damages. Both
remedies must be alleged and claimed in only one complaint.
To file a separate action for each relief is to split a single
cause of action.
5. An action for forcible entry should include not only the
plea for restoration of possession but also claims for damages
arising out of the forcible entry. The claim for damages
cannot be filed separately.
- The same principle applies to an action to recover the
possession of a land. The action must also include the
recovery of the fruits already taken from the land and
appropriated by the defendant. A suit for the recovery of the
land and a separate suit to recover the fruits will not be
sustained.
6. A single act may sometimes violate several rights of a
person. Nevertheless the plaintiff has only one cause of
action regardless of the number of rights violated. If a car
owner sustains injuries to his person and damage to his car as
a result of the negligent driving of the defendant, two rights
of the plaintiffs have been violated, namely, his personal
right to be safe in his person and his property right to have
his car intact and free from any damage. Under the
circumstances, the plaintiff can only file a single action for
the recovery of damages for both types of injuries. Filing an
action to recover damages to his person and later for
damages to his car would be splitting a single cause of
action. If however, a passenger in the same car was also
injured, the injuries to the passenger gives rise to a cause of
action separate and distinct from those sustained by the car
owner because distinct rights belonging to different persons
have been violated. The injured passenger may file a suit
against the defendant separate from the suit filed by the car
owner.
7. A tenant illegally ejected from the land is entitled to two
reliefs - one for reinstatement and another for damages.
Since both reliefs arose from- the same cause of action, they
should be alleged in one complaint.
8. However, an action for the reconveyance of title over
property does of include a cause of action for forcible entry
or unlawful detainer. They are distinct causes of action.
Hence, the pendency of an action for reconveyance of title
does not divest the Municipal Trial Court of its jurisdiction to
try an ejectment case of either forcible entry or unlawful
detainer. What is involved in an ejectment case is possession
de facto or material possession. In an action for
reconveyance, the issue is ownership.
9. An action for the recovery of taxes should also include the
demand for surcharges resulting from the delinquency in the
payment of said taxes. The non-payment of taxes gave rise to
two reliefs: (a) the recovery of the unpaid taxes; and (b) the
recovery of the surcharges resulting from non-payment of the
taxes. These two reliefs are results of a single cause of
action and which should be pursued in a single complaint.
10. A bank cannot file a civil action against the debtor for
the collection of the debt and then subsequently file an
action to foreclose the mortgage. This would be splitting a
single cause of action.
- It has been held however, that an action to collect the
Page28
amount of the loan will not preclude a subsequent action for
the rescission of the mortgage based on violation of the
conditions of the mortgage.

Illustration (Bar 1999)
A purchased a lot from B for P 1,500,000.00 He gave
a down payment of P500,000.00, signed a promissory note
payable thirty days after date, and as security for the
settlement of the obligation, mortgaged the same lot to B.
When the note fell due and A failed to pay, B commenced
suit to recover from A the balance of P1 million. After
securing a favorable judgment on his claim, B brought
another action against A before the same court to foreclose
the mortgage. A now files a motion to dismiss the second
action on the ground of bar by a prior judgment. Rule on the
motion.
Suggested answer.
The motion to dismiss must be granted. The action
to foreclose the mortgage tantamounts to splitting a single
cause of action. One cannot file an action to collect the
indebtedness and then file another action for foreclosure.
11. A claim for partition of real property and a claim for
compensation for the improvements thereon constitute a
single cause of action. An action for partition alone will. bar
a subsequent action for the recovery of compensation on the
improvements.
12. An action for annulment of the sale of certain shares of
stock should include a claim for the recovery of accrued
dividends (Bar 1996).
Illustration (Bar 2005)
Raphael, a warehouseman, filed a complaint against
V Corporation, X Corporation and Y Corporation to compel
them to interplead. He alleged therein that the three
corporations claimed title and right of possession over the
goods deposited in his warehouse and that he was uncertain
which of them was entitled to the goods. After due
proceedings, judgment was rendered by the court declaring
that X Corporation was entitled to the goods. The decision
became final and executory.
Raphael filed a complaint against X Corporation for
the payment of P100,000.00 for storage charges and other
advances for the goods. X Corporation filed a motion to.
dismiss the complaint on the ground of res judicata. X
Corporation alleged that Raphael should have incorporated in
his complaint for interpleader his claim for storage fees and
advances and that for his failure to do so he was barred from
interposing his claim. Raphael replied that he could not have
claimed storage fees and other advances as in his complaint
for interpleader because he was not yet certain as to who
was liable therefore.
Resolve the motion with reasons.
Suggested answer.
The motion to dismiss should be granted. When the
complaint for interpleader was filed, Raphael should have
incorporated the claim for storage charges and other
expenses. In filing a separate suit, he split a single cause of
action.
Illustration (Bar 2005)
While cruising on a highway, a taxicab driven by
Mans hit an electric post. As a result thereof, its passenger,
Jovy, suffered serious injuries. Mans was subsequently
charged before the Municipal Trial Court with reckless
imprudence resulting in serious physical injuries.
Thereafter, Jovy filed a civil action against Lourdes,
the owner of the taxicab, for breach of contract, and Mans
for quasi-delict. Lourdes and Mans filed a motion to dismiss
the civil action on the ground of litis pendency, that is, the
pendency of the civil action impliedly instituted in the
criminal action for reckless imprudence resulting in serious
physical injuries.
Resolve the motion with reasons.
Suggested answer.
The action for breach of contract against the
taxicab owner cannot be barred. This is not a case of
splitting a single cause of action. The suit against the owner
is based on breach of contract of carriage separate and
distinct from the cause of action arising from the crime. A
contract is a source of obligation separate and distinct from a
crime (Art. 1156, Civil Code of the Philippines).
The civil action based on a quasi-delict is likewise
not barred. Its source is likewise separate and distinct from
the crime. A quasi-delict is a separate source of a civil
obligation and is independent of the criminal act committed
by the defendant (Art. 1156; Art. 2177, Civil Code of the
Philippines).
Illustration (Bar 1996)
1. xxx
2. X brought an action against Y for the recovery of certain
shares of stocks. After the case was decided in favor of X, he
filed another action for the recovery of the dividends that
had already accrued even when the first action was filed.
Is the second action for the recovery of dividends
proper?
Suggested answer:
The second action is not proper. There was a
splitting of a single cause of action.
When X filed an action to annul the sale of the
shares, he should have included therein the recovery of the
dividends that had accrued.
13. A contract which requires the performance of several
obligations at different times, like an obligation to be
performed on an installment basis, gives rise to divisible
independent obligations. Each obligation not performed when
due and upon proper demand gives rise to an independent
cause of action. In other words since the failure to pay an
installment constitutes a distinct cause of action, each
installment that falls due can be the subject of a separate
suit. If there is already a pending suit based on a default of a
previous installment and during such pendency an installment
falls due and is not paid, the latter may, as an alternative
move, be incorporated in the pending suit by filing a
supplemental pleading.
- Thus, in a contract of lease which provides for the payment
of rentals in separate installments, each unpaid installment
constitutes an independent cause of action. However, when
at the time the complaint is filed, there are several
installments already due, all of them constitute but a single
Page29
cause of action and should be included in a single complaint.
W. Anticipatory breach
- Where the parties enter into a contract for the delivery of a
specified amount of goods every month for a period of ten
years and the defendant expressed his intention not to make
any deliveries under the contract, the breach is total and
there can only be one action. This is an unqualified and
positive refusal to perform a contract and even if assuming
that the performance thereof is not yet due, the
renunciation goes to the whole contract and shall be treated
as a complete breach that will entitle the injured party to
bring his action at once. This anticipatory breach committed
by the defendant entitles the plaintiff to only one cause of
action for damages.
X. Effect of splitting a single cause of action (Bar 1998;1999)
1. If two or more suits are instituted for a single cause of
action, "the filing of one or a judgment upon the merits in
any of one is available as a ground for dismissal of the others"
(Sec. 4, Rule 2, Rules of Court). The remedy of the defendant
is to file a motion to dismiss.
- Hence, If the first action is pending when the second action
is filed, the latter may be dismissed based on litis pendencia,
i.e., there is another action pending between the same
parties for the same cause (Sec. 1[e], Rule 16, Rules of
Court). If a final judgment had been rendered in the first
action when the second action is filed, the latter may be
dismissed based on res judicata, i.e., that the cause of
action is barred by a prior judgment (Sec. 1[f], Rule 16, Rules
of Court).
2. Note that it need not be the second action filed that
should be dismissed. The phraseology of the present rule
(Sec. 4, Rule 2) no longer confines the dismissal to the
second action. As to which action should be dismissed would
depend upon judicial discretion and the prevailing
circumstances of the case.
Y. Joinder of causes of action (Bar 1999)
1. Joinder of causes of action is the assertion of as many
causes of action as a party may have against another in one
pleading alone (Sec. 5, Rule 2, Rules of Court). It is the
process of uniting two or more demands or rights of action in
one action.
- To illustrate: D is the debtor of C for P350,000.00 due on
January 5, 2007. D likewise owes C P350,000.00 due on
February 13, 2007. Both debts are evidenced by distinct
promissory notes. D has not paid the debts despite demand.
Each debt is a separate cause of action because each is the
subject of a different transaction. However, under the rule
on joinder of causes of action, C may file a single suit against
D for the collection of both debts, despite the claims being
actually separate causes of actions and having arisen out of
different transactions.
2. When the causes of action accrue in favor of the same
plaintiff and against the same defendant, i. e., there is only
one plaintiff and one defendant, it is not necessary to ask
whether or not the causes of actions arose out of the same
transaction or series of transactions. This question is only
relevant when there are multiple plaintiffs or multiple
defendants. In the hypothetical just discussed in par. 1, is C
obliged to join the causes of action against D? No. C is not
obliged to do so. He may file a single suit for each of the
claims if he desires because each debt is a separate cause of
action. Joinder of causes of action is not compulsory. It is
merely permissive (Bar 1999).
- In case C decides in favor of a joinder, the suit shall be
filed in the Regional Trial Court because the total amount of
the debts is within that court's jurisdiction. Under the Rules,
when the claims in all the causes of action are principally for
the recovery of money, the aggregate amount claimed shall
be the test of jurisdiction (Sec. 5[d], Rule 2, Rules of Court).
This situation follows the so-called totality test for purposes
of jurisdiction.
3. Assume that aside from the above claims, C as lessor also
wants to eject D from the apartment occupied by D as
lessee. May the action be joined with the claims for money?
No. An action for ejectment is a special civil action. This kind
of action cannot be joined with ordinary actions. The joinder
does not include special civil actions or those actions
governed by special rules. The rule is clear: "The joinder
shall not include special civil actions or actions governed by
special rules" (Sec. 5[b], Rule 2, Rules of Court). Confusion in
the application of procedural rules would certainly arise from
the joinder of ordinary and special civil actions in a single
complaint.
4. Assume that C has the following causes of action against D:
(a) P1 million based on a note; (b) PI million based on torts;
and (c) foreclosure of a real estate mortgage. May the causes
of action be joined? They can be joined but excluding
foreclosure of real estate mortgage which is a special civil
action. "The joinder shall not include special civil actions or
actions governed by special rules" (Sec. 5[b], Rule 2, Rules of
Court).
5. When there are two or more defendants, or one or more
plaintiffs, the causes of action against the defendants can
only be joined if there is a compliance with the rules on
joinder of parties under Sec. 6 of Rule 3. This provision
requires that before there can be a proper joinder of parties,
the right to relief should arise out of the same transaction or
series of transactions and that there exists a common
question of law or fact. Note that this requirement does not
apply when there is only one plaintiff and one defendant.
- Illustrations: (a) Suppose C is the creditor of D for
P350,000.00 and also of E for P375,000.00. Both debts are
due and these debts have been contracted separately. May C
join D and -E as defendants in the same complaint? No.
Where a party sues two or more defendants, it is; necessary
for the causes of action to arise out of the same transaction
or series of transactions and that there should be a common
question of law or fact. The debt of D is a transaction
different from the debt of E.
(b) Suppose P is a passenger in a bus owned by
O and driven by D. Because of the negligence of D, P
sustained injuries when the vehicle fell into a ditch by the
roadside. May P join O and D as defendants in the same
complaint based on torts? Yes. The liability of O and that of D
arose out of the same accident which gives rise to a common
Page30
question of law or fact. Note that the existence of a
contractual relationship does not preclude a- suit based on
tort. O may be sued under a quasidelict, as an employer of D
if P so desires (Art. 2180, Civil Code of the Philippines; Air
France vs. Carrascoso, 18 SCRA 155).
(c) If A and B both sign a promissory note for P1
million and bind themselves to be jointly liable for the debt
in. favor of C, there are two distinct obligations within the
same promissory note, namely: (a) the obligation of A to C
for P500,000.00; and (b) the obligation of B to C for
P500,000,00. Under Art. 2108 of the Civil Code of the
Philippines, unless otherwise indicated by the obligation or
by law, the debt or credit shall be presumed divided into as
many equal shares as there are creditors or debtors. In other
words the obligation under the promissory note in the
illustration is joint, not solidary. If the obligation is joint, C
may sue A alone or sue B alone. This is because the debts are
separate and distinct causes of action. May C however, join A
and B under one complaint and thereby join the causes of
action against them? Yes. The debt of A and the debt of B
arose out of the same transaction, i.e., the same promissory
note and would necessarily give rise to a common question of
law or fact.
Illustration (Bar 2005)
Perry is a resident of Manila while Ricky and Marvin
are residents of Batangas City. They are the co-owners of a
parcel of residential land located in Pasay City with an
assessed value of P100,000.00. Perry borrowed P 100,000.00
from Ricky which he promised to pay on or before December
1, 2004. However, Perry failed to pay his loan. Perry also
rejected Ricky and Marvin's proposal to partition the
property.
Ricky filed a complaint against Perry and Marvin in
the Regional Trial Court of Pasay City for the partition of the
property. He also incorporated in his complaint his action
against Perry for the collection of the latter's P100,000.00
loan, plus interests and attorney's fees.
State with reasons whether it was proper for Ricky
to join his causes of action in his complaint for partition
against Perry and Marvin in the Regional Trial Court of Pasay
City.
Suggested answer.
The joinder of causes of action is not proper. The
joinder involves a cause of action for partition and a cause of
action for a sum of money.
Partition is a special civil action under Rule 69. A
speciaI civil action cannot be joined with an ordinary action
(Sec. 5lbl, Rule 2, Rules of Court).
Illustration (Bar 2002)
P sued A and B in one complaint in the RTC-Manila,
the cause of action against A being an overdue promissory
note for P300,000 and that against B being an alleged
balance of P300,000 on the purchase of goods sold on credit.
Does the RTC-Manila have jurisdiction over the case?
Suggested answer.
The RTC-Manila has no jurisdiction over the case.
The joinder of the causes of action against A and B is not
proper.
For a joinder of causes of action against several
defendants to be proper, the joinder must comply with the
rule on joinder of parties under Sec. 6 of Rule 3. This rule
requires that the causes of action joined should arise out of
the same transaction or series of transactions and there
exists a question of law or fact common to both. These
requirements are not met under the facts.
Since the causes of action cannot be joined, each
cause of action must be the subject of a separate action. The
totality rule has no application under the facts of the case.
The amount of each claim (P300,000.00) falls within the
jurisdiction of the MTC.
Illustration (Bar 2002)
P sued A in the RTC-Manila to recover the following
sums: (1) P200,000.00 on an overdue promissory note, (2)
P80,000.00 on the purchase price of a computer, (3)
P150,000.00 for damages to his car, and (4) P100,000.00 for
attorney's fees and litigation expenses. Can A move to dismiss
the case on the ground that the court has no jurisdiction over
the subject matter? Explain.
Suggested answer.
A cannot move for the successful dismissal of the
case. Under the totality rule, the aggregate amount of the
claim under the causes of action joined is P 430,000.00, an
amount well within the jurisdiction of the RTC. The claim for
attorney's fees and litigation expenses and costs are not to be
included in determining the jurisdictional amount.
Where the cause of action accrues to one plaintiff
against one defendant, the provisions of Sec. 5 of Rule 2
allow a party to assert in one pleading as many causes of
action as he may have against an opposing party provided he
does not join special civil actions or those subject to special
rules. No special civil action is involved under the facts.
Illustration (Bar 1999)
A secured two loans from B, one for P500,000.00
and the other for P1,000,000.00 payable on different dates.
Both have fallen due. Is B obliged to file only one complaint
against A for the recovery of both loans? Explain.
Suggested answer.
B is not obliged to file only one complaint. A joinder
of causes of action is not compulsory but merely permissive.
He may, if he desires, file two actions for the recovery of
each loan.
Illustration (Bar 1996)
1. XXX
2. The complaint filed before the Regional Trial Court of
Manila states two (2) causes of actions, one for rescission of
contract and the other for the recovery of One Hundred
Thousand Pesos (P100,000.00) both of which arose out of the
same transaction.
Is the joinder of the two causes of action proper?
Suggested answer.
The causes of actions may be joined. Both are
ordinary civil actions and thus, neither requires special rules.
Since the action for rescission falls under the jurisdiction of
the Regional Trial Court, the joinder may be made in said
court.
Illustration (Bar 1996)
Distinguish joinder of causes of actions from joinder of
Page31
parties.
Suggested answer.
> Joinder of causes of action - the procedural device whereby
a party who asserts various claims against the same or
several parties, files all his claims against them in a single
complaint. The joinder will not involve a joinder of parties
when the causes of actions joined accrue in favor of the
same plaintiff against the same defendant, i.e., there is only
one plaintiff against the same defendant. This means that a
joinder of causes of action will not necessarily involve a
joinder of parties.
> Joinder of parties - a procedural device that may be
employed when there are various causes of actions that
accrue in favor of one or more plaintiffs against one or more
defendants, i.e., there is a plurality of parties. A joinder of
parties requires that before parties can be joined under a
single complaint the right to relief must arise out of the same
transaction or series of transactions and there must be a
common question of law or fact. A joinder of parties may or
not be involved in a joinder of causes of actions.
Z. Remedy in case of misjoinder of actions
- When there is a misjoinder of causes of action, the
erroneously joined cause of action can be severed or
separated from the other causes of action upon motion by a
party or upon the court's own initiative. Misjoinder is not a
ground for the dismissal of the case (Sec. 6, Rule 2, Rules of
Court). For example, if an action for forcible entry is joined
in one complaint with the causes of actions based on several
promissory notes, the complaint should not be dismissed
based on the misjoinder of the forcible entry case. Instead,
the cause of action predicated on forcible entry may be
severed from the complaint upon motion of a party or by the
court motu proprio.
II. ACTIONS
A. Definition
1. > action - the legal and formal demand of one's right from
another person made and insisted upon in a court of justice
2. In this jurisdiction, it is settled that the terms "action" and
"suit" are synonymous.
B. Civil actions and criminal actions
1. > civil action "- one by which a party sues another for the
enforcement or protection of a right, or the prevention or
redress of a wrong" (Sec. 3[a], Rule 1, Rules of Court).
2. > criminal action "- one by which the State prosecutes a
person for an act or omission punishable by law" (Sec. 3[b],
Rule 1, Rules of Court).
3. It has been ruled that ". . . proceedings are to be regarded
as criminal when the purpose is primarily punishment, and
civil when the purpose is primarily compensatory.. ."
C. Actions distinguished from special proceedings (Bar
1998;1996)
Action Special Proceedings
The purpose of an action is The purpose of a special
either: proceeding is to establish a
(if civil action) to status, a right or a particular
protect a right or prevent fact (Sec. 3, Rule 1, Rules of
or redress a wrong if the Court).
action
(if criminal action) to
prosecute a person for an
act or an omission
punishable by law (Sec. 3,
Rule 1, Rules of Court).
- Note: Refer to Sec. 1 of Rule 72 for the cases that apply
special proceedings while the provisions of Rule 72 to Rule
109, discuss the specific kinds of special proceedings.
D. Real and personal actions (Bar 2006; 2004)
1. An action is `real' when it affects title to or possession of
real property, or an interest therein (Sec. 1, Rule 4, Rules of
Court). All other actions are personal actions (Sec. 2, Rule 4,
Rules of Court; Bar 1994).
2. An action is real when it is founded upon the privity of real
estate. That means that realty, or an interest therein is the
subject matter of the action. Not every action however,
involving a real property is a real action because the realty
may only be incidental to the subject matter of the suit. To
be a `real' action, it is not enough that the action must deal
with real property. It is important that the matter in
litigation must also involve any of the following issues: title
to, ownership, possession, partition, foreclosure of mortgage
or condemnation of real property.
3. Examples: An action for damages to real property, while
involving realty is a personal action because although it
involves real property, it does not involve any of the issues
mentioned.
An action to recover possession of real property plus damages
is a real action because possession of the real property is
involved. However, an action to recover possession of a
personal property is a personal action.
4. An action for a declaration of the nullity of marriage is a
personal action
5. An action for specific performance is a personal action as
long as it does not involve a claim of or recovery of
ownership of real property.
Where the allegations as well as the prayer of the
complaint do not claim ownership of the lots in question or
ask for possession of the same but instead seeks for the
execution of a deed of sale by the defendants in favor of the
plaintiff, the action is a personal action.
- However, where a complaint is denominated as one for
specific performance but nonetheless prays for the issuance
of a deed of sale for a parcel of land for the plaintiff to
acquire ownership of the land, its primary objective and
nature is one to recover the parcel of land itself and thus, is
deemed a real action.
6. If the action is denominated as one for specific
performance, but the plaintiff actually seeks for the issuance
of a deed of assignment in his favor of certain shares of
stocks to regain ownership and possession of said shares, the
action is not one for specific performance but a personal
action for the recovery of property. The docket fee
therefore, should be computed based on the value of the
Page32
property and not based on the docket fee for specific
performance.
7. Where it is alleged in the complaint that the defendant
breached the contract, so that the plaintiff prays that the
contract be rescinded and that the defendant be ordered to
return possession of the hacienda to the plaintiff, the
ultimate purpose or end of the action is to recover possession
of real property and not a mere breach of contract.
8. Where the action to annul or rescind a sale of real
property has as its fundamental and prime objective the
recovery of real property, the action is real.
9. Where an award of a house and lot to the plaintiff was
unilaterally cancelled, an action that seeks to annul the
cancellation of the award over the said house and lot is a
personal action. The action does not involve title to,
ownership or possession of real property. The nature of the
action is one to compel the recognition of the validity of the
previous award by seeking a declaration that the cancellation
is null and void.
Illustration (Adapted from Bar 1978 and 1976)
X filed in the Court of First Instance (now Regional
Trial Court) of Cavite against the Development Bank of the
Philippines (DBP) seeking the annulment of the cancellation
of the award of a house and lot in Quezon City in his favor.
DBP had unilaterally cancelled the award because X was a
retired employee who had merely an option to purchase said
house and lot. DBP filed a motion to dismiss the complaint on
the ground of improper venue, contending that since the
property in question is located in Quezon City, the complaint
should have been filed there. Resolve said motion, stating
your reasons briefly. Is the action a real or a personal action?
Suggested answer.
The action is a personal action. The nature of the
action is one to compel the recognition of the validity of the
award by seeking a declaration that the cancellation of the
award is null and void. The issue does not involve title to the
property or any interest therein.
10. An action to foreclose a real estate mortgage is a real
action, but an action to compel the mortgagee to accept
payment of the mortgage debt and to release the mortgage is
a personal action.
11. An action praying that the defendant be ordered "to
accept the payment being made" by plaintiff for the lot to
which the latter contracted to buy on an installment basis
from the former, to pay plaintiff compensatory damages and
attorney's fees and to enjoin the defendant and his agents
from repossessing the lot in question, is one that affects title
to land because although the immediate remedy is to compel
defendant to accept the tender of payment allegedly made,
it is obvious that this relief is merely the first step to
establish plaintiff's title to real property. The action is real.
12. An action to annul a contract of loan is a personal action.
An action to annul or cancel a real estate mortgage is a
personal action.
13. Although the main relief sought in the action is the
delivery of the certificate of title, said relief, in turn
depends upon who, between the parties, has a better right to
the lot in question. It is not possible for the court to decide
the main relief without passing upon the claim of the parties
with respect to the title to and the possession of the lot in
question. The action is a real action.
14. Where the sale is fictitious, with absolutely no
consideration, it should be regarded as a non-existent
contract. There being no contract between the parties, there
is nothing in truth to annul by action. The action therefore,
cannot be an action for annulment but one for the recovery
of a fishpond, a real action.
E. Significance of the distinction between a personal and a
real action
1. The distinction between a real action and a personal
action is important for the purpose of determining the venue
of the action. Questions involving the propriety or
impropriety of a particular venue are resolved by initially
determining the nature of the action, i.e., if the action is
personal or real.
2. A real action is `local', i.e., its venue depends upon the
location of the property involved in the litigation. "Actions
affecting title to or possession of real property, or interest
therein, shall be commenced and tried in the proper court
which has jurisdiction over the area wherein the real
property involved, or a portion thereof is situated" (Sec. 1,
Rule 4, Rules of Court; Italics supplied).
3. A personal action is `transitory; i. e., its venue depends
upon the residence of the plaintiff or the defendant at the
option of the plaintiff. A personal action "may be commenced
and tried where the plaintiff or any of the principal plaintiffs
resides or where the defendant or any of the principal
defendants resides, or in the case of a non-resident
defendant, where he may be found, at the election of the
plaintiff" (Sec. 2, Rule 4, Rules of Court; Italics supplied; Bar
1994).
4. Hence, if the question involves the venue of an action, the
analysis will necessarily involve the following steps:
(a) a determination whether the action is real or personal
(b) an application of the rules on venue under Rule 4, Rules
of Court.
Thus, an action for a sum of money, instituted by a
resident of Manila against a resident of Quezon City, shall be
filed either in Manila or Quezon City at the election of the
plaintiff because the action is personal.
5. An action to annul a sale of a land located in Baguio City
where recovery of ownership is essentially the material issues
in the case, must be filed in Baguio City. The action is a real
action and must be filed in the place where the property is
situated regardless of the residence of the parties.
6. An action for ejectment must be filed where the real
property subject of the action is situated. Do not consider
the residences of the parties because "forcible entry and
detainer actions shall be commenced and tried in the
municipal court of the municipality or city wherein the real
property involved, or a portion thereof, is situated" (Sec. 1,
Rule 4, Rules of Court).
Page33
7. An action for the recovery of possession of the leased
premises located in Davao City and for the payment of
accrued rentals is a real action. The venue of the action is
Davao City (Bar 1991).
8. To reiterate, where an award of a house and lot to the
plaintiff was unilaterally cancelled, an action that seeks to
annul the cancellation of the award over the said house and
lot is a personal action. The action does not involve title to,
ownership or possession of real property. The nature of the
action is one to compel the recognition of the validity of the
previous award by seeking a declaration that the cancellation
is null and void. The venue is the residence of the plaintiff or
that of the defendant at the option of the plaintiff
(Hernandez vs. Development Bank of the Philippines, 71 SCRA
290; Bar 1976; Bar 1978).
F. In personam and in rem actions (Bar 1994)
1. A proceeding in personam is a proceeding to enforce
personal rights and obligations brought against the person
and is based on the jurisdiction of the person, although it
may involve his right to, or the exercise of ownership of,
specific property, or seek to compel him to control or dispose
of it in accordance with the mandate of the court. The
purpose of a proceeding in personam is to impose through the
judgment of a court, some responsibility or liability directly
upon the person of the defendant.
Examples: An action for a sum of money; an action for
damages. In this kind of action, no one other than the
defendant is held liable, not the whole world.
2. A proceeding quasi in rem is one brought against persons
seeking to subject the property of such persons to the
discharge of the claims assailed. In an action quasi in rem, an
individual is named as defendant and the purpose of the
proceeding is to subject his interests therein to the
obligation or loan burdening the property. Actions quasi in
rem deal with the status, ownership or liability of a
particular property but which are intended to operate on
these questions only as between the particular parties to the
proceedings and not to ascertain or cut off the rights or
interests of all possible claimants. Traditional jurisprudence
has referred to this action as one brought against the whole
world.
3. An action in personam is not necessarily a personal action.
Nor is a real action necessarily an action in rem. An in
personam or an in rem action is a classification of actions
according to the object of the action. A personal and real
action is a classification according to foundation. It is in rem
when directed against the whole world (Bar 1994). For
instance, an action to recover, title to or possession of real
property is a real action, but it is an action in personam. It is
not brought against the whole world but against the person
upon whom the claim is made.
4. An action for ejectment (forcible entry or unlawful
detainer) is a real action because it involves the issue of
possession of real property. It is also however, an action in
personam because the action is directed against a particular
person who is sought to be held liable (Sec. 1, Rule 4, Rules
of Court). An action for the declaration of nullity of a
marriage is a personal action because it is not founded on
real estate. It is also an in rem action because the issue of
the status of a person is one directed against the whole
world. One's status is a matter that can be set up against
anyone in the world. On the other hand, an action for
damages is both a personal action and an action in personam.
5. An action for specific performance is an action in
personam. An action for specific performance and/or
rescission is not an action in rem.
6. A cadastral proceeding is an action in rem
7. A land registration proceeding is an action in rem. Hence,
the failure to give a personal notice to the owners or
claimants of the land is not a jurisdictional defect. It is the
publication of such notice that brings in the whole world as a
party in the case and vests the court with jurisdiction
8. Cases involving an auction sale of land for the collection of
delinquent taxes is an action in personam. Mere publication
of the notice of delinquency does not suffice. Notice by
publication although sufficient in proceedings in rem does
not satisfy the requirements of proceedings in personam.
9. An action to recover real property is a real action. It is
however, also an action in personam for it binds only a
particular individual.
G. Quasi in rem actions
1. An action quasi in rem is one wherein an individual is
named as defendant and the purpose of the proceeding is to
subject his interest therein to the obligation or lien
burdening the property.
2. The object of an action quasi in rem is the sale or
disposition of the property whether by attachment,
foreclosure or any other form of remedy.
3. Examples of actions quasi in rem: (a) action for partition;
(b) action for accounting; Such actions are essentially for the
purpose of affecting the defendant's interest in the property
and not to render a judgment against him; (c) attachment;
(d) foreclosure of mortgage.
H. Significance of distinction between actions in rem, in
personam and quasi in rem
1. The distinction is important to determine whether or not
jurisdiction over the person of the defendant is required and
consequently to determine the type of summons to be
employed. Jurisdiction over the person of the defendant is
necessary for the court to validly try and decide a case
against said defendant where the action is one in personam
but not where the action is in rem or quasi in rem.
- Against a resident defendant in an action in personam, this
jurisdiction is acquired by service in person on the defendant
(Sec. 6, Rule 14, Rules of Court) or in case he cannot be
served in person within a reasonable time, by substituted
service of summons (Sec. 7, Rule 14, Rules of Court). Without
a valid service of the summons the court cannot obtain
jurisdiction over the person of the defendant unless the
defendant voluntarily appears in the action. This voluntary
appearance is equivalent to service of summons (Section 20,
Page34
Rule 14, Rules of Court).
2. "In an action in personam against a non-resident who does
not voluntarily submit himself to the authority of the court,
personal service within the state is essential to the
acquisition of jurisdiction over his person. This method is
possible if such defendant is physically present in the
country. If he is not found therein, the court cannot acquire
jurisdiction over his person and therefore, cannot validly try
the case against him".
In an action for specific performance against a non-
resident who does not reside in the Philippines, summons by
publication will not enable the court to acquire jurisdiction
over him.
Because an action for specific performance is in personam,
service of summons upon him in person while he is within the
territory is essential for the court to acquire jurisdiction over
him.
3. Summons by publication, as far as existing jurisprudence is
concerned, will not enable the court to acquire jurisdiction
over the person of the defendant. This jurisprudential rule is
however, subject to the exceptions laid down under the
amended rules which took effect on July 1, 1997. These rules
are:
(a) If the resident defendant is temporarily out of the
country, he may be served by publication with leave of court.
Note the words, "any action" in Sec. 16 of Rule 14 and a
reference made to Sec. 15 of Rule 14 in the same section
(Sec. 16, Rule 14 in relation to Sec. 15, Rule 14, Rules of
Court); and
(b) If the identity of the defendant is unknown or whose
whereabouts are unknown, service may, with leave of court,
be effected upon him by publication in a newspaper of
general circulation. Note the words, "in any action" in Sec. 14
of Rule 14 (Sec. 14, Rule 14, Rules of Court).
4. The Supreme Court sums up the basic rules on the matter,
in the following words, thus:
"The question of whether the trial court has
jurisdiction depends on the nature of the action, i.e.,
whether the action is in personam, in rem, or quasi in rem.
The rules on service of summons under Rule 14 of the Rules
of Court likewise apply according to the nature of the action.
"An action in personam is an action against a person
on the basis of his personal liability. An action in rem is an
action against the thing itself instead of against the person.
An action quasi in rem is one wherein an individual is named
as defendant and the purpose of the proceeding is to subject
his interest therein to the obligation or lien burdening the
property.
In an action in personam, jurisdiction over the
person of the defendant is necessary for the court to validly
try and decide the case. In a proceeding in rem or quasi in
rem, jurisdiction over the person of the defendant is not a
prerequisite to confer jurisdiction on the court provided that
the court acquires jurisdiction over the res. Jurisdiction over
the res is acquired either (1) by the seizure of the property
under legal process, whereby it is brought into actual custody
of the law; or (2) as a result of the institution of legal
proceedings, in which the power of the court is recognized
and made effective.
Nonetheless, summons must be served upon the
defendant not for the purpose of vesting the court with
jurisdiction but merely for satisfying the due process
requirements.
A resident defendant who does not voluntarily
appear in court, must be personally served with summons as
provided under Sec. 6, Rule 14 of the Rules of Court. If she
cannot be personally served with summons within a
reasonable time, substituted service may be effected (1) by
leaving copies of the summons at the defendant's residence
with some person of suitable age and discretion then residing
therein, or (L) by leaving the copies at def'endant's office or
regular place of business with some competent person in
charge thereof in accordance with Sec. 7, Rule 14 of the
Rules of Court (Biaco vs. Philippine Countryside Rural Bank,
G.R. No. 161417, February 8, 2007).
I. Jurisdiction over the res
1. Jurisdiction over the res refers to the court's jurisdiction
over the thing or the property which is the subject of the
action. Jurisdiction over the res may be acquired by the
court by placing the property or thing under its custody
(custodia leg's). Example: attachment of property. It may
also be acquired by the court through statutory authority
conferring upon it the power to deal with the property or
thing within the court's territorial jurisdiction. Example: suits
involving the status of the parties or suits involving the
property in the Philippines, of non-resident defendants.
- A land registration case is a proceeding in rem, and
jurisdiction over the res in this case cannot be acquired
unless there is a constructive seizure of the land through
publication and service of notice.
2. If the action is in rem or quasi in rem, jurisdiction over the
person of the defendant is not required. What is required is
jurisdiction over the res although summons must also be
served upon the defendant in order to satisfy the
requirements of due process.
3. If the suit against a non-resident defendant is in rem or
quasi in rem as in the case of an in rem action for annulment
of his marriage to a Filipina while he was temporarily in the
Philippines, a suit for annulment may prosper despite the
absence of said non-resident defendant in the Philippines.
Summons by publication or any of the modes of
extraterritorial service under Sec. 15 of Rule 14 will suffice
because what the court merely needs is jurisdiction over the
res.
J. Extraterritorial service; other rules on summons (Bar 1959)
1. When the defendant is (a) a non-resident, and (b) he is not
found in the country, summons may be served upon him
extraterritorially in accordance with Rule 14, Sec. 15. Under
this provision, there are only four instances when
extraterritorial service of summons is proper, namely: (1)
when the action affects the personal status of the plaintiff,
(2) when the action relates to, or the subject of which is
property within the Philippines, in which the defendant
claims a lien or interest, actual or contingent; (3) when the
relief demanded in such action consists, wholly or in part, in
excluding the defendant from any interest in property
located in the Philippines; and (4) when the defendant non-
resident's property has been attached within the Philippines.
Observe that these cases are either in rem or quasi in rem.
Page35
2. It must be stressed that the concept of extraterritorial
service of summons will apply only to a defendant who is a
non-resident and at the same time is outside the Philippines.
It does not apply to any other defendant like a resident of
the Philippines or a non-resident who is in the country. It
must be emphasized too that extraterritorial service can only
be effected when the action is either in rem or quasi in rem.
Jurisdiction over the person of the defendant here is not
required. Instead of jurisdiction over the person of the
defendant, the rule merely requires jurisdiction over the res.
Publication is sufficient to enable the court to acquire this
type of jurisdiction. If the action however, against the non-
resident defendant is in personam, extraterritorial service
cannot be availed of. This is because "there is no
extraterritorial service in an action in personam"
K. Application of principles
1. It must again be stressed that if the defendant is a non-
resident, personal service of summons (more appropriately
called "service in person on defendant") within the state is
essential to the acquisition of jurisdiction over the person of
the defendant and this is not possible if the defendant is not
within the country. The court thus, cannot acquire
jurisdiction over his person. So when the action is for the
recovery of a sum of money against the non-resident
defendant, the summons by publication is ineffective for the
trial court to acquire jurisdiction over the person of the
defendant. Any judgment rendered against him is therefore,
null and void for lack of jurisdiction over the defendant.
- Example No. 1: An American tourist while in the
Philippines, incurred hotel bills of P2 million. Without paying
his bills, he surreptitiously left the country. The hotel filed
an action for a sum of money and with leave of court
effected summons by publication. The defendant made no
appearance in any form and judgment by default was
rendered against him. Is he bound by the judgment? Answer:
He is not bound by the judgment because the same was
rendered without jurisdiction over his person. The summons
by publication did not enable the court to acquire
jurisdiction over him. Here, the action is one in personam.
- Example No. 2: Mr. D is a balikbayan, a former Filipino, and
a naturalized Canadian citizen. He visited the country to
attend the funeral of his father from whom he inherited a
parcel of land. He obtained a loan while in the Philippines
and executed a real estate mortgage on his inherited land.
He left without paying the debt. An action to foreclose the
mortgage was filed. How may the court obtain jurisdiction
over the person of Mr. X? Answer: There is no way. He is
already out of the country. However, jurisdiction over the
person of the defendant is not necessary and hence,
irrelevant under the facts of the case because the action for
foreclosure is not an action in personam. A foreclosure suit is
a quasi in rem action. In this kind of action, jurisdiction over
the person of the defendant is not required. Summons by
publication or other modes of extraterritorial service under
Sec. 15 of Rule 14, is enough to acquire jurisdiction over the
res. May the court therefore validly render a judgment in the
foreclosure proceedings? The court can. It has jurisdiction
over the res as long as summons by any of the means allowed
under the rules on extraterritorial service is effected (Sec.
15, Rule 14, Rules of Court).
2. There are situations where a non-resident defendant has
properties in the Philippines probably because he used to be
either a citizen or a resident of the country. If the suit is in
personam, as when the suit is for a sum of money, summons
by publication would be ineffective to acquire jurisdiction
over his person. The remedy is to file the suit and at the
same time avail of the provisional remedy of attachment.
Following established principles, jurisdiction over the person
of the defendant would no longer be required when there is a
preliminary attachment of the defendant's properties
because the suit has assumed the status of an action quasi in
rem which merely requires jurisdiction over the res. The suit
can then proceed despite the absence of the defendant
because in this case, the property of the defendant would
now be the object of the judicial power.
3. A proceeding for the probate of a will is one in rem, such
that the corresponding publication of the petition brought
the whole world a party in the case and vests the court with
jurisdiction to hear and decide it. Personal notice upon the
heirs is a matter of procedural convenience and not a
jurisdictional requisite.
4. In Sahagun vs. Court of Appeals, an action was filed
against a non-resident defendant, Abelardo Sahagun, and a
writ of attachment was issued against the property of the
defendant in the Philippines. Because of the failure to serve
summons extraterritorially upon the defendant, the
complaint was dismissed without prejudice.
- Subsequently, a motion for leave to serve summons by
publication upon the defendant was granted by the court.
For failure to file an answer, the defendant was declared in
default. The Court however, sustained the correctness of the
extrajudicial service of summons by publication.
- The Court explained, that attachment and foreclosure
proceedings are both actions quasi in rem. As such,
jurisdiction over the person oftho non-resident defendant is
not essential. Service of summons on a non-resident
defendant who is not found in the country is required, not for
purposes of physically acquiring jurisdiction over his person
but simply in pursuance of the requirements of fair play, so
that he may be informed of the pendency of the action
against him and the possibility that property belonging to him
or in which he has an interest may be subjected to a
judgment in favor of a resident, and that he may thereby be
accorded an opportunity to defend in the action, should he
be so minded.
5. There is no such action called "annotation of lis pendens'.
Notice of lis pendens is ordinarily recorded without the
court's intervention. The annotation of lis pendens is not
proper where the action is in personam like recovery of a
sum of money and damages. For the annotation to be proper,
the action must be one affecting title to property.
CHAP. 3: JURISDICTION, VENUE AND PARTIES
I. JURISDICTION
A. Meaning of jurisdiction
Page36
1. > Jurisdiction - the power and authority of the court to
hear, try and decide a case
2. It is not only the power to hear and determine, but the
power to enforce its determination, as the judgment or
decree is the end for which jurisdiction is exercised, and it is
only through the judgment and its execution that the power
of the court is made efficacious and its jurisdiction
complete.
The power to control the execution of its decision is an
essential aspect of jurisdiction. It cannot be the subject of
substantial subtraction and the most important part of the
litigation is the process of execution of decisions
B. Power of the court
- Jurisdiction is not the power of the judge but of the court.
Neither is it the decision rendered. It is the power or
authority of the court to decide a cause.
C. Test of jurisdiction
- Jurisdiction does not depend upon the regularity of its
exercise or on the rightness of the decision made. The test of
jurisdiction is whether the court has the power to enter into
the inquiry and not whether the decision is right or wrong.
D. Matter of substantive law
- Jurisdiction is a matter of substantive law (BP 129; R.A.
7691) because it is conferred by law. This jurisdiction which
is a matter of substantive law should be construed to refer
only to jurisdiction over the subject matter. Jurisdiction over
the parties, the issues and the res are matters of procedure.
E. Not subject to waiver or stipulation
Jurisdiction cannot be waived, enlarged or diminished by
stipulation of the parties (Republic vs. Estipular, 336 SCRA
333). This is a consequence of the substantive character of
jurisdiction over the subject matter.
F. Duty of a court to determine its jurisdiction
1. It is the duty of the court to consider the question of
jurisdiction before it looks at other matters involved in the
case. It may, and must, do this on its own motion without
waiting for the question of jurisdiction being raised by any of
the parties involved in the proceeding.
Courts are bound to take notice of the limits of their
authority and they may act accordingly by dismissing the
action even though the issue of jurisdiction is not raised or
not even suggested by counsel.
2. If the court finds that it has jurisdiction, it is the duty of
the court to exercise the jurisdiction conferred upon it by
law and to render a decision in a case properly submitted to
it. It cannot decline to exercise its jurisdiction. Failure to do
so may be enforced by way of a mandamus proceeding.
3. When it appears that the court has no jurisdiction over the
subject matter of a complaint filed before it, the court shall
dismiss the claim and can do so motu proprio (Sec. 1, Rule 9,
Rules of Court). Even if the parties do not challenge the
jurisdiction of a court or tribunal, this does not prevent the
court from addressing the issue.
G. Jurisdiction versus the exercise of jurisdiction
Jurisdiction Exercise of jurisdiction
a. the power or authority of a. exercise of this power or
the court. authority
b. the authority to decide a b. Where there is jurisdiction
case and not the decision over the subject matter, the
rendered therein. decision on all other
questions arising in the case
is but an exercise of
jurisdiction. The errors
which the courts may
commit in the exercise of
jurisdiction are merely errors
of judgment which are the
proper subjects of an
appeal.
H. Error of judgment and error of jurisdiction; distinctions
(Bar 1989)
1. > error of judgment - one which the court may commit in
the exercise of its jurisdiction. As long as the court acts
within its jurisdiction, any alleged errors committed in the
exercise of its discretion will amount to nothing more than
mere errors of judgment.
Errors of judgment include errors of procedure or mistakes
in the court's findings.
> error of jurisdiction - one where the act complained of was
issued by the court without or in excess of jurisdiction.
Errors of'jurisdiction occur when the court exerciHes a
jurisdiction not conferred upon it by law It may also occur
when the court or tribunal although with jurisdiction, acts in
excess of its jurisdiction or with grave abuse of discretion
amounting to lack of jurisdiction.
2. Errors of judgment are correctible by appeal
Errors of jurisdiction are correctible only by the
extraordinary writ of certiorari
3. Where a court has jurisdiction, a wrong decision is not
void. If the court has jurisdiction, it is altogether immaterial
how grossly irregular or manifestly erroneous its proceedings
may have been. The judgment cannot be considered a
nullity, and cannot therefore, be collaterally impeached.
Such a judgment is binding on the parties unless it is reversed
or annulled in a direct proceeding. But if there is a total
want of jurisdiction in a court, its proceedings are an
absolute nullity, confer no right and afford no protection but
will be pronounced void when collaterally attacked.
- Any judgment rendered without jurisdiction is a total nullity
and may be struck down at any time, oven on appeal; the
only exception is when the party raising the issue is barred by
estoppels.
4. A relatively more recent case holds in reiteration of the
principle: "When a court, tribunal, or officer has jurisdiction
over the person and the subject matter of the dispute, the
decision on all other questions arising in the case is an
exercise of that jurisdiction." Consequently, all errors
committed in the exercise of said jurisdiction are merely
errors of judgment. Under prevailing procedural rules and
jurisprudence, errors of judgment are not proper subjects of
a special civil action for certiorari.
I. Lack of jurisdiction and excess of jurisdiction
Page37
- Lack of jurisdiction and excess of jurisdiction are
distinguished thus: the respondent court or tribunal acts
without jurisdiction if it does not have the legal power to
determine the case; where the respondent, being clothed
with the power to determine the case, oversteps its authority
as determined by law, it is performing a function in excess of
its jurisdiction.
J. Jurisdiction and cause of action (Bar 1988)
- Jurisdiction is not a cause of action.
Jurisdiction an authority.
Conferred by law
Cause of action the act or omission violative of the
rights of others.
not conferred by law but exists because
of a violation of a right.
K. Jurisdiction over the subject matter
1. > Jurisdiction over the subject matter - the power to deal
with the general subject involved in the action, and means
not simply jurisdiction of the particular case then occupying
the attention of the court but jurisdiction of the class of
cases to which the particular case belongs
- the power or authority to hear and determine
cases to which the proceeding in question belongs.
2. The term "subject matter" the item with respect to
which the controversy has arisen, or concerning which the
wrong has been done, and it is ordinarily the right, the thing,
or the contract under dispute.
Examples: The terms `unlawful detainer', `forcible entry',
or actions `incapable of pecuniary estimation' are subject
matters. So are the terms action publiciana, action
reivindicatoria, partition of property, foreclosure of
mortgage, expropriation, habeas corpus and action for
damages, among others.
3. When a complaint is filed in court, the basic questions that
ipso facto are to be immediately resolved by the court on its
own are: (a) What is the subject matter of their complaint
filed before the court? (b) Does the court have jurisdiction
over the said subject matter of the complaint before it?
Answering these questions inevitably requires looking into
the applicable laws conferring jurisdiction.
L. How jurisdiction over the subject matter is conferred
1. Jurisdiction over the subject matter is conferred by law
which may be either the Constitution or a statute
2. The law that confers jurisdiction refers to a substantive
law, not a procedural law. It likewise does not refer to an
administrative order or a circular
3. Since jurisdiction is conferred by law, jurisdiction:
(a) cannot be conferred by the administrative policy of any
court (b) cannot be conferred by a court's unilateral
assumption of jurisdiction
(c) cannot be conferred by an erroneous belief by the
court that it has jurisdiction
(d) cannot also be conferred by the parties cannot be
conferred by contract
(e) cannot be granted by agreement of the parties,
acquired through, or waived, enlarged or diminished by,
any act or omission of the parties. Neither can it be
conferred by acquiescence of the court
(f) cannot be conferred by the parties' silence,
acquiescence or consent
4. The Supreme Court rulings in recent cases need emphasis:
"Jurisdiction cannot be conferred by the voluntary act or
agreement of the parties; it cannot be acquired through or
waived, enlarged or diminished by their act or omission.
Neither is it conferred by the acquiescence of the court. It is
neither for the court nor the parties to violate or disregard
the rule, this matter being legislative in character"
M. How jurisdiction over the subject matter is determined
1. It is a settled rule that jurisdiction over the subject matter
is determined by the allegations of the complaint regardless
of whether or not the plaintiff is entitled to his claims
asserted therein.
2. If by the averments of the complaint, the court has
jurisdiction, it does not lose that jurisdiction just because
the defendant makes a contrary allegation in his motion or
answer or because the court believes that the plaintiff's
claims are ridiculous and therefore, untrue. If by the
averments of the complaint, it has jurisdiction, then it has
jurisdiction.
N. Jurisdiction is not determined either by the defenses or by
the evidences in the trial
l. "It is axiomatic that the nature of the action and which
court has original and exclusive jurisdiction over the same is
determined by the material allegations of the complaint ...
irrespective of whether the plaintiffs are entitled to some or
all of the claims asserted therein ... Nor does the jurisdiction
of the court depend upon the answer of the defendant or
agreement of the parties, or to the waiver or acquiescence of
the parties.
The settled rule is that jurisdiction is based on the
allegations in the initiatory pleading and the defenses in the
answer are deemed irrelevant and immaterial in its
determination.
2. Because jurisdiction is determined by the allegations of
the complaint and is not affected by the pleas or theories set
up by the defendant in his motion to dismiss or answer, the
Municipal Trial Court does not lose its jurisdiction over an
ejectment case by the mere allegation that the defendant
asserts ownership over the litigated property.
3. The jurisdiction of the court or tribunal over the nature of
the action cannot be made to depend upon the defenses set
up in the court or upon a motion to dismiss, for otherwise,
the question of jurisdiction would depend almost entirely on
defendant
4. However, while the Municipal Trial Court does not lose its
jurisdiction over an ejectment case by the simple expedient
of a party raising as a defense therein the alleged existence
of a tenancy relationship between the parties, yet if after
hearing, tenancy had in fact been shown to be the real issue,
the court should dismiss the case for lack of jurisdiction.
5. The jurisdiction of the court or tribunal over the nature of
the action cannot be made to depend upon the defenses set
up in the court or upon a motion to dismiss, for otherwise,
Page38
the question of jurisdiction would depend almost entirely on
defendant.
6. Because the allegations of the complaint are
determinative of jurisdiction, jurisdiction does not depend on
the amount ultimately substantiated in the course of the trial
or proceedings. Where the Regional Trial Court rendered a
judgment involving a lesser amount than that alleged, this
fact did not divest the court of its jurisdiction.
7. It is an established principle that jurisdiction is
determined by the cause of action alleged in the complaint
and not by the amount substantiated and awarded (Dionisio
vs. Sison Puerto, 60 SCRA 471). Thus, where a complaint
seeking for the payment of Pl million is filed in the Regional
Trial Court, but after considering the evidences presented,
the amount owing to the plaintiff is only P300 thousand, an
amount within the jurisdiction of the Municipal Trial Court if
originally filed in it, the Regional Trial Court has authority to
render judgment on the lesser amount.
- The above rule does not apply in the reverse. Where a
complaint for the recovery of a loan of P300 thousand is filed
in the Municipal Trial Court, but after consideration of the
evidences, it is shown that the amount recoverable is Pl
million, an amount within the jurisdiction of the Regional
Trial Court, the Municipal Trial Court cannot render
judgment for Pl million for want of jurisdiction.
O. Applicability to criminal actions
1. The above rule has an affinity to the rule in the
prosecution of criminal actions. In order to determine the
jurisdiction of the court in criminal cases, the complaint or
information must be examined for the purpose of
ascertaining whether or not the facts set out therein and the
punishment provided for by law for such acts fall within the
jurisdiction of the court in which the criminal action is filed.
If the facts set out in the complaint are sufficient to show
that the court has jurisdiction, then that court indeed has
jurisdiction.
2. It is jurisprudentially settled that the jurisdiction of the
court over a criminal case is determined by the allegations of
the complaint or information in relation to the law prevailing
at the time of the filing of the criminal complaint or
information, and the penalty provided by law for the crime
charged at the time of its commission.
3. In criminal cases, where there is a variance between the
offense charged in the complaint or information, and that
proved, and the offense as charged is included in or
necessarily includes the offense proved, the accused shall be
convicted of the offense proved, which is included in the
offense charged, or of the offense charged which is included
in the offense proved (Sec. 4, Rule 120, Rules of Court).
Hence, if an accused is charged with attempted homicide but
the offense proved is merely slight physical injuries, he may
be convicted of the latter offense which is necessarily
included in the offense charged.
P. Exception to the rule that jurisdiction is determined by
the allegations of the complaint
1. The rule holds that what determines the nature of the
action and the court that has jurisdiction over the case are
the allegations in the complaint. Hence, in determining
whether or not it has jurisdiction over the complaint before
it, the court, as a rule, need not look beyond the allegations
of the complaint. The nature of the cause of action and
consequently the jurisdiction of the court cannot be made to
depend upon the defenses set up in the answer or pleadings
filed by the defendant. This is the general rule which
however, has not been applied with rigidity in ejectment
cases in which the defendant averred the defense of the
existence of a tenancy relationship between the parties.
2. In Ignacio vs. CFI of Bulacan, it was held "that while the
allegations in the complaint make out a case for forcible
entry, where tenancy is averred by way of defense and is
proved to be the real issue, the case should be dismissed for
lack of jurisdiction as the case should properly be filed with
the then Court ofAgrarian Relations (now DARAB). In Ignacio
and other ejectment cases, where tenancy was the defense,
the court went beyond the allegations of the complaint in
determining jurisdiction in resolving a motion to dismiss
based on lack of jurisdiction over the subject matter and
required the presentation of evidence to prove or disprove
the defense of tenancy. After finding the real issue to be
tenancy, the cases were dismissed for lack of jurisdiction.
3. It must be borne in mind however, that the Municipal Trial
Court does not automatically lose its jurisdiction over
ejectment cases by the mere allegation of the defense of
tenancy relationship between the parties. There must first
be a reception of evidence and, if after hearing, tenancy had
in fact been shown to be the real issue, the court should
dismiss the case for lack of jurisdiction. The rule still is that
jurisdiction of the court is determined by the allegations of
the complaint.
Q. Doctrine of primary jurisdiction
1. Under the doctrine of primary jurisdiction, courts will not
resolve a controversy involving a question which is within the
jurisdiction of an administrative tribunal, especially where
the question demands the exercise of sound administrative
discretion requiring the special knowledge, experience and
services of the administrative tribunal to determine technical
and intricate matters of fact.
The practice is to refer specialized disputes to
administrative agencies of specialized competence and the
courts will not determine a controversy prior to the
resolution of the question by the administrative tribunal
because the Court accords great respect to the findings of
administrative agencies since they have acquired expertise in
their jurisdiction and it will refrain from questioning their
findings, particularly when these are affirmed by the
appellate tribunal.
2. The objective of the doctrine of primary jurisdiction is to
guide a court in determining whether it should refrain from
exercising its jurisdiction until after an administrative agency
has determined some question or some aspect of some
question arising in the proceeding before the court. The
court cannot or will not determine a controversy involving a
question which is within the jurisdiction of the administrative
tribunal prior to resolving the same, where the question
demands the exercise of sound administrative discretion
requiring special knowledge, experience and services in
determining technical and intricate matters of fact.
Page39
3. Examples: (a) The Supreme Court recognized that the
MWSS was in the best position to evaluate and decide which
bid for a waterworks project was compatible with its
development plan.
(b) The Civil Service Commission is better equipped in
handling cases involving the employment status of employees
as it is within its field of expertise.
(c) The court upheld the primary jurisdiction of the
Department ofAgrarian Reform Adjudicatory Board (DARAB)
in an agrarian dispute over the payment of back rentals
under a leasehold contract. The Department of Agrarian
Reform (DAR) is vested with primary jurisdiction to
determine and adjudicate agrarian reform matters, with
exclusive original jurisdiction over all matters involving the
implementation of agrarian reform except those falling under
the exclusive jurisdiction of the Department of Agriculture
and the Department of Environment and Natural Resources.
R. Doctrine of continuity of jurisdiction (adherence of
jurisdiction)
1. Jurisdiction is referred to as "continuing" in view of the
general principle that once a court has acquired jurisdiction,
that jurisdiction continues until the court has done all that it
can do in the exercise of that jurisdiction (20Am Jur 2d,
Courts 147). This principle also means that once jurisdiction
has attached, it cannot be ousted by subsequent happenings
or events, although of a character which would have
prevented jurisdiction from attaching in the first instance.
The court, once jurisdiction has been acquired, retains that
jurisdiction until it finally disposes of the case.
2. As a consequence of this principle, jurisdiction is not
affected by a new law placing a proceeding under the
jurisdiction of another tribunal except when otherwise
provided in the statute or if the statute is clearly intended to
apply to actions pending even before its enactment.
3. In an action for ejectment, if the defendant voluntarily
surrenders the premises subject of the action to the plaintiff,
the surrender of the property does not divest the court of
jurisdiction.
4. If the court has jurisdiction to act on a motion at the time
it was filed, that jurisdiction to resolve the motion continues
until the matter is resolved and is not lost by the subsequent
filing of a notice of appeal.
5. The trial court did not lose jurisdiction over the case
involving a public official by the mere fact that said official
ceased to be in office during the pendency of the case. Also,
the jurisdiction that the court had at the time of the filing of
the complaint is not lost by the mere fact that the
respondent judge ceased to be in office during the pendency
of the case.
6. Even the finality of the judgment does not totally deprive
the court of jurisdiction over the case. What the court loses
is the power to amend, modify or alter the judgment. Even
after the judgment has become final, the court retains
jurisdiction to enforce and execute it.
S. Law which governs jurisdiction
- Jurisdiction being a matter of substantive law, the
established rule is that the statute in force at the time of the
commencement of the action determines the jurisdiction of
the court.
T. Objections to jurisdiction over the subject matter
1. The court may on its own initiative object to an erroneous
jurisdiction and may ex mero motu take cognizance of lack of
jurisdiction at any point in the case and has a clearly
recognized right to determine its own jurisdiction.
"When it appears from the pleadings or evidence on record
that the court has no jurisdiction over the subject matter, . .
. the court shall dismiss the same" (Sec. 1, Rule 9, Rules of
Court).
2. The earliest opportunity of a party to raise the issue of
jurisdiction is in a motion to dismiss filed before the filing or
service of an answer. Lack of jurisdiction over the subject
matter is a ground for a motion to dismiss (Sec. 1(b], Rule
16, Rules of Court). If no motion to dismiss is filed, the
defense of lack of jurisdiction may be raised as an
affirmative defense in the answer (Sec. 6, Rule 16, Rules of
Court).
3. Under the omnibus motion rule, a motion attacking a
pleading like a motion to dismiss, shall include all grounds
then available, and all objections not so included shall be
deemed waived (Sec. 8, Rule 15, Rules of Court). The
defense of lack of jurisdiction over the subject matter is
however, a defense not barred by the failure to invoke the
same in a motion to dismiss already filed. Even if a motion to
dismiss was filed and the issue of jurisdiction was not raised
therein, a party may, when he files an answer, raise the lack
of jurisdiction as an affirmative defense because this defense
is not barred under the omnibus motion rule.
4. Thus, the prevailing rule is that jurisdiction over the
subject matter may be raised at any stage of the
proceedings, even for the first time on appeal.
5. When the court dismisses the complaint for lack of
jurisdiction over the subject matter, it is common reason
that the court cannot remand the case to another court with
the proper jurisdiction. Its only power is to dismiss and not to
make any other order.
Illustration (Bar 2004)
Plaintiff filed a complaint for a sum of money
against defendant with the McTC-Makati, the total amount of
the demand exclusive of interest, damages of whatever kind,
attorney's fees, litigation expenses, and costs, being
P1,000,000.00. In due time, defendant filed a motion to
dismiss the complaint on the ground of the McTC's lack of
jurisdiction over the subject matter. After due hearing, the
McTC (1) ruled that the court lacked jurisdiction over the
subject matter of the complaint; and (2) ordered that the
case therefore, should be forwarded to the proper Regional
Trial Court immediately.
Was the court's ruling concerning jurisdiction
correct? Explain briefly.
Suggested answer:
The ruling concerning jurisdiction was correct. The
amount falls within the jurisdiction of the RTC. The
Page40
jurisdictional amount of the McTC should not exceed P400,
000.00 (Sec. 33, BP 129; R.A. 7691). However, its order to
forward the case to the RTC is erroneous. The proper order is
to dismiss the case.
U. Effect of estoppel on objections to jurisdiction
1. While it is true that jurisdiction over the subject matter
may be raised at any stage of the proceedings since it is
conferred by law, it is nevertheless settled that a party may
be barred from raising it on the ground of estoppel
2. The doctrine of estoppel by lathes in relation to objections
to jurisdiction first appeared in the landmark case of Tijam
vs. Sibonghanoy. Here, the Supreme Court barred a belated
objection to jurisdiction that was raised only after an
adverse decision was rendered by the court against the party
raising the issue of jurisdiction and after seeking affirmative
relief from the court and after participating in all stages of
the proceedings. The doctrine of estoppel by lathes said the
Supreme Court in Tijam is "based upon grounds of public
policy * * * and is principally a question of the inequity or
unfairness of permitting a right or claim to be enforced or
asserted."
3. The fact pattern common among those cases wherein the
Court invoked estoppel to prevent a party from questioning
jurisdiction is a party's active participation in all stages of a
case, including invoking the authority of the court in seeking
affirmative relief and questioning the court's jurisdiction only
after receiving a ruling or decision adverse to his case for the
purpose of annulling everything done in. the trial in which he
has actively participated. As clearly pointed out in Lao: "A
party who has invoked the jurisdiction of the court over a
particular matter to secure affirmative relief cannot be
permitted to afterwards deny that same jurisdiction to
escape liability."
4. The Supreme Court frowns upon the undesirable practice
of submitting one's case for decision, and then accepting the
judgment only if favorable, but attacking it for lack of
jurisdiction if it is not.
5. The active participation of a party in a case is tantamount
to recognition of that court's jurisdiction and will bar a party
from impugning the court's jurisdiction. Jurisprudence
however, did not intend this statement to lay down the
general rule.
V. `Tijam" ruling, an exception rather than the rule
1. The ruling in Sibonghanoy on the matter of jurisdiction is
however, the exception rather than the rule as subsequently
confirmed in Calimlim vs. Ramirez and Pangilinan vs. Court
ofAppeals. Estoppel by lathes may be invoked to bar the
issue of jurisdiction only in cases in which the factual milieu
is analogous to that of Sibonghanoy.
2. In Sibonghanoy, the defense of lack of jurisdiction ,vas
raised for the first time in a motion to dismiss filed by the
Surety almost fifteen (15) years after the questioned ruling
had been rendered. At several stages of the proceedings, in
the court a quo as well as in the Court of Appeals, the Surety
invoked the jurisdiction of the said courts to obtain
affirmative relief and submitted its case for final
adjudication on the merits. It was only when the adverse
decision was rendered by the Court of Appeals that it finally
woke up to raise the question of jurisdiction.
- Laches should have been raised so belatedly so as to give
rise to the presumption that the party entitled to assert it
had abandoned or declined to assert it. Sibonghanoy applies
only to exceptional circumstances. The general rule remains:
a court's lack of jurisdiction may be raised at any stage of the
proceedings even on appeal.
3. To reiterate: "The contention that the defense of lack of
jurisdiction may be waived by estoppel through active
participation in the trial is not the general rule but an
exception, best characterized by the circumstances in Tijam
vs. Sibonghanoy."
W. Jurisdiction over the parties
1. The manner by which the court acquires jurisdiction over
the parties depends on whether the party is the plaintiff or
the defendant.
2. Jurisdiction over the plaintiff is acquired by his filing of
the complaint or petition. By doing so, he submits himself to
the jurisdiction of the court.
Illustration (Bar 1981)
"A," a resident of Melbourne, Australia, presented a
complaint against "B," a resident of Manila, before the Court
of First Instance (RTC) of Manila for accounting and damages.
"A"never came to the Philippines to file the suit and is only
represented in this case by counsel. "B" files a motion to
dismiss the complaint on the ground that the Court acquired
no jurisdiction over the person of "A."
Should the case be dismissed on this ground and
why?
Suggested answer:
The suit should not be dismissed on the ground
invoked by "B."Jurisdiction over the plaintiff is not acquired
by his personal appearance in court. Jurisdiction over the
plaintiff is acquired by his filing of the complaint in court. By
filing a complaint even through his counsel, "A" voluntarily
submitted himself to the jurisdiction of the court.
3. Jurisdiction over the person of the defendant is obtained
either by a valid service of summons upon him or by his
voluntary submission to the court's authority
4. The mode of acquisition of jurisdiction over the plaintiff
and the defendant applies to both ordinary and special civil
actions like mandamus or unlawful detainer cases (Bar 1994).
Illustration (Bar 2005)
A obtained a money judgment against B. After the
finality of the decision, the court issued a writ of execution
for the enforcement thereof. Conformably with the said writ,
the sheriff levied upon certain properties under B's name. C
filed a third-party claim over said properties claiming that B
had already transferred the same to him.
A moved to deny the third-party claim and to hold B
and C jointly and severally liable to him for the money
Page41
judgment alleging that B had transferred said properties to C
to defraud him (A).
 After due hearing, the court denied the third-party
claim and rendered an amended decision declaring B and C
jointly and severally liable to A for the money judgment.
Is the ruling of the court correct? Explain.
Suggested answer.
The ruling of the court is not correct. To be valid, a
judgment must be rendered against a person over whom the
court has jurisdiction. The court has no jurisdiction over the
person of C who was not impleaded in the action. He was not
summoned to the suit and thus, was never a party to the
proceedings. The third-party claim of C is a claim filed during
the execution stage of a judgment that is already final and
executory.
Illustration (Bar 1994)
How is jurisdiction acquired by a court over the
person of:
(a) the plaintiff in a special civil action for mandamus?
(b) the defendant in an action for unlawful detainer?
(c) a non-resident defendant who is not found in the
Philippines, in an action for compulsory acknowledgment
of his natural child?
Suggested answer:
(a) Jurisdiction over the person of the plaintiff in a special
civil action for mandamus is acquired when the action is
commenced by the filing of the complaint (Sec. 5, Rule 1,
Rules of Court). This presupposes payment of the docket
fees.
(b) Jurisdiction over the defendant is acquired by his
voluntary appearance or by a valid service of summons (Sec.
6, 20, Rule 124, Rules of Court).
(c) Jurisdiction cannot be acquired over the person of the
defendant. The action being in personam, jurisdiction can be
acquired over the defendant by service in person upon him
within the country. Since he is outside the jurisdiction of the
court, service in person cannot be done.
X. When jurisdiction over the person of the defendant is
required
1. Jurisdiction over the person of the defendant is required
only in an action in personam. Jurisdiction over the person of
the defendant is not a prerequisite in an action in rem and
quasi in rem
2. A later ruling holds: In an action in personam, jurisdiction
over the person is necessary for the court to validly try and
decide the case, while in a proceeding in rem or quasi inrem,
jurisdiction over the person of the defendant is not a
prerequisite to confer jurisdiction on the court provided the
latter has jurisdiction over the res.
Y. Voluntary appearance of the defendant
1. The court may acquire jurisdiction over the person of the
defendant without service of summons or despite a defective
service of summons. This occurs when the defendant
voluntarily appears in the action. "The defendant's voluntary
appearance in the action shall be equivalent to service of
summons" (Sec. 20, Rule 14, Rules of Court).
2. To constitute voluntary appearance, it must be the kind
that amounts to a voluntary submission to the jurisdiction of
the court. Submission to the court's jurisdiction takes the
form of an appearance that seeks affirmative relief except
when the relief sought is for the purpose of objecting to the
jurisdiction of the court over the person of the defendant.
3. Examples: (a) when the defendant files the necessary
pleading; (b) when the defendant files a motion for
reconsideration of the judgment by default; (c) when the
defendant files a petition to set aside the judgment of
default; (d) when the parties jointly submit a compromise
agreement for approval of the court; (e) when the defendant
files an answer to the contempt charge; or (f) when the
defendant files a petition for certiorari without questioning
the court's jurisdiction over his person.
4. As a rule, an appearance in whatever form without
expressly objecting to the jurisdiction of the court over the
person, is a submission to the jurisdiction of the court.
Hence, the filing of an answer per se should not be treated
automatically as a voluntary appearance. When the
appearance is precisely to object to the jurisdiction of the
court over his person, it is not considered an appearance in
court (French Oil Machinery Company vs. Court of Appeals,
295 SCRA 462) and should not be construed as a submission
by the defendant of his person to the jurisdiction of the
court.
Z. Objections to jurisdiction over the person of the
defendant
- An objection to the jurisdiction over the person of the
defendant may be raised as a ground for a motion to dismiss
(Sec. 1[a], Rule 16, Rules of Court). If no motion to dismiss
has been filed, the objection may be pleaded as an
affirmative defense in the answer (Sec. 6, Rule 16, Rules of
Court). However, if a motion to dismiss has been filed, the
objection must be pleaded in the same motion, otherwise it
is deemed waived pursuant to the omnibus motion rule. The
defense of lack of jurisdiction over the person of the
defendant is not one of those defenses which are not deemed
waived if not raised in the motion to dismiss. Only lack of
jurisdiction over the subject matter, litis pendencia, res
judicata and prescription are not waived (Sec. 1, Rule 9,
Rules of Court in relation to Sec. 8, Rule 15, Rules of Court).
Illustration (Bar 1990)
While the trial was ongoing, the lawyer of Mario
Reyes discovered that there was improper service of
summons, the summons having been sent by registered mail.
He filed a motion to dismiss on the ground that the court had
not acquired jurisdiction over the person of Mario Reyes.
Should the said motion be granted? Explain your
answer.
Suggested answer.
The motion should be denied. The defense of lack
of jurisdiction over the person of the defendant should have
been raised either in a motion to dismiss or as an affirmative
defense in the answer. Failure to raise the objection is
waiver thereof (Sec. 1, Rule 9, Rules of Court).
Page42
AA. Effect of pleading additional defenses aside from lack of
jurisdiction over the person of the defendant
1. Under the former procedure, if the defendant raises the
objection of lack of jurisdiction over his person in a motion
to dismiss, the motion must rely only on that particular
ground. If the defendant appears in court, objects to its
jurisdiction over his person and at the same time alleges
other grounds, the appearance would be deemed a general
appearance which was in effect a voluntary submission to the
jurisdiction of the court.
2. The above rule was re-examined in La Naval Drug
Corporation vs. Court ofAppeals. This significant case wisely
held that if a plaintiff may assert two or more causes of
actions, a defendant is also allowed under the Rules of Court
to put up his own defenses alternatively or hypothetically.
The Court stressed that it should not be the invocation of
available additional defenses that should be construed as a
waiver of the defense of lack of jurisdiction over the person
of the defendant, but the failure to raise the defense.
3. The pronouncements in La Naval are now embodied in Sec.
20 of Rule 14 which provides: " * * * The inclusion in a motion
to dismiss of other grounds aside from lack of jurisdiction
over the person of the defendant shall not be deemed a
voluntary appearance."
4. As the rule now stands, the rule allows the raising of
defenses other than lack of jurisdiction over the person of
the defendant without creating an inference of a voluntary
submission to the jurisdiction of the court (Sec. 20, Rule 134,
Rules of Court).
BB. Jurisdiction over the issue
1.> Jurisdiction over the issue - the power of the court to try
and decide issues raised in the pleadings of the parties
2. > issue - a disputed point or question to which parties to
an action have narrowed down their several allegations and
upon which they are desirous of obtaining a decision. Where
there is no disputed point, there is no issue.
CC. How jurisdiction over the issue is conferred and deter-
mined
l. Generally, jurisdiction over the issues is conferred and
determined by the pleadings of the parties. The pleadings
present the issues to be tried and determine whether or not
the issues are of fact or of law. Hence, in order to determine
whether or not a court has jurisdiction over the issue or
issues of the case, one must examine the pleadings. Whether
or not a court has jurisdiction over a specific issue is a
question that requires nothing but an examination of the
pleadings.
2. Jurisdiction over the issues may also be determined and
conferred by stipulation of the parties as when in the pre-
trial, the parties enter into stipulations of facts and
documents or enter into an agreement simplifying the issues
of the case (Sec. 2, Rule 18, Rules of Court).
3. Jurisdiction over the issues may also be conferred by
waiver or failure to object to the presentation of evidence on
a matter not raised in the pleadings. Here the parties try
with their express or implied consent issues not raised by the
pleadings. The issues tried shall be treated in all respects as
if they had been raised in the pleadings (Sec. 5, Rule 10,
Rules of Court).
4. With respect to an issue raised by the pleadings, an issue
arises because the material allegations of a claiming party
are specifically denied by the defending party. Thus, where
the defendant admits all the material allegations of fact of
the claiming party, there is no controverted issue between
the parties. Under Rule 34, where an answer fails to tender
an issue, or otherwise admits the material allegations of the
adverse party's pleading, a judgment on the pleadings may be
rendered by the court upon a motion properly filed.
CC. Distinction between a question of law and a question of
fact (Bar 2004)
1. The issue in a case may be either one of law or one of
fact.
2. There is a question of law when the doubt or difference
arises as to what the law is on a certain set of facts. There is
a question of fact when the doubt or difference arises as to
the truth or falsehood of the alleged facts
- To illustrate: Where the question is whether or not the
debtor has paid the debt, the issue is one of fact. Where the
question is whether or not the manner of payment is of the
type which produces the legal effect of extinguishing the
obligation, the issue becomes one of law. Also, when under
the set of facts the issue is whether or not the law on double
sales applies, there is a question of law.
3. For a question to be one of law, the same must not involve
an examination of the probative value of the evidence
presented by the litigants or any of them. The resolution of
the issue must rest solely on what the law provides on the
given set of circumstances. Once it is clear that the issue
invites a review of the evidence presented, the question
posed is one of fact. Thus, the test of whether a question is
one of law or of fact is not the appellation given to such
question by the party raising the same; rather, it is whether
the appellate court can determine the issue raised without
reviewing or evaluating the evidence, in which case, it is a
question of law; otherwise it is a question of fact.
4. Where the threshold issue is whether certain paragraphs in
an agreement are void for being contrary to law or public
policy, certainly, it is obvious that the issue is a question of
law.
DD. When an issue arises even if not raised in the pleadings
1. While it is a rule that an issue arises from the pleadings of
the parties, an issue may arise in the case without it having
been raised in the pleadings. This occurs when the parties try
an issue with their consent. Under Sec. 5 of Rule 10, when
issues not raised in the pleadings are tried with the express
or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings.
Under Sec. 5 of Rule 10, upon motion of any party, the
pleadings may be amended to conform to the evidence but
the failure to so amend does not affect the result of the trial
of these issues because the pleadings are deemed impliedly
Page43
amended to embody the issues tried with the consent of the
parties.
2. The consent of the parties may be inferred from the
failure to interpose an objection to the presentation of
evidence on a matter not alleged in the pleadings. Thus,
where the issue as determined in the complaint and answer is
one of ownership, any evidence showing possession must be
objected to, possession not being an issue raised in the
pleadings of the parties. However, if the evidence is not
objected to seasonably, the matter of possession will be
deemed to have been raised by the parties in their pleadings
and the evidence becomes admissible.
3. If the complaint does not allege a claim for salary
differential, but no objection was interposed on the evidence
presented to prove the claim for salary differential, the
Labor Arbiter correctly considered the evidence.
4. If in a complaint for a sum of money filed before the
Regional Trial Court, plaintiff did not allege the making of a
demand for payment before commencing suit but during the
trial, plaintiff duly offered in evidence a letter of demand for
the purpose of proving the making of an extrajudicial
demand on the defendant, and the letter was admitted in
evidence without objection of the defendant, it is as if the
matter of demand was raised in the pleadings. The court
committed no procedural error in admitting the letter of
demand in evidence. Consider the following bar problem.
Illustration (Bar 2004, No. 1)
In a complaint for a sum of money filed before the
MM Regional Trial Court, plaintiff did not mention or even
just hint at any demand for payment made on defendant
before commencing suit. During the trial, plaintiff duly
offered Exh. "A" in evidence for the stated purpose of proving
the making of extrajudicial demand on defendant to pay
P500,000, the subject of the suit. Exh. "A" was a letter of
demand for defendant to pay said sum of money within 10
days from receipt, addressed to and served on defendant
some two months before suit was begun. Without objection
from defendant, the court admitted Exh. "A" in evidence.
Was the court's admission of Exh. "A" in evidence
erroneous or not?
Suggested answer.
The admission of Exh. "A"was not erroneous. Under
Sec. 5 of Rule 10, when issues not raised in the pleadings are
tried with the express or implied consent of the parties, they
shall be treated in all respects as if they had been raised in
the pleadings.
When Exh. "A" was offered in evidence without
objection from the defendant, it is as if the matter of
demand was raised by the parties in their pleadings. The
pleadings may be amended to conform to the evidence but
the failure to so amend does not affect the result of the trial
of these issues because the pleadings are deemed impliedly
amended to embody the issues tried with the consent of the
parties (Sec. 5, Rule 10, Rules of Court).
Illustration (Bar 2004)
During the trial, plaintiff was able to present,
without objection on the part of the defendant in an
ejectment case, evidence showing that the plaintiff served
on defendant a written demand to vacate the subject
property before the commencement of the suit, a matter not
alleged or otherwise set forth in the pleadings on file.
May the corresponding pleading still be amended to
conform to the evidence? Explain.
Suggested answer.
The pleading may be amended to conform to the
evidence. Even if the making of the written demand was not
alleged in the pleading, it is as if it was raised in the
pleadings of the parties because it was presented in evidence
without objection from the adverse party (Sec. ,5, Rule 10,
Rules of Court).
EE. Jurisdiction of Municipal Trial Courts, Metropolitan Trial
Courts and Municipal Circuit Trial Courts
(Under B.P. 129 as amended by R.A. 7691)
(1) Explanatory note
1. R.A. 7691, which took effect on April 15, 1994
(Administrative Circular 09-94, June 14, 1994),
amended the jurisdictional provisions of BP 129 and in
effect has expanded the jurisdiction of the
Metropolitan Trial Courts, Municipal Trial Courts, and
the Municipal Circuit Trial Courts. The succeeding
paragraphs treat of the jurisdiction of said courts
which shall be referred to under the generic acronym,
"MTC."
2. When R.A. 7691 took effect on April 15, 1994, the
jurisdictional amount of the MTC was one not
exceeding P100,000.00 outside Metro Manila and not
exceeding P200,000.00 in Metro Manila. However, Sec.
5 of R.A. 7691 provided that five (5) years from the
effectivity of R.A. 7691 the amount of P100,000.00 for
courts outside Metro Manila shall be adjusted to
P200,000.00 and the amount of P200,000.00 for Metro
Manila shall be adjusted to P400,000.00. The
corresponding adjustments took effect on April 15,
1999. It further provided that the amount of
P200,000.00 shall be further adjusted to P300,000 five
(5) years after its adjustment from P100,000.00 to
P200,000.00. Since April 15, 2004 therefore, the
jurisdictional amount of an MTC outside Metro Manila
is one not exceeding P300,000.00. That of the
Metropolitan Trial Court remains constant at an
amount not exceeding P400,000.00.
(2) Actions for forcible entry and unlawful detainer
1. The MTC has exclusive original jurisdiction over
forcible entry and unlawful detainer cases. These are
both ejectment cases (Sec. 3, R.A. 7691).
2. All ejectment cases are within the jurisdiction of
the MTC regardless of whether said cases involve
questions of ownership or if the issue of possession
cannot be determined without resolving the question
of ownership. Judgment of the inferior court,
however, on the question of ownership is of a
provisional nature and shall be for the sole purpose of
determining the issue of possession.
- If the defendant raises the question of ownership
and the issue of possession cannot be resolved without
Page44
deciding the question of ownership, the issue of
ownership shall be resolved only to determine the
issue of possession (Sec. 3, R.A. 7691).

- An adjudication made in an ejectment proceeding
regarding the issue of ownership should be regarded
merely as provisional and, therefore, would not bar or
prejudice an action between the same parties
involving title to the land. The foregoing doctrine is a
necessary consequence of the nature of forcible entry
and unlawful detainer cases where the only issue to
be settled is the physical or material possession over
the real property, that is, possession de facto and not
possession de jure.
(3) Real actions other than forcible entry and unlawful
detainer
1. The MTC also has exclusive original jurisdiction over
civil actions involving title to or possession of real
property, or any interest therein, where the assessed
value does not exceed P20,000 (outside Metro Manila)
or P50,000 (Metro Manila). In cases of land not
declared for taxation purposes, the value of such
property shall be determined by the assessed value of
the adjacent lots (Sec. 3, R.A. 7691; Sec. 33, BP 129).
2. The jurisdiction of the court under R.A. 7691, over
an action involving title to or possession of land is now
determined by the assessed value of the said property
and not the market value thereof. The assessed value
of real property is the fair market value of the real
property multiplied by the assessment level. It is
synonymous to taxable value. The fair market value is
the price at which a property may be sold by a seller,
who is not compelled to sell, and bought by a buyer,
who is not compelled to buy. This rule excludes the
real actions of forcible entry and unlawful detainer
cases which are within the exclusively original
jurisdiction regardless of the assessed value of the
property involved.
- The real actions for example, of action
reivindicatoria and action publiciana used to be under
the jurisdiction of the Regional Trial Court.
Jurisdiction over these actions under R.A. 7691 is now
determined by the assessed value of the property and
depending on such value may not be filed in the
Regional Trial Court but in the Municipal Trial Court.
3. An action reivindicatoria is a suit which has for its
object the recovery of possession over the real
property as owner. It involves recovery of ownership
and possession based on the said ownership. On the
other hand, an action publiciana is one for the
recovery of possession of the right to possess. It is also
referred to as an ejectment suit filed after the
expiration of one year after the occurrence of the
cause of action or from the unlawful withholding of
possession of the realty.
- The determining jurisdictional element for the
action reivindicatoria, for instance is, as RA 7691
discloses, the assessed value of the property in
question. For properties in the provinces, the RTC has
jurisdiction if the assessed value exceeds P20,000,
and the MTC, if the value is P20,000 or below. An
assessed value can have reference only to the tax rolls
in the municipality where the property is located, and
is contained in the tax declaration. It is elementary
that the tax declaration indicating the assessed value
of the property enjoys the presumption of regularity
as it has been issued by the proper government
agency.
4. Where the ultimate objective of the plaintiffs, is to
obtain title to real property, it should be filed in the
proper court having jurisdiction over the assessed
value of the property subject thereof.
(4) Demand not exceeding P300,000.00 or P400,000.00
- The MTC exercises exclusive original jurisdiction over civil
actions where the demand does not exceed P300,000 (outside
Metro Manila) or not more than P400,000 (Metro Manila) (Sec.
1, R.A. 7691; Sec. 33, BP 129).
(4) Actions involving personal property
- The MTC has exclusive original jurisdiction over actions
involving personal property valued at not more than P300,000
(outside Metro Manila), or not more than P400,000 (Metro
Manila) (Sec. 19, BP 129, Sec. 3, R.A. 7691).
(5) Admiralty and maritime cases
- These cases were traditionally under the jurisdiction of the
Regional Trial Court but may be under the jurisdiction of the
Municipal Trial Court under R.A. 7691 where the demand or
claim does not exceed P300,000 (outside Metro Manila), or
does not exceed P400,000 (Metro Manila) (Sec. 1, R.A. 7691).
(6) Probate proceedings; provisional remedies
1. Exclusive original jurisdiction over probate proceedings,
testate and intestate, where the gross value of the estate
does not exceed P300,000 (outside Metro Manila) or,
P400,000 (Metro Manila) (Sec. 3, R.A. 7691; Sec. 33, BP 129).
- A petition for probate of a will involving an estate valued at
P200,000 falls under the jurisdiction of the MTC (Bar 1997,
No. 1[e]).
2. The MTC has exclusive original jurisdiction to grant or
deny provisional remedies in cases where the principal action
is within its jurisdiction.
(7) Delegated jurisdiction
- The MTC also exercises delegated jurisdiction over
cadastral and land registration cases covering lots were there
is no controversy or opposition, or contested lots the value of
which does not exceed P100,000, as may be delegated by the
Supreme Court (Sec. 34, BP 129; Sec. 4, R.A. 7691).
a. The value of the lot shall be ascertained by the affidavit
of the claimant or by agreement of the respective
claimants if there are more than one, or from the
corresponding tax declaration of the real property (Sec.
34, BP 129 as amended by R.A. 7691).
b. The decisions of these courts shall be appealable in the
same manner as the decisions of the Regional Trial Courts.
Hence, the MTC acting under its delegated jurisdiction is
acting as a Regional Trial Court. The decision of the MTC
Page45
therefore, shall be appealable to the Court of Appeals
(Sec. 34, BP 129; Sec. 4, R.A. 7691).
(8) Special jurisdiction
- The MTC has also been conferred by law a special
jurisdiction over petitions for habeas corpus in the absence
of all the Regional Trial Court judges in the province or city
(Sec. 35, BP 129).
(9) Cases subject to summary procedure (Bar 2004; 1995;
1993;1991;1989;1988)
- The civil cases subject to summary procedure are:
(a) Forcible entry and unlawful detainer cases (Bar 1995);
and (b) all other claims where the total claim does not
exceed P100,000 (outside Metro Manila), or does not
exceed P200,000 (Metro Manila), exclusive of interests and
costs. Probate proceedings are not covered by the rule on
summary procedure even if the gross value of the estate
does not exceed P100,000 or P200,000 (1991 Revised Rules
on Summary Procedure).
- Certain basic principles need be remembered in civil cases
subject to a summary procedure:
(a) Not all pleadings in an ordinary civil action are allowed
in a summary procedure. The only pleadings allowed are:
(a) complaint, (b) compulsory counterclaim, (c) cross-
claims pleaded in the answer, (d) answers to these
pleadings (Sec. 3, Rules on Summary Procedure).
(b) The court in a summary procedure may dismiss the case
outright on any of the grounds for the dismissal of a civil
action (Sec. 4, Rules on Summary Procedure).
(c) Should the defendant fail to answer the complaint
within the period of ten (10) days from service of
summons, the court may, motu proprio, or on motion of
the plaintiff, render judgment (not an order declaring the
defendant in default) as may be warranted by the facts
alleged and limited to what is prayed for (Sec. 6, Rules on
Summary Procedure).
(d) There shall be a preliminary conference held but there
shall be no trial. Instead the parties shall submit affidavits
and position papers (Sees. 7, 8, 9, Rules on Summary
Procedure).
(e) Within thirty (30) days from the receipt of the last
affidavits and position papers, or the expiration of the
period for filing the same, the court shall render judgment
(Sec. 10, Rules on Summary Procedure).
(f) As a rule a motion to dismiss is not allowed except on
either of two grounds (i) lack of jurisdiction over the
subject matter, or (ii) failure to comply with the barangay
conciliation proceedings (Sec. 19[a], Rules on Summary
Procedure).
(g) Under Sec. 19 of the Rules on Summary Procedure, the
following pleadings and motions are prohibited in a
summary procedure (Bar 2004):
1. Motion to dismiss except upon the two grounds
mentioned;
2. Motion or new trial, or a motion for reconsideration of
a judgment, or a motion for reopening of trial;
3. Petition for relief from judgment;
4. Motion for extension of time to file pleadings,
affidavits and other papers;
5. Memoranda;
6. Petition for certiorari, and mandamus or prohibition
against an interlocutory order of the court;
7. Motion to declare the defendant in default;
8. Dilatory motions for postponement;
9. Reply;
10. Third-party complaints;
11. Interventions.
(h) Although a petition for certiorari is prohibited in cases
subject to summary procedure, the Court in one case
allowed the petition because the trial court gravely abused
its discretion by indefinitely suspending the proceedings in
ejectment cases thus, acting contrary to the purposes of
the Rules on Summary Procedure. The Supreme Court
recognized that because the order of the trial court cannot
be appealed from it being interlocutory and since the
proceedings are covered by the Rules on Summary
Procedure, a `procedural void' exists. Invoking its power to
suspend the rules to promote substantial justice, the
Supreme Court gave due course to the petition pro hac
vice because of the extraordinary circumstances of the
case. The Court observed that allowing the petition would
avoid the mischiefs sought to be curbed by the Rules and
would give spirit and life to the Rules on Summary
Procedure.
(10) Determination of jurisdictional amount
1. Prior to R.A. 7691, only interest and costs were
excluded in computing the jurisdictional amount. At
present, under R.A. 7691, the jurisdictional amount
excludes the following: (a) interest, (b) damages of
whatever kind, (c) attorney's fees, (d) litigation expenses
and costs. These matters however, shall be included in
determining the filing fees.
2. The exclusion of the term "damages of whatever kind" in
determining the jurisdictional amount, applies to cases
where the damages are merely incidental to or
consequence of the main cause of action (Administrative
Circular No. 09-94, June 14, 1994).
Illustration (Bar 2004)
Plaintiff filed a complaint for a sum of money
against defendant with the McTC-Makati, the total amount of
the demand exclusive of interest, damages of whatever kind,
attorney's fees, litigation expenses, and costs, being
P1,000,000.00. In due time, defendant filed a motion to
dismiss the complaint on the ground of the METC's lack of
jurisdiction over the subject matter. After due hearing, the
METC (1) ruled that the court lacked jurisdiction over the
subject matter of the complaint x x x ; (2) xxx.
Was the court's ruling concerning jurisdiction
correct? Explain briefly.
Suggested answer.
The ruling concerning jurisdiction was correct. The
amount falls within the jurisdiction of the RTC. The
jurisdictional amount of the McTC should not exceed
P400,000.00 (Sec. 33, BP 129; R.A. 7691).
(11) Totality rule
Page46
- Under this rule, where there are several claims or causes of
actions between the same or different parties, embodied in
the same complaint, the amount of the demand shall be the
totality of the claims in all the causes of action, irrespective
of whether the causes of faction arose out of the same or
different transactions.
(12) Territorial extent of court processes
All processes issued by the Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial Courts, in
cases falling within their jurisdiction, may be served
anywhere in the Philippines without the necessity of
certification by the judge of the Regional Trial Court (Sec.
38[21, BP 129).
(13) Review of judgments of the MTC
- Judgments of the Municipal Trial Courts. Municipal Circuit
Trial Courts and Metropolitan Trial Courts are appealable to
the Regional Trial Courts (Sec. 38[11, BP 129).
(14) Jurisdiction of Regional Trial Courts (Under B.P. 129 as
amended by R.A. 7691)
1. Exclusive original jurisdiction over actions the subject
matter of which is not capable of pecuniary estimation;
2. Exclusive original jurisdiction over actions involving title to
or possession of real property or an interest therein, where
the assessed value of such property exceeds P20,000 (outside
Metro Manila), or exceeds P50,000 (Metro Manila);
3. Exclusive original jurisdiction over civil actions the
demand or claim of which exceeds P300,000 (outside Metro
Manila) or exceeds P400,000 (Metro Manila);
4. Exclusive original jurisdiction over actions in admiralty or
maritime jurisdiction where the demand or claim exceeds
P300,000 (outside Metro Manila) or exceeds P400,000 (Metro
Manila);
5. Exclusive original jurisdiction over matters of probate,
testate or intestate, where the gross value of the estate
exceeds P300,000 (outside Metro Manila), or exceeds
P400,000 (Metro Manila);
6. Exclusive original jurisdiction over actions involving
personal property valued at more than P300,000 (outside
Metro Manila) or more than P400,000 (Metro Manila);
7. Original exclusive jurisdiction over cases not falling within
the jurisdiction of any court, tribunal, person or body
exercising judicial or quasi judicial functions;
8. Concurrent and original jurisdiction with the Supreme
Court in actions affecting ambassadors, other public
ministers and consuls;
9. Concurrent and original jurisdiction with the Supreme
Court and the Court of Appeals in petitions for certiorari,
prohibition and mandamus against lower courts and bodies
and in petitions for quo warranto and habeas corpus;
10. Appellate jurisdiction over cases decided by lower courts
in their respective territorial jurisdictions.
- The decisions of the Regional Trial Court in the exercise of
its appellate jurisdiction shall be appealable by petition for
review to the Court of Appeals (Sec. 23, BP 129).
(15) Jurisdiction over intracorporate controversies
- The Securities Regulation Code (R.A. 8799), Sec. 5.2
provides that the Regional Trial Courts shall exercise original
and exclusive jurisdiction to hear and decide the following
cases:
(a) Cases involving devises or schemes employed by or any
acts, of the board of directors, business associates, its
officers or partnership, amounting to fraud and
misrepresentation which may be detrimental to the
interest of the public and/or of the stockholders, partners,
members of associations or organizations registered with
the Commission.
(b) Controversies arising out of intra-corporate or
partnership relations, between and among stockholders,
members or associates; between any or all of them and the
corporation, partnership or association of which they are
stockholders, members or associates, respectively; and
between such corporation, partnership or association and
the state insofar as it concerns their individual franchise or
right to exist as such entity.
(c) Controversies in the election or appointments of
directors, trustees, officers or managers of such
corporations, partnerships or associations; and
(d) Petitions of corporations, partnerships or associations
to be declared in the state of suspension of payments in
cases where the corporation, partnership or association
possesses sufficient property to cover all its debts but
foresees the impossibility of meeting them when they
respectively fall due or in cases where the corporation,
partnership or association has no sufficient assets to cover
its liabilities, but is under the management of a
Rehabilitation Receiver or Management Committee.
(16) The RTC is a court of general jurisdiction
- Unlike the Municipal Trial Court, which is a court of limited
jurisdiction because it can only take cognizance of cases
expressly provided by law, the Regional Trial Court is a court
of general jurisdiction because all cases, the jurisdiction of
which is not specifically provided by law to be within the
jurisdiction of any other court falls within the jurisdiction of
the Regional Trial Court.
(17) Actions incapable of pecuniary estimation
1. The basic issue in an action incapable of pecuniary
estimation is one other than the recovery of money. In this
kind of action the money claim is merely incidental.
If the action is one primarily for the recovery of money,
the claim is considered capable of pecuniary estimation.
Where the issue in the case is whether or not an assignment
of rights is a nullity, the action is one incapable of pecuniary
estimation.
2. A complaint for expropriation is incapable of pecuniary
estimation.
3. "Examples of actions incapable of pecuniary estimation are
those for specific performance, support, foreclosure of
mortgage, annulment of judgment, also actions questioning
the validity of a mortgage, annulling a deed of sale or
conveyance and to cover the price paid and for rescission
which is a counterpart of specific performance."
4. An action to annul a deed of Declaration of Heirs and for a
partition of land with an assessed value of P5,000.00 is an
action incapable of pecuniary estimation. The partition
aspect is only incidental to the action for annulment.
Page47
Illustration (Bar 2000)
 A brings an action in the Metropolitan Trial Court of
Manila against B for the annulment of an extrajudicial
foreclosure sale of real property with an assessed value of
P50,000 located in Laguna. The complaint alleged
prematurity for the reason that the mortgage was not yet
due. B timely moved to dismiss the case on the ground that
the action should have been brought in the Regional Trial
Court of Laguna. Decide with reasons.
Suggested answer.
The motion to dismiss is meritorious and must be
granted.
An action to annul an extrajudicial foreclosure sale
of real property is an action incapable of pecuniary
estimation. The subject matter is one other than the
recovery of money. It is also one which does not involve the
primary issue of title to, recovery of possession or recovery
of ownership of real property and hence, not a real action
which requires a consideration of the assessed value of the
land. The main issue is whether or not the foreclosure sale is
valid.
An action incapable of pecuniary estimation is one
which falls under the jurisdiction of the Regional Trial Court.
5. An action for partition of a real property located in Taytay
Rizal and with an assessed value of P20,000, the resolution of
which involves the determination of hereditary rights, is an
action incapable of pecuniary estimation and thus, should be
filed in the Regional Trial Court (Bar 2000).
6. An action for specific performance to compel the
defendant to execute a deed of conveyance covering a parcel
of land with an assessed value of P19,000.00 is an action
incapable of pecuniary estimation and is cognizable by the
Regional Trial Court because the main issue is whether or not
there is a right to compel specific performance (Bar 2003).
Note: This answer is subject to an alternative answer which
asserts that where the primary purpose of the action is to
recover or obtain ownership of the real property, the action
is one affecting title to real property and is therefore, a real
action. In a real action, jurisdiction is determined by the
assessed value of the property and hence, because the
assessed value under the facts is P19,000.00 thousand, the
action is within the jurisdiction of the MTC.
7. An action for specific performance is one generally
considered incapable of pecuniary estimation (Russel vs.
Vestil, 304 SCRA 739). The amount of damages that may be
claimed in addition to the prayer for specific performance is
not determinative of jurisdiction. Thus, an action for specific
performance and damages of P200.000.00 is cognizable by
the Regional Trial Court even if the amount of damages
sought to be recovered is within the jurisdiction of the
Municipal Trial Court. Where however, the demand is in the
alternative as in an action to compel the defendant to
deliver the house by completing its construction or to pay the
sum of P644.31, the action is one that is capable of
pecuniary estimation (Cruz vs. Tan, 87 Phil. 627). Thus, an
action for specific performance or in the alternative, for
damages in the amount of P180,000.00 is one capable of
pecuniary estimation. Here, the amount of damages is
determinative of jurisdiction (Bar 1997, No. 1[a]).
8. If as gleaned from the complaint, the principal relief
sought by the complaint is for the court to issue an injunction
against the adverse party and his representatives to
permanently enjoin them from preventing the survey of the
subject land, the complaint is not a possessory action but
one for injunction. As such, the subject matter of litigation is
incapable of pecuniary estimation and properly cognizable
exclusively by the Regional Trial Court under Section 19(1) of
BP Blg. 129, as amended by R.A. 7691.
9. An action for a writ of injunction is within the jurisdiction
of the Regional Trial Court. It is an action incapable of
pecuniary estimation (Bar 1997, No. 1[b]).
10. An action for the replevin of a motorcycle valued at P150
thousand is capable of pecuniary estimation. The basis of
jurisdiction is the value of the personal property sought to be
recovered. The amount of P150 thousand falls within the
jurisdiction of the MTC (Bar 1997, No. 1[e]).
11. An action for interpleader is capable of pecuniary
estimation. If the subject of interpleader is real property
then the jurisdictional amount is determined by the assessed
value of the land. If it be personal property, then the value
of the property.
- Hence, an action for interpleader to determine who
between the defendants is entitled to receive the amount of
P190,000.00 from the plaintiff is within the jurisdiction of
the MTC.
(18) Extent of trial court's jurisdiction when acting as a pro-
bate court
1. A probate court cannot adjudicate or determine title to
properties claimed to be part of the estate and also claimed
by outside parties. All that the court could do is to determine
whether they should car should not be included in the
inventory or list of properties to be administered. For the
purpose of determining whether a certain property should or
should not be included in the inventory, the probate court
may pass upon the title thereto but such determination is not
conclusive and is subject to a final determination in a
separate action.
2. However, if the interested parties are all heirs, or the
parties consent to the assumption of jurisdiction by the
probate court and third parties are not prejudiced or injured
thereby, the probate court may decide questions on
ownership.
(19) Jurisdiction of the Court of Appeals (Under B.P. 129 as
amended by R.A. 7902)
1. Exclusive original jurisdiction in actions for the annulment
of the judgments of the Regional Trial Courts (Sec. 9[21, BP
129).
2. Concurrent and original jurisdiction with the Supreme
Court to issue writs of certiorari, prohibition and mandamus
against the (a) Regional Trial Court, (b) Civil Service
Commission, (c) Central Board ofAssessmentAppeals, (d)
Other Quasi judicial agencies mentioned in Rule 43, and (e)
National Labor Relations Commission. Following the "doctrine
Page48
of hierarchy of courts," the petition must first be filed with
the Court of Appeals.
3. Concurrent and original with the Supreme Court and the
Regional Trial Court to issue writs of certiorari, prohibition
and mandamus against lower courts and bodies and writs of
quo warranto and habeas corpus, whether or not in aid of its
appellate jurisdiction. Previously, the Court of Appeals could
issue these writs only in aid of its appellate jurisdiction, i.e.,
only in connection with a case appealed to it (Sec. 9[11, BP
129).
4. Exclusive appellate jurisdiction by way of ordinary appeal
from the Regional Trial Court and the Family Courts (Sec.
9[31, BP 129).
5. Exclusive appellate jurisdiction by way of petition for
review from the Regional Trial Court rendered by the RTC in
the exercise of its appellate jurisdiction (Rule 43, Rules of
Court, Sec. 9, BP 129).
6. Exclusive appellate jurisdiction by way of petition for
review from the decisions, resolutions orders or awards of
the Civil Service Commission, Central Board
ofAssessmentAppeals and other bodies mentioned in Rule 43
(Sec. 9[31, BP 129) and of the Office of the Ombudsman in
administrative disciplinary cases.
- Note that under R.A. 9282, the judgments and final orders
of the Court of Tax Appeals are no longer appealable by way
of petition for review to the Court of Appeals. Judgments of
the Court of Tax Appeals rendered en band are appealable to
the Supreme Court by way of Rule 45 (Sec. 11, R.A. 9282).
7. Exclusive appellate jurisdiction over decisions of Municipal
Trial Courts in cadastral or land registration cases pursuant
to its delegated jurisdiction (Sec. 34, BP 129 as amended by
R.A. 7691). This is because decisions of Municipal Trial Courts
in these cases are appealable in the same manner as
decisions of Regional Trial Courts (Sec. 34, BP 129).
(19) Power to try and conduct hearings
- Even if the Court ofAppeals is not a trial court, under the
law it has the power to try cases and conduct hearings,
receive evidence and perform any and all acts necessary to
resolve factual issues in cases falling within its original and
appellate jurisdiction, including the power to grant and
conduct new trials or further proceedings (Sec. 9[31, BP 129
as amended by R.A. 7902). The Court of Appeals may pass
upon factual issues as when a petition for certiorari is filed
before it.
(20) Jurisdiction of the Supreme Court
1. Exclusive original jurisdiction in petitions for certiorari,
prohibition and mandamus against the:
(a) Court of Appeals (Judiciary Act of 1948, Sec. 17);
(b) Commission on Elections (Art. IX, Sec. 7, Constitution
of the Philippines);
(c) Commission on Audit (Art. IX, Sec. 7, Constitution of
the Philippines); and
(d) Sandiganbayan (PD 1606 as amended).
- Note: Because the CTA has now the same rank as the CA
by virtue of R.A. 9282, the CTA, it is believed should be
included in this enumeration.
2. Concurrent original jurisdiction with the Court of
Appeals in petitions for certiorari, prohibition and
mandamus against the (Heirs of Hinog vs. Melicor, 455
SCRA 460)
(a) Regional Trial Court (Sec. 9[Z4, BP 129);
(b) Civil Service Commission (R.A. 7902);
(c) Central Board of Assessment Appeals (PD 464; BP
129; R.A. 7002);
(d) National Labor Relations Commission; and
(e) Quasi judicial agencies (BP 129; R.A. 7902).
This jurisdiction is subject to the doctrine of hierarchy
of courts.
3. Concurrent original jurisdiction with the Court of
Appeals and the Regional Trial Court in petitions for
certiorari, prohibition and mandamus against lower courts
and bodies and in petitions for quo warranto and habeas
corpus. This jurisdiction is subject to the doctrine of
hierarchy of courts (Sec. 9[Z1, BP 129; Sec. 21[Z1, BP 129;
Art. VIII, Sec 5, Constitution of the Philippines):
4. Concurrent origintd jurisdiction with the Regional Trial
Court in cases affecting ambassadors, public ministers and
consuls (Sec. 21121, BP 129; Art. VIII, Sec. 5, Constitution
of the Philippines).
5. Appellate jurisdiction by way of petition for review on
certiorari (appeal by certiorari under Rule 45) against the:
(a) Court of Appeals, (b) Sandiganbayan, (c) Regional Trial
Courts on pure questions of law (Sec. 1, Rule 45) and in
cases involving the constitutionality or validity of a law or
treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction,
ordinance or regulation, legality of a tax, impost,
assessment, toll or penalty, jurisdiction of a lower court
(Sec. 5, Art. VIII, Constitution of the Philippines) and (d)
Court of Tax Appeals in its decisions rendered en banc
(R.A. 9282).
Illustration (Bar 2005)
May the aggrieved party file a petition for certiorari
in the Supreme Court under Rule 65 of the 1997 Rules of
Civil Procedure instead of filing a petition for review on
certiorari under Rule 45 for the nullification of a decision
of the Court of Appeals in the exercise of its original or
appellate jurisdiction?
Suggested answer.
A petition for certiorari under Rule 65 is not proper.
In order to nullify a decision of the Court of Appeals, the
remedy is to file a petition for review on certiorari under
Rule 45 which shall raise only pure questions of law (Sec.
1, Rule 45, Rules of Court).
(21) The Supreme Court is not a trier of facts.
- There are important principles worthy of note in relation to
the jurisdiction of the Supreme Court.
1. The Supreme Court is not a trier of facts which means
that passing upon a factual issue is not within the province
of the Supreme Court. The findings of facts of the Court of
Appeals, are not generally reviewable by the Supreme
Page49
Court. Also, factual findings of the trial court, particularly
when affirmed by the Court of Appeals, are generally
binding on this Court.

2. It is not the function of the Supreme Court to determine
the weight of the evidence supporting the assailed
decision. However, factual issues may be delved into and
resolved where the findings and conclusions of the trial
court or the quasi judicial bodies are frontally inconsistent
with the findings of the Court of Appeals.
(22) Exceptions
- While it is a settled rule that the Supreme Court, in the
exercise of its power of review is not a trier of facts,
jurisprudence has, however recognized several exceptions in
which factual issues may be resolved by this Court, namely:
(1) when the findings are grounded entirely on speculation,
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 facts are conflicting;
(6) when in making its findings the CA went beyond the
issues of the case, or its findings are contrary to the
admissions of both the appellant and the appellee;
(7) when the findings are contrary to 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; and
(11) when the Court of Appeals manifestly overlooked
certain relevant facts not disputed by the parties, which,
if properly considered, could justify a different conclusion.
(23) Cases which under the Constitution must be heard en
banc.
- Under the Constitution of the Philippines, the following
cases should be heard by the Supreme Court en banc:
(a) All cases involving the constitutionality of a treaty,
international or executive agreement, or law;
(b) All cases which under the Rules of Court are required to
be heard en banc;
(c) All cases involving the constitutionality, application, or
operation of presidential decrees, proclamations, orders,
instructions, ordinances, and other regulations (Art. VIII, Sec.
4[21, Constitution of the Philippines);
(d) Cases heard by a division when the required majority in
the division is not obtained;
(e) Cases involving a modification or reversal of a doctrine or
principle of law laid down previously by the Supreme Court in
a decision rendered en banc or by a division (Art. VII, Sec.
4[3], Constitution of the Philippines);
(f) Cases involving the discipline of judges of lower courts
(Art. VIII, Sec. 11, Constitution of the Philippines);
(g) Contests relating to the election, returns, and
qualifications of the President or Vice-president (Art. VII,
Sec. 4, Constitution of the Philippines).
(24) Jurisdiction of the Family Courts
- Under R.A. 8369, the Family Courts shall have exclusive
original jurisdiction over the following civil cases:
1. Petitions for guardianship, custody of children and habeas
corpus involving children;
2. Petitions for adoption for children and the revocation
thereof;
3. Complaints for annulment of marriage, declaration of
nullity of marriage and those relating to status and property
relations of husband and wife or those living together under
different status and agreements, and petitions for dissolution
of conjugal partnership of gains;
4. Petitions for support and/or acknowledgment;
5. Summary judicial proceedings brought under the provisions
of Executive Order No. 209, otherwise known as the "Family
Code of the Philippines;"
6. Petitions for declaration of status of children as
abandoned, dependent or neglected children, petitions for
voluntary or involuntary commitment of children, the
suspension, termination or restoration of parental authority
and other cases cognizable under PD No. 603, E.O. No. 56
(series of 1986) and other related laws;
7. Petitions for the constitution of the family home (Sec. 5,
RA 8369).
- In areas where there are no Family Courts, the above-
enumerated cases shall be adjudicated by the Regional Trial
Court (Sec. 17, RA 8369).
II. VENUE (Rule 4)
A. Meaning of venue
Venue is the place, or the geographical area where an action
is to be filed and tried. In civil cases, it relates only to the
place of the suit and not to the jurisdiction of the court.
B. Venue is not a matter of substantive law
1. Venue is procedural and not substantive. In civil cases,
venue is not a matter of jurisdiction. Venue becomes
jurisdictional only in a criminal case. In the latter case,
where the information is filed in a place where the offense
was not committed, the information may be quashed for lack
of jurisdiction over the offense charged (Sec. 3, Rule 117,
Rules of Court). This is not so in a civil case where improper
venue is not equivalent to lack of jurisdiction. Because it is
merely procedural, the parties can waive the venue of a
case.
C. Dismissal based on improper venue
1. The trial court cannot motu proprio dismiss a case on the
ground of improper venue. The court may dismiss an action
motu propio in case of lack of jurisdiction over the subject
matter, litis pendencia, res judicata and prescription, but
not for improper venue.
Unless and until the defendant objects to the venue in a
motion to dismiss, the venue cannot be truly said to be
improperly laid, because the venue although technically
wrong may be acceptable to the parties for whose
convenience the rules on venue have been devised. The trial
court cannot preempt the defendant's prerogative to object
to the improper laying of the venue by motu proprio
dismissing the case (Dacuycoy vs. Intermediate Appellate
Court, 195 SCRA 641). Hence, if in a case filed with the
Regional Trial Court, the defendant files a motion to dismiss
Page50
based on lack of jurisdiction over the subject matter and the
court dismisses the action based on improper venue, the
court would be acting erroneously because the act would
tantamount to a motu proprio dismissal based on improper
venue.
2. The court may however, effect a motu proprio dismissal of
the complaint based on improper venue in an action covered
by the rules on summary procedure. In this type of action,
the court may motu proprio dismiss a case from an
examination of the allegations of the complaint and such
evidence as may be attached thereto on any of the grounds
apparent therefrom. The dismissal may be made outright,
which means that the court may do so without need for
waiting for the filing of a motion to dismiss (Sec. 4, Rules on
Summary Procedure).
D. How venue is determined
1. As previously discussed, in order to know the venue of a
particular action, the initial step is to determine if the action
is personal or real. If it is personal, venue is transitory hence,
the venue is the residence of the plaintiff or the defendant
at the option of the plaintiff (Sec. 3, Rule 4, Rules of Court).
If the action is real, the venue is local hence, the venue is
the place where the real property is situated (Sec. 1, Rule 4,
Rules of Court). However, when the defendant is a non-
resident and is not found in the Philippines, the venue is the
residence of the plaintiff or where the property involved is
situated (Sec. 3, Rule 4, Rules of Court).
2. Actions for damages and actions to collect a sum of money
must be filed in either the residence of the plaintiff or the
residence of the defendant at the election of the plaintiff.
Such actions are personal actions. Hence, an action for the
collection of P1 million filed by a resident of Lingayen,
Pangasinan against a resident of San Fernando, La Union,
may be filed in either place at the option of the plaintiff (Bar
1998).
3. Actions to recover ownership of real property are real
actions and must be filed in the place where the real
property is located. Actions for unlawful detainer, forcible
entry and action publiciana are real actions and must be
likewise filed in the place where the subject property is
situated. Thus, an action to recover possession of the leased
real property and for the payment of accrued rentals, must
be filed in Davao City where the property is located because
the action is a real action (Bar 1991; Bar 1987).
E. Stipulations on venue
1. The parties may stipulate on the venue as long as the
agreement is (a) in writing, (b) made before the filing of the
action, and (3) exclusive as to the venue (Sec. 4[b], Rule 4,
Rules of Court). While the first two requisites rarely pose a
problem, the third has been the source of controversy in the
past.
2. A stipulation that "any suit arising from this contract shall
be filed only in Quezon City" is exclusive in character and is
clear enough to preclude the filing of the case in any other
place. In this case, the residences of the parties are not to
be considered in determining the venue of the action.
3. How about a stipulation that the "parties agree to sue and
be sued in the courts of Manila?" This was actually the
stipulation in a suit subject of the landmark case of Polytrade
Corporation vs. Blanco. This stipulation was held not be
restrictive or exclusive to prevent the filing of the suit in the
places provided for by the rules. According to the court, the
plain meaning of the said provision is that the parties merely
consented to be sued in Manila considering that there are no
qualifying or restrictive words which would indicate that
Manila, and Manila alone, is the agreed venue. It simply is
permissive and the parties did not waive their right to pursue
remedy in the courts specifically mentioned in Section 2 of
Rule 4 of the Rules of Court.
4. In interpreting stipulations as to venue, there is a need to
inquire as to whether or not the agreement is restrictive or
not. If it is restrictive, the suit may be filed only in the place
agreed upon by the parties.
It must be reiterated and made clear that under Section
4(b) of Rule 4 of Rules of Court, the general rules on venue of
actions shall not apply where the parties, before the filing of
the action, have validly agreed in writing on an exclusive
venue. The mere stipulation on the venue of an action,
however, is not enough to preclude parties from bringing a
case in other venues. The parties must be able to show that
such stipulation is exclusive. In the absence of qualifying or
restrictive words, the stipulation should be deemed as
merely an agreement on an additional forum, not as limiting
venue to the specified place.
- Thus, if the plaintiff resides in Quezon City, the plaintiff in
Makati City and the agreed venue is Pasay City which, by the
terms of the agreement, is not exclusive, the venue of the
action may be Quezon City, Makati City and Pasay City, at
the election of the plaintiff.
5. The Polytrade doctrine was further applied in the case of
Unimasters Conglomeration, Inc. vs. Court of Appeals, which
analyzed the various jurisprudence rendered after the
Polytrade case. In Unimasters, it was ruled that a stipulation
stating that the stipulation that "all suits arising out of this
Agreement shall be filed with/ in the proper Courts of
Quezon City," is only permissive and does not limit the venue
to the Quezon City courts. As explained in the said case:
"In other words, unless the parties make very clear,
by employing categorical and suitably limiting language, that
they wish' the venue of actions between them to be laid only
and exclusively at a definite place, and to disregard the
prescriptions of Rule 4, agreements on venue are not to be
regarded as mandatory or restrictive, but merely permissive,
or complementary of said rule. The fact that in their
agreement the parties specify only one of the venues
mentioned in Rule 4, or fix a place for their actions different
from those specified by said rule, does not, without more,
suffice to characterize the agreement as a restrictive one.
There must, to repeat, be accompanying language clearly
and categorically expressing their purpose and design that
actions between them be litigated only at the place named
by them, regardless of the general precepts of Rule 4; and
any doubt or uncertainty as to the parties' intentions must be
resolved against giving their agreement a restrictive or
mandatory aspect. Any other rule would permit of individual,
subjective judicial interpretations without stable standards,
which could well result in precedents in hopeless
inconsistency."
Page51
6. The following stipulations were likewise treated as merely
permissive and did not limit the venue to the stipulated
place:
 a. " * * *The agreed venue for such action is Makati, Metro
Manila, Philippines
b. "In case of litigation hereunder, venue shall be in the
City Court or Court of First Instance of Manila as the case
may be for determination of any and all questions arising
thereunder"
c. "It is hereby agreed that in case of foreclosure of this
mortgage under Act 3135, as amended, and Presidential
Decree No. 385, the auction sale shall be held at the
capital of the province, if the property is within the
territorial jurisdiction of the province concerned, or shall
be held in the city, if the property is within the territorial
jurisdiction of the city concerned"
d. "All court litigation procedures shall be conducted in the
appropriate courts of Valenzuela City, Metro Manila"
7. The settled rule on stipulations regarding venue, is that
while they are considered valid and enforceable, venue
stipulations in a contract do not, as a rule, supersede the
general rule set forth in Rule 4 of the Revised Rules of Court
in the absence of qualifying; or restrictive words. They
should be considered merely as an agreement or additional
forum, not as limiting venue to the specified place. They are
not exclusive but, rather permissive. If the intention of the
parties were to restrict venue, there must be accompanying
language clearly and categorically expressing their purpose
and design that actions between them be litigated only at
the place named by them.
Examples of words with restrictive meanings are: " "only,"
"solely," "exclusively in this court," "in no other court save ,"
"particularly," "nowhere else but / except -, or words of
equal import * * *"
- Example: "In the event of suit arising out of or in
connection with this mortgage and/or the promissory note/s
secured by this mortgage, the parties hereto agree to bring
their causes of action exclusively in the proper court of
Makati, Metro Manila or at such other venue chosen by the
Mortgagee, the Mortgagor waiving for this purpose any other
venue"
8. Cases like Hoechst, Inc. vs. Torres, and Bautista vs. De
Borja, and other rulings contrary to the Polytrade doctrine
must be deemed superseded by current decisions on venue.
- In particular, the 1978 case of Hoechst Philippines, Inc. v.
Torres, involved the stipulation that "in case of any litigation
arising out of this agreement, the venue of action shall be in
the
competent courts of the Province of Rizal." The Supreme
Court surprisingly construed this agreement as sufficient to
limit the venue to the proper court of Rizal and thus,
exclusive in its import. However, in Supena vs. De la Rosa,
334 Phil. 671, it was ruled that Hoechst had been rendered
obsolete by recent jurisprudence applying the doctrine
enunciated in Polytrade.
F. Adopted Illustrations
1. P resides in Manila. Defendant resides in Quezon City. The
written contract stipulates that any suit arising from a
violation of the contract shall be filed only in Pasay City. P
sues D for damages arising from an alleged breach of
contract. The action was filed in Quezon City. Is the venue
improper? Answer: The venue is improper. The stipulation to
file the action in Pasay is restrictive and therefore, has the
effect of making Pasay City the sole venue of the action. If
the stipulation provides... "shall be filed in Pasay City,"
without any restrictive language employed in the agreement,
the filing of the complaint in Quezon City would still be
procedurally proper because the stipulation merely operates
to add Pasay City to the regular venues of Manila and Quezon
City (Bar 1997).
2. If X, a resident of Angeles City, borrowed P300,000 from
A, a resident of Pasay City under an agreement that
stipulated that the parties "agree to sue and be sued in the
City of Manila," the plaintiff is not precluded from filing the
action either in Angeles City or Pasay City or even Manila.
The stipulation on venue is not an exclusive stipulation and
its effect is merely to add Manila as an additional venue. The
same conclusion would be reached had the stipulation been:
"Venue for all suits arising from this contract shall be the
courts in Quezon City." The action may be filed also either in
Angeles City or in Pasay City. It may also be filed in Quezon
City (Bar 1997).
- If the parties above failed to stipulate on the venue in the
loan agreement, the action may be filed either in Angeles
City or Pasay City at the election of the plaintiff. The venue
of a personal action such as one to recover a debt under a
loan of money is a personal action (Bar 1997).
G. Denial of a motion to dismiss based on improper venue; no
appeal
- If a motion to dismiss based on improper venue is denied,
may the defendant appeal? He cannot. An order denying a
motion to dismiss is merely interlocutory. It is not final. Only
final orders or judgments may be appealed from. The normal
remedy is to file an answer and interpose the ground as an
affirmative defense, go to trial and appeal from the adverse
judgment. However, if the denial is tainted with grave abuse
of discretion amounting to lack of jurisdiction, the remedy is
certiorari and prohibition.
H. Improper venue is not jurisdictional
1. If the facts of problem show that the venue is improper, it
would not be correct to file a motion to dismiss anchored on
lack of jurisdiction because venue has nothing to do with
jurisdiction in a civil case. Hence, if a case for unlawful
detainer is filed in MTC Laguna when it should have been
filed in MTC Cavite because the property subject of the
action is located in Cavite, the action filed in Laguna may be
dismissed by the court on the ground of improper venue but
not on the ground of lack of jurisdiction because every MTC
has jurisdiction over cases of unlawful detainer. It would be a
serious flaw to inject into the analysis the concept of
territorial jurisdiction. It is irrelevant in a civil case.
Territorial jurisdiction applies only in criminal cases where
venue is also jurisdictional. In a civil case, the concept of
venue is distinct from the concept of jurisdiction.
Illustration (Bar 1988)
(a) xxx
(b) A and B, both residents of Batangas, entered into a
Contract of Lease over a parcel of land belonging to B
located in Calapan, Mindoro.
Page52
A filed a complaint before the Regional Trial Court,
sitting in Batangas City, for the rescission of the Lease
Contract of the land in Mindoro.
 B filed a motion to dismiss on the ground that the
Regional Trial Court did not have jurisdiction over the
subject matter, the land being located in Mindoro.
Decide with reasons.
Suggested answer:
The motion to dismiss based on lack of jurisdiction
is not tenable. The filing of the action in the Regional Trial
Court of Batangas City did not affect the jurisdiction of the
court. The defect is one of venue. Since the land subject
matter of the suit is located in Mindoro, the action should
have been filed in Mindoro.
2. Objections to venue in a civil action arising from libel
maybe waived since they do not involve a question of
jurisdiction. In criminal actions venue is jurisdictional it
being an essential element of jurisdiction.
H. Venue distinguished from jurisdiction (Bar 2006)
- Venue is differentiated from jurisdiction as follows:
Venue Jurisdiction
a. the place where the case a. the authority to hear and
is to be heard or tried; determine a case;
b. a matter of procedural b. substantive;
law
c. establishes a relation c. establishes a relation
between plaintiff and between the court and the
defendant, or petitioner and subject matter;
respondent
d. may be conferred by the d. fixed by law and cannot
act or agreement of the be conferred by agreement
parties; of the parties
e. not a ground for a motu e. lack of jurisdiction over
proprio dismissal (except in the subject matter is a
cases subject to summary ground for a motu proprio
procedure) dismissal.
III. PARTIES (Rule 3)
A. Parties to a civil action
1. There are two main categories of parties to a civil action
namely, the plaintiff and the defendant (Sec. 1, Rule 3, Rules
of Court).
2. > plaintiff - the claiming party or more appropriately, the
original claiming party and is the one who files the
complaint. The term however, does not exclusively apply to
the original plaintiff. It may also apply to a defendant who
files a counterclaim, a cross-claim or a third party complaint.
The Rules of Court (Sec. 1, Rule 3) hence, defines the term
`plaintiff', as the claiming party, the counter-claimant, the
crossclaimant or the third-party (fourth, etc.) -party plaintiff
(Sec. 1, Rule 3, Rules of Court).
3. > defendant does not only refer to the original
defending party. If a counterclaim is filed against the original
plaintiff, the latter becomes a defendant and the former, a
plaintiff in the counterclaim. Hence, under the Rules (Sec. 1,
Rule 3), the term defendant' refers also to a defendant in a
counterclaim, the cross-defendant, or the third (fourth, etc.)
-party-defendant.
B. Who may be parties
- Only the following may be parties to a civil action:
(a) natural persons,
(b) juridical persons, and
(c) entities authorized by law (Sec. 1, Rule 3, Rules of
Court).
C. Juridical persons as parties
- The juridical persons who may be parties to a civil action
are those enumerated in Art. 44 of the Civil Code of the
Philippines, namely:
(a) The State and its political subdivisions;
(b) Other corporations, institutions and entities for public
interest or purpose, created by law; and
(c) Corporations, partnerships and associations for private
interest or purpose to which the law grants a juridical
personality, separate and distinct from that of each
shareholder, partner or member.
D. Entities authorized by law to be parties
- One need not be a natural or a juridical person to be a
party to a civil action. As long as an entity is authorized by
law to be a party, such entity may sue or be sued or both.
Consider the following examples:
(a) Under Sec. 21 of the Corporation Code of the Philip-
pines, a corporation by estoppel is precluded from denying
its existence and the members thereof can be sued and be
held liable as general partners.
(b) A contract of partnership having a capital of three
thousand pesos or more but which fails to comply with the
registration requirements is nevertheless liable as a
partnership to third persons (Art. 1772 in relation to Art.
1768 of the Civil Code of the Philippines).
(c) The estate of a deceased person may be a party to an
action.
(d) A legitimate labor organization may sue and be sued in
its registered name (Art. 242[e], Labor Code of the
Philippines).
(e) The Roman Catholic Church may be a party and as to
its properties, the archbishop or diocese to which they
belong may be a party
(f) A dissolved corporation may prosecute and defend suits
by or against it provided that the suits (i) occur within
three (3) years after its dissolution, and (ii) the suits are in
connection with the settlement and closure of its affairs
(.Sec.. 122, Corporation Code of the Philippines).
E. Entity without a juridical personality as a defendant
1. An example of an entity that is neither a natural nor a
juridical person but is allowed by the Rules of Court to be a
party to an action, although as a defendant, is the one
treated in Sec. 15 of Rule 3 of the Rules of Court.
2. Under Sec. 15, "when two or more persons not organized
as an entity with juridical personality enter into a
transaction, they may be sued under the name by which they
are generally or commonly known." Under the same
provision, the responsive pleading of the entity sued must
disclose the names and addresses of its members since they
are the persons ultimately liable to the plaintiff.
- Thus, if A, B, C, D and E without incorporating themselves
Page53
or without registering as a partnership, enter into
transactions using the common name, "Ocean Quest Corp.,"
they may be sued as "Ocean Quest Corp." When the
defendant "corporation" answers, the names of A, B, C, D and
E and their addresses must be revealed. Note however, that
the authority to be a party under this section is confined only
to being a defendant and not as a plaintiff. This is evident
from the words, they may be sued.
F. Remedy when a party impleaded is not authorized to be a
party
1. Where the plaintiff is not a natural or a juridical person or
an entity authorized by law, a motion to dismiss may be filed
on the ground that "the plaintiff has no legal capacity to sue"
(Sec. 1[d], Rule 16, Rules of Court).
2. Where it is the defendant who is not any of the above, the
complaint may be dismissed on the ground that the "pleading
asserting the claim states no cause of action" or `failure to
state a cause of action' (Sec. 1[g], Rule 16, Rules of Court),
because there cannot be a cause of action against one who
cannot be a party to a civil action.
3. Also, if the plaintiff has capacity to sue but he is not the
`real party in interest', the ground for dismissal is a `failure
to state a cause of action', not `lack of legal capacity to sue'.
G. Averment of capacity to sue or be sued
- 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
persons that is made a party must be averred (Sec. 4, Rule 8,
Rules of Court).
H. A minor or an incompetent as a party
- A minor or an incompetent, may sue or be sued. He can be
a party but with the assistance of his father, mother,
guardian, or if he has none, a guardian ad litem (Sec. 5, Rule
3, Rules of Court).
I. Real party in interest
1. > "A real party in interest - 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" (Sec. 2, Rule 3, Rules of
Court).
2. To be a real party-in-interest, the interest must be `real',
which is a present substantial interest as distinguished from a
mere expectancy or a future, contingent subordinate or
consequential interest. It is an interest that is material and
direct, as distinguished from a mere incidental interest in the
question.
3. The determination of who the real party-in-interest is
requires going back to the elements of a cause of action. A
cause of action involves the existence of a right and a
violation of such right. Evidently, the owner of the right
violated stands to be the real party in interest as plaintiff
and the person responsible for the violation iH the real party
in interest are defendant. Thus, in a suit for violation of a
contract, the parties in interest would be those covered by
the operation of the doctrine of relativity of contracts under
Art. 1311 of the Civil Code of the Philippines, namely, the
parties, their assignees and heirs. Likewise in a suit for
annulment of a contract, the real parties in interest would be
those who are principally or subsidiarily bound by the
contract (Art. 1397, Civil Code of the Philippines).
4. A person who has not taken part in a contract cannot, sue
or be sued for performance or for cancellation thereof unless
he shows that his interest is affected thereby as when he is
an assignee of a right or a right of action. The parties to a
contract are the real parties in interest in an action upon it.
As a rule, under the doctrine of relativity of contracts
embodied in Art. 1311 of the Civil Code of the Philippines,
only the contracting parties are bound by the stipulation in
the contract. They are the ones who would benefit from it
and could violate it. Thus, one who is not a party to a
contract, and for whose benefit it was not expressly made,
cannot maintain an action on it.
- While ordinarily one who is not a privy to a contract may
not bring an action to enforce it, there are recognized
exceptions to this rule. For example, contracts containing
stipulations pour autrui or stipulations expressly conferring
benefits to a nonparty may sue under the contract provided
such benefits have been accepted by the beneficiary prior to
its revocation by the contracting parties (Art. 1311, Civil
Code of the Philippines).
- Also, parties who have not taken part in a contract may
show that they have a real interest affected by its
performance or annulment. In other words, those who are
not principally or subsidiarily obligated in a contract, in
which they had no intervention, may show their detriment
that could result from it. For instance, Article 1313 of the
Civil Code provides that "creditors are protected in cases of
contracts intended to defraud them." Further, Article 1381 of
the Civil Code provides that contracts entered into in fraud
of creditors may be rescinded when the creditors cannot in
any manner collect the claims due them. Thus, a creditor
who is not a party to a contract can sue to rescind the
contract to redress the fraud committed upon him.
5. A third party who has not taken part in a compromise
agreement has no right to ask for the performance of the
agreement. A person who is not a party to a compromise
agreement cannot seek the amendment or modification of
the same.
6. A mere agent, who is not an assignee of the principal
cannot bring suit under a deed of sale entered into in behalf
of his principal because it is the principal, not the agent who
is the real party in interest. In case the action is brought
against the agent, the action must be brought against an
agent acting in his own name and for the benefit of an
undisclosed principal without joining the principal, except
when the contract involves things belonging to the principal.
The real party-in-interest is the party who would be
benefited or injured by the judgment or is the party entitled
to the avails of the suit. An attorney-in-fact is not a real
party in interest and that there is no law permitting an
action to be brought by and against an attorney-in-fact new
title, null and void.
7. Should a lawful possessor be disturbed in his possession, it
is the possessor, not necessarily the owner of the property,
who can bring the action to recover the possession. The
argument that the complaint states no cause of action
because the suit was filed by a mere possessor and not by the
Page54
owner is not correct.
In an action for forcible entry, the possessor/lessee is the
real party in interest as plaintiff and not the owner/lessor.
The issue in an action for forcible entry is mere possession.
But in an action to recover damages for damage caused by
the deforciant on the property, the owner/ lessor is the real
party in interest as plaintiff.
8. When the corporate offices have been illegally searched, a
corporate officer is not the real party in interest to question
the search. The right to contest the transgression belongs to
the corporation alone which has a personality of its own
separate and distinct from that of an officer or a
stockholder. The objection to an unlawful search and seizure
is purely personal and cannot be availed of by third persons
(Stonehill vs. Diokno, 20 SCRA 383). However, even if the
cause of action belongs to the corporation, if the board
refuses to sue despite demand by the stockholders to sue and
protect or vindicate corporate rights, a stockholder is
allowed by law to file a derivative suit in the corporate
name. In such a suit, the real party-in-interest is actually the
corporation and the stockholder filing the action is a mere
nominal party.
9. In an action for ejectment, any of the co-owners may
bring the action (Art. 487, Civil Code of the Philippines).
10. In an action to annul her marriage, it is the woman, not
her father who is the real party in interest.
11. Under Art. 1768 of the Civil Code of the Philippines, a
partnership has a juridical personality separate and distinct
from that of each of the partners. Hence, if the contract was
entered into by the partnership in its name, it is the
partnership, not its officers or agents which should be
impleaded in any litigation involving property registered in
its name. A violation of this rule.will result in dismissal of the
complaint for failure to state a cause of action.
Illustration (Bar 1989)
Isagani drove the car of his father, Pedro, and left
it in the parking area of the Fairview Motel where he was a
guest. Isagani entrusted the key of the car to a security guard
hired by the Prime Resort Company, the owner/ operator of
the motel. Emilio, pretending to be the brother of Isagani,
got the key from the security guard and drove the car away.
The car was never recovered. Later, Pedro sued Prime
Resorts for the value of the carnapped vehicle plus damages.
Prime Resorts sets up the defense that Pedro has
no interest in the case, hence, has no cause of action, as he
was not the guest of the motel but his son, Isagani. Is the
defense tenable?
Suggested answer.
The defense is not tenable. The cause of action of
Pedro arises from his rights as an owner. He is therefore, the
real party-in-interest in the suit for damages.
Illustration (Bar 1988)
A complaint entitled "A as Attorney-In-Fact for X,
plaintiff, versus B, defendant" was filed to recover a car in
the possession of B. A's Power of Attorney expressly
authorized him (A) to sue for the recovery of the car.
B files a motion to dismiss for lack of capacity to
sue.
Decide the motion. Explain.
Suggested answer:
The motion must be denied. The ground relied upon
is erroneous. Under the Rules of Court, an action must be
prosecuted in the name of the real party-in-interest and
under the facts of this case, this party is X. The fact that the
suit is in the name of A as attorney-in-fact does not mean
that A has no legal capacity to sue. Being a natural person, A
possesses such legal capacity. However, since, he is not the
owner of the car sought to be recovered, the suit cannot be
prosecuted in his name. The motion to dismiss should have
been based on a failure to state a cause of action.
J. Prosecution/defense of an action in the name of the real
party in interest
1. Every action must be prosecuted and defended in the
name of the real party-in-interest (Sec. 2, Rule 3, Rules of
Court).
2. Even where the action is allowed to be prosecuted or
defended by a representative party or someone acting in a
fiduciary capacity (like the trustee of an express trust, an
executor or administrator), the beneficiary shall be included
in the title of the case and shall be deemed to be the real
partyin-interest (Sec. 2, Rule 3, Rules of Court). The
phraseology of Sec. 2, Rule 3 leaves no doubt as to what the
rule is. Impleading the beneficiary as a party is mandatory
since said beneficiary is deemed to be the real party-in-
interest.
3. If the action is prosecuted in the name of one who is not
the real party-in-interest, the ground for dismissal should be
that the complaint states no cause of action or fails to state
a cause of action.
K.Failure to include the name of a party in the pleading
- The mere failure to include the name of a party in the title
of the complaint is not fatal because the Rules of Court
requires the courts to pierce the form and go into the
substance and not be misled by a false or wrong name in the
pleadings. The averments are controlling and not the title.
Hence, if the body indicates the defendant as a party to the
action, his omission in the title is not fatal.
L. Rule on `standing' as distinguished from the concept of
`real party-in-interest'
l. > Locus standi - a right of appearance in a court of justice
on a given question. In private suits, standing is governed by
the "real-parties-in interest" rule found in Section 2, Rule 3 of
the Rules of Court which provides that "every action must be
prosecuted or defended in the name of the real party-in-
interest."
2. However, the concept of `standing' because of its
constitutional underpinnings is very different from questions
relating to whether or not a particular party is a real party-
ininterest. Although both are directed towards ensuring that
only certain parties can maintain an action, the concept of
standing requires an analysis of broader policy concerns. The
question as to who the real party-in-interest is involves only
a question on whether a person would be benefited or
Page55
injured by the judgment or whether or not he is entitled to
the avails of the suit.

M. Indispensable parties
1. > indispensable party - a real party-in-interest without
whom no final determination can be had of an action (Sec. 7,
Rule 3, Rules of Court). Without the presence of this party
the judgment of a court cannot attain real finality.
2. "An indispensable party is a party who has such an interest
in the controversy or subject matter that a final adjudication
cannot be made, in his absence, without injuring or affecting
that interest, a party who has not only an interest in the
subject matter of the controversy, but also has an interest of
such nature that a final decree cannot be made without
affecting his interest or leaving the controversy in such a
condition that its final determination may be wholly
inconsistent with equity and good conscience. It has also
been considered that an indispensable party is a person in
whose absence there cannot be a determination between the
parties already before the court which is effective,
complete, or equitable. Further, an indispensable party is
one who must be included in an action before it may properly
go forward.
- "The presence of indispensable parties is a condition for the
exercise of juridical power and when an indispensable party
is not before the court, the action should be dismissed. The
absence of an indispensable party renders all subsequent
actions of the court null and void for want of authority to
act, not only as to the absent parties but even as to those
present.
- "The joinder of indispensable parties is mandatory. Without
the presence of indispensable parties to the suit, the
judgment of the court cannot attain real finality. Strangers
to a case are not bound by the judgment rendered by the
court"
3. A person is not an indispensable party, however, if his
interest in the controversy or subject matter is separable
from the interest of the other parties, so that it will not
necessarily be directly or injuriously affected by a decree
which does complete justice between them. Also, a person is
not an indispensable party if his presence would merely
permit complete relief between him and those already
parties to the action, or if he has no interest in the subject
matter of the action. It is not a sufficient reason to declare a
person to be an indispensable party that his presence will
avoid multiple litigation. In a joint obligation for instance,
the interest of one debtor is separate and distinct from that
of his co-debtor and a suit against one debtor does not make
the other an indispensable party to the suit.
Illustration (Bar 1996) 1. xxx
2. xxx
3. A filed an action against B, driver of the truck, C, owner of
said truck, and D, insurer of the truck, for damages when the
truck rammed his car. A and D entered into a compromise
agreement upon an amount lower than that sued upon by A
against all three defendants. Accordingly, the court
dismissed the case against D. B and C moved to dismiss the
case against them on the ground that, being indispensable
parties under a common cause of action, non-inclusion of D
would not make the case prosper.
Are the defendants indispensable parties? How
would you resolve the motion?
Suggested answer.
The motion should be denied. B and C are not
indispensable parties in relation to D and vice versa. The
cause of action against B and C is based on quasi delicts or
culpa aquiliana while the cause of action against D is based
on the contract of insurance. A dismissal of the case against
D will not affect the case against B and C.
N. Compulsory joinder of indispensable parties
1. Although normally, a joinder of parties is permissive (Sec.
6, Rule 3, Rules of Court), the joinder of a party becomes
compulsory when the one involved is an indispensable party.
Clearly, the rule directs a compulsory joinder of
indispensable parties (Sec. 7, Rule 3, Rules of Court).
2. The presence of all indispensable parties is a condition
sine qua non for the exercise of judicial power. It is precisely
when an indispensable party is not before the court that the
- action should be dismissed. Thus, the plaintiff is mandated
to implead all the indispensable parties, considering that the
absence of one such party renders all subsequent actions of
the court null and void for want of authority to act, not only
as to the absent parties but even as to those present. One
who is a party to a case is not bound by any decision of the
court; otherwise, he will be deprived of his right to due
process.
O. Dismissal for failure to implead an indispensable party
1. It has been ruled on various occasions that since the
joinder of indispensable parties is compulsory, the action
should be dismissed when indispensable parties are not
impleaded or are not before the court. The absence of
indispensable parties renders all subsequent actions of the
trial court null and void for want of authority to act, not only
as to the absent parties but even as to those present.
2. It is worthy of note that the Court in its rulings did not
hold that the failure to join an indispensable party results in
the outright dismissal of the action. An outright dismissal is
not the immediate remedy authorized by the Rules because
under the Rules a non joinder (or misjoinder) of parties is not
a ground for dismissal of an action. Instead, parties may be
dropped or added by the court on motion of any party or on
its own initiative (Sec. 11, Rule 3, Rules of Court). It is when
the order of the court to implead an indispensable party goes
unheeded may the case be dismissed. The court is fully
clothed with the authority to dismiss a complaint due to the
fault of the plaintiff as when, among others, he does not
comply with any order of the court (Sec. 3, Rule 17, Rules of
Court).
3. One significant case adequately clarifies the procedure to
be undertaken when an indispensable party is not impleaded.
- The case of Pamplona Plantation Co. vs. Rodel Tinghil is the
authority to support the view that an immediate dismissal of
the action when indispensable parties are not impleaded is a
procedural error. Said the Court: "The non joinder of
indispensable parties is not a ground for the dismissal of an
Page56
action. At any stage of a judicial proceeding and/or at such
times as are just, parties may be added on the motion of a
party or on the initiative of the tribunal concerned. If the
plaintiff refuses to implead an indispensable party despite
the order of the court, that court may dismiss the complaint
for the plaintiff's failure to comply with the order. The
remedy is to implead the non-party claimed to be
indispensable."
4. A more recent case holds that whenever it appears to the
court in the course of a proceeding that an indispensable
party has not been joined, it is the duty of the court to stop
the trial and to order the inclusion of such party. The
absence of an indispensable party renders all subsequent
actuations of the court null and void, for want of authority to
act, not only as to the absent parties, but even as to those
present. Accordingly, the responsibility of impleading all the
indispensable parties rests on the plaintiff. The defendant
does not have the right to compel the plaintiff to prosecute
the action against a party if he does not wish to do so, but
the plaintiff will have to suffer the consequences of any error
he might commit in exercising his option.
P. Necessary parties
1. A necessary party is not indispensable to the action. A
final determination of the case can be had among the parties
already impleaded where a necessary party for some
justifiable reason, is not joined. But a necessary party "ought
to be joined as a party if complete relief is to be accorded as
to those already parties" (Sec. 8, Rule 3, Rules of Court).
Q. Distinction between an indispensable and a necessary
party
1. An indispensable party must be joined under any and all
conditions while a necessary party should be joined whenever
possible (Borlasa vs. Polistico, 47 Phil. 345). Stated
otherwise, an indispensable party must be joined because
the court cannot proceed without him. Hence, his presence is
mandatory. The presence of a necessary party is not
mandatory because his interest is separable from that of the
indispensable party. He has to be joined whenever possible
to afford complete relief to those who are already parties
and to avoid multiple litigation. A necessary party is not
indispensable but he ought to be joined if complete relief is
to be had among those who are already parties (Sec. 8, Rule
3, Rules of Court). A final decree can be had in a case even
without a necessary party because his interests are separable
from the interest litigated in the case. 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 (Sec.
9, Rule 3, Rules of Court).
2. Consider the following: "A," and "B" are the signatories to a
promissory note which reads: "We promise to pay to the
order of "C" P1 million on February 27, 2007." On the due
date of the obligation, the creditors failed to pay despite
demand.
(a) May "C"sue "A"alone? Answer: "C" may sue "A" alone. The
cause of action against "A" is separate and distinct from
the cause of action against "B." The tenor of the note
discloses merely a joint obligation. In a joint obligation the
credit or debt shall be divided into as many equal shares as
there are creditors and debtors, the credits or debts being
considered distinct from each other (Art. 1208, Civil Code
of the Philippines). Being debtors in a joint obligation, the
debtors then are liable separately for P500,000 each.
(b) Is "A," in a suit by "C" against him a necessary or an
indispensable party? Answer: "A" is an indispensable party.
Without him being impleaded as defendant, "C" cannot
collect the P500,000 share of "A." Without "A" there cannot
be a final determination of the case against him.
(c) In the suit by "C" against "A," is "B" a necessary or an
indispensable party? Answer: "B" is not an indispensable
party. "C" can collect from "A" P500,000 without
impleading "B." He is only a necessary party. Without "B"
being made a party to the action, "C" cannot have a
complete relief, i.e., he cannot collect his entire credit of
P1 million. If he desires a complete recovery, "B" must be
impleaded.
3. In the above example, assuming that the debtors bound
themselves to pay the P1 million solidarily, would "B" be an
indispensable or a necessary party in a suit by "C" against "A"?
Answer: "B" would not be a necessary party. Complete relief
could be had by "C" without joining "B" because the obligation
is solidary. "A" could be ordered to pay the entire obligation
of P1 million. Neither is "B" an indispensable party. There
could be a complete and final determination of the action for
a sum of money without "B" being joined.
- Solidarity does not make a solidary obligor an indispensable
party in a suit filed by the creditor against another solidary
debtor.
4. B bought a car from S on an installment basis. A chattel
mortgage was executed on the car in favor of S to secure the
obligation. Before the payment was completed, B sold the
car to D. It was agreed that D would be responsible for the
monthly installments. D failed to pay three installments. May
S sue D alone in the foreclosure suit or replevin suit? He
cannot. B must be made defendant. B is an indispensable
party. The foreclosure or replevin is premised on the default
of B, the debtor. P would have no right to foreclose the
mortgage or repossess the car without establishing the
default of B.
5. A transferee of a property pendente lite is not an
indispensable party, as it would in any event be bound by the
judgment against his predecessor.
6. The person whose right to the office is challenged is an
indispensable party. No action can proceed unless he is
joined.
7. In an action for reconveyance of a property, the persons
against whom reconveyance is asserted are indispensable
parties.
R. Effect of a justified failure to implead a necessary party
(Bar 1998)
- 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 (Sec. 9, Rule 3, Rules of Court).
S. Duty to of pleader when a necessary party is not joined
Page57
- While a necessary party is not indispensable to the final
determination of the action, said party ought to be joined
whenever possible. If a pleader has no intent to implead a
necessary party, the pleader is under obligation to: (a) set
forth the name of said necessary party, if known, and (b)
state the reason why the necessary party is omitted (Sec. 9,
Rule 3, Rules of Court). A reason justifying the non-joinder of
a necessary party is when said party is outside the
jurisdiction of the court (Sec. 9, Rule 3, Rules of Court).
T. When court may order joinder of a necessary party (Bar
1998)
- If the reason given for the non joinder of the necessary
party is found by the court to be unmeritorious, it may order
the pleader to join the omitted party if jurisdiction over his
person may be obtained (Sec. 9, Rule 3, Rules of Court).
U. Effect of failure to comply with order of the court (Bar
1998)
- The failure to comply with the order of the court to include
a necessary party, without justifiable cause, shall be deemed
a waiver of the claim against such party (Sec. 9, Rule 3,
Rules of Court).
V. Unwilling co-plaintiff
- An unwilling co-plaintiff is a party who is supposed to be a
plaintiff but whose consent to be joined as a plaintiff cannot
be obtained as when he refuses to be a party to the action.
Under Sec. 10 of Rule 3, said unwilling co-plaintiff (a) may be
made a defendant, and (b) the reason therefor shall be
stated in the complaint.
W. Alternative defendants
1. Where the plaintiff cannot definitely identify who among
two or more persons should be impleaded as a defendant, he
may join all of them as defendants in the alternative. Under
Sec. 13 of Rule 3, "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 (Sec. 13, Rule 3, Rules of Court).
Just as the rule allows a suit against defendants in the
alternative, the rule also allows alternative causes of action
(Sec. 2, Rule 8, Rules of Court) and alternative defenses
(Sec. 5[b], Rule 6, Sec. 20, Rule 14, Rules of Court).
2. Assume that Mr. X, a pedestrian was injured in the
collision of two vehicles. He suffered injuries but does not
know with certainty which vehicle caused the mishap. What
should Mr. X do if he wants to sue? He should sue the vehicle
drivers/ owners in the alternative.
3. P delivered some goods to D pursuant to a contract. The
goods were delivered to E, the designated agent of D. D did
not pay P. D contends that he has not received the goods. E
claims otherwise and insists that D had received the goods.
Should P sue D or should he sue E? P should sue both but in
the alternative.
4. Plaintiff may sue the shipping company and the arrastre
operator alternatively for the recovery of damages to goods
shipped through a maritime vessel.
X. Misjoinder and non joinder of parties
1. A party is misjoined when he is made a party to the action
although he should not be impleaded. A party is not joined
when he is supposed to be joined but is not impleaded in the
action.
2. Under the Rules neither misjoinder nor non joinder of
parties is a ground for the dismissal of an action. Parties may
be dropped or added by order of the court on motion of any
party or on its own initiative at any stage of the action and
on such terms as are just (Sec. 11, Rule 3, Rules of Court).
Misjoinder of parties does not involve questions of
jurisdiction and not a ground for dismissal.
3. Even if neither misjoinder nor non joinder is a ground f'or
dismissal of the action, the failure to obey the order of the
court to drop or add a party is a ground for the dismissal of
the complaint under Sec. 3, Rule 17 of the Rules of Court.
4. The rule on misjoinder or non joinder of parties does not
comprehend whimsical and irrational dropping or adding of
parties in a complaint. What it really contemplates is
erroneous or mistaken non joinder and misjoinder of parties.
No one is free to join anybody in a complaint in court only to
drop him unceremoniously later at the option of the plaintiff.
The rule presupposes that the original inclusion had been
made in the honest conviction that it was proper and the
subsequent dropping is requested because it has turned out
that such inclusion was a mistake. And this is' the reason why
the rule ordains that the dropping is "on such terms as are
just."
Y. Unknown defendant
- Whenever the identity or name of the 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 (Sec. 14, Rule 3,
Rules of Court).
Z. Effect of death of a party on the attorney-client relation-
ship
- The death of the client extinguishes the attorney-client
relationship and divests a counsel of his authority to
represent the client. Accordingly, a dead client has no
personality and cannot be represented by an attorney.
Neither does he become the counsel of the heirs of the
deceased unless his services are engaged by said heirs.
AA. Duty of counsel upon the death of his client
- Whenever a party to a pending action dies, it is the duty of
the counsel of the deceased party to inform the court of such
fact within thirty (30) days after such death. The counsel has
also the obligation to give the name and address of the legal
representative of the deceased. This duty is mandatory and
failure to comply with this duty is a ground for disciplinary
action (Sec. 16, Rule 3, Rules of Court). Note that this duty is
imposed upon the counsel of the deceased party, not upon
the counsel of the adverse and surviving party.
BB. Action of court upon notice of death; effect of death on
the case
1. Upon receipt of the notice of death, the court shall
determine whether or not the claim is extinguished by such
Page58
death. If the claim survives, the court shall order the legal
representative or representatives of the deceased to appear
and be substituted for the deceased within thirty (30) days
from notice (Sec. 16, Rule 3, Rules of Court). The
substitution of the deceased would not be ordered by the
court in cases where the death of the party would extinguish
the action because substitution is proper only when the
action survives.
2. Where the deceased has no heirs, the court shall require
the appointment of an executor or administrator. This
appointment is not required where the deceased left an heir
because the heir under the new rule, maybe allowed to be
substituted for the deceased. If there is an heir but the heir
is a minor, the court may appoint a guardian ad litem for said
minor heir (Sec. 13, Rule 3, Rules of Court). Previous rulings
giving priority to the legal representative like an executor or
administrator over the heirs should be deemed no longer
consistent with the current rule.
3. It is possible that the court may order the opposing party
to procure the appointment of an executor or administrator
for the estate of the deceased. This may happen in any of
the three situations: (a) the counsel for the deceased does of
name a legal representative, or (b) there is a representative
named but he fails to appear within the specified period. All
court charges in procuring such appointment, if defrayed by
the opposing party may be recovered as costs (Sec. 16, Rule
3, Rules of Court).
CC. When there is no need to procure an executor or
administrator
- Under the second paragraph of Sec. 16 of Rule 3, ". . . The
heirs of the deceased may be allowed to be substituted for
the deceased, without requiring the appointment of an
executor or administrator. . ."
- The second paragraph of the rule is plain and explicit. The
heirs may be allowed to be substituted for the deceased
without requiring the appointment of an administrator or
executor. However, if within the specified period a legal
representative fails to appear, the court may order the
opposing counsel, within a specified period, to process the
appointment of an administrator or executor who shall
immediately appear for the estate of the deceased. The
previous pronouncement of the Court in Lawas vs. Court of
Appeals that priority is given to the legal representative of
the deceased (the executor or administrator) and that it is
only in case of unreasonable delay in the appointment of an
executor or administrator, or in cases where the heirs resort
to an extrajudicial settlement of the estate that the court
may adopt the alternative of allowing the heirs of the
deceased to be substituted for the deceased, is no longer
true. Thus, the heirs do not need to first secure the
appointment of an administrator of the estate of the
deceased because from the very moment of death, they
stepped into the shoes of the deceased and acquired his
rights as devisee/legatee. Said heirs may designate one or
some of them as their representative before the trial court.
DD. No requirement for service of summons
1. Service of summons is not required to effect a
substitution. Nothing in Sec. 16 of Rule 3 mandates service of
summons. Instead of service of summons the court shall order
the legal representative of the deceased to appear and be
substituted for the said deceased within thirty (30) days from
notice (Bar 1999).
2. By virtue of the Hame rule, it is significant to remember
that it is not the amendment of the pleading, but the order
of substitution and its service that effects the substitution of
the deceased by his representative or heir (Bar 1999).
EE. Purpose and importance of substitution of the deceased
1. The purpose behind the rule on substitution of parties is
the protection of the right of every party to due process. It is
to ensure that the deceased would continue to be properly
represented in the suit through the duly appointed legal
representative of the estate.
2. Non-compliance with the rules on substitution of a
deceased party renders the proceedings of the trial court
infirm because the court acquired no jurisdiction over the
person of the legal representative of heirs of the deceased
because no man should be affected by a proceeding to which
he is a stranger. A party to be affected by a personal
judgment must have a day in court and an opportunity to be
heard.
- It has been held however, that in an ejectment case, the
non-substitution of the deceased by his legal representatives
because of the failure of counsel to inform the court of the
death of his client does not deprive the court of jurisdiction.
The decision of the court is nevertheless, binding upon the
successors-in-interest of the deceased. A judgment in an
ejectment case may be enforced not only against defendants
herein but also against the members of their family, their
relatives, or privies who derived their right of possession
from the deceased defendant.
3. Formal substitution is however, not necessary when the
heirs themselves voluntarily appeared in the action,
participated therein and presented evidence in defense of
deceased defendant.
FF. Examples of actions which survive the death of a party
1. Actions and obligations arising from delicts survive.
2. Actions based on the tortious conduct of the defendant
survive the death of the latter
3. Actions to recover real and personal property, actions to
enforce a lien thereon, and actions to recover damages for
an injury to person or property and suits based on the alleged
tortious acts of the defendant survive.
4. An ejectment case survives the death of a party. It
continues until judgment because the issue concerning the
illegality of the defendant's possession is still alive, and upon
its resolution depends the corollary issue of whether and how
much damages may be recovered.
5. Actions for the recovery of money, arising from a contract
express or implied are not extinguished by the death of the
defendant (Sec. 20, Rule 3, Rules of Court; Bar 2000).
- Note: If the action does not survive (like the purely
personal actions of support, annulment of marriage and legal
separation), the court shall simply dismiss the case. It follows
then that substitution will not be required.
Page59
GG. Actions for the recovery of money on contractual claims
- When the action is for the recovery of money arising from
contract and the defendant dies before entry of final
judgment, the court shall not dismiss the suit. It shall
continue and his legal representative or legal heir shall
substitute the deceased. If the plaintiff obtains a favorable
judgment, said judgment shall be enforced as a money claim
against the estate of the deceased (Sec. 20, Rule 3; Rules of
Court).
HH. Incompetency or incapacity of a party during the pen-
dency of the action
- In case a party becomes incapacitated or incompetent
during the pendency of the action, the court, upon motion,
may allow the action to be continued by or against the
incapacitated or incompetent party with the assistance of his
legal guardian or guardian ad litem (Sec. 18, Rule 20, Rules
of Court).
II. Transfer of interest
- In case of transfer, the action may be continued by or
against the original party, unless the court upon motion
directs the person to whom the interest is transferred to be
substituted in the action or joined with the original party
(Sec. 19, Rule 3, Rules of Court).
JJ. Indigent parties
1. A party may be authorized to litigate as an indigent if the
court is satisfied that the party is one who has no money or
property sufficient and available for food, shelter and basic
necessities. The application and the hearing to litigate as an
indigent litigant may be made ex parte (Sec. 21, Rule 3,
Rules of Court).
2. If one is authorized to litigate as an indigent, such
authority shall include an exemption from the payment of
docket fees, and of transcripts of stenographic notes, which
the court may order to be furnished by him. However, the
amount of the docket and other lawful fees, which the
indigent was exempt from paying, shall be lien on the
judgment rendered in the case favorable to the indigent. A
lien on the judgment shall not arise if the court provides
otherwise (Sec. 21, Rule 3, Rules of Court).
KK. Role of the `Solicitor General'
1. The rule is that only the Solicitor General can bring and
defend actions on behalf of the Republic of the Philippines
and that actions filed in the name of the Republic or its
agencies and instrumentalities, i ('not initiated by the
Solicitor General will be summarily dismissed. The authority
of the Solicitor General is embodied in Sec. 35(1), Chapter
12, Title III, and Book IV of the Administrative Code of 1987.
2. Also, in any action involving the validity of any treaty,
law, ordinance, executive order, presidential decree, rule or
regulations, the court, in its discretion, may require the
appearance of the Solicitor General who may be heard in
person or through a representative duly designated by him
(Sec. 22, Rule 3, Rules of Court).
3. In criminal actions brought before the Court of Appeals or
the Supreme Court, the authority to represent the State is
solely vested in the OSG. This is pursuant to Section 35(1),
Chapter 12, Title III, Book III of the Administrative Code of
1987, as amended, providing that the OSG shall represent the
Government in the Supreme Court and the Court ofAppeals in
all criminal proceedings. Only the Solicitor General may bring
or defend actions on behalf of the People of the Philippines
once such actions are brought before the Court of Appeals or
Supreme Court.
- Also, under Sec. 5 of Rule 110 of the Revised Rules on
Criminal Procedure, as amended, "All criminal actions, either
commenced by complaint or by information, shall be
prosecuted under the direction and control of a public
prosecutor."
LL. Suit by or against spouses
- Husband and wife shall sue or be sued jointly except as
provided by law (Sec. 4, Rule 3, Rules of Court). An instance
when a spouse need not be joined in a suit involving the
other is when the litigation pertains to an exclusive property
of a spouse. In such a case, the owner-spouse may appear
alone in court to litigate with regard to the same (Art. III,
Family Code of the Philippines). There may be instances
when despite the separation of property, one spouse may end
up being sued and be held answerable for the liabilities
incurred by the other spouse. "The liability of the spouses to
creditors for family expenses shall however, be solidary" (Art.
146, Family Code of the Philippines). Under a solidarity
liability, each one of the spouses is bound to render entire
compliance of the obligation (Art. 1207, Art. 1216, Civil Code
of the Philippines).
MM. Class suit; requisites
1. A class suit is an action where one or more may sue for the
benefit of all if the requisites for said action are complied
with.
2. An action does not become a class suit merely because it is
designated as such in the pleadings. Whether the suit is or is
not a class suit depends upon the attendant facts
3. For a class suit to prosper, the following requisites must
concur:
(a) The subject matter of the controversy must be of
common or general interest to many persons;
(b) The persons are so numerous that it is impracticable to
join all as parties;
(c) The parties actually before the court are sufficiently
numerous and representative as to fully protect the
interests of all concerned; and
(d) The representatives sue or defend for the benefit of all
(Sec. 12, Rule 3, Rules of Court).
NN. Commonality of interest in the subject matter
1. A class suit does not require a commonality of interest in
the questions involved in the suit. What is required by the
Rules is a common or general interest in the subject matter
of the litigation. The `subject matter' of the action is meant
the physical, the things real or personal, the money, lands,
chattels, and the like, in relation to the suit which is
prosecuted and not the delict or wrong committed by the
defendant. It is not also a common question of law that
sustains a class suit but a common interest in the subject
matter of the controversy.
2. There is no class suit in an action filed by four hundred
Page60
residents initiated through a former mayor, to recover
damages sustained due to their exposure to toxic wastes and
fumes emitted by the cooking gas plant of a corporation
located in the town. Each of the plaintiffs has a separate and
distinct injury not shared by other members of the class.
Each supposed plaintiff has to prove his own injury. There is
no common or general interest in the injuries allegedly
suffered by the members of the class (Bar 1994).
3. There is no class suit in an action for damages filed by the
relatives of the fatalities in a plane crash. There is no
common or general interest in the injuries or death of all
passengers in the plane. Each has a distinct and separate
interest which must be proven individually (Bar 1991).
OO. No class suit when interests are conflicting
- When the interests of the parties in the subject matter are
conflicting, a class suit will not prosper. Hence, an action
brought by seventeen (17) residents of a town with a
population of two thousand four hundred sixty (2,460)
persons to recover possession of a holy image was held not to
qualify as a class suit because the plaintiffs did not represent
membership of the churches they purport to represent and
that the interests of the plaintiffs conflict with those of the
other inhabitants who were opposed to the recovery.
PP. No class suit by a corporation to recover property of its
members
- A non-stock corporation may not institute in behalf of its
individual members for the recovery of certain parcels of
land allegedly owned by its members and .for the
nullification of the transfer of certificates of title issued in
favor of defendants. The corporation being an entity
separate and distinct from its members has no interest in the
individual property of its members unless transferred to the
corporation. Absent any showing of interests, a corporation
has no personality to bring an action for the purpose of
recovering property, which belongs to the members in their
personal capacities. Moreover, "a class suit does not lie in
actions for the recovery of property where several persons
claim ownership of their respective portions of property, as
each one could allege and prove his respective right in a
different way for each portion of the land, so that they
cannot all be held to have identical title through acquisitive
prescription."
QQ. No class suit to recover real property individually held
1. A class suit would not lie where each of the parties has an
interest only in the particular portion of the land he is
occupying and not in the portions individually occupied by
the other defendants.
2. A class suit does not lie in an action for recovery of real
property where separate portions of the same parcel of land
were occupied and claimed individually by different parties
to the exclusion for each other, such that the different
parties had determinable, though undivided interest in the
property in question.
RR. No class suit to recover damages for personal reputation
- There is no class suit in an action filed by associations of
sugar planters to recover damages in behalf of individual
sugar planters for an allegedly libelous article in an
international magazine. There is no common or general
interest in reputation of a specific individual. Each of the
sugar planters has a separate and distinct reputation in the
community not shared by the others.
SS. Common or general interest in the environment and
natural resources
- There is a class suit in an action filed by minors represented
by their parents, in behalf of themselves and others who are
equally concerned about the preservation of the country's
resources, their generation as well as generations yet
unborn, in a suit filed to compel the Secretary of the
Department of Environment and Natural resources to (1)
cancel all existing timber license agreements in the country;
and (2) cease and desist from receiving, accepting,
processing, renewing or approving new timber license
agreements.
- In what could be deemed a novel ruling, the Court held:
"We find no difficulty in ruling that they can, for
themselves, for others of their generation and for the
succeeding generations, file a class suit. Their personality to
sue in behalf of the succeeding generations can only be
based on the concept of intergenerational responsibility
insofar as the right to a balanced and healthful ecology is
concerned. Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the
created world in its entirety. Such rhythm and harmony
indispensably include, inter alia, the judicious disposition,
utilization, management, renewal and conservation of the
country's forest, mineral, land, waters, fisheries, wildlife,
off-shore areas and other natural resources to the end that
their exploration, development and utilization be equitably
accessible to the present as well as future generations.
Needless to say, every generation has a responsibility to the
next to preserve that rhythm and harmony for the full
enjoyment of a balanced and healthful ecology. Put a little
differently, the minors' assertion of their right to a sound
environment constitutes, at the same time, the performance
of their obligation to ensure the protection of that right for
the generations to come.
Illustration (Bar 2005)
(a) xxx
(b) xxx
(c) xxx
(d) Distinguish a derivative suit from a class suit.
Suggested answer.
A derivative suit is corporate law concept which is
filed by a stockholder in behalf of the corporation to protect
the interests of the latter and is asserted because of the
failure of the board of directors, deliberate or otherwise to
act in protection of the corporation (Black's 5th Ed. 399; Lim
vs. Lim-Yu, 352 SCRA 216). A class suit is a procedural device
availed of by persons having a common or general interest in
a subject matter and are so numerous that it would be
practicable to join all of them. The suit is filed by a person
or by a few in behalf of himself and all the members of his
class (Sec. 12, Rule 3, Rules of Court).
In a derivative suit, the cause of action belongs to
the corporation and not to the stockholder who initiates the
suit. In a class suit, the cause of action belongs to the
members of the class.
Page61
Illustration (Bar 1994)
Four hundred residents of Barrio Ramos initiated a
class action suit through Albert, a former Mayor of the town,
to recover damages sustained due to their exposure to toxic
waste and fumes emitted by the cooking gas plant of Top
Fuel Gas Corporation located in the town.
Is the class suit proper?
Suggested answer
The class suit is not proper. For a class suit to
prosper, the subject matter of the controversy must be one
of common or general interest to the members of the class
(Sec. 12, Rule 3, Rules of Court). The damages suffered by an
individual resident of the town is not shared in common by
the others and affected only his own interest. Every plaintiff
must allego and provo the injury he sustained.
Illustration (Bar 1991)
An airplane carrying 200 passengers crashed
somewhere in the jungles of Agusan. All the passengers and
crew perished. Twenty (20) relatives of the fatalities filed for
themselves and in behalf of the relatives of all those who
perished in the mishap a class suit for damages totaling P5
million against the airline. The propriety of the class suit is
questioned by the defendant. Resolve the issue.
Suggested answer.
The class suit is not proper. For a class suit to
prosper, the subject matter of the controversy must be one
of common or general interest to the members of the class
(Sec. 12, Rule 3, Rules of Court). Each of the plaintiffs has a
separate claim or injuries not shared in common by the
others. Consequently each must prove his own damages.
CHAP. 4: FILING, AMENDMENT AND DISMISSAL BY THE
PLAINTIFF
A. FILING OF THE COMPLAINT (Rules 1 & 13)
I. Meaning of filing
> filing of the complaint - the act of presenting the said
complaint to the clerk of court (Sec. 1, Rule 13, Rules of
Court). For the purpose of filing, the original must be
presented (Sec. 3, Rule 13, Rules of Court).
II. Significance of filing of the complaint
- The filing of the complaint signifies the commencement of
the civil action (Sec. 5, Rule 1, Rules of Court). By the filing
of the complaint, the court also acquires jurisdiction over the
person of the plaintiff. Submission to the jurisdiction of the
court is implied from the very filing of the complaint where
affirmative relief is prayed for by the plaintiff. It also has the
effect of tolling the running of the period of prescription
pursuant to Art. 1155 of the Civil Code of the Philippines.
III. Payment of docket fees and acquisition of jurisdiction
l. It is not simply the filing of the complaint or appropriate
initiatory pleading but the payment of the prescribed docket
fee, that vests a trial court with jurisdiction over the subject
matter or nature of the action.
In connection with the payment of docket fees, the court
requires that all complaints, petitions, answers and similar
pleadings must specify the amount of damages being prayed
for both in die, body of the pleading and in the prayer
therein and said damages shall be considered in the
assessment of the filing fees; otherwise such pleading shall
not be accepted for filing or shall be expunged from the
record. Any defect in the original pleading resulting in
underpayment of the docket fee cannot be cured by
amendment, such as by the reduction of the claim as, for all
legal purposes, there is no original complaint over which the
court has acquired jurisdiction.
2. Indeed, a court acquires jurisdiction over the claim of
damages upon payment of the correct docket fees.
3. The rule on payment of docket fee has, in some instances,
been subject to the rule on liberal interpretation. Thus, in a
case, it was held that while the payment of the required
docket fee is a jurisdictional requirement, even its
nonpayment at the time of filing does not automatically
cause the dismissal of the case, as long as the fee is paid
within the applicable prescriptive or reglementary period.
Also, if the amount of docket fees is insufficient
considering the amount of the claim, the party filing the case
will be required to pay the deficiency, but jurisdiction is not
automatically lost.
IV. Payment of docket fees for cases on appeal
1. The Rules of Civil Procedure, as amended, which took
effect on July 1, 1997, now require that appellate docket and
other lawful fees must be paid within the same period for
taking an appeal. This is clear from the opening sentence of
Section 4, Rule 41 of the same rules that, "(W)ithin the
period for taking an appeal, the appellant shall pay to the
clerk of court which rendered the judgment or final order
appealed from, the full amount of the appellate court docket
and other lawful fees."
2. The Supreme Court has consistently held that payment of
the docket fee within the prescribed period is mandatory for
the perfection of an appeal. Without such payment, the
appellate court does not acquire jurisdiction over the subject
matter of the action and the decision sought to be appealed
from becomes final and executory.
Hence, non-payment is a valid ground for the dismissal of
an appeal (M.A. Santander Construction. Inc. vs. Villanueva,
GR. No. 136477, November 10, 2004). However, delay in the
payment of the docket fees confers upon the court a
discretionary, not a mandatory power to dismiss an appeal.
B. AMENDMENT OF COMPLAINT (Rule 10)
I. Amendment as a matter of right
1. A plaintiff has the right to amend his complaint once at
any time before a responsive pleading is served by the other
party or in case of a reply to which there is no responsive
pleading, at any time within ten (10) days after it is served
(Sec. 2, Rule 10, Rules of Court). Thus, before an answer is
served on the plaintiff, the latter may amend his complaint
as a matter of right. The defendant may also amend his
answer, also as a matter of right, before a reply is served
upon him.
- Sec. 2 refers to an amendment made before the trial court,
not to amendments before the Court of Appeals. The Court of
Appeals is vested with jurisdiction to admit or deny amended
Page62
petitions filed before it.
2. The right to amend a pleading as matter of right may,
according to the Rules, be exercised only once (Sec. 2, Rule
10, Rules of Court). Hence, even if no responsive pleading
has yet been served, if the amendment is subsequent to a
previous amendment made as a matter of right, the
subsequent amendment must be with leave of court.
3. Before the service of 'a responsive pleading, a party has
the absolute right to amend his pleading, regardless of
whether a new cause of action or change in theory is
introduced.
II. Applicability of mandamus
- The court would be in error if it refuses to admit an
amended pleading when its exercise is a matter of right. This
error is correctible by mandamus.
III. A motion to dismiss is not a responsive pleading (Bar
1979;2005)
1. If a motion to dismiss is filed, an amendment to the
complaint would still be a matter of right during the
pendency of the motion to dismiss. Such a motion is not a
responsive pleading and its filing does not preclude the
exercise of the plaintiff's right to amend his complaint.
2. Even if the motion to dismiss is granted by the court, the
plaintiff may still amend his complaint as a matter of right
before the dismissal becomes final as long as no answer has
yet been served.
- To illustrate: PP filed an action based on an oral loan
against DD who filed a motion to dismiss the complaint for
failure to state a cause of action because the allegations of
the complaint do not allege that the debt is already due and
demandable at the time the complaint was filed. Instead of
opposing the motion, PP filed an amendment to the
complaint to correct the deficiencies in its allegations. The
amendment is a matter of right and hence, cannot be refused
by the court.
IV. Amendment by leave of court (Bar 1994; 1986)
1. Leave of court is required for a substantial amendment
made after service of a responsive pleading (Sec. 3, Rule 10,
Rules ol'Court). The plaintiff; fir example, cannot amend his
complaint by changing his cause of action or adding a new
one without leave of court.
2. After a responsive pleading is filed, an amendment to the
complaint may be substantial and will correspondingly
require a substantial alteration in the defenses of the
adverse party. The amendment of the complaint is not only
unfair to the defendant but will cause unnecessary delay in
the proceedings. Leave of court is thus, required. On the
other hand, where no responsive pleading has yet been
served, no defenses would be altered. The amendment of the
pleading will not then require leave of court.
V. Amendment to cure a failure to state a cause of action
1. If the complaint failed to aver the fact that certain
conditions precedent were undertaken and complied with,
the failure to so allege the same may be corrected by an
amendment of the complaint. Section 5 of Rule 10 likewise
applies to situations wherein evidence not within the issues
raised in the pleadings is presented by the parties during the
trial and was not objected to. The provision also covers
situations where, to conform to evidence not objected to by
the adverse party, the pleadings are sought to be amended
on motion of a party. Thus, a complaint which fails to state a
cause of action may be cured by evidence presented during
the trial.
- For example, a complaint filed by a guarantor to collect a
sum of money from the debtor fails to state a cause of action
if the complaint does not allege that the creditor of the
debtor has been paid by the guarantor even if in fact there
was payment. However, if during the course of the
proceedings, evidence is offered on the fact of payment
without objection from the debtor, the defect in the
complaint was cured by the evidence. The plaintiff may then
move for the amendment of his complaint to conform to the
evidence.
2. Where the complaint was filed at a time where no cause
of action has yet accrued in favor of the plaintiff, an
amendment cannot cure the defect. The reason for this is
plain: There is no cause of action to cure where there is none
in the first place.
- In a case where an action was filed for the collection of
certain loans under promissory notes which were not yet due,
the Supreme Court held: "x x x the curing effect under
Section
5 is applicable only if a cause of action in fact exists at the
time the complaint is filed, but the complaint is defective for
failure to allege the essential facts. x x x The curing effect
will also apply in a situation where there was in fact a cause
of action and the only problem was the insufficiency of the
allegations in the complaint.
- "It thus follows that a complaint whose cause of action has
not yet accrued cannot be cured or remedied by an amended
or supplemental pleading alleging the existence or accrual of
a cause of action while the case is pending. Such an action is
prematurely brought and is, therefore, a groundless suit,
which should be dismissed by the court upon proper motion
seasonably filed by the defendant. The underlying reason for
this rule is that a person should not be summoned before the
public tribunals to answer for complaints which are
premature.
3. Sec. 5 of Rule 10 envisions two situations: The first is
when evidence is introduced on an issue not alleged in the
pleadings and no objection was interposed by the other
party. The second is when evidence is offered on an issue not
raised in the pleadings but an objection was interjected. The
rule in the second scenario is that the court may nevertheless
admit the evidence where the objecting party fails to show
that the admission of the evidence would prejudice him in his
defense. The court must however, give him a continuance to
enable him to meet the new situation.
VI. Amendment to correct a jurisdictional defect before a
responsive pleading is served
1. A fair reading of jurisprudence recognizes the right of a
pleader to amend his complaint before a responsive pleading
is served even if its effect is to correct a jurisdictional
Page63
defect. The argument that the court cannot allow such type
of amendment since the court must first possess jurisdiction
over the subject matter of the complaint before it can act on
any amendment has no application upon an amendment that
is made as matter of right.
2. In one case involving a litigation over a parcel of land, the
complaint filed with the then Court of First Instance (now
Regional Trial Court), a complaint alleging forcible entry.
The defendants filed a motion to dismiss alleging that the
court has no jurisdiction over an action for forcible entry.
Without waiting for the resolution of the motion to dismiss,
the plaintiff filed an amended complaint with new
allegations which transformed the original allegations of
forcible entry into an action for quieting of title, an action
which at that time was solely cognizable by the Court of First
Instance. The trial court admitted the amended complaint,
ordered the defendants to answer it and denied the motion
to dismiss. The Supreme Court sustained the trial court as
being consistent with the purpose and spirit of the Rules.
3. In another case filed before the City Court of Manila to
recover unpaid rentals with a prayer that an order be issued
for the surrender of the premises by the defendant to the
plaintiff', the defendant filed a motion to dismiss on the
ground that the amount sought to be recovered is beyond the
jurisdiction of the court and that there are no allegations in
the complaint showing that the defendant was unlawfully
withholding the premises from the plaintiff. Before action
could be taken on the motion to dismiss, the plaintiff
amended the complaint, to include the requisite allegations.
The court denied the motion to dismiss and the opposition to
the amended complaint. The court ruled that since no
responsive pleading was served at the time of the
amendment, the plaintiff had done so as a matter of course.
Reiterating the rule that a motion to dismiss is not a
responsive pleading, the Supreme Court sustained the trial
court.
VII. Amendment to correct a jurisdictional defect after a
responsive pleading is served
1. An amendment of the complaint to correct a jurisdictional
error cannot be validly done after a responsive pleading is
served. The amendment this time would require leave of
court, a matter which requires the exercise of sound judicial
discretion. The exercise of this discretion requires the
performance of a positive act by the court. If it grants the
amendment, it would be acting on a complaint over which it
has no jurisdiction. Its action would be one performed
without jurisdiction.
- The situation is vastly different from an amendment as a
matter of right. Here, the court does not act. The admission
of the amendment is a ministerial duty of the court. It
requires no positive action from the court. Since it would not
be acting in this regard, it could not be deemed as acting
without jurisdiction.
2. In one case, a former employee filed an action for
recovery of compensation for unpaid holiday and overtime
services with the then Court of Industrial Relations against
his former employer. The defendant filed a motion to dismiss
but was denied. The employer then filed an answer invoking
as one of its affirmative defenses lack of jurisdiction of the
court over the subject matter since the complaint did not
allege the existence of an employer-employee relationship
between the parties. The complaint alleged neither illegal
dismissal nor seeks for the reinstatement of the plaintiff.
Realizing, a jurisdictional error, the plaintiff filed leave to
amend his complaint and to admit an amended pleading
alleging illegal dismissal and a claim for reinstatement.
Speaking on the issue of the propriety of the admission of the
amendment, the Supreme Court ruled that a "complaint
cannot be amended to confer jurisdiction on the court in
which it was filed, if the cause of action originally set forth
was not within the court's jurisdiction" Note that in Campos
Rueda, an answer has already been served and filed.
- Similarly, in an action for damages filed before the then
Court of First Instance (now Regional Trial Court) against a
sheriff for an alleged illegal levy upon the property of the
plaintiff, the latter sought to amend his complaint after an
answer has been served by the defendant. The amendment
was made when the plaintiff realized that the amount
alleged as damages was below the jurisdiction of the court.
The Supreme Court held that it was error to admit the
amendment because the court must first acquire jurisdiction
over the subject matter of the complaint in order to act
validly on the same including its amendment.
Illustration (Bar 2005)
On May 12, 2005, the plaintiff filed a complaint in
the Regional Trial Court of Quezon City for the collection of
P250,000.00. The defendant filed a motion to dismiss the
complaint on the ground that the court had no jurisdiction
over the action since the claimed amount of P250,000.00 is
within the exclusive jurisdiction of the Metropolitan Trial
Court of Quezon City.
Before the court could resolve the motion, the
plaintiff, without leave of court, amended his complaint to
allege a new cause of action consisting in the inclusion of an
additional amount of P200,000.00, thereby increasing his
total claim to P450,000.00 The plaintiff thereafter filed his
opposition to the motion to dismiss, claiming that the
Regional Trial Court had jurisdiction over his action.
Rule on the motion of the defendant with reasons.
Suggested answer.
The motion to dismiss should be denied. The
amendment was made before a responsive pleading was
served on the plaintiff. The pending motion to dismiss did not
affect the right of the plaintiff to amend his complaint as a
matter of right because a motion to dismiss is not a
responsive pleading. 258). The amendment correcting a
jurisdictional defect was proper because no responsive
pleading has been served at the time of the amendment. The
rule that a complaint cannot be amended to confer
jurisdiction on a court where there was none applies only to
an amendment made after a responsive pleading has been
served.
VIII. Amendment to conform to the evidence
1. In the event that a party presents evidence on a matter
not in issue, the adverse party has a reason to object.
Common reason dictates that a party cannot breach the basic
procedural rule that the trial can deal only with matters
raised by the parties in their pleadings. Neither can a court
render judgment on a matter not in issue because a
Page64
judgment must conform to the pleadings and the theory of
the action under which the case was tried. But when issues
not raised in the pleadings are tried with the express or
implied consent of the parties, such as when no objection is
made by either, such issues not raised shall be treated as if
they had been put in issue by the pleadings (Sec. 5, Rule 10,
Rules of Court).
Illustration (Bar 2004)
In a complaint for a sum of money filed before the
MM Regional Trial Court, plaintiff did not mention or even
just hint at any demand for payment made on defendant
before commencing suit. During the trial, plaintiff duly
offered Exh. "A" in evidence for the stated purpose of proving
the making of extrajudicial demand on defendant to pay
P500,000, the subject of the suit. Exh. "A was a letter of
demand for defendant to pay said sum of money within 10
days from receipt, addressed to and served on defendant
some two months before suit was begun. Without objection
from defendant, the court admitted Exh. "A" in evidence.
Was the court's admission of Exh. "A" in evidence
erroneous or not? Reason.
Suggested answer:
The admission of Exh. ""was not erroneous. Since it
was admitted without objection from the defendant, it is as
if the matter of demand was raised in the pleadings (Sec. 5,
Rule 10, Rules of Court).
2. In a situation where issues not raised in the pleadings are
tried with the express or implied consent of the parties, Sec.
5 of Rule 10 authorizes the amendment of the pleadings to
conform to the evidence upon motion of a party at any time,
even after judgment. If the parties fail to amend the
pleadings, such failure will not affect the trial of these issues
because such issues are treated as having been raised in the
pleadings of the parties (Sec. 5, Rule 10, Rules of Court).
This provision under the Rules virtually authorizes an implied
amendment of the pleadings.
Illustration (Bar 1992)
A complaint was filed by the counsel for Superior
Sales (an entity without a juridical personality) against Mr.
Garcia on a money claim for goods delivered. Mr. Garcia did
not file a motion to dismiss. Eventually, trial was held and his
liability was established through several invoices, each of
which uniformly showed on its face that Mr. Tan is the
Proprietor of Superior Sales. After Superior Sales had rested
its case, Mr. Garcia filed a motion to dismiss on the ground
that since there is actually no person properly suing as
plaintiff, no relief can be granted by the court. On the other
hand, the counsel for Superior Sales filed a motion to amend
the complaint to make it conform to the evidence, that the
real party plaintiff is Mr. Tan. The court denied said motion
on the ground that it was filed too late and instead,
dismissed the case.
Did the court act correctly?
Suggested answer:
The court did not act correctly. Although there was
a defect in the designation of the plaintiff because it had no
juridical personality to sue, this defect was cured when the
defendant did not object to the evidence that it was Mr. Tan
who was the proprietor of the business and in whose favor
the defendant is liable. This matter of Mr. Tan being the
aggrieved party and thus, the real party-ininterest as
plaintiff, was tried with the consent of the defendant. An
amendment to conform to the evidence is but proper under
the circumstances. The contention of the court that the
motion was filed too late is with no legal basis. Under Sec. 5
of Rule 10, the motion to amend may be presented at any
time, "even after judgment."
IX. Effect of the amendment on the original pleading
1. An amended pleading supersedes the original one which it
amends (Sec. 8, Rule 10, Rules of Court). The original
pleading loses its status as a pleading, is deemed withdrawn
and disappears from the record.
2. It has been held that the original complaint is deemed
superseded and abandoned by the amendatory complaint
only if the latter introduces a new or different cause of
action.
X. Effect of the amendment on admissions made in the
original pleading
- Admissions made in the original pleadings cease to be
judicial admissions. They are to be considered as
extrajudicial admissions. "However, admissions in superseded
pleadings may be received in evidence against the pleader. .
." (Sec. 8, Rule 10, Rules of Court) and in order to be utilized
as extrajudicial admissions, they must, in order to have such
effect, be formally offered in evidence.
Illustration (Bar 1993)
In an action for reconveyance of a parcel of land
filed in the Regional Trial Court, the defendant through his
lawyer filed an answer therein admitting the averment in the
complaint that the land was acquired by the plaintiff through
inheritance from his parents, the former owners thereof.
Subsequently, the defendant changed his lawyer
and, with leave of court, amended the answer. In the
amended answer, the abovementioned admission no longer
appears. Instead, the alleged ownership of the land by the
plaintiff was denied coupled with the allegation that the
defendant is the owner of the land for the reason that he
bought the same from the plaintiff's parents during their
lifetime.
After trial, the Regional Trial Court rendered a
decision upholding the defendant's ownership of the land.
On appeal, the plaintiff contended that the
defendant is bound by the admission contained in his original
answer.
Is the contention of plaintiff correct?
Suggested answer:
The contention of the plaintiff is not correct. An
amended pleading supersedes the pleading that it amends
(Sec. 8, Rule 10, Rules of Court). Admissions made in the
original pleadings cease to be judicial admissions. They are
to be considered as extrajudicial admissions. The admission
of the defendant should have been offered in evidence.
XI. When summons not required after complaint is amended
1. Although the original pleading is deemed superseded by
the pleading that amends it, it does not ipso facto follow
that service of new summons is required. Where the
defendants have already appeared before the trial court by
Page65
virtue of a summons in the original complaint, the amended
complaint may be served upon them without need of another
summons, even if new causes of action are alleged. A court's
jurisdiction continues until the case is finally terminated
once it is acquired. Conversely, when the defendants have
not yet appeared in court, new summons on the amended
complaint must be served on them. It is not the change of a
cause of action that gives rise to the need to serve another
summons for the amended complaint but rather the
acquisition of jurisdiction over the persons of the
defendants. If the trial court has not yet acquired
jurisdiction over them, a new summons for the amended
complaint is required
2. However, where a new defendant is impleaded, summons
must be served upon him so that the court may acquire
jurisdiction over his person because logically, the new
defendant cannot be deemed to have already appeared by
virtue of summons under the original complaint in which he
was not yet a party.
Illustration (Bar 1999)
When an additional defendant is impleaded in the
action, is it necessary that summons be served upon him?
Suggested answer.
Summons must be served upon the defendant who
has not yet appeared before the court under the original
complaint. It is necessary to acquire jurisdiction over his
person otherwise the judgment will be void as to him, unless
he voluntarily appears in the action (Sec. 20, Rule 14, Rules
of Court).
XII. Supplemental pleadings
1. > supplemental pleading - one which sets forth
transactions, occurrences, or events which have happened
since the date of the pleading sought to be supplemented
(Sec. 6, Rule 10, Rules of Court).
2. The filing of supplemental pleadings requires leave of
court. The court may allow the pleading only upon such
terms as are just. This leave is sought by the filing of a
motion with notice to all parties (Sec. 6, Rule 10, Rules of
Court).
XIII. Cause of action in supplemental pleadings
1. When the cause of action in the supplemental complaint is
different from the cause of action mentioned in the original
complaint, the court should not admit the supplemental
complaint.
2. As its very name denotes, a supplemental pleading only
serves to bolster or add something to the primary pleading. A
supplemental pleading exists side by side with the original. It
does not replace that which it supplements. Moreover, a
supplemental pleading assumes that the original pleading is
to stand and that the issues joined with the original pleading
remained an issue to be tried in the action. It is but a
continuation of the complaint. Its usual office is to set up
new facts which justify, enlarge or change the kind of relief
with respect to the same subject matter as the controversy
referred to in the original complaint.
- When the cause of action stated in the supplemental
complaint is different from the causes of action mentioned in
the original complaint, the court should not admit the
supplemental complaint; the parties may file supplemental
pleadings only to supply deficiencies in aid of an original
pleading, but not to introduce new and independent causes
of action.
C. DISMISSAL BY THE PLAINTIFF (Rule 17)
I. Dismissal by mere notice of dismissal
1. Before the service of an answer or the service of a motion
for summary judgment, a complaint may be dismissed by the
plaintiff by filing a notice of dismissal (Sec. 1, Rule 17, Rules
of Court).
2. Upon the filing of the notice of dismissal, the court shall
issue an order confirming the dismissal (Sec. 1, Rule 17,
Rules of Court).
3. It is not the order confirming the dismissal which operates
to dismiss the complaint. As the name of the order implies,
said order merely confirms a dismissal already effected by
the filing of the notice of dismissal. The court does not have
to approve the dismissal because it has no discretion on the
matter. Before an answer or a motion for summary judgment
has been served upon the plaintiff, the dismissal by the
plaintiff' by the filing of a notice is a matter of right. The
dismissal occurs as of the date the notice is filed by the
plaintiff and not the date the court issues the order
confirming the dismissal.
4. Under the clear terms of Sec. 1 of Rule 17, the dismissal as
a matter of right ceases when an answer or a motion for
summary judgment is served on the plaintiff and not when
the answer or the motion is filed with the court. Thus, if a
notice of dismissal is filed by the plaintiff even after an
answer has been filed in court but before the responsive
pleading has been served on the plaintiff, the notice of
dismissal is still a matter of right.
Illustration (Bar 1989)
Before any answer or motion for summary judgment
could be filed (the appropriate term under the present rule is
served) by the defendant, the plaintiff' filed a notice of
dismissal of his complaint. The trial court simply noted the
dismissal. Is the case considered dismissed?
Suggested answer.
The case is considered dismissed. No order of
dismissal from the court is required to effect the dismissal
when such dismissal is a matter of right. The order issued by
the court is one which merely confirms the dismissal (Sec. 2,
Rule 10, Rules of Court).
II. Dismissal without prejudice
1. A dismissal made by the filing of a notice of dismissal is a
dismissal without prejudice, i.e., the complaint can be
refiled. This is the general rule. The dismissal will however,
be one with prejudice in any of the following situations:
(a) the notice of dismissal by the plaintiff provides that the
dismissal is with prejudice; or
(b) the plaintiff has previously dismissed the same case in
a court of competent jurisdiction (Sec. 1, Rule 17, Rules of
Court).
Page66
2. If the plaintiff files a notice of dismissal providing therein
a reason that prevents the refiling of the complaint, the
dismissal must be deemed one with prejudice even if the
notice does not state that the dismissal is with prejudice.
This happens when for instance, the notice provides that the
plaintiff recognizes the fact of prescription or extinguishment
of the obligation of the defendant or for reasons stated in
Sec. 5 of Rule 16.
III. Two-dismissal rule
l. The `two-dismissal' rule applies when the plaintiff has (a)
twice dismissed actions, (b) based on or including the same
claim, (c) in a court of competent jurisdiction. The second
notice of dismissal will bar the refiling of the action because
it will operate as an adjudication of the claim upon the
merits. In other words, the claim may only be filed twice,
the first being the claim embodied in the original complaint.
Since as a rule, the dismissal is without prejudice, the same
claim may be filed. If the refiled claim or complaint is
dismissed again through a second notice of dismissal, that
second notice triggers the application of the two-dismissal
rule and the dismissal is to be deemed one with prejudice
because it is considered as an adjudication upon the merits.
2. For the above rule to apply, the complaints must have
been dismissed in a court of competent jurisdiction. To
illustrate: PP files in the Regional Trial Court of Manila, an
action to collect P300,000.00 from DD. The complaint was
dismissed when PP immediately filed a notice of dismissal.
The same claim was again filed in the Metropolitan Trial
Court of Manila. Before DD served either an answer or a
motion for summary judgment, PP filed a notice of dismissal.
Does the two-dismissal rule apply? It does not. The first
court, the RTC was not a court of competent jurisdiction
because the claim was below its jurisdictional amount.
Illustration Mar 1989)
1. XXX
2. Lawrence filed a complaint against Grace to collect a loan
of P50,000.00. Later because of their intimate relationship in
the past, Lawrence filed a notice of dismissal of his
complaint. Subsequently, the two had a serious
misunderstanding so that Lawrence filed a complaint against
Grace to collect another loan of P100,000.00. Lawrence and
Grace reconciled before the latter could file (serve) her
answer or a motion for summary judgment. Was the dismissal
with or without prejudice?
Suggested answer:
The dismissal is without prejudice because the 'two-
dismissal' rule does not apply. The dismissal of the claim of
P100,000.00 is based on a loan different from the first claim
of P50,000.00.
IV. Dismissal by filing a motion to dismiss
- Once either an answer or a motion for summary judgment
has been served on the plaintiff, the dismissal is no longer a
matter of right and will require the filing of a motion to
dismiss, not a mere notice of dismissal. The motion to dismiss
will now be subject to the approval of the court which will
decide on the motion upon such terms and conditions as are
just (Sec. 2, Rule 17, Rules of Court). The dismissal under
Sec. 2 of Rule 17 is no longer a matter of right on the part of
the plaintiff but a matter of discretion upon the court.
V. Effect of dismissal upon a counterclaim already pleaded
1. If a counterclaim has already been pleaded by the
defendant prior to the service upon him of the plaintiff's
motion to dismiss, and the court grants the said motion to
dismiss, the dismissal "shall be limited to the complaint"
(Sec. 2, Rule 17, Rules of Court). The phraseology of the
provision is clear: the counterclaim is not dismissed, whether
it is a compulsory or a permissive counterclaim because the
rule makes no distinction. The rule provides:
" * * * The dismissal shall be without prejudice to
the right of the defendant to prosecute his counterclaim * * *"
(Sec. 2, Rule 17, Rules of Court).
2. The defendant if he so desires may prosecute his
counterclaim either in a separate action or in the same
action. Should he choose to have his counterclaim resolved in
the same action, he must notify the court of his preference
within fifteen (15) days from notice of the plaintiff's motion
to dismiss (Sec. 2, Rule 17, Rules of Court). Should he opt to
prosecute his counterclaim in a separate action, the court
should render the corresponding order granting and reserving
his right to prosecute his claim in a separate complaint.
3. A similar rule is adopted in Sec. 6, Rule 16 and Sec. 3 of
Rule 17, wherein the dismissal of the complaint does not
carry with it the dismissal of the counterclaim. The same
provision also grants the defendant a choice in the
prosecution of his counterclaim.
VI. Dismissal without prejudice
- The dismissal authorized under Sec. 2 of Rule 17 is a
dismissal without prejudice except if the order of dismissal
specifies that it is without prejudice (Sec. 2, Rule 17, Rules
of Court).
VII. Dismissal due to the fault of plaintiff
1. A complaint may be dismissed even if the plaintiff has no
desire to have the same dismissed. The dismissal in this case
will be through reasons attributed to his fault. Sec. 3 of Rule
17 provides the following grounds for dismissal:
(a) the failure of plaintiff, without justifiable reasons, to
appear on the date of the presentation of his evidence in
chief;
(b) the failure of the plaintiff to prosecute his action for
an unreasonable length of time;
(c) the failure of the plaintiff to comply with the Rules of
Court; or
(d) the failure of the plaintiff to obey any order of the
court.
2. The dismissal due to the fault of the plaintiff may be done
by the court on its own motion (motu proprio) or upon a
motion filed by the defendant (Sec. 2, Rule 17, Rules of
Court).
VIII. Effect of dismissal on the counterclaim under Sec. 3
1. The dismissal of the complaint under Sec. 3 of Rule 17,
i.e., because of the fault of the plaintiff, is without
prejudice to the right of the defendant to prosecute his
counterclaim in the same action or in a separate action.
2. A recent case, Pinga vs. Heirs of Santiago confirms the
Page67
above rule:
"Under Section 3, Rule 17 of the 1997 Rules of Civil
Procedure, the dismissal of the complaint due to the fault of
plaintiff does not necessarily carry with it the dismissal of
the counterclaim. The rule makes no distinction between a
compulsory and a permissive counterclaim and hence, covers
both types. By the very tenor of Sec. 3 of Rule 17 of the
Rules of Court, the dismissal of the complaint is without
prejudice to the right of defendants to prosecute the
counterclaim.
xxx
"In contrast, Sec. 3, Rule 17 of the 1964 Rules was silent on
the effect of the dismissal of the complaint on existing
counterclaims. xxx "Despite the silence of Sec. 3 of the then
Rule 17 of the old Rules of Court previous jurisprudence laid
emphasis on whether the counterclaim was compulsory or
permissive in character. Such distinction was provided by
another provision of the 1964 Rules particularly Section 2 of
Rule 17, which stated that in instances wherein the plaintiff
seeks the dismissal of the complaint, "if a counterclaim has
been pleaded by a defendant prior to the service upon him of
the plaintiff's motion to dismiss, the action shall not be
dismissed against the defendant's objection unless the
counterclaim can remain pending for independent
adjudication."
xxx
"Of the cases before the adoption of the 1997 Rules
of Civil Procedure, BA Finance Corp. vs. Co., G.R. No.
105751, 30 June 1993, 224 SCRA 163, particularly stands out
among previous cases dealing with the effect of the dismissal
of an action on the counterclaims already pleaded before the
dismissal. BA Finance Corporation held that the dismissal of
the complaint for nonappearance of plaintiff at the pre-trial,
upon motion of the defendants, carried with it the dismissal
of their compulsory counterclaim. The Court reiterated the
rule that "a compulsory counterclaim cannot remain pending
for independent adjudication by the court... as it is auxiliary
to the proceeding in the original suit and merely derives its
jurisdictional support therefrom.
xxx
"Under this revised section [21, where the plaintiff moves for
the dismissal of his complaint to which a counterclaim has
been interposed, the dismissal shall be limited to the
complaint. Such dismissal shall be without prejudice to the
right of the defendant to either prosecute his counterclaim in
a separate action or to have the same resolved in the same
action. Should he opt for the first alternative, the court
should render the corresponding order granting and reserving
his right to prosecute his claim in a separate complaint.
Should he choose to have his counterclaim disposed of in the
same action wherein the complaint had been dismissed, he
must manifest such preference to the trial court within 15
days from notice to him of plaintiff's motion to dismiss xxx.
"With the aforestated amendments in Secs. 2 and 3
laying down specific rules on the disposition of counterclaims
involved in the dismissal actions, the controversial doctrine
in BA Finance Corporation vs. Co, et al. (G.R. No. 105751,
June 30,1993) has been abandoned, together with the
apparent confusion on the proper application of said Secs. 2
and 3. x x x
"Previous rulings contrary to Secs. 2 and 3 of Rule
17 should be deemed no longer controlling and abandoned.
Pinga further holds:
" To be certain, when the Court promulgated the
1997 Rules of Civil Procedure, including the amended Rule
17, those previous jural doctrines that were inconsistent with
the new rules incorporated in the 1997 Rules of Civil
Procedure were implicitly abandoned insofar as incidents
arising after the effectivity of the new procedural rules on 1
July 1997. BA Finance, or even the doctrine that a
counterclaim may be necessarily dismissed along with the
complaint, clearly conflicts with the 1997 Rules of Civil
Procedure. The abandonment of BA Finance as doctrine
extends as far back as 1997, when the Court adopted the new
Rules of Civil Procedure. If, since then, such abandonment
has not been affirmed in jurisprudence, it is only because no
proper case has arisen that would warrant express
confirmation of the new rule. That opportunity is here and
now, and we thus rule that the dismissal of a complaint due
to the fault of the plaintiff is without prejudice to the right
of the defendant to prosecute any pending counterclaims of
whatever nature in the same or separate action. We confirm
that BA Finance and all previous rulings of the Court that are
inconsistent with this present holding are now abandoned"
IX. Dismissal with prejudice
- The dismissal under Sec. 3 of Rule 17 shall have the effect
of an adjudication on the merits, unless otherwise declared
by the court. Hence, as a rule, it is a dismissal with
prejudice.
CHAP. 5: SUMMONS
I. Nature of summons (Rule 14)
1. > Summons - the writ by which the defendant is notified of
the action brought against him
2. The issuance of summons is not discretionary on the part
of the court or the clerk of court but is a mandatory
requirement. The provisions of Sec. 1 of Rule 14 direct that
the clerk of court shall issue the corresponding summons to
the defendant upon (a) the filing of the complaint, and (b)
the payment of the requisite legal fees. The use of the term
"shall" leaves no doubt of the mandatory character of
summons.
II. Purpose of summons
1. In an action in personam, the purpose of summons is not
only to notify the defendant of the action against him but
also to acquire jurisdiction over his person
- The filing of the complaint does not enable the court to
acquire jurisdiction over the person of the defendant. By the
filing of the complaint and the payment of the required filing
and docket fees, the court acquires jurisdiction only over the
person of the plaintiff, not over the person of the defendant.
Acquisition of jurisdiction over the latter is accomplished by
a valid service of summons upon him. Service of summons
logically follows the filing of the complaint. Note further that
the filing of the complaint tolls the running of the
prescriptive period of the cause of action in accordance with
Article 1155 of the Civil Code of the Philippines.
2. 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
Page68
satisfy the constitutional requirement of due process
III. To whom summons is directed
- The summons is a writ that is directed to the defendant,
not the plaintiff. It shall be signed by the clerk of court and
under seal (Sec. 2, Rule 14, Rules of Court).
IV. Who serves summons
- 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
(Sec. 3, Rule 14, Rules of Court).
V. Duty of server upon completion of service
1. 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 plaintiffs counsel,
and shall return the summons to the clerk who issued it,
accompanied by proof of service (Sec. 4, Rule 14, Rules of
Court).
2. After the completion of the service, a proof of service is
required to be filed by the server of the summons. The proof
of service of 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 (Sec. 18, Rule 14, Rules of Court).
VI. Uniformity of the rules on summons
- The rules on summons apply with equal force in actions
before the Regional Trial Courts, the Municipal Trial Courts,
the Municipal Circuit Trial Courts and the Metropolitan Trial
Courts (Bar 1989). This is because the procedure in the
Municipal Trial Courts shall be the same as in the Regional
Trial Courts, except (a) where a particular provision
expressly or impliedly applies only to either of said courts, or
(b) in civil cases governed by the Rules on Summary
Procedure (Sec. 1, Rule 5, Rules of Court).
VII. Contents of the summons
- The summons shall contain the following matters: (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 the Rules; and a (c) notice that unless the
defendant so answers, plaintiff will take judgment by default
and may be granted the relief prayed for. A copy of the
complaint (also a copy of an order of appointment of a
guardian ad litem, if necessary) shall be attached to the
original and each copy of the complaint (Sec. 2, Rule 14,
Rules of Court).
VIII. Service upon an entity without a juridical personality
1. Under Sec. 15 of Rule 14, when two or more persons not
organized as an entity with juridical personality enter into a
transaction, they may be sued under the name by which they
are generally or commonly known (Sec. 15, Rule 14, Rules of
Court). Thus, if A, B and C enter into a transaction under the
name, ABC Corporation, an entity which has actually no
juridical personality, A, B, and C may be sued under the
name ABC Corporation. How then may summons be served
upon the non-existent corporation or upon those who
compose the "corporation"?
2. Under Sec. 8 of Rule 14, service may be effected upon all
the defendants by serving summons upon (a) any one of
them, or (b) upon the person in charge of the office or of the
place of business maintained in such name.
IX. Service upon a prisoner
- If the defendant is a prisoner, service upon said prisoner is
to be made by the officer managing the jail or institution
where said prisoner is confined. For this purpose, the jail
manager is deemed deputized as a special sheriff (Sec. 9,
Rule 14, Rules of Court).
X. Service upon a minor and an incompetent
- Service upon a minor, an insane or an incompetent shall be
made (a) upon him personally and (b) on his legal guardian if
he has one, or if none, upon his guardian ad litem. The
appointment of the guardian ad litem shall be applied for by
the plaintiff. If the defendant is a minor, service may be
made also upon his father or mother (Sec. 10, Rule 14, Rules
of Court).
XI. Service upon a private domestic juridical entity
1. "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" (Sec. 11, Rule 14, Rules of
Court). This enumeration has been held to be exclusive and
summons cannot be served upon any other person.
2. In construing the provisions of this rule before its
amendment took effect on July 1, 1997, the Court employed
the principle of substantial compliance. Thus, in Summit
Trading and Development Corporation vs. Avendano, the
Court upheld the validity of service made upon the secretary
of the corporate president. The same liberal construction of
the rule on summons was made in a case where service was
made upon a mere clerk of the corporation.
It was likewise held that service upon the administrator of
the corporate property and recognized as such by the
workers therein is a substantial compliance of the rule.
Service of summons on an operations manager was held valid.
Service of summons on a bookkeeper was also upheld. Other
previous rulings allowed service through a secretary of the
President, or the cashier.
- The case of Millenium Industrial Corporation vs. Tan,
although promulgated after the effectivity of the
amendments to the Rules was decided upon facts occurring
before the effectivity of the 1997 amendments, and hence,
the ruling therein was guided by the rule of substantial
compliance. Service of summons upon a "draftsman" was
upheld because the defendant corporation actually received
the summons from the employee served.
- The much later case of Aboitiz International Forwarders,
Inc. vs. Court of Appeals, which upheld service of summons
upon a customer service representative of defendant
corporation and deemed an "agent" for purposes of summons,
was decided in accordance with facts that transpired prior to
July 1, 1997.
3. The liberal interpretation of the rule considered the tenor
of the then Sec. 13 of Rule 14 (now Sec. 11 of Rule 14),
Page69
which allowed service of summons, among others upon an
"agent" of the defendant juridical entity. This term was
broad enough to allow the application of the rule on
substantial compliance. Service upon an agent is no longer
permitted under the present rules on summons.
4. Finally, in E.B. Villarosa & Partner Ltd. vs. Benito, the
Supreme Court agreed with the petitioner that the
enumeration of persons to whom summons may be served is
"restricted, limited, and exclusive" following the rule on
statutory construction expressio unios est exclusio alterius
and that if the Rules of Court Revision Committee intended
to liberalize the rule on service of summons, it could have
easily done so by clear and concise language. It further ruled
that "Notably, under the new Rules, service of summons upon
an agent of the corporation is no longer authorized." Hence,
the Court, in this case, ruled against the validity of service of
summons made on a mere branch manager of the defendant
corporation.
- In so doing, Villarosa stressed:
"The designation of persons or officers who are
authorized to accept summons for a domestic corporation or
partnership is now limited and more clearly specified in
Section 11, Rule 14 of the 1997 Rules of Civil Procedure. The
rule now states "general manager" instead of only "manager;"
"corporate secretary" instead of"secretary;" and "treasurer"
instead of "cashier." The phrase "agent, or any of its
directors" is conspicuously deleted in the new rule."
5. Significantly, it must be noted that this rule requiring a
strict compliance with the rules on summons is not a novel
policy. Even prior to the effectivity of the 1997 Rules of Civil
Procedure, strict compliance with the rules has been
enjoined. In the case of Delta Motor Sales Corporation vs.
Mangosing, the Court held:
"A strict compliance with the mode of service is
necessary to confer jurisdiction of the court over a
corporation. The officer upon whom service is made must be
one who is named in the statute; otherwise the service is
insufficient. x x x.
"The purpose is to render it reasonably certain that
the corporation will receive prompt and proper notice in an
action against it or to insure that the summons be served on
a representative so integrated with the corporation that such
person will know what to do with the legal papers served on
him. In other words, `to bring home to the corporation
notice of the filing of the action.' x x x.
"The liberal construction rule cannot be invoked and
utilized as a substitute for the plain legal requirements as to
the manner in which summons should be served on a
domestic corporation. x x x." (Underscoring supplied)
6. Villarosa was upheld and confirmed in the subsequent case
of Mason vs. Court of'Appeals. Here, the Court ruled:
"The question of whether the substantial
compliance rule is still applicable under Section 11, Rule 14
of the 1997 Rules of Civil Procedure has been settled in
Villarosa which applies squarely to the instant case. In the
said case, petitioner E.B. Villarosa & Partner Co. Ltd.
(hereafter Villarosa) with principal office address at 102 Juan
Luna St., Davao City and with branches at 2492 Bay View
Drive, Tambo, Parafiaque, Metro Manila and Kolambog,
Lapasan, Cagayan de Oro City, entered into a sale with
development agreement with private respondent Imperial
Development Corporation. As Villarosa failed to comply with
its contractual obligation, private respondent initiated a suit
for breach of contract and damages at the Regional Trial
Court of Makati. Summons, together with the complaint, was
served upon Villarosa through its branch manager at
Kolambog, Lapasan, Cagayan de Oro City. Villarosa filed a
Special Appearance with Motion to Dismiss on the ground of
improper service of summons and lack of jurisdiction. The
trial court denied the motion and ruled that there was
substantial compliance with the rule, thus, it acquired
jurisdiction over Villarosa. The latter questioned the denial
before us in its petition for certiorari. We decided in
Villarosa's favor and declared the trial court without
jurisdiction to take cognizance of the case. We held that
there was no valid service of summons on Villarosa as service
was made through a person not included in the enumeration
in Section 11, Rule 14 of the 1997 Rules of Civil Procedure,
which revised the Section 13, Rule 14 of the 1964 Rules of
Court. We discarded the trial court's basis for denying the
motion to dismiss, namely, private respondent's substantial
compliance with the rule on service of summons, and fully
agreed with petitioner's assertions that the enumeration
under the new rule is restricted, limited and exclusive,
following the rule in statutory construction that expressio
unios est exclusio alterius. Had the Rules of Court Revision
Committee intended to liberalize the rule on service of
summons, we said, it could have easily done so by clear and
concise language. Absent a manifest intent to liberalize the
rule,
we stressed strict compliance with Section 11, Rule 14 of the
1997 Rules of Civil Procedure.
"Neither can herein petitioners invoke our ruling in
Millenium to support their position for said case is not on all
fours with the instant case. We must stress that Millenium
was decided when the 1964 Rules of Court were still in force
and effect, unlike the instant case which falls under the new
rule. Hence, the cases cited by petitioners where we upheld
the doctrine of substantial compliance must be deemed
overturned by Villarosa, which is the later case"
(Underscoring supplied).
XII. Service upon a public corporation
1. When the defendant is the Republic of the Philippines,
service may be effected on the Solicitor General (Section 13,
Rule 14, Rules of Court).
2. When the defendant is a province, city or municipality,
service may be effected on its executive head, or on such
other officer or officers as the law or the court may direct
(Sec. 13, Rule 14, Rules of Court).
XIII. Service upon a defendant whose identity or whereabouts
are unknown
- Where the defendant is designated as unknown, or
whenever his whereabouts are unknown and cannot be
ascertained despite a diligent inquiry, service may, with prior
leave of court, be effected upon the defendant, by
publication in a newspaper of general circulation. The place
and the frequency of the publication is a matter for the court
to determine (Sec. 14, Rule 14, Rules of Court). Note that
the summons by publication applies in any action (Sec. 14,
Page70
Rule 14, Rules of Court). The rule does not distinguish
whether the action is in personam, in rem or quasi in rem.
The tenor of the rule authorizes summons by publication
whatever the action may be as long as the identity of the
defendant is unknown or his whereabouts are unknown.
Under previous rulings, jurisdiction over the defendant in an
action in personam cannot be acquired by summons by
publication.
XIV. Service upon a resident temporarily out of the Philip-
pines
1. Service of summons upon a resident of the Philippines who
is temporarily out of the country, may, by leave of court be
effected out of the Philippines as under the rules on
extraterritorial service in Sec. 15 of Rule 14, i.e., by any of
the following modes: (a) by personal service as in Sec. 6 of
Rule 14; (b) by publication in a newspaper of general
circulation together with a registered mailing of a copy of
the summons and the order of the court to the last known
address of the defendant; or (c) by any manner the court
may deem sufficient (Sec. 16, Rule 14, Rules of Court). Like
in the case of an unknown defendant or one whose
whereabouts are unknown, the rule affecting residents who
are temporarily out of the Philippines applies in any action.
Note also, that summons by publication may be effected
against the defendant.
2. The defendant may however, also be served by substituted
service (Montalban vs. Maximo, 22 SCRA 1070). This is
because even if he is abroad, he has a residence in the
Philippines or a place of business and surely, because of his
absence, he cannot be served in person within a reasonable
time.
XV. Service upon a foreign private juridical entity
1. Service upon a foreign private juridical entity which has
transacted business in the Philippines may be made on (a) its
resident agent designated in accordance with law, or, if
there be no such agent, (b) on the government official
designated by law to that effect, or (c) on any of its officers
or agents within the Philippines (Sec. 12, Rule 14, Rules of
Court).
2. It has been held that when a foreign corporation has
designated a person to receive summons on its behalf
pursuant to the Corporation Code, that designation is
exclusive and service of summons on any other person is
inefficacious.
XVI. Acquisition of jurisdiction over the person of the
defendant
1. Acquiring jurisdiction over the person of the defendant is
mandatory in an action in personam. This is the most basic
rule to remember. But how is this jurisdiction acquired?
2. Jurisprudence tells us that the court's jurisdiction over a
defendant is acquired either upon a valid service of summons
or the defendant's voluntary appearance in court. Stated
otherwise, without a valid service of summons, the court
cannot acquire jurisdiction over the defendant, unless the
defendant voluntarily submits himself to the jurisdiction of
the court. When the defendant does not voluntarily submit to
the court's jurisdiction or there is no valid service of
summons, any judgment of the court over the defendant will
be null and void for lack of jurisdiction over the defendant.
3. There are two ways therefore, by which the court acquires
jurisdiction over the person of the defendant. The first is by
his voluntary appearance, and where there is no voluntary
appearance, the second mode is by a valid service of
summons.
4. An absence of service of summons or an invalid service of
summons will not prevent the court from acquiring
jurisdiction over the defendant as long as he performs acts
that could be construed as a voluntary appearance. This is
because under Sec. 20 of Rule 14, the defendant's voluntary
appearance in the action shall be equivalent to service of
summons.
5. Service of summons is not only a means of acquiring
jurisdiction over the person of the defendant. It is also a
means of complying with the due process requirement of
notice under the constitution. Note that the rules do not
require just a mere service of summons. The service must be
valid.
- Jurisprudence has consistently emphasized the rule that the
modes of service must be strictly followed in order that the
court may acquire jurisdiction over the person of the
defendant.
A. Service in person on the defendant
1. In an action strictly in personam, service in person on the
defendant is the preferred mode of service. This is done by
handing a copy thereof to the defendant in person. If he
refuses to receive and sign for it, the remedy of the server is
to tender the summons to the defendant (Sec. 6, Rule 14). If
the defendant refuses the service, the server should not
resort to substituted service. He must "tender" the summons
to him. Tender of summons is not a separate mode of
service. It is a part of service in person.
2. If the defendant cannot be served in person within a
reasonable time, only then may substituted service under
Sec. 7 of Rule 14 be availed of. The sheriff or server must
first exert all efforts to serve the defendant in person. If this
effort fails, then substituted service can be made. This effort
must be stated in the proof of service. This is required
because substituted service is in derogation of the usual
mode of service.
3. Only if service in person cannot be made promptly can the
process server resort to substituted service. Moreover, the
proof of service of summons must (a) indicate the
impossibility of service of summons within a reasonable time;
(b) specify the efforts exerted to locate the defendant; and
(c) state that the summons was served upon a person of
sufficient age and discretion who is residing in the address,
or who is in charge of the office or regular place of business
of the defendant. It is likewise required that the pertinent
facts proving these circumstances be stated in the proof of
service or in the officer's return. The failure to comply
faithfully, strictly and fully with all the foregoing
requirements of substituted service renders the service of
summons ineffective.
Page71
4. Failure to find the defendants in their residence on the
first and only attempt to effect service in person, does not
justify the availment of substituted service. There was no
attempt by the sheriff to faithfully comply with the
requirements of service in person on the defendant. Worse,
substituted service was made through a girl who was only 11
to 12 years old.
5. In a suit in personam, against a resident of the Philippines
temporarily absent from the country, the defendant may be
served by substituted service because a man temporarily out
of the country leaves a definite place of residence or a
dwelling where he is bound to return. He also leaves his
affairs to someone who protects his interests and
communicates with him on matters affecting his affairs or
business.
- If the defendant is out of the country, he cannot be
expectedly served within a reasonable time. The fact that
"for justifiable causes, the defendant cannot be served
within a reasonable time," constitutes the operative fact that
triggers the application of substituted service. This mode of
service in the case of a resident temporarily absent from the
country is, of course, in addition to the summons by
publication authorized by Sec. 16 of Rule 14 in relation to
Sec. 15 of Rule 14 of the Rules of Court.
6. An ineffective substituted service has certain adverse
effects. First, the period to file a motion to dismiss for lack
of jurisdiction over the defendant's person does not
commence to run since the court has no jurisdiction to
adjudicate the controversy as to him, unless he voluntarily
submits to the jurisdiction of the court (Laus vs. Court
ofAppeals, 219 SCRA 688). Second, the trial court does not
acquire jurisdiction over the person of the defendant.
B. Substituted service of summons
1. The pertinent provision of the Rules of Court (Sec. 7, Rule
14) provides that substituted service may be availed of if "for
justifiable causes, the defendant cannot be served within a
reasonable time." What exactly is a reasonable time?
2. Within a reasonable time has been interpreted to
contemplate a period of time longer than that demarcated
by the word "prompt" and presupposes that a prior attempt
at personal service had failed.
3. The case of Manotoc vs. CA is more specific: ". . .
Reasonable time is defined as so much time as is necessary
under the circumstances for a reasonably prudent and
diligent man to do, conveniently, what the contract or duty
requires that should be done... Under the Rules, the service
of summons has no set period... To the plaintiff, "reasonable
time" means no more than seven (7) days since an
expeditious processing of the complaint is what the witness
wants. To the sheriff "reasonable time means 15 to 30 days
because at the end of the month, it is a practice for the
branch clerk to require the sheriff to submit a return of the
summons assigned to the sheriff for service. The Sheriff's
Return provides data to the clerk of Court, which the clerk
uses in the Monthly Report of Cases to be submitted to the
Office of the Court Administrator within the first ten (10)
days of the succeeding month. Thus one month from the
issuance of summons can be considered "reasonable" with
regard to personal service on the defendant.
4. "The Court has set stringent conditions prior to the
availment of substituted service. Manotoc thus, stresses: ". .
. since the defendant is expected to try to avoid and evade
service of summons, the sheriff must be resourceful,
persevering, canny, and diligent in serving the process on the
defendant." For substituted service to be available there
must be several attempts by the sheriff to personally serve
the summons within a reasonable period [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 where unsuccessful. It
is only then that impossibility of service can be confirmed or
accepted (Underscoring supplied).
5. "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 alleged occupants of the alleged residence or
house of defendant and all other acts done, though futile, to
serve the summons on the defendant must be specified in the
Return to justify substituted service. The form on Sheriff's
Return of Summons on Substituted Service prescribed in the
Handbook for Sheriff's published by the Philippine Judicial
Academy requires a narration of the efforts made to find the
defendant personally and the fact of failure. Supreme Court
Circular No. 5 dated November 5, 1989 requires that
impossibility of prompt service should be shown by stating
the efforts made to find the defendant personally and the
failure of such efforts which should be made in the proof of
service."
6. A mere general claim or statement in the Sheriff's Return
that the server had made "several attempts" to serve the
summons, without making reference to the details of facts
and circumstances surrounding such attempts, does not
comply with the rules on substituted service. A Return which
merely states the alleged whereabouts of the defendants
without indicating that such information was verified and
without specifying the efforts exerted to serve the summons
is not enough for compliance. So is a mere general statement
that such efforts were made.
XVII. How substituted service is made
1. On the assumption that substituted service is now
justified, how then may summons be served by substituted
service? The answer is supplied by Sec. 7 of Rule 14. The rule
provides the server with options, to wit: (a) leaving copies of
the summons at the defendant's residence, or (b) leaving
copies of the summons at the defendant's office or regular
place of business. The rule does not however, allow leaving
the summons with anyone else other than with those
mentioned therein. Thus, if the summons is left at the
defendant's residence, the summons must be served by
leaving the same with a person of suitable age and discretion
residing therein. If served in the defendant's office or regular
place of business, the summons must be left with some
competent person in charge thereof.
Page72
2. "A person of suitable age and discretion is one who has
attained the full age of full legal capacity (18 years old) and
is considered to have enough discernment to understand the
importance of summons. "Discretion is defined as the ability
to make decisions which represent a responsible choice and
for which an understanding of what is lawful, right or wise
may be presupposed. Thus, to be of sufficient age and
discretion, such person must know how to read and
understand English to comprehend the import of the
summons, and fully realize the need to deliver the summons
and complaint to the defendant at the earliest possible time
for the person to take appropriate action. Thus, the person
must have a "relation of confidence" to the defendant,
ensuring that the latter would receive or at least be notified
of the receipt of summons. The sheriff must therefore,
determine if the person found in the alleged dwelling or
residence of defendant is of legal age, what the recipient's
relationship with the defendant is, and whether said person
comprehends the significance of the receipt of the summons
and his duty to deliver it to the defendant or at least notify
the defendant of said receipt of summon and his duty to
immediately deliver in to the defendant or at least notify the
defendant of said receipt of summons. These matters must
be clearly and specifically described in the Return of
Summons."
3. A competent person in charge of the office or regular
place of business "must be the one managing the office or
business of defendant, such as the president or manager; and
such individual must have sufficient knowledge to understand
the obligation of the defendant in the summons, its
importance, and the prejudicial effects arising from inaction
on the summons. Again, the details must be contained in the
Return. It is not necessary that the person in charge of the
defendant's regular place of business be specifically
authorized to receive the summons. It is enough that he
appears to be in charge.
4. Where the substituted service has been validly served, its
validity is not affected by the defendant's failure to actually
receive the summons from the person with whom the
summons had been left. It is immaterial that the defendant
does not in fact receive actual notice. The rule does not
require the sheriff or any authorized server to verify that the
summons left in the defendant's residence or office was
actually delivered to the defendant.
5. What if diligent efforts were undertaken by the Sheriff to
serve the defendant by substituted service but he was
prevented from effecting such service by the defendant
himself? This question was addressed in Robinson vs. Miralles.
Here, the plaintiff filed a complaint for a sum of money
against the defendant. Summons was served on the
defendant at her given address but per return of service of
the sheriff it was learned that the defendant no longer
resided at such address. Later, the trial court issued an alias
summons to be served at the defendant's new address.
- Again, the summons could not be served on the defendant.
The Sheriff explained:
"The Security Guard assigned at the gate ofAlabang
Hills refused to let me go inside the subdivision so that I
could effect the service of the summons to the defendant in
this case. The security guard alleged that the defendant had
given them instructions not to let anybody proceed to her
house if she is not around. I explained to the Security Guard
that I am a sheriff serving the summons to the defendant,
and if the defendant is not around, summons can be received
by any person of suitable age and discretion living in the
same house. Despite of all the explanation, the security
guard by the name ofA.H. Geroche still refused to let me go
inside the subdivision and served (sic) the summons to the
defendant. The same thing happened when I attempted to
serve the summons previously.
"Therefore, the summons was served by leaving a
copy thereof together with the copy of the complaint to the
security guard by the name of A.H. Geroche, who refused to
affix his signature on the original copy thereof, so he will be
the one to give the same to the defendant."
- Eventually, the plaintiff filed a motion to declare the
defendant in default for her failure to file an answer
seasonably despite service of summons. The trial court
granted respondent's motion declaring petitioner in default
and allowing respondent to present her evidence ex parte. A
judgment by default was rendered and upon respondent's
motion, the trial court issued a writ of execution.
- The defendant filed with the trial court a petition for relief
from the judgment by default. She claimed that summons
was improperly served upon her, thus, the trial court never
acquired jurisdiction over her and that all its proceedings are
void. The defendant contended that the service of summons
upon the subdivision security guard is not in compliance with
Section 7, Rule 14 since he is not related to her or staying at
her residence. Moreover, he is not duly authorized to receive
summons for the residents of the village. Hence, the
substituted service of summons is not valid and that the trial
court never acquired jurisdiction over her person.
- The trial court issued a Resolution denying the petition for
relief. Petitioner filed a motion for reconsideration, but it
was denied by the trial court.
- Declared the Supreme Court:
"We have ruled that the statutory requirements of
substituted service must be followed strictly, faithfully, and
fully and any substituted service other than that authorized
by the Rules is considered inefIbctive Waluwagan ngBayan
Savings Bank vs. King. However, we frown upon an overly
strict application of the Rules It is the spirit, rather than the
letter of the procedural rules, that governs.
"In his Return, the sheriff declared that he was
refused entry by the security guard in the subdivision. The
latter informed him that petitioner prohibits him from
allowing anybody to proceed to her residence whenever she
is out. Obviously, it was impossible for the sheriff to effect
personal or substituted service of summons upon petitioner.
We note that she failed to controvert the sheriff's
declaration. Nor did she deny having received the summons
through the security guard.
"Considering her strict instruction to the security
guard, she must bear its consequences. Thus, we agree with
the trial court that summons has been properly served upon
petitioner and that it has acquired jurisdiction over her.
The summons was therefore, properly served"
(Robinson vs. Miralles, G.R. No. 163584, December 12, 2006).
Page73
Illustration (Bar 2006)
 Tina Guerrero filed with the Regional Trial Court of
Bifian, Laguna, a complaint for a sum of money amounting to
P1 Million against Carlos Corro. The complaint alleges, among
others, that Carlos borrowed from Tina the said amount as
evidenced by a promissory note signed by Carlos and his wife,
jointly and severally. Carlos was served with summons which
was received by Linda, his secretary. However, Carlos failed
to file an answer to the complaint within the 15-day
reglementary period. Hence, Tina filed with the court a
motion to declare Carlos in default and to allow her to
present evidence ex parte. Five days thereafter, Carlos filed
his verified answer to the complaint, denying under oath the
genuineness and due execution of the promissory note and
contending that he has fully paid his loan with interest at 12%
per annum.
1. Was the summons validly served on Carlos?
Suggested answer:
The summons was not validly served. The type of
summons used by the sheriff was obviously a substituted
service. The efficacy of this mode of service is anchored
among others, on the fact that the defendant cannot be
served in person within a reasonable time. The facts do not
show that the sheriff exerted efforts to effect a service in
person upon the defendant. There is therefore, no basis for a
substituted service (Sec. 7, Rule 14, Rules of Court, Laus vs.
Court ofAppeals, 219 SCRA 688; Manotoc vs. CA, G.R. No
130974, August 16, 2006).
Illustration (Bar 2004)
Summons was issued by the MM Regional Trial Court
and actually received on time by defendant from his wife at
their residence. The sheriff earlier that day had delivered
the summons to her at said residence because defendant was
not home at the time. The sheriff's return or proof of service
filed with the court in sum states that the summons, with the
attached copy of the complaint, was served on defendant at
his residence thru his wife, a person of suitable age and
discretion then residing therein. Defendant moved to dismiss
on the ground that the court had no jurisdiction over his
person as there was no valid service of summons on him
because the sheriff's return does not show that the sheriff
first made a genuine attempt to serve summons on defendant
personally before serving his wife.
Is the motion to dismiss meritorious? x x x
Suggested answer:
The motion to dismiss is meritorious. The
application of substituted service presupposes that the
defendant could not be served in person within a reasonable
time. This presupposes in turn that genuine efforts were
undertaken to have the defendant served in person. The
conditions precedent for a substituted service are absent in
the case at bar.
C. Summons by publication
l. As a rule, summons by publication is available only in
actions in rem or quasi in rem. It is not available as a means
of acquiring jurisdiction over the person of the defendant in
an action in personam.
2. Against a resident, the recognized mode of service is
service in person on the defendant under Sect. 6 of Rule 14.
In a case where the defendant cannot be served within a
reasonable time, substituted service will apply (Sec. 7, Rule
14, Rules of Court), but not summons by publication which is
permissible however, under the conditions set forth in
Section 14 of Rule 14 (when the identity or whereabouts of
the defendant are unknown and in Section 16 of Rule 14
(when the defendant is a resident temporarily out of the
Philippines).
3. Against a non-resident, jurisdiction is acquired over the
defendant by service upon his person while said defendant is
within the Philippines. As once held, when the defendant is a
nonresident, personal service of summons in the state is
essential to the acquisition of jurisdiction over him.
This is in fact the only way of acquiring jurisdiction over
his person if he does not voluntarily appear in the action.
Summons by publication against a non-resident in an action
in personam is not a proper mode of service.
4. Publication is notice to the whole world that the
proceeding has for its object to bar indefinitely all who might
be minded to make an objection of any sort against the right
sought to be established. It is the publication of such notice
that brings in the whole world as a party in the case and
vests the court with jurisdiction to hear and decide it.
Publication is not a mode of service in an action in
personam except under certain situations mentioned in
paragraph 2 of this page.
XVIII. Extraterritorial service of summons
l. Extraterritorial service of summons in Sec. 15 of Rule 14
applies when the following requisites concur:
(a) the defendant is a nonresident;
(b) he is not found in the Philippines; and
(c) the action against him is either in rem or quasi in rem.
A fundamental concept to be remembered in
extraterritorial service of summons is that it does not apply
to a defendant who is a resident of the Philippines. It does
not also apply to an action in personam.
2. The specific actions, which are either in rem or quasi in
rem that will justify the application of extraterritorial
service of summons in actions involving a nonresident are:
(a) actions that affect the personal status of the plaintiff;
(b) actions which relate to, or the subject matter of which
is property within the Philippines, in which the defendant
claims a lien or interest, actual or contingent;
(c) actions in which the relief demanded consists, wholly
or in part, in excluding the defendant from an interest in
property located in the Philippines; and
(d) when the defendant's property has been attached in
the Philippines.
3. If the action is in personam, this mode of service will not
be available. There is no extraterritorial service of summons
in an action in personam. Hence, extraterritorial service
upon a nonresident in an action for injunction which is in
personam is not proper.
Where the action is in personam, one brought against a
person on the basis of his personal liability, jurisdiction over
the person of the defendant is necessary for the court to
validly try and decide a case. However, when the defendant
is a nonresident, personal service of summons in the state is
Page74
essential to the acquisition of jurisdiction over him.
XIX. Modes of extraterritorial service
1. When the conditions for the applicability of
extraterritorial service of summons are complied with, the
following are the alternative modes of extraterritorial
service, all of which require a prior leave of court:
(a) By personal service as provided (br in Sec. 6 of'Rule 14
governing `service in person on defendant';
(b) By publication in a newspaper of general circulation in
such places and for such time as the court may order, in
which case a copy of the summons and the order of the
court shall be sent by registered mail to the last known
address of the defendant; or
(c) In any manner the court may deem sufficient (Sec. 15,
Rule 14, Rules of Court).
2. The personal service using the procedure in Sec. 6 of Rule
14, will not have the effect of acquiring jurisdiction over the
nonresident defendant even if the summons and the copy of
the complaint are personally received by him in the country
where he may be found. This is because of the rule that a
nonresident defendant who refuses to come to the country
voluntarily remains beyond the personal processes of the
court which therefore, cannot acquire jurisdiction over him
(Banco Espanol-Filipino vs. Palanca, 37 Phil. 921; Perkins vs.
Dizon, 69 Phil. 186). Besides, in a proceeding in rem or quasi
in rem, jurisdiction over the person of the defendant is not a
prerequisite to confer jurisdiction on the court provided that
the court acquires jurisdiction over the res. Nevertheless
summons is served upon the defendant not for the purpose of
vesting the court with jurisdiction over the person of the
defendant but merely for satisfying the due process
requirement (Asiavest Limited vs. Court of Appeals, 296 SCRA
539). Compliance with due process is actually the underlying
purpose of all modes of extraterritorial service.
- Example: Mexicano, a tourist in the Philippines, by the
employment of force and intimidation, contracted a marriage
with Filipina, a hotel receptionist. When Mexicano left for
Mexico to visit his parents, Filipina filed an action for
annulment of the marriage with damages of P3 million. With
leave of court, extraterritorial service of summons by
publication was effected. Mexicano did not appear. The court
decreed the annulment of the marriage and awarded
damages after all procedural and substantive requirements
were complied with. Was the judgment correct? The
judgment was correct in so far as the decree of annulment is
concerned. The action is an action in rem. In this kind of
action, jurisdiction over the res is sufficient. Jurisdiction
over the person of the defendant is not essential in this case,
so whether or not there was jurisdiction over Mexicano, this
fact did not affect the authority of the court to decide on the
issue of annulment. However, the judgment of the court
awarding damages to Filipina is void as to the defendant. By
its nature, a claim for damages is in personam. The court is
without jurisdiction to award damages unless it has first
acquired jurisdiction over the person of Mexicano. The only
ways by which this type of jurisdiction may be acquired in
the case at bar is either through service in person upon
Mexicano in the Philippines or by his voluntary appearance in
the action. Neither of these occurred in the case under
consideration.
3. The Supreme Court summarized the rule on service of
summons upon anon-resident as follows:
Under the rules on extraterritorial service " * * *
when the defendant is a nonresident and he is not found in
the country, summons may be served extraterritorially.
There are only four instances when extraterritorial service
of summons is proper, namely: (a) when the action affects
the personal status of the plaintiffs; (b) when the action
relates to, or the subject of which is property, within the
Philippines, in which the defendant claims a lien or
interest, actual or contingent; (c) when the relief
demanded in such action consists, wholly or in part, in
excluding the defendant from any interest in property
located in the Philippines; and (d) when the defendant's
property has been attached within the Philippines. In these
instances, service of summons may be effected by (a)
personal service out of the country, with leave of court;
(b) publication, also with leave of court; or (c) any other
manner the court may deem sufficient.
"Thus, extrajudicial service of summons applies
only where the action is in rem, that is, an action against
the thing itself instead of against the person, or in an
action quasi in rem, where an individual is named as
defendant and the purpose of the proceeding is to subject
his interest therein to the obligation or loan burdening the
property. The rationale for this is that in in rem and quasi
in rem actions, jurisdiction over the person of the
defendant is not a prerequisite to confer jurisdiction on
the court provided that the court acquires jurisdiction over
the res.
"Where the action is in personam, that is, one
brought against a person on the basis of her personal
liability, jurisdiction over the person of the defendant is
necessary for the court to validly try and decide the case.
When the defendant is a non-resident, personal service of
summons within the state is essential to the acquisition of
jurisdiction over the person. Summons on the defendant
must be served by handing a copy thereof to the defendant
in person, or, if he refuses to receive it, by tendering it to
him. This cannot be done, however, if the defendant is not
physically present in the country, and thus, the court
cannot acquire jurisdiction over his person and therefore
cannot validly try and decide the case against him."
CHAP. 6: PROCEEDINGS AFTER SERVICE OF SUMMONS
I. Preliminary statements
- Recall that the summons served upon the defendant directs
him to answer within the time fixed in the Rules. It is
coupled with a notice that unless the defendant so answers,
the plaintiff will take judgment by default and may be
granted the relief applied for (Sec. 1, Rule 14, Rules of
Court).
- There are however, countervailing reasons that may
preclude the plaintiff from filing an answer to the complaint.
These same reasons would actually be the excuses of a
defendant in not filing an immediate answer to the
complaint. For instance, there may be allegations or claims
in the complaint that are not spelled out with sufficient
clarity to enable him to file an intelligent responsive
pleading. The move of the defendant in a situation like this is
not to file either an answer or a motion to dismiss but to file
Page75
a motion for bill of particulars. If on the other hand, the
complaint's averments are clear enough to allow the filing of
an answer, the defendant is not compelled to file said
answer if a ground for the dismissal of the complaint
pursuant to Rule 16 is available. In this case, the defendant
may file a motion to dismiss the complaint instead of filing
an answer.
- Hence, three options are available to the defendant upon
receipt of the complaint, to wit:
(a) Filing of a motion for bill of particulars;
(b) Filing of a motion to dismiss; or
(c) Filing of an answer to the complaint.
A. MOTION FOR BILL OF PARTICULARS
1. Although under the Rules, the defendant is required to
answer the complaint within fifteen (15) days from service of
summons (Sec. 1, Rule 11, Rules of Court), the defendant
need not file his answer to the complaint within the required
period if there are matters in the complaint, which are vague
or ambiguous or not averred with sufficient definiteness.
Instead, he may file a motion for bill of particulars (Rule 12,
Rules of Court).
2. As long as the allegations of a complaint make out a cause
of action, the ambiguity in some allegations of the complaint
or the failure to allege facts with sufficient particularity does
not justify the filing of a motion to dismiss. The proper
remedy is to file a motion for bill of particulars.
3. It must be made clear that a motion for bill of particulars
is not directed only to a complaint. It is a motion that applies
to any pleading which in the perception of the movant
contains ambiguous allegations.
I. When to file the motion
1. A motion for bill of particulars is to be filed before, not
after responding to a pleading (Sec. 1, Rule 12, Rules of
Court). The period to file the motion refers to the period for
filing the responsive pleading in Rule 11. Thus, where the
motion for bill of particulars is directed to a complaint, the
motion should be filed within fifteen (15) days after service
of summons. If the motion is directed to a counterclaim,
then the same must be filed within ten (10) days from service
of the counterclaim which is the period provided for by Sec.
4 of Rule 11 to answer a counterclaim.
2. If case of a reply to which no responsive pleading is
provided for by the Rules, the motion for bill of particulars
must be filed within ten (10) days of the service of said reply
(Sec. 1, Rule 12, Rules of Court).
II. Purpose of the motion
1. The purpose of the motion is to seek an order from the
court directing the pleader to submit a bill of particulars
which avers matters with "sufficient definiteness or
particularity" to enable the movant to prepare his responsive
pleading (Sec. 1, Rule 12, Rules of Court), not to enable the
movant to prepare for trial. The latter purpose is the
ultimate objective of the discovery procedures from Rules 23
to 29 and even of a pre-trial under Rule 18.
2. In less technical terms, a function of a bill of particulars is
to clarify the allegations in the pleading so an. adverse party
may be informed with certainty of the exact character of a
cause of action or a defense. Without the clarifications
sought by the motion, the movant may be deprived of the
opportunity to submit an intelligent responsive pleading.
3. Since the purpose of the motion for bill of particulars is to
allow the movant to properly prepare his own pleading, it
would be erroneous for the motion to ask the court to order
the adverse party to disclose or to set forth in his pleading
the evidences relied upon for his cause of action or defense.
These are matters obtainable by the various modes of
discovery. Besides under Section 1 of Rule 8, pleadings are
meant to contain only a direct statement of the ultimate
facts which constitute the party's claims or defenses. Matters
of evidentiary facts are to be omitted.
4. It would likewise not be proper for a motion for bill of
particulars to call for the production of the particulars
constituting malice, intent, knowledge or condition of the
mind which, under the Rules (Sec. 5, Rule 8, Rules of Court)
may be averred generally. To require a pleader to do so
would be to require the statement of evidentiary facts in a
pleading. It would not however, be incorrect to move for a
bill of particulars to require the averment of the particular
circumstances of fraud or mistake. Under the Rules (Sec. 5,
Rule 8, Rules of Court), such matters must be alleged with
particularity.
5. A motion for bill of particulars to require a pleader to set
forth matters showing the jurisdiction of a court to render its
judgment is Iiol. proper.'fhe provisions of Sec. 6, Rule H are
clear: In pleading a judgment it is sufficient to aver the same
generally.
III. Requirements for the motion
- Aside from the requirements for a motion as set forth in
Rule 15, the motion shall point out the (a) defects
complained of, (b) the paragraphs wherein they are
contained, and (c) the details desired (Sec. 1, Rule 12, Rules
of Court).
IV. Action of the court
- Upon receipt of the motion which the clerk of court must
immediately bring to the attention of the court, the latter
has three possible options, namely, (a) to deny the motion
outright, (b) to grant the motion outright, or (c) to hold a
hearing on the motion.
V. Duty of the pleader when the motion is granted
1. If the motion for bill of particulars is granted, the court
shall order the pleader to submit a bill of particulars to the
pleading to which the motion is directed. The compliance
shall be effected within ten (10) days from notice of the
order, or within the period fixed by the court (Sec. 3, Rule
12, Rules of Court).
2. In complying with the order, the pleader may file the bill
of particulars either in a separate pleading or in the form of
an amended pleading (Sec. 3, Rule 12, Rules of Court).
3. The bill of particulars submitted becomes part of the
pleading for which it is intended (Sec. 6, Rule 12, Rules of
Page76
Court).
V. Effect of non-compliance with the order of the court or
insufficient compliance
- If the order is not obeyed or if there is an insufficient
compliance of the order, the court the following options: (a)
to order the striking out of the pleading, (b) to order the
striking out of the portions of the pleading to which the order
was directed, or (c) to make such other order it may deem
just (Sec. 4, Rule 14, Rules of Court).
VI. When the movant shall file his responsive pleading
1. A motion for bill of particulars is not a pleading hence, not
a responsive pleading. Whether or not his motion is granted,
the movant may file his responsive pleading. When he files a
motion for bill of particulars, the period to file the
responsive pleading is stayed or interrupted. After service of
the bill of particulars upon him or after notice of the denial
of his motion, he may file his responsive pleading within the
period to which he is entitled to at the time the motion for
bill of particulars is filed. If he has still eleven (11) days
to.file his pleading at the time the motion for bill of
particulars is filed, then he has the same number of days to
file his responsive pleading from the service upon him of the
bill of particulars. If the motion is denied, then he has the
same number of days within which to file his pleading
counted from his receipt of the notice of the order denying
his motion (Sec. 5, Rule 12, Rules of Court).
2. If the movant has less than five (5) days to file his
responsive pleading after service of the bill of particulars or
after notice of the denial of his motion, he nevertheless has
five (5) days within which to file his responsive pleading (Sec.
5, Rule 12, Rules of Court).
B. MOTION TO DISMISS
- Even when the allegations are now clear enough to enable
the defendant to file his responsive pleading because the
adverse party has already submitted a bill of particulars, the
defendant need not file his answer immediately. He may first
explore the possibility of filing a motion to dismiss under
Rule 16. If there is no ground for a motion to dismiss, he has
to file his answer.
I. A motion to dismiss is not a pleading
- A motion to dismiss is not a pleading. It is merely a motion.
Under the Rules, a motion is an application for relief other
than by a pleading (Sec. 1, Mule 15, Rules of Court). The
pleadings allowed under the Rules are: (a) complaint, (b)
answer, (c) counterclaim, (d) cross-claim, (e) third (fourth-
etc.) -party complaint, (f) complaint in intervention (Sec. 2,
Rule 6, Rules of Court), and (g) reply (Sec. 10, Rule 6, Rules
of Court). A motion is not one of those specifically
designated as a pleading under the Rules of Court.
II. Hypothetical admissions of a motion to dismiss
- A motion to dismiss hypothetically admits the truth of the
factual allegations of the complaint. The admission extends
only to such matters of fact that have been sufficiently
pleaded and not to mere epithets charging fraud, allegations
of legal conclusions or erroneous statements of law,
inferences from facts not stated, matters of evidence or
irrelevant matters. Only deemed hypothetically admitted are
material allegations, not conclusions. An allegation that a
contract is an "equitable mortgage" is a conclusion and not a
material allegation. Hence, it is not deemed admitted by the
motion to dismiss.
- If for instance the plaintiff files an action for damages
against the defendant who files a motion to dismiss, the
defendant in effect says that even assuming the facts to be
true as alleged by the plaintiff, the latter has failed to show
that he has a right to relief because his action has prescribed
or because the court where the action was filed has no
jurisdiction over the subject matter of the complaint.
III. Omnibus motion
1. When a motion to dismiss is filed, all grounds available at
the time the motion is filed must be invoked in the motion.
This is required under the "omnibus motion rule." Grounds
not so invoked are deemed waived. The grounds not waived
however, are lack of jurisdiction over the subject matter,
litis pendencia, res judicata and prescription (Sec. 8, Rule
15; Sec. 1, Rule 9).
2. The above rule applies only when a motion to dismiss is
filed. Where no motion to dismiss is filed, the grounds for a
motion to dismiss may be availed of as affirmative defenses
in the answer (Sec. 6, Rule 16, Rules of Court). No defense is
waived because no motion to dismiss was filed. There is
indeed an unmistakable difference in the legal effects
between filing and not filing a motion to dismiss in relation
to waiver of defenses.
3. If no motion to dismiss has been filed, any of the grounds
for dismissal provided in the Rules 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. Based on the foregoing, a
preliminary hearing undeniably is subject to the discretion of
the trial court. The trial court's order granting or dispensing
with the need for a preliminary hearing may not be corrected
by certiorari absent any showing that the trial court had
acted without jurisdiction or in excess thereof or with such
grave abuse of discretion as would amount to lack of
jurisdiction.
IV. Contents and form of the motion
l. The motion to dismiss shall state the relief sought and the
grounds upon which it is based and shall be accompanied by
supporting affidavits and papers (Sec. 3, Rule 15, Rules of
Court).
2. The motion shall be set for hearing by the applicant (Sec.
4, Rule 15, Rules of Court) and shall contain a notice of
hearing addressed to all parties concerned. Such notice 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. 5,
Rule 15, Rules of Court).
3. The notice requirement in a motion is mandatory and its
absence renders the motion defective. As a rule, a motion
without a notice of hearing is considered pro forma and does
not affect the reglementary period for the filing of the
requisite pleading.
V. Time to file the motion
Page77
1. Within the time for filing the answer but before filing said
answer, a motion to dismiss may be filed on any of the
grounds mentioned in Rule 16 (Sec. 1, Rule 16, Rules of
Court).
2. A motion to dismiss that is filed after the answer has been
filed, is filed out of time and the defending party is estopped
from filing the motion to dismiss. This is only a general rule.
3. A motion to dismiss may be filed even after the filing of
the answer and will not be considered filed out of time if the
ground raised in the motion is either of the following:
(a) lack of jurisdiction over the subject matter;
(b) that there is another action pending between the same
parties for the same cause;
(c) that the action is barred by a prior judgment; or that
the action is barred by the statute of limitations (Sec. 1,
Rule 9, Rules of Court).
- Under Sec. 1 of Rule 9, when any of the above grounds
appears from the pleadings or from the evidence on record,
the court shall dismiss the claim. The authority given to the
court is, from the tenor of the rule, not only mandatory but
also subject to a motu proprio dismissal. Since the ground for
dismissal may appear from the evidence, it is obvious that
the dismissal may be made during the trial and this means,
even after the answer has been filed.
VI. Grounds for motion to dismiss
- Under Sec. 1 of Rule 16 of the Rules of Court, a motion to
dismiss may be filed on any of the following grounds:
(a) That the court has no jurisdiction over the person of
the defending party;
(b) That the court hits no jurisdiction over the subject
matter of the claim;
(c) That the venue is improperly laid;
(d) That the plaintiff has no legal capacity to sue;
(e) That there is another action pending between the same
parties and for the same cause;
(f) That the cause of action is barred by a prior judgment
or by the statute of limitations;
(g) That the pleading asserting the claim states no cause of
action;
(h) That the claim or demand set forth in the plaintiff's
pleading has been paid, waived, abandoned or otherwise
extinguished;
(i) That the claim on which the action is founded is
unenforceable under the provisions of the statute of
frauds; and
(j) That a condition precedent for filing the claim has not
been complied with.
VII. Laches as a ground for a motion to dismiss under Rule 16
- In one case, in reversing the RTC's order of dismissal, the
Court of Appeals held that lathes could not be a ground to
dismiss a complaint since it is not one of the grounds for the
dismissal of a civil action under Sec. 1 of Rule 16 of the Rules
of Court. The Supreme Court categorically held that the
Court of appeals "is not entirely correct." Under paragraph
(h) of Sec. 1 of Rule 16, one of the grounds for the dismissal
of an action is where a claim or demand set forth in the
plaintiff's pleading has been paid, waived, abandoned, or
otherwise extinguished. The Court declared: "The language of
the rule, particularly on the relation of the words
"abandoned" and "otherwise extinguished" to the phrase
"claim or demand deemed set forth in the plaintiff's pleading"
is broad enough to include within its ambit the defense of
bar by lathes. However, when a party moves for the dismissal
of the complaint based on lathes, the trial court must, sot a
hearing; on the motion where the parties shall submit not
only their arguments on the questions of law but also their
evidence on the questions of fact involved. Thus, being
factual in nature, the elements of lathes must be proved or
disproved through the presentation of evidence by the
parties
VIII. Res judicata as a ground for a motion to dismiss
1. Res judicata as a ground for dismissal is based on two
grounds, namely:
(1) public policy and necessity, which makes it to the
interest of the State that there should be an end to
litigation -republicae ut sit litium; and
(2) the hardship on the individual of being vexed twice for
the same cause - nemo debet bis vexari et eadem causa. A
conflicting doctrine would subject the public peace and
quiet to the will and dereliction of individuals and prefer
the regalement of the litigious disposition on the part of
suitors to the preservation of the public tranquility and
happiness.
2. Accordingly, courts will simply refuse to reopen what has
been decided. They will not allow the same parties or their
privies to litigate anew a question once it has been
considered and decided with finality. Litigations must end
and terminate sometime and somewhere. The effective and
efficient administration of justice requires that once a
judgment has become final, the prevailing party should not
be deprived of the fruits of the verdict by subsequent suits
on the same issues filed by the same parties
IX. Concepts of res judicata
1. Res judicata comprehends two distinct concepts: (1) bar
by a former judgment, and (2) conclusiveness of judgment.
2. The first concept bars the prosecution of a second action
upon the same claim, demand or cause of action.
- The second concept - conclusiveness of judgment - states
that a fact or question which was in issue in a former suit and
was there judicially passed upon and determined by a court
of competent jurisdiction, inconclusively settled by the
judgment therein as far as the parties to that action and
persons in privity with them are concerned and cannot be
again litigated in any future action between such parties or
their privies, in the same court or any other court of
concurrent jurisdiction on either the same or different cause
of action, while the judgment remains unreversed by proper
authority.
X. Elements of res judicata
- The concept of res judicata has the following elements: (1)
the former judgment must be final; (2) the court which
rendered it had jurisdiction over the subject matter and the
parties; (3) the judgment must be on the merits; and (4)
there must be between the first and the second actions,
identity of parties, subject matter and causes of action. The
application of the doctrine of res judicata does not require
Page78
absolute identity of parties but merely substantial identity of
parties. There is substantial identity of parties when there is
community of interest or privity of interest between a party
in the first and a party in the second case even if the first
case did not implead the latter.
XI. Application of res judicata to quasi judicial proceedings
- It has been held that the rule of res judica to which forbids
the reopening of a matter once judicially determined by
competent authority applies as well to the judicial and quasi-
judicial acts of public, executive or administrative officers
and boards acting within their jurisdiction as to the
judgments of courts having general judicial powers. The
Director of Lands is a quasi judicial officer. As such officer,
his decisions and orders rendered pursuant to his quasi
judicial authority, have upon their finality, the force and
binding effect of a final. judgment within the purview of the
doctrine of res judicata.
XII. Pleading grounds as affirmative defenses
1. If no motion to dismiss has been filed, any of the grounds
provided for dismissal provided 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 has been filed (Sec. 6, Rule 16, Rules of
Court).
2. Implied under Sec. 6 of Rule 16 is the rule that the
grounds for a motion to dismiss are not waived even if the
defendant fails to file a motion to dismiss because he may
still avail of the defenses under Rule 16 as affirmative
defenses in his answer.
3. The preliminary hearing authorized on the affirmative
defenses raised in the answer, applies only if no motion to
dismiss has been filed. As a rule, a preliminary hearing is not
authorized when a motion to dismiss has been filed. An
exception previously carved out by the Court is if the trial
court had not categorically resolved the motion to dismiss.
Another exception would be justified under the liberal
construction rule as when it is evident that the action is
barred by res judicata. A strict application of Sec. 6 of Rule
16 would accordingly lead to absurdity when an obviously
barred complaint continues to be litigated.
4. May a ground previously invoked in a denied motion to
dismiss be invoked anew? The ground may still be invoked. " .
. . the denial of a motion to dismiss does not preclude any
future reliance on the grounds relied thereupon."
XIII. Remedy of the defendant if the motion is denied
1. If the motion to dismiss is denied, the movant shall file his
answer within the balance of the period prescribed by Rule
11 to which he was entitled at the time of serving his motion,
but not less than five (5) days in any event (Sec. 4, Rule 16,
Rules of Court). As a rule, the filing of an answer, going
through the usual trial process, and the filing of a timely
appeal from an adverse judgment are the proper remedies
against a denial of a motion to dismiss. The filing of an
appeal from an order denying a motion to dismiss is not the
remedy prescribed by existing rules. The order of denial,
being interlocutory is not appealable by express provision of
Sec. 1(c), Rule 41.
2. Where the judgment or final order is not appealable, like
an interlocutory order, Rule 41 declares that the "aggrieved
party may file an appropriate civil action under Rule 65." This
remedy however, is predicated upon an allegation and a
showing that the denial of the motion was tainted with grave
abuse of discretion amounting to lack of jurisdiction. Without
such showing, Rule 65 cannot be availed of as a remedy.
3. Jurisprudence declares: "An order denying a motion to
dismiss is an interlocutory order which neither terminates nor
finally disposes of a case, as it leaves something to be done
by the court before the case is finally decided on the merits.
As such, the general rule is that the denial of a motion to
dismiss cannot be questioned in a special civil action for
certiorari which is a remedy designed to correct errors of
jurisdiction and not errors of judgment. Neither can a denial
of a motion to dismiss be the subject of an appeal unless and
until a final judgment or order is rendered. In order to justify
the grant of the extraordinary remedy of certiorari, the
denial of the motion to dismiss must have been tainted with
grave abuse of discretion amounting to lack or excess of
jurisdiction"
XIV. Remedies of the plaintiff if the motion to dismiss is
granted
1. If the motion is granted, the complaint is dismissed. Since
the dismissal is final and not interlocutory in character, the
defendant has several options.
(a) Depending upon the ground for the dismissal of the
action, the defendant may simply re file the complaint.
For instance, if the ground for dismissal was anchored on
improper venue, the defendant may file the action in the
proper venue.
(b) He may appeal from the order of dismissal where the
ground relied upon is one which bars the refiling of the
complaint like res judicata, prescription, extinguishment
of the obligation or violation of the statute of frauds (Sec.
5, Rule 16, Rules of Court). Since the complaint cannot be
refiled, the dismissal is with prejudice. Under Section 1(h)
of Rule 41, it is an order dismissing an action without
prejudice which cannot be appealed from. Conversely,
where the dismissal is with prejudice, an appeal from the
order of dismissal is not precluded. However, where the
ground for dismissal for instance, is the failure of the
complaint to state a cause of action, the plaintiff may
simply file the complaint anew but since the dismissal is
without prejudice to its refiling, the order of dismissal
cannot be appealed from under the terms of Sec. 1(h) of
Rule 41 of the Rules of Court.
Where the ground for dismissal is lack of
jurisdiction over the subject matter, the dismissal is
without prejudice to the refiling of the complaint.
Following the tenor of Sec. 1(h) of Rule 41, an order
dismissing a complaint for lack of jurisdiction over the
subject matter is a dismissal without prejudice and hence,
no appeal may be had from the order of dismissal. Despite
Sec. 1 of Rule 41, appeal may nevertheless be taken from
the order in this case because of the effect of Sec. 8 of
Rule 40 which specifically allows, by necessary implication,
an appeal from orders dismissing cases on the ground of
lack of jurisdiction over the subject matter. The tenor of
Sec. 8 of Rule 40 therefore, operates to furnish an
exception to the general rule enunciated in Sec 1 of Rule
Page79
41.
 (c) The defendant may also avail of a petition for
certiorari. This remedy is available if the court gravely
abuses its discretion in a manner amounting to lack of
jurisdiction and is the appropriate remedy in those
instances when the dismissal is without prejudice (Sec. 1,
Rule 41, Rules of Court).
XV. When complaint cannot be refiled
1. An order granting a motion to dismiss shall bar the refiling
of the same action or claim if the dismissal is based on any of
the following grounds (Sec. 5, Rule 16, Rules of Court):
(a) The cause of action is barred by a prior judgment (Sec.
1[f], Rule 16, Rules of Court);
(b) The cause of action is barred by the statute of
limitations (Sec. 1[l, Rule 16, Rules of Court);
(c) The claim or demand has been paid, waived,
abandoned or otherwise extinguished (Sec. 1[h], Rule 16,
Rules of Court); and
(d) The claim on which the action is founded is
unenforceable under the provisions of the statute of frauds
(Sec. 1[i], Rule 16, Rules of Court).
2. Where the defendant is barred from refiling the action,
the remedy under the circumstances is to file an appeal
because by the clear language of Sec. 5, Rule 16 the
dismissal is subject to the right of appeal.
XVI. Effect of dismissal of complaint on the counterclaim
- The dismissal of a complaint shall be without prejudice to
the prosecution in the same or a separate action of a
counterclaim pleaded in the answer of the defendant (Sec. 6,
2nd par., Rule 16, Rules of Court). Thus, where the
defendant pleads a counterclaim in his answer, and after the
preliminary hearing on his affirmative defenses, the court
dismisses the complaint, it would be error for the court to
dismiss the counterclaim. Under Sec. 6 of Rule 16, the
dismissal of the main action does not carry with it the
dismissal of the counterclaim.
CHAP. 7: ANSWER, OTHER PLEADINGS, DEFAULT,
JUDGMENT ON THE PLEADINGS, SUMMARY JUDGMENT
A. ANSWER
I. Nature of an answer
> answer - a pleading in which a defending party sets forth
his defenses (Sec. 4, Rule 6, Rules of Court). This pleading
may be an answer to the complaint, an answer to a
counterclaim or an answer to a cross-claim. There is no
answer to a reply but there could be an answer to a third-
party complaint or complaint-in-intervention.
II. Defenses in the answer
1. An answer contains the defenses of the answering party.
These defenses may either be negative or affirmative. A
defense is negative when the material averments alleged in
the pleading of the claimant are specifically denied (Sec. 5,
Rule 6, Rules of Court). A negative defense is stated in the
form of a specific denial. The kinds of specific denials are
described in Sec. 10 of Rule 8. If the denial is not one of
those described, the denial is deemed to be general. A
general denial is an admission.
III. Effect of absence of a specific denial
1. Under Sec. 11 of Rule 8, material allegations, (except
unliquidated damages), not specifically denied are deemed
admitted. If the allegations are deemed admitted, there is
no more triable issue between the parties and if the
admissions appear i n the answer of the defendant, the
plaintiff may file a motion for judgment on the pleadings
under Rule 34.
2. An admission in a pleading cannot be controverted by the
party making such admission because the admission is
conclusive as to him. All proofs submitted by him contrary
thereto or inconsistent therewith should be ignored whether
an objection is interposed by a party or not (Republic vs.
Sarabia, G.R. No. 157847, August 25, 2005). Said admission is
a judicial admission, having been made by a party in the
course of the proceedings in the same case, and does not
require proof. A party who desires to contradict his own
judicial admission may do so only by either of two ways: (a)
by showing that the admission was made through palpable
mistake, or (b) that no such admission was made (Sec. 4,
Rule 129, Rules of Court).
III. Purpose of a specific denial
- The purpose of requiring the defendant to make a specific
denial is to make him disclose the matters alleged in the
complaint which he succinctly intends to disprove at the
trial, together with the matter which he relied upon to
support the denial. The parties are compelled to lay their
cards on the table.
IV. Kinds of specific denials
1. A denial is not specific simply because it is so qualified by
the defendant. A general denial does not become specific by
the use of the word "specifically." Merely uttering "specific
denial" is ineffective if the denial does not conform to the
methods of denial provided for by the Rules of Court. It
amounts to an admission pursuant to Rule 8, Sec. 11 of the
Rules of Court. There is no need for the other party to
present evidence to support its allegations because of
petitioners' implied admission thereof.
2. There are three types of specific denials mentioned in Sec.
10 of Rule 8 of the Rules of Court:
(a) The defendant specifies each material allegation of
fact the truth of which he does not admit and, whenever
practicable, sets forth the substance of the matters upon
which he relies to support his denial. This kind of denial is
known an absolute denial (Sec. 10, Rule 8 of the Rules of
Court).
- Example: "Defendant denies the truth of the allegations
in par. 7 of the complaint alleging that he owes the
plaintiff P450,000.00, the truth of the matter being that it
is the Plaintiff who owes the defendant the same amount."
Here the defendant absolutely denies his liability and
alleges what to him are the actual facts. In making a
specific denial, reference must be made to the paragraph
sought to be denied. Since the rule requires that the
defendant must "specify each material allegation of fact,"
a denial of the allegations in each paragraph is required. A
blanket denial which reads: "Defendant specifically denies
Page80
all the material allegations of the complaint," is not a
specific denial. The use of the word "specific" does not
 make it specific. The blanket denial is actually a general
denial which in effect, is an admission.
(b) Another type of a specific denial is where the
defendant does not make a total denial of the material
allegations in a specific paragraph. He denies only a part
of the averment. If he chooses this type of denial, he
specifies that part the truth of which he admits and denies
only the remainder. This denial known is known as a
partial denial.
- Example: In an action for damages, the defendant avers:
"Defendant admits the allegations in paragraph 5 of the
complaint, that Plaintiff sustained injuries when his car
collided with the herein Defendant's car, but denies the
allegation that the collision occurred through Defendant's
fault."
(c) One type of a specific denial is where the defendant
alleges that he "is without knowledge or information
sufficient to form a belief as to the truth of a material
averment made in the complaint."This type of specific
denial called a denial by disvowal of knowledge, must be
made sincerely and in good faith.
- When the defendant alleges having no knowledge or
information sufficient to form a belief as to the truth of
the allegations of the other party but such matters are
plainly and necessarily within the defendant's knowledge, a
claim of "ignorance or lack of information" will not be
considered as a specific denial.
- Example: Mr. D signs a promissory note in favor of Mr. P
Because Mr. D failed to pay despite demand, suit was
brought against him. The complaint duly pleaded the
promissory note as an actionable document. Mr. D denies
the alleged promissory note by averring lack of knowledge
of the note. This averment is clearly one in bad faith and
shall be considered as an admission because it is absurd for
Mr. D not to know of the promissory note he himself signed
(Bar 1993; Bar 1978).
- In an action to foreclose a mortgage, a denial that the
defendant is without any knowledge of his having signed a
deed of mortgage when the facts and the actionable
document forming the basis of the claim incontrovertibly
show that he so executed the document denied, is a denial
in bad faith. This denial amounts to an admission (Bar
2005; Bar 2004). While a pleader is allowed to allege that
he is without knowledge or information sufficient to form a
belief as to the truth of a material averment made in the
complaint, this rule shall not apply where the fact as to
which a lack of knowledge is asserted is, to the knowledge
of the court, so plainly within the defendant's knowledge
that his averment of ignorance must be palpably untrue.
V. Negative pregnant
- A negative pregnant does not qualify as a specific denial. It
is conceded to be actually an admission.
- Example: A complaint alleges: "Plaintiff extended a loan to
Defendant in the amount of P500,000 on July 27, 2006 in
Baguio City." The defendant in his answer alleges: "Defendant
specifically denies that Plaintiff extended a loan to
Defendant in the amount of P500,000 on July 27, 2006." The
answer is a mere repetition of the allegations made in the
complaint. The answer is vague as to what it really denies. Is
it the existence of a loan that is denied? Is it the amount?
The date? The place? The effect of this kind of denial is an
admission.
VI. When a specific denial must be coupled with an oath
1. There are specific denials which must be under oath and in
these instances a mere specific denial is not sufficient. These
are:
(a) a denial of an actionable document (Sec. 8, Rule 8,
Rules of Court); and
(b) a denial of allegations of usury in a complaint to
recover usurious interest (Sec. 11, Rule 8, Rules of Court).
2. If the cause of action in the complaint is founded upon a
promissory note, the said note is the basis of the action.
Recall that in a previous discussion of the topic, it was
mentioned that the allegation must be done in the following
manner: The substance of this promissory note shall be set
forth or stated in the pleading and the original or copy
thereof shall be attached to the pleading as an exhibit. When
attached as an exhibit the promissory note shall be deemed a
part of the pleading. The copy of the note may also be set
forth in the pleading, i.e., it may be copied verbatim (Sec. 7,
Rule 8, Rules of Court). When the manner of alleging the
document is done in accordance with the Rules, the
document becomes an `actionable document'. The adverse
party who desires to deny the genuineness and the due
execution of the document must do two things:
(a) to specifically deny the document, set forth what he
claims to be the facts, and
(b) deny the document under oath.
- If he does not specifically deny the document under oath,
he is deemed to have admitted the `genuineness and due
execution' of the promissory note. Because of this admission,
he can no longer deny that the note was forged or that he
had no authority to execute the instrument. These defenses
are barred by the admission. May he however, still defend by
showing that the note was executed by fraud, or that the
note has prescribed or was already paid? Yes, he can because
these defenses are not barred by the admission.
- The failure to deny the genuineness and due execution of
an actionable document does not preclude a party from
arguing against it by evidence of fraud, mistake,
compromise, payment, statute of limitations, estoppel, and
want of consideration.
3. The allegations of usury which requires a specific denial
under oath must be (a) allegations of usury in a complaint
(not allegations of usury in the answer), and (b) the
complaint is filed to recover usurious interests (Sec. 11, Rule
8, Rules of Court).
VII. Matters not deemed admitted by the failure to make a
specific denial
- The provisions of Sec. 11 of Rule 8 establish the rule that
material allegations in the complaint not specifically denied
are deemed admitted. The following are nevertheless, not
Page81
deemed admitted by the failure to make a specific denial in
a party's responsive pleading:
 (a) The amount of unliquidated damages (Sec. 11, Rule 8,
Rules of Court).
(b) Conclusions in a pleading which do not have to be
denied at all because only ultimate facts need be alleged in
a pleading (Sec. 1, Rule 8, Rules of Court).
(c) Non-material allegations are not deemed admitted
because only material allegations have to be denied (Sec.
11, Rule 8, Rules of Court).
VIII. Affirmative defenses
l. A defense is affirmative when it alleges new matters
which, while hypothetically admitting the allegations of the
pleading of the claimant, would, nevertheless, prevent or bar
recovery by the claiming party (Sec. 5, Rule 6, Rules of
Court).
2. An affirmative defense is one which is not a denial of an
essential ingredient in the plaintiff's cause of action, but one
which, if established, will be a good defense - i.e., an
"avoidance" of the claim. An affirmative defense includes
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.
- Allegations presented in the answer as affirmative defenses
are not automatically characterized as such. Before an
allegation qualifies as an affirmative defense, it must be of
such nature as to bar the plaintiff from claiming on his cause
of action.
- An answer may allege affirmative defenses which may strike
down the plaintiff's cause of action. When the answer asserts
affirmative defenses, there is proper joinder of issues which
must be ventilated in a full-blown trial on the merits and
cannot be resolved by mere judgment on the pleadings.
B. COUNTERCLAIM
I. Nature of a counterclaim (Bar 1999)
1. > counterclaim - any claim, which a defending party may
have against an opposing party (Sec. 6, Rule 6, Rules of
Court). It partakes of a complaint by the defendant against
the plaintiff.
2. A counterclaim is described by the Rules of Court as any
claim. This may refer to a claim for (a) money, or (b) some
other relief against an opposing party. A counterclaim is
permitted by the Rules as a way of preventing multiplicity of
suits by allowing in one action the determination of the
entire controversies between the parties
3. When the defendant files a counterclaim against the
plaintiff, the defendant becomes the plaintiff in the
counterclaim while the original plaintiff becomes the
defendant. The filing of a counterclaim gives rise to two
complaints, namely, the one filed by the plaintiff by way of
an original complaint and the one filed by the defendant by
way of a counterclaim. To illustrate: PP files a complaint for
unlawful detainer against DD. The latter files an answer
together with a claim for reimbursement of all the expenses
he incurred in repairing the building subject of the lease, the
claim for reimbursement is a counterclaim and is in the
nature of a complaint by the defendant against the plaintiff.
4. A counterclaim is not intrinsically a part of the answer
because it is a separate pleading. It may however, be
included in the answer. This inclusion is merely a matter of
form and does not have the effect of fusing the two separate
pleadings into a single pleading. Thus, it is not uncommon for
lawyers to denominate these two pleadings as: "Answer With
A Counterclaim." Note however, that a "Motion To Dismiss
With A Counterclaim" is not sanctioned by both the Rules of
Court and by common usage (Bar 1992).
II. Compulsory counterclaim
1. To be compulsory, the counterclaim must have the
following elements:
(a) It arises out of, or is necessarily connected with the
transaction or occurrence which is the subject matter of
the opposing party's claim;
(b) It does not require for its adjudication the presence of
third parties over whom the court cannot acquire
jurisdiction; and
(c) The court has jurisdiction to entertain both as to the
amount and nature (Sec. 7, Rule 6, Rules of Court).
.
2. One compelling test of compulsoriness is the logical
relation between the claim alleged in the complaint and that
in the counterclaim.
3. A counterclaim is compulsory under the following facts:
Aya sues Lea for recovery of a tract of land. Lea seeks in turn
to be reimbursed the value of the improvements she has
introduced in the same land and the payment of damages she
has sustained as a consequence of the suit. The claim of Lea
arises out of, or is necessarily connected with the subject
matter of the complaint (Bar 1994; Bar 1985). It has been
held that a claim for compensation for improvements on land
partakes of the nature of a compulsory counterclaim.
- The most common compulsory counterclaim filed by the
defendant in the absence of any other counterclaim is to
claim in the same suit his expenses in the suit for being
forced to litigate in the face of an allegedly unfounded and
baseless complaint. Added to these expenses are the alleged
damages he sustained as a consequence of the unfounded
complaint.
4. The logical connection between the complaint and the
counterclaim will not give rise to a compulsory counterclaim
where the latter is not within the jurisdiction of the court. If
the counterclaim exceeds the jurisdiction of the court, the
counterclaim should be deemed permissive, not compulsory.
Thus, a counterclaim for P500,000.00 in the Metropolitan
Trial Court of Manila cannot be considered a compulsory
counterclaim since the amount exceeds the court's
jurisdiction even if assuming, it is intimately connected with
the subject matter of the complaint.
5. Despite the lack of jurisdiction of the court to adjudicate
on the counterclaim, the same may nevertheless, be pleaded
in the same action, not to obtain affirmative relief because
the court, for want of jurisdiction, cannot do so. The purpose
would merely be to weaken the plaintiff's claim.
Page82
If the counterclaim in excess of the jurisdiction of the
court is interposed in the same action, and the court finds
both the complaint and the counterclaim meritorious, it will
not grant the relief in the complaint on the ground that the Rules of Court) because a the complaint.
defendant has a bigger claim. If the defendant desires to compulsory counterclaim not
have affirmative relief on his counterclaim, he may waive set up shall be barred (Sec.
the amount in excess of the jurisdiction of the court. 2, Rule 9, Rules of Court).

6. There may be instances when the court has to dismiss the b. not an initiatory pleading. b. considered an initiatory
counterclaim for lack of jurisdiction over the subject matter. pleading.
If the counterclaim for instance, interposed in the Regional
Trial Court is one for unlawful detainer, the same cannot be c. does not require the c. should be accompanied by
invoked as a counterclaim in the same action even if the certificates mentioned a certification against forum
amount of rentals or damages is within the jurisdiction of the shopping and whenever
Regional Trial Court. A Regional Trial Court cannot required by law, also a
adjudicate upon an unlawful detainer case. Also, a certificate to file action
counterclaim for illegal dismissal cannot be entertained by issued by the Lupong
regular courts for want of jurisdiction. The subject matter of Tagapamayapa. (The
the counterclaim is within the jurisdiction of Labor Arbiters. certificates mentioned are
required to be attached
7. The absence of jurisdiction to entertain a counterclaim because a permissive
because of the amount thereof appropriately applies to a counterclaim is an initiatory
Municipal Trial Court and equivalent courts. Hence, a pleading).
Municipal Trial Court in Bulacan will not have the jurisdiction
to take cognizance of a counterclaim in excess of d. Such fees are not paid for d. The docket and other
P300,000.00 and a Metropolitan Trial Court of Makati City a compulsory counterclaim lawful fees should be paid
cannot assume jurisdiction over a counterclaim in excess of for a permissive
P400,0000.00. The result will differ however, when the counterclaim. (The docket
original action is filed with the Regional Trial Court. In this fees are required to be paid
court, the counterclaim may be deemed compulsory because a permissive
regardless of the amount (Sec. 7, Rule 6, Rules of Court). counterclaim is considered
Hence, a counterclaim of P350,000.00 filed in the Regional an initiatory pleading.)
Trial Court of Manila is still a compulsory counterclaim even
if the court would have no jurisdiction over the amount e. Failure to answer a e. must be answered by the
claimed if it is filed as an original complaint. compulsory counterclaim is party against whom it is
not a cause for a default interposed otherwise, he
III. Permissive counterclaim declaration. may be declared in default
1. Generally, a counterclaim is permissive if any of the A compulsory as to the counterclaim
elements of a compulsory counterclaim discussed previously, counterclaim that merely
is absent. But the most commonly treated feature of a reiterates special defenses
permissive counterclaim is its absence of a logical connection are deemed controverted
with the subject mater of the complaint, i.e., it does not even without a reply, or
arise out of, or is not connected with the plaintiff's cause of raises issues which are
action. deemed automatically
joined by the allegations of
2. A counterclaim for damages based on culpa aquiliana in a the complaint, need not be
complaint for collection of a loan is a permissive counter- answered. In such a case,
claim for not having connection with the plaintiff's claim. failure to answer a
compulsory counterclaim
3. A counterclaim for damages based on a quasi-delict cannot may not be a cause for a
be pleaded as a compulsory counterclaim in an action for declaration of default.
unlawful detainer. The counterclaim is permissive.
- Thus, if the plaintiff files an action to recover possession of
4. A counterclaim for the payment of the price of the car is real property against the defendant who interposed a
not a compulsory counterclaim in an action to recover a counterclaim for damages and attorney's fees arising from
piece of land (Bar 1996). the filing of the complaint, the counterclaim need not be
answered by the plaintiff. A motion to declare him in default
IV. Distinctions between a compulsory and a permissive for failure to answer the counterclaim must be denied
counterclaim because the counterclaim is compulsory (Bar 1996). On the
- The following are the most significant distinctions between other hand, if the counterclaim is for damages arising from
the two counterclaims: the alleged tortious conduct of the plaintiff in an action to
Compulsory counterclaim Permissive counterclaim collect a sum of money, the defendant may file a motion to
a. the compulsory a. not subject to the above declare the plaintiff' in default if he fails to file an answer to
counterclaim which a party rule. Hence, it may be set up
Page83

the counterclaim which is permissive.

has at the time the answer is as an independent action and
filed shall be contained in will not be barred if not V. How to set up an omitted compulsory counterclaim
the answer (Sec. 8, Rule 11, contained in the answer to
- A compulsory counterclaim not initially set up because of
the pleader's oversight, inadvertence, excusable neglect or
when justice requires, may be set up, by leave of court by
amendment of the pleadings before judgment (Sec. 10, Rule
11, Rules of Court). If not set up in the action, the
compulsory counterclaim shall be barred (Sec. 2, Rule 9,
Rules of Court). The bar of course refers to a counterclaim
that a defending party has at the time he files the answer,
i.e., a counterclaim already existing at the time the answer
is filed (Sec. 8, Rule 11, Rules of Court).
VI. How to set up a counterclaim arising after the filing of
the answer
- A counterclaim, 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 by supplemental
pleading before judgment (Sec. 9, Rule 11, Rules of Court).
VII. Period to answer a counterclaim
- If a counterclaim is to be answered, the same must be
made within ten (10) days from service (Sec. 4. Rule 11,
Rules of Court). This rule has more relevance to a permissive
counterclaim which has to be answered.
VIII. Effect of the dismissal of a complaint on the counter-
claim already set up
1. There are three significant situations involving the
dismissal of a complaint and the effect of such dismissal on
the counterclaim already pleaded by the defending party.
(a) The first is the situation contemplated under the last
paragraph of Sec. 6 of Rule 16. Here, the defendant does
not file a motion to dismiss. Instead, he files an answer
and utilizes certain grounds for a motion to dismiss as
affirmative defenses. Included in the answer is a
counterclaim. He then asks for a preliminary hearing on
the affirmative defenses set up, a request granted by the
court. During the hearing on the affirmative defenses, the
court decides to dismiss the complaint. If the complaint is
dismissed, the counterclaim, compulsory or permissive is
not dismissed. Sec. 6 of Rule 16 is explicit: "The dismissal
of the complaint under this section shall be without
prejudice to the prosecution in the same or separate
action of a counterclaim pleaded in the answer."
(b) The second situation is covered by Sec. 2, of Rule 17.
Under this provision, the plaintiff himself files a motion to
dismiss his complaint after the defendant has pleaded his
answer with a counterclaim. The motion is granted by the
court. "x x x 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."
(c) The third situation is covered by Sec. 3 of Rule 17. Here
the complaint is dismissed through the plaintiff's fault and
at a time when a counterclaim has already been set up.
Like the first two situations, the dismissal is "without
prejudice to the right of the defendant to prosecute his
counterclaim in the same or separate action.'
2. The above described situations have a common thread
running through them. The rules cited recognize the right of
the defending party to prosecute the counterclaim in the
same or separate action notwithstanding the dismissal of the
complaint, and without regard as to the permissive or
compulsory nature of the counterclaim. With the aforestate(I
rules in effect since July l, 1997 previous jural
pronouncements in conflict with the same, like that of BA
Finance Corporation vs. Co, abandoned.
C. CROSS-CLAIM
I. Nature of a cross-claim
1. > cross-claim - any claim by one party against a coparty
arising out of the transaction or occurrence that is the
subject matter either of the original action or of a
counterclaim therein. The cross-claim may include a claim
that the party against whom it is asserted is liable or maybe
liable to the cross-claimant for all or part of a claim asserted
in the action against the cross-claimant (Sec. 8, Rule 6, Rules
of Court).
2. While a counterclaim is asserted by a defending party
against a claimant, a cross-claim is asserted by a defending
party against a co-defending party so that the latter may be
held liable for the claim which the claimant seeks to recover
from the cross-claimant. If XYZ Bank sues A and B for the
collection of a loan, A, who turned over to B all the proceeds
of said loan, may file a cross-claim against his co-defendant,
B by asserting that it is B who is the actual and true debtor
and hence, should be ultimately liable for the payment of
the loan.
3. B and C borrowed P400,000 from A. B, who received the
money from A, gave the P200,000 to C. In an action filed by A
against B and C, B may file a cross-claim against C for
P200,000 (Bar 1997).
4. A cross-claim that a party has at the time the answer is
filed shall be contained in said answer (Sec. 8, Rule 11, Rules
of Court). Broadly, this means that the cross-claim must be
set up in the same action. If through oversight, inadvertence,
or excusable negligence, it is not asserted, it may still be set
up with leave of court, by amendment of the pleadings (Sec.
9, Rule 11, Rules of Court). It has to be set up in the action
because if' not set up it shall be barred (Sec. 2, Rule 9, Rules
of Court). Note however, that the cross-claim that shall be
barred if not asserted is the cross-claim already existing at
the time the answer is filed, not the cross-claim that may
mature or may be acquired after service of the answer. As to
the latter, Sec. 9 of Rule 11 declares that it may, by leave of
court, be set up by way of a supplemental pleading.
II. Distinctions between a counterclaim and a cross-claim
(Bar 1999)
Cross-claim Counter-claim
a. a claim against a co-party; a. a claim against an
opposing party; and
b. must arise from the b. may or may not arise out
transaction or occurrence of the subject matter of the
that is the subject matter of complaint.
the original complaint or
Page84
counterclaim (Sec. 8, Rule 6,
Rules of Court).
III. Period to answer a cross-claim
- A cross-claim must be answered within ten (10) days from
service (Sec. 4, Rule 11, Rules of Court).
D. THIRD (FOURTH, ETC.) -PARTY COMPLAINT
I. Nature of a third-party complaint
1. This pleading is a claim which a defending party may, with
leave of court, file against a person who is not yet a party to
the action for contribution, indemnity, subrogation or any
other relief, in respect of his opponent's claim (Sec. 11, Rule
6, ' Rules of Court). There could also be a fourth, etc. -party
complaint with the same function as a third-party complaint.
2. A third-party complaint is actually a complaint
independent of, and separate and distinct from, the
plaintiff's complaint. Were it not for the above rule, such
third-party complaint would have to be filed independently
and separately from the original complaint. The purpose is to
avoid circuitry of action and unnecessary proliferation of
lawsuits and of disposing expeditiously in one litigation all
the matters arising from one particular set of facts.
- Be that as it may, trial courts are not especially enjoined by
law to admit a third-party complaint. They are vested with
discretion to allow or disallow a party to an action to
implead an additional party. Thus, a defendant has no vested
right to file a third-party complaint.
3. It is not proper to file a third-party complaint against one
who is already a party to the action such as against the
plaintiff or a co-defendant. A claim against the plaintiff is
asserted by way of a counterclaim. A claim by the defendant
against his co-defendant is set up by way of a cross-claim.
Thus, if Mr. S sells a car to Mr. B, and later, the real owner of
the car, Mr. O files an action against Mr. B to recover the
car, Mr. B may file a third-party complaint against Mr. S to
require the latter to answer for the breach of warranty
against eviction (Art. 1558, Civil Code of the Philippines).
- Also if the passenger of a taxicab sues the operator for
breach of contract of carriage because of injuries sustained
by him in a mishap, the operator may file a third-party
complaint against the negligent driver for reimbursement.
4. B and C borrowed P400,000 from A. B, who received the
money from a, gave C P200,000. C in turn gave by way of
loan, P100,000 to D. C, if sued can file a third-party
complaint against D (Bar 1997).
- A assembles an owner-type jeep for B who in turn rents it
to X. Due to faulty brakes, X figures in a vehicular accident
causing him severe injuries. If X files an action for damages
against A and B, B cannot file a third-party complaint against
A because both are already parties to the action. B should
instead, file a cross-claim against A (Bar 1996).
5. Explains the Court in no uncertain terms: "The thirdparty
complaint, is a procedural device whereby athird party' who
is neither a party nor privy to the act or deed complained of
by the plaintiff, may be brought into the case with leave of
court, by the defendant, who acts as third-party plaintiff to
enforce against such third-party defendant a right for
contribution, indemnity, subrogation or any other relief, in
respect of the plaintiff's claim. The third-party complaint is
actually independent of and separate and distinct from the
plaintiff's complaint. Were it not for this provision of the
Rules of Court, it would have to be filed independently and
separately from the original complaint by the defendant
against the thirdparty. But the Rules permit defendant to
bring in a third-party defendant or so to speak, to litigate his
separate cause of action in respect of plaintiff's claim against
a third party in the original and principal case with the
object of avoiding circuitry of action and unnecessary
proliferation of lawsuits and of disposing expeditiously in one
litigation the entire subject matter arising from one
particular set of facts. Prior leave of Court is necessary, so
that where the allowance of a third-party complaint would
delay the resolution of the original case, such as when the
thirdparty defendant cannot be located or where matters
extraneous to the issue of possession would unnecessarily
clutter a case of forcible entry, or the effect would be to
introduce a new and separate controversy into the action,
the salutary object of the rule would not be defeated, and
the court should in such cases require the defendant to
institute a separate action.
II. Leave of court
- The filing of a third party complaint requires leave of court
(Sec. 11, Rule 6, Rules of Court) and hence, its admission is
subject to judicial discretion. Leave of court is not required
in filing a counterclaim or a cross-claim.
III. Answer to a third-party complaint
- The time to answer a third-party complaint shall be
governed by the same rule as the answer to the complaint
(Sec. 5, Rule 6, Rules of Court).
E. INTERVENTION
I. Nature of intervention
1. > Intervention - a legal proceeding by which person who is
not a party to the action is permitted by the court to become
a party by intervening in a pending action after meeting the
conditions and requirements set by the Rules of Court. This
third person who intervenes is one who is not originally
impleaded in the action.
2. Intervention is never an independent proceeding but is
ancillary and supplemental to an existing litigation. Its
purpose is to enable a stranger to an action to become a
party to protect his interest.
An intervention cannot alter the nature of the action and
the issues already joined.
3. Intervention in an action is neither compulsory nor
mandatory but only optional and permissive. Hence, the
court has the full measure of discretion in permitting or
disallowing the same. This discretion however, must be
exercised judiciously and only after consideration of all the
circumstances obtaining in the case. Thus, where the
substantial interest of the movant in the subject matter is
undisputed, a denial of a motion to intervene is an injustice.
II. Requisites for intervention (Bar 2000)
Page85
- The following requisites must be complied with before a
non-party may intervene in a pending:
(a) There must be a motion for intervention filed before
rendition of judgment by the trial court (Sec. 1, Rule 19). A
motion is necessary because leave of court is required before
a person may be allowed to intervene (Sec. 1, Rule 19).
(b) The movant must show in his motion that he has a:
(1) legal interest in (a) the matter in litigation, (b) the
success of either of the parties in the action, or (c) against
both parties,
(2) that the movant is so situated as to be adversely
affected by a distribution or other disposition of property n
the custody of the court or of an officer thereof (Sec. 1,
Rule 19, Rules of Court), and
(3) that the intervention must not unduly delay or prejudice
the adjudication of the rights of the original parties and
that the intervenor's rights may not be fully protected in a
separate proceeding.
III. Meaning of legal interest
l. The legal interest must be one that is direct anti o`' an
immediate character, not merely contingent or expectaiA
pit; that the intervenor will either gain or lose by the direct
legal operation of the judgment. Thus, when the title to the
property had been already declared void by final judgment,
intervention will not revive or reinstate the inovant's title
derived from the title declared void.
2. The assignee of a property who assumed payment of`
whatever amount may be finally adjudged against the
assignor may intervene in a proceeding involving the
execution of the property pursuant to a judgment.
3. In an action for foreclosure of mortgage, the alleged
owners of the land sought to be foreclosed may intervene.
IV. Procedure for intervention
1. The intervenor shall file a motion for intervention
attaching thereto his pleading-in-intervention. The pleading
to be filed depends upon the purpose of the intervention. If
the purpose is to assert a claim against either or all of the
original parties, the pleading shall be called a complaint-in-
intervention; If the pleadings seek to unite with the
defending party in resisting a claim against the latter, he
shall file an answer-inintervention (Sec. 3, Rule 19, Rules of
Court);
2. The motion and the pleading shall be served upon the
original parties;
3. The answer to the complaint-in-intervention shall be filed
within fifteen (15) days from notice of the order admitting
the same, unless a different period is fixed by the courts
(Sec. 4, Rule 9, Rules of Court).
V. Time for intervention
1. The motion to intervene may be filed at any time before
rendition of judgment by the trial court (Sec. 2, Rule 189,
Rules of Court).
2. Intervention after trial and decision can no longer be
permitted.
F. REPLY
I. Nature of a reply
1. > reply - a pleading, the 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 joins or makes
issue as to such new matters (Sec. 10, Rule 6, Rules of
Court).
2. A reply is the responsive pleading to an answer. It is not a
responsive pleading to a counterclaim or a cross-claim. The
proper response to a counterclaim or a cross-claim is an
answer to the counterclaim or answer to the cross-claim.
3. As a rule, the filing of a reply to the answer is not
mandatory and will not have an adverse effect on the
defendant.
Under Sec. 10 of Rule 6, if a party does not file such reply,
all the new matters alleged in the answer are deemed
controverted or denied. No admission follows from the
failure to file a reply. Hence, if the answer to the complaint
alleges as a defense the prescription of the action, the
failure of the plaintiff to specifically deny the prescription
will not amount to an admission that the debt has prescribed
because the rule already denies the matter of prescription
without the plaintiff making a specific denial. It is already,
as the rule says, "deemed controverted" (Bar 1996; Bar 1977).
- Contrast this with the rule that the failure to specifically
deny the material allegations of the complaint shall mean
the implied admission of such material allegations (Sec. 11,
Rule 8, Rules of Court). Thus, the gist of the rule is: The
material allegations of a complaint must be specifically
denied but the allegations of new matters or material
allegations of the answer need not be denied because they
are deemed denied by the Rules for the plaintiff.
G. DEFAULT
I. Nature of default
1. > Default - a procedural concept that occurs when the
defending party fails to file his answer within the
reglementary period (Bar 1999). It does not occur from the
failure of the defendant to attend either the pre-trial or the
trial.
- The failure of the defendant to appear at the pre-trial shall
be cause for the court to order the plaintiff to present his
evidence ex parte and for the court to render judgment on
the basis thereof Under the Rules, this consequence is not to
be called a declaration of default (Sec. 5, Rule 18, Rules of
Court). The failure of the defendant to appear in the trial
will be construed as a waiver to assail the evidences against
him or a waiver of the right to adduce evidence in his
behalf.]
2. It is error to declare a defendant in default where an
answer has already been filed.
II. Requisites before a party may be declared in default (Bar
1999)
l. The following are the requisites before a party may be
declared in default:
(a) There must be a motion to declare the defending party
Page86
in default filed by the claiming party; and
(b) Summons has been validly and previously served upon
him;
 (c) The defending party must have failed to file his answer
within the reglementary period or within the period fixed
by the court;
(d) There must be proof of the failure to file the answer;
(e) The defending party must be notified of the motion to
declare him in default (Sec. 3, Rule 9, Rules of Court); and
(f) There must be a hearing of the motion to declare the
defendant in default.
- Section 3, Rule 9 of the Rules of Court provides:
- The required hearing of the motion is mandated by Sec. 4
of Rule 15 which specifically provides:
"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" (Underscoring ours).
2. "Prior to the present rule on default introduced by the
1997 Rules of Civil Procedure, as amended, Section 1 of the
former Rule 18 on default is silent on whether or not there is
need for a notice of a motion to declare defendant in
default. The Court then ruled that there is no need.
However, the present rule expressly requires that the motion
of the claiming party should be with notice to the defending
party. The purpose of a notice of a motion is to avoid
surprises on the opposite party and to give him time to study
and meet the arguments. The notice of a motion is required
when the party has the right to resist the relief sought by the
motion and principles of natural justice demand that his right
be not affected without an opportunity to be heard.
- "Therefore, as the present rule on default requires the
filing of a motion and notice of such motion to the defending
party, it is not enough that the defendant failed to answer
the complaint within the reglementary period to be a
sufficient ground for declaration in default. The motion must
also be heard."
3. There is no justification for the trial judge for not hearing
the motion and for hastily granting the motion to declare the
defendant in default prior to the scheduled hearing of the
motion on the ground that it had found the motion to be
impressed with merit. The error of the trial judge is
compounded by his having ignored the opposition of the
defendant to the motion to declare him in default and the
denial of his motion to admit answer filed prior to the
hearing.
- Indeed, in totally disregarding the purpose for which the
filing of a motion and notice to defending party are required
by the Rules, the trial court had acted in a despotic manner
that is correctly assailed through a petition for certiorari
which petitioners have seasonably filed with the CA.
III. No motu proprio declaration of default
- The court has no authority to motu propio declare the
defendant in default. A motion to declare the defending
party must be filed by the claiming party before a
declaration of default is made by the court. The rule is clear.
Sec. 3 of Rule 9 provides ". . . upon motion of the claiming
party."
IV. Failure to file an answer under the Rule on Summary
Procedure
1.Under the Rule on Summary Procedure, the defendant who
fails to file an answer within the reglementary period is not
supposed to be declared in default. Instead, the court motu
proprio, or on motion of the plaintiff, shall render judgment,
(not to declare the defendant in default) as may be
warranted by the facts alleged in the complaint and limited
to what is prayed for (Sec. 6, II, 1991 Rule on Summary
Procedure). This represents a principal distinction between
default in regular civil proceedings and default under a
summary procedure (Bar 1988).
2. Also, under the Rule on Summary Procedure, the plaintiff
is prohibited from filing a motion to declare the defendant in
default (Sec. 19[h], 1991 Rule on Summary Procedure). This
is another significant departure from the regular rule (Bar
1988).
V. Effect of a declaration/order of default
1. The party declared in default loses his standing in court.
The loss of such standing prevents him from taking part in
the trial (Sec. 3[a], Rule 9, Rules of Court).
2. While the defendant can no longer take part in the trial,
he is nevertheless entitled to notices of subsequent
proceedings (Sec. 3[a], Rule 9, Rules of Court). It is
submitted that he may participate in the trial, not as a party
but as a witness.
3. A declaration of default is not an admission of the truth or
the validity of the plaintiff's claims.
V. Action of the court after the declaration/order of default
1. Under the rules, when a party is declared in default, the
court may do either of two things:
(a) to proceed to render judgment, or
(b) to require the plaintiff to present his evidence ex
parte.
2. The choice of which action to take is a matter of judicial
discretion (Sec. 3, Rule 9, Rules of Court). Under the
previous rule, the court had no power to render judgment
immediately after the declaration or order of default. It had
to require the reception of evidence by the plaintiff but done
without the participation of the defendant who has already
lost his standing. The court, under current rules may, at its
discretion, select between the options granted to by the
Rules of Court.
3. The court need not personally receive the evidence if it
decides to hear the evidence of the plaintiff. The reception
of the evidence may be delegated to the clerk of court (Sec.
3, Rule 9, Rules of Court).
VI. Remedies of a defending party declared in default (Bar
1998)
1. The following are the remedies of a party declared in
default:
(a) Remedy after notice of order and before judgment -
The defendant must file a motion under oath to set aside
the order of default and show that (a) the failure to
answer was due to fraud, accident, mistake, or excusable
Page87
negligence (FAMEN), and that (b) the defendant has a
meritorious defense, i.e., there must be an affidavit of
merit (Sec. 3[b], Rule 9, Rules of Court).

(b) Remedy after judgment but before its finality - The
defendant may file a motion for new trial under Rule 37.
He may also appeal from the judgment as being contrary
to the evidence or the law.
(c) Remedy after the judgment becomes final and
executory - The defendant may file a petition for relief
from judgment under Rule 38.
- The current judicial trend is to avoid defaults and thus,
courts are enjoined to be liberal in setting aside orders of
default.
The issuance of orders of default should be the exception
rather than the rule and to be allowed only in clear cases of
obstinate refusal by the defendant to comply with the orders
of the trial court, because suits should as much as possible,
be decided on the merits and not on technicalities.
Thus, in practice, an answer under oath containing the
defenses of the defendant, may under the rules on liberal
interpretation, be deemed as the equivalent of an affidavit
of merit.
2. Where the defendant has however, been wrongly or
improvidently declared in default, the court can be
considered to have acted with grave abuse of discretion
amounting to lack of jurisdiction and when the lack of
jurisdiction is patent in the face of the of the judgment or
from the judicial records, he may avail of the special civil
action of certiorari under Rule 65.
VII. Extent of relief in a judgment by default
- If the complaint seeks to recover P1 million but the
evidence of the plaintiff shows a right to recover P1.5
million. The court has no authority to grant the latter
amount despite the evidence. This is because under the
Rules, "A judgment rendered against a party in default shall
not exceed the amount or be different in kind from that
prayed for nor award unliquidated damages" (Sec. 3[d], Rule
9, Rules of Court).
VIII. Cases where a declaration/order of default cannot be
made
1. Default is not allowed in the following actions:
(a) annulment of marriage;
(b) declaration of nullity of marriage;
and
(c) legal separation (Sec. 3[e], Rule 9).
2. If no answer is filed in any of the above actions, the court
shall order the prosecuting attorney to investigate whether
or not collusion exists between the parties. If there is no
collusion, the court shall order said prosecuting attorney to
intervene for the State in order to see to it that the evidence
submitted is not fabricated (Sec. 3[e], Rule 9, Rules of
Court).
IX. Judgment by default for refusal to comply with the modes
of discovery
- The rule is that a default order and consequently a default
judgment is triggered by the failure of the defending party to
file the required answer (Sec. 3, Rule 9, Rules of Court). By
way of exception, a judgment by default may be rendered in
the following cases despite an answer having been filed:
(a) If a party refuses to obey an order requiring him to
comply with the various modes of discovery (Sec. 3[c],
Rule 29, Rules of Court); or
(b) If a party or officer or managing agent of a party
willfully fails to appear before the officer who is to take
his deposition (Sec. 5, Rule 29, Rules of Court).
H. JUDGMENT ON THE PLEADINGS (Bar 1999; 1993; 1978)
I. Nature of judgment on the pleadings
1. The concept of a judgment on the pleadings will not apply
when no answer is filed. It will come into operation when an
answer is served and filed but the same fails to tender an
issue or admits the material allegations of the adverse party's
pleading (Sec. 1, Rule 34, Rules of Court, Bar 1999).
2. An answer fails to tender an issue when the material
allegations of the other party are admitted or not specifically
denied by the pleader. Under the rules, material allegations
of the complaint are deemed admitted (Sec. 11, Rule 8,
Rules of Court).
II. Motion required
- A judgment on the pleadings cannot be rendered by the
court motu proprio. It can be done only where there is a
prior motion to the effect filed by the appropriate party
(Sec. 1, Rule 34, Rules of Court; Bar 1999).
III. Cases where judgment on the pleadings will not apply
l. In the following cases, a judgment on the pleadings will not
lie:
(a) actions for the declaration of nullity of a marriage;
(b) actions for annulment of marriage; and
(c) actions for legal separation (Sec. 1, Rule 34, Rules of
Court).
2. In the above cases, the material facts alleged in the
complaint shall always be proved (Sec. 1, Rule 34, Rules of
Court).
I. SUMMARY JUDGMENT (Bar 1989)
I. Nature of summary judgment (Bar 1986;1989;1996;1999)
1. A summary judgment, also called accelerated judgment, is
proper where, upon a motion filed after the issues had been
joined and on the basis of the pleadings and papers filed, the
court finds that there is no genuine issue as to any material
fact except as to the amount of damages.
Under the Rules, when there is no genuine issue as to any
material fact, other than for instance, the amount of
damages, and the moving party is entitled to a judgment as a
matter of law, a summary judgment may be rendered.
2. What triggers a summary judgment is the absence of a
genuine factual issue. It is not proper where there are
factual issues to be resolved by the presentation of evidence.
Even if there is a complicated question of law if there is no
issue as to the facts, a summary judgment is not barred.
3. In an action for foreclosure of mortgage for example, the
Page88
material issues are the existence of the debt and its
demandability. When the defendant admits the existence of
the debt and raises an issue as to the demandability of the
debt or the interest rate involved because of an alleged Judgment on the pleadings Summary judgment
contemporaneous agreement between the parties, the issue a. there is an absence of a a. involves an issue, but the
tendered is sham, fictitious, or patently unsubstantial. A factual issue in the case issue is not genuine.
summary judgment would be proper because there is no because the answer tenders
genuine issue. no issue at all

- Where only the genuineness and the due execution of the b. A motion for judgment on b. A motion for summary
promissory are the matters deemed admitted for the failure the pleadings is fled by a judgment may be filed by
of the defendant to deny the same under oath, a summary claiming party like a plaintiff either the claiming or the
judgment is not proper (Bar 1986). or a counterclaimant (Sec. 1, defending party (Sets. 1, 2,
Rule 34, Rules of Court). Rule 35, Rules of Court).
- In an action for a sum of money, where the debt and the
fact of its nonpayment is admitted and the only issue raised c. based on the pleadings c. based on the pleadings,
is the rate of interest and the damages payable, there is no alone (Sec. 1, Rule 34, Rules affidavits, depositions and
genuine issue and a summary judgment maybe rendered upon of Court). admissions (Sec. 3, Rule 35,
proper motion. Rules of Court). "

4. The Court, in Asian Development and Construction
Corporation vs. Philippine Commercial and Industrial Bank
reiterated the principles governing summary judgment as
follows:
". . . Under the Rules, summary judgment is
appropriate when there are no genuine issues of fact which
call for the presentation of evidence in a full-blown trial.
Even if on their face the pleadings appear to raise issues,
when the affidavits, depositions and admissions show that
such issues are not genuine, then summary judgment as
prescribed by the Rules must ensue as a matter of law. The
determinative factor, therefore, in a motion for summary
judgment, is the presence or absence of a genuine issue as to
any material fact.
> "genuine issue" - an issue of fact which requires the
presentation of evidence as distinguished from a sham,
fictitious, contrived or false claim.
When the facts as pleaded appear uncontested or
undisputed, then there is no real or genuine issue or question
as to the facts, and summary judgment is called for. The
party who moves for summary judgment has the burden. of
demonstrating clearly the absence of any genuine issue of
fact, or that the issue posed in the complaint is patently
unsubstantial so as not to, constitute a genuine issue for
trial. Trial courts have limited authority to render summary
judgments and may do so only when there is clearly no
genuine issue as to any material fact. When the facts as
pleaded by the parties are disputed or contested,
proceedings for summary judgment cannot take the place of
trial.
5. The trial court cannot motu proprio decide that summary
judgment on an action is in order. Under the applicable
provisions of Rule 35, the defending party or the claimant, as
the case may be, must invoke the rule on summary judgment
by filing a motion. The adverse party must be notified of the
motion for summary judgment and furnished with supporting
affidavits, depositions or admissions before hearing is
conducted. More importantly, a summary judgment is
permitted only if there is no genuine issue as to any material
fact and a moving party is entitled to a judgment as a matter
of law (Pineda vs. Heirs of Eliseo Guevara, G.R. No. 143188,
February 14, 2007).
d. Only a three-day notice is d. A ten-day notice is
required prior to the date of required in a motion for
hearing in a motion for summary judgment (Sec. 3,
judgment on the pleadings Rule 35, Rules of Court).
based on the regular rules on
motions (Sec. 4, Rule 15,
Rules of Court).
CHAP. 8: PRE-TRIAL AND MODES OF DISCOVERY
A. PRE-TRIAL
I. Nature and purpose of a pre-trial
1. > pre-trial - a procedural device held prior to the trial for
the court to consider the following purposes:
(a) The possibility of an amicable settlement or a
submission to alternative modes of dispute resolution;
(b) The simplification of the issues;
(c) The necessity or desirability of amendments to the
pleadings;
(d) The possibility of obtaining stipulations or admissions of
facts and of documents to avoid unnecessary proof;
(e) The limitation of the number of witnesses;
(f) The advisability of a preliminary reference of issues to a
commissioner;
(g) The propriety of rendering judgment on the pleadings,
or summary judgment, or of dismissing the action should a
valid ground therefore be found to exist;
(h) The advisability or necessity of suspending the
proceedings; and
(i) Such other matters as may aid in the prompt disposition
of the action (Sec. 2, Rule 18, Rules of Court).
2. The pre-trial is mandatory in civil cases (Sec. 2, Rule 18)
3. In all criminal cases cognizable by the Sandiganbayan,
Regional Trial Court, Metropolitan Trial Court, Municipal Trial
Court in Cities, Municipal Trial Court, and Municipal Circuit
Trial Courts, pre-trial is also mandatory (Sec. 1, Rule 118,
Rules of Court).
4. A pre-trial conference is likewise mandatory in both civil
Page89

and criminal cases under the Rules on Summary Procedure

(Sec. 7, Sec. 14, 1991 Rule on Summary Procedure).
II. Distinctions between a judgment on the pleadings and a
summary judgment (Bar 1989)
5. Under the former rule (Sec. 3, Rule 20), the court was
authorized to render a judgment on the pleadings or a
summary judgment if at the trial the court finds that facts
exist to warrant the rendition of said judgments. The court
under the old rule may do so on its own motion. Under the
current rule (Sec. 2[d], Rule 18), the court's authority is
confined to a mere determination of the propriety of
rendering a judgment on the pleadings or a summary
judgment. The requisite motion should be filed and heard
pursuant to Rule 34 (Judgment on the Pleadings) and Rule 35
(Summary Judgments).
II. How pre-trial is called (Bar 1999)
1. In a civil case, it is not the court which initiates the
setting of the case for a pre-trial. It is set at the instance of
the plaintiff. Under the Rules, it shall be the duty of the
plaintiff, not of the defendant, to promptly file a motion to
set the case for pre-trial. This motion is an ex parte motion.
This means that the motion need not be the subject of a
hearing (Sec. 1, Rule 18, Rules of Court).
2. The ex parte motion to set the case for pre-trial is to be
made by the plaintiff after the last pleading has been served
and filed (Sec. 1, Rule 18, Rules of Court). Specifically, the
motion is to be filed within five (5) days after the last
pleading joining the issues has been served and filed
(Administrative Circular No. 399, January 15, 1999). If the
plaintiff fails to file said motion within the given period, the
branch clerk of court shall issue a notice of pre-trial (A.M.
No. 03-109-SC, July 13, 2004).
III. The meaning of `last pleading'
1. The last permissible pleading that a party can file is the
reply to the answer to the last pleading asserting a claim.
The claim could be the original complaint, the counterclaim,
the cross-claim or the third-party complaint. If an answer is
filed and served in response to these claims, the pleading in
response to these answers is the reply which is to be filed
within ten (10) days from the service of the pleading
responded to (Sec. 6, Rule 11, Rules of Court).
2. Where the last pleading has not yet been served and filed,
the case is not yet ready for pre-trial.
However, the `last pleading' need not be literally
construed as one having been served and filed. For purposes
of the pre-trial, the expiration of the period for filing the last
pleading without it having been served and filed is sufficient.
IV. Notice of pre-trial (Bar 1977)
1. The notice of pre-trial shall be served on the counsel of
the party if the latter is represented by counsel. Otherwise
the notice shall be served on the party himself. The counsel
is charged with the duty of notifying his client of the date,
time and place of the pre-trial (Sec. 3, Rule 18, Rules of
Court).
2. The old rule required that the notice be served not only
upon the counsel but also upon the party and where no
separate notice to the party is sent, it was then the rule that
all the proceedings at the pre-trial and subsequent thereto
are null and void.
The present rule simplifies the procedure because the
notice of pretrial is served on the counsel, and service is
made on the party only if he has no counsel.
3. Notice is so important that it would be grave abuse of
discretion for the court for example, to allow the plaintiff to
present his evidence ex parte for failure of the defendant to
appear before the pre-trial who did not receive through his
counsel a notice of pre-trial. Accordingly, there is no legal
basis for a court to consider a party notified of the pre-trial
and to consider that there is no longer a need to send notice
of pretrial merely because it was his counsel who suggested
the date of pre-trial.
V. Appearance in the pre-trial (Bar 1992)
- It shall be the duty of both the parties and their counsels to
appear at the pre-trial (Sec. 4, Rule 18, Rules of Court).
VI. Effect of failure to appear by the plaintiff (Bar 1989;
1981;1980)
1. The failure of the plaintiff to appear shall be cause for the
dismissal of the action. This dismissal shall be with prejudice
except when the court orders otherwise (Sec. 5, Rule 18,
Rules of Court). The former rule (Sec. 2, Rule 20) provides
that the plaintiff who fails to appear in the pre-trial may be
'non-suited'.
2. Since the dismissal of the action shall be with prejudice,
unless otherwise provided, the same shall have the effect of
an adjudication on the merits thus, final. The remedy of the
plaintiff is to appeal from the order of dismissal. An order
dismissing an action with prejudice is appealable. Under the
Rules, it is only when the order of dismissal is without
prejudice, that appeal cannot be availed of (Sec. l[h], Rule
41, Rules of Court). Since appeal is available, certiorari is not
the remedy because the application of a petition for
certiorari under Sec. 65 of the Rules of Court is conditioned
upon the absence of appeal or any plain, speedy and
adequate remedy (Sec. 1, Rule 65, Rules of Court).
VII. Effect of failure to appear by the defendant
1. The failure of the defendant to appear shall be cause to
allow the plaintiff to present his evidence ex parte and for
the court to render judgment on the basis of the evidence
presented by the plaintiff (Sec. 5, Rule 18, Rules of Court).
The former rule (Sec. 2, Rule 20) provided that the
defendant who fails to appear in the pre-trial may be
considered "as in default."
2. The order of the court allowing the plaintiff to present his
evidence ex parte does not dispose of the case with finality.
The order is therefore, merely interlocutory hence, not
appealable. Under Sec. 1(c) of Rule 41, no appeal may be
taken from an interlocutory order. The defendant who feels
aggrieved by the order may move for the reconsideration of
the order and if the denial is tainted with grave abuse of
discretion, he may file a petition for certiorari.
VIII. How non-appearance is excused
1. The non-appearance of a party may be excused only if a
valid cause is shown for such non-appearance or a
representative shall appear in his behalf fully authorized in
writing to enter into any of the following matters: (a) an
amicable settlement, (b) alternative modes of dispute
Page90
resolution, and (c) stipulations and admissions of facts (Sec.
4, Rule 18, Rules of Court). The phraseology of the provision
suggests that it is not sufficient for the written authority to
give to the representative the power to enter into one of the
matters mentioned in Sec. 4 of Rule 18, as when the only
authority granted is to enter into an amicable settlement.
The authority must also confer upon the representative the
power to enter into alternative modes of dispute resolution
and stipulations and admissions of fact. An incomplete
authority does not satisfy the requirements of the Rules and
should be deemed the equivalent of having no authority at
all.
2. Although Sec. 4 uses the disjunctive "or," the logical
meaning of the rule dictates that the written authority given
to the representative be coupled with an explanation
showing a valid cause for a party's non-appearance. Common
reason suggests that having a written authority but without a
justification for a party's absence or vice versa, would not be
in accord with the spirit of the Rules.
3. The written authority must be in the form of a special
power of attorney. Entering into an amicable settlement for
a client who is the principal in the attorney-client
relationship involves entering into a compromise. Substantive
law (Art. 1878[31 of the Civil Code of the Philippines) is
explicit: "Special power(s) of attorney are necessary * * *To
compromise, to submit questions to arbitration * * *".
Procedural rules (Sec. 23, Rule 138) likewise prohibit an
attorney to compromise his client's litigation without a
"special authority."
IX. Filing and contents of pre-trial briefs
1. The parties shall file with the court their respective pre-
trial briefs which shall be received at least three (3) days
before the date of the pre-trial. This pre-trial brief shall be
served on the adverse party (Sec. 6, Rule 18, Rules of Court).
2. The pre-trial brief shall contain the following matters:
(a) A statement of their willingness to enter into an
amicable settlement or alternative modes of dispute
resolution, indicating the desired terms thereof;
(b) A summary of admitted facts and proposed stipulation
of facts;
The issues to be tried or resolved;
(d) The documents or exhibits to be presented, stating the
purposes thereof;
(e) A manifestation of their having availed of or their
intention to avail of the discovery procedures or referral to
commissioners; and
- The number and names of the witnesses, and the substance
of their respective testimonies (Sec. 6, Rule 18, Rules of
Court).
X. Effect of failure to file a pre-trial brief
- The failure to file the pre-trial brief shall have the same
effect as failure to appear at the pre-trial (Sec. 6, Rule 18,
Rules of Court). Hence, if it is the plaintiff who fails to file a
pre-trial brief, such failure shall be cause for dismissal of the
action. If it is the defendant who fails to do so, such failure
shall be cause to allow the plaintiff to present his evidence
ex parte. Note: A pre-trial brief is not required in a criminal
case.
XI. Pre-trial order
1. This order of the court is issued by the court upon the
termination of the pre-trial. This order recites in detail the
following:
(a) The matters taken up in the conference;
(b) The action taken thereon;
(c) The amendments allowed to the pleadings; and
(d) The agreements or admissions made by the parties as
to any of the matters considered (Sec. 7, Rule 18, Rules of
Court). These admissions embodied in the pre-trial order
are binding upon the parties and conclusive upon them.
2. Should the action proceed to trial, the pre-trial order (a)
defines and limits the issues to be tried, and (b) controls the
subsequent course of the action except if it is modified
before trial to prevent manifest injustice (Sec. 7, Rule 18,
Rules of Court).
XII. Pre-trial in civil cases compared to pre-trial in criminal
cases (Bar 1997)
1. The pre-trial in a civil case is set when the plaintiff moves
ex parte to set the case for pre-trial (Sec. 1, Rule 18, Rules
of Court). The pre-trial in a criminal case is ordered by the
court and no motion to set the case for pre-trial is required
from either the prosecution or the defense (Sec 1, Rule 118,
Rules of Court).
2. The motion to set the case for pre-trial in a civil case is
made after the last pleading has been served and filed (Sec.
1, Rule 18, Rules of Court). In a criminal case, the pre trial is
ordered by the court after arraignment and within thirty (30)
days from the date the court acquires jurisdiction over the
person of the accused (Sec. 1, Rule 118, Rules of Court).
3. The pre-trial in a civil case considers the possibility of an
amicable settlement as an important objective (Sec. 2[a],
Rule 118, Rules of Court). The pre-trial in a criminal case
does not include the considering of the possibility of
amicable settlement of criminal liability as one of its
purposes (Sec. 1, Rule 118, Rules of Court).
4. In a civil case, the agreements and admissions made in the
pretrial are not required to be signed by the parties and their
counsels. They are to be contained in the record of pre-trial
and the pre-trial order (Sec. 7, Rule 18, Rules of Court). In a
criminal case, all agreements or admissions made or entered
during the pretrial conference shall be reduced in writing and
signed by the accused and counsel, otherwise, they cannot
be used against the accused (Sec. 2, Rule 118, Rules of
Court).
5. The sanctions for non-appearance in a pre-trial are
imposed upon the plaintiff or the defendant in a civil case
(Sec. 4, Rule 18, Rules of Court). The sanctions in a criminal
case are imposed upon the counsel for the accused or the
prosecutor (Sec. 3, Rule 118, Rules of Court).
XIII. Preliminary conference under the Revised Rules on
Summary Procedure
1. Under the Revised Rules on Summary Procedure, a
preliminary conference shall be held not later than thirty
(30) days after the last answer is filed. Here, the rules on
Page91
pre-trial in ordinary cases shall apply except when
inconsistent with the rules on summary procedure (Sec. 7,
11, Rules on Summary Procedure).

2. The failure of the plaintiff to appear in the preliminary
conference shall be cause for dismissal of his complaint and
the defendant who appears in the absence of the plaintiff
shall be entitled to judgment on his counterclaim. All cross-
claims shall be dismissed (Sec. 7, 11, Rules on Summary
Procedure).
3. Within five (5) days from the termination of the
preliminary conference, the court shall issue an order stating
the matters taken up in the conference (Sec. 8, 11, Rules on
Summary Procedure).
- Note: Please refer to Appendix 1J for the guidelines on
enhanced pre-trial proceedings.
B. MODES OF DISCOVERY
I. Meaning of discovery
- In general,
> discovery -a device employed by a party to obtain
information about relevant matters on the case from the
adverse party in preparation for the trial. As contemplated
by the Rules, the device may be used by all the parties to the
case.
II. Purpose of discovery
- The modes of discovery are designed to serve as an
additional device aside from a pre-trial, to narrow and clarify
the basic issues between the parties, to ascertain the facts
relative to the issues and to enable the parties to obtain the
fullest possible knowledge of the issues and facts before civil
trials and thus prevent the said trials to be carried on in the
dark. It is intended to make certain that all issues necessary
to the disposition of a case are properly raised. Thus, to
obviate the element of surprise, parties are expected to
disclose at a pre-trial conference all issues of law and fact
that they intend to raise at the trial, except such as may
involve privileged or impeaching matters.
III. Modes of discovery under the Rules of Court (Bar 2000)
- The following are the modes of discovery under the Rules of
Court:
(a) Depositions pending action (Rule 23);
(b) Depositions before action or pending appeal (Rule 24);
(c) Interrogatories to parties (Rule 25);
(d) Admission by adverse party (Rule 26);
(e) Production or inspection of documents and things (Rule
27); and
(f) Physical and mental examination of persons (Rule 28).
IV. Depositions (Rules 23-24)
1. A deposition is the taking of the testimony of any person,
whether he be a party or not, but at the instance of a party
to the action. This testimony is taken out of court. It may be
either by (a) an oral examination, or by (b) a written
interrogatory (Sec. 1, Rule 23, Rules of Court).
2. A deposition may be sought for use in a future action (Rule
24,) during a pending action (Rule 23) or for use in a pending
appeal (Rule 24).
- If the deposition is for use during a pending action, it is
commonly called a deposition benne esse and is governed by
Rule 23. If it is to perpetuate a testimony for use in future
proceedings as when it is sought before the existence of an
action, or for cases on appeal, it is called a deposition in
perpetuam rei memoriam.
V. When leave of court is required and not required for
taking a deposition pending action
1. Leave of court is not required after an answer has been
served but leave of court is required before the service of an
answer but after jurisdiction has been acquired over the
defendant or over the property subject of the action (Sec. 1,
Rule 23, Rules of Court).
2. When it is the deposition of a prisoner that is to be taken,
his deposition may be taken only with leave of court and
upon such terms as the court may prescribe (Sec. 1, Rule 23,
Rules of Court).
3. In one case, petitioners contend they have not yet served
an answer to respondents because the answers that they
have filed with the trial court were made ex abudanti
cautela. In other words, they do not consider the answers
they filed in court and served on respondents as answers
contemplated by the Rules of Court on the ground that same
were filed ex abudanti cautela. They contend that since they
had not yet filed an answer, any deposition must be made
with leave of court.
- The court in finding the contention untenable ruled:
"We find petitioners' contention to be untenable. Ex
abudanti cautela means "out of abundant caution" or "to be
on the safe side." An answer ex abudanti cautela does not
make their answer less of an answer. A cursory look at the
answers filed by petitioners shows that they contain their
respective defenses. An answer is a pleading in which a
defending party sets forth his defenses and the failure to file
one within the time allowed therefore may cause a defending
party to be declared in default. Thus, petitioners, knowing
fully well the effect of the non-filing of an answer, filed their
answers despite the pendency of their appeal with the Court
of Appeals on the denial of their motion to dismiss.
"Petitioners' argument that the issues of the case
have not yet been joined must necessarily fail in light of our
ruling that petitioners have filed their answers although the
same were made ex abudanti cautela. Issues are joined when
all the parties have pleaded their respective theories and the
terms of the dispute are plain before the court. In the
present case, the issues have, indeed, been joined when
petitioners, as well as the other defendants, filed their
answers. The respective claims and defenses of the parties
have been defined and the issues to be decided by the trial
court have been laid down.
"We cannot also sustain petitioners' contention that
the lower court erred when it said that the joinder of issues
is not required in order that Section 1, Rule 23 of the 1997
Rules of Civil Procedure may be availed of. Under said
section, a deposition pending action may be availed of (1)
with leave of court when an answer has not yet been filed
but after jurisdiction has been obtained over any defendant
or property subject of the action, or (2) without leave of
court after an answer to the complaint has been served. In
Page92
the instant case, the taking of the deposition may be availed
of even without leave of court because petitioners have
already served their answers to the complaint.

VI. Deposition of a prisoner
- When it is the deposition of a prisoner that is to be taken,
his deposition may be taken only with leave of court and
upon such terms as the court may prescribe (Sec. 1, Rule 23,
Rules of Court).
VII. Before whom taken (depositions pending action)
1. Within the Philippines, a deposition need not be taken
before a judge, although it may be taken before one. It may
also be taken before a notary public (Sec. 10, Rule 23, Rules
of Court) or before any person authorized to administer oaths
if the parties so stipulate in writing (Sec. 14, Rule 23, Rules
of Court).
2. Outside the Philippines, a deposition may be taken before
(a) a secretary of an embassy or legation; consul general,
consul, vice-consul, or consular agent of the Republic of the
Philippines; (b) such person or officer as may be appointed
by commission or letters rogatory; or (c) a person authorized
to administer oaths by written stipulation of the parties (Sec.
17, Rule 23, Rules of Court).
3. 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 (Sec.
13, Rule 23, Rules of Court).
VIII. Examination of the deponent
1. A party desiring to take the deposition of any person upon
oral examination shall give reasonable notice in writing to
every party to the action stating the time and place for
taking the deposition and the name and address of each
person to be examined (Sec. 15, Rule 23, Rules of Court).
After the notice is served, the court may make any order for
the protection of the parties and the deponents (Sec. 16,
Rule 23, Rules of Court).
2. The attendance of witnesses may be compelled by the use
of subpoenas (Sec. 1, Rule 23, Rules of Court).
3. The deponent may be examined or cross examined
following the procedures for witnesses in a trial. He may be
asked questions on direct, cross, re-direct or re-cross. He has
the same rights as a witness and may be impeached like a
court witness because Secs. 3 to 18 of Rule 132 apply to a
deponent (Sec. 3, Rule 23, Rules of Court).
4. Unless otherwise provided by the court, the deponent may
be examined regarding any matter not privileged, which is
relevant to the pending action, whether relating to the claim
or defense of any 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 (Sec.
3, Rule 23, Rules of Court).
5. The officer before whom the deposition is taken has no
authority to rule on the objections interposed during the
course of the deposition although any objections shall be
noted by the officer upon the deposition. Any evidence that
is objected to shall still be taken but subject to the objection
(Sec. 17, Rule 23, Rules of Court).
IX. Use of depositions pending action
1. Any part or all of the deposition, so far as admissible
under the rules of evidence, may be used (a) against any
party who was present or represented at the taking of the
deposition, or (b) against one who had due notice of the
deposition (Sec. 4, Rule 23, Rules of Court).
2. The deposition may be used for the following purposes:
(a) For contradicting or impeaching the testimony of the
deponent as a witness;
(b) For any purpose by the adverse party where the
deponent is a party;
(c) For any purpose by any party, where the deponent is a
witness if the court finds that:
(i) the witness is dead,
(ii) that the witness resides more than one hundred(100)
kilometers from the place of trial or hearing, or is out of
the Philippines, unless it appears that his absence was
procured by the party offering the deposition; or
(iii) that the witness is unable to attend or testify
because of age, sickness, infirmity, or imprisonment; or
(iv) that the party offering the deposition has been
unable to procure the attendance of witnesses by
subpoena; or (v) when exceptional circumstances exists
(Sec. 4, Rule 23, Rules of Court).
X. Deposition upon written interrogatories
- A deposition need not be conducted through an oral
examination. It may be conducted through written
interrogatories which shall be served upon every other party.
The party served may also serve cross-interrogatories upon
the party proposing to take the deposition within ten (10)
days from service of the written interrogatories. The latter
may, within five (5) days serve re-direct interrogatories and
within three (3) days the other party may serve re-cross
interrogatories (Sec. 25, Rule 23, Rules of Court). Copies of
all these interrogatories shall be delivered to the officer
before whom the deposition is taken and who shall take the
responses and prepare the record (Sec. 26, Rule 23, Rules of
Court).
XI. Perpetuation of testimony before action or pending
appeal
1. The perpetuation of a testimony, is done by filing a
verified petition in the place of the residence of any
expected adverse party. This petition is filed by a person who
desires to perpetuate his own testimony or that of another
regarding any matter that may be cognizable in any court of
the Philippines (Sec. 1, Rule 24, Rules of Court).
2. Notices shall be sent in accordance with the Rules (Sec. 3,
Rule 24, Rules of Court) and if the court is satisfied that the
perpetuation of the testimony may prevent a failure or delay
of justice, it shall make the appropriate order for the taking
of the deposition (Sec. 4, Rule 24, Rules of Court).
3. The deposition taken under this Rule is admissible in
evidence in any action subsequently brought involving the
Page93
same subject matter (Sec. 6, Rule 24, Rules of Court).
4. A deposition for the perpetuation of testimony in a case
pending appeal may likewise be availed of under the same
rules as those followed in perpetuation of testimony pending
action and those prescribed for depositions pending action
(Sec. 7, Rule 29, Rules of Court).
Interrogatories to Parties (Rule 25)
XII. Purpose of interrogatories to parties
- This mode of discovery which is availed of by a party to the
action is for the purpose of eliciting material and relevant
facts from any adverse party (Sec. 1, Rule 25, Rules of
Court).
XIII. Distinguished from a bill of particulars
Bill of particulars Interrogatories to parties
designed to clarify not directed to a particular
ambiguities in a pleading or pleading. Instead, they seek
to state with sufficient to disclose all material and
definiteness allegations in a relevant facts from a party
pleading. A bill of (Sec. 1, Rule 23, Rules of
particulars therefore, is Court).
directed to a pleading (Sec.
1, Rule 12, Rules of Court).
XIV. Distinguished from written interrogatories in a depo-
sition
Written interrogatories Interrogatories to parties
not served upon the adverse interrogatories to parties are
party directly. They are served directly upon the
instead delivered to the adverse party (Sec. 1, Rule
officer before whom the 23, Rules of Court).
deposition is to be taken
(Sec. 26, Rule 23, Rules of
Court).
XV. Procedure
1. The mode of discovery is availed ofby filing and serving
upon the adverse party written interrogatories to be
answered by the party served. If the party is a juridical
entity, the written interrogatories shall be answered by any
of its officers competent to testify in its behalf (Sec. 1, Rule
25, Rules of Court).
2. No party may, without leave of court, serve more than one
set of interrogatories to be answered by the same party (Sec.
4, Rule 25, Rules of Court).
3. 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. This time may, upon motion, be extended or
shortened by the court (Sec. 1, Rule 25, Rules of Court).
4. The party against whom it is directed may make objections
to the interrogatories. If he does so, said objections shall be
presented to the court within ten (10) days after service of
the interrogatories. The filing of the objections shall have
the effect of deferring the filing and service of the answer to
the interrogatories (Sec. 3, Rule 25, Rules of Court).
XVI. Effect of failure to serve written interrogatories
1. A party not served with written interrogatories may not be
compelled by the adverse party to give testimony in open
court, or to give deposition pending appeal, unless allowed
by the court or to prevent a failure of justice (Sec. 6, Rule
25, Rules of Court).
2. This provision encourages the use of written
interrogatories and although a party is not compelled to use
this discovery procedure, the rule imposes sanctions for his
failure to serve written interrogatories by depriving him of
the privilege to call the adverse party as a witness or to give
a deposition pending appeal.
Admission by Adverse Party (Rule 26)
XVII. Purpose of admission by adverse party
- The purpose of this mode of discovery is to allow one party
to request the adverse party in writing to admit certain
material and relevant matters which most likely will not be
disputed during the trial. To avoid unnecessary
inconvenience to the parties in going through the rigors of
proof, before the trial, a party may request the other to:
(a) admit the genuineness of any material and relevant
document described in and exhibited with the request; or
(b) admit the truth of any material and relevant matter of
fact set forth in the request.
XVIII. Filing of written request for admission
- A party, although not compelled by the Rules, is advised to
file and serve a written request for admission on the adverse
party of those material and relevant facts at issue which are,
or ought to be, within the personal knowledge of said
adverse party. The party who fails to file and serve the
request shall not be permitted to present evidence on such
facts (Sec. 5, Rule 26, Rules of Court).
XIX. Filing and service of a sworn statement of admission or
denial; effect of failure to file and serve
1. It is advisable for the party to whom the written request is
directed to file and serve upon the party requesting the
admission a sworn statement either (a) specifically denying
the matters of which admission is requested, or (b) if he does
not deny the same, to set forth in detail the reasons why he
cannot truthfully admit or deny those matters. This sworn
statement shall be filed and served within the period
designated in the request but which shall not be less than
fifteen (15) days from the service of such request, or within
such further time as the court may allow (Sec. 2, Rule 26,
Rules of Court).
2. If the party to whom the written request for admission
does not file the required sworn statement each of the
matters of which an admission is requested shall be deemed
admitted (Sec. 2,, Rule 26, Rules of Court).
3. Any admission etude by a party as a consequence of the
failure to comply with the request is only for the purpose of
the pending action and shall not be deemed an admission for
any other purpose. Likewise, the admission cannot be used
against the admitting party in any other proceeding (Sec. 3,
Rule 26, Rules of Court).
Page94
XX. Deferment of compliance
- To avoid the implied admission, the party requested may
have the compliance of the filing and service of the sworn
statement deferred. This deferment may be effected by the
filing with the court objections to the request for admission.
Compliance shall be deferred until such objections are
resolved by the court (Sec. 2, par. 2, Rule 26, Rules of
Court).
XXI. Withdrawal of admission
- Admissions made under this mode of discovery, whether
express or implied are not final and irrevocable. The court
may allow the party making the admission to withdraw or
amend the admission upon such terms as may be just (Sec. 4,
Rule 26, Rules of Court). To effect the withdrawal, the
admitting party should file a motion to be relieved of the
effects of his admission.
Production or Inspection of Documents or Things (Rule 27)
XXII. Purpose
- The purpose of this mode of discovery is to allow a party to
seek an order from the court in which the action is pending
to:
(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;
(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.
XXIII. Filing of a motion; order of the court
1. A motion must be filed by the party seeking the production
or inspection of documents and things and the motion must
show good cause supporting the same (Sec. 1, Rule 27, Rules
of Court).
2. 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 (Sec.
1, Rule 27, Rules of Court).
XXIV. Physical and Mental Examination of Persons (Rule 28)
Applicability
- This mode of discovery applies to an action in which the
mental or physical condition of a party is in controversy (Sec.
1, Rule 28, Rules of Court). Examples of this action would be:
(a) An action for annulment of a contract where the ground
relied upon is insanity or dementia;
(b) A petition for guardianship of a person alleged to be
insane;
(c) An action to recover damages for personal injury where
the issue is the extent of the injuries of the plaintiff.
XXV. Procedure
1. A motion must be filed showing good cause for the
examination, with notice to the other parties as well aside
from the party to be examined. The motion shall likewise
specify the time, place, manner, conditions and scope of the
examination and by the person or persons by whom it is made
(Sec. 2, Rule 28, Rules of Court).
2. The party examined may request the party causing the
examination to be made to 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 of any examination, previously or thereafter
made, of the same mental or physical condition. If the party
examined refuses to deliver the report, the court may make
an order requiring the delivery on such terms as are just. If it
is the physician who fails or refuses to make a report, the
court may exclude his testimony (Sec. 3, Rule 28, Rules of
Court).
XXVI. Waiver of privilege
- By requesting and obtaining a report of the examination 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 (Sec. 4, Rule 28, Rules of Court).
XXVII. Refusal to comply with the modes of discovery (Rule
29)
- The sanctions for refusal to comply with the modes of
discovery may be summarized as follows:
A. Refusal to answer any question
(a) The court may upon proper application, compel a
deponent who refuses to answer an oral examination. The
same applies to a witness who refuses to answer an
interrogatory submitted (Sec. 1, Rule 29, Rules of Court). A
refusal to answer after being directed by the court may be
considered as a contempt of court (Sec. 2, Rule 29, Rules of
Court).
- The court may order the deponent, a party, or the counsel
advising the refusal, or both of them, to pay the proponent
the amount of reasonable expenses incurred in obtaining the
order, including attorney's fees (Sec. 1, Rule 29, Rules of
Court).
(b) If the application for an order to compel a deponent to
answer is denied because of the absence of a substantial
justification, the court may require the proponent or the
counsel advising the application, or both of them, to pay to
the refusing party or deponent the amount of reasonable
expenses incurred in opposing the application, including
attorney's fees (Sec. 1, Rule 29, Rules of Court).
B. Refusal to answer designated or particular
questions or refusal to produce documents or things or to
submit to physical or mental examination
(a) The court may order that the matters regarding which the
questions were asked shall be taken as established for
purposes of the action in accordance with the claim of the
party obtaining them (Sec. 3[a], Rule 29, Rules of Court).
Page95
(b) The court may issue an order refusing to allow the
disobedient party to refuse or support 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
(Sec. 3[b], Rule 29, Rules of Court).
(c) The court may issue 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 (Sec. 3[c], Rule 29, Rules of Court).
(d) The court may direct the arrest of any party or agent of a
party for disobeying any of the orders of the court, except an
order to submit to a physical examination.
C. Refusal to be sworn
- A refusal of a party to be sworn after being directed by the
court may be considered as contempt of court (Sec. 2, Rule
29, Rules of Court).
D. Refusal to admit
- If a party refuses to admit the genuineness of any document
or the truth of any matter of fact and serves a sworn denial
thereof and if the other party later on proves the
genuineness of the document or the truth of such matter of
fact, the court upon proper application, may order the
former to pay the reasonable expenses in making such proof,
including attorney's fees (Sec. 4, Rule 29, Rules of Court).
E. Failure to attend depositions or to serve answers
to interrogatories
1. The court may (a) strike out all or any part of the pleading
of that party, or dismiss the action or proceeding or any part
thereof, or (b) enter a judgment by default against
that party, and in its discretion, (c) order him to pay
reasonable expenses incurred by the other, including
attorney's fees (Sec. 5, Rule 29, Rules of Court).
2. The consequences under Sec. 5 of Rule 29 will apply if a
party refuses to answer the whole set of written interro-
gatories, and not just a particular question. Where the party
upon whom the written interrogatories is served, refuses to
answer a particular question in the set of written
interrogatories and despite an order compelling him to
answer the particular question, still refuses to obey the
order, Sec. 3(c) of Rule 29 will apply.
- The following are the consequences provided for in Sec.
3(c) of Rule 29:
(a) The court may issue an order striking out pleadings or
parts thereof;
(b) The court may issue an order staying further
proceedings until the order is obeyed; or
(c) The court may issue an order rendering a judgment by
default against the disobedient party.
3. The matter of how, and when,: the above sanctions should
be applied is one that' primarily rests on the sound discretion
of the court where the case is pending, having always in mind
the paramount and overriding interest of justice. For while
the modes of discovery are intended to attain the resolution
of litigations with great expediency, they are not
contemplated, however, to be ultimate causes of injustice. It
behooves trial courts to examine well the circumstances of
each case and to make their considered determination
thereafter.
CHAP. 9: TRIAL, DEMURRER TO EVIDENCE AND JUDGMENT
A. TRIAL
I. Nature of `trial'
> trial - the judicial process of investigating and determining
the legal controversies, starting with the production of
evidence by the plaintiff and ending with his closing
arguments.
II. Trial and hearing
- The terms `trial' and `hearing' are sometimes inter-
changeably used. There is however, a marked difference
between these terms. A hearing is a broader term. It is not
confined to the trial and presentation of the evidence
because it actually embraces several stages in the litigation.
It includes the re-trial and the determination of granting or
denying a motion.
III. When trial is unnecessary (Bar 1996)
- A civil case may be adjudicated upon without the need for a
trial (Bar 1996) in any of the following cases:
(a) Where the pleadings of the parties tender no issue at all,
a judgment on the pleadings may be directed by the court
(Rule 34, Rules of Court).
(b) Where from the pleadings, affidavits, depositions and
other papers, there is actually no genuine issue, the court
may render a summary judgment (Rule 35, Rules of Court).
(c) Where the parties have entered into a compromise or an
amicable settlement either during the pre-trial or while the
trial is in progress (Rule 18, Rules of Court, Art. 2028, Civil
Code of the Philippines).
(d) Where the complaint has been dismissed with prejudice
(Sec. 5, Rule 16; Sec. 3, Rule 17; Sec. 5, Rule 7, Rules of
Court).
(e) Where the case falls under the operation of the Rules on
Summary Procedure.
(f) Where, the parties 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 however, there is no agreement as to all the
facts in the case, trial may be held only as to the disputed
facts (Sec. 6, Rule 30, Rules of Court).
IV. Notice of Trial
- Upon entry of the case in the trial calendar, the clerk of
court shall notify the parties of the date of trial in such
manner as to ensure its receipt at least five (5) days before
such date (Sec. 1, Rule 30, Rules of Court).
V. Calendaring of cases
- In Calendaring cases, the clerk of court shall give
preference to habeas corpus cases, election cases, special
Page96
civil actions and those so required by law to be preferred
(Sec. 1, Rule 20, Rules of Court).
VI. Session hours
1. The session hours of trial courts shall be from 8:30 A.M. to
noon and from 2:00 I? M. to 4:30 P .M. from Monday to
Friday. The hours in the morning shall be devoted to the
conduct of the trial, while the hours in the afternoon shall be
utilized for the conduct of (1) pre-trial conferences; (2)
writing of decisions, resolutions, or orders; or (3) the
continuation of the trial on the merits, whenever rendered
necessary as may be required by the Rules of Court, statute,
or circulars in specified cases. This schedule may be modified
upon request of the Integrated Bar of the Philippines in
multi-sala courts in places where there are few practicing
lawyers.
2. Unless the docket of the court requires otherwise, not
more than four (4) cases shall be scheduled for trial daily
(Administrative Circular No. 3-39, January 15, 1999).
VII. Adjournments and postponements
- The general rule is that 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 (Sec. 2, Rule
30, Rules of Court).
VIII. Limitation on the authority to adjourn
- The court has no power to adjourn a trial for a period
longer than one month from each adjournment, nor more
than three (3) months in all, except when authorized in
writing by the Court Administrator (Sec. 2, Rule 30, Rules of
Court). A motion for postponement should not be filed on the
last hour especially when there is no reason why it could not
have been presented earlier.
IX. Postponement on the ground of illness
- Trial may be postponed on the ground of illness of either
party or counsel by complying with the following:
(a) A motion for postponement must be filed;
(b) The motion must be supported by an affidavit or sworn
certification showing that (1) the presence of the 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. 4, Rule 30, Rules of Court).
X. Postponement on the ground of absence of evidence (Bar
1975)
1. Trial may be postponed on the ground of absence o('
evidence upon compliance with the following:
(a) A motion for postponement must be filed;
(b) The motion must be supported by an affidavit or sworn
certification showing the (1) materiality or relevancy of the
evidence, and (2) that due diligence has been used to
procure it (Sec. 3, Rule 30, Rules of Court).
2. If the adverse party admits the facts given in evidence,
the trial shall not be postponed even if he reserves the right
to object to the admissibility of the evidence (Sec. 3, Rule
30, Rules of Court).
XI. Postponement is not a matter of right
- A postponement is not a matter of right. It is addressed to
the sound discretion of the court
XII. Reception of evidence
- The judge of the court where the case is pending shall
personally receive the evidence to be adduced by the
parties. Reception of the evidence may nevertheless be
delegated to the clerk of court who is a member of the bar,
in any of the following cases:
(a) in default hearings;
(b) in ex parte hearings; or
(c) in any case by written agreement of the parties (Sec. 9,
Rule 30, Rules of Court).
XIII. Issues in the trial
- The trial shall be limited to the issues stated in the pretrial
order. This is the general rule unless the court so directs for
special reasons (Sec. 5, Rule 30, Rules of Court).
B. DEMURRER TO EVIDENCE
1. The regular order of trial requires the plaintiff to adduce
evidence in support of his complaint. During the trial the
plaintiff presents all the evidences available to him - object,
documentary and testimonial.
2. After the plaintiff has completed the presentation of his
evidence, the defendant shall then adduce evidence in
support of his defense, counterclaim or third-party complaint
as the case may be. The defendant however, may sincerely
feel that the plaintiff has not lived up to his burden of
proving the material allegations of his claim and is therefore,
not entitled to the relief sought for in his complaint.
3. Instead of presenting 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 (Sec. 1, Rule 33,
Rules of Court). This motion for dismissal is called a
demurrer to evidence. A demurrer is a specie of a motion to
dismiss but is not the motion to dismiss under Rule 16.
I. Effect of denial of the demurrer to evidence
1. If the demurrer is denied, the defendant shall have the
right to present his evidence (Sec. 1, Rule 33, Rules of
Court). This means that the denial of the demurrer to
evidence does not deprive the defendant to adduce evidence
in his behalf.
2. Where a court denies a demurrer to evidence, it should set
the date for the reception of the defendant's evidence in
chief. It should not proceed to grant the relief demanded by
the plaintiff.
3. An order denying a demurrer to the evidence is inter-
locutory and is therefore, not appealable. It can however, be
the subject of a petition for certiorari in case of grave abuse
of discretion or an oppressive exercise of judicial authority.
4. A party who files a demurrer to evidence in an election
case cannot insist on the right to present evidence. The
provision of the Rules of Court; governing demurrer to
evidence does not apply to an election case.
II. Effect of granting of the demurrer to evidence
1. If the demurrer is granted, the case shall be dismissed.
However, if on appeal the order granting the motion is
reversed, the defendant loses his right to present evidence.
Page97
2. It is not correct for the appellate court reversing the order
granting the demurrer to remand the case to the trial court
for further proceedings. The appellate court should, instead (e) The judgment must be in writing, personally and
of remanding the case, render judgment on the basis of the directly prepared by the judge; A verbal judgment is, in
evidence submitted by the plaintiff. contemplation of law, not in esse, therefore, ineffective
(f) The judgment must state clearly the facts and the law
III. Demurrer as distinguished from a motion to dismiss under on which it is based, signed by the judge and filed with the
Rule 16 clerk of court (Sec. 1, Rule 36, Rules of Court; Sec. 14,
Motion to dismiss Demurrer Art. VIII, Constitution of the Philippines). This requirement
a. usually filed before the a. made after the plaintiff refers to decisions and final orders on the merits, not to
service and filing of the rests his case. those resolving incidental matters.
answer;
b. anchored on many grounds b. anchored on one ground - 2. Decisions, no matter how concisely written, must
plaintiff' has no right to distinctly and clearly set forth the facts and the law upon
relief. which they are based. This rule however, does not require
c. If a motion to dismiss is c. the defendant may that the court shall state in its decision all the facts found in
denied, the defendant may present his evidence. the records.
file his responsive pleading
3. A decision need not be a complete recital of the evidence
IV. Demurrer in a civil case as distinguished from a demurrer presented. So long as the factual and legal basis is distinctly
in a criminal case and clearly set forth, the judgment is valid.
Demurrer in a civil case Demurrer in a criminal case
a. leave of court is not a. leave of court is filed with 4. A decision that does not clearly and distinctly state the
required before filing a or without leave of court facts and the law on which it is based leaves the parties in
demurrer. (Sec. 23, Rule 119, Rules of the dark as to how it was reached and is specially prejudicial
Criminal Procedure). to the losing party, who is unable to pinpoint the possible
b. if the demurrer is b. the order of dismissal is errors of the court for review by a higher tribunal. A decision
granted, the order of not appealable because of with nothing to support it is a patent nullity.
dismissal is appealable (Sec. the constitutional policy A void judgment has no legal and binding effect, force or
1, Rule 33, Rules of Court). against double jeopardy. efficacy for any purpose.
c. if the demurrer is denied, c. the accused may adduce
IV. Orders granting or denying a motion to dismiss
the defendant may proceed his evidence only if the
1. It is not only judgments which must distinctly and clearly
to present his evidence. demurrer is filed with leave
state the facts and the law upon which they are based. Under
of court. He cannot present
Sec. 3, Rule 16 of the Rules of Court, as amended, it is
his evidence if he filed the
required that resolutions disposing of a motion to dismiss
demurrer without leave of
shall state clearly and distinctly the reasons therefore. This
court (Sec. 23, Rule 119,
requirement proscribes the common practice of perfunctorily
Rules of Court).
dismissing a motion to dismiss for lack of merit. Such cavalier
dispositions can often pose difficulty and misunderstanding
C. JUDGMENT
on the part of the aggrieved party in taking recourse
therefrom and likewise on the higher court called upon to
I. Meaning of a judgment
resolve the same, usually on certiorari.
> judgment - the final ruling by a court of competent
jurisdiction regarding the rights or other matters submitted
2. An example of an order violative of the Rules of Court is
to it in an action or proceeding.
one which reads: "This Court finds that the grounds stated in
A judgment is the court's official and final consideration
the Motion to Dismiss are without merit, hence, denied".
and determination of the respective rights and obligations of
the parties.
V. Denials of a petition for review or of a motion for
reconsideration
II. Judgment and decision
- The Constitution of the Philippines also requires that the
"Judgment" is normally synonymous with "decision."
refusal to give due course to or the denial of a petition for
review or of a motion for reconsideration must state the
III. Requisites of a valid judgment
legal basis therefor (Sec. 14, Art. VIII).
1. For a judgment to be valid, the following requisites must
exist:
VI. Conflict between the dispositive portion and body of the
(a) The court or tribunal must be clothed with authority to
decision
hear and determine the matter before it;
1. A judgment has two parts, namely, (a) the body of the
(b) The court must have jurisdiction over the parties and
judgment or the ratio decidendi, and (b) the dispositive
the subject matter;
portion of the judgment or the fallo.
(c) The parties must have been given an opportunity to
adduce evidence in their behalf;
- The body of the decision called the ratio decidendi is not
(d) The evidence must have been considered by the
the part of the judgment that is subject to execution but the
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tribunal in deciding the case

fallo because it is the latter which is the judgment of the
court.
2. The importance of the fallo or dispositive portion of a
decision cannot be gainsaid - the disposition should state
whether the complaint or petition is granted or denied, the
specific roliel' Araritod, and the costs. It is the dispositive
part of the judgment that actually settles and declares the
rights and obligations of the parties, finally, definitively, and
authoritatively
3. The general rule is that where there is a conflict between
the dispositive portion or fallo of the decision and the body
of the decision, the fallo controls. This rule rests on the
theory that the fallo is the final order while the opinion in
the body is merely a statement ordering nothing. Where the
inevitable conclusion from the body of the decision is so
clear that there was a mere mistake in the dispositive
portion, the body of the decision will prevail.
VII. Ambiguity in the judgment; clarificatory judgment.
- Where the judgment is difficult to execute because of
ambiguity in its terms, the remedy of a party is to have the
court remove the ambiguity by the filing of a motion for a
clarificatory judgment and not to assail the judgment as
void.
VIII. Resolutions of the Supreme Court
l. Resolutions of the Supreme Court denying petitions to
review decisions of the Court of Appeals, are not "decisions"
within the purview of the Constitution.
2. Minute resolutions are likewise not decisions falling within
the constitutional requirement.
3. When a minute resolution is issued by the Supreme Court
denying or dismissing a petition or a motion for
reconsideration for lack of merit, it is understood that the
challenged decision or order, together with all its findings of
fact and legal conclusions are deemed sustained.
IX. Interlocutory orders
- Interlocutory orders are not decisions within the
constitutional definition (Amargo vs. Court ofAppeals, 53
SCRA 64). Interlocutory orders are those that determine
incidental matters that do not touch on the merits of the
case or put an end to the proceedings. Examples: An order
denying a motion to dismiss, an order granting an extension
of time to file a pleading, or one authorizing an amendment
thereof, or granting or denying applications for
postponement or inspection of documents, are interlocutory
orders.
- The word interlocutory refers to something intervening
between the commencement and the end of the suit which
decides some point or matter but is not a final decision of
the whole controversy.
- The proper remedy to question an improvident
interlocutory order is a petition for certiorari under Rule 65,
not Rule 45. A petition for review under Rule 45 is the proper
mode of redress to question only final judgments.
One cannot appeal from an interlocutory order. Permitting
appeals on such an order may result in multiplicity of appeals
in a single action thus, prolonging the action.
X. Memorandum decisions
1. A memorandum decision is one rendered by an appellate
court and incorporates by reference the findings of fact and
conclusions of law contained in the decision or order under
review. The reason for allowing the findings of facts and
conclusions of law to be incorporated by reference is to avoid
the cumbersome reproduction and repetition of the decision
of the lower court in the decision of the higher court. To be
valid however, such decision must not simply incorporate the
findings of facts and the conclusions of law of the lower
court by reference. It must also provide direct access to the
facts and the law being adopted, which must be contained in
a statement attached to Ow decision and made an
indispensable part of the decision.
2. Memorandum decisions are authorized by BP 129 and Rule
51 of the Rules of Court. Both provide: "Every decision or
final resolution of a court in appealed cases shall clearly and
distinctly state the findings of facts and the conclusions of
law on which it is based, which may be contained in the
decision or final resolution itself, or adopted by reference
from those set forth in the decision, order, or resolution
appealed from (Sec. 40, BP 129; Sec. 5, Rule 51, Rules of
Court).
3. Although a memorandum decision is permitted, it cannot
merely refer to the conclusions of law of the lower court.
The appellate court must make full findings of fact and
conclusions of law of its own for the decision not to be a
nullity (Ong Chia Kwan vs. Court ofAppeals, 345 SCRA 586).
As long as a memorandum decision states the nature of the
case, summarizes the facts with references to the record and
contains a statement of the applicable laws and
jurisprudence and the tribunal's assessment and conclusions
on the case, the constitutional requirement of a valid
judgment will not be transgressed.
XI. Meaning of rendition of judgment
1. > Rendition of a judgment - the filing of the same with the
clerk of court. It is not the pronouncement of the judgment
in open court that constitutes the rendition. It is not the
writing of the judgment or its signing which constitutes
rendition of the judgment.
2. Even if the judgment has already been put in writing and
signed, it is still subject to amendment if it has not yet been
filed with the clerk of court and before its filing does not yet
constitute the real judgment of the court.
XII. Period within which to render a decision
1. All cases filed must be decided or resolved by the Supreme
Court within twenty-four (24) months from the date of their
submission for decision, and unless reduced by the Supreme
Court, within twelve (12) months for all lower collegiate
courts and three (3) months for all other lower courts (Art.
VIII, Sec. 15, Constitution of the Philippines).
2. A case is deemed submitted for resolution upon the filing
of the last pleading, brief or memorandum required by the
Page99
Rules of Court or by the court (Art. VIII, Sec. 15, Constitution
of the Philippines).
3. The ninety (90) day period for deciding the case
commences from the submission of the case for decision
without memoranda. In case the court requires or allows its
filing, the case shall be considered submitted for decision
upon the filing of the last memorandum, or the expiration of
the period to do so, whichever is earlier. In cases where the
court allows the filing of memoranda, no further orders
announcing the submission of the case for decision is
necessary before they are deemed submitted for decision.
XIII. Extension of the period to render a decision
- An extension of the period may be set by the Supreme
Court within which to decide a case upon request by the
judge concerned on account of heavy caseload or by other
reasonable excuse. Without an extension granted by the
court, a delay in the disposition of cases is tantamount to
gross inefficiency on the part of the judge.
XIV. Judgment penned by a judge who did not hear the
evidence
1. It is not necessary that the judge who heard the evidence
be the same judge who shall pen the decision. The judge
trying the case may die, resign, be disabled or transferred to
another court. In such an eventuality, another judge has to
continue and finish the trial. The succeeding judge can
examine and evaluate the evidence already presented by the
simple expedient of going over the transcripts of the
testimony of the witnesses in the same manner as appellate
courts review the evidences on record.
2. The fact alone that the judge who penned the decision
was not the same judge who heard the case and received the
evidence therein would not render the findings in the said
decision erroneous and unreliable. While the conduct and
demeanor of witnesses may sway a trial court judge in
deciding a case, it is not, and should not be, his only
consideration. Even more vital for the trial court judge's
decision are the contents and substance of the witnesses'
testimonies, as borne out by the transcript of stenographic
notes, as well as the object and documentary evidence
submitted and made part of the records of the case.
XV. Judgment penned by a judge who had ceased to be a
judge
1. A decision penned by a judge after his retirement cannot
be validly promulgated and cannot acquire a binding effect.
In like manner, a decision penned by a judge during his
incumbency cannot be validly promulgated after his
retirement. When a judge retires, all his authority to decide
any case, i.e., to write, to sign and promulgate the decision
has also "retired" with him.
2. What deserves stressing is that, in this jurisdiction, there
exists a disputable presumption that the RTC decision was
rendered by the judge in the regular performance of his
official duties. While the said presumption is only disputable,
it is satisfactory unless contradicted or overcame by other
evidence. Encompassed in this presumption of regularity is
the presumption that the RTC judge, in resolving the case
and drafting his decision, reviewed, evaluated, and weighed
all the evidence on record. That the said RTC judge is not the
same judge who heard the case and received the evidence is
of little consequence when the records and transcripts of
stenographic notes are complete and available for
consideration by the former.
3. It is well-settled that, to be binding, a judgment must be
duly signed and promulgated during the incumbency of the
judge whose signature appears thereon (People vs. So, 101
Phil. 1257) A decision is void if promulgated after the judge
who rendered it had ceased to be a judge of the court.
XVI. Judgment penned by a judge who was transferred
- A judge who was permanently transferred to another court
of equal jurisdiction before the case heard by him was
decided may validly prepare and sign his decision on the said
case and send the same to the court where he was originally
assigned (Valentin vs. Sta. Maria, 55 SCRA 40). The judge who
pens the decision of a case heard by him before he was
assigned or transferred to another district or branch of the
court of equal jurisdiction is considered an incumbent Judge,
albeit assigned to a different branch at the time the decision
was promulgated.
XVII. Judgments of the Supreme Court
1. The decisions of the Supreme Court form part of the legal
system.
Hence, every court must take cognizance of the decisions
of the Supreme Court. Said decisions are proper subjects of
mandatory judicial notice. Members of the bench have a
responsibility to know and to apply the latest holdings of the
Supreme Court.
2. It is the duty of lower courts to obey the decisions of the
Supreme Court and render obeisance to its status as the apex
of hierarchy of courts.
XVIII. Rule of stare decisis
1. Common usage of the concept of stare decisis tells us that
the rule holds that when the Supreme Court has laid down a
principle of law applicable to a certain state of facts, it will
adhere to that principle and apply it to all future cases
where the facts are substantially the same.
In other words, the principle enjoins adherence to judicial
precedents and requires courts to follow the rule established
in a decision of the Supreme Court. That decision becomes a
judicial precedent to be followed in subsequent cases by all
courts in the land. It is based on the principle that once a
question of law has been examined and decided, it should be
deemed settled and closed to further argument.
2. In the words of the Court: "The doctrine of stare decisis
embodies the legal maxim that a principle or rule of law
which has been established by the decision of a court of
controlling jurisdiction will be followed in other cases
involving a similar situation. It is founded on the necessity for
securing certainty and stability in the law and does not
require identity of or privity of parties. This is unmistakable
from the wordings of Article 8 of the Civil Code. It is even
said that such decisions "assume the same authority as the
statute itself and, until authoritatively abandoned,
necessarily become, to the extent that they are applicable,
the criteria which must control the actuations not only of
Page100
those called upon to decide thereby but also of those in duty
bound to enforce obedience thereto." Abandonment thereof
must be based only on strong and compelling reasons,
otherwise, the becoming virtue of predictability which is
expected from this Court would be immeasurably affected
and the public's confidence in the stability of the solemn
pronouncements diminished.
XIX. Obiter dictum
1.> obiter dictum - an opinion expressed by a court, which is
not necessary to the decision of the case before it.
It is neither enforceable as a relief nor a source of a
judicially actionable claim.
2. ". . . It is a remark made, or opinion expressed by a judge
in his decision upon a cause... that is, incidentally or
collaterally, and not directly upon the question before him,
or upon a point not necessarily involved in the determination
of the cause, or introduced by way of illustration, or analogy
or argument. Such is not binding as a precedent."
XX. When a judgment becomes final
1. The term "final" when used to describe a judgment may be
used in two senses. In the first, it refers to a judgment that
disposes of a case in a manner that leaves nothing more to be
done by the court in respect thereto. In this sense, a final
judgment is distinguished from an interlocutory order which
does not finally terminate or dispose of the case.
- Since the finality of a judgment has the effect of ending the
litigation, an aggrieved party may then appeal from the
judgment. Under Rule 41 (Sec. 1) of the Rules of Court, an
appeal may be taken from a judgment or final order that
completely disposes of the case. Under the same rule, an
appeal cannot be taken from an interlocutory order (Sec.
I[c], Rule 41, Rules of Court).
2. In another sense, the word "final" may refer to a judgment
that is no longer appealable and is already capable of being
executed because the period for appeal has elapsed without
a party having perfected an appeal or if there has been an
appeal, it has already been resolved by a highest possible
tribunal.
In this sense, the judgment is commonly referred to as one
that is "final and executory."
XXI. Conclusiveness of judgments (immutability of
judgments)
1. Under the doctrine of conclusiveness or immutability of
judgments, a judgment that has attained finality can no
longer be disturbed. The doctrine which is sometimes
referred to as "preclusion of issues" or "collateral estoppel,"
holds that issues actually and directly resolved in a former
suit cannot again be raised in any future case between the
same parties.
2. Nothing is more settled in law than that once a judgment
attains finality it thereby becomes immutable and
unalterable. It may no longer be modified in any respect,
even if the modification is meant to correct what is
perceived to be an erroneous conclusion of fact or law, and
regardless of whether the modification is attempted to be
made by the court rendering it or by the highest court of the
land. Just as the losing party has the right to file an appeal
within the prescribed period, the winning party also has the
correlative right to enjoy the finality of the resolution of his
case.
- 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 error, the judgment of courts and the award of
quasi judicial agencies must become final at some definite
date fixed by law.
3. Once a judgment has become final and executory, it can
no longer be disturbed, altered or modified (Industrial
Timber Corporation vs. Ababon, GR. No. 164518, January 25,
2006) except for clerical errors or mistakes, all the issues
between the parties being deemed resolved and laid to rest
(Ram's Studio and Photographic Equipment, Inc. vs. Court of
Appeals, 346 SCRA 691). The court loses jurisdiction over the
judgment to amend (except for clerical errors) or alter the
same but it retains jurisdiction to execute it during its
lifetime.
4. Public policy and sound practice demand that at the risk of
occasional errors, judgments of courts should become final
and irrevocable at some definite date fixed by law. This is
better observed if the court executing the judgment would
refrain from creating further controversy by effectively
modifying and altering the dispositive portion of the decision,
thus further delaying the satisfaction of the judgment. No
matter how just the intention of the trial court, it cannot
legally reverse what has already been settled.
5. Once a case is decided with finality, the controversy is
settled and the matter is laid to rest. The prevailing party is
entitled to enjoy the fruits of his victory while the other
party is obliged to respect the court's verdict and to comply
with it.
XXII. Res judicata effect of a final judgment or final order
1. The judgment or final order has the effect of res judicata
between the parties. Res judicata has two aspects, namely:
(a) bar by a prior judgment -the judgment or final order is
a bar to the prosecution of a subsequent action based on
the same claim or cause of action; and
(b) conclusiveness of judgment - the judgment or final
order precludes the relitigation of particular issues or facts
on a different demand or cause of action
2. By force of res judicata, a final judgment is conclusive not
only on the matters or issues directly or actually determined
by the decision but also on all issues that could have been
raised in relation thereto.
3. A significant effect of a final judgment or order is its being
appealable (Sec. 1, Rule 41, Rules of Court).
> final judgment or order - one that which disposes of the
whole subject matter or terminates a particular proceeding
or action, leaving nothing to be done but to enforce by
execution what has been determined.
4. In case of a judgment or final order against a specific
Page101
thing, the judgment or final order is conclusive upon the title
to the thing; in respect to the probate of a will or the
administration of the estate of the deceased person, it is
conclusive upon the will or administration but shall be prima
facie evidence only of the death of the testator or intestate.
With 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 condition,
status or relationship of the person (Sec. 47[a], Rule 39,
Rules of Court).
XXIII. Exceptions to the rule of immutability of judgments
- The exceptions to the general rule are:
(a) the correction of clerical errors;
(b) the so-called nunc pro tunc entries which cause no
prejudice to any party and void judgments
(c) whenever circumstances transpire after the finality of the
decision rendering its execution unjust and equitable.
(d) in cases of special and exceptional nature as when facts
and circumstances transpire which render the judgment's
execution impossible or unjust, when necessary in the
interest of justice to direct its modification to harmonize the
disposition with prevailing circumstances.
XXIV. Judgment on the merits
1. A judgment is "on the merits" when it amounts to a legal
declaration of the respective rights and duties of the parties,
based upon the disclosed facts. "Merits" has been as a matter
of substance in law, as distinguished from a matter of form
refers to the real or substantial grounds of action or defense,
as contrasted with some technical or collateral matter raised
in the course of the suit. There could be a judgment on the
merits even if there is no trial. A ruling based on a motion to
dismiss, without any trial or formal presentation of evidence,
can still be a judgment on the merits. A judgment ruling that
the defense was substantial enough to overcome the relief
sought is a judgment on the merits.
- Dismissal on the ground of failure to state a cause of action
is still a judgment on the merits and operates as res judicata
on a subsequent case involving the same parties, subject
matter and cause of action as long as the dismissal ruled on
the issues raised. What appears to be essential to a judgment
on the merits is that it be a reasoned decision, which clearly
states the facts and the law on which it is based. Thus,
where the court for example, ruled on the right of the
petitioner to foreclose the property, that the debtor was in
default and that the foreclosure was valid by looking into the
law and the facts and pleadings and applied the law
accordingly, the judgment settled the controversy between
the parties.
2. Jurisprudence does not require that a judgment on the
merits be one rendered after a full blown trial. In Perez vs.
Court ofAppeals, an order of the trial court that the
complaint does not state a cause of action is a determination
of the case on the merits. In Luzon Development Bank vs.
Conquilla, the Court similarly ruled that a dismissal for
failure to state a cause of action is still a judgment on the
merits.
- It has been held however, that a judgment dismissing an
action for want of jurisdiction cannot operate as res judicata
on the merits. Also, where the dismissal was on the ground of
the failure of the petitioner to furnish a copy of her formal
offer of evidence, the decision does not constitute an
adjudication on the merits, but only a resolution of an
interlocutory matter.
XXV. Several judgment
1. > several judgment - one rendered by a court against one
or more defendants, but not against all, leaving the action to
proceed against the others (Sec. 4, Rule 36, Rules of Court).
2. A several judgment is proper when the liability of each
party is clearly separable and distinct from that of his co-
parties.
Debtors under a joint obligation have distinct and
separable interests. In a joint obligation, the credit or debt is
divided into as many equal shares as there are creditors and
debtors, the credits or debts being distinct from one another
(Art. 1208, Civil Code of the Philippines).
XXVI. Separate judgment
> separate judgment presupposes that there are several
claims for relief presented in a single action. Aside from the
original complaint for instance, the defendant may have
interposed a counterclaim or a cross-claim or a third-party
complaint. The court may, after determining the issues
relative to a claim and considering other circumstances, may
render separate judgment let us say, on the cross-claim or
the counterclaim. The judgment will terminate the action
with respect to that claim and the action shall proceed as to
the remaining claims. Despite the rendition of a separate
judgment, the court may, stay the execution of the separate
judgment until the rendition of a judgment on all the other
claims (Sec. 5, Rule 36, Rules of Court).
XXVII. Conditional judgment
> conditional judgment - one the effectivity of which
depends upon the occurrence or the non-occurrence of an
event.
- Such a judgment is generally void because of the absence of
a disposition.
XXVIII. Judgment sin perjuicio
1. A judgment sin perjuicio is traditionally understood to be
a brief judgment containing only the dispositive portion,
without prejudice to the making of a more extensive
discussion of the findings of fact and law to support it. This is
not actually a final decision, should be avoided and should
not be looked with favor.
2. Its current use may also refer to a dismissal of an action
without prejudice to its being refiled on a later date as in a
dismissal in Sec. 1 of Rule 17 and Sec. 5 of Rule 7.
XXIX. Judgment nunc pro tunc (literally, "now for then")
1. judgment nunc pro tunc - a judgment intended to enter
into the record acts which had already been done, but which
do not yet appear in the record.
It is a judgment which orders the entry of something
which was actually previously done. Its purpose is not to
supply an omitted action by the court but to enter into the
record an action previously done but which was not reflected
in the record by reason of inadvertence or mistake.
2. The function of a judgment nunc pro tunc is not to render
Page102
a new judgment or to correct a judicial error but to make the
records show what the judicial action really was but was
omitted from the records. A motion for clarificatory
judgment that seeks the inclusion of matters that were not
parts of the judicial action is beyond the scope of a nunc pro
tunc judgment.
XXX. Judgment upon a compromise (Bar 1996)
1. > judgment upon a compromise - a judgment rendered by
the court on the basis of a compromise agreement entered
into between the parties to the action.
2. A compromise has upon the parties the effect of'res
judicata, and under the principle of'res judicata, an issue
which had already been laid to rest by the parties themselves
can no longer be relitigated.
3. Substantive law does not require a court approval for the
res judicata effect of a compromise agreement to attach.
However, there shall be no execution of the compromise
agreement except in compliance with a judicial compromise
(Art. 2037, Civil Code of the Philippines). A compromise is
perfected by mere consent, manifested by the meeting of
the offer and the acceptance upon the thing and the cause
which constitutes the contract. It is perfected upon the
meeting of the minds and does not need a judicial approval
for its perfection.
4. > compromise - a contract whereby the parties, by making
reciprocal concessions, avoid a litigation or put an end to one
already commenced (Art. 2028, Civil Code of the Philippines)
but once approved by the court, a judicial compromise is not
appealable and it thereby becomes immediately executory.
This rule must be understood to refer and apply only to those
who are bound by the compromise and, on the assumption
that they are the only parties to the case, the litigation
comes to an end except only as regards to its compliance and
the fulfillment by the parties of their respective obligations
thereunder. The reason for the rule, said the Court in
Domingo vs. Court ofAppeals, is that when both parties so
enter into the agreement to put a close to a pending
litigation between them and ask that a decision be rendered
in conformity therewith, it would only be "natural to presume
that such action constitutes an implicit waiver of the right to
appeal" against that decision. The order approving the
compromise agreement thus becomes a final act, and it
forms part and parcel of the judgment that can be enforced
by a writ of execution unless otherwise enjoined by a
restraining order.
5. In any event, the compromise agreement cannot bind a
party who did not voluntarily take part in the settlement
itself and give specific individual consent. It must be
remembered that a compromise agreement is also a
contract; it requires the consent ol the parties, and it is only
then that the agreement may be considered as voluntarily
entered into.
6. If one of the parties refuses to abide by the compromise,
the other party may either enforce the compromise or regard
it as rescinded and insist upon his original demand (Art. 2041,
Civil Code of the Philippines).
7. To assail a judgment by compromise, there must be a
proper motion to set aside the compromise on the ground
that the compromise agreement was obtained either by
fraud, violence, intimidation, falsity of documents or some
other vices of consent.
8. There is jurisprudence holding that if such motion is
denied, appeal may be taken from the order of denial of the
motion to set aside the compromise agreement.
This ruling must be deemed superseded or modified by
Sec. 1(e) of Rule 41 which declares as non-appealable an
order denying a motion to set aside a judgment by. . .
compromise on the ground of fraud, mistake or duress, or
any other ground vitiating consent.
9. A motion to set aside the compromise on a ground vitiating
consent applies only to a judgment upon a compromise.
When the compromise is not judicial and is a result ofthe
contract between the parties, the proper remedy is an action
to annul the compromise. A compromise agreement obtained
by mistake, fraud, violence, intimidation, undue influence,
or falsity of documents is subject to the provisions of Art.
1330 of the Civil Code. This provision declares the contract
as voidable. A voidable contract under Art. 1390 of the Civil
Code is subject to annulment.
XXXI. Judgment upon a confession (cognovit actionem)
> judgment upon a confession (cognovit actionem)
a judgment rendered by the court when a party expressly
agrees to the other party's claim or acknowledges the validity
of the claim against him.
XXXII. Doctrine of law of the case
- According to this principle, whatever is once irrevocably
established as the controlling legal rule or decision between
the same parties in the case continues to be the law of the
case, whether correct on general principles or not, so long as
the facts on which such decision was predicated continue to
be the facts of the case before the court. This principle
generally finds application in cases where an appellate court
passes on a question and remands the case to the lower court
for further proceedings. The question there settled becomes
the law of the case upon subsequent appeal. Consequently,
the court reviewing the succeeding appeal will not re-litigate
the case but instead apply the ruling in the previous appeal.
This enables the appellate court to perform its duties
satisfactorily and efficiently which would be impossible if a
question, once considered and decided by it, were to be
litigated anew in the same case and upon any and subsequent
appeal.
XXXIII. Entry of judgment; date thereof
1. The entry of judgment refers to the physical act
performed by the clerk of court in entering the dispositive
portion of the judgment in the book of entries of judgment
after the same has become final and executory. The record
shall contain the dispositive portion of the judgment or final
order and shall be signed by the clerk of court, with a
certificate by said clerk that the judgment has already
become final and executory (Sec. 2, Rule 36, Rules of Court).
2. Under the 1997 Rules of Civil Procedure (Sec. 2, Rule 36)
the date of the entry of judgment is the date when the
judgment becomes final and executory regardless of the date
when the physical act of entry was done. Thus, if the
Page103
judgment becomes final and executory on March 15, because
no appeal, motion for new trial or motion for reconsideration
has been filed, the judgment is deemed entered
simultaneously on March 15 by operation of the rule even if
the actual physical act of entry of the judgment was done on
another date like March 30. This new rule eliminates
confusion in determining the date of entry of a judgment.
Prior to this rule, the date when a judgment becomes final
and executory was not necessarily the date of its entry.
XXXIV. Relevance of knowing the date of the entry of a
judgment
- There are some proceedings the filing of which is reckoned
from the date of the entry of judgment. Examples: (a) The
execution of a judgment by motion is within five (5) years
from the entry of the judgment (Sec. 6, Rule 39, Rules of
Court); (b) The filing of a petition for relief has, as one of its
periods, not more than six (6) months from the entry of the
judgment or final order (Sec. 3, Rule 38, Rules of Court).
CHAP. 10: POST JUDGMENT REMEDIES
I . REMEDIES BEFORE A JUDGMENT BECOMES FINAL AND
EXECUTORY
I. Available remedies to the aggrieved party
- The remedies against a judgment may refer to those
remedies before a judgment becomes final and executory
and those remedies after the same becomes executory.
1. Before a judgment becomes final and executory, the
aggrieved or losing party may avail of the following
remedies:
(a) Motion for reconsideration;
(b) Motion for new trial; and
(c) Appeal.
- A judgment becomes final and executory upon the
expiration of the period to appeal therefrom and no appeal
has been perfected (Sec. 1, Rule 39, Rules of Court).
2. After the judgment becomes executory, the losing party
may avail of the following:
(a) Petition for relief from judgment;
(b) Action to annul a judgment;
(c) Certiorari; and
(d) Collateral attack of a judgment.
A. Motion for Reconsideration (Rule 37)
I. Object of the motion
1. The motion for reconsideration under Rule 37 is one that is
directed against a judgment or a final order. It is not the
motion for reconsideration of an interlocutory order which
for instance, precedes a petition for certiorari.
2. Be it noted that a motion for reconsideration of a
judgment is a prohibited motion in a case that falls under
summary procedure (Sec. 19[c], IV, Rules on Summary
Procedure; Bar 1989, 1990).
II. When to file
l. A motion for reconsideration of a judgment or a final order
is filed within the period for appeal (Sec. 1, Rule 37, Rules of
Court). No motion for extension of time to file a motion for
reconsideration shall be allowed (Sec. 2, Rule 40; Sec. 3,
Rule 41, Rules of Court).
2. The period for appeal is within fifteen (15) days after
notice to the appellant of the judgment or final order
appealed from (Sec. 2, Rule 40; Sec. 3, Rule 41; Sec. 2, Rule
45, Rules of Court). 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 (Sec. 3, Rule 41). A record on appeal shall be
required only in special proceedings and other cases of
multiple or separate appeals (Sec. 3, Rule 40, Rules of
Court).
3. The abovementioned fifteen (15)-day period begins to run
upon receipt of notice of the decision or final order appealed
from. Such period has been considered to begin upon receipt
of notice by the counsel of record, which is considered notice
to the parties. Service of judgment on the party is prohibited
and is not considered the official receipt of the judgment.
- To reiterate, service upon the parties' counsels of record is
tantamount to service upon the parties themselves, but
service upon the parties themselves is not considered service
upon their lawyers. The reason is simple - the parties,
generally, have n() formal education or knowledge of the
rules of procedure, specifically, the mechanics of an appeal
or availment of legal remedies; thus, they may also be
unaware of the rights and duties of a litigant relative to the
receipt of a decision. More importantly, it is best for the
courts to deal only with one person in the interest of orderly
procedure - either the lawyer retained by the party or the
party himself if he does not intend to hire a lawyer.
III. Effect of the filing of the motion on the period to appeal
- The filing of a timely motion for reconsideration interrupts
the period to appeal (Sec. 2, Rule 40; Sec. 3, Rule 41, Rules
of Court).
IV. Grounds for a motion for reconsideration
1. The motion for reconsideration must be in writing, a
written notice of which must be served on the adverse party,
and may be anchored on any of the following grounds:
(a) that the damages awarded are excessive;
(b) that the evidence is insufficient to justify the decision
or final order; or
(c) that the decision or final order is contrary to law (Sec.
1, Rule 37, Rules of Court).
2. It is not sufficient to mention the ground relied upon. It is
necessary for the motion for reconsideration to point out
specifically the findings or conclusions of the judgment or
final order which are not supported by the evidence or which
are contrary to law, making express reference to the
testimonial or documentary evidence or to the provisions of
law alleged to be contrary to such findings or conclusions
(Sec. 2, Rule 39, Rules of Court). Non-compliance with this
requirement would reduce the motion to a mere pro forma
motion. Under the explicit provisions of the rule (Sec. 2, Rule
37), a pro forma motion for reconsideration shall not toll the
reglementary period of appeal.
V. Pro forma motion
Page104
1. > pro forma motion - one which does not satisfy the
requirements of the rules and one which will be treated as a
motion intended to delay the proceedings.
2. A motion for reconsideration is deemed pro forma if the
same does not specify the findings or conclusions in the
judgment which are not supported by the evidence or
contrary to law, making express reference to the pertinent
evidence or legal provisions. It is settled that although a
motion for reconsideration may merely reiterate issues
already passed upon by the court that by itself does not
make it pro forma and is immaterial because what is
essential is compliance with the requisites of the Rules.
3. In the cases where a motion for reconsideration was held
to be pro forma, the motion was so held because (1) it was a
second motion for reconsideration, or (2) it did not comply
with the rule that the motion must specify the findings and
conclusions alleged to be contrary to law or not supported by
the evidence, or (3) it failed to substantiate the alleged
errors, or (4) it merely alleged that the decision in question
was contrary to law, or (5) the adverse party was not given
notice thereof.
- Where the circumstances of a case do not show an intent on
the part of the pleader to merely delay the proceedings, and
his motion reveals a bona fide effort to present additional
matters or to reiterate his arguments in a different light, the
courts should be slow to declare the same outright as pro
forma. The doctrine relating to pro forma motions has a
direct bearing upon the movant's valuable right to appeal. It
would be in the interest of justice to accord the appellate
court the opportunity to review the decision of the trial court
on the merits than to abort the appeal by declaring the
motion pro forma, such that the period to appeal was not
interrupted and had consequently lapsed.
VI. Resolution of the motion
- The motion shall be resolved within thirty (30) days from
the time it is submitted for resolution (Sec. 4, Rule 37, Rules
of Court).
VII. Denial of the motion; the "fresh period" rule
1. If the motion is denied, the movant has a "fresh period" of
fifteen (15) days from receipt or notice of the order denying
or dismissing the motion for reconsideration within which to
file a notice of appeal. This new period becomes significant
if either a motion for reconsideration or a motion for new
trial has been filed but was denied or dismissed. This "fresh
period" rule applies not only to Rule 41 governing appeals
from the Regional Trial Courts but also to Rule 40 governing
appeals from the Municipal Trial Court to the Regional Trial
Court; Rule 42 on petitions for review from the Regional Trial
Courts to the Court ofAppeals; Rule 43 on appeals from quasi
judicial agencies to the Court of Appeals and Rule 45
governing appeals by certiorari to the Supreme Court.
Accordingly, this rule was adopted to standardize the appeal
periods provided in the Rules and to afford fair opportunity
to appeal their cases and to give the trial court another
opportunity to review the case and, in the process, minimize
any error of judgment.
2. Prior to Neypes, if a party filed a motion for new trial or a
motion for reconsideration, he only had the remaining time
of the 15-day appeal period to file the notice of appeal.
This rule has been consistently applied in numerous cases
and this interpretation was premised on the long-settled
doctrine that the perfection of an appeal in the manner and
within the period permitted by law is not only mandatory but
also jurisdictional. The rule is also founded on deep-seated
considerations of public policy and sound practice that, at
risk of occasional error, the judgments and awards of courts
must become final at some definite time fixed by law.
3. The Court in Neypes explains: "The Supreme Court may
promulgate procedural rules in all courts. It has the sole
prerogative to amend, repeal or even establish new rules for
a more simplified and inexpensive process, and the speedy
disposition of cases. In the rules governing appeals to it and
to the Court of Appeals, particularly Rules 42, 43, and 45,
the Court allows extensions of time, based on justifiable and
compelling reasons, for parties to file their appeals. These
extensions may consist of 15 days or more.
- "To standardize the appeal periods provided in the Rules
and to afford litigants fair opportunity to appeal their cases,
the Court deems it practical to allow a fresh period of 15
days within which to file the notice of appeal in the Regional
Trial Court, counted from receipt of the order dismissing a
motion for a new trial or motion for reconsideration.
- "Henceforth, this "fresh period rule" shall also apply to Rule
40 governing appeals from the Municipal Trial Courts to the
Regional Trial Courts; Rule 42 on petitions for review from
the Regional Trial Courts to the Court of Appeals; Rule 43 on
appeals from quasi judicial agencies to the Court of Appeals
and Rule 45 governing appeals by certiorari to the Supreme
Court. The new rule aims to regiment or make the appeal
period uniform, to be counted from receipt of the order
denying the motion for new trial, motion for reconsideration
(whether full or partial) or any final order or resolution.
- "* * * This pronouncement is not inconsistent with Rule 41,
Section 3 of the Rules which states that the appeal shall be
taken within 15 days from notice of judgment or final order
appealed from. The use of the disjunctive word "or" signifies
disassociation and independence of one thing from another.
It should, as a rule, be construed in the sense in which it
ordinarily implies. Hence, the use of "or" in the above
provision supposes that the notice of appeal may be filed
within 15 days from the notice of judgment or within 15 days
from notice of the "final order," * * * denying the motion for a
new trial or reconsideration.
- "Neither does this new rule run counter to the spirit of
Section 39 of BP 129 which shortened the appeal period from
30 days to 15 days to hasten the disposition of cases. The
original period of appeal * * * remains and the requirement
for strict compliance still applies. The fresh period of 15 days
becomes significant only when a party opts to file a motion
for new trial or motion for reconsideration. In this manner,
the trial court which rendered the assailed decision is given
another opportunity to review the case and, in the process,
minimize and/or rectify any error of judgment. While we aim
to resolve cases with dispatch and to have judgments of
courts become final at some definite time, we likewise aspire
to deliver justice fairly.
- In this case, the new period of 15 days eradicates the
Page105
confusion as to when the 15-day appeal period should be
counted - from receipt of notice of judgment ... or from
receipt of notice of "final order" appealed from...
- "To recapitulate, a party litigant may either file his notice
of appeal within 15 days from receipt of the Regional Trial
Court's decision or file it within 15 days from receipt of the
order (the "final order") denying his motion for new trial or
motion for reconsideration. Obviously, the new 15-day period
may be availed of only if either motion is filed; otherwise,
the decision becomes final and executory after the lapse of
the original appeal period provided in Rule 41, Section 3.
4. The Neypes ruling shall not be applied where no motion
for new trial or motion for reconsideration has been filed in
which case the 15-day period for appeal shall run from notice
of the judgment.
5. In affirming the Neypes rule, a subsequent case held: "In
Neypes, et al. vs. Court of Appeals, we standardized the
appeal period provided in the Rules of Court. In Neypes, we
granted a "fresh period" of 15 days within which to file the
notice of appeal, counted from receipt of the order
dismissing a motion for a new trial or motion for
reconsideration or any final order or resolution."
VIII. Order of denial, not appealable
- The "fresh period" rule does not refer to the period within
which to appeal from the order denying the motion for
reconsideration but to the period within which to appeal the
judgment itself. An order denying a motion for
reconsideration is not appealable under Sec. 9 of Rule 37.
The non-appealability of the order of denial is also confirmed
by Sec. 1(a) of Rule 41: which provides that no appeal may
be taken from an order denying a motion for new trial or a
motion for reconsideration.
IX. Remedy when motion is denied
1. The remedy from an order denying a motion for
reconsideration is not to appeal from the order of denial.
Again, the order is not appealable. The remedy is to appeal
from the judgment or final order itself subject of the motion
for reconsideration (Sec. 9, Rule 37, Rules of Court).
2. May the order denying the motion for reconsideration be
assailed? It can be assailed but not through an appeal from
the order. Sec. 1 of Rule 41 clearly provides for the proper
remedy against the order: "In all instances where the
judgment or final order is not appealable, the aggrieved
party may file an appropriate special civil action under Rule
65." Note that the application of Rule 65 particularly
certiorari, requires a showing that the court acted "without
or in excess of its jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction."
X. Effect of granting a motion for reconsideration
1. If the court grants the motion, i.e., it 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 (Sec. 3, Rule 37, Rules of
Court).
- The amended judgment is in the nature of a new judgment
which supersedes the original judgment. It is not a mere
supplemental decision which does not supplant the original
but only serves to add something to it.
2. If the court finds that a motion affects the issues of the
case as to only a part, or less than all of the matters in
controversy, or only one, or less than all, of the parties to it,
the order may grant a reconsideration as to such issues if
severable without interfering with the judgment or final
order upon the rest (Sec. 7, Rule 37, Rules of Court).
XI. The "single motion" rule
- A party shall not be allowed to file a second motion for
reconsideration of a judgment or a final order (Sec. 5, Rule
37, Rules of Court). Be reminded that the prohibition on a
second motion does not apply to a motion for reconsideration
of an interlocutory order.
B. Motion For New Trial (Rule 37)
I. When to file
1. A motion for new trial is filed within the period for appeal
(Sec. 1, Rule 37, Rules of Court). No motion for extension of
time to file a motion for new trial shall be allowed (Sec. 2,
Rule 40; Sec. 3, Rule 41, Rules of Court; Bar 1975).
2. The period for appeal is within fifteen (15) days after
notice to the appellant of the judgment or final order
appealed from (Sec. 2, Rule 40; Sec. 3, Rule 41; Sec. 2, Rule
45, Rules of Court). 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 (Sec. 3, Rule 41). A record on appeal shall be
required only (a) in special proceedings, and (b) other cases
of multiple or separate appeals (Sec. 3, Rule 40, Rules of
Court).
II. Effect of the filing of the motion on the period to appeal
- The filing of a timely motion for new trial interrupts the
period to appeal (Sec. 2, Rule 40; Sec. 3, Rule 41, Rules of
Court).
III. Form of a motion for new trial
- Like a motion for reconsideration, the motion for new trial
shall be made in writing, stating the ground or grounds
therefore, 4 written notice of which shall be served by the
movant on the adverse party (Sec. 2, Rule 37, Rules of
Court).
IV. Grounds for a motion for new trial
l. 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 (Sec. 1, Rule 37, Rules of Court; Bar 1988).
Page106
V. Gross negligence of counsel not a ground for new trial
1. Petitioner's argument that his counsel's negligence was so
gross that he was deprived of due process fails to impress.
Gross negligence is not one of the grounds for a motion for a
new trial. We cannot declare his counsel's negligence as gross
as to liberate him from the effects of his failure to present
countervailing evidence. The Court does not consider as gross
negligence the counsel's resort to dilatory schemes, such as
(1) the filing of at least three motions to extend the filing of
petitioner's Answer; (2) his nonappearance during the
scheduled pretrials; and (3) the failure to file petitioner's
pretrial brief, even after the filing of several motions to
extend the date for filing.
2. A motion for the cause mentioned in paragraph "a" shall be
supported by affidavits of merit. A motion based on the
ground in letter "b" shal I be supported by affidavits of the
witnesses by whom such evidence is expected to be given, or
by duly authenticated documents which are proposed to be
introduced in evidence (Sec. 2, Rule 37, Rules of Court). Non-
compliance with this requirement would reduce the motion
to a mere pro forma motion. Under the explicit provisions of
the rule (Sec. 2, Rule 37, Rules of Court), a pro forma motion
for reconsideration shall not toll the reglementary period of
appeal.
VI. Affidavit of merit
1. The affidavits of merits, must be one showing the facts
(not mere conclusions or opinions) constituting the valid
cause of action or defense which the movant may prove in
case a new trial is granted, because a new trial would serve
no purpose and would just waste the time of the court as
well as the parties if the complaint is after all groundless or
the defense is nil or ineffective.
2. Under the Rules, the moving party must show that he has a
meritorious defense. The facts constituting the movant's good
and substantial defense, which he may prove if the petition
were granted, must be shown in the affidavit which should
accompany the motion for a new trial. Mere allegations that
one has a "meritorious defense" and a "good cause" are mere
conclusions which do not provide the court with any basis for
determining the nature and merit of the case. An affidavit of
merit should state facts, and not mere opinion or conclusions
of law. Petitioner's motion for new trial and affidavit of merit
did not mention the evidence which he was prevented from
introducing, nor did it allege that such evidence would
change the outcome of the case.
VII. Resolution of the motion
- The motion shall be resolved within thirty (30) days from
the time it is submitted for resolution (Sec. 4, Rule 37, Rules
of Court).
VIII. Denial of the motion; the "fresh period" rule
- If the motion is denied, the movant has a "fresh period" of
fifteen (15) days from receipt or notice of the order denying
or dismissing the motion for new trial within which to file a
notice of appeal for the same reasons and grounds as the
"fresh period" rule governing a denial of a motion for
reconsideration.
IX. Order of denial, not appealable
- The "fresh period" rule does not refer to the period within
which to appeal from the order denying the motion for new
trial because the order is not appealable under Sec. 9 of Rule
37. The non-appealability of the order of denial is also
confirmed by Sec. 1(a) of Rule 41: which provides that no
appeal may be taken from an order denying a motion for new
trial or a motion for reconsideration.
X. Remedy when motion is denied
- The remedy from an order denying a motion for new trial is
not to appeal from the order of denial. Again, the order is
not appealable. The remedy is to appeal from the judgment
or final order itself subject of the motion for new trial (Sec.
9, Rule 37, Rules of Court).
- May the order denying the motion for new trial be assailed?
Like a denial of a motion for reconsideration it can be
assailed but not through an appeal from the order. Sec. 1 of
Rule 41 clearly provides for the proper remedy against the
order: "In all instances where the judgment or final order is
not appealable, the aggrieved party may file an appropriate
special civil action under Rule 65. Note that the application
of Rule 65 particularly certiorari, requires a showing that the
court acted "without or in excess of its jurisdiction, or with
grave abuse of discretion amounting to lack or excess of
jurisdiction."
XI. Effect of granting the motion for new trial
1. If the court grants the motion, the original judgment or
final order shall be vacated, and the action shall stand for
trial de novo. Tho recorded evidence taken upon the former
trial shall be used at the new trial without retaking the same
if the evidence is material and competent (Sec. 6, Rule 37,
Rules of Court).
2. If the court finds that a motion affects the issues of the
case as to only a part, or less than all of the matters in
controversy, or only one, or less than all, of the parties to it,
court may grant a new trial as to such issues if severable
without interfering with the judgment or final order upon the
rest (Sec. 7, Rule 37, Rules of Court). The effect of this order
is a partial new trial.
3. When there is an order for a partial new trial, i.e., 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. 8, Rule 37, Rules of Court).
XII. Second motion for new trial
- A motion for new trial shall include all grounds then
available. Those not so included are deemed waived.
However, when a ground for a new trial was not existing or
available when the first motion was made, a second motion
for new trial may be filed (Sec. 5, Rule 37, Rules of Court).
APPEALS
I. Nature of an appeal
1. The right to appeal is not part of due process but a mere
statutory privilege that has to be exercised only in the
manner and in accordance with the provisions of law. The
right to appeal is not a natural right.
2. The general rule is that the remedy to obtain reversal or
modification of judgment on the merits is appeal. This is true
Page107
even if the error, or one of the errors, ascribed to the court
rendering the judgment is its lack of jurisdiction over the
subject matter, or the exercise of power in excess thereof,
or grave abuse of discretion in the findings of facts or of law
set out in the decision.
The general rule is that the remedy to obtain a reversal or
modification of a judgment on the merits is appeal. A
subsequent case similarly held that a party is not allowed to
question the decision on the merits and also invoke the
extraordinary remedy of certiorari under Rule 65 and an
ordinary appeal under Rule 41 cannot be allowed since one
remedy would necessarily cancel out the other.
3. An appeal maybe taken only from judgments or final
orders that completely disposes of the case (Sec. 1, Rule 41,
Rules of Court). An interlocutory order is not appealable until
after the rendition of the judgment on the merits.
II. Judgments or orders that are not appealable
- Certain judgments and orders are specifically declared as
not appealable. Thus, no appeal may be taken from:
(a) An order denying a motion for new trial or a motion for
reconsideration;
(b) An order denying a petition for relief or any similar
motion seeking relief from judgment;
(c) An interlocutory order;
(d) An order disallowing or dismissing an appeal
(e) An order denying a motion to set aside a judgment by
consent, confession or compromise on the ground of fraud,
mistake or duress, or any other ground vitiating consent;
(f) An order of oxecution;
(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.
- Examples:
(a) Plaintiff received an adverse judgment in a suit for
damages filed against Defendant. Alleging extrinsic fraud,
he filed a motion for new trial. The court denied the
motion. Plaintiff cannot appeal from the order denying his
motion for new trial. An appeal is not allowed by Sec. 1(a)
of Rule 41. The result would be the same if instead of
filing a motion for new trial Plaintiff filed a motion for
reconsideration. An order denying a motion for
reconsideration of a judgment is also prohibited under Sec.
1(a) of Rule 41.
(b) Defendant filed a motion to dismiss based on improper
venue. The motion was denied. The denial of the motion
does not completely dispose of the case, hence, the order
denying the motion is merely interlocutory. An
interlocutory order is not appealable under the clear terms
of Sec. 1(c) of Rule 41.
Jurisprudence explains the rationale of the rule: "An
interlocutory order is not appealable until after the
rendition of the judgment on the merits for a contrary rule
would delay the administration of justice and unduly
burden the courts."
(c) The RTC upon proper motion and hearing dismissed a
complaint for violation of the rule requiring a certification
against forum shopping. The order dismissing the
complaint is generally not appealable. Under Sec. 5 of Rule
7, a dismissal of this nature is as a rule, a dismissal without
prejudice. An order dismissing an action without prejudice
is not appealable under Sec. 1(h) of Rule 41.
(d) In one case, a party filed a petition for relief from
judgment. From the order denying the petition, the
petitioner filed a petition for review on certiorari under
Rule 45. It is obvious that the petitioner availed of the
wrong remedy. A petition under Rule 45 is a mode of
appeal. Under Section 1(b) of Rule 41 of the Rules of
Court, the denial of a petition for relief from judgment is
subject only to a special civil action for certiorari under
Rule 65 and not through a petition for review on certiorari
under Rule 45.
III. Remedy in case the judgment or final order is not appeal-
able
1. In those instances where the judgment or final order is not
appealable, the aggrieved party may file the appropriate
special civil action under Rule 65 (Sec. 1, Rule 41, Rules of
Court).
2. Rule 65 refers to the special civil actions of certiorari,
prohibition and mandamus. Practically, it would be the
special civil action of certiorari that would be availed of
under most circumstances. The most potent remedy against
those judgments and orders from which appeal cannot be
taken is to allege and prove that the same were issued
without jurisdiction, with grave abuse of discretion or in
excess of jurisdiction, all amounting to lack of jurisdiction.
IV. Issues that may be raised on appeal
1. It is already well-settled in this jurisdiction that a party
may not change his theory of the case on appeal. Such a rule
has been expressly adopted in Rule 44, Section 15 of the 1997
Rules of Civil Procedure, which provides -
SEC. 15. Qrcurstions 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.
2. Also, defenses not pleaded in the answer may not be
raised for the first time on appeal. A party cannot, on
appeal, change fundamentally the nature of the issue in the
case. When a party deliberately adopts a certain theory and
the case is decided upon that theory in the court below, he
will not be permitted to change the same on appeal, because
to permit him to do so would be unfair to the adverse party.
Accordingly, "courts of justice have no jurisdiction or power
to decide a question not in issue." Thus, a judgment that
goes beyond the issues and purports to adjudicate something
on which the court did not hear the parties, is not only
irregular but also extrajudicial and invalid. The rule rests on
the fundamental tenets of fair play.
3. Payment of docket fees and other legal fees within the
prescribed period is both mandatory and jurisdictional,
noncompliance with which is fatal to an appeal. The full
amount of the appellate court docket and other lawful fees
Page108
must be paid to the clerk of the court which rendered the
judgment or final order appealed from. Without the payment
of docket fees the appeal is not perfected and the appellate
court does not acquire jurisdiction to entertain the appeal,
thereby rendering the decision sought to be appealed final
and executory. Nonpayment of the appellate court docket
and other lawful fees within the reglementary period is a
ground for the dismissal of an appeal.
V. Issues that the appellate court decides on appeal
l. A reading of the terms of Sec. 8 of Rule 51 discloses a basic
appellate rule with respect to unassigned errors: The
appellate court shall consider no error unless stated in the
assignment of errors.
- Accordingly, a question that was never raised in the courts
below cannot be allowed to be raised for the first time on
appeal without offending basic rules of fair play, justice and
due process. For an appellate court to consider a legal
question, it should have been raised in the court below.
It would be unfair to the adverse party who would have no
opportunity to present evidence in contra to the new theory,
which it could have done had it been aware of it at the time
of the hearing before the trial court. It is true that this rule
admits of exceptions as in cases of lack of jurisdiction, where
the lower court committed plain error, where there are
jurisprudential developments affecting the issues, or when
the issues raised present a matter of public policy.
2. The above rule however, is only the general rule because
Sec. 8 of Rule 51 precludes its absolute application allowing
as it does certain errors which even if not assigned may be
ruled upon by the appellate court. Hence, the court may
consider an error not raised on appeal provided the same
falls within any of the following categories:
(a) It is an error that affects the jurisdiction over the
subject matter;
(b) It is an error that affects the validity of the judgment
appealed from;
(c) It is an error which affects the proceedings;
(d) It is an error closely related to or dependent on an
assigned error and properly argued in the brief;
(e) It is a plain and clerical error (Sec. 8, Rule 51, Rules of
Court).
- The fact that the appellant's brief did not raise the lack of
jurisdiction of the trial court should not prevent the Court of
Appeals from taking up the issue o{' lack of jurisdiction.
3. Jurisprudence likewise provides another exception to the
rule. Declares the Highest Court: "The Supreme Court is
clothed with ample authority to review matters, even if they
are not assigned as errors on appeal, if it finds that their
consideration is necessary in arriving at a just decision of the
case.
- In one case, although petitioners did not raise as issue the
appellate court's reversal of the award of damages in their
favor, the Court has the discretion to pass upon this matter
and determine whether or not there is sufficient justification
for the award of damages.
4. In a criminal case, an appellate court appears to enjoy
wide latitude in deciding an appealed case. Thus: "In criminal
cases, it is axiomatic that where an accused appeals the
decision against him, he throws open the whole case for
review and it then becomes the duty of the Supreme Court to
correct any error as may be found in the appealed judgment,
whether it was made the subject of assignment of errors or
not."
VI. Material data (date) rule
- Section 3 of Rule 46 of the Rules of Court provides that
there are three material dates that must be stated in a
petition for certiorari brought under Rule 65: (1) the date
when notice of the judgment or final order or resolution was
received; (2) the date when a motion for new trial or for
reconsideration when one such was filed; and (3) the date
when notice of the denial thereof was received. This
requirement is for the purpose of determining the timeliness
of the petition.
VII. Payment of docket fee
l. Time and again, this Court has consistently held that
payment of docket fee within the prescribed period is
mandatory for the perfection of an appeal. Without such
payment, the appellate court does not acquire jurisdiction
over the subject matter of the action and the decision sought
to be appealed from becomes final and executor.
2. In the exercise of its impartial jurisdiction, the Court
allows a liberal construction of the rules on the manner and
periods for perfecting appeals in order to serve the demands
of substantial justice.
- The established rule is that the payment in full of the
docket fees within the prescribed period is mandatory.
Nevertheless, this rule must be qualified, to wit: First, the
failure to pay appellate court docket fee within the
reglementary period allows only discretionary dismissal, not
automatic dismissal, of the appeal; Second, such power
should be used in the exercise of the Court's sound discretion
"in accordance with the tenets of justice and fair play and
with great deal of circumspection considering all attendant
circumstances."
A. Appeal from Municipal Trial Courts to the Regional Trial
Courts (Rule 40)
I. General principles governing an appeal
1. Nature of an appeal
(a) The right to appeal is neither a natural right nor a part of
due process. It is merely a statutory privilege and may be
exercised only in the manner and in accordance with the
provisions of law. Thus, one who seeks to avail of the right to
appeal must comply with the requirements of the Rules.
Thus, one who seeks to avail of the right to appeal must
strictly comply with the requirements of the rules, and
failure to do so leads to the loss of the right to appeal.
Because an appeal is neither a natural right nor a part of due
process, an appeal may be taken from a judgment or final
order only when allowed by law.
(b) A question that was never raised in the court below
cannot be allowed to be raised for the first time on appeal
without offending basic rules of fair play, justice and due
process. Points of law, theories, issues and arguments not
Page109
brought to the attention of the lower court need not be, and
ordinarily will not be, considered by the reviewing court, as
they cannot be raised for the first time at that stage. Basic
considerations of due process impel this rule.

II. Where to appeal from a judgment or final order of a
Municipal Court
- 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 (Sec. 1, Rule 40, Rules of Court).
III. When to appeal
1. An appeal maybe taken within fifteen (15) days after
notice to the appellant of the judgment or final order
appealed from (Sec. 2, Rule 40, Rules of Court; Bar 1991).
2. Where a record on appeal is required, the appellant shall
file a notice of appeal and a record on appeal within thirty
(30) days after notice of the judgment or final order (Sec. 2,
Rule 40, Rules of Court).
3. A record on appeal shall be required only in special
proceedings and in their cases of multiple or separate
appeals (Sec. 3, Rule 40, Rules of Court).
IV. How to appeal
l. The appeal is taken by (a) filing a notice of appeal with the
court that rendered the judgment or final order appealed
from and by (b) serving a copy of the notice to the adverse
party (Sec. 3, Rule 40, Rules of Court). Thus, if it is the
Regional Trial Court which rendered the judgment appealed
from, the notice shall be filed with the same Regional Trial
Court and not with the Court of Appeals. In the same vein, if
the judgment was rendered by the Metropolitan Trial Court,
the notice of appeal must be filed with said court (Sec. 3,
Rule 40, Rules of Court).
2. 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 (Sec. 5, Rule 40, Rules of
Court).
3. Within fifteen (15) days from the perfection of the appeal,
the clerk of court of the lower court shall transmit the
original record or the record on appeal, together with
transcripts and exhibits, which he shall certify as complete,
to the proper Regional Trial Court (Sec. 6, Rule 40, Rules of
Court).
- A party's appeal by notice of appeal is deemed perfected as
to him upon the filing of the notice of appeal in due time. A
party's appeal by record on appeal is deemed perfected as to
him with respect to the subject matter thereof upon the
approval of the record on appeal filed in due time (Sec. 4,
Rule 40 in relation to Sec. 9, Rule 41, Rules of Court; Bar
1999).
4. 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 (Sec. 7[a], Rule 40, Rules of
Court). Within fifteen (15) days from such notice, it shall be
the duty of the appellant to submit a memorandum, copy of
which shall be furnished the appellee. For the appellant, the
filing of a memorandum is vital to his appeal. Failure to so
file shall be a ground for the dismissal of the appeal. The
memorandum shall briefly discuss the errors imputed to the
lower court. The appellee may, if his so desires, file his
memorandum within fifteen (15) days from receipt of the
appellant's memorandum (Sec. 7[b], Rule 40, Rules of Court).
5. The case shall be considered submitted for decision upon
the filing of the memorandum of the appellee, or the
expiration of the period to do so. The Regional Trial Court
shall decide the case on the basis of the entire record of the
proceedings had in the court of origin and such memoranda
as are filed (Sec. 7[c], Rule 40, Rules of Court).
V. Appeal from an order dismissing a case for lack of juris-
diction
- A case may be dismissed in the Municipal Trial Court
without a trial on the merits. This occurs when a motion to
dismiss is filed and granted in accordance with Rule 16 of the
Rules of Court. If an appeal is taken from the dismissal by the
lower court, the Regional Trial Court may affirm or reverse
it. If the order of dismissal is reversed, the case shall be
remanded to the lower court for further proceedings. If the
order is affirmed, then it is a declaration of the merits of the
dismissal. However, if the dismissal is made on the ground of
lack of jurisdiction over the subject matter, and the Regional
Trial Court affirms the dismissal, the action of the latter
court shall not be confined to a mere affirmation of the
dismissal. Instead, the rule obligates the Regional Trial Court
to try the case on the merits as if the case was originally
filed with it.
- The same rule prevails if the case was tried on the merits in
the lower court without jurisdiction over the subject matter
and was subsequently dismissed on such ground. On appeal,
the Regional Trial Court, if it has original jurisdiction shall
not dismiss the case, but shall decide the case in the same
manner as a case dismissed by the lower court without trial
on the merits. The Regional Trial Court may allow
amendment of the pleadings and may receive additional
evidence in the interest of justice (Sec. 8, Rule 40, Rules of
Court).
B. Appeal from The Regional Trial Courts to the Court of
Appeals (Rule 41)
I. Application of Rule 41
- Rule 41 applies to appeals from the judgment or final order
of the Regional Trial Court in the exercise of its original
jurisdiction (Sec. 2[a], Rule 41, Rules of Court). This appeal
is called an "ordinary appeal" (Sec. 2[a], Rule 41, Rules of
Court).
Example: If a judgment by the Regional Trial Court in an
action for specific performance is to be appealed from, Rule
41 will govern the appeal. This is because an action for
specific performance is filed with the Regional Trial Court in
the first instance, the action being within the original
jurisdiction of the Regional Trial Court. Any judgment
rendered by it on the case would then be a judgment
rendered in the exercise of its original jurisdiction.
II. When to appeal
- The appeal shall be taken within fifteen (15) days from
Page110
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 (Sec. 3, Rule
41, Rules of Court).
III. How to appeal
1. The appeal to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its original jurisdiction
shall be taken by (a) filing a notice of appeal with the court
which rendered the judgment or final order appealed from,
and (b) serving a copy thereof upon the adverse party (Sec.
2[a], Rule 41, Rules of Court; Bar 1988). A record on appeal
shall be required in special proceedings and other cases of
multiple or separate appeals when so required by law or the
Rules (Sec. 2[a], Rule 41, Rules of Court).
- Where both parties are appellants, they may file a joint
record on appeal (Sec. 8, Rule 41, Rules of Court).
2. 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 fee (Sec. 4, Rule 41, Rules of Court).
- A party's appeal by notice of appeal is deemed perfected as
to him upon the filing of the notice of appeal in due time. A
party's appeal by record on appeal is deemed perfected as to
him with respect to the subject matter thereof upon the
approval of the record on appeal filed in due time (Sec. 9,
Rule 41, Rules of Court).
3. Within thirty (30) days after perfection of all the appeals,
the clerk of court shall verify the correctness and
completeness of the records and if incomplete, to take such
measures to complete such records, certify to the
correctness of the records, to transmit the same to the
appellate court, and to furnish the parties with copies of his
letter of transmittal of the records to the appellate court
(Sec. 10, Rule 41, Rules of Court).
4. Upon receiving the original record on appeal and the
accompanying documents 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 (Sec. 4, Rule 44, Rules of
Court).
5. Within forty-five (45) days from receipt of the notice of
the clerk of court, the appellant shall file a brief with proof
of service upon the appellee (Sec. 7, Rule 44, Rules of
Court). Failure to file the appellant's brief is a ground for the
dismissal of the appeal (Sec. 9, Rule 44, Rules of Court).
Within forty-five days from the receipt of the appellant's
brief, the appellee shall file his own brief with proof of
service to the appellant (Sec. 8, Rule 44, Rules of Court).
Within twenty (20) days from receipt of the appellee's brief,
the appellant may file a reply brief answering points in the
appellee's brief not covered in his main brief (Sec. 9, Rule
44, Rules of Court). Extension of time for the filing of briefs
will not be allowed, except for good and sufficient cause and
only if the motion for extension is filed before the expiration
of the time sought to be extended (Sec. 12, Rule 44, Rules of
Court).
IV. Questions that may be raised on appeal
- The appellant may include in his assignment of errors any
question of law or fact that has been raised in the court
below and is within the issues framed by the parties (Sec. 15,
Rule 44, Rules of Court).
V. Residual jurisdiction
1. > residual jurisdiction refers to the authority of a trial
court to 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 Sec. 2 of Rule 39, and allow withdrawal
of the appeal provided these are done prior to the
transmittal of the original record or the record on appeal
even if the appeals have already been perfected or despite
the approval of the record on appeal (Sec. 9, Rule 41) or in
case of a petition for review under Rule 42, before the Court
of appeals gives due course to the petition (Sec. 8, Rule 42,
Rules of Court).
2. The concept of residual jurisdiction of the trial court is
available at a stage in which the court is normally deemed to
have lost jurisdiction over the case or the subject matter
involved in the appeal. There is no residual jurisdiction to
speak of where no appeal or petition has even been filed.
C. Petition for Review from the Regional Trial Courts to
the Court of Appeals (Rule 42)
I. Application of Rule 42
- Rule 42 applies to an appeal from the judgment or final
order of the Regional Trial Court to the Court of Appeals in
cases decided by the former in the exercise of its appellate
jurisdiction (Bar 1998; Bar 1990; Bar 1979).
- Example: The plaintiff received an adverse judgment in a
suit for collection of P350,000.00 filed with the Metropolitan
Trial Court of Manila. He appealed from the judgment of the
lower court with the appropriate Regional Trial Court and
lost again. The judgment of the Regional Trial Court is a
judgment rendered by it in the exercise of its appellate
jurisdiction. If he desires to appeal from this judgment, he
should avail of a petition for review under Rule 42.
II. When to appeal
- The appeal shall be made within fifteen (15) days from
notice of the decision sought to be reviewed or of the denial
of petitioner's motion or new trial or reconsideration filed in
due time after judgment. The court may grant an additional
period of fifteen (15) days only provided the extension is
sought (a) upon proper motion, and (b) there is payment of
the full amount of the docket and other lawful fees and the
deposit for costs before the expiration of the reglementary
period. No other extension shall be granted except for the
most compelling reason and in no case to exceed fifteen (15)
days (Sec. 1, Rule 42, Rules of Court).
II. How to appeal
1. The appeal is made by filing 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
Page111
furnishing the Regional Trial Court and the adverse party
with a copy of the petition (Sec. 1, Rule 42, Rules of Court).
- The appeal is perfected as to the petitioner upon the timely
filing of a petition for review and the payment of the
corresponding docket and other lawful fees (Sec. 6, Rule 42,
Rules of Court).
2. The petition shall be filed in the proper form required in
Sec. 2 of Rule 42 stating among others, a concise statement
of the matters involved, the issues raised, the specification
of errors of law or fact, or both, allegedly committed by the
trial court and the reasons or arguments relied upon for the
allowance of the appeal. The petitioner shall likewise
indicate the specific material dates showing that the petition
was filed on time (Sec. 2, Rule 42, Rules of Court). The
requirement to indicate the relevant dates is commonly
called the material data rule and applies also to Rule 42, not
only to a petition for certiorari under Rule 65. This petition
also requires a certification against forum shopping, it being
an initiatory pleading.
- The failure to comply with any of the requirements in Sec.
2 of Rule 42 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 of the petition (Sec. 3, Rule 42, Rules of Court).
3. The Court of Appeals may dismiss the petition if it finds
the same to be patently without merit, prosecuted merely
for delay, or that the questions raised are too unsubstantial
to require consideration (Sec. 4, Rule 42, Rules of Court).
- If the court does not dismiss the petition, it may require
the respondent to file a comment on the petition within ten
(10) days from notice. The respondent shall file a comment,
not a motion to dismiss (Sec. 4, Rule 42, Rules of Court).
4. If the Court ofAppeals 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 (Sec. 6, Rule 42,
Rules of Court).
- 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 leading or memorandum required
(Sec. 9, Rule 42, Rules of Court).
III. Residual jurisdiction
- The doctrine of residual jurisdiction also applies to Rule 42.
The Regional Trial Court loses jurisdiction over the case upon
the perfection of the appeals filed in due time and thv
expiration of the time to appeal of the other parties.
However, the Regional Trial Court despite the perfection of
the appeals may still 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 Sec. 2 of Rule 39, and allow
withdrawal of the appeal provided these are done before the
Court of Appeals gives due course to the petition (Sec. 8,
Rule 42, Rules of Court). Recall that in an ordinary appeal
the residual jurisdiction of the Regional Trial Court may be
exercised prior to the transmittal of the original record or
the record on appeal.
IV. Stay of judgment
- The appeal, as a rule, shall stay the judgment or final
order, unless the Court of Appeals, the law or the rules shall
provide otherwise. Civil cases decided under the Rules on
Summary Procedure shall not be stayed (Sec. 8[b], Rule 42,
Rules of Court).
D. Appeal by Certiorari to the Supreme Court (Rule 45)
I. Application of Rule 45
1. Appeal by certiorari to the Supreme Court, also commonly
known as petition for review on certiorari applies in the
following cases:
(a) Appeals from a judgment or final order of the Regional
Trial Court in cases where only questions of law are raised
or are involved (Sec. 2[c], Rule 41, Rules of Court; Bar
1984);
(b) Appeals from the judgment, final order, or resolutions
of the Court ofAppeals and the Sandiganbayan where the
petitions shall raise only questions of law distinctly set
forth (Sec. 1, Rule 45, Rules of Court);
(c) Appeals from the decision or ruling of the Court of Tax
Appeals en bane (Sec. 11, Republic Act 9282).
2. The mode of appeal prescribed under Rule 45 shall be
applicable to both civil and criminal cases, except in criminal
cases where the penalty imposed is death, reclusion
perpetua or life imprisonment (Sec. 9, Rule 45, Rules of
Court).
II. Not a matter of right
1. An appeal or a review under Rule 45 is not a matter of
right, but of sound judicial discretion, and will be granted
only when special and important reasons could justify the
petition.
2. The following are examples of reasons which the court
may consider in allowing the petition:
(a) when the court below has decided a question of
substance not yet determined by the Supreme Court;
(b) when the court below decided a matter of substance in
a way that is not in accord with law or with the applicable
decisions of the Supreme Court;
(c) when the court below has departed from the accepted
and usual course of judicial proceedings, or so far
sanctioned such departure by a lower court, as to call for
the exercise of the power of supervision of the Supreme
Court (Sec. 6, Rule 45, Rules of Court).
3. Every appeal to the Supreme Court is not a matter of right
but of sound judicial discretion with the exception of cases
where the penalty of death or reclusion perpetua where an
appeal is a matter of right leaving the reviewing court
without any discretion.
III. Questions of law
1. The petition shall raise only questions of law (Sec. 1, Rule
Page112
45, Rules of Court). The rule is that before the Supreme
Court, only legal issues may be raised in a petition for review
on certiorari (appeal by certiorari). The Supreme Court is not
a trier of facts, and is not to review or calibrate the evidence
on record. Moreover, the findings of facts of the trial court,
as affirmed on appeal by the Court of Appeals, are conclusive
on the Court.
It has to be emphasized that it is not the duty of the
Supreme Court to review, evaluate, and weigh the probative
value of the evidence adduced before the lower courts.
2. A review of the findings of facts of the trial court affirmed
by the Court of Appeals is a course of action proscribed by
Section 1, Rule 45. Firm is the rule that findings of fact of
the Court of Appeals are final and conclusive and cannot be
reviewed on appeal to this Court provided they are supported
by evidence on record or substantial evidence.
3. Indeed, the general rule is that findings of facts of the
trial court will not ordinarily be disturbed by an appellate
court absent any clear showing that the trial court has
overlooked, misunderstood or misapplied some facts or
circumstances of weight or substance which could very well
affect the outcome of the case. It is the trial court that had
the opportunity to observe the witnesses' manner of
testifying, their furtive glances, calmness, sighs or their
scant or full realization of their oaths. Nevertheless, the
higher court is not entirely precluded from reviewing and
reversing these findings if it is not convinced that they
conform to the evidence on record and to its own impressions
of the credibility of the witnesses.
IV. Exceptions to the rule
1. Remember the general rule that the Supreme Court,
cannot pass upon in a petition for review on certiorari (Rule
45) factual findings of a lower court, since its jurisdiction is
limited to reviewing errors of law. Hence, factual findings of
the trial court, alllr-nied J)y the Court ol'Appeals are final
and conclusive and may not be reviewed on appeal. The issue
of negligence for instance, is factual in nature. Whether a
person is negligent or not is a question of fact which, as a
general rule, cannot be passed upon by the Supreme Court.
2. The rule proscribing the raising of questions of fact is not
an absolute one. Questions of fact may be raised in an appeal
under Rule 45 provided the petition shows any, some or all of
the following:
(a) The conclusion of the Court of Appeals is grounded
entirely on speculations, surmises and conjectures;
(b) The inference made is manifestly mistaken, absurd or
impossible;
(c) There is a grave abuse of discretion;
(d) The judgment is based on misapprehension of facts;
(e) The findings of facts are conflicting;
(f) The Court of Appeals, in making its findings went
beyond the issues of the case and the same is contrary to
the admissions of both appellant and appellee;
(g) The findings are contrary to those of the trial court;
(h) The findings of fact are conclusions without citation of
specific evidence on which they are based;
(i) The facts set forth in the petition as well as in the
petitioner's main and reply briefs are not disputed by the
respondents; or
(j) The findings of fact of the Court of Appeals are
premised on the supposed absence of evidence and
contradicted by the evidence on record.
V. Certiorari under Rule 45 is not the certiorari under Rule 65
(Bar 1998;1999)
- The following are the principal distinctions between a
petition for review on certiorari under Rule 45 and a petition
for certiorari under Rule 65:
(a) Certiorari under Rule 45 is a mode of appeal (Sec. 2[c],
Rule 41, Rules of Court), while certiorari under Rule 65 is a
special civil action that is an original action and not a
mode of appeal (Rule 65, Rules of Court). Certiorari under
Rule 45 is but a continuation of the appellate process over
the original case. Certiorari under Rule 65 is not a part of
the appellate process but an independent action (Fortune
Guarantee and Insurance Corp., 379 SCRA 7). It must be
noted that while both Rules 45 and 65 are petitions for
certiorari, the former is a petition for review while the
latter is an original special civil action for certiorari.
(b) Because it is a mode of appeal, certiorari under Rule 45
seeks to review final judgments or final orders while
certiorari under Rule 65 may be directed against an
interlocutory order or matters where no appeal may be
taken from (Sec. 1, Rule 41, Rules of Court).
(c) Certiorari under Rule 45 raises only questions of law
(DMA Shipping Philippines, Inc. vs. Cabilar, 452 SCRA 551,
February 28, 2005) while certiorari under Rule 65 raises
questions of jurisdiction because a tribunal, board or
officer exercising judicial or quasijudicial functions has
acted without jurisdiction or in excess of jurisdiction or
with grave abuse of discretion amounting to lack of
jurisdiction (Sec. 1, Rule 65, Rules of Court).
(d) An appeal by certiorari under Rule 45 shall be filed
within fifteen (15) days from notice of judgment or final
order appealed from (Sec. 2, Rule 45, Rules of Court),
while a petition for certiorari under Rule 65 shall be filed
not later than sixty (60) days from notice of judgment,
order or resolution sought to be assailed and 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 denial of said
motion (Sec. 4, Rule 65, Rules of Court; A.M. No. 00-2-03
amending Sec. 4 of Rule 65 effective September 1, 2000).
(e) Certiorari under Rule 45 does not require a prior
motion for reconsideration while certiorari under Rule 65
requires as a general rule, a prior motion for
reconsideration before resorting to certiorari.
(f) Certiorari under Rule 45 stays the judgment appealed
from while certiorari does not stay the judgment or order
subject of the petition unless enjoined or restrained.
(g) In certiorari under Rule 45, the parties are the original
parties with the appealing party as the petitioner and the
adverse party as respondent without impleading the lower
court or its judge, while in certiorari under Rule 65, the
tribunal, board, officer exercising judicial or quasijudicial
functions is impleaded as respondent (Sec. 5, Rule 65,
Rules of Court). In an appeal by certiorari under Rule 45,
the petitioner and respondent are also the original parties
to the action in the lower courl, In certiorari as an original
Page113
action, the parties are the aggrieved party against the
lower court or quasijudicial agency and the prevailing
parties, who thereby respectively become the petitioner
and respondents.
 (h) Certiorari as a special civil action is filed with the
Regional Trial Court (Sec. 21, BP 129 as amended), the
Court of Appeals Sec. 9, BP 129 as amended) or with the
Supreme Court (Sec. 5[11, Art. VIII, Constitution of the
Philippines) whereas certiorari as a mode of appeal is filed
with the Supreme Court (Sec. 1, Rule 45, Rules of Court).
- As a general rule, a party cannot file a petition both under
Rules 45 and 65 of the Rules of Court because said procedural
rules pertain to different remedies and have distinct
applications. The remedy of appeal under Rule 45 and an
original action for certiorari under Rule 65 are mutually
exclusive and not alternative or cumulative. Thus, a party
should not join both petitions in one pleading. When a party
adopts an improper remedy his petition may be dismissed
outright.
- However, the Court may set aside technicality for
justifiable reasons as when the petition before the court is
clearly meritorious and filed on time both under Rules 45 and
65. In accordance with the liberal spirit which pervades the
Rules of Court and in the interest of justice, the Court may
treat the petition as having been filed under Rule 45.
VI. When to appeal
1. The appeal which shall be in the form of a verified
petition shall be filed within fifteen (15) days from notice of
the judgment, final order or resolution appealed from, or
within fifteen (15) days froln notice of'tho denial of the
petitioner's motion for new trial or motion 6or
reconsideration filed in due time (Sec.2, Rule 45, Rules of
Court).
2. The Supreme Court may, for justifiable reasons, grant an
extension of thirty (30) days only within which to file the
petition provided (a) there is a motion for extension of time
duly filed and served; (b) there is full payment of the docket
and other lawful fees and the deposit for costs; and (c) the
motion is filed and served and the payment is made before
the expiration of the reglementary period (Sec. 2, Rule 45,
Rules of Court).
VII. How to appeal
1. The petitioner shall file a verified petition with the
Supreme Court within the reglementary period raising therein
only questions of law (Sec. 1, Rule 45, Rules of Court).
2. The petitioner shall pay to the clerk of court of the
Supreme Court the docket and other lawful fees as well as
the deposit in the amount of P500.00 for costs. Proof of
service of a copy of the petition on the lower court
concerned and the adverse party shall be submitted together
with the petition (Sec. 3, Rule 45, Rules of Court).
- The petition shall contain all the matters mentioned in Sec.
4 of Rule 45 including compliance with the material data rule
which requires the petitioner to indicate the material dates
showing when notice of the judgment, final order or
resolution subject of the petition was received and when a
motion for new trial or motion for reconsideration, if any,
was filed and when notice of the denial was received. Among
others, the petition must also be accompanied by a
certification against forum shopping.
- 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
its dismissal (Sec. 5, Rule 45, Rules of Court).
3. The Supreme Court, may on its own initiative, deny the
petition on the ground that (a) the appeal is without merit,
(b) is prosecuted manifestly for delay, or (c) that the
questions raised therein are too unsubstantial to require
consideration (Sec. 5, Rule 45, Rules of Court).
- For purposes of determining whether the petition should be
denied or given due course, the Supreme Court may require
the filing of such pleadings, briefs, memoranda or the
submission of documents it may deem necessary (Sec. 7, Rule
45, Rules of Court).
- 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. 8, Rule 45, Rules of Court).
VIII. Appeals from quasi judicial bodies
1. Appeals from judgments and final orders of quasijudicial
bodies/agencies are now required to be brought to the Court
of Appeals under the requirements and conditions set forth in
Rule 43. This rule was adopted precisely to provide a uniform
rule of appellate procedure from quasi judicial bodies.
2. The appeal under Rule 43 may be taken to the Court of
Appeals whether the appeal involves a question of fact, a
question of law, or mixed questions of fact and law (Sec. 3,
Rule 43). The appeal shall be taken by filing a verified
petition for review with the Court of Appeals (Sec. 5, Rule
43, Rules of Court).
3. The appeal shall not stay the award, judgment, final order
or resolution sought to be reviewed unless he Court of
Appeals shall direct otherwise upon such terms as it may
deem just (Sec. 12, Rule 43, Rules of Court).
IX. Appeals from the NLRC (Bar 2006)
1. The remedy of a party aggrieved by the decision of the
National Labor Relations Commission is to promptly move for
the reconsideration of the decision and if denied to timely
file a special civil action oi'certiorari under Rule 65 within
sixty (60) days from notice of the decision. In observance of
the doctrine of hierarchy of courts, the petition for certiorari
should be filed in the Court of Appeals.
2. Because of St. Martin, all special civil actions arising out of
any decision or final resolution or order of the National Labor
Relations Commission filed with the Supreme Court after
June 1, 1999 shall be dismissed instead of referring the
action to the Court of Appeals.
X. Appeals from the Sandiganbayan
Page114
- Decisions and final orders of the Sandiganbayan shall be
appealable to the Supreme Court by way of certiorari under
Rule 45 raising pure questions of law. Certiorari under Rule
65 is not the remedy (Sec. 1, Rule 45, Rules of Court).

XI. Appeals from the rulings of the Ombudsman (Bar 2006)
1. In administrative disciplinary cases, the ruling of the
Office of the Ombudsman are appealable to the Court of
Appeals. Sec. 27 of R.A. No. 6770 (The Ombudsman Act of
1987) insofar as it allowed a direct appeal to the Supreme
Court was declared unconstitutional in Fabian vs. Desierto
because the statute, being one which increased the appellate
jurisdiction of the Supreme Court, was enacted without the
advice and concurrence of the Court. Sec. 30 of Art VI of the
Constitution of the Philippines provides that "No law shall be
passed increasing the appellate jurisdiction of the Supreme
Court as provided in this Constitution without its advice and
concurrence". Instead, appeals from decisions of the
Ombudsman in administrative disciplinary actions should be
brought to the Court of Appeals under Rule 43.
(a) The Court of Appeals has jurisdiction over orders,
directives and decisions of the Office of the Ombudsman in
administrative disciplinary cases only. It cannot, therefore,
review the orders, directives or decisions of the Office of
the Ombudsman in criminal or non-administrative cases.
(b) Although as a consequence of Fabian appeals from the
Ombudsman in administrative cases are now cognizable by
the Court of Appeals, nevertheless in cases in which it is
alleged that the Ombudsman has acted with grave abuse of
discretion amounting to lack or excess of jurisdiction, a
special civil action of certiorari under Rule 65 may be filed
with the Supreme Court to set aside the Ombudsman's
order or resolution
2. In criminal cases, the ruling of the Ombudsman shall be
elevated to the Supreme Court by way of Rule 65. The
Supreme Court's power of review over resolutions and orders
of the Office of the Ombudsman is restricted only to
determining whether grave abuse of discretion has been
committed by it. The Court is not authorized to correct every
error or mistake of the Office of the Ombudsman other than
grave abuse of discretion.
The remedy is not a petition for review on certiorari under
Rule 45.
- In any event, jurisprudence now holds that where the
findings of the Ombudsman on the existence of probable
cause in criminal cases is tainted with grave abuse of
discretion amounting to lack or excess of jurisdiction, the
aggrieved party may file a petition for certiorari with the
Supreme Court under Rule 65.
XII. Appeals from judgments of the Court of Tax Appeals (Bar
2006)
1. Under Sec. 11 of Republic Act No. 9282, March 30, 2004 no
civil proceeding involving matters arising under the National
Internal Revenue Code, the Tarill'and Customs Code or the
Local Government Code shall be maintained, except as
herein provided, until and unless an appeal has been
previously filed with the CTA and disposed of in accordance
with the provisions of this Act.
- A party adversely affected by a resolution of a Division of
the CTA on a motion for reconsideration or new trial, may
file a petition for review with the CTA en banc.
2. Sec. 11 of the same Act further provides that a party
adversely affected by a decision or ruling of the CTA en banc
may file with the Supreme Court a verified petition for
review on certiorari pursuant to Rule 45 of the 1997 Rules of
Civil Procedure.
XIII. Appeals from judgments of the Commission on Elections
- A judgment, resolution or final order of the Commission on
Elections may be brought by the aggrieved party to the
Supreme Court on certiorari under Rule 65 (Sec. 2, Rule 64,
Rules of Court) by filing the petition within thirty (30) days
from notice (Sec. 3, Rule 64, Rules of Court).
XIV. Appeals from judgments of the Commission on Audit
- A judgment, resolution or final order of the Commission on
Audit may be brought by the aggrieved party to the Supreme
Court on certiorari under Rule 65 (Sec. 2, Rule 64, Rules of
Court) by filing the petition within thirty (30) days from
notice (Sec. 3, Rule 64, Rules of Court).
XV. Appeals from judgments of the Civil Service Commission
- A judgment, final order or resolution of the Civil Service
Commission may be taken to the Court of Appeals under Rule
43 of the Rules of Court (Sec. 1, 3, Rule 43, Rules of Court).
Note the difference between the mode of appeal from a
judgment of the Civil Service Commission and the mode of
appeal from the judgments of other constitutional
commissions.
XVI. Appeals from judgments of the Office of the President
- The judgments, resolutions, or final orders of the Office of
the President may be taken to the Court of Appeals (Sec. 1,
3, Rule 43, Rules of Court).
II. Remedies After A Judgment Has Become Final and
executory
1. The 1997 Rules o Civil Procedure provides the following
remedies for aggrieved parties against a judgment that is
already final and executory, namely:
(a) Petition for relief from judgment under Rule 38; and
(b) Petition for annulment of a judgment under Rule 47.
2. In addition to the above, jurisprudence has likewise
recognized an additional relief through (a) a direct action of
certiorari, and (b) a collateral attack of a judgment that is
void on its face.
Illustration (Bar 1995)
May a judgment that has become final and
executory still be questioned, attacked or set aside?
Suggested answer.
Please refer to the immediately preceding
paragraphs.
A. Petition for relief or relief from judgments, orders or
other proceedings (Rule 38)
I. Nature of the petition
1. It is a legal remedy whereby a party seeks to set aside a
Page115
judgment rendered against him by a court whenever he was
unjustly deprived of a hearing or was prevented from taking
an appeal because of fraud, accident, mistake or excusable
neglect.

2. A petition for relief from judgment is an equitable remedy
that is allowed only in exceptional cases when there is no
other available or adequate remedy. When a party has
another remedy available to him, which. may be either a
motion for new trial or appeal from an adverse decision of
the trial court, and he was not prevented by fraud, accident,
mistake or excusable negligence from filing such motion or
taking such appeal, he cannot avail himself of this petition.
II. Preliminary injunction pending the petition for relief
- Remember that a petition for relief is a remedy available
after the judgment or final order has become final and
executory. Hence, the judgment could be the subject of a
writ of execution. There is nothing in the Rules that
precludes the execution of the judgment that is already
executory upon proper application of the prevailing party
during the pendency of the petition. The petitioner
therefore, would be interested in the preservation of the
status quo as well as the preservation of the rights of the
parties before the petition is resolved. Hence, the petitioner
may avail of the remedy allowed him under Sec. 5 of Rule 38.
Under this provision, the court in which the petition is filed,
may grant such preliminary injunction to preserve the rights
of the parties upon the filing of a bond in favor of the
adverse party. The bond is conditioned upon the payment to
the adverse party of all damages and costs that may be
awarded to such adverse party him by reason of the issuance
of the injunction (Sec. 5, Rule 38, Rules of Court).
III. Grounds for a petition for relief; proper court
1. A petition for relief may be filed on the following grounds:
(a) When a judgment or final order is entered into, or any
other proceeding is taken against the petitioner in any
court through fraud, accident, mistake, or excusable
negligence (Sec. 1, Sec. 38, Rules of Court); or
(b) When the petitioner has been prevented from taking an
appeal by fraud, mistake, or excusable negligence (Sec. 2,
Rule 38, Rules of Court).
2. In letter "a," the petition shall be filed in the same court
(not in another or higher court) which rendered the judgment
and in the very same case. The petition shall pray that the
judgment, order or proceeding be set aside (Sec. 1, Rule 38,
Rules of Court).
- In letter "b,." the petition shall likewise be filed in the same
court (not in another or higher court) and in the same case
but the prayer this time is that the appeal be given due
course (Sec. 2, Rule 38, Rules of Court).
- Hence, a petition for relief under Rule 38 cannot be availed
of in the appellate court. Under the present Rules, petitions
for relief from a judgment, final order or other proceeding
rendered or taken should be filed in and resolved by the
court in the same case from which the petition arose. Thus,
petition for relief from a judgment, final order or proceeding
involved in a case tried by a municipal trial court shall be
filed in and decided by the same court in the same case, or
in the Regional Trial Court if the case was decided by it.
3. A petition for relief from judgment together with a motion
for new trial and a motion for reconsideration are remedies
available only to parties in the proceedings where the
assailed judgment is rendered. In fact, it has been held that
a person who was never a party to the case, or even
summoned to appear therein, cannot avail of a petition for
relief from judgment.
IV. When to file
- The petition shall be filed within sixty (60) days after the
petitioner learns of the judgment, final order or proceeding
and not more than six (6) months after such judgment or
final order was entered, or such proceeding was taken (Sec.
3, Rule 38, Rules of Court).
- Section 3 of Rule 38 reads:
SEC. 3. Time for filing petition; contents and verifi-
cation. -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.
-Thus, it is clear that a petition for relief from judgment
must be filed within: (a) 60 days from knowledge of
judgment, order or other proceedings to be set aside; and (b)
six (6) months from entry of such judgment, order or other
proceeding. These two periods must concur. Both periods are
also not extendible and never interrupted. Strict compliance
with these periods stems from the equitable character and
nature of the petition for relief. Indeed, relief is allowed
only in exceptional cases as when there is no other available
or adequate remedy. As it were, a petition for relief is
actually the "last chance" given by law to litigants to question
a final judgment or order. And failure to avail of such "last
chance" within the grace period fixed by the Rules is fatal
(Quelnan vs. VHF Philippines, G.R. No. 138500, September
16, 2005). While `strict interpretation' is the norm in
applying the periods mentioned, such rule is always subject
to the power of the Supreme Court to effect a liberal
interpretation when dictated by the circumstances.
V. Form of the petition
- The petition must be verified and must be accompanied
with affidavits showing 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 (Sec. 3, Rule 38, Rules of Court).
VI. Order to answer
- If the petition is sufficient in form and substance, to justify
relief, the court in which it s filed, shall issue an order
requiring the adverse parties to answer the same within
fifteen (15) days from the receipt thereof (Sec. 4, Rule 38,
Rules of Court).
VII. Hearing of the petition
After the filing of the answer or the expiration of the period
Page116
to file the answer, the court shall hear the petition (Sec. 6,
Rule 38, Rules of Court).
VIII. Action of the court
- After the hearing and the court finds that the allegations
therein are not true, it shall dismiss the petition. If the court
finds the allegations to be true, it shall set aside the
judgment, final order or other proceeding complained of.
The case then shall stand as if such judgment, final order or
proceeding had never been rendered, issued or taken. The
court shall then proceed to hear and determine the case as if
a motion for a new trial or reconsideration had been granted
by it (Sec. 6, Rule 38, Rules of Court). This action of the
court applies to a petition for relief praying that the
judgment, final order or proceeding be set aside having been
entered or taken against petitioner by fraud, accident,
mistake or excusable negligence (Sec. 1, Rule 38, Rules of
Court).
- Where the prayer of petitioner is to give due course to his
appeal because he was prevented from taking an appeal
through fraud, accident, mistake or excusable negligence,
and the court finds the allegations of the petition to be true,
the court shall set aside the previous denial of the appeal
and shall give due course to the said appeal. It shall then
elevate the records of the appealed case as if a timely and
proper appeal had been made (Sec. 7, Rule 38, Rules of
Court).
B. Annulment of judgments or final orders
or resolutions (Rule 47)
I. Nature of the action
1. > action for annulment of judgment - a remedy in law
independent of the case where the judgment sought to be
annulled was rendered. The purpose of such action is to have
the final and executory judgment set aside so that there will
be a renewal of litigation. It is resorted to in cases where the
ordinary remedies of new trial, appeal, petition for relief
from judgment, or other appropriate remedies are no longer
available through no fault of the petitioner, and is based on
only two grounds: extrinsic fraud, and lack of jurisdiction or
denial of due process.
2. This remedy is available only where the ordinary remedies
of new trial, appeal, petition for relief or appropriate
remedies are no longer available through no fault of the
petitioner. Hence, if such remedies were not availed of due
to the petitioner's fault, the petition will be dismissed.
3. Like a petition for relief, an action for the annulment of a
judgment is a recourse equitable in character, allowed only
in exceptional cases as where there is no available or
adequate remedy.
4. The action is commenced by the filing of a verified
petition with the proper court. If it is the judgment or final
order of a Regional Trial Court which is sought to be
annulled, then the action shall be filed in the Court of
Appeals (Sec. 1, Rule 47, Rules of Court). If it is that of a
Municipal Trial Court, the verified petition shall be filed in
the Regional Trial Court having jurisdiction over the former
(Sec. 10, Rule 47, Rules of Court).
II. Grounds for annulment
1. The grounds for annulment of a judgment are:
(a) extrinsic fraud; and
(b) lack of jurisdiction (Sec. 2, Rule 47, Rules of Court).
2. A petition for annulment of judgment is an extraordinary
action. By virtue of its exceptional character, the action is
restricted exclusively to the grounds specified in the rules,
namely, (1) extrinsic fraud; and (2) lack of jurisdiction The
remedy may not be invoked where the party has availed
himself of the remedy of new trial, appeal, petition for relief
or other appropriate remedy and lost, or where he has failed
to avail himself of those remedies through his own fault or
negligence (Republic vs. "G" Holdings, Inc., 475 SCRA 608).
The rationale for the restriction is to prevent the
extraordinary action from being used by a losing party to
make a complete farce of a duly promulgated decision that
has long become final and executory.
III. Extrinsic fraud
1. An action to annul a judgment on the ground of fraud lies
only if the fraud is extrinsic or collateral in character. Fraud
is regarded as extrinsic where it prevents a party from having
a trial or from presenting his entire case to the court, or
where it operates upon matters pertaining not to the
judgment itself but to the manner in which it is procured.
The overriding consideration when extrinsic fraud is alleged
is that the fraudulent scheme of the prevailing litigant
prevented a party from having his day in court.
2. Stated in another way, extrinsic fraud exists when there is
a fraudulent act committed by the prevailing party outside of
the trial of the case, whereby the defeated party was
prevented from presenting fully his side of the case by
deception practiced on him by the prevailing party.
Fraud employed during within the trial is not covered by
the concept of extrinsic fraud. Hence, the offer in evidence
of spurious documents, although fraudulent, is not the fraud
that would sustain an action for annulment.
IV. Lack of jurisdiction
- Lack of jurisdiction as a ground for annulment of judgment
refers to either lack of jurisdiction over the person of the
defending party or over the subject matter of the claim.
Where the court has jurisdiction over the defendant and over
the subject matter of the case, its decision will not be voided
on the ground of absence of jurisdiction.
The petitioner must show not a mere grave abuse of
discretion but an absolute lack of jurisdiction.
A claim of grave abuse of discretion will support a petition
for certiorari under Rule 65 but it will not support an action
for annulment of a judgment.
V. Period for filing the action
- If based on extrinsic fraud, the action must be filed within
four (4) years from its discovery. If based on lack of
jurisdiction, the action must be brought before the action is
barred by laches or estoppel (Sec. 2, Sec. 4, Rule 47).
VI. Who may file the action
- The petitioner need not be a party to the judgment sought
to be annulled. What is essential is that the petitioner is one
who can prove his allegation that the judgment was obtained
by the use of fraud and collusion and that he was affected
Page117
thereby.
VII. Basic procedure
1. A petition for annulment of judgment filed in the Court of
Appeals shall observe the procedure in ordinary civil cases.
Should the Court of Appeals find a trial necessary, the
reception of evidence may be referred to a member of the
court or to a judge of a Regional Trial Court (Sec. 6, Rule 47,
Rules of Court). A petition filed in the Regional Trial Court
shall also be treated as an ordinary civil action (Sec. 10, Rule
47, Rules of Court).
2. Except under Sec. 4 of the 1991 Rules on Summary
Procedure where the court is clearly authorized to dismiss a
complaint outright even before summons is served, an
outright dismissal is not the usual procedure in ordinary civil
actions. In ordinary civil actions, the clerk of court first
issues the corresponding summons to the defendant upon the
filing of the complaint and the payment of the requisite legal
fees (Sec. 1, Rule 14, Rules of Court). The defendant may
then file a motion to dismiss pursuant to Rule 16 or the court
may make a motu proprio dismissal on certain grounds as
when it finds from the examination of the complaint that it
has no jurisdiction over the subject matter. An action for
annulment of a judgment, although treated as an ordinary
civil action, departs from the usual norm because the court,
upon the filing of the petition may make an outright dismissal
of the petition as long as it has specific reasons for its
dismissal. This dismissal may be made even before summons
is served. It is only when the court finds a prima facie merit
in the petition shall summons be served on the respondent
(Sec. 5, Rule 47, Rules of Court).
III. Effect of a judgment of annulment
1. A judgment of annulment based on lack of jurisdiction
shall have the effect of setting aside the questioned
judgment or final order and rendering the same null and void
but the judgment of annulment is without prejudice to the
refiling of the original action in the proper court (Sec. 7,
Rule 47, Rules of Court). The prescriptive period for the
refiling of the original action shall be deemed suspended
from the filing of such original action until the finality of the
judgment of annulment. This prescriptive period shall not
however, be suspended where the extrinsic fraud is
attributable to the plaintiff in the original action (Sec. 8,
Rule 47, Rules of Court).
2. Where the judgment or final order is set aside and
annulled on the ground of extrinsic fraud, the court, upon
motion, may order the trial court to try the case as if a
motion for new trial was granted (Sec. 7, Rule 47, Rules of
Court).
3. Aside from the setting aside of the judgment or final order
and other effects, the judgment of annulment may include
the award of damages, attorney's fees and other relief (Sec.
9, Rule 47, Rules of Court).
IV. Application of Rule 47
1. Rule 47 governs the annulment by the Court of Appeals of
judgments or final orders and resolutions in civil actions of
Regional Trial Courts (Sec. 1, Rule 47, Rules of Court).
2. Sections 2, ,l, 4, 7, 8 and 9 of ltulc 47 shall likewise apply
to annulment of judgments or final. orders of a Municipal
Trial Court by the Regional Trial Court having jurisdiction of
the former. This action shall be treated as an ordinary civil
action (Sec. 10, Rule 47, Rules of Court).
V. Annulment of judgments of quasi judicial bodies
1. In Macalalag vs. Ombudsman, the Court ruled that Rule 47
of the 1997 Rules of Civil Procedure on annulment of
judgments or final orders and resolutions covers annulment
of the judgments of Regional Trial Courts by the Court of
Appeals.
- The silence of B.P. B1g.129 on the jurisdiction of the Court
of Appeals to annul judgments or final orders and resolutions
of quasi judicial bodies like the DARAB indicates its lack of
such authority.
2. A party aggrieved by a judgment or resolution of a quasi
judicial body enumerated under Rule 43 may avail of a
petition for review to the Court of Appeals under said rule
and not an action to annul the judgment or resolution.
C. Certiorari (Rule 65)
I. Nature of the remedy
l. > certiorari - called a "supervisory or superintending writ,"
this remedy is availed of to annul or modify the proceedings
of a tribunal, board or officer exercising judicial or extra
judicial functions which has acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to
lack of jurisdiction. For this petition to prosper, it is
necessary to allege and show that there is no more appeal, or
any other plain, speedy, and adequate remedy in the
ordinary course of law. As a rule, where appeal is available,
certiorari cannot be availed of unless it can be shown that
appeal is not speedy, or adequate. Hence, the basic question
to be considered is: Does the petitioner have the remedy of
appeal or any other remedy? If the answer is in the
affirmative, certiorari is not available, as a n4le. However,
even if appeal is available, if it is not adequate, speedy or
equally beneficial as certiorari, a petition for certiorari may
be availed of.
2. The task of a court in a certiorari proceeding is to
determine whether the lower court committed grave abuse
of' discretion. It is a remedy narrow in scope. It is not a
general utility tool in the legal workshop. Its function is to
raise only questions of jurisdiction and no other. It cannot be
used for any other purpose. Do not file certiorari if your
purpose is to raise a factual issue or to ask for a re-
evaluation of the facts and the evidence.
3. The sole object of the writ is to correct errors of
jurisdiction or grave abuse of discretion. The phrase `grave
abuse of discretion' has a precise meaning in law, denoting
abuse of discretion "too patent and gross as to amount to an
evasion of a positive duty, or a virtual refusal to perform the
duty enjoined or act in contemplation of law, or where the
power is exercised in an arbitrary and despotic manner by
reason of passion and personal hostility." It does not
encompass an error of law. Nor does it include a mistake in
the appreciation of the contending parties' respective
Page118
evidence or the evaluation of their relative weight.
The Court cannot be tasked to go over the proofs presented
by the parties and analyze, assess and weigh them all over
again to ascertain if the trial court or quasi judicial agency
and the appellate court were correct in according superior
credit to this or that piece of evidence of one party or the
other. The sole office of a writ of certiorari is the correction
of errors of jurisdiction including the commission of grave
abuse of discretion amounting to lack of jurisdiction, and
does not include the review of public respondent's evaluation
of the evidence and the factual findings based thereon.
4. The petition shall be filed not later than 60 days from
notice of the judgment, order or resolution. In case a motion
for reconsideration was filed, the 60-day period starts not
from the notice of judgment but from notice of the denial of
the motion for reconsideration.
II. Motion for reconsideration
1. A petitioner must first exhaust all other remedies available
before resorting to certiorari. For example, if he can file a
motion for reconsideration, then he must do so instead of
certiorari.
Certiorari is not a substitute for a lost appeal. The
remedies of appeal and certiorari are mutually exclusive and
not alternative or successive because they do not have
identical elements and requisites.
2. The general rule is that before filing a petition for
certiorari under Rule 65 of the Rules of Court, the petitioner
is mandated to comply with a condition precedent: the filing
of a motion for reconsideration of the assailed order, and the
subsequent denial of the court a quo. It must be stressed
that a petition for certiorari is an extraordinary remedy and
should be filed only as a last resort. The filing of a motion for
reconsideration is intended to afford the public respondent
an opportunity to correct any actual error attributed to it by
way of re-examination of the legal and factual issues.
However, the rule is subject to the following recognized
exceptions:
(a) where the order is a patent nullity, as where the court
a quo has no jurisdiction;
(b) where the questions raised in the certiorari proceeding
have been duly raised and passed upon by the lower court,
or are the same as those raised and passed upon in the
lower court;
(c) where there is an urgent necessity for the resolution of
the question and any further delay would prejudice the
interests of the Government or of the petitioner or the
subject matter of the action is perishable;
(d) where, under the circumstances, a motion for
reconsideration would be useless;
(e) where petitioner was deprived oi' due process and
there is extreme urgency for relief;
(f) where, in a criminal case, relief from an order of arrest
is urgent and the granting of such relief by the trial court
is improbable;
(g) where the proceedings in the lower court are a nullity
for lack of due process;
(h) where the proceedings was ex paste or in which the
petitioner had no opportunity to object; and
(i) where the issue raised is one purely of law or public
interest is involved.
- For example, if the trial court issues a writ of preliminary
injunction despite the absence of proof of a legal right and
the injury sustained by the plaintiff, the writ is a nullity.
III. Certification against forum shopping
- Rule 65 also requires the pleader to submit a certification
against forum shopping.
IV. Observance of hierarchy of courts
- In filing for a petition for certiorari, the hierarchy of courts
must be observed. Hence, even though the Supreme Court
has concurrent jurisdiction with the Court of Appeals and the
Regional Trial Court to issue a writ of mandamus, prohibition
or certiorari, litigants are advised against taking direct
recourse to the Supreme Court without initially seeking
proper relief from the lower courts.
D. Collateral Attack of a Judgment
I. Distinction between a direct from a collateral attack
A direct attack of a judgment made through an action
or proceeding the main object of which is to annul, set
aside or enjoin the enforcement of such judgment if not
yet carried into effect; or if the property has been
disposed of, the aggrieved party may sue for recovery.
collateral attack made when, in another action to
obtain a different relief, an attack on the judgment is
made as an incident in said action. This is proper only
when the judgment, on its face, is null and void, as
where it is patent that the court which rendered said
judgment has no jurisdiction .
Examples: A petition for certiorari under Rule 65 is a
direct attack. It is filed primarily to have an order
annulled. An action for annulment of a judgment is
likewise a direct attack on a judgment. A motion to dismiss
a complaint for collection of a sum of money filed by a
corporation against the defendant on the ground that the
plaintiff has no legal capacity to sue is a collateral attack
on the corporation. A motion to dismiss is incidental to the
main action for a sum of money. It is not filed as an action
intended to attack the legal existence of the plaintiff.
CHAP. 11: EXECUTION OF JUDGMENTS
I. Meaning of execution
> Execution - the remedy afforded for the satisfaction of a
judgment. It is the fruit and end of the suit.
II. Part of the judgment to be executed
1. The dispositive portion (also called "fallo") of the judgment
is that part which is subject to execution (Sec. 8, Rule 39,
Rules of Court).
2. Jurisprudence considers this portion of the judgment as
that which finally invests rights upon the parties, sets
conditions for the exercise of those rights, and imposes the
corresponding duties and obligations. Hence, if there is a
conflict between the dispositive portion of the decision and
the body thereof, the dispositive portion controls irrespective
of what appears in the body.
III. When execution shall issue
1. Execution is a matter of right upon the expiration of the
Page119
period to appeal and no appeal was perfected from a
judgment or order that disposes of the action or proceeding
(Sec. 1, Rule 39, Rules of Court). Once a judgment becomes
final and executory, the prevailing party can have it
executed as a matter of right, and the issuance of a writ of
execution becomes the ministerial duty of the court. Once a
decision becomes final and executory, it is the ministerial
duty of the presiding judge to issue a writ of execution
except in certain cases, as when subsequent events would
render execution of judgment unjust.
2. The above principles have been consistently applied. Thus,
in a subsequent ruling the Court declared: "Once a judgment
becomes final, it is basic that the prevailing party is entitled
as a matter of right to a writ of execution the issuance of
which is the trial court's ministerial duty, compellable by
mandamus."
3. Judgments and orders become final and executory by
operation of law and not by judicial declaration. The trial
court need not even pronounce the finality of the order as
the same becomes final by operation of law. Its finality
becomes a fact when the reglementary period for appeal
lapses, and no appeal is perfected within such period.
IV. How execution shall issue
1. "Execution shall issue. . . on motion" as clearly set forth
under Sec. 1 of Rule 39. There is therefore, a need to file a
motion for the issuance of a writ of execution. In Lou vs.
Siapno, it was ruled that even in judgments which are
immediately executory, "there must be a motion to that
effect and a hearing called for the purpose." Also, "under
Supreme Court Circular No. 24-94, a motion for the issuance
of a writ of execution must contain a notice to the adverse
party."
2. A motion for the issuance of a writ of execution shall
contain a notice to the adverse party. A motion which does
not contain a notice of hearing of the time and place for the
hearing of the motion as required by Sees. 4 and 5 of ltule 15
of the Rules of Court, is a worthless piece of paper which the
clerk has no right to receive and which the court has no
authority to act upon.
Because of the present phraseology of Sec. 1 of Rule 39,
rulings like those made in De Mesa vs. Court ofAppeals to the
effect that where execution is a matter of right, the
judgment debtor need not be given an advanced notice of
the application for execution nor be afforded a prior hearing
thereon, must necessarily be deemed abandoned.
V. Where application for execution made
1. Execution shall be applied for in the court of origin. If an
appeal has been duly perfected and finally resolved, the
execution may be applied for also in the court of origin on
motion of the judgment obligee (Sec. 1, Rule 39, Rules of
Court). In filing a motion for execution of an appealed
decision, there is no need to wait for the records of the case
to be remanded to the court of origin. All that is required is
for the appeal to have been duly perfected and finally
resolved before execution may be applied for. This is
because when the judgment obligee files a motion for
execution in the court of origin, all he has to do is to attach
the certified true copies of (a) the judgment of the appellate
court, and (b) the entry of the said judgment (Sec. 1, Rule
39, Rules of Court) even if the records have not as yet been
remanded to the court of origin. This procedure prevents
needless delays in the execution of the judgment.
2. If for whatever reason, execution cannot be had with
dispatch in the court of origin, the new rules likewise afford
the judgment obligee a remedy. He may file a motion with
the appellate court to direct the court of origin, in the
interest of justice, to issue the writ of execution (Sec. 1,
Rule 39, Rules of Court).
VI. No appeal from an order of execution
- No appeal may be taken from an order of execution (Sec.
1[f, Rule 39, Rules of Court; Reliance Surety and Insurance
Co., Inc. vs. Amante, Jr., 462 SCRA 399). While it may be
argued that an order of execution is in essence a final order,
the order may not be appealed from by express provisions of
the Rules. A party desiring to assail an order of execution
may instead file an appropriate special civil action under
Rule 65 of the Rules of Court (Sec. 1, Rule 41, Rules of
Court).
VII. Nature of writ of execution
1. The writ of execution is issued in the name of the Republic
of the Philippines and shall state (a) the name of the court
which granted the motion, (b) the case number, (c) the
dispositive portion of the judgment or order subject of the
execution, and (d) shall require the sheriff or other proper
officer to whom it is directed to enforce the writ according
to its terms (Sec. 8, Rule 39, Rules of Court).
2. The writ of execution should conform to the dispositive
portion of the decision to be executed and the execution is
void if it is in excess of and beyond the original judgment or
award for it is a settled general principle that a writ of
execution must conform strictly to every essential particulars
of the judgment promulgated.
3. The writ may not vary the terms of the judgment to be
executed. Thus, if the judgment does not provide for the
payment of interest, the writ of execution cannot modify the
judgment by requiring the judgment obligor to pay interest.
That part of the writ imposing interest is void. An order of
execution which does not substantially conform to the
dispositive portion of the decision sought to be executed or
which varies or goes beyond the terms of the judgment it
seeks to enforce is null and void.
4. "That a writ of execution must conform to the judgment
which is to be executed, substantially to every essential
particular thereof, it is settled. It may not thus vary the
terms of the judgment it seeks to enforce, nor go beyond its
terms. Where the execution is not in harmony with the
judgment which gives it life and exceeds it, it has no validity.
- Thus, in the above cited case, where a contract has been
declared by final judgment by the Supreme Court as
perfected and valid yet is still unimplementable because of
the absence of approval by the President of the Philippines, a
writ of execution directing the implementation of the
contract is void.
- Said the Court: "In issuing the writ of execution, the trial
court in effect ordered the enforcement of the contract
Page120
despite the High Court's unequivocal pronouncement that
albeit valid and perfected, the contract shall become
effective only upon approval by the President." Indubitably,
the alias writ of execution varied the tenor of this Court's
judgment, went against essential portions and exceeded the
terms thereof.
- "The execution directed by the trial court being out of
harmony with the judgment, legal implications cannot save it
from being found to be fatally defective.
5. After a final judgment has been rendered by the Supreme
Court, or even by a trial court for that matter, it is the duty
of the court to enforce the judgment according to its terms.
In other words, where the judgment of an appellate court
has become final and executory and is returned to the lower
court, the only function of the latter is the ministerial act of
carrying out the decision and issuing the writ of execution.
VIII. Lifetime of the writ of execution (Bar 1995)
- The writ shall continue in effect during the period within
which the judgment may be enforced by motion (Sec. 14,
Rule 39, Rules of Court). Hence, the writ is enforceable
within the five-year period from entry of judgment as
provided for in Sec. 6 of Rule 39 because within that period,
the writ may be enforced by motion. Under the former Sec.
11 of Rule 39 of the old Rules, the lifetime of the writ was
sixty (60) days from the receipt of the writ by the officer
required to enforce it.
IX. When execution will be denied
1. After a judgment has become final and executory, the rule
is that execution becomes the ministerial duty of the court.
2. The rule however is far from absolute. The trial court may
refuse to have the judgment executed in certain cases, as:
(a) When the judgment has already been executed by the
voluntary compliance thereof by the parties
- Note: The parties, despite the existence of a judgment,
are at liberty to novate a judgment by entering into a
compromise. A compromise is a contract recognized by
substantive law (Art. 2028, Civil Code of the Philippines).
(b) When the judgment has been novated by the parties.
- Note: The parties, despite the existence of a judgment,
are at liberty to novate a judgment by entering into a
compromise. A compromise is a contract recognized by
substantive law.
(c) When a petition for relief is filed and a preliminary
injunction is granted in accordance with Sec. 5 of Rule 38;
(d) When the judgment sought to be executed is
conditional (Co Unjieng vs. Hijos Mabalacat Sugar
Company, 70 Phil. 605) or when the judgment sought to be
executed is incomplete
(e) When facts and circumstances transpire which would
render execution inequitable or unjust
(f) When execution is sought more than five (5) years from
its entry without the judgment having been revived
(g) When execution is sought against property exempt from
execution under Sec. 13 of Rule 39; or
(h) When refusal to execute the judgment has become
imperative in the higher interest of justice
X. Quashal of a writ of execution
- A writ of execution may be quashed on certain grounds such
as:
(a) when the writ of execution varies the judgment;
(b) when there has been a change in the situation of the
parties making execution inequitable or unjust;
(c) when execution is sought to be enforced against
property exempt from execution;
(d) when it appears that the controversy has never been
submitted to the judgment of the court;
(e) when the terms of the judgment are clear enough and
there remains room for interpretation thereof;
(f) when it appears that the writ of execution has been
improvidently issued;
(g) when it appears that the writ of execution is defective
in substance, or is issued against the wrong party, or that
the judgment debt has been paid or otherwise satisfied, or
die writ was issued without authority.
XI. Duty of sheriff
- Well-settled is the rule that a sheriff's duty in the execution
of the writ is purely ministerial; he is to execute the order of
the court strictly to the letter. He has no discretion whether
to execute the judgment or not. When a writ is placed in the
hands of the sheriff, it is his duty, in the absence of any
instructions to the contrary, to proceed with reasonable
celerity and promptness to implement it in accordance with
its mandate. For it is only by doing so that he could ensure
that the order is executed without undue delay. It cannot be
overemphasized that sheriffs play an important part in the
administration of justice, because they are tasked to execute
the final judgments of courts. If not enforced, such decisions
are empty victories on the part of the prevailing parties.
Indeed, the execution of a final judgment is "the fruit and
end of the suit and is the life of the law."
XII. Modes of execution of a judgment (Bar 1982; 1987; 1997)
1. There are two modes of executing a final and executory
judgment, to wit:
(a) execution by motion if the enforcement of the
judgment is sought within five (5) years from the date of
its entry; and
(b) execution by independent action if the five-year period
has elapsed and before it is barred by the statute of
limitations (Sec. 6, Rule 39, Rules of Court).
2. A writ of execution issued by motion of the prevailing
party after five (5) years from the date of entry of the
judgment is null and void. There is then a need for the
prevailing party to file an independent action for the revival
of the judgment before the action is barred by the statute of
limitations.
3. It was held that if the writ of execution was issued and the
levy made within five years from the entry of the judgment,
the auction sale may be made even after the fiveyear period.
The sale of the property and the application of the proceeds
Page121
are merely the means to carry out the writ of execution and
a levy already validly made. Accordingly, the levy is the
essential act by which the property is set apart for the
satisfaction of the judgment. The sale must however, be
made within ten years during which the judgment can be
enforced. The ten-year period commences to run from the
finality of the judgment which is the period within which the
judgment can be enforced (Art. 1152 in relation to Art.
1144[31, Civil Code of the Philippines). Because under the
Rules, the date of the finality of the judgment or final order
shall be deemed to be the date of its entry, (Sec. 2, Rule 36,
Rules of Court) the period shall run also from the date of
entry of the judgment.
XIII. Revival of judgment (Bar 1997)
1. The action to revive a judgment must be filed within ten
(10) years from the date the judgment became final. An
action to enforce a judgment prescribes in ten (10) years
from
the finality of the judgment (Art. 1144[31 in relation to Art.
1152, Civil Code of the Philippines). This action mentioned in
Sec. 6 of Rule 39 presupposes that the judgment was not
executed on motion by the prevailing party despite the lapse
of five years from the entry of the judgment hence, the need
for the enforcement of the judgment by action.
- Caveat: This action to revive a judgment in Sec. 6 of Rule
39 is not the "revival of judgment" referred to in Sec. 34 of
Rule 39 where the terms are actually used in the Rules. In
the latter rule, the revival of judgment is not sought for by
the judgment obligee or the prevailing party. It is sought for
by the purchaser of a real property that was sold in an
execution sale. Despite being the purchaser, he was not able
to acquire possession of the property bought by him or She
ever did acquire possession, he was evicted therefrom for
one reason or another as when the judgment under which the
sale was conducted was reversed, or the property sold to him
was actually exempt from execution, or there was a rightful
claimant to the property. The purchaser, under such
situation is allowed by the Rules to file a motion in the same
action or in a separate action for the purpose of recovering
from the judgment obligee the price he paid, (including
interest) for the property in the execution sale. He may as an
option also file a motion to revive the judgment in his name
to recover the price with interest.
- In Sec. 34, the judgment has actually been executed unlike
in Sec. 6 where the judgment has not been executed on
motion within the five-year period set by the Rules. Sec. 34
seeks to revive the judgment that was already executed not
by filing an independent action unlike the procedure required
to enforce a judgment by action under Sec. 6.
2. When a judgment is revived such revived judgment may
also be enforced by motion within five (5) years from the
date of its entry and thereafter by action also before it is
barred by the statute of limitations (Sec. 6, Rule 39, Rules of
Court).
3. Be it remembered that a revived judgment is deemed a
new judgment separate and distinct from the original
judgment. It is not a continuation of the original judgment.
- Jurisprudence declares: "The action to revive the judgment
is a new action and results in a new judgment constituting a
new cause of action with a new period of limitations. Hence,
the ten (10) year period to revive the revived judgment shall
commence to run from the date of the finality of the revived
judgment and not from the date of finality of the old,
original judgment."
4. An action to revive a judgment is an action incapable of
pecuniary estimation and should be filed with the Regional
Trial Court even if the judgment to be revived was rendered
by a Municipal Trial Court.
Illustration (Bar 1.997)
A, a resident of Dagupan City, secured a favorable
judgment in an ejectment case against X, a resident of
Quezon City, from the Metropolitan Trial Court of Manila.
The judgment entered on June 15, 1991, had not as yet been
executed.
(a) In July 1996, A decided to enforce the judgment of the
Metropolitan Trial Court of Manila. What is the procedure to
be followed by A in enforcing the judgment?
(b) xxx
Suggested answer.
A may file an action to revive the judgment. Under
the Rules, a judgment may be executed by mere motion only
within five (5) years from the entry ofjudgment. Since the
five-year period has elapsed, an action to revive the
judgment is the proper remedy (Sec. 6, Rule 39, Rules of
Court).
XIV. When the five-year period is interrupted (Bar 1993)
1. While the rule is that the execution of a judgment can no
longer be effected by mere motion after five (5) years from
the date of entry of the judgment, the Court in certain
instances, allowed execution of the judgment by mere
motion despite the lapse of the five-year time line. In many
instances, the delays in the execution of the judgment were
through causes clearly attributable to the judgment debtor
as when he employs legal maneuvers to block the
enforcement of the judgment. Delays attributable to the
defendant have the effect of suspending the running of the
prescriptive period for the enforcement of the judgment.
2. The period may also be interrupted by the agreement of
the parties to suspend the enforcement of the judgment.
XV. When the five and ten-year periods do not apply
- The periods do not apply to (a) special proceedings, such as
land registration and cadastral cases, wherein the right to
ask for a writ of possession does not prescribe (Rodil vs.
Benedicto, 95 SCRA 137); (b) judgments for support which do
not become dormant and which can always be executed by
motion despite lapse of the five-year period because the
obligation is a continuing one and the court never loses
jurisdiction to enforce the same.
XVI. Stay of execution of a judgment; exceptions
l. As a rule, an appeal perfected in due time stays the
execution of a judgment. There are however, judgments, the
execution of which is not stayed by a pending appeal. These
judgments may be classified into two general categories,
namely:
(a) Those judgments which by express provision of the rules
Page122
are immediately executory and are not stayed by an appeal
(Sec. 4, Rule 39, Rules of Court); and
(b) Those judgments that have become the object of
discretionary execution (Sec. 2, Rule 39, Rules of Court).

XVII. Judgments not stayed by appeal
1. The following judgments by express provision of the Rules
are immediately executory, enforceable upon their rendition
and shall not be stayed by an appeal taken therefrom:
(a) judgment for injunction;
(b) judgment for receivership;
(c) judgment for accounting; and
(d) judgment for support (Sec. 4, Rule 39, Rules of Court).
2. The rule however, that the above judgments are
immediately executory and not stayed by an appeal, is not
absolute because the court is authorized to order otherwise.
Also on appeal therefrom, the appellate court in its
discretion nmy lnlrke rlrl order, suspending, modifying,
restoring or granting the iniunction, receivership, accounting
or award of' support (Sec. 4, Rule 39, Rules of Court).
3. Under Rule 70, a judgment rendered against the defendant
in an action for forcible entry and unlawful detainer is
likewise immediately executory upon motion (Sec. 19, Rule
70, Rules of Court).
4. Even if the above judgments are immediately executory,
"there must be a motion to that effect and a hearing called
for the purpose."
XVIII. Discretionary execution (Bar 1991; 1995)
1. The concept of discretionary execution constitutes an
exception to the general rule that a judgment cannot be
executed before the lapse of the period for appeal or during
the pendency of an appeal. Under Sec. 1 of Rule 39,
execution shall issue only as matter of right upon a judgment
or final order that finally disposes of the action or proceeding
upon the expiration of the period to appeal therefrom if no
appeal has been duly perfected.
2. A discretionary execution is called "discretionary" precisely
because it is not a matter of right. The execution of a
judgment under this concept is addressed to the
discretionary power of the court.
Unlike judgments that are final and executory, a judgment
subject to discretionary execution cannot be insisted upon
but simply prayed and hoped for because a discretionary
execution is not a matter of right.
3. Be it noted that discretionary execution does not require a
final and executory judgment but simply a "final" judgment
or order.
XIX. Requisites for discretionary execution
- Under Sec. 2 of Rule 39, for the court to allow an execution
even before the expiration of the period for appeal or
pending appeal there must be compliance of the following
requisites:
(a) there must be a motion filed by the prevailing party
with notice to the adverse party;
(b) there must be a hearing of the motion for discretionary
execution;
(c) there must be good reasons to justify the discretionary
execution; and
(d) the good reasons must be stated in a special order
(Sec. 2, Rule 39, Rules of Court).
XX. Discretionary execution is to be strictly construed
1. A discretionary execution like an execution pending appeal
must be strictly construed because it is an exception to the
general rule. It is not meant to be availed of routinely
because it applies only in extraordinary circumstances.
It should be interpreted only insofar as the language
thereof fairly warrants, and all doubts should be resolved in
favor of the general rule.
2. Where the execution is not in conformity with the rules,
the execution is null and void.
XXI. Good reasons
1. The existence of good reasons as justifications for
discretionary execution is essential. The good reasons are
what confer discretionary power upon the court to issue a
writ of execution pending appeal.
2. Certiorari will lie against an order granting execution
pending appeal where the same is not founded upon good
reasons.
3. Sec. 2 of Rule 39 does not cite examples of the good
reasons that would justify a discretionary execution. What
constitutes a good reason therefore, is left to the sound
exercise of judicial discretion. The following, among others,
have been given by jurisprudence as good reasons:
(a) The proven insolvency of the judgment debtor
(b) The purpose of preventing irreparable injury to the
consumers of an electric cooperative which needs the
amount of the judgment for its operations and the repair
of its transmission lines, electric posts, transformers,
accessories, towers, and fixtures within its coverage area
(c) The fact that the goods subject of the judgment will
perish or deteriorate during the pendency of the appeal, a
fact which would render the judgment in favor of the
prevailing party ineffective
(d) The failure in an unlawful detainer case to make the
required periodic deposits to cover the amount of rentals
due under the contract or for payment of the reasonable
value of the use and occupation of the premises, or the
failure to post a supersedeas bond may be good reasons to
allow execution pending appeal (Sec. 19, Rule 70, Rules of
Court).
Illustration (Bar 1995)
In an illegal detainer case, the Municipal Trial Court
ruled in favor of the plaintiff-lessor who, not being satisfied
with the increase of rentals granted him by the court,
appealed praying for further increase thereof. Defendant-
lessee did not appeal.
(a) Can the plaintiff-lessor as appellant, move for execution
pending appeal?
Suggested answer:
He can move for execution pending appeal. To
justify the motion it must be shown that the defendant failed
to make the required periodic deposits to cover the amount
of rentals due under the contract or for payment of the
reasonable value of the use and occupation of the premises,
Page123
or failed to post a supersedeas bond. These are good reasons
to allow execution pending appeal (Sec. 19, Rule 70, Rules of
Court).
XXII. Frivolous appeal as reason for discretionary execution
l. Where the sole reason given by the trial court in
disallowing an appeal is that the appeal is frivolous and
dilatory, execution pending appeal cannot be justified
because the authority to disapprove an appeal pertains to
the appellate court.
Mere allegation that the appeal is dilatory is not a good
reason to merit discretionary execution.
2. The rule has been subsequently reiterated in a case of
recent vintage. The Court stressed that the trial court is not
justified to order execution pending appeal, on its assertion
that the appeal of the respondent is a dilatory tactic. It is
not for the trial judge to determine the merit of a decision
he rendered as this is the role of the appellate court. Hence,
it is not within the competence of the trial court, in resolving
a motion for execution pending appeal, to rule that the
appeal is patently dilatory and rely on the same as basis for
finding good reasons to grant the motion. Only an appellate
court can appreciate the dilatory intent of an appeal as an
additional good reason in upholding an order for execution
pending appeal.
XXIII. Posting of bond as reason for discretionary execution
(Bar 1991)
l. The rule is now settled that the mere filing of a bond by
the successful party is not in itself a good reason for ordering
execution pending appeal, because it is the combination of
circumstances which is the dominating reason that would
justify immediate execution, the bond being only an
additional factor.
2. If the mere posting of a bond is sufficient to justify
immediate execution pending appeal, judgments would be
executed immediately, as a matter of course, once rendered,
if all that the prevailing party needed was to post a bond.
Immediate execution will then become the general rule
rather than the exception.
XXIV. Financial distress as reason for discretionary execution
- The fact that the prevailing party is in financial distress is
also not in itself a good reason to justify execution pending
appeal.
XXV. Where to file an application for discretionary execution
- The motion for discretionary execution shall be filed with
the trial court while (a) it has jurisdiction over the case and
while (b) it is in possession of either the original record or
the record on appeal. After the trial court has lost
jurisdiction, the motion for execution pending appeal may be
filed in the appellate court (Sec. 2, Rule 39, Rules of Court).
XXVI. Remedy where the judgment subject to discretionary
execution is reversed or annulled
- 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 (Sec. 5, Rule 39, Rules of Court). There is no
need of specifying in the judgment that there should be
restitution because restitution is expressly provided for in the
Rules. Said rule should apply in the absence of a disposition
to the contrary in the judgment of the appellate court.
XXVII. Execution in case the judgment obligee dies
- The death of the judgment obligee will not prevent the
execution of the judgment. In case the judgment obligee
dies, execution may issue upon the application of his
executor, administrator or successor in interest (Sec. 7[a]
Rule 39, Rules of Court).
XXVIII. Execution in case the judgment obligor dies
- The death of the judgment obligor will not likewise prevent
execution of the judgment. In case the judgment obligor
dies, execution shall still go on because under the Rules,
execution shall issue against his executor or administrator, if
the judgment be for the recovery of real or personal property
(Sec. 7[b], Rule 39, Rules of Court). If the death occurs after
execution is actually levied upon any of his property, the
same may be sold for the satisfaction of the judgment
obligation. If there be any surplus after the sale, the officer
making the sale shall account to the corresponding executor
or administrator (Sec. 7[c], Rule 39, Rules of Court).
XXIX. How to execute judgments for money
- In executing a judgment for money, the sheriff shall follow
the following steps:
(a) Demand from the judgment obligor the immediate
payment of the full amount stated in the judgment
including the lawful fees in cash, certified check payable
to the judgment obligee or any other form of payment
acceptable to him (Sec. 9[a], Rule 39, Rules of Court). In
emphasizing this rule, the Supreme Court held that in the
execution of a money judgment, the sheriff is required to
first make a demand on the obligor for the immediate
payment of the full amount stated in the writ of execution
(b) If the judgment obligor cannot pay all or part of the
obligation in cash, certified check or other mode of
payment, the officer shall levy upon the properties of the
judgment obligor. The judgment obligor shall have the
option to choose which property or part thereof may be
levied upon. 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
personal judgment but the sheriff shall sell only so much of
the property that is sufficient to satisfy the judgment and
lawful fees (Sec. 9[b], Rule 39, Rules of Court).
(c) The officer may levy on the debts due the judgment
debtor including bank deposits, financial interests,
royalties, commissions and other personal property not
capable of manual delivery in the possession or control of
third parties. The process of effecting this form of levy is
called garnishment.
XXX. Garnishment of debts and credits
- Garnishment shall be made by (a) serving notice upon the
third person having in possession or control of the credits in
favor of the judgment obligor; (b) the third person or
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 to
Page124
satisfy the judgment. If sufficient, the garnishee shall deliver
the amount in cash or certified check shall be delivered
directly to the judgment obligee within ten (10) working days
from service of notice on said garnishee. The lawful fees
shall be directly paid to the court. If the amount is
insufficient, the garnishee shall make a report as to the
amount he holds for the judgment obligor (Sec. 9, Rule 39,
Rules of Court).
XXXI. Execution of a judgment for the performance of a
specific act
1. If the judgment requires a person to perform a specific
act, said act must be performed but if the party fails to
comply within the specified time, the court may direct the
act to be done by someone at the cost of the disobedient
party and the act when so done shall have the effect as if
done by the party (Sec. 10[a], Rule 39, Rules of Court).
2. If the judgment directs a conveyance of real or personal
property, and said property is in the Philippines, the court in
lieu of directing the 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 (Sec. 10[a], Rule 39, Rules of Court).
XXXII. Execution for a judgment for the delivery or restitution
of real property (Bar 1995)
1. An example of this kind of judgment is one rendered in an
action for ejectment. In such a case, the officer shall
demand from the judgment obligor to vacate peaceably
within three (3) working days, and restore possession of the
property to the judgment obligee (Sec. 10[c], Rule 39, Rules
of Court). Note that in both the Rules and jurisprudence, the
writ of execution in ejectment cases cannot be enforced on
the same date the sheriff receives the writ. The three (3)-
day notice is required even if judgment against the
defendant is immediately executory under Sec. 19 of Rule 70.
2. Immediacy of execution does not mean instant execution.
When a decision is immediately executory it does not mean
dispensing with the required three (3)-day notice. A sheriff
who enforces the writ without the required notice is running
afoul with the rules.
3. After the lapse of the period given and the judgment
obligor refuses to vacate, then the sheriff may enforce the
writ by ousting the judgment obligor and all the persons
claiming a right under him, 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 oblige in possession of such property (Sec.
10[c], Rule 39, Rules of Court). This provision authorizes the
bodily removal of the defendant and his belongings.
XXXIII. Contempt is not a remedy
- The mere refusal or unwillingness of the judgment debtor
to vacate the property is not a sufficient ground to hold him
in contempt. The writ of possession was not directed to the
judgment debtor but to the sheriff who was directed to
deliver the property to the prevailing party. As the writ did
not command the judgment debtor to do anything, he cannot
be guilty of the acts described in Rule 71 which is
"disobedience of or resistance to a lawful writ, process,
order, judgment or command of any court." The proper
procedure is not for the court to cite the debtor in contempt.
What the officer should do is to dispossess him of the
property and if after the dispossession, the judgment debtor
should execute acts of ownership or possession or in any
manner disturb the possession of the judgment creditor, then
and only then may he be punished for contempt.
XXXIV. Removal of improvements on the property subject of
execution
- When the property subject of execution contains
improvements constructed thereon by the judgment obligor
or his agent, the officer shall not demolish, destroy or
remove them. These acts may only be done by the officer
upon a special order by the court which will be issued upon
motion by the judgment obligee and after hearing and only
after the judgment obligor fails to remove them within a
reasonable time fixed by the court (Sec. 10[e], Rule 39, Rules
of Court).
XXXV. Property exempt from execution (Bar 1981)
1. There are certain properties exempt from execution
enumerated under Sec. 13 of Rule 39, to wit:
(a) The judgment obligor's family home as provided by law,
or the homestead in which he resides, and the land
necessarily used in connection therewith;
(b) Ordinary tools and implements personally used by him
in his trade, employment, or livelihood;
(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 (Bar 1981);
(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;
(1) The right to receive legal support, or money or
property obtained as such support, or any pension or
gratuity from the government; and
(m) Properties specially exempted by law (Sec. 13, Rule
39, Rules of Court).
2. The rule provides that no other property is exempt from
execution (Sec. 13, Rules of Court). The enumeration
therefore, is exclusive.
Page125
XXXVI. When the property mentioned is not exempt from
execution
- If the property mentioned in Sec. 13 of Rule 39 is the
subject of execution because of a judgment for the recovery
of the price or upon a judgment of foreclosure of a mortgage
upon the property, the property is not exempt from
execution (Sec. 13, Rule 39, Rules of Court).
XXXVII. Proceedings when property levied upon is claimed by
third persons; terceria (Bar 1982; 1984; 1993)
1. A person claiming a property levied upon may execute an
affidavit of his title or right of possession over the property.
Such affidavit must state the grounds of such right or title.
The affidavit shall be served upon the officer making a levy
and a copy thereof must also be served upon the judgment
obligee (Sec. 16, Rule 39, Rules of Court). This remedy of the
claiming party is also called "terceria."
- The officer served with the affidavit of the claiming third
person shall not be bound to keep the property subject of the
claim, unless the judgment obligee, on demand of the
officer, files a bond approved by the court to indemnify the
claimant in a sum not less than the value of the property
levied upon. 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 (Sec. 16, Rule 39,
Rules of Court). The officer shall not be liable to any third-
party claimant for damages for the taking or keeping of the
property, if such bond is filed (Sec. 16, Rule 39, Rules of
Court).
2. Said the Supreme Court in Ching vs. Court ofAppeals:
". . . 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 claimant's 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.
3. Other remedies may also be availed of by the thirdparty
claimant because nothing contained in the Rules "shall
prevent the claiming third person from vindicating his claim
to the property in a separate action. . ." (Sec. 16, Rule 39,
Rules of Court; Bar 1982, 1983; 1984; 1993).
- "The second paragraph of Section 16, Rule 39 of the Rules
of Court provides:
x x x 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 separate
action against a third-party claimant who filed a frivolous or
plainly spurious claim.
- "Clearly, a third-party claimant or any third person may
vindicate his claim to his property wrongfully levied by filing
a proper action which is distinct and separate from that in
which the judgment is being enforced. Such action would
have for its object the recovery of the possession of the
property seized by the sheriff, as well as damages resulting
from the allegedly wrongful seizure and detention thereof
despite the third-party claim; and it may be brought against
the sheriff, of course, and such other parties as may be
alleged to have colluded with the sheriff in the supposedly
wrongful execution proceedings, such as the judgment
creditor himself.
- "The same paragraph also provides a remedy to a judgment
obligee when a frivolous and plainly spurious claim was filed
by a third-party claimant, i.e., to file his claim for damages
in the same court where the third-party claimant filed his
thirdparty claim or to file a separate action. Thus,
petitioners' claim for damages must be filed in the trial
court, whether in the same case where a third-party claim
has been filed or in a separate action for damages which
petitioners may institute. This is so in order to require the
filing of proper pleadings and to hold trial so as to give the
parties the chance to submit their respective evidence (Caps
vs. Court ofAppeals, G.R. No. 160082, September 19, 2006;
Underscoring supplied).
Illustration (Bar 1993)
In a decision in Civil Case No. 93-1000 entitled
"Beta, Inc. vs. Jaime de la Cruz," having become final and
executioy, the RTC of Manila (Branch 21) issued a writ of
execution for its enforcement. The sheriff levied upon
certain chattels and scheduled the auction sale thereof.
However, Jacinto Santamaria filed a third-party
claim with the sheriff asserting that the chattels levied upon
by the later belong to him and not to the judgment debtor
(Jaime de la Cruz). Because the judgment creditor (Beta,
Inc.) posted an indemnity bond in favor of the sheriff, the
latter refused to release the chattels and threatened to
proceed with the auction sale.
Consequently, Jacinto Santamaria filed an action
against Beta, Inc., and the sheriff in the RTC of Bulacan
(Branch 8), docketed as Civil Case No. 93-487, laying claim to
the levied chattels and seeking to enjoin the sheriff from
proceeding with the auction sale thereof. As prayed for, the
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court in Civil Case No. 93-487 issued a temporary restraining
order, followed by a writ of preliminary injunction, by way of
enjoining the sheriff from implementing the writ of
execution in Civil Case No. 93-1000 against the levied
chattels pending determination of Jacinto Santamaria's claim
thereto.
Beta, Inc. and the sheriff filed a motion to dismiss
Civil Case No. 93-487 on the ground that the court has no
power to interfere with the judgment of the RTC of Manila
(Branch 21), a coordinate court.
How should the motion to dismiss be resolved?
Explain.
Suggested answer.
The motion to dismiss should be denied. Where a
property levied upon is claimed by a third party, nothing in
the Rules "shall prevent such claimant or any third person
from vindicating his claim against to the property n a
separate action" (Sec. 16, Rule 39, Rules of Court). Clearly, a
third party claimant is allowed to vindicate his claim to his
property wrongfully levied by filing a proper action which is
distinct and separate from that in which the judgment is
being enforced.
The action filed cannot be considered as
interference with the judgment of another court. The
separate action filed is not, directed against the court but
against the unlawful acts of the sheriffand the prevailing
party.
XXXVIII. Miscellaneous principles to be remembered in
execution sales
1. A notice of sale is required before the property levied is
sold on execution (Sec. 15, Rule 39, Rules of Court). All sales
of property under execution must be made at public auction
to the highest bidder (Sec. 19, Rule 39, Rules of Court) but
the execution sale must be preceded by a valid levy which is
indispensable for a valid execution sale.
> levy - the act whereby the sheriff sets apart or
appropriates a part of the whole of the properties of the
judgment obligor to satisfy the command of the writ.
- A levy is necessary only if the obligor cannot satisfy the
judgment in cash, certified check or any other mode of
payment acceptable to the judgment creditor (Sec. 9[b],
Rule 39, Rules of Court).
- A levy upon real property is made by the officer by
performing two specific acts: (a) filing with the Register of
Deeds a copy of the order, description of the attached
property and notice of attachment; and (b) leaving with the
occupant of the property copy of the same order, description
and notice. Noncompliance with any of these requisites is
fatal because a special statutory provision respecting the
manner of carrying out levy of attachment must be strictly
complied with and departure therefrom shall invalidate the
levy.
2. After sufficient property has been sold to satisfy the
execution, no more shall be sold (Sec. 19, Rule 39, Rules of
Court);
3. Any excess property or proceeds of the sale shall be
delivered to the judgment obligor (Sec. 19, Rule 39, Rules of
Court);
4. If the purchaser at the auction refuses to pay the amount
bid by him, the officer may again sell the property to the
highest bidder and the court may require such purchaser to
pay unto the court the amount of whatever loss, with costs
occasioned by his refusal to pay and if he disobeys the order,
may punish him for contempt. Any subsequent bid by such
purchaser may be refused by the officer conducting the
bidding (Sec. 20, Rule 39, Rules of Court);
5. The judgment obligee may bid and if said party is the
purchaser and there is no third party claim, he need not pay
the amount of the bid if it does not exceed the amount of his
judgment. If it does, he shall only pay the excess (Sec. 21,
Rule 39, Rules of Court);
6. If the purchaser of 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,
shall execute 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 (Sec. 23, Rule 39, Rules of Court);
7. When the purchaser of any personal property not capable
of manual delivery pays the 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
(Sec. 24, Rule 39, Rules of Court).
XXXIX. Sale and redemption of real property
l. Upon a sale of real property, the officer must give to the
purchaser a certificate of sale. Such certificate must be
registered in the registry of deeds of the place where the
property is situated (Sec. 25, Rule 39, Rules of Court).
2. The real property sold may be redeemed from the
purchaser, at any time within one (1) year from the date of
the registration of the certificate of sale. If there are other
creditors having a lien on the property, the property so
redeemed may again be redeemed within sixty (60) days
from the last redemption. The property may again, and as
often as a redemptioner is so disposed, be redeemed from
any previous redemptioner within sixty (60) days after the
last redemption (Sec. 28, Rule 39, Rules of Court).
3. The property may be redeemed by the judgment obligor,
or his successor in interest or by a creditor having a lien by
virtue of an attachment, judgment or mortgage on the
property sold, subsequent to the lien under which the
property was sold. Such redeeming creditor is called a
redemptioner (Sec. 27[b], Rule 39, Rules of Court).
4. Note that the right of redemption under the Rules of Court
has reference only to real, not personal property (Sec. 27,
Rule 39, Rules of Court).
XXXX. Effect if no redemption is made
1. If no redemption is 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
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property; or if so redeemed whenever sixty (60) days have
elapsed and no other redemption has been made, and notice
thereof given, the last redemptioner is entitled to the
conveyance and possession of the property (Sec. 33, Rule 39,
Rules of Court).
2. Upon the expiration of the right of redemption, the
purchaser or redemptioner shall be substituted to and
acquire all the rights, title, interest and claim of the
judgment obligor to the property as of the time of the levy
(Sec. 33, Rule 39, Rules of Court).
XXXXI. Rents, income and earnings of the property pending
the redemption
- The purchaser or a redemptioner shall not be entitled to
receive the rents, earnings and income of the property sold
on execution, or the value of the use and occupation thereof
when such property is in the possession of a tenant. All rents,
earnings and income derived from the property pending
redemption shall belong to the judgment obligor until the
expiration of his period of redemption (Sec. 32, Rule 39,
Rules of Court).
XXXXII. Remedy when the judgment is unsatisfied (Bar 1983;
2002)
1. When the return of the writ of execution shows that the
judgment is unsatisfied, the judgment obligee is entitled to
an order from the court which rendered the judgment,
requiring the judgment obligor to appear and be examined
concerning his property and income before the court or a
commissioner appointed by the court. This remedy has a
limitation because the judgment obligor cannot be required
to appear before a court or commissioner outside the
province or city in which such obligor resides or is found
(Sec. 36, Rule 39, Rules of Court). Thus, if the court is RTC
Bulacan and the obligor is a resident of Quezon City, he
cannot be required to appear and be examined.
2. It is not only the judgment debtor who may be examined.
A person, corporation, or other juridical entity, indebted to
the judgment debtor may be required 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 (Sec. 37, Rule
39, Rules of Court).
CHAP. 12: PROVISIONAL REMEDIES
I. Nature of provisional remedies
1. The term "provisional" means temporary, preliminary or
tentative.
2. > Provisional remedies - temporary, auxiliary, and
ancillary remedies available to a litigant for the protection
and preservation of his rights while the main action is
pending. They are writs and processes which are not main
actions and they presuppose the existence of a principal
action.
II. Purpose of provisional remedies (Bar 1996)
- Provisional remedies are resorted to by litigants for any of
the following reasons:
(a) To preserve or protect their rights or interests while the
main action is pending;
(b) To secure the judgment;
(c) To preserve the status quo; or
(d) To preserve the subject matter of the action.
III. Court which grants provisional remedies
- The court which grants or issues a provisional remedy is the
court which has jurisdiction over the main action. Even an
inferior court may grant a provisional remedy in an action
pending with it and within its jurisdiction.
- For instance, a Municipal Trial Court has the jurisdiction to
issue a writ of preliminary mandatory injunction, a provi-
sional remedy available as ancillary to the main action of
forcible entry and unlawful detainer (Sec. 15, Rule 70, Rules
of Court). Where the main action is for support, the
provisional remedy of support pendente lite may not be
granted by a Municipal Trial Court because the main action
which is incapable of pecuniary estimation is within the
jurisdiction of the Regional Trial Court or the Family Court.
IV. Kinds of provisional remedies (Bar 1999)
1. The provisional remedies specified under the rules are:
(a) Preliminary attachment (Rule 57);
(b) Preliminary injunction (Rule 58);
(c) Receivership (Rule 59);
(d) Replevin (Rule 60); and
(e) Support pendente lite (Rule 61).
2. The enumeration is not exclusive. For example, in the
special proceeding of custody of minors, the court may grant
a parent visitation rights and or temporary custody of the
child (Sec. 6, Rule 99, Rules of Court), both of which partake
of the nature of provisional remedies even if not among those
specifically enumerated as provisional remedies.
V. Deposit as a provisional remedy
- In one case, an action to annul a contract of sale of a land,
the buyer moved for the court to order the seller to deposit
in court the amount initially given to the seller as
consideration for the land to prevent the dissipation of the
amount paid. The seller opposed the motion arguing that a
deposit is not among the provisional remedies enumerated in
the Rules of Court. The Court nevertheless granted the
motion. The Court considered the case as one that clearly
showed a hiatus in the Rules of Court and in the law because
deposit is not so provided under the Rules as a provisional
remedy. If the hiatus is left alone, it will result in unjust
enrichment in favor of the seller tat the oxpenme of the
buyer. It may also imperil the obligation of restitution, a
precondition to the annulment of a contract. This is a case of
insufficiency of the law and Article 9 of the Civil Code
mandates a ruling despite the "silence, obscurity or
insufficiency of the laws." This calls for the application of
equity, which fills the open spaces of the law. In ordering the
deposit, the court exercised its "equity jurisdiction."
I. Preliminary Attachment (Rule 57)
I. Nature of preliminary attachment
1. > Preliminary attachment - a provisional remedy issued
upon order of the court where an action is pending to be
levied upon the property of the defendant so the property
may be held by the sheriff as security for the satisfaction of
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whatever judgment may be rendered in the case.
2. There is no separate action called preliminary attachment.
It is not a distinct proceeding and is availed of within a
principal action. For instance, if the plaintiff files an action
to collect a sum of money, the action may be coupled with a
prayer for the issuance of a writ of preliminary attachment
directed against the property of the defendant in order to
prevent him from further disposing of his property during the
pendency of the litigation.
3. Attachment places the property under the custody of the
court (custodia legis). The property is held by the court for
the satisfaction of whatever award which may be obtained by
the plaintiff in his favor.
4. Attachment has been referred to as an action in rem or an
action quasi in rem. When availed of and is granted in an
action purely in personam, it converts the action to one that
is quasi in rem. It will be recalled that in an action in
personam, jurisdiction over the defendant is mandatory.
However, with attachment, the action becomes one in quasi
in rem. This transformation of the nature of the action
dispenses with the need for acquiring jurisdiction over the
defendant. Since attachment is directed against the property
of the defendant, the court may validly proceed with the
action as long as jurisdiction over the property is acquired. In
an action in rem or quasi in rem, jurisdiction over the res is
sufficient. Jurisdiction over the person of the defendant is
not required.
5. Attachment is a purely statutory remedy. It cannot exist
without a statute granting it. Its legal basis for application is
not only a direct provision in the Rules of Court (Rule 57) but
also the Civil Code of the Philippines (Art. 1177, Civil Code)
which authorizes a creditor to pursue the property of the
debtor.
6. It is not only the plaintiff who may apply for a writ of
preliminary attachment. A defendant who asserts a
counterclaim, a cross-claim or a third-party claim may also
avail of the remedy.
7. The attachment is preliminary only when resorted to
before the finality of the judgment to secure the property of
the adverse party and to prevent its dissipation. Once the
judgment has become final and executory, the attachment
becomes a final one and is issued in order to satisfy the
judgment.
II. Purpose of preliminary attachment
- Preliminary attachment is designed to:
(a) seize the property of the debtor before final judgment
and put the same in custodia legis even while the action is
pending for the satisfaction of a later judgment; or
(b) to enable the court to acquire jurisdiction over the res
or the property subject of the action in cases where
service in person or any other service to acquire
jurisdiction over the defendant cannot be effected.
III. Kinds or attachmentM; distinctions (Bar 1878; 1989)
1. There are three types of attachments, to wit:
(a) preliminary attachment,
(b) garnishment, and
(c) levy on execution.
2. > Preliminary attachment - one issued at the
commencement of the action or at anytime before entry of
the judgment as security for the satisfaction of any judgment
that may be recovered in the cases provided for by the rules.
Here the court takes custody of the property of the party
against whom the attachment is directed.
3. > Garnishment - a kind of attachment in which the
plaintiff seeks to subject either the property of the
defendant in the hands of a third person called the
garnishee, to his claim or the money which said third person
owes the defendant. By means of garnishment, the plaintiff
reaches credits belonging to the defendant and owing to him
from a third person who is a stranger to the litigation.
- Garnishment does not involve the actual seizure of the
property which remains in the hands of the garnishee.
Garnishment simply impounds the property in the garnishee's
possession and maintains the status quo until the main action
is finally decided. Thus, if pursuant to a court order, the
defendant's credit with a stockbroker is garnished, the sheriff
cannot order that said balance be surrendered to the
plaintiff or the sheriff upon the garnishment. It is only after
the judgment against the defendant has become final and
executory that the delivery is to be made (Bar 1980; Sec.
15[c], Rule 57).
- Jurisdiction over the garnishee is acquired by the mere
service upon him of the copy of the writ of garnishment with
a notice that his debt to the defendant or other personal
property of the defendant under his control or possession is
attached pursuant to the writ (Sec. 7[b], Rule 57, Rules of
Court). Service of summons is not required to bind the
garnishee. By virtue of the writ, the garnishee will be
required to hold the property or the funds in his hands during
the pendency of the litigation and at the appropriate time,
to deliver the same not to the defendant but to the new
creditor who is the plaintiff in the litigation. Garnishment
therefore, results into a forced novation through a change in
the creditor.
- Garnishment proceedings are usually directed to personal
property, tangible or intangible and whether capable of
manual delivery or not.
4. > Levy on execution - the writ issued by the court after
judgment by which the property of the judgment obligor is
taken into the custody of the court before the sale of the
property on execution for the satisfaction of a final
judgment. It is the preliminary step to the sale on execution
of the property of the judgment debtor.
IV. Cases in which preliminary attachment is proper
1. One cannot secure preliminary attachment in every
situation. The rules governing preliminary attachment
enumerate specific situations in which the remedy can be
availed of (Sec. 1, Rule 57, Rules of Court). The enumeration
should be deemed exclusive.
2. Example: A borrowed money from B. A failed to pay
despite demand. B sued A in the proper court. Is preliminary
attachment available to B if he can show that A is already
Page129
insolvent at the time the action is filed? Answer: Preliminary
attachment is not available. A mere action to collect a sum
of money is not one of those cases enumerated in Sec. 1,
Rule 57 of the Rules of Court which would justify the
issuance of a writ of preliminary attachment. Common
reason suggests that the mere inability of the debtor to fulfill
his obligation to pay a debt is not synonymous with a
fraudulent intent not to honor an obligation.
3. In the immediately preceding set of facts, may B
successfully ask for preliminary attachment if it can be
shown that A is about to depart from the Philippines? Answer:
B cannot successfully ask for preliminary attachment by
merely proving that the debtor is about to depart from the
Philippines. There must also be a showing that the departure
is with intent to defraud B.
- The provisions of the Rules of Court are clear: One of the
cases in which preliminary attachment is proper is "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 (Sec. 1[a],
Rule 57, Rules of Court; italics supplied).
- Under the above provision, the cause of action is for money
or damages, the amount of which must be "specified." The
cause of action need not arise from a contract alone as it was
in the old rule. It may arise also from any of the sources of
obligations under Art. 1157 of the Civil Code like law,
contract, quasicontract, delict or quasi-delict. However,
where the action is for the recovery of moral damages or
exemplary damages alone, preliminary attachment will not
lie.
- A writ of preliminary attachment cannot be issued for moral
and exemplary damages and other unliquidated and
contingent claims.
- Thus, a mere allegation that the defendant is a foreigner
without alleging that he intends to depart from the
Philippines to defraud his creditor is not sufficient for
preliminary attachment to be successfully availed of.
4. Preliminary attachment is also available in an action for
money or property embezzled, fraudulently misapplied or
converted to his own use by the defendant. Here, the
defendant may be a public officer, a corporate officer, an
attorney, a factor, a broker, an agent, a clerk or any other
person acting in a fiduciary capacity. He may also be a
person who acted in a manner as to willfully violate his duty
not to embezzle, fraudulently misapply, or not to convert
money or property for his own use. (Sec. 1[b], Rule 57, Rules
of Court).
- Thus, in an action against a public officer who
misappropriated funds entrusted to him by virtue of his
office, the issuance of a writ of preliminary attachment is
proper. Preliminary attachment is also proper in an action
against an officer of a private corporation who converted the
corporate funds to his personal use.
5. Preliminary attachment is also available in an action to
recover property unjustly or fraudulently taken, detained or
converted by the defendant. Note however, that preliminary
attachment under this provision will be granted if it is
alleged and shown that the property involved 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 (Sec. 1[c], Rule 57, Rules of Court).
- In this cause of action, the property unjustly or fraudulently
taken, detained and converted by the defendant may also be
a real property, not just personal property.
6. Preliminary attachment is also available in an action
against a defendant guilty of fraud in either contracting or
performing an obligation (Sec. 1, Sec. 1[d], Rule 57, Rules of
Court).
- There are two kinds of frauds contemplated here. First,
dolo causante (causal fraud) and second, dolo incidente
(incidental fraud).
> Dolo causante - fraud used to induce another to enter into
a contract (Art. 1338, Civil Code of the Philippines). It is the
fraud employed in contracting an obligation and renders a
contract annullable or voidable (Art. 1330;Art.1390, Civil
Code of the Philippines).
> Dolo incidente - the fraud employed by a party in the
fulfillment of his obligation or after the obligation has been
contracted. This kind of fraud only obliges the person
employing it to pay damages (Art. 1344, Civil Code of the
Philippines).
- Under the former rule, the fraud that justified a writ of
preliminary attachment was only the fraud committed in
contracting an obligation (dolo causante). It did not include
the fraud committed subsequent to contracting the
obligation (dolo incidente).
- Example: Mr. X induced his rich friend, Mr. Y to grant him a
loan using a spurious land title. Without the security, Mr. Y
would not have extended the loan to him. If Mr. Y later
learns of the fraud and files an action to recover the amount
loaned to Mr. X, Mr. Y may apply for a writ of preliminary
attachment. The fraud committed by Mr. X is a fraud in
contracting the obligation or dolo causante.
7. Preliminary attachment is also a remedy available in an
action against a person who has removed or disposed of his
property with intent to defraud his creditors (Sec. 1[e], Rule
57, Rules of Court).
- The mere removal or disposal of the property is not
sufficient to support a prayer for the issuance of a writ of
preliminary attachment. The act must be shown to have been
done with the intent to defraud the plaintiff/creditor.
8. In an action against a defendant who is a non-resident and
who is at the same time not found in the Philippines,
attachment may be availed of in order to reach his property
in the Philippines and to dispense with the need for acquiring
jurisdiction over his person (Sec. 1[f], Rule 57, Rules of
Court).
- Here, the attachment is intended to enable the court to
acquire jurisdiction over the res and thus, justifying summons
Page130
by publication. When the property of a non-resident located
in the Philippines is attached, the court acquires jurisdiction
over the res and in that event, the jurisdiction over the
person of said defendant is not essential.

Illustration (Bar 1981)
Y" is a stockholder of a local corporation. "Y" owns
20% of the shares of the said corporation. "Y defaults on a
manufacturing contract with "Z." "Z" sues for specific
performance and damages and, on the ground that "Y" is
fleeing from the country to avoid his creditors, seeks to
attach 20% of a parcel of land that belongs to the
corporation.
Can "Z" secure such an attachment granting that the
averments of his petition are sufficient? Reasons.
Suggested answer:
The attachment cannot be obtained. The property
sought to be attached is actually the property of the
corporation while the defendant is "Y," not the corporation.
The corporation has a personality separate and distinct from
that of its stockholders.
Illustration (Bar 1982)
Edward filed a complaint for accounting against
LIZA for accounting of the money received by her as
administratrix of Edward's hacienda. In his complaint, Edward
prayed for preliminary attachment, alleging that Liza was
about to depart from the Philippines. Attached to the
complaint was an affidavit executed by Marilyn to the effect
that Liza told her that she, Liza, was planning to leave for
Singapore in a few days. If you were the judge, would you
grant the prayer for preliminary attachment? Why?
Suggested answer.
I would not grant the prayer for preliminary
attachment. The application should show that the
defendant's departure from the Philippines must be with the
corresponding intent to defraud the creditors (Sec. 1, Rule
57, Rules of Court). This fact was not alleged in the
application for the issuance of the writ of preliminary
attachment.
Illustration (Bar 1983)
Daniel Chan owns a house and lot at Forbes Park,
Makati, where his wife and children reside. He is the Chief
Executive Officer of various family corporations where he
owns 20% of the respective capital stocks. These family
corporations owe several banks the total sum of P2.5 billion,
with Chan as a solidary co-debtor.
After Chan has carefully manipulated the finances
of the family corporations and diverted their funds to his
account in a Swiss bank, he flees from. the Philippines and
now resides at 127 Rue Duphine, Zurich, Switzerland. The
banks concerned now retains the services of Atty. Ramon
Castillo for the purpose of filing a suit in the Philippines
against Daniel Chan on his obligations as a solidary codebtor
on the loans of the family corporations. One of the
procedural problems facing Atty. Castillo is the method of
effecting a valid service of summons upon Daniel Chan, now
residing in Switzerland, to enable the Philippine courts to
acquire jurisdiction over his person.
Describe the remedies and procedure, and the
supporting grounds thereof that Atty. Castillo should follow
as would enable him to effect a valid service of summons on
Daniel Chan.
Suggested answer.
Atty. Castillo should file an action against Daniel
Chan for collection of a sum of money with an application for
a writ of preliminary attachment. Since the action is one in
personam, jurisdiction over the person of the defendant is
required but this jurisdiction cannot be obtained against one
who is not a resident of the Philippines in an action in
personam. The writ of attachment is required in order to
convert the action in personam into an action quasi in rem.
In this kind of action jurisdiction over the person of the
defendant is not required. What is required is jurisdiction
over the res which could be obtained by the attachment.
Summons by publication would then be served or by the
other modes of extraterritorial service (Sec. 1[f, Rule 57,
Rules of Court).
Illustration (Bar 1990)
On June 18, 1989, Mario Reyes executed a
promissory note for P50,000 payable to Norma Alajar not
later than June 18, 1990. Mario Reyes defaulted in the
payment of the promissory note and a collection suit was
filed against him before the Regional Trial Court of Quezon
City.
After the complaint has been filed, Norma Alajar
discovered that Mario Reyes' petition for the issuance of an
immigrant visa was approved by the United States Embassy,
and that Mario Reyes has been disposing of his properties.
What remedy may be availed of by Norma Alajar to
protect her interest? Explain your answer.
Suggested answer.
Norma Alajar should file an application for the
issuance of a writ of preliminary attachment. The acts of
Mario Reyes are sufficient to vest upon Norma Alajar a
ground for the remedy. The disposal of his properties clearly
indicates an intent to defraud his creditor (Sec. 1, Rule 57,
Rules of Court).
V. When to apply for preliminary attachment
1. It may be applied for (a) at the commencement of the
action, or (b) at any time before entry of judgment (Sec. 1,
Rule 57, Rules of Court).
2. If it is applied for at the commencement of the action, the
application may be incorporated in the verified complaint
alleging all the grounds and complying with all the requisites
for the grant of the application.
VI. By whom applied for
- It is not only the plaintiff who may apply for the issuance of
a writ of preliminary attachment. The pertinent provisions of
Sec. 1 of Rule 57 provide that "a plaintiff or any proper party
may have the property of the adverse party attached "* * *".
This term, proper party is broad enough to refer also to a
defendant who filed a counterclaim, a cross-claim or a third-
party complaint. What is important is the applicant can
satisfy the requirements of the rules for the grant of the
writ.
VII. Ex parte issuance of the writ (Bar 2005; 2001;1996;1993;
1991)
1. The writ of preliminary attachment may be granted upon
Page131
motion and notice and hearing by the court in which the
action is pending and may even be issued by the Court of
Appeals or the Supreme Court (Sec. 2, Rule 57, Rules of
Court).

2. It may also be issued ex party and even before summons is
served upon the defendant. However, the writ may not be
enforced and may not be validly implemented unless
preceded by a service of summons upon the defendant, or
simultaneously accompanied by service of summons, a copy
of the complaint, the application for attachment, the order
of attachment and the attachment bond.
Implementation of the writ of attachment without the
required jurisdiction over his person is null and void.
Illustration (Bar 2005)
Katy filed an action against Tyrone for collection of
the sum of Pl million in the Regional Trial Court, with an ex
parte application for a writ of preliminary attachment. Upon
posting of an attachment bond, the court granted the
application and issued a writ of preliminary attachment.
Apprehensive that Tyrone might withdraw his
savings deposit with the bank, the sheriff immediately served
a notice of garnishment on the bank to implement the writ of
preliminary attachment. The following day, the sheriff
proceeded to Tyrone's house and served him the summons,
with copies of the complaint containing the application for
writ of preliminary attachment, Katy's affidavit, order of
attachment, writ of preliminary attachment and attachment
bond.
Within fifteen (15) days from service of summons,
Tyrone filed a motion to dismiss and to dissolve the writ of
preliminary attachment on the following grounds: (1) the
court did not acquire jurisdiction over his person because the
writ was served ahead of the summons: (ii) the writ was
improperly implemented; and (iii) Said writ was
improvidently issued because the obligation in question was
already fully paid.
Resolve the motion with reasons.
Suggested answer.
(i) The jurisdiction of the court over the subject matter over
the person of the defendant was acquired when he was
served with summons. This jurisdiction was not affected by
the fact that the writ was served ahead of the summons.
What was affected was the enforceability of the writ. Under
the Rules of Court, no levy on attachment pursuant to the
writ shall be enforced unless it is preceded, or
contemporaneously accompanied, by service of summons,
together with a copy of the complaint, the application for
attachment, the applicant's affidavit and bond, and the order
and writ of attachment, on the defendant within the
Philippines (Sec. 5, Rule 57, Rules of Court).
(ii) The writ was improperly implemented because it was
served prior to the service of summons (Sec. 5, Rule 57,
Rules of Court).
(iii) The defense of payment to support a motion to discharge
the attachment is not proper. Such defense should have been
invoked either in a ground for motion to dismiss or as an
affirmative defense in the answer.
Illustration (Bar 2001)
May a writ of preliminary attachment be issued ex
parte? Briefly state the reasons for your answer.
Suggested answer.
A writ of preliminary attachment may be issued ex
parte although it may be also issued upon notice and hearing
(Sec. 2, Rule 57, Rules of Court). An ex parte issuance of the
writ is intended to preempt any possible disposition of
property by the adverse party to the detriment of the
attaching creditor and thus defeat the very purpose of
attachment (Mindanao Savings & Loan Association, Inc. vs.
CA, 172 SCRA 480).
Illustration (Bar 1996)
1. xxx
2. xxx
3. xxx
4. In a caso for it sum of rnoney, the trial court granted ex
parte the prayer for issuance of a writ of preliminary
attachment. The writ was immediately implemented by the
sheriff. The defendant filed a motion to discharge the writ of
preliminary attachment on the ground that it was issued and
implemented prior to the service of summons. Plaintiffs
opposed arguing that under the Rules of Court, the writ can
be applied for and granted at the commencement of the
action or at any time thereafter. In any event, plaintiff
argues that the summons, which was eventually served cured
whatever irregularities that might have attended the
enforcement of the writ.
How would you rule on the conflicting contentions
of the parties?
Suggested answer:
The writ can be applied for at the commencement
of the action (Sec. 1, Rule 57, Rules of Court). It can be
issued ex parte (Sec. 2, Rule 57, Rules of Court). However,
the enforcement of the writ may not be done and may not be
validly implemented unless preceded by a service of
summons upon the defendant, or simultaneously
accompanied by service of summons, a copy of the
complaint, the application for attachment, the order of
attachment, and the attachment bond.
Illustration (Bar 1993)
On May 2, 1992, Precision, Inc., filed a verified
complaint for the recovery of a sum of money against
Summa, Inc. The complaint contained an ex parte application
for a writ of preliminary attachment.
On May 3, 1992, the Trial Court issued an order
granting the ex parte application and fixing the attachment
bond at P2 million.
On May 8, 1992, the attachment bond having been
submitted by Precision, Inc., the writ of preliminary
attachment was issued.
On May 9, 1992, summons together with a copy of
the complaint, the writ of preliminary attachment and a copy
of the attachment, was served on Summa, Inc., and pursuant
to the writ, the sheriff attached properties belonging to
Summa, Inc.
On July 6, 1992, Summa, Inc. filed a motion to
discharge the attachment for alleged lack of jurisdiction to
issue the same because, at the time the order of attachment
and the writ of preliminary attachment were issued, the
court had not yet acquired jurisdiction over the person of
Page132
Summa, Inc. It argued that a writ of preliminary attachment
may not issue ex parte against a defendant before acquisition
of jurisdiction over the latter's person by service of summons
or his voluntary submission to the court's authority.
 Should the motion be granted?
Suggested answer.
The motion should not be granted. A writ of
preliminary attachment may be granted at the
commencement of the action and even before jurisdiction
has been acquired over the person of the defendant (Sec. 1,
Rule 57, Rules of Court). It may be issued ex parte (Sec. 2,
Rule 57, Rules of Court).
Illustration (Bar 1991)
Upon failure of X to pay the promissory note for
P100,000 which he executed in favor of Y, the latter filed the
complaint for a sum of money with application for the
issuance of a writ of preliminary attachment alleging therein
that X is about to dispose of his properties in fraud of his
creditors.
(a) May the court issue the writ immediately upon filing of
the complaint and before service of summons?
(b) If service of summons is indispensable before the writ is
issued, is hearing on the application necessary?
(c) If the writ is issued and X filed a motion to quash the
attachment, may the motion be granted ex parte?
Suggested answers:
(a) The writ may be issued upon the filing of the complaint
and even before the service of summons upon the defendant
(Sec. 1, Rule 57, Rules of Court).
(b) A hearing on the application is not necessary. The
application for the writ need not be heard. It may be issued
ex parte. The issuance of summons is not even indispensable
before the writ is issued (Sec. 1, Rule 57, Rules of Court).
(c) The motion to quash may not be granted ex paste. A
hearing is necessary.
Illustration (Bar 1978)
X filed a complaint in the Court of First Instance of
Manila (now RTC) against Y for the recovery of a sum of
money. X at the same time also prayed for the issuance of an
order of preliminary attachment against Y, and included in
his affidavit, among others, that Y was disposing of his
properties with intent to defraud X. The court immediately
issued the writ of preliminary attachment ex paste. Y moved
to discharge the attachment on the ground that it was
irregularly issued, in that Y was not notified at all of such
application or about the time and place of the hearing
thereof, in gross violation of the Rules and his right to due
process of law.
As counsel for X prepare an opposition to Y's motion
to discharge the attachment.
Suggested answer.
Y's motion to discharge the attachment must be
denied. A writ of preliminary attachment may be issued at
the commencement of the action (Sec. 1, Rule 57, Rules of
Court) and can be issued ex parte (Sec. 2, Rule 57, Rules of
Court).
VIII. Why ex parte grant of the writ is allowed
1. An application for an order and writ of execution may be
granted ex paste because it is possible that during the course
of the hearing, the party against whom the writ is sought
may dispose of his property or abscond before the writ is
issued.
2. It is not the notice to the defendant that is sought to be
avoided but the time which such hearing would take because
the defendant may delay the hearing to be able to dispose of
his properties.
IX. Stages in the grant of preliminary attachment
- The grant of the provisional remedy of attachment has
three stages: first, the court issues the order granting the
application; second, the writ of attachment issues pursuant
to the order granting the writ; and third, the writ is
implemented. Jurisdiction over the person of the defendant
is not necessary in the first two stages. In the third stage,
when the writ is to be implemented, the court must have
acquired jurisdiction over the person of the defendant.
Without such jurisdiction having been obtained, the court has
no power and authority to act in any manner against the
defendant (Mangila vs. Court of Appeals, GR. No. 125027,
August 12, 2002). Hence, no levy on attachment pursuant to
the writ of preliminary attachment shall be enforced unless it
is preceded, or contemporaneously accompanied, by the
service of summons, together with a copy of the complaint,
the application for attachment, the applicant's affidavit and
bond, and the order and writ of attachment, on the
defendant within the Philippines.
X. When contemporaneous service is not required
- The requirement of prior or contemporaneous service of
summons shall not however, apply in the following instances:
(a) Where the summons could not be served personally or
by substituted service despite diligent efforts;
(b) The defendant is a resident of the Philippines who is
temporarily out of the country;
(c) The defendant is a non-resident; or
(d) The action is one in rem or quasi in, rem (Sec. ,5, Rule
57, Rules of Court).
XI. Requisites for the issuance of an order/writ of preliminary
attachment
l. The issuance of an order/writ of execution requires the
following:
(a) The case must be any of those where preliminary
attachment is proper;
(b) The applicant must file a motion (ex parte or with
notice and hearing);
(c) The applicant must show by affidavit (under oath) that
there is no sufficient security for the claim sought to be
enforced; that the amount claimed in the action is as much
as the sum of which the order is granted above all
counterclaims; and
(d) The applicant must post a bond executed to the
adverse party. This is called an attachment bond (Sec. 3,
Rule 57, Rules of Court). This bond answers for all damages
incurred by the party against whom the attachment was
issued and sustained by him by reason of the attachment.
2. Since Sec. 3 of Rule 57 requires that there must be a
showing that there is no sufficient security for the claim
Page133
sought to be enforced by the applicant, the writ will not be
issued if a real estate mortgage exists to secure the
obligation even if instead of filing an action for foreclosure,
an action for a sum of money was instead filed.
To justify the issuance of the writ of preliminary
attachment, it must be shown that the security is insufficient
to cover the claim.
3. The bond executed in favor of the adverse party is
conditioned upon the payment of all costs which the adverse
may be adjudged as entitled to and all damages which he
may sustain by reason of the attachment, if it shall be finally
adjudged that the party applying for attachment was not
entitled thereto (Sec. 4, Rule 57, Rules of Court). The bond
shall not answer for damages sustained which do not arise by
reason of the attachment. This is clear from the tenor of Sec
4 of Rule 57. For the liability under the bond to apply, there
must also be a final judgment that the attaching party was
not entitled to an attachment.
XII. Grant of preliminary attachment, discretionary
- The grant of the remedy is addressed to the discretion of
the court. Whether or not the application shall be given full
credit is discretionary upon the court. In determining the
propriety of the grant, the court also considers the principal
case upon which the provisional remedy depends.
XIII. Strict construction of the rule
1. The rule on the issuance of a writ of attachment must be
strictly construed in favor of the defendant. If all the
requisites for the issuance of the writ do not exist, the court
which issues the writ acts without jurisdiction.
2. The writ must be granted only on concrete and specific
grounds and not merely on general averments quoting the
words of the rules.
XIV. How to prevent the attachment
- If the attachment has not yet been effected, the party
whose property is sought to be attached, may prevent the
attachment by doing either of two things: (1) By depositing
with the court from which the writ was issued an amount
equal to the value of the bond fixed by the court in the order
of attachment or an amount equal to the value of the
property to be attached, exclusive of costs, or (2) by giving a
counter-bond executed to the applicant, in an amount equal
to the bond posted by the latter to secure the attachment or
in an amount equal to the value of the property to be
attached, exclusive of costs (Sec. 5, Rule 57; Sec. 2, Rule 57,
Rules of Court).
XV. How to have the attachment discharged
l. If the attachment has already been enforced, the party
whose property has been attached may file a motion to
discharge the attachment. This motion shall be with notice
and hearing. After due notice and hearing, the court shall
discharge the attachment if the movant makes a cash deposit
or files a counter-bond executed to the attaching party with
the clerk of court where the application is made in an
amount equal to that fixed by the court in the order of
attachment, exclusive of costs (Sec. 12, Rule 57, Rules of
Court). Counter-bonds are replacements of the property
formerly attached, and just as the latter, may be levied upon
after final judgment.
- Note that the mere posting of the counterbond does not
automatically discharge the writ of attachment. It is only
after the hearing and after the judge has ordered the
discharge of attachment that the same is properly
discharged.
2. Attachment may likewise be discharged without the need
for filing of a counter-bond. This is possible when the party
whose property has been attached files a motion to set aside
or discharge the attachment and during the hearing of the
motion, he proves that (a) the attachment was improperly or
irregularly issued or enforced (Sec. 13, Rule 57, Rules of
Court); or (b) that the bond of the attaching creditor is
insufficient, or (b) that the attachment is excessive and must
be discharged as to the excess (Sec. 13, Rule 57, Rules of
Court), or (c) that the property is exempt from execution,
and as such is also exempt from preliminary attachment (Sec.
2, Rule 57, Rules of Court).
3. A discharge of the attachment must be made only after
hearing. It has been held that an ex parts discharge is a
disservice to the orderly administration of justice.
XVI. Damages for a wrongful attachment
l. Damages may be awarded on account of improper,
irregular or excessive attachment. The application for
damages must be filed (a) before the trial, or (b) before
appeal is perfected, or (c) before the judgment becomes
executioy. There must be notice to the attaching party and
his surety or sureties (Sec. 20, Rule 57, Rules of Court).
- Where there is wrongful attachment, the attachment
defendant may recover actual damages even without proof
that the attachment plaintiff acted in bad faith in obtaining
the attachment. However, if it is alleged and established
that the attachment was not merely wrongful but also
malicious, the attachment defendant may recover moral
damages and exemplary damages as well.
2. The damages may be awarded only upon `proper hearing'
(Sec. 20, Rule 57, Rules of Court). No judgment for damages
may be entered and executed against the surety without
giving it an opportunity to be heard as to the reality or
reasonableness of the damages resulting from the wrongful
issuance of the writ.
3. To merit an award of actual damages arising from a
wrongful attachment, the attachment defendant must prove,
with the best evidence obtainable, the fact of loss or injury
suffered and the amount thereof. Such loss or injury must be
of the kind which is not only capable of proof but must
actually be proved with a reasonable degree of certainty. As
to its amount, the same must be measurable based on
specific facts, and not on guesswork or speculation. In
particular, if the claim for actual damages covers unrealized
profits, the amount of unrealized profits must be estalished
and supported by independent evidence.
- The judgment for damages shall be included in the
judgment of the main case (Sec. 20, Rule 57, Rules of Court).
This means that the application for damages cannot be setup
independent of the main action and the recovery of damages
is in the same, not in a separate action.
Page134
4. if however, the case is on appeal and the judgment of the
appellate court is favorable to the party against whom the
attachment was issued, he must file in the appellate court a
claim for damages he sustained and with due notice to the
attaching party and his surety or sureties. The application for
damages has to be filed before the judgment of the appellate
court becomes executory. Although the application is filed in
the appellate court, the hearing of the application may be
allowed by the appellate court to be heard by the trial court.
If the applicant for damages prevails and the attachment
bond is not sufficient to cover the amount of the damages
awarded, he may have recourse against the property of the
attaching party in the same action as long as the property is
not exempt from execution (Sec. 20, Rule 57, Rules of
Court).
5. It must also be noted that the tenor of Sec. 20 of Rule 57
does not prevent the judgment obligor from recovering
damages on account of improper attachment even if the
judgment is adverse to him.
- Even a party who loses in the main case but is able to
establish a right to damages by reason of improper, irregular
or excessive attachment may be entitled to damages.
Illustration (Bar 1999)
May damages be claimed by a party prejudiced by a
wrongful attachment even if the judgment is adverse to him?
Suggested answer.
Damages may be claimed even by the losing party
where the attachment caused him damage where the
attachment was improper, irregular or excessive (Carlos vs.
Sandoval, 471 SCRA 266). An improper, irregular or excessive
attachment is not validated by the fact that the attaching
party prevailed in the main action.
XVII. Attachment of property in custodia legis
- Property in custodia legis may be subject to a writ of
preliminary attachment. If the property attached is in
custodia legirt, the rule require that 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 said property (Sec. 7, last par., Rule 57,
Rules of Court). The attachment on a property already in
custodia legis merely operates as a lien and does not mean
that the attaching court will wrest custody of the property
from another court. In the same vein, there is likewise no
rule which prohibits the attachment of a property previously
attached. What will arise in this event will be a priority in
the liens which means that the first attachment will have
priority over subsequent attachments.
Illustration (Bar 1999)
(a) xxx
(b) x x x
(c) x x x
(d) In a case, the property of an incompetent under
guardianship was in custodia legis. Can it be attached?
Explain.
Suggested answer.
The property may be attached provided that a copy
of the writ of attachment shall be filed with the court and
the notice of attachment shall be served upon the custodian
of the property (Sec. 7, last par., Rule 57, Rules of Court).
XVIII. Proceedings where property attached is claimed by a
third person
- Certain remedies are available to a third person, not party
to the action but whose property is the subject of execution.
1. He may avail of the remedy called terceria by making an
affidavit of his title thereto or his right to possession thereof,
stating the grounds of such right or title. The affidavit must
be served upon the sheriff and the attaching party (Sec. 14,
Rule 57, Rules of Court).
- Upon service of the affidavit upon him, the sheriff shall not
be bound to keep the property under attachment except ii'
the attaching party files a bond approved by the court. The
sheriff shall not be liable for damages for the taking or
keeping of the property, if such bond shall be filed.
2. The third party-claimant may also invoke the court's
authority in the same case and move for a summary hearing
on his claim. Upon application of the third person through a
motion to set aside the levy on attachment, 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. The court may order the sheriff to release the
property from the erroneous levy and to return the same to
the third person. In resolving the application, the court
cannot pass upon the question of title to the property with
any character of finality but only insofar as may be necessary
to decide if the sheriff has acted correctly or not.
- This remedy is akin to an intervention but the court, in its
discretion, may allow the intervention of a party claimant at
this stage for the purpose of invoking the authority of the
court in vindication of his claim. A person who has a legal
interest in the property attached is not barred from seeking
redress in the same court that issued the writ of preliminary
attachment because at this stage, no judgment has yet been
rendered. A motion for intervention is possible because no
judgment has yet been rendered and under the rules, a
motion for intervention may be filed any time before the
rendition of the judgment by the trial court (Sec. 2, Rule 19,
Rules of Court). On the other hand, it would not be
procedurally possible for a third party claimant during the
execution stage of the judgment under Rule 39 to intervene
because by then a judgment has already been rendered.
Intervention is permitted only before the rendition of
judgment by the trial court (Sec. 2, Rule 19, Rules of Court).
3. The third-party claimant is not precluded by Sec. 14 of
Rule 57 from vindicating his claim to the property in the
same or in a separate action. Thus, he may file a separate
action to nullify the levy with. damages resulting from the
unlawful levy and seizure. This action may be a totally
distinct action from the former case Ching vs. Court
ofAppeals, 423 SCRA 356).
- The above remedies are cumulative and any one of them
may be resorted to without availing of the other remedies.
Illustration (Bar 2000)
Page135
JK's real property is being attached by the sheriff in
a civil action for damages against LM. JK claims that he is not
a party to the case; that his property is not involved in the
said case; and that he is the sole or registered owner of the
said property. Under the Rules of Court, what must JK do to
prevent the sheriff from attaching his property?
Suggested answer.
Please refer to the immediately preceding topic.
II. Preliminary Injunction (Rule 58)
I. Nature of preliminary injunction
1. > Preliminary injunction - an ancillary or preventive
remedy where a court requires a person, a party or even a
court or tribunal either to refrain (prohibitory) from or to
perform (mandatory) particular acts during the pendency of
an action. It is merely a temporary remedy subject to the
final disposition of the principal action. It is issued by the
court to prevent threatened or continuous irreparable 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 ease can be heard fully.
2. Preliminary injunction is a preservative remedy for the
protection of substantive rights or interests. It is not a cause
of action in itself but merely a provisional remedy, an
adjunct to a main suit is resorted to by a litigant to protoct
or proserve his rights or interests and for no other purpose
during the pendency of the principal action.
3. Section 3, Rule 58 of the Rules of Court provides that a
preliminary injunction may be granted when the following
have been established:
(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 nonperformance
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.
4. "A petition for a writ of preliminary injunction rests upon
an alleged existence of an emergency or of a special reason
for such a writ before the case can be regularly tried. By
issuing a writ of preliminary injunction, the court can
thereby prevent a threatened or continued irreparable injury
to the plaintiff before a judgment can be rendered on the
claim.
- "The plaintiff praying for a writ of preliminary injunction
must further establish that he or she has a present and
unmistakable right to be protected; that the facts against
which injunction is directed violate such right, and there is a
special and paramount necessity for the writ to prevent
serious damages. In the absence of proof of a legal right and
the injury sustained by the plaintiff, an order for the
issuance of a writ of preliminary injunction will be nullified.
Thus, where the plaintiff's right is doubtful or disputed, a
preliminary injunction is not proper. The possibility of
irreparable damage without proof of an actual existing right
is not a ground for a preliminary injunction.
- However, to establish the essential requisites for a
preliminary injunction, the evidence to be submitted by the
plaintiff need not be conclusive and complete. The plaintiffs
are only required to show that they have an ostensible right
to the final relief prayed for in their complaint. A writ of
preliminary injunction is generally based solely on initial or
incomplete evidence. Such evidence need only be a sampling
intended merely to give the court an evidence of justification
for a preliminary injunction pending the decision on the
merits of the case, and is not conclusive of the principal
action which has yet to be decided.
- "It bears stressing that findings of the trial court granting or
denying a petition for a writ of preliminary injunction based
on the evidence on record are merely provisional until after
the trial on the merits of the case shall have been
concluded."
- "The trial court, in granting or dismissing an application for
a writ of preliminary injunction based on the pleadings of the
parties and their respective evidence must state in its order
the findings and conclusions based on the evidence and the
law. This is to enable the appellate court to determine
whether the trial court committed grave abuse of its
discretion amounting to excess or lack of jurisdiction in
resolving, one way or the other, the plea for injunctive
relief. The trial court's exercise of its judicial discretion
whether to grant or deny an application for a writ of
preliminary injunction involves the assessment and
evaluation of the evidence, and its findings of facts are
ordinarily binding and conclusive on the appellate court and
this Court.
II. Main action for injunction distinguished from a preliminary
injunction (Bar 2006)
1. The main action for injunction is distinct from the
provisional remedy of preliminary injunction. The former is
an independent action. The latter can only exist as an
incident to a principal action. The provisional remedy is
called preliminary injunction and does not refer to injunction
as a primary action. Preliminary injunction as a provisional
remedy is not a cause of action in itself but merely an
adjunct to a main suit.
2. The main action for injunction seeks a judgment
embodying a final injunction. A preliminary injunction seeks
to preserve the status quo until the merits can be heard. The
purpose of the action for injunction is to enjoin the
defendant from the commission or continuance of a specific
act, or to compel a particular act in violation of the rights of
the applicant.
3. An example of a main action for injunction is the action
authorized under Art. 26 of the Civil Code of the Philippines
against one prying into the privacy of another's residence,
meddling with or disturbing the private life or family
relations of another and other similar acts.
III. Purpose of preliminary injunction
Page136
1. As a provisional remedy, the purpose of preliminary
injunction is to preserve the status quo or to prevent future
wrongs in order to preserve and protect certain interests or
rights during the pendency of the action.
 VI. Prohibitory injunction distinguished from prohibition
- The status quo is the last, actual, peaceable and uncon- Prohibitory injunction Prohibition
tested situation which precedes a controversy. It is the - a provisional remedy that is - a special civil action
situation existing at the time of the filing of the case. The directed to a litigant, not to seeking a judgment
injunction should not establish a new relations between the a tribunal and is issued to commanding a tribunal,
parties, but merely should maintain or re-establish the pre- require said party to refrain corporation, board or officer
existing relationship between them. from a particular act (Sec. 1, to desist form further
Rule 58, Rules of Court). proceeding in the action
2. When the injunction sought is mandatory, a writ of because it has no
preliminary injunction tends to do more than to maintain the jurisdiction, is acting in
status quo because it commands the performance of specific excess of jurisdiction or has
acts and is issued only in cases of extreme urgency and gravely abused its discretion
where the right of the applicant is clear. amounting to lack of
jurisdiction (Sec. 2, Rule 65,
Illustration (Bar 1978) Rules of Court).
The NAWASA cut off its water service to X's
residence for the latter's alleged failure to pay his water bills VII. Mandatory injunction distinguished from mandamus
for six months. X claims that he had paid all his water bills as Mandatory injunction Mandamus
evidenced by receipts. NAWASA claims the receipts to be - directed to a party litigant, - a special civil action
fake and so refused to restore its water service to X's not to a tribunal and is seeking a judgment
residence. issued to require a party to commanding a tribunal,
As counsel for X, what action will you take and why? perform an act to restore board, officer or person to
the last peaceable perform a ministerial duty
Suggested answer. uncontested status preceding required to be performed by
As counsel for X I would file an action for specific the controversy. law (Sec. 3, Rule 65, Rules of
performance and damages against NAWASA and apply for a Court).
writ of preliminary mandatory injunction. Here, the action
for specific performance and damages is the main action and VIII. Stage of proceedings when granted
the preliminary mandatory injunction is the provisional - Preliminary injunction is granted at any stage of the
remedy pending the judgment on the main action. proceedings prior to the judgment or final order (Sec. 1, Rule
58, Rules of Court).
IV. Preliminary injunction distinguished from a final
injunction IX. Court that issues preliminary injunction
Preliminary injunction Final injunction 1. Preliminary injunction must be applied for and issued by
- refers to the writ secured - when it is issued as a the court where the action is pending (Sec. 2, Rule 58, Rules
before the finality of the judgment making the of Court). The term "court" includes a Municipal or a Metro-
judgment (Sec. 1, Rule 58, injunction permanent. It politan Trial Court. Where the main action is within the
Rules of Court). perpetually restrains a jurisdiction of the Municipal Trial Court, then it is this court
person from the continuance which shall issue the preliminary injunction.
or commission of an act and
confirms the previous - Example: Under Sec. 15 Of Rule 70 of the Rules of Court,
preliminary injunction (Sec. the plaintiff in a forcible entry and unlawful detainer case,
9, Rule 58, Rules of Court). may, within five (5) days from the filing of the complaint,
secure from the court a preliminary mandatory injunction to
restore him in his possession. Since a forcible entry case is
cognizable by the Municipal Trial Court, the preliminary
V. Prohibitory and mandatory injunctions injunction sought for in this action must be applied for in the
Prohibitory injunction Mandatory injunction Municipal Trial Court.
1. Injunction is prohibitory 1. It is mandatory when its
when its purpose is to purpose is to require a 2. If the main action is one for injunction, the Municipal Trial
prevent a person from the person to perform a Court cannot grant the preliminary injunction. This is
performance of a particular particular act. because an action for injunction is one incapable of
act. pecuniary estimation and hence, is cognizable by the
2. the act has not yet been 2. the act has already been Regional Trial Court.
performed. performed and this act has
violated the rights of 3. If the action is pending in the Court of Appeals, the
another. application must be made with the Court of Appeals. If it is
3. the status quo is 3. the status quo is restored pending in the Supreme Court, then the application must be
preserved and this refers to the last made in such court. The preliminary injunction applied for in
peaceable, uncontested, the Court of Appeals may be issued by the said court or any
Page137

status prior to the member thereof. If applied for in the Supreme Court, it may
controversy??? be issued by the Supreme Court or any member thereof (Sec.
2, Rule 58, Rules of Court). This is a situation where a
member of the court may issue a writ of preliminary
injunction without the participation of other members of the
court.
X. Requisites for issuance of a writ of preliminary injunction
(Bar 2006) or temporary restraining order
1. The applicable provisions of the Rules of Court enumerate
the following requisites for the issuance of a writ of
preliminary injunction or a temporary restraining order:
(a) There must be a verified application (Sec. 4, Rule 38,
Rules of Court). Absence of a verification makes an
application or petition for preliminary injunction patently
insufficient both in form and substance.
(b) The applicant must establish that he has a right to
relief, a right in esse or a right to be protected and the act
against which the injunction is directed is violativo of such
right.
(c) The applicant must establish that there is a need to
restrain the commission or continuance of the acts
complied of and if not enjoined would work injustice to
the applicant
(d) The applicant must post a bond, unless exempted by
the court. This bond, which shall be in an amount to be
fixed by the court, is executed in favor of the party
enjoined to the effect that the applicant shall pay to the
party enjoined all damages which he may sustain by reason
of the preliminary injunction or the restraining order if the
court should finally decide that the applicant was not
entitled to the writ or order (Sec. 4, Rule 58, Rules of
Court; Bar 2006).
(e) When an application or 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 multi-sala
court, shall be raffled only after notice to and in the
presence of the party sought to be enjoined. The notice
shall be preceded or contemporaneously accompanied by
service of summons upon the defendant. Together with the
summons shall be a copy of the complaint and the
applicant's affidavit and bond (Sec. 4, Rule 58, Rules of
Court).
- However, where the summons could not be served upon
the defendant either in person or by substituted service or
when the defendant is temporarily out of the Philippines or
when he is a non-resident, the requirement of prior or
contemporaneous service shall not apply (Sec. 4, Rule 58,
Rules of Court).
(f) The plaintiff praying for a writ of preliminary injunction
must further establish that he or she has a present and
unmistakable right to be protected; that the facts against
which injunction is directed violate such right; and there is
a special and paramount necessity for the writ to prevent
serious damages. In the absence of proof of a legal right
and the injury sustained by the plaintiff, an order for the
issuance of a writ of preliminary injunction will be
nullified. Thus, where the plaintiff's right is doubtful or
disputed, a preliminary injunction is not proper. The
possibility of irreparable damage without proof of an
actual existing right is not a ground for a preliminary
injunction.
XI. Quantum of evidence required
1. To establish the essential requisites for a preliminary
injunction, the evidence to be submitted by the plaintiff
need not be conclusive and complete. The plaintiffs are only
required to show that they have an ostensible right to the
final relief prayed for in their complaint. A writ of
preliminary injunction is generally based solely on initial or
incomplete evidence. Such evidence need only be a sampling
intended merely to give the court an evidence of justification
for a preliminary injunction pending the decision on the
merits of the case, and is not conclusive of the principal
action which has yet to be decided.
2. At the hearing, mere prima facie evidence is needed-to
establish the applicant's rights or interests in the subject
matter of the main action because the applicant is required
to show only that he has an ostensible right to the final relief
prayed for in his complaint.
3. It bears stressing that findings of the trial court granting or
denying a petition for a writ of preliminary injunction based
on the evidence on record are merely provisional until after
the trial on the merits of the case shall have been concluded.
The trial court, in granting or dismissing an application for a
writ of preliminary injunction based on the pleadings of the
parties and their respective evidence must state in its order
the findings and conclusions based on the evidence and the
law. This is to enable the appellate court to determine
whether the trial court committed grave abuse of its
discretion amounting to excess or lack of jurisdiction in
resolving, one way or the other, the plea for injunctive
relief. The trial court's exercise of its judicial discretion
whether to grant or deny an application for a writ of
preliminary injunction involves the assessment and
evaluation of the evidence, and its findings of facts are
ordinarily binding and conclusive on the appellate court and
this Court.
XII. Notice and hearing (Bar 2001; 1998)
1. A writ of preliminary injunction cannot be issued without a
prior notice and hearing. Under the Rules, "No preliminary
injunction shall be granted without hearing and prior notice
to the party or person sought to be enjoined (Sea 5, Rule 58,
Rules of Court). It cannot be issued ex parte (Bar 2001).
2. Subject to the rules governing matters of extreme urgency
(Sec. 5, 2nd par., Rule 58, Rules of Court), the application
for a temporary restraining order shall be acted upon only
after all parties are heard in a summary hearing. This hearing
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 (Sec. 4, last par., Rule 58, Rules
of Court).
- Where the case is raffled, the period within which to
conduct a summary hearing in an application for a temporary
restraining order is not 24 hours after the case has been
raffled but 24 hours after the records are transmitted to the
Page138
branch to which it is raffled.
XIII. Temporary restraining order (Bar 2006)
l. 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 in which the application for preliminary
injunction was made may issue a temporary restraining order
(TRO) ex parte for a period not exceeding 20 days from
service to the party sought to be enjoined. Within the said
twenty day period, the court must order said party to show
cause why the injunction should not be granted. Also within
the same period, the court shall determine whether or not
the preliminary injunction shall be granted and then shall
issue the corresponding order (Sec. 5, Rule 59, Rules of
Court).
2. The applicant shall file a bond, unless exempted by the
court (Sec. ON, Rule 58, Rules of Court). The rule grants the
court the discretion on the matter of the posting of a bond.
This grant of discretion to require a bond before granting a
temporary restraining order, is not however, intended to give
the judge the license to exercise such discretion arbitrarily
to the prejudice of the defendant. Unless it appears that the
enjoined party will not suffer any damage, the presiding
judge must require the applicant to post a bond, otherwise
the courts could become instruments of oppression and
harassment.
3. If the matter is of extreme urgency, the executive judge
of a multi-sala court or the presiding judge of a singlesala
court may issue a TRO effective for only 72 hours from
issuance, not service. Within this period the executive judge
shall conduct a summary hearing to determine whether or
not the TRO can be extended to 20 days. The 72 hours shall
be included in the maximum 20 day period set by the Rules
(Sec. 5, Rule 58, Rules of Court). When the court is a multi-
sala court, the TRO is not to be issued by any other judge
other than the executive judge of said court (Bar 2006).
- With the exceptions of those provisions that apply
necessarily to multi-sala courts, the same rules shall apply to
single-sala stations especially with regard to immediate
notice to all parties of all applications for TRO (Sec. 4,
Administrative Circular 2095, September 12, 1995).
4. A temporary restraining order is issued to preserve the
status quo until the hearing of the application for
preliminary injunction. The judge may issue a temporary
restraining order with a limited life of twenty (20) days from
date of issue. If before the expiration of the twenty (20) day
period, the application for preliminary injunction is denied,
the temporary restraining order would be deemed
automatically vacated. If no action is taken by the judge
within the twenty (20) day period, the temporary restraining
order would automatically expire on the 20th day by the
sheer force of law, no judicial declaration to that effect
being necessary.
5. The rule against the non-extendibility of the twenty (20)
day effectivity of a temporary restraining order is absolute if
issued by a Regional Trial Court. The failure of the trial court
to fix a period in the temporary restraining order does not
convert it to a preliminary injunction. Where there is an
omission to fix the period, the twenty (20) day period is
deemed incorporated in the order.
6. It is improper for a judge to order a hearing on the
issuance of a temporary restraining order where it was not
prayed for in the complaint.
7. A status quo order is not a temporary restraining order. It
is more in the nature of a cease and desist order, has no
specified duration and does not specifically direct the
performance of an act. It lasts until it is revoked. Its duration
may even be subject to agreement of the parties. No bond is
required for its issuance (Bar 2006).
Illustration (Bar 1998)
(a) What is a temporary restraining order (Bar 2006)
(b) How does it differ from a writ of preliminary injunction.
Suggested answers:
(a) A temporary restraining order (TRO) is an order to
maintain the status quo between or among the parties until
the determination of the prayer for a writ of preliminary
injunction.
(b) A writ of preliminary injunction cannot be granted
without notice and hearing. A temporary restraining order
may be granted ex parte 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 in which the
application for preliminary injunction was made may issue a
TRO ex parte for a period not exceeding 20 days from service
to the party sought to be enjoined (Sec. 5, Rule 58, Rules of
Court).
Illustration (Bar 2001)
An application for a writ of preliminary injunction
with a prayer for a temporary restraining order is included in
a complaint and filed in a multi-sala Regional Trial Court
consisting of Branches 1, 2, 3, and 4. Being urgent in nature,
the Executive Judge, who was sitting in Branch 1, upon the
filing of the aforesaid application immediately raffled the
case in the presence of the judges of Branches 2, 3 and 4.
The case was raffled to branch 4 and the judge thereof
immediately issued a temporary restraining order.
Is the temporary restraining order valid?
Suggested answer:
The temporary restraining order is not valid for two
reasons (a) The facts show a multi-sala court. In this kind of
court, it is only the Executive Judge who can issue the
temporary restraining order ex parte (Sec. 5, Rule 58 Rules of
Court); and (b) There is no showing that the matter is of
extreme urgency and that the applicant would suffer from
grave or irreparable injury if the desired temporary
restraining order would not be issued.
Illustration (Bar 2001)
(a) xxx
(b) May a writ of preliminary attachment be issued ex parte?
Suggested answer:
A writ of preliminary injunction cannot be issued ex
Page139
parte. The rule is clear. It provides that a preliminary
injunction cannot be issued without a prior notice and
hearing (Sec. 5, Rule 58, Rules of Court).
XIV. Issuance of temporary restraining order by the Court of
Appeals (Bar 2006) and the Supreme Court
1. A temporary restraining order (TRO) may be issued by the
Court of Appeals or any member thereof. If so issued, it shall
be effective for 60 days from notice to the party sought to be
enjoined.
- A temporary restraining order issued by the Court of
Appeals cannot exist indefinitely; it has a lifetime of a non-
extendible period of sixty days and automatically expires on
the sixtieth day. No judicial declaration that it has expired is
necessary, and, the lower courts, including the Court
ofAppeals, have no discretion to extend the same. A second
TRO by the Court of Appeals after the expiration of the sixty
day period is a patent nullity.
2. A temporary restraining order (TRO) may also be issued by
the Supreme Court or a member thereof. If so issued, it shall
be effective until further orders (Sec. 5, Rule 58, Rules of
Court).
Illustration (Bar 1988)
What is the duration of a temporary restraining
order (TRO) issued by a (i) Regional Trial Court, (ii) the Court
of Appeals, and (iii) the Supreme Court?
Suggested answer.
Please refer to the immediately preceding topic.
XV.Nature of an order granting a preliminary injunction
1. The issuance of a writ of preliminary injunction rests
entirely within the discretion of the trial court and is
generally not interfered with except in cases of manifest
abuse. The assessment and the evaluation of evidence in its
issuance involve findings of facts ordinarily left to the trial
court for its conclusive determination.
2. An order granting a writ of preliminary injunction is an
interlocutory order, not a final order. An interlocutory order
does not dispose of a case completely but leaves something
to be done (Bar 2006). The grant of the writ is therefore not
appealable. The special civil action of certiorari is therefore,
the correct remedy.
XVI. Examples of cases justifying the issuance of a writ of
preliminary injunction
1. The provisional remedy may be availed of when a petition
for certiorari under Rule 65 of the Rules of Court is filed. The
filing of a petition does not interrupt the principal case
unless a temporary restraining order or a writ of preliminary
injunction has been issued against the respondent tribunal or
officer (Sec. 5, Rule 65, Rules of Court). Settled is the rule
that to arrest the course of the principal action during the
pendency of certiorari proceedings, there must be a
restraining order or a writ of preliminary injunction from the
higher court directed to the lower court.
- Illustration: Defendant filed a petition for certiorari alleging
that the Metropolitan Trial Court gravely abused its
discretion in denying his motion to dismiss and the
subsequent motion for reconsideration. During the pendency
of the petition in the Regional Trial Court, the plaintiff filed
a motion to declare the defendant in default for failure to
file an answer to the complaint within the reglementary
period. The Municipal Trial Court, if it grants the motion,
cannot be considered to have committed a procedural error.
This is because the period to answer was not interrupted by
the filing of the petition. The defendant should have
obtained a preliminary injunction or a temporary restraining
order.
Illustration (Bar 2003)
A filed with the Metropolitan Trial Court of Manila
an action for specific performance against B, a resident of
Quezon City, to compel the latter to execute a deed of
conveyance covering a parcel of land situated in Quezon City
having an assessed value of P19,0000. B received the
summons and a copy of the Complaint on 02 January 2003.
On 10 January 2003, B filed a Motion to Dismiss the
Complaint on the ground of lack of jurisdiction contending
that the subject matter of the suit was incapable of
pecuniary estimation. The court denied the motion, In due
time, B filed with the Regional Trial Court a Petition for
Certiorari praying that the said Order be set aside because
the Metropolitan Trial Court had no jurisdiction over the
case.
On 13 February 2003, A filed with the Metropolitan
Trial Court a motion to declare B in default. The motion was
opposed by B on the ground that his petition for certiorari
was still pending.
(a) xxx
(b)Resolve the motion to declare the defendant
in default.
Suggested answer:
(b) The motion to declare B in default should be granted. B
failed to file his answer within the period prescribed by the
Rules (Sec. 3, Rule 9, Rules of Court). The filing of a petition
for certiorari did not have the effect of suspending the
proceedings in the case and the running of the reglementary
period. B should have obtained a writ of preliminary
injunction or a temporary restraining order from the Regional
Trial Court when he filed the petition for certiorari.
Illustration (Bar 1984)
A, a grocery owner, sued B, before a Regional Trial
for the payment of some merchandise. When the sheriff
failed to effect service of summons on B at Morong, Rizal,
the address stated in the complaint, the Court ordered the
publication of the summons and a copy of the complaint in a
newspaper of general circulation in Rizal.
As B was actually no longer residing in Rizal and
consequently did not become aware of the collection suit
against him, he failed to f.le-his answer in court. He was
therefore declared in default and a judgment was in due
time rendered against him.
One year after the date of judgment, a levy on
execution was made on B's properties.
(a) xxx
(b) What remedies, including provisional ones, if
any, would be available to B and to what forum should he go
for relief? Explain.
Page140
Suggested answer:
(b) An action for annulment of the judgment should. be filed
with the Regional Trial Court, the action being one incapable
of pecuniary estimation. To enjoin the , execution sale, the
action for annulment must be coupled with a prayer for the
issuance of a writ of preliminary injunction or a temporary
restraining order.
2. Preliminary injunction may be availed of when a petition
for relief under, Rule 38 of the Rules of Court is filed.
Remember that the petition is filed after a judgment has
already become final and executory. Assuming that the
prevailing party has not yet filed a motion for an order of
execution, the pendency of a petition for relief will not
prevent the execution of the judgment. To stay its
execution, a preliminary injunction would be advisable.
Common reason however, dictates that when the petition for
relief is dismissed, the injunction which may have been
obtained to stay the enforcement of the judgment is
necessarily dissolved.
- The availmentof preliminary injunction should also apply
when an action to annul a judgment is filed under Rule 47 to
prevent the execution of the judgment.
Illustration (Bar 2002)
A default judgment was rendered by the RTC
ordering D to pay P a sum of money. The judgment became
final, but D filed a petition for relief and obtained a writ of
preliminary injunction staying the enforcement of the
judgment. After hearing, the RTC dismissed the D's petition,
whereupon P immediately moved for the execution of the
judgment in his favor. Should P's motion be granted? Why?
Suggested answer.
P's motion should be granted. The dismissal of the
petition has the effect of dissolving the writ of preliminary
injunction (Golez vs. Leonidas,107 SCRA 187). There is no
more injunction that stays the execution of the judgment
that has already become final and executory.
3. A preliminary mandatory injunction may be availed of to
restore the plaintiff in his possession in a complaint for
forcible entry or unlawful detainer (Sec. 15, Rule 70, Rules of
Court).
XVII. Examples of cases in which injunction/preliminary
injunction will not be issued
1. Under BP Blg. 227 amending the Labor Code of the
Philippines a court cannot issue a temporary or permanent
injunction in cases growing out of a labor dispute. Under Art.
218 of the Labor Code of the Philippines, it is the National
Labor Relations Commission (NLRC) that issues an injunction
in labor disputes (See. 1, Rule X, 2005 Revised Rules of
Procedure of the NLRC).
- No temporary or permanent injunction or restraining order
in any case involving or growing out of labor disputes shall be
issued by any court or other entity except as otherwise
provided in Articles 218 and 264 of the Labor Code. It is the
NLRC which may grant injunctive relief under Art. 218 of the
Labor Code.
- The prohibition against issuance of injunction or restraining
order in any case growing out of a labor dispute does not
apply when the injunction is sought by a third person whose
property is sought to be levied upon to satisfy the liability of
another person.
2. Under RA No. 8735 and PD 1818, there is a prohibition on
the issuance of temporary restraining orders, preliminary
injunctions, or preliminary mandatory injunctions against the
execution or implementation of government infrastructure
projects, essential government projects, including arrastre
and stevedoring operations.
3. A restraining order or a preliminary injunction may not be
issued by any court against the Presidential Agrarian Reform
Council (PARC) or any of its duly authorized agencies in any
case connected with the application, implementation or
enforcement of the CARP.
4. An injunction cannot be issued against the Asset
Privatization Trust (Sec. 31-A, Proclamation No. 50-A.
Note: The functions of the Asset Privatization Trust have
been taken over by the Privatization and Management Office
of the Department of Finance (E.O. No. 323, 2000).
5. A court may not interfere by injunction with the orders of
another court of co-equal rank or decrees of a court with
concurrent or coordinate jurisdiction.
6. The Regional Trial Court may not issue injunction against
quasi judicial bodies of equal rank such as the Social Security
Commission, Securities and Exchange Commission.
7. The Regional Trial Court may not issue injunction against
the Intellectual Property Office, Commission on Elections, or
Workmen's Compensation Commission.
8. No court shall have authority to grant an injunction to
restrain the collection of any national internal revenue tax,
fee, or charge imposed by the Code (RA No. 8424, 218).
- Trial courts are enjoined from issuing orders releasing
imported articles impounded by the Bureau of Customs. It is
settled jurisprudence that the Collector of Customs has
exclusive jurisdiction over seizure and forfeiture
proceedings, and regular courts cannot interfere thereof or
stifle and put it to naught.
9. An injunction cannot be issued against consummated acts
like against a judgment that has already been executed for
the purpose of stopping its execution.
10. An injunction cannot be issued to transfer possession or
control of a property to another when the legal title is still in
dispute between the parties and whose legal title has not
been clearly established.
11. An injunction cannot be issued for the purpose of
establishing new relations between the parties.
12. A preliminary injunction cannot be issued where there is
a lack of a clear and unmistakable right on the party of the
applicant as when the complainant's right is doubtful or
disputed. Granting the application constitutes grave abuse of
discretion.
Page141
13. Courts should also avoid issuing injunctions which in
effect would dispose of the main case without trial.
14. Injunction will not lie to restrain a criminal prosecution,
except:
(a) to afford adequate protection to the constitutional
rights of the accused;
(b) when necessary for the orderly administration of
justice or to avoid oppression or multiplicity of actions;
(c) when double jeopardy is clearly apparent;
(d) where the charges are manifestly false and motivated
by the lust for vengeance; or
(e) where there is clearly no prima facie case against the
accused and a motion to quash on that ground has been
denied.
15. No temporary restraining order or writ of preliminary
injunction against the extrajudicial foreclosure of mortgage
shall be issued on the allegation that the loan has been paid
or is not delinquent unless the application is verified and
supported by evidence of payment. If the ground is that the
interest is unconscionable, no TRO or writ of preliminary
injunction shall be issued unless the debtor pays the
mortgagee at least 12% interest per annum on the principal
obligation as stated in the application for foreclosure sale,
which shall be updated monthly while the case is pending
(A.M. 9910-5-0, Rules on Extrajudicial and Judicial
Foreclosure of Real Estate Mortgage, effective March 10,
2007).
Illustration (Bar 1999)
Will injunction lie to restrain the commencement of
a criminal action?
Suggested answer:
Please refer to the immediately preceding topic.
Illustration (Bar 1996)
1. xxx
2. xxx
3. ABC Cattle Corporation is the holder of a pasture lease
agreement since 1990 covering 1,000 hectares of pasture
land surrounded with fences. In 1992, D was issued a pasture
lease agreement covering 930 hectares of land adjacent to
ABC's. A relocation survey showed that the boundaries of D's
land extended 580 hectares into ABC's pasture land. As ABC
persistently blocked D's advances into its property, D filed a
complaint with preliminary injunction to enjoin ABC from
restraining him in the exercise of his lease rights.
If you were the judge, would you issue a
preliminary injunction? Explain.
Suggested answer.
(3) I would not issue a writ of preliminary
injunction. The writ will not be issued to take property out of
the possession of another whose right has not been clearly
established
16. Under Sec. 25 of the New Central Bank Act (R.A. 7653),
no restraining order or injunction shall be issued by the court
enjoining the BSP from examining any institution subject to
its supervision or examination, unless there is convincing
proof that the action of the BSP is plainly arbitrary and made
in bad faith and the petitioner or plaintiff files a bond
executed in favor of BSP, in an amount to be fixed by the
court.
17. A writ of preliminary injunction will not issue if the act
sought to be enjoined is already consummated or is a fait
accompli.
XVIII. How to dissolve a writ of preliminary injunction or
restraining order
- A writ of preliminary injunction or temporary restraining
order may be dissolved. The party enjoined may file a motion
to dissolve the injunction or TRO with notice and hearing of
the motion upon showing by affidavits that the person
enjoined would suffer irreparable damage while the
applicant can be fully compensated for such damages as he
may suffer. The movant must also file a bond conditioned
upon the payment of al damages which the applicant may
suffer by the dissolution of the injunction or restraining
order. If it appears that the extent of the preliminary
injunction or restraining order granted is too great, it may be
modified (Sec. 6, Rule 57, Rules of Court).
III. Receivership (Rule 59)
I. Nature of a receivership
1. The purpose of a receivership as a provisional remedy is to
protect and preserve the rights of the parties during the
pendency of the main action, during the pendency of an
appeal or as an aid in the execution of a judgment when the
writ of execution has been returned unsatisfied (Sec. 1, Rule
59, Rules of Court). Receivership is aimed at preservation of,
and at making more secure, existing rights. It cannot be used
as an instrument for the destruction of those rights.
- Examples: (a) In an action to foreclose a mortgage when
the property is in danger of being wasted or dissipated or
materially injured and that its value is in danger of not being
able to cover the mortgage debt, the mortgagee may ask for
a receiver to preserve the property, (b) If the judgment
obligor refuses to apply his property to the satisfaction of the
judgment, receivership may be availed of.
2. The receivership provided in Rule 59 is directed to the
property which is the subject of the action and does not
refer to the receivership authorized under the banking laws
and other rules or laws. Rule 59 presupposes that there is an
action and that the property subject of the action requires
its preservation.
Illustration (Bar 2001)
Joaquin filed a complaint against Jose for the
foreclosure of a mortgage of a furniture factory with a large
number of machinery and equipment. During the pendency of
the foreclosure, Joaquin learned from reliable sources that
Jose was quietly and gradually disposing of some of his
equipment and machinery to a businessman friend who was
also engaged in furniture manufacturing such that from
confirmed reports Joaquin gathered, the machinery and
equipment left with Jose were no longer sufficient to answer
for the latter's mortgage indebtedness. In the meantime,
judgment was rendered by the court in favor of Joaquin but
the same' is not yet final.
Knowing what Jose has been doing, if you were
Page142
Joaquin's lawyer, what action would you take to preserve
whatever remaining machinery and equipment are left with
Jose? Why?
Suggested answer.
If I were the lawyer of Joaquin, I would apply for
the appointment of a receiver. Under the Rules, in an action
for the` foreclosure of a mortgage, the court may appoint a
receiver if it can be shown that the property mortgaged is in
danger of being wasted and dissipated or materially injured,
and that its value is probably insufficient to discharge the
mortgage debt (Sec. 1, Rule 59, Rules of Court). The case at
bar falls squarely under the applicable provision.
Illustration (Bar 1995)
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 the 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 a sum of
money. It is available when the property of fund that is the
subject of the litigation is in danger of being lost, removed or
materially injured which in not so in the case at bar (Sec. 1,
Rule 59, Rules of Court).
3. Receivership, like injunction may also be a principal action
as the one referred to in Sec. 4 of Rule 39. Rule 59 is a
receivership that is ancillary to a main action.
II. Court that can grant receivership
- Receivership may be granted by the court in which the
action is pending, by the Court ofAppeals or the Supreme
Court, or any member thereof (Sec. 1, Rule 59, Rules of
Court).
III. Procedure for appointment of a receiver
1. A verified application must be filed by the party
applying for the appointment of a receiver (Sec. 1, Rule
59, Rules of Court);
2. The applicant must have an interest in the property or
funds subject of the action (Sec. 1, Rule 59, Rules of
Court);
3. The applicant must show that the property or funds is in
danger of being lost, wasted or dissipated (Sec. 1, Rule 59,
Rules of Court);
4. The application must be with notice and must be set for
hearing;
5. Before issuing the appointment of a receiver, the court
shall require the applicant to post a bond in favor of the
adverse party. When the receiver is appointed, the
receiver shall take his
oath but before doing so, he shall file a bond. There are
two bonds: the applicant's bond and the receiver's bond
(Sec. 2, Rule 59);
6. Before entering upon his duties, the receiver must be
sworn to perform his duties faithfully (Sec. 4, Rule 59).
IV. Powers of a receiver
1. To bring and defend, actions in his own name in his
capacity as receiver;
2. To keep arid take possession of the property subject of
the 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 to compromise the same;
6. To make transfers;
7. To pay outstanding debts; to divide the money and the
property that shall remain among the persons legally
entitled to receive the same; and
8. Generally to do such acts respecting the property as the
court may authorize (Sec. 6, Rule 59, Rules of Court).
V. Investment of funds by receiver
- A receiver may not invest funds without an order from the
court and without the written consent of the parties to the
action (Sec. 6, Rule 59, Rules of Court).
VI. Suits against a receiver
- No action may be filed against a receiver without leave of
the court which appointed him (Sec. 6, Rule 59, Rules of
Court).
VII. Appointment of a party as a receiver
- A party to a litigation is supposed to be a disinterested
person hence, neither party to the litigation should be
appointed as a receiver without the consent of the other.
IV. Replevin (Sec. 60)
1. Replevin may be a main action or a provisional remedy. As
a principal action its ultimate goal is to recover personal
property capable of manual delivery wrongfully detained by a
person. Used in this sense, it is a suit in itself.
2. The main action for replevin action is primarily possessory
in nature and generally determines nothing more than the
right of possession. For instance, if the plaintiff claims that
the defendant is in possession of his car without lawful
cause, he may file an action for replevin. While the action is
pending, the plaintiff may ask the court to allow him to have
possession of the car in the meantime because he uses the
same as an economic tool and the continued possession of
the car by the defendant deprives him of a vital source of
income. The plaintiff may then apply for replevin as a
provisional remedy. Seeking to have possession of the
property prior to the determination of the action is the
provisional remedy of replevin and not the main action for
replevin. Also, when the debtor defaults and the creditor
decides to foreclose the mortgage but the debtor refuses to
yield possession of the personal property, the creditor may
obtain a writ of replevin as a preliminary step for the
foreclosure.
Illustration (Bar 1999)
What is replevin?
Suggested answer.
Please refer to the immediately preceding topic.
I. Procedure for the application for replevin
1. A party praying for the provisional remedy of replevin
must file an application for a writ of replevin. His application
Page143
for the writ must be filed at the commencement of the
action or at any time before the defendant answers (Sec. 1,
Rule 60, Rules of Court).
2. The application must contain an affidavit where the
applicant particularly describes the property that he is the
owner of the property or that he is entitled to the possession
thereof.
- The applicant need not be the owner of the property. It is
enough that he has a right to its possession.
3. The affidavit must state that the property is wrongfully
detained by the adverse party, alleging therein the cause of
the detention.
4. The affidavit must state that the property has not been
distrained or taken for tax assessment or a fine pursuant to
law, or seized under a writ of execution or preliminary
attachment, or otherwise placed in custodia legis. If it has
been seized, then the affidavit must state that it is exempt
from such seizure or custody.
Replevin cannot be available when the property is in custodia
legis, is under attachment or has been seized pursuant to
law.
Contrast this principle with the rule that a property in
custodia legis may be attached.
5. The affidavit must state the actual market value of the
property, and
6. The applicant must give a bond, executed to the adverse
party and double the value of the property (Sec. 2, Rule 60,
Rules of Court).
Illustration (Bar 1976)
Pending final judgment in an action for recovery of
personal property: (1) May the plaintiff apply for immediate
delivery of the property in question? (2) In the affirmative,
what requisites must the plaintiff comply with in order to
make this remedy available to him? (3) What is this ancillary
remedy called? (4) May this remedy be availed of in the
Municipal Courts?
Suggested answer.
(1) The plaintiff may apply for immediate delivery of the
personal property because under the Rules, said remedy may
be applied for at the commencement of the action or at any
time before the answer of the defendant (Sec. 1, Rule 60,
Rules of Court). (2) Please refer to the immediately
preceding topic for the answer. (3) This ancillary remedy is
called replevin. (4) This remedy may be available in
Municipal courts provided the value of the property involved
is within its jurisdiction.
Illustration (Bar 1996)
A sold five thousand piculs of sugar to B, payable on
demand. Upon delivery of the sugar to B, however, the latter
did not pay its purchase price. After the lapse of some time
from the date of delivery of the sugar to B, A brought an
action for the rescission of the contract of sale and as
incident of this action, asked for the manual delivery
(replevin) of the sugar to him.
May the remedy of replevin prayed for by A be
granted? Explain.
Suggested answer.
The remedy of replevin may be granted. The
defendant may be deemed to be wrongfully detaining the
goods from the plaintiff. Upon the filing of the requisite
affidavit and bond, the writ of replevin may be granted (Sec.
2, Rule 60, Rules of Court).
II. Undertaking of the replevin bond
- The bond which is double the value of the property involved
is for the payment to the adverse party of such sum as he
may recover from the applicant in the action (Sec. 2, Rule
60, Rules of Court).
III. Order of the court and duty of sheriff
1. When the court approves the application, the court shall
issue an order and the corresponding writ of replevin
describing the property alleged to be wrongfully detained.
This order shall require the sheriff to take the property into
his custody (Sec. 3, Rule 60, Rules of Court).
2. Upon the receipt of the court order, the sheriff must (a)
serve a copy of the order on the adverse party, together with
a copy of the application, affidavit and bond; and (b) take
custody of the property (Sec. 4, Rule 60, Rules of Court).
3. After the sheriff has taken custody of the property, he
must keep it in a secure place (Sec. 4, Rule 60, Rules of
Court).
Within five (5) days From the taking of the property, the
sheriff shall wait for the move of the adverse party. If the
latter does not object to the sufficiency of the bond after
said period or performs acts to effect the return to him of
the property taken by the sheriff, the property shall be
delivered to the applicant (Sec. 6, Rule 60, Rules of Court).
IV. How adverse party can seek the return of the property
1. If within five (5) days from the taking of the property by
the sheriff, the adverse party decides to have the property
back, he may require the return thereof by (a) filing with the
court where the action is pending a bond (called a redelivery
bond) executed to the applicant, in double the value of the
property conditioned upon the payment of such sum as may
be recovered against the adverse party, and (b) by serving a
copy of such bond on the applicant (Sec. 5, Rule 60, Rules of
Court).
2. If the bond is sufficient and in the proper form, the
adverse party gets the property back (Sees. 5, 6, Rule 60,
Rules of Court).
3. Where the adverse party did not object to the other
party's bond nor posted a redelivery bond to recover the
possession of the property taken under the writ of replevin,
the sheriff is under obligation to deliver the property to the
applicant.
V. Replevin distinguished from preliminary attachment
Replevin Prelimiinary attachment
1. The purpose is to recover 1. The purpose is not to
personal property capable of recover any property but
Page144
manual delivery from the simply to have the property
defendant. put in the custody of the
court to secure the
satisfaction of the judgment
 that may be rendered in If you were the lawyer of Virginia, what action
favor of the plaintiff at some should you take to help Virginia in the meantime especially
future time. with the problem of feeding the child?
2. the property either 2. the property does not
belongs to the plaintiff' or belong to the plaintiff but to Suggested answer:
one over which the plaintiff' the defendant. If I were the lawyer of Virginia, I would apply for
has a right of possession. support pendente lite in accordance with Sec. 6 of Rule 61
3. can be availed of only 3. can be availed of even if which provides that in a criminal action where civil liability
when the defendant is in the property is in the includes support for the offspring support pendente lite may
actual or constructive custody of third persons. be obtained provided the civil aspect thereof has not been
possession of the personal waived, reserved or instituted prior to its filing (Sec. 6, Rule
property. 61, Rules of Court).
4. extends only to personal 4. extends to all kinds of
property capable of manual property, real or personal or Illustration (Bar 1999)
delivery. even incorporeal property. Before the RTC, A was charged with rape of his 16-
5. may be availed of without 5. To be availed of the party year old daughter. During the pendency of the case, the
showing that the property is applying for a writ of daughter gave birth to a child allegedly as a consequence of
being concealed or disposed preliminary attachment need the rape. Thereafter she asked the accused to support the
of to the prejudice of the to show that the property is child, and when he refused, the former filed a petition for
plaintiff. being removed, concealed or support pendente lite. The accused however, insists that he
disposed of. cannot be made to give much support arguing that there are
6. Property under custodia 6. Preliminary attachment yet no findings as to his guilt. Would you agree with the trial
legis cannot be the object of can be availed of even if the court if it denied the application for support pendente lite?
replevin. property is in custodia legis.
Suggested answer:
V. "Support Pendente Lite" (Rule 61) I would not agree with the trial court. The remedy
is available in a criminal action for rape and may be granted
1. Support pendente lite is an amount of support provi- where the civil liability includes support for the offspring and
sionally fixed by the court in favor of the person or persons the civil aspect has not been waived, reserved or instituted
entitled thereto during the pendency of an action for support prior to its filing (Sec. 6, Rule 61, Rules of Court).
Here, the main action is for support and support pendente
lite is the provisional remedy. I. Procedure for application for support "pendente lite"
l. The application for support pendente lite may be filed at
2. In one case, temporary support was granted in an action (a) the commencement of the action, or (b) at anytime prior
for habeas corpus filed by the mother in behalf of a minor to the judgment or final order (Sec. 1, Rule 61, Rules of
child against the father, where the father has recognized the Court).
child as his and has not been given support by the father
pending the fixing the amount of support in another action 2.The application must be verified, stating the grounds for
for support. the claim and the financial conditions of both parties. It shall
be accompanied by affidavits, depositions or other authentic
3. Support pendente lite may be granted in rape cases for documents in support thereof (Sec. 1, Rule 61, Rules of
the offspring of the accused as a consequence of the rape Court).
(Sec. 6, Rule 61). It has been ruled that if the right to support is put in issue in
the pleadings or the fact from which the right to support
4. Support pendente lite may hence, be availed of in either arises has not been established, the court cannot grant
of two instances: support pendente lite.
(a) In an action for support; or
(b) In a criminal action where civil liability includes 3. The adverse party shall be asked to comment on the
support for the offspring provided the civil aspect thereof application within five (5) days from service upon him of a
has not been waived, reserved or instituted prior to its copy of the application and supporting documents to it. This
filing (Sec. 6, Rule 61, Rules of Court). comment shall be verified (Sec. 2, Rule 61, Rules of Court).

Illustration (Bar 2001)
Modesto was accused of seduction by Virginia, a
poor, unemployed young girl, who has a child by Modesto.
Virginia was in dire need of pecuniary assistance to keep her
child, not to say of herself, alive. The criminal case is still
pending in court and although the civil liability aspect of the
crime has not been waived or reserved for a separate civil
action, the trial for the case was foreseen to take two long
4. The application shall be set for hearing and a hearing shall
be conducted (Sec. 3, Rule 61, Rules of Court).
5. If the application is granted, the court shall issue an order
where it shall fix the amount of money to be provisionally
paid as support. If the application is denied, the principal
case shall be tried and decided as early as possible (Sec. 4,
Rule 61, Rules of Court).
Page145

years because of the heavily clogged court calendar before

the judgment may be rendered. - The amount fixed in the order is only provisional. It is not
final in character and can be modified depending on the
changing conditions affecting the ability of the obligor to pay
the amount fixed for support.
Illustration (Bar 1981)
"VX" and her son, Mario, are plaintiffs in a case
against "WX" for support. A month after the filing of her
complaint, plaintiffs asked the Court for support pendente
lite. "WV opposes the petition on the ground that Mario is not
his son but the issue of "V)C" as a result of an adulterous
relationship. "WX"asks that he be given an opportunity to
prove his defense. The court, ruling that this defense is a
matter of the main case, denies "WX" the opportunity to
prove his defense at that stage of the case and grants
support pendente lite.
Is the granting of such support pendente lite correct
or not? Give your reasons.
Suggested answer:
The granting of support pendente lite without a
hearing is not correct. Under the Rules, the application shall
be set for hearing and a hearing shall be conducted (Sec. 3,
Rule 61, Rules of Court).
II. Enforcement of the order
- The adverse party has to comply with the order to give
support pendente lite. If he does not, an order of execution
shall be issued by the court either motu proprio or upon
motion. He may likewise be held liable for contempt (Sec. 5,
Rule 61, Rules of Court).
III. Restitution
- When the judgment finds that the person giving support is
not liable therefore, the court shall order the recipient to
make a restitution of what has been received with legal
interest from the date of actual payment. Should the
recipient fail to do so, the person who gave the support may
file an action against the person legally obliged to give such
support (Sec. 7, Rule 61, Rules of Court).
CHAP. 13: SPECIAL CIVIL ACTIONS
I. Preliminaries
l. A civil action is of two types, namely:
(a) ordinary civil actions, and
(b) special civil actions (Sec. 3[a], Rule 1, Rules of
Court).
2. Since a civil action in general is one by which a party sues
another for the enforcement or protection of a right, or the
prevention or redress of a wrong (Sec. 3[a], Rule 1, Rules of
Court), a special civil action is generally brought or filed for
the same purpose.
3. Although both types of actions are governed by the rules
for ordinary civil actions, there are certain rules that are
applicable only to specific special civil actions (Sec. 3[a],
Rule 1, Rules of Court). The fact that an action is subject to
special rules other than those applicable to ordinary civil
actions is what makes a civil action special.
- Examples:
(a) An ordinary civil action must be based on a cause of
action (Sec. 1, Rule 2, Rules of Court). This means that the
defendant must have performed an act or omitted to do an
act in violation of the rights of another (Sec. 2, Rule 2,
Rules of Court). These definitions do not fit the
requirements of a cause of action in certain special civil
actions.
This rule does not appear relevant to the special
civil action of declaratory relief which is brought before
there is any breach of a deed, will contract, statute,
executive, order or regulation ordinance, or any other
governmental regulation. In short, the cause of action as
defined and required of an ordinary civil action finds no
application to the special civil action of declaratory relief.
It finds no application also in a complaint for interpleader.
In this action, the plaintiff may file a complaint even if he
has sustained no actual transgression of his rights. In fact,
he actually has no interest in the subject matter of the
action. This is not so in an ordinary civil action.
(b) The venue in ordinary civil actions is determined by
either the residence of the parties where the action is
personal or by the location of the property where the
action is real. This dichotomy does not always apply to a
special civil action. For instance, the venue in a petition
for quo warranto is where the Supreme Court or the Court
of Appeals sits if the petition is commenced in any of these
courts and without taking into consideration where the
parties reside. It is only when the petition is lodged with
the Regional Trial Court that residence is considered in
venue analysis. Again, while in ordinary civil actions the
residences of both the plaintiff and the defendant are
factored in the determination, a petition for quo warranto
filed in the Regional Trial Court merely looks into the
residence of the respondent, not that of the petitioner.
But if it is the Solicitor General who commences the
action, another special rule is followed because the
petition may only be commenced in a Regional Trial Court
in Manila, in the Court of Appeals or in the Supreme Court.
(c) Ordinary civil actions may be filed initially in either the
Municipal Trial Court or the Regional Trial Court depending
upon the jurisdictional amount or the nature of the action
involved. On the other hand, there are special civil actions
which can only be filed in a Municipal Trial Court like the
actions for forcible entry and unlawful detainer. There are
also special civil actions which cannot be commenced in
the Municipal Trial Court foremost of which are the
petitions for certiorari, prohibition and mandamus.
4. The special civil actions under the Rules are the following:
(a) Interpleader (Rule 62);
(b) Declaratory relief and similar remedies (Rule 63);
(c) Review of judgments and final orders or resolutions of
the Commission on Elections and the Commission on Audit
(Rule 64);
(d) Certiorari, Prohibition and Mandamus (Rule 65);
(e) Quo warranto (Rule 66);
(f) Expropriation (Rule 67);
(g) Foreclosure of real estate mortgage (Rule 68);
Page146
(h) Partition (Rule 69);
(i) Forcible Entry and unlawful detainer (Rule 70); and
(j) Contempt (Rule 71).
- Rule 64 is a new special civil action and applies to
judgments, final orders or resolutions of two constitutional
commissions, the Commission on Elections and the
Commission on Audit. The Civil Service Commission, another
constitutional commission is not treated in Rule 64.
5. While ordinary civil actions when filed are denominated as
`complaints', some special civil actions are not denominated
as such but as `petitions' . While the terminology used does
not go into the substance of the action, it is advisable to
remember those special civil actions which are initiated by
the filing of a petition, namely:
1. Declaratory relief and other similar remedies;
2. Review of adjudications of the COMELEC and COA;
3. Certiorari, prohibition and mandamus;
4. Quo warranto; and
5. Contempt.
- The following special civil actions are initiated by the filing
of a complaint:
1. Interpleader;
2. Expropriation;
3. Foreclosure of real estate mortgage;
4. Partition; and
5. Forcible entry and unlawful detainer.
I. Interpleader (Rule 62)
I. Meaning of interpleader (Bar 1998)
1. > interpleader - a special civil action filed by a person
against whom two conflicting claims are made upon the same
subject matter and over which he claims no interest, to
compel the claimants to interplead and to litigate their
conflicting claims among themselves (Sec. 1, Rule 62, Rules
of Court; Bar 1998).
2. As gleaned from the Rules, an action for interpleader
requires that:
(a) There must be two or more claimants with adverse or
conflicting interests to a property in the custody or
possession of the plaintiff;
(b) The plaintiff in an action for interpleader has no claim
upon the subject matter of the adverse claims or if he has
an interest at all, such interest is not disputed by the
claimants;
(c) The subject matter of the adverse claims must be one
and the same.
3. A classic example is that of a warehouseman who has
custody of goods claimed to be owned by two or more
persons who do not have the same interests. He may file an
action for interpleader for the court to determine the
rightful owner. The basis of the need to file an interpleader
in the case of a warehouseman is actually the substantive law
provisions of the Warehouse Receipts Law. Under said law,
where a warehouseman delivers the goods to one who is not
in fact entitled to possession, the warehouseman shall be
liable for conversion (Sec. 10, Warehouse Receipts Law). He
may also be sued for damages for non-delivery if he refuses
to deliver the goods. Hence, Sec. 17 of the same law
authorizes the warehouseman to require all known claimants
to interplead to shield him from liability.
4. Another usual example is the case of a lessee who may
commence a complaint for interpleader when he is
confronted with adverse claimants on the rentals due and he
is in doubt as to which of them should be the rightful
recipient.
- Recall that under the Civil Code of the Philippines, a
cardinal principle to be observed for the validity of payment
or performance is that payment must be made "to the person
in whose favor the obligation was constituted" (Art. 1240,
Civil Code of the Philippines). This means that as a rule,
payment to the wrong person is not a valid payment and does
not extinguish the obligation. Where two or more persons
who do not represent the same interests claim the right to
collect, the debtor will have to file an action for interpleader
to effect the extinguishment of his obligation.
Illustration (Bar 1988)
LTA, Inc. is the lessee of a building owned by Mr.
Tenorio paying rental of P10,000.00 a month. The owner died
on May 10, 1988 and since then, LTA has not paid the
monthly rentals, now amounting to P40,000.00 because two
women are both claiming to be widows of Tenorio and are
demanding rental payments.
What legal action may LTA's counsel take, before
what court and against whom to protect LTA's interest?
Suggested answer.
LTAs counsel should file an action for interpleader
against the two women and pray that the court resolve their
conflicting claims. The action should be filed in the Municipal
Trial Court because the subject of the action is an amount
within the jurisdiction of said court. Note: When the question
was asked, jurisdiction was with the Regional Trial Court. At
that time the jurisdictional amount for the RTC was an
amount exceeding P10,000.00.
Illustration (Bar 1996)
A lost the cashier's check she purchased from XYZ
Bank. Upon being notified of the loss, XYZ Bank immediately
issued a "STOP PAYMENT" order. Here comes B trying to
encash the same cashier's check but XYZ Bank refused
payment.
As precautionary measure what remedy may XYZ Bank avail
of with respect to the conflicting claims of A and B over the
cashier's check? Explain.
Suggested answer:
XYX Bank should file a complaint for interpleader
and leave unto the court the resolution of the conflicting
claims of A and B. Note: The examiner made reference to
"conflicting claims." This is a clue as to what the examiner
desires as an answer. The examinee should therefore, refrain
from making assumptions or unnecessary analysis.
Illustration (Bar 1978)
H insured his life with X Insurance Co. and
designated W as beneficiary. The policy provided that the
beneficiary could be changed by a written notice designating
the new beneficiary sent by the insured and received by X
Page147
Insurance Co. before the death of the insured. After the
death of H, Q demanded from X Insurance Co. the proceeds
of the policy, claiming that she had been designated as the
beneficiary by H as may be seen from a copy of a written
notice signed by H and allegedly received by X Insurance Co.
before X's death. W who is also demanding from X Insurance
Co. the proceeds of the policy, claims that the signature of H
appearing on the written notice is forged.
As counsel for X Insurance Co., what advice would
you give to your client and why?
Suggested answer:
I would advice my client not to pay either of the
claimants in the meantime and instead file a complaint for
interpleader against them and let the court resolve their
conflicting claims (Sec. 1, Rule 63, Rules of Court).
II. Basic procedure
1. A complaint for interpleader is filed by the person against
whom the conflicting claims are made (Sec. 1, Rule 62, Rules
of Court). The person who files the complaint shall pay the
docket and other lawful fees and shall bear the costs and
other litigation expenses even if he has no interest in the
subject matter of the action. Recovery of such fees and
expenses may nevertheless, be recovered later on because
under Sec. 7 of Rule 62, they shall constitute a lien or charge
upon the subject matter of the action, unless the court shall
order otherwise.
2. In an ordinary civil action, 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
defendant (Sec. 1, Rule 14, Rules of Court). In interpleader,
upon the filing of the complaint, the court shall issue an
order requiring the conflicting claimants to interplead with
one another (Sec. 2, Rule 62, Rules of Court). This order shall
however, be served upon the conflicting claimants together
with the summons and a copy of the complaint (Sec. 3, Rule
62, Rules of Court).
- In that same order requiring the claimants to interplead
with one another, the court may include an order directing
that the subject matter of the action be paid or delivered to
the court. Such direction shall be made if the interest of
justice so requires (Sec. 2, Rule 62, Rules of Court).
3. Within the time for filing an answer, each claimant may
file a motion to dismiss. The ground to be relied upon may be
any of the grounds for dismissal of an action specified in Rule
16. In addition, another ground is provided for in Rule 62 -
impropriety of the action for interpleader (Sec. 4, Rule 62,
Rules of Court). This ground is not found in Rule 16 of the
Rules of Court.
- It is believed that where the allegations of the complaint do
not show conflicting claims between or among the persons
required to interplead, the complaint for interpleader is
subject to dismissal on the ground of impropriety of the
interpleader, not a failure to state a cause of action under
Rule 16 because the meaning of a cause of action in ordinary
civil actions cannot apply to an interpleader. Besides, for an
interpleader to be proper such conflicting claims must exist
(Sec. 1, Rule 62, Rules of Court). Conversely, there is
impropriety where no such adverse claims can be found from
the reading of the complaint.
4. The period to file an answer is interrupted or tolled by the
filing of the motion to dismiss. If the motion is denied, the
movant may file his answer within the remaining period to
answer, but which shall not be less than five (5) days in any
event, reckoned from the notice of denial of the motion
(Sec. 4, Rule 62, Rules of Court).
5. The answer shall be filed within fifteen (15) days from the
service of summons upon him. The answer shall set forth the
claim of the claiming party and shall be served upon each of
the conflicting claimants. If any of the claimants fail to file
his answer within the reglementary period, the court may,
upon motion, declare the non-answering claimant in default.
A judgment shall then be rendered barring him from any
claim in respect to the subject matter of the action (Sec. 5,
Rule 62, Rules of Court).
6. A reply to the answer of the other may be filed by each of
the conflicting claimants (Sec. 5, Rule 62, Rules of Court).
The parties may also file counterclaims, cross-claims, third-
party complaints and responsive pleadings thereto in
accordance with the Rules of Court, i.e., the rules governing
ordinary civil actions (Sec. 5, Rule 62, Rules of Court).
7. A pre-trial shall be conducted also in accordance with the
Rules of Court (Sec. 6, Rule 62, Rules of Court).
8. After the pleadings shall have been filed, and pretrial has
been conducted in accordance with the Rules, the court shall
proceed to determine their respective rights and adjudicate
their several claims (Sec. 6, Rule 62, Rules of Court).
III. Court with jurisdiction
- The court with jurisdiction over an action for interpleader
shall depend upon the following:
1. If the subject matter of the action is personal property,
valued at not more than P300,000.00 outside Metro Manila,
and in Metro Manila, at not more than P400,000.00, the
Municipal Trial Court has jurisdiction.
2. If the subject matter is real property with an assessed
value at not more than P20,000.00 outside Metro Manila, and
in Metro Manila, at not more than P50,000.00, the Regional
Trial Court has jurisdiction.
Illustration (Bar 1997)
What courts have jurisdiction over the following
cases filed in Metro Manila?
xxx
(d) An action for interpleader to determine who between the
defendants is entitled to receive the amount of P190, 000.00
from the plaintiff.
Suggested answer.
(d) The action shall be filed in the Metropolitan Court in
Metro Manila. The amount of P190, 000.00 not being in
excess of P400, 000.00, is within the jurisdiction of said
court.
IV. Distinctions between interpleader and intervention
- The following are the well-recognized distinctions between
interpleader and intervention:
Interpleader Intervention
Page148
1. a special civil action, 1. not an original action but
independent and original. merely ancillary and depends
upon the existence of a
previous pending action.
2. commenced by the filing 2. commenced by a motion court cannot refuse to render a judgment. This is plain from
of a complaint, it being an to intervene filed in a the phraseology of Sec. 5 of Rule 63.
original action. pending case attaching
thereto the pleading-in- II. Subject matter in a petition for declaratory relief
intervention. 1. The subject matter in a petition for declaratory relief is
3. filed by a person who has 3. filed by a person who has any of the following:
no interest in the subject a legal interest in any of the (a) a deed;
matter of the action or if he following: (a) the subject (b) a will;
has an interest, the same is matter of the litigation; (b) (c) a contract or other written instrument;
not disputed by the the success of either of the (d) a statute;
claimants. parties; (c) the success of (e) an executive order or regulation;
both of the parties; or (b) he (f) an ordinance; or
may be adversely affected (g) any other governmental regulation (Sec. 1, Rule 63,
by the disposition or Rules of Court).
distribution of property in
the judgment. 2. The enumeration of the subject matter is exclusive.
4. the defendants are 4. if a complaint-in- Hence, an action not based on any of the enumerated
brought into the action only intervention is filed, the subject matters cannot be the proper subject of declaratory
because they are impleaded defendants are already relief.
as such in the complaint. parties to an existing suit not (a) An action for declaratory relief to ask the court to
because of the intervention declare his filiation and consequently his hereditary rights
but because of the original is improper. The action is not based on a deed, a will,
suit. statute or any of those enumerated as the subject matter
of the petition
II. Declaratory Relief and other Similar Remedies (Rule 63) (b) An action for declaratory relief to seek judicial
declaration of citizenship to correct a previous unilateral
I. Preliminaries registration by petitioner as an alien is improper, the
1. Rule 63 covers two types of actions: (a) petition for action not being founded on a deed, contract or any
declaratory relief, and (b) similar remedies. ordinance (Obiles vs. Republic, 92 Phil. 864). An action for
declaratory relief is not proper to resolve doubts
2. The similar remedies are: (a) action for reformation of an concerning one's citizenship.
instrument; (b) action to quiet title; and (c) action to (c) A petition for declaratory relief is not proper for the
consolidate ownership, under Article 1607 of the Civil Code. purpose of seeking enlightenment as to the true import of
a judgment. The remedy is to move for a clarificatory
3. These types of actions are treated differently by the judgment.
Rules. In declaratory relief, "the court, motu proprio or upon (d) A petition for declaratory relief is not proper to assail a
motion, may refuse to exercise the power to declare rights judgment. A party could appeal and employ other
and to construe instruments in any case where a decision remedies under the Rules of Court before or after the
would not terminate the uncertainty or controversy which judgment has become final and executor.
gave rise to the action, or in any case where the declaration
or construction is not necessary and proper under the 3. Even if the subject is one enumerated under the Rules,
circumstances" (Sec. 5, Rule 63, Rules of Court). In where the contract or statute is clear in its terms and there
declaratory relief, the court is given the discretion to act or is no doubt as to its meaning and validity, a petition for
not to act on the petition. It may therefore, choose not to declaratory relief is improper. There would be no need for
construe the instrument sought to be construed or could construction or a declaration of rights thereunder.
refrain from declaring the rights of the petitioner under the
deed or the law. A refusal of the court to declare rights or Illustration (Bar 1998)
construe an instrument is actually the functional equivalent A student files an action for declaratory relief
of the dismissal of the petition but on any of the two grounds against his school to determine whether he deserves to
not found in either Rule 16 or Rule 17 of the Rules of Court, graduate with Latin honors. Is this action tenable?
namely:

(a) Where a decision on the petition would not terminate

the uncertainty or controversy which gave rise to the
action, or
(b) Where the declaration or construction is not necessary
and proper under the circumstances as' when the
instrument or the statute has already been breached.
4. On the other hand, the court does not have the discretion
Suggested answer:
The action is not tenable. To be the proper subject
of a petition for declaratory relief, the subject of the
petition must be a deed, will, contract, written instrument,
statute, executive order, regulation, ordinance, or any other
governmental regulation. Whether or not the student is to be
conferred Latin honors is not a proper subject of the
Page149

to refuse to act with respect to actions described as `similar petition.

remedies'. Thus, in an action for reformation of an
instrument, to quiet title or to consolidate ownership, the III. Court with jurisdiction
- The subject matter of a petition for declaratory relief
raises issues which are not capable of pecuniary estimation
and must be filed with the Regional Trial Court (Sec. 19[11,
BP 129; Sec. 1, Rule 63, Rules of Court). It would be error to
file the petition with the Supreme Court which has no
original jurisdiction to entertain a petition for declaratory
relief.
IV. Purpose of the petition
1. An action for declaratory relief is brought to secure an
authoritative statement of the rights and obligations of the
parties under a contract or a statute for their guidance in the
enforcement or compliance with the same.
The purpose of the petition is to ask the court to
determine any question of construction or validity arising
from the subject matter, and for the declaration of rights
and duties therein (Sec. 1, Rule 63, Rules of Court). Thus,
the purpose is to seek for a judicial interpretation of an
instrument or for a judicial declaration of a person's rights
under a statute and not to ask for affirmative reliefs like
injunction, damages or any other relief beyond the purpose
of the petition as declared under the Rules. It is not brought
to settle issues arising from a breach because after the
breach of the contract or statute, the petition can no longer
be brought.
2. It has been held that in an action for declaratory relief,
the question raised is a question of "construction" or "validity"
arising under an instrument or statute. The object is to
terminate uncertainties in an instrument or statute and the
judgment of the court cannot extend beyond a declaration of
the rights and duties of the parties to the action and cannot
provide corrective reliefs
3. It is the absence of allegations seeking material or
affirmative reliefs in a petition for declaratory relief that it
has been held that when the main case is for declaratory
relief, a third-party complaint is inconceivable. The relief
sought in this kind of pleading is contribution, indemnity,
subrogation or other relief from the third-party defendant in
respect of the claim of the plaintiff against him. Accordingly,
this relief cannot be granted because in a declaratory relief,
the court is merely interpreting the terms of the contract. It
has also been held however, that a petition for declaratory
relief may entertain a compulsory counterclaim as long as it
is based on or arising from the same transaction, subject
mater of the petition.
4. Since the objective of the petition is merely an
interpretation of a deed or a contract or for a definitive
pronouncement of rights under a particular law, rule or
order, there is nothing to execute in the judgment of the
court the way judgments in ordinary civil actions are
executed. This is because the judgment in a declaratory
relief is confined either to an interpretation of a deed or a
declaration whether or nor the petitioner has or does not
have rights under the law. As a general principle therefore,
the judgment in a declaratory relief is said to stand by itself
and no executory process follows as of course. It is unlike the
judgment in an ordinary civil action which is coercive in
character and enforced by execution.
V. The petitioner and other parties
1. If the subject matter is a deed, will, contract or other
written instrument, the petitioner is the person interested in
the same (Sec. 1, Rule 63, Rules of Court). Those who may
sue under the contract should be those with interest under
the contract like the parties, the assignees and the heirs as
required by substantive law (Art. 1311, Civil Code of the
Philippines).
2. If it be a statute, executive order, regulation or
ordinance, the petitioner is one whose rights are affected by
the same (Sec. 1, Rule 63, Rules of Court).
3. The other parties are all persons who have or claim any
interest which would be affected by the declaration (Sec. 2,
Rule 63, Rules of Court). The rights of persons not made
parties to the action do not stand to be prejudiced by the
declaration (Sec. 2, Rule 63, Rules of Court). Since their
rights are not to be prejudiced by their non-inclusion, the
failure to implead such persons does not therefore, affect
the jurisdiction of the court over the petition.
4. Where the action involves the validity of a local
government ordinance, the corresponding `prosecutor or
attorney of the local government 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. 4, Rule 63,
Rules of Court).
VI. Filing before any breach or violation; justiciable
controversy
1. The petition for declaratory relief is filed before there
occurs` any breach or violation of the deed, contract,
statute, ordinance or executive order or regulation. It will
not prosper when brought after a contract or a statute has
already been breached or violated (Sec. 1, Rule 63, Rules of
Court). If there has already been a breach, the appropriate
ordinary civil action,' not declaratory relief, should be filed.
- Where the law or contract has already been contravened
prior to the filing of the action for declaratory relief, the
court can no longer assume jurisdiction over the action for
declaratory relief if its subject, i.e., the statute, deed or
contract, etc. has already been infringed or transgressed
before the institution of the action. Under such
circumstances, inasmuch as a cause of action has already
accrued in favor of one or the other party, there is nothing
more for the court to explain or clarify short of a judgment
or final order.
2. However, when the breach occurs not before the filing of
the petition for declaratory relief but after the action has
been constituted and during its pendency, the action is not
to be dismissed but may be converted into an ordinary action
and the parties shall be allowed to file such pleadings as may
be necessary or proper (Sec. 6, Rule 63, Rules of Court).
3. The traditional concept of cause of action in ordinary civil
actions, as earlier mentioned does not apply to a declaratory
relief where no specific right of the plaintiff has as yet been
Page150
violated because the action is brought before a breach of the
deed or law occurs.
4. The absence of a breach should not however, be taken to
mean that the petition need not involve a controversy. A
justiciable controversy is in fact indispensable for the
propriety of the petition. It need not be a controversy
consisting of an actual violation of a right by another but one
with the "ripening seeds" of a controversy. The controversy
must be one that is not merely imagined or one that is
academic or theoretical.
5. A justiciable controversy is required because the court, in
a petition for declaratory relief is not called upon to render a
mere `advisory opinion' which unlike a judicial proceeding,
has no res judicata effect and requires no controversy of
whatever degree.
6. Courts are not called upon to resolve questions as a "pure
academic exercise."
- For example, a person who impugns a statute must be one
who could show that he will sustain a direct injury as a result
of the enforcement of a statute (Cabarle vs. Tagle, G.R. No.
113475, February 15, 1994). An actual injury is not
necessary. In declaratory relief, all that is required is an
impending violation of the plaintiff's rights.
VII. Summary of requisites for the petition
- Jurisprudence has laid down the following as requisites for
the petition:
(a) There must be a justiciable controversy;
(b) The controversy must be between persons whose
interests are adverse;
(c) The party seeking the relief must have a legal interest
in the controversy; and
d) That the issue is ripe for judicial determination.
VIII. Reformation of an instrument
1. An action for reformation is not an action brought to
reform a contract but to reform the instrument evidencing
the contract. The action for reformation presupposes that
there is nothing wrong with the contract itself because there
is a meeting of minds between the parties (Art. 1359, Civil
Code of the Philippines). A contract does not refer to a deed
or an instrument but to a meeting of the minds of the parties
(Art. 1305, Civil Code of the Philippines). Art. 1359 of the
civil code does not in fact refer to a reformation of the
contract but of the `instrument'.
2. The contract is to be reformed because despite the
meeting of minds of the parties as to the object and cause of
the contract, the instrument which is supposed to embody
the agreement of the parties does not reflect their true
agreement by reason of mistake, fraud, inequitable conduct
or accident. The action is brought so the true intention of
the parties may be expressed in the instrument (Art. 1359,
Civil Code of the Philippines).
- Examples:
(a) The parties have agreed on the size of the land subject
of the sale. By an act of fraud of the seller who prepared
the deed of sale, a smaller area is indicated in the deed.
There is nothing defective in the contract which is the
meeting of the minds. The defect is in the deed of sale,
which is the instrument. If an action for reformation is
brought, the action must be for the purpose of reforming
the instrument.
(b) An instrument may be reformed if the instrument does
not express the true intention of the parties because of
lack of skill of the person drafting the instrument (Art.
1363, Civil Code of the Philippines).
(c) If the parties agree upon the mortgage or pledge of
property, but the instrument states that the property is
sold absolutely or with a right of repurchase, reformation
of the instrument is proper (Art. 1365, Civil Code of the
Philippines).
3. Where the consent of a party to a contract has been
procured by fraud, inequitable conduct or accident, and an
instrument was executed by the parties in accordance with
the contract, what is defective is the contract itself because
of vitiation of consent. The remedy is not to bring an action
for reformation of the instrument but to file an action for
annulment of the contract (Art. 1359, Civil Code of the
Philippines). A contract where one party's consent is vitiated
is voidable or annullable (Art. 1330, Civil Code of the
Philippines; Art. 1390[21, Civil Code of the Philippines).
4. Reformation of the instrument cannot be brought to
reform any of the following:
(a) Simple donations inter vivos wherein no condition is
imposed;
(b) Wills; or
(c) When the agreement is void (Art. 1666, Civil Code of
the Philippines).
IX. Consolidation of ownership
1. The concept of consolidation of ownership under Art. 1607
of the Civil Code has its origins in the substantive provisions
of the law on sales. Under the law, a contract of sale may be
extinguished either by legal redemption (Art. 1619, Civil
Code of the Philippines) or conventional redemption (Art.
1601, Civil Code of the Philippines).
2. Legal redemption also called retracto legal, is a statutory
mandated redemption of a property previously sold. For
instance, a co-owner of a property may exercise the right of
redemption in case the shares of all the other co-owners or
any of them are sold to a third person (Art. 1620, Civil Code
of the Philippines). The owners of adjoining lands shall have
the right of redemption when a piece of rural land with a size
of one hectare or less is alienated (Art. 1621, Civil Code of
the Philippines).
3. > Conventional redemption (also called pacto de retro
sale) one that is not mandated by the statute but one which
takes place because of the stipulation of the parties to the
sale.
- The law provides: "Conventional redemption takes place
when the vendor reserves, the right to repurchase the thing
sold * * *" (Art. 1601, Civil Code of the Philippines). The
period of redemption may be fixed by the parties in which
Page151
case the period cannot exceed ten (10) years from the date
of the contract. In the absence of any agreement, the
redemption period shall be four (4) years from the date of
the contract (Art. 1606, Civil Code of the Philippines).

4. Where redemption is not made within the period agreed
upon, in case the subject matter of the sale is real property,
Art. 1607 provides that the "consolidation of ownership in the
vendee * * * shall not be recorded in the Registry of Property
without a judicial order, after the vendor has been duly
heard."
5. The action brought to consolidate ownership is not for the
purpose of consolidating the ownership of the property in the
person of the vendee or buyer but for the registration of the
property. The lapse of the redemption period without the
seller a retro exercising his right of redemption, consolidates
ownership or title upon the person of the vendee by
operation of law. Art. 1607 requires the filing of the petition
to consolidate ownership because the law precludes the
registration of the consolidated title without a judicial order.
X. Quieting of title
1. This action is brought to remove a cloud on title to real
property or any interest therein. The action contemplates a
situation where an instrument or a record is apparently valid
or effective but is in truth and in fact invalid, ineffective,
voidable or unenforceable, and may be prejudicial to said
title to real property. This action is then brought to remove a
cloud on title to real property or any interest therein. It may
also be brought as a preventive remedy to prevent a cloud
from being cast upon title to real property or any interest
therein (Art. 476, Civil Code of the Philippines).
2. The plaintiff need not be in possession of the real party
before he may bring the action as long as he can show that
he has a legal or an equitable title to the property which is
the subject mater of the action (Art. 477, Civil Code of the
Philippines).
III. Review of Judgments and Final Orders or Resolutions
of the Commission on Elections and the Commission on
Audit (Rule 64)
I. Preliminaries
- Rule 64 is a new rule and has the Constitution of 1987 as its
basis. Section 7 of Art. IX-A (Constitutional Commissions),
provides:
" * * *. Unless otherwise provided by the Constitution
or by law, any decision, order or ruling of each commission
may be brought to the Supreme Court on certiorari by the
aggrieved party within thirty days from receipt of a copy
thereof."
- The provision was interpreted by the Supreme Court to
refer to certiorari under Rule 65 and not appeal by certiorari
under Rule 45. To implement the above constitutional
provision, the Supreme Court promulgated Rule 64 of the
Rules of Court.
II. Remedy of the aggrieved party
1. A party aggrieved by the judgment, final order or
resolution of the Commission on Elections or the Commission
on Audit may file a petition for certiorari under Rule 65 with
the Supreme Court (Sec. 2, Rule 64, Rules of Court).
- The mode of review under Rule 64 is starkly different from
the mode applicable to the judgment, final order or
resolution of another constitutional body, the Civil Service
Commission. The judgment of the Civil Service Commission
cannot be assailed by a petition for certiorari to the Supreme
Court but by appeal. This appeal shall be taken by filing a
verified petition for review to the Court of Appeals (Republic
Act 7902) in accordance with Rule 43 of the Rules of Court.
- Certiorari is an independent action unlike the petition for
review under Rule 43 which actually is a mode of appeal
although usually called a petition for review.
2. If the mode of review is a petition for certiorari under
Rule 65, the petitioner must anchor the petition, on
jurisdictional grounds, i.e., that the commission concerned
committed a grave abuse of discretion or acted in excess of
jurisdiction in a manner amounting to lack of jurisdiction.
- The petition cannot question the findings of fact of the
commission involved where such findings are supported by
substantial evidence. Such findings when so supported by the
requisite quantum of evidence are final and non-reviewable
(Sec. 5, Rule 64, Rules of Court).
3. The petition for certiorari referred to in Rule 64 shall be
filed within thirty (30) days from notice of the judgment,
final order or resolution of the Commission on Elections and
the Commission on Audit (Sec. 2, Rule 64, Rules of Court).
While Rule 64 makes reference to the certiorari under Rule
65, the period for filing of the petition for certiorari assailing
the judgment ofthe Commission on Elections and the
Commission on Audit is shorter than that provided for under
Rule 65. Under the latter Rule (Sec. 4, Rule 65, Rules of
Court), the petition for certiorari shall be filed not later than
sixty (60) days from notice of the judgment, order or
resolution, or from notice of the denial of a motion for
reconsideration or motion for new trial, whether such motion
is required or not. Under Rule 64, the petition shall be filed
within thirty (30) days only.
4. The period of thirty (30) days has express reference to the
judgment or a final order of the commission concerned. It is
believed that when the petition for certiorari is directed
against an interlocutory order of the commission the period
in Rule 65 should apply.
III. Motion for new trial or motion for reconsideration
- Whether or not a party may file a motion for a new trial or
a motion for reconsideration of the judgment, final order or
resolution of the commission concerned is dependent upon
the procedural rules of the commission concerned. If such
motions are allowed, the filing of either shall interrupt the
Page152
period for the filing of the petition for certiorari. 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
(Sec. 3, Rule 64, Rules of Court). The interruption of the
period for the filing of the petition assumes that the motion
for reconsideration or new trial is not pro forma. If the
motion is pro forma, the period for fling the petition is not
interrupted.
IV. Basic requirements for the petition
- The following basic requirements must be complied with:
1.The petition shall be verified and filed in eighteen (18)
copies.
2. It must be accompanied by clearly legible duplicate
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 and other
documents relevant and pertinent to the petition. The
requisite number of copies of the petition shall contain
plain copies of all documents attached to the original copy
of the petition.
3. The petition shall name the aggrieved party as
petitioner and shall join as respondent the commission
concerned and all the persons interested in sustaining the
judgment, final order or resolution.
4. The petition shall state the facts with certainty, present
clearly the issues involved, set forth the grounds and brief
arguments relied upon for review.
5. The petition shall state the specific material dates
showing that it was filed within the period fixed by the
Rules.
6. The petition shall be accompanied by proof of service of
a copy thereof on the commission involved and on the
adverse party, and of the timely payment of docket and
other lawful fees (Sec. 4, Rule 64, Rules of Court).
7. The petition shall contain a sworn certification against
forum shopping.
8. The petition shall pray for a judgment annulling or
modifying the questioned judgment, final order or
resolution.
- The failure of the petitioner to comply with any of the
foregoing requirements shall be sufficient ground for the
dismissal of the petition (Sec. 5, Rule 64, Rules of Court).
V. Order to comment; outright dismissal
1. The Court has two options upon receipt of the petition - to
deny the petition outright or to order the filing of a
comment.
- The court may dismiss the petition outright if (a) the
petition is not sufficient in form and substance; (b) the
petition is filed manifestly for delay; or (c) the question
raised is too unsubstantial to warrant further proceedings.
- The court shall order the respondents to file their
comments within ten (10) days from notice if it finds the
petition sufficient in form and substance (Sec. 7, Rule 64,
Rules of Court).
- No other pleading may be filed by any party unless required
or allowed by the court (Sec. 7, Rule 64, Rules of Court).
- The comments of the respondents shall be filed in eighteen
(18) legible copies and the original shall be accompanied by
certified true copies of the material portions of the records
referred to together with other supporting papers. Copy shall
be served to the petitioner (Sec. 7, Rule 64, Rules of Court).
VI. Filing of petition does not stay execution
- While the filing of a motion for reconsideration or a motion
for new trial shall interrupt the period for the filing of the
petition (Sec. 3, Rule 64, Rules of Court), the filing of the
petition itself, on the other hand, shall not have the effect of
staying the judgment, final order or resolution of the
Commission on Elections or of the Commission on Audit,
unless the Supreme Court shall direct otherwise (Sec. 8, Rule
64, Rules of Court). To prevent the execution of the
judgment, the petitioner should obtained a temporary
restraining order or obtain a writ of preliminary injunction
because the mere filing of the petition does not interrupt the
course of the principal case.
VII. Oral arguments; memoranda; submission for decision
- Upon the filing of the comments on the petition, or upon
the expiration of the period to do so, the case shall be
deemed submitted for decision except if the Court decides to
set the case for oral argument or requires the parties to
submit memoranda (Sec. 9, Rule 64, Rules of Court).
IV. Certiorari, Prohibition and Mandamus (Rule 65)
A. Certiorari
I. Nature and purpose of the remedy
1. A petition for certiorari under Rule 65 is a special civil
action. It is not a mode of appeal. It is an original action
independent from the principal action which resulted in the
rendition of the judgment or order complained of (Rule 65,
Rules of Court).
2. Certiorari is not intended to review the errors of judgment
of the trial court. In certiorari, judicial review does not go as
far as to examine and assess the evidence of the parties and
to weigh the probative value thereof. Raising errors of
judgment is proper only in an appeal.
3. Certiorari is a remedy for the correction of errors of
jurisdiction, not errors of judgment. It is an original and
independent action that was not part of the trial that had
resulted in the rendition of the judgment or order
complained of. More importantly, since the issue is
jurisdiction, an original action for certiorari may be directed
against an interlocutory order of the lower court prior to an
appeal from the judgment.
4. The rule is well-recognized that an appeal to the Supreme
Court may be taken only by petition for review on certiorari
(Sec. 3, Rule 56, Rules of Court). This is not the certiorari
under Rule 65 but under Rule 45. Any party desiring to appeal
by certiorari from a judgment or final order or resolution of
the Court of Appeals, the Sandiganbayan, or the Regional
Trial Court or other courts whenever authorized by law, may
file with the Supreme Court a verified petition for review on
Page153
certiorari and which shall raise only questions of law (Sec. 1,
Rule 45, Rules of Court).
Illustration (Bar 2005)
 May the aggrieved party file a petition for certiorari
in the Supreme Court under Rule 65 of the 1997 Rules of Civil
Procedure, instead of filing a petition for review on certiorari
under Rule 45 thereof for the nullification of a decision of
the Court ofAppeals in the exercise either of its original or
appellate jurisdiction? Explain.
Suggested answer.
The aggrieved party may not, as a rule. The proper
remedy is to file a petition for review on certiorari under
Rule 45. Availment of certiorari under Rule 65 would be on
the hnHIH of'oxceptional circurnstances which would juHti(y
the Supremo Court in suspending the rules pro hac vice in the
interest of justice.
II. Correction of errors of jurisdiction
1. A petition for certiorari is a remedy designed for the
correction of errors of jurisdiction and not errors of judgment
as when a court or body acted with grave abuse of discretion
amounting to lack of jurisdiction. If the court has jurisdiction
and in the process committed an error in the exercise of its
jurisdiction which errors is only one of judgment, such error
is reviewable only by appeal and not by certiorari.
Verily, the writ of certiorari is granted to keep an inferior
court within the bounds of its jurisdiction or to prevent it
from committing such a grave abuse of discretion amounting
to lack or excess of jurisdiction.
2. A petition for certiorari is an extraordinary remedy that is
adopted to correct errors of jurisdiction committed by the
lower court or quasi judicial agency, or when there is grave
abuse of discretion on the part of such court or agency
amounting to lack or excess of jurisdiction. Where the error
is not one of jurisdiction, but of law or fact which is a
mistake of judgment, the proper remedy should be appeal.
Hence, if there was no question of jurisdiction involved in
the decision and what was being questioned was merely the
findings in the decision of whether or not the practice of the
other party constitutes a violation of the agreement, the
matter is a proper subject of an appeal, not certiorari.
III. Certiorari distinguished from appeal
- Among other distinctions, the primary element which sets
these remedies apart is: The writ of certiorari is proper to
correct errors of jurisdiction committed by the lower court,
or grave abuse of discretion which is tantamount to lack of
jurisdiction. Appeal is proper whore the error is not one of
jurisdiction but an error of law or fact which is a mistake of
judgment
IV. Necessity for a writ of injunction; certiorari not sufficient
- The filing of a petition for certiorari does not interrupt the
course of the principal action nor the running of the
reglementary periods involved in the proceeding, unless an
application for a restraining order or a writ of preliminary
injunction to the appellate court is granted (Sec. 7, Rule 65,
Rules of Court). It does not interrupt the reglementary period
for the filing of an answer. It does not interrupt the course of
the case where there is no writ of injunction.
- To illustrate: In a case filed before the MTC, the defendant
filed a motion to dismiss a complaint on the ground of lack of
jurisdiction. The court denied the motion and denied also a
subsequent motion for reconsideration. A petition for
certiorari was filed in the RTC to nullify and set aside the
order of the MTC. While the petition for certiorari was
pending, the plaintiff filed a motion to declare the defendant
in default for failure to file an answer within the
reglementary period. The MTC could not be faulted if it
grants the motion to declare the defendant in default. The
running of the period to answer was not interrupted because
the defendant did not avail of a writ of preliminary
injunction when he filed the petition for certiorari.
V. No petition for certiorari in a summary proceeding
1. In a summary proceeding, petitions for certiorari,
prohibition or mandamus against an interlocutory order of
the court are not allowed (Sec. 19, 1991 Revised Rule on
Summary Procedure).
Illustration (Bar 2004)
(a) xxx
(b) Charged with the offense of slight physical
injuries under an information duly filed with the McTC in
Manila which in Lho niountimo had duly issued an order
declaring Lhat the case. shall bo governed by the Revised
.Rule on Summary Procedure, the accused filed with said
court a rnotion to quash on the sole ground that the officer
who filed the information had no authority to do so. The
McTC denied the motion on the ground that it is a prohibited
motion under the said Rule.
The accused thereupon filed with the RTC in Manila
a petition for certiorari in sum assailing and seeking the
nullification of the McTC's denial of his motion to quash. The
RTC in due time issued an order denying due course to the
certiorari petition on the ground that it is not allowed by the
said Rule.
Was the RTC order denying due course to the
petition x x x correct? Reason.
Suggested answer:
(b) The denial of the petition for certiorari was
correct. A petition for certiorari of an interlocutory order of
the McTC is a prohibited pleading under Sec. 19(g) of the
Rules on Summary Procedure.
2. Although a petition for certiorari is prohibited in cases
subject to summary procedure, the Court in one case allowed
the petition because the trial court gravely abused its
discretion by indefinitely suspending the proceedings in
ejectment cases thus, acting contrary to the purposes of the
Rules on Summary Procedure. The Supreme Court recognized
that because the order of the trial court cannot be appealed
from it being interlocutory and since the proceedings are
covered by the Rules on Summary Procedure, a'procedural
void' exists. Invoking its power to suspend the rules to
promote substantial justice, the Supreme Court gave due
course to the petition pro hac vice because of the
extraordinary circumstances of the case. The Court observed
that allowing the petition would avoid the mischiefs sought
to be curbed by the Rules and would give spirit and life to
the Rules on Summary Procedure.
Page154
VI. Certiorari not substitute for lost appeal
1. The filing of a petition for certiorari as a substitute for a
lost appeal would be erroneous. Certiorari is not and cannot
be made a substitute for an appeal where the latter remedy
is available but was lost through fault or negligence. The
remedy to obtain a reversal of judgment on the merits is
appeal. This holds true even if the error ascribed to the
lower court is its lack of jurisdiction over the subject matter,
or the exercise of power in excess thereof, or grave abuse of
discretion. The existence and availability of the right to
appeal prohibits the resort to certiorari because one of the
requirements for certiorari is that "there is no appeal."
2. The remedies of appeal and certiorari are mutually
exclusive and not alternative or successive. The antithetic
character of appeal and certiorari has been generally
recognized and observed save only in those rare instances
when appeal is satisfactorily shown to be an inadequate
remedy. Thus, a petitioner must show valid reasons why the
issues raised in his petition for certiorari could not have been
raised on appeal. Certiorari cannot be used as a substitute
for appeal.
3. Certiorari cannot be allowed when a party to a case fails
to appeal a judgment despite the availability of that remedy,
certiorari not being a substitute for lost appeal.
Consequently, if the complaint is dismissed through a motion
to dismiss, the normal remedy of the plaintiff is to appeal,
not to file a petition for certiorari. Appeal is the remedy
because an order dismissing a complaint is final in character.
If the period for appeal lapses without an appeal having been
filed, certiorari cannot take the place of the lost appeal.
Illustration (Bar 1991)
On 3 January 1991, the Mayon Corporation filed a
complaint for foreclosure of real estate mortgage against one
of its sales agents, A, who was discovered to have incurred a
shortage in his accounts. Tho mortgage was executed to
guarantee faithful compliance with his duties and
responsibilities as a sales agent. Impleaded in the complaint
as co-defendants were A's co-mortgagors, B and C.
Acting on defendant's motion to dismiss, the court
dismissed the complaint in an Order dated 15 February 1991,
a copy of which was received by Mayon Corporation on 18
February 1991. On March 15, 1991, and definitely within a
reasonable period from receipt of the dismissal order, Mayon
Corporation filed with the Supreme Court a special civil
action for certiorari under Rule 65 of the Rules of Court
alleging therein that the trial court acted without or in
excess of jurisdiction or with grave abuse of discretion
amounting to lack of jurisdiction in granting the motion to
dismiss.
(a) Should the Supreme Court give due course to
the petition?
(c) May a special civil action for certiorari
prosper in case of a denial of a motion to dismiss or a motion
to quash?
Suggested answers:
(a) The Supreme Court should not give due
course to the petition. An order granting a motion to dismiss
is final in character. The remedy therefore of the aggrieved
party is to appeal from the order granting the motion to
dismiss. It should have appealed within the period for
appeal, i.e., within fifteen days from February 18, 1991, the
date it received the notice of dismissal. By March 15, 1991,
the period to appeal had already lapsed. Certiorari is not a
substitute for a lost appeal.
(b) xxx
(c) An order denying a motion to dismiss is an interlocutory
order, and hence, not appealable (Sec. 1, Rule 41, Rules of
Court). Ordinarily, when a motion to dismiss is denied, the
defendant should file an answer to the complaint, proceed to
trial and await judgment before making an appeal (Sec. 4,
Rule 16, Rules of Court). However, as long as it can be shown
that the trial court acted without or in excess of jurisdiction
or with grave abuse of discretion, a civil action for certiorari
under Rule 65 may prosper (Sec. 1, last par., Sec. 41, Rules
of Court). While an order denying a motion to dismiss is
interlocutory and non-appealable, however, if the denial is
attended by a grave abuse of discretion, certiorari and
prohibition are proper remedies from such order of denial.
VII. When certiorari is available despite the loss of appeal
- While ordinarily, certiorari is not available when the period
for appeal has lapsed, certiorari may still be invoked when
appeal is lost without the appellant's negligence. Other
exceptions are: (a) when public welfare and the
advancement of public policy dictates; (b) when the broader
interest of justice so requires; (c) when the writs issued are
null and void, and (d) when the questioned order amounts to
an oppressive exercise of judicial authority.
VIII. Essential requisites for a petition for certiorari
- A petition for certiorari requires the concurrence of the
following:
(a) The petition is directed against a tribunal, board or
officer exercising judicial or quasi judicial functions;
(b) The such tribunal, board or officer has acted without or
in excess of jurisdiction or with grave abuse of discretion;
(c) There is neither appeal nor any plain, speedy and
adequate remedy in the ordinary course of law for the
purpose of annulling or modifying the proceeding. There
must be capricious, arbitrary and whimsical exercise of
power for it to prosper
IX. Respondent must exercise judicial or quasi judicial
functions
1. A petition for certiorari is directed against a tribunal,
board or officer exercising judicial or quasi judicial functions
(Sec. 1, Rule 65, Rules of Court). Thus, if the board, tribunal
or officer does not exercise either a judicial or quasi judicial
function, certiorari will not lie against its acts. A quasi
judicial act refers to the acts of public administrative
officers or bodies required to investigate facts or ascertain
the existence of facts, hold hearings, and draw conclusions
from them, as a basis for their official actions, and to
exercise discretion of a judicial nature.
- Specifically, the tribunal, board or officer exercising
judicial or quasi judicial function must be clothed with power
and authority to pass judgment or render a decision on the
controversy construing and applying the laws to that end.
Simply stated, where the function is merely investigative and
recommendatory with no power to pronounce judgment on
the controversy, the designation as investigator, therefore,
does not involve the exercise of judicial or quasi judicial
Page155
power. Hence, the acts may not be challenged in a petition
for certiorari under Rule 65.
2. "A respondent is said to be exercising judicial function
where he has the power to determine what the law is and
what the legal rights of the parties are, and then undertakes
to determine these questions and adjudicate upon the rights
of the parties. Quasi judicial function is a term which applies
to the action, discretion, etc., of public administrative
officers or bodies, which are required to investigate facts or
ascertain the existence of facts, hold hearings, and draw
conclusions from them as a basis for their official action and
to exercise discretion of a judicial nature. Ministerial
('unction is one which an officer or tribunal performs in the
context of a given set of facts, in a prescribed manner and
without regard to the exercise of his own judgment upon the
propriety or impropriety of the act done.
- "In the issuance of the assailed Wage Order, respondent
Regional Tripartite Wage Productivity Board (RTWPB) did not
act in any judicial, quasi judicial capacity, or ministerial
capacity.
It was in the nature of subordinate legislation, promulgated
by it in the exercise of delegated power under R.A. No. 6727.
It was issued in the exercise of quasi-legislative power.
Quasi-legislative or rule-making power is exercised by
administrative agencies through the promulgation of rules
and regulations within the confines of the granting statute
and the doctrine of non-delegation of certain powers flowing
from the separation of the great branches of the
government."
3. A committee on the ratings of students for honor whose
actions in proclaiming the honor students of a graduating
class are questioned is not the "tribunal, board or officer"
against whom an action may lie under Sec. 1 of Rule 65.
X. Jurisdictional issue
1. A petition for certiorari must be based on jurisdictional
grounds because as long as the respondent acted with
jurisdiction, any error committed by him or it in the exercise
thereof will amount to nothing more than an error of
judgment which may be reviewed or corrected by appeal.
2. In one case, the Supreme Court defined errors of
jurisdiction as one where the act complained of was issued
by the court, officer or a quasi judicial body without or in
excess of jurisdiction, or with grave abuse of discretion
which is tantamount to lack or in excess of'jurisdiction.
XI. Excess of jurisdiction distinguished from absence of
jurisdiction
> Excess of jurisdiction (as distinguished from absence of
jurisdiction) an act, though within the general power of a
tribunal, board or officer, is not authorized and invalid with
respect to the particular proceeding because the conditions
which alone authorize the exercise of the general power in
respect of it are wanting. Without jurisdiction means lack or
want of legal power, right, or authority to hear and
determine it cause or causes, considered either in general or
with reference to a particular matter. It means lack of power
to exercise authority.
- In essence, acting in excess of jurisdiction does not connote
it total absence of jurisdiction. It signifies an act authorized
by law but performed beyond the bounds of that authority.
Under our judicial system such act is equivalent to lack of
jurisdiction. Lack of jurisdiction means just what the term
says it is. It is an absence of power or authority to perform a
particular act.
XII. Grave abuse of discretion
1. Certiorari will not lie when there is a mere abuse of
cIiscretion by the tribunal, board or officer exercising
judicial or quasi-judicial functions. Such kind of abuse does
not amount to lack or excess of jurisdiction. For certiorari to
lie, the abuse must be "grave" (Sec. 1, Rule 65, Rules of
Court).
2. In a special civil action for certiorari, there must be proof
that the act of the tribunal or court emanated from the
capricious and whimsical exercise of judgment. Likewise, the
use of discretion should have been arbitrary due to passion,
prejudice or personal hostility so patent and gross that it
amounts to evasion to perform a positive duty under the law.
In the case at bar, the records do not reveal nor does
petitioner allege malice or prejudice on the part of the CA in
reinstating private respondent's appeal.
3. There is a grave abuse of discretion where the power is
exercised in an arbitrary and despotic manner by reason of
passion or hostility. The abuse is patent and gross if it
amounts to an evasion of a positive duty or to a virtual
refusal to perform the duty or to act at all in contemplation
of law. The phrase "grave abuse of discretion" amounting to
lack or excess of jurisdiction means such capricious and
whimsical exercise of judgment by the tribunal exercising
judicial or quasi judicial functions as to amount to lack of
power.
4. A mere denial of an application for an ex parte order for
the seizure of evidence is not indicative of a grave abuse of
discretion where petitioner failed to point out specific
instances where grave abuse of discretion was allegedly
committed and how the respondent court supposedly
exercised its power in a despotic, capricious or whimsical
manner.
5. A judge gravely abuses his discretion when he extends by
twenty (20) days the 72-hour restraining order he initially
issued because in no case shall the total period of effectivity
of the temporary restraining order exceed 20 days (Sec. 5,
Rule 58, Rules of Court).
6. There is a grave abuse of discretion where the trial court
fails to determine a factual controversy before issuing a writ
of demolition. Failure to do so is to disregard basic principles
of due process because before demolition could be effected,
the parties concerned must be heard. Such error may be
corrected by a writ of certiorari.
7. There is a grave abuse of discretion if a judge hears a
motion on the same day it was filed.
8. It is a grave abuse of discretion on the part of a court to
order immediate execution of a final order without awaiting
the expiration of the period to appeal therefrom and without
even a motion having been filed for execution pending
Page156
appeal.
9. By considering the motion for execution of the petitioner
abandoned and ordering the payment of separation pay
instead of reinstatement even if petitioner did not abandon
his claim for reinstatement, the Executive Labor Arbiter
committed a grave abuse of discretion.
10. Rendering a decision in favor of complainants against the
alleged employer without first determining the existence of
an employer-employer relations and the failure to express
the factual and legal basis of a decision is an evasion of a
constitutional duty which constitutes a grave abuse of discre-
tion.
11. While an order denying a motion to dismiss is
interlocutory and non-appealable, however, if the denial is
attended by a grave abuse of discretion, certiorari and
prohibition are proper remedies from such order of denial.
XIII. Necessity for a motion for reconsideration
1. Settled is the rule that, except in some recognized
exceptions, the filing of a motion for reconsideration is a
condition sine qua non to the filing of a petition for certiorari
to allow the court an opportunity to correct its imputed
errors.
2. The mere fact that a petitioner fails to move for the
reconsideration of the court a quo's order denying his motion
is sufficient cause for the outright dismissal of a petition for
certiorari. Certiorari as a special civil action will not lie
unless a motion for reconsideration is first filed before the
respondent court to allow it an opportunity to correct its
errors. To warrant a deviation from this rule, one must
proffer a compelling reason.
XIV. Exceptions to the requirement of a motion for
reconsideration (Bar 1989)
1. Although the filing of a motion for reconsideration is a
condition sine qua non for certiorari to lie, the rule is subject
to certain well recognized exceptions.
2. The recognized exceptions where the special civil action
for certiorari will lie even without first filing a motion for
reconsideration includes:
(a) where the order is a patent nullity, as where the court
a quo has no jurisdiction;
(b) where the questions raised in the certiorari proceeding
have been duly raised and passed by the lower court, or
are the same as those raised and passed upon in the lower
court;
(c) where there is an urgent necessity for the resolution of
the question and any further delay would prejudice the
interests of the government or of the petitioner;
(d) where the subject matter of the action is perishable;
(e) where under the circumstances, a motion for
reconsideration would be useless;
(f) where petitioner was deprived of due process and there
is extreme urgency for relief;
(g) where in a criminal case, relief from order of arrest is
urgent and the granting of such relief by the trial court is
improbable;
(h) where the proceedings in the lower court are a nullity
for lack of due process;
(i) where the proceedings was ex parte or in which the
petitioner had no opportunity to object; and
(j) where the issue raised is one purely of'law or where
public interest is involved.
Illustration (Bar 1989)
(1) xxx
(2) Well-settled is the rule that before a petition for
certiorari under Rule 65 of the Rules of Court may be filed, a
motion for reconsideration must be filed to give an
opportunity to the judge to correct an error, if any. An
omission to comply with this procedural requirement justifies
a denial of the writ applied for. When may a motion for
reconsideration be dispensed with?
Suggested answer.
(2) Please refer to the immediately preceding topic.
XV. Absence of appeal or any plain, speedy and adequate
remedy (Bar 1999)
1. The settled rule is that certiorari is not available where
the aggrieved party's remedy of appeal is plain, speedy and
adequate in the ordinary course of law the reason being that
certiorari cannot co-exist with an appeal these remedies
being mutually exclusive.
2. It bears emphasis that the special civil action for certiorari
is a limited form of review and is a remedy of last recourse.
It cannot be allowed when a party to a case fails to appeal a
judgment despite the availability of that remedy, certiorari
not being a substitute for a lapsed or lost appeal. Where an
appeal is available, certiorari will not prosper, even if the
ground therefore is grave abuse of discretion.
- Exception: Although the extraordinary remedy of certiorari
is not proper when an appeal is available, it may be allowed
when it can be shown that appeal would be inadequate,
slow, insufficient, and will not promptly relieve a party from
the injurious effects of the order complained of.
3. Examples:
(a) Under the 2000 National Prosecution Service Rules on
Appeal, the resolution of the Justice Secretary affirming,
modifying or reversing the resolution of the Investigating
Prosecutor is final. The remedy of the aggrieved party is to
file a petition for certiorari under Rule 65 of the Rules of
Court since there is no more appeal or other remedy
available in the ordinary course of law. To file an appeal with
the Court of Appeals by way of a petition for review under
Rule 43. is to resort to an improper remedy. A petition for
certiorari under Rule 65 should be filed instead.
(b) An order dismissing a complaint for failure to comply with
the rules on certification against forum shopping is a
dismissal without prejudice. Under Sec. 1(h) of Rule 41, such
dismissal is not appealable, the remedy being the
appropriate special civil action under Rule 65 and one
remedy under said rule is certiorari.
(c) An order denying a petition for relief is not appealable
under the terms of Sec. 1(b) of Rule 41. The remedy is
likewise the appropriate special civil action under Rule 65
and one remedy under said rule is certiorari.
Page157
Illustration (Bar 2002)
The defendant was declared in the default in the
RTC for his failure to file an answer to a complaint for a sum
of money. On the basis of the plaintiff's ex party presentation
of'evidence, judgment by default was rendered against the
defendant. The default judgment was served on the
defendant on October 1, 2001. On October 10, 2001, he filed
a verified motion to lift the order of default and to set aside
the judgment. In his motion, the defendant alleged that
immediately upon receipt of the summons, he saw the
plaintiff and confronted him with his receipt evidencing his
payment and that the plaintiff assured him that he would
instruct his lawyer to withdraw the complaint. The trial court
denied the defendant's motion because it was not
accompanied by an affidavit of merit. The defendant filed a
special civil action for certiorari under Rule 65 challenging
the denial order.
(a) Is certiorari under Rule 65, the proper remedy?
(b) xxx
Suggested answer.
(a) Certiorari is the proper remedy to challenge the denial of
the motion. While ordinarily, the remedy against a judgment
by default is to file a motion for new trial, appeal or a
petition for relief as the case may be (Talsan Enterprises,
Inc. vs. Baliwag Transit, Inc., 310 SCRA 156), these remedies
are not speedy and adequate in the case at bar where it can
be shown that the court, in denying the motion, committed a
grave abuse of discretion amounting to lack of jurisdiction.
The court committed a grave abuse of discretion when it
denied the motion on the basis of the alleged absence of an
affidavit of merit because the meritorious defense of the
defendant was already alleged in his verified motion. There
was then no need for a separate affidavit of merit, the
incorporation of the defense in the motion being a
substantial compliance with the rule.
Illustration (Bar 1999)
May a party resort to certiorari when appeal is still
available?
Suggested answer:
The general rule precludes the filing of a petition
for certiorari when appeal is still available. It is however,
implied from the Rules that certiorari may be allowed when
it is be shown that appeal does not appear to be a plain,
speedy and adequate remedy in the ordinary course of law
and will not promptly relieve a party from the injurious
effects of the order complained of (Sec. 1, Rule 65, Rules of
Court)
XVI. How to avail of the remedy of certiorari
1. The person aggrieved may file a verified petition in the
proper court alleging the facts with certainty and praying
that judgment be rendered annulling or modifying the
proceedings of the tribunal, board or officer, and granting
such incidental reliefs as law and justice may require (Sec. 1,
Rule 65, Rules of Court).
2. The petition shall be accompanied by (a) a certified true
copy of the judgment, order or resolution subject of the
petition, (b) copies of all relevant pleadings and documents,
and (c) a sworn certification of non-forum shopping (Sec. 1,
Rule 65, Rules of Court).
- Observe that the foregoing rule speaks of two sets of
documents to be attached to the petition. The first set
consists of certified true copies of the judgment, order or
resolution subject of the petition. Duplicate originals or
certified true copies thereof must be appended to enable the
reviewing court to determine whether the court, body or
tribunal, which rendered the same committed grave abuse of
discretion. The second set consists of the pleadings, portions
of the case record and other documents which are material
and pertinent to the petition. In this second set mere
photocopies thereof may be attached to the petition. The
requirement for certified true copies refcr-H to the
judgment, order or resolution (Air Philippines vs. /wiu.ora,
GR. No. 148247, August 7, 211116) and are the documents
mentioned in the first set. The use of mere pho~l,ocopies of
certified true copies of judgments or orders subject matter
of a petition renders that petition deficient and subject to
dismissal.
- A petition is procedurally flawed if this provision is not
complied with because these are documents important for
the court's appraisal, evaluation and judicious disposition of
the case. Non-observance of the rule is a sufficient cause for
the dismissal of the petition and cannot be merely brushed
aside as a mere technicality.
XVII. When to file
1. The petition is to be filed within sixty (60) days from
notice of the judgment, order or resolution. In case a motion
for reconsideration or a motion for a 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.
2. No extension of time to file the petition shall be granted
except for compelling reasons and in no case exceeding
fifteen (15) days (Sec 4, Rule 65 as amended by A.M. No. 00-
203 effective September 1, 2000).
XVIII. Certification against forum shopping
- A certification against forum shopping must accompany the
petition because certiorari is an independent action in itself
and the petition filed is an initiatory pleading.
XIX. Material dates in the petition; `material date' rule
Under the material date rule, three material dates must be
stated in the petition (a) the date when the judgment or
final order or resolution was received, (b) the date when a
motion for new trial or a motion for reconsideration when
one was filed, and (c) the date when notice of the denial
thereof was received (Sec. 3, Rule 46, Rules of Court; Great
Southern Maritime Services Corporation vs. Acuna, 452 SCRA
422, February 28, 2005).
XX. Court where petition is filed
1. If the petition relates to the acts or omissions of a lower
court or of a corporation, board, or officer or person, then
the petition shall be filed in the Regional Trial Court
exercising jurisdiction over the territorial area as defined by
the Supreme Court (Sec. 4, Rule 65, Rules of Court; Sec. 29,
BP 129).
Page158
2. The petition may also be filed in the Court of Appeals
whether or not the same is in aid of its appellate jurisdiction.
If it involves the acts or omissions of a quasi judicial agency,
the petition shall be filed in and cognizance only by the
Court of Appeals, unless otherwise provided by law or by the
Rules of Court (Sec. 4, Rule 65, Rules of Court).
3. The petition may be filed in the Sandiganbayan if it is in
aid of its appellate jurisdiction (Sec. 4, Rule 65, Rules of
Court).
4. The petition may be filed with the Supreme Court (Sec. 4,
Rules of Court). This is subject to the doctrine of `hierarchy
of courts' and the Supreme Court will refrain from taking
cognizance of the petition unless a compelling reason exists
for not filing the same with the lower courts.
XXI. Observance of the `hierarchy of courts' principle
- The Supreme Court's original jurisdiction to issue writs of
certiorari, prohibition, mandamus, quo warranto, habeas
corpus and injunction is not exclusive. It is shared by the
Supreme Court with the Regional Trial Court and the Court of
Appeals. This concurrence of jurisdiction however, should not
be taken to mean that the parties have an absolute,
unrestrained freedom of choice of the court to which they
willfile their application or petition. There is tin ordained
sequence of recourse to courts vested with concurrent
jurisdiction, beginning from the lowest, on to the next
highest, and ultimately to the highest. This hierarchy is
determinative of the venue of appeals, and is likewise
determinative of the proper forum for petitions for
extraordinary writs. A direct invocation of the Supreme
Court's original jurisdiction to issue these writs should be
allowed only when there are special and important reasons
therefore, clearly and specifically set out in the petition.
This is established policy. It is a policy that is necessary to
prevent inordinate demands upon the Court's time and
attention which are better devoted to those matters within
its exclusive jurisdiction, and to prevent the further clogging
of the Court's docket.
XXII. Parties to the petition
1. The petition shall be filed by the "person aggrieved" (Sec.
1, Rule 65, Rules of Court). The person aggrieved under Sec. I
of Rule 65 is not to be construed to mean that any person
who feels injured by the lower court's order or decision can
question the said court's disposition by certiorari. It pertains
to the person who was a party in the proceedings before the
lower court.
2. Where the petition 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/s with the public respondent/s, the person or
persons interested in sustaining the proceedings in the court
(Sec. 5, Rule 65, Rules of Court). The private respondent/s
should appear and defend not only in his or their own behalf
but also in behalf of the public respondent/s affected by the
proceedings. If costs are awarded in favor of the petitioner,
such costs shall be against the private respondent/s only and
not against the public respondent/s (Sec. 5, Rule 65, Rules of
Court).
3. The public respondent/s shall not appear in or file an
answer or comment to the petition or any pleading therein,
unless specifically directed by the court where the action is
pending. 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 (Sec. 5, Rule 65, Rules of Court).
XXIII. Injunctive relief
- Be it remembered that the filing of a petition for certiorari
against the lower court or tribunal or any other public
respondent does not interrupt the course of the proceedings.
It is necessary to avail of either a temporary restraining order
or a writ of preliminary injunction to be issued by a higher
court against the public respondent so it may, during the
pendency of the petition, refrain from further proceedings
(Sec. 7, Rule 65, Rules of Court).
XXIV. Order to comment
1. Unlike an ordinary civil action where the issuance and
service of summons follows the filing of the complaint, no
summons is issued in a petition for certiorari.
2. Instead of summons the court shall issue an order requiring
the respondent/s to comment on the petition within ten (10)
days from receipt of a copy thereof. The order to comment
shall be made only if the court finds that the petition is
sufficient in form and substance (Sec. 6, Rule 65, Rules of
Court). The inevitable implication is that the petition may be
outrightly dismissed if found not to be sufficient in both
substance and form.
- In petitions for certiorari before the Supreme Court and the
Court of Appeals, the respondent/s may also be required to
file a comment to the petition and not a motion to dismiss.
Thereafter, the court may require the filing of a reply and
such other responsive or other pleadings as it may deem
necessary and proper (Sec. 6, Rule 65, Rules of Court).
XXV. Proceeding after comment; judgment
1. After the comment or other pleadings are filed, the court
may hear the case or require the parties to submit
memoranda. If after such hearing or submission of
memoranda, the court finds the allegations of the petition
are true, it shall render judgment for the relief prayed for or
to which the petitioner is entitled (Sec. 8, Rule 65, Rules of
Court). Observe that the court need not conduct a hearing.
Instead, it may require the filing of memoranda, unless of
course, it finds a hearing necessary.
2. If the court finds the petition to be patently without
merit, prosecuted manifestly for delay, or that the question
raised therein are too unsubstantial to require consideration,
the court may dismiss the petition (Sec. 8, Rule 65, Rules of
Court).
XXVI. Service of copy of judgment to public respondent
- A certified copy of the judgment rendered in the certiorari
proceedings shall be served upon the public respondent
concerned. Disobedience to the judgment or order shall be
punished as contempt (Sec. 9, Rule 65, Rules of Court). It is
understood that all private parties shall be also served with a
Page159
copy of the judgment.
XXVII. Relief
- The primary relief will actually be the annulment or
modification of the judgment, order or resolution or
proceeding subject of the petition. It may also include such
other incidental reliefs as law and justice may require (Sec.
1, Rule 65, Rules of Court). The court, in its judgment may
also award damages and the execution of the award for
damages or costs shall follow the procedure in Sec. 1 of Rule
39 of the Rules of Court (Sec. 9, Rule 65, Rules of Court).
XXVIII. Distinctions between certiorari under Rule 45 and
certiorari under Rule 65 (Bar 1999; 1998; 1991)
- There are well-settled distinctions between these two
rules, among which are the following:
Certiorari under Rule 45 Certiorari under Rule 65
a. (although called a petition a. a special civil action that
for review on certiorari) a is an original action and not
mode of appeal (Sec. 2[c], a mode of appeal (Rule 65,
Rule 41, Rules of Court) Rules of Court).
- not a part of the appellate
process but an independent
action.
b. Because it is a mode of b. certiorari under Rule 65
appeal, certiorari under Rule may be directed against an
45 seeks to review final interlocutory order or
judgments or final orders matters where no appeal
may be taken from (Sec. 1,
Rule 41, Rules of Court).
c. raises only questions of c. raises questions of
law jurisdiction because a 1. The certiorari in Rule 64 is directed only to the judgments,
tribunal, board or officer
exercising judicial or quasi-
judicial functions has acted
without jurisdiction or in
excess of jurisdiction or with
grave abuse of discretion
amounting to lack of
jurisdiction
d. An appeal by certiorari d. petition for certiorari
under Rule 45 shall be filed under Rule 65 shall be filed
within fifteen (15) days from not later than sixty (60) days
notice of judgment or final from notice of judgment,
order appealed from (Sec. 2, order or resolution sought to
Rule 45, Rules of Court), be assailed and 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
denial of said motion
e. does not require a prior e. requires as a general rule,
motion for reconsideration a prior motion for
reconsideration
f. stays the judgment f. does not stay the
appealed from judgment or order subject of
the petition unless enjoined
or restrained (Sec. 7, Rule
65, Rules of Court).
g. the parties are the g. the tribunal, board,
original parties with the officer exercising judicial or
impleading the lower court Court).
or its judge - In certiorari as an original
- In an appeal by certiorari action, the parties are the
under Rule 45, the petitioner aggrieved party against the
and respondent are also the lower court or quasi judicial
original parties to the action agency and the prevailing
in the lower court. parties, who thereby
respectively become the
petitioner and respondents
(h) Certiorari as a special civil action is filed with the
Regional Trial Court (Sec. 21, BP 129 as amended), the Court
of Appeals Sec. 9, BP 129 as amended) or with the Supreme
Court (Sec. 5[I], Art. VIII, Constitution of the Philippines) or
with the Sandiganbayan, whereas certiorari as a mode of
appeal is filed with the Supreme Court (Sec. 1, Rule 45, Rules
of Court).
Illustration (Bar 1991)
(b) Distinguish certiorari as a special civil action under Rule
65 from certiorari as a mode of appeal under Rule 45 of the
Rules of Court.
Suggested answer.
(b) Please refer to immediately preceding topic.
XXIX. Distinctions between certiorari under Rule 64 and
certiorari under Rule 65
final orders or resolutions of the Commission on Elections and
the Commission on Audit (Sec. 1, Rule 64, Rules of Court).
The certiorari in Rule 65 is directed to any tribunal, board or
officer exercising judicial or quasi judicial functions (Sec. 1,
Rule 65, Rules of Court).
2. The certiorari in Rule 64 is filed within thirty (30) days
from notice of the judgment (Sec. 3, Rule 64, Rules of
Court); that in Rule 65 is filed within sixty (60) days from
notice of the judgment (Sec. 4, Rule 65, Rules of Court).
3. In Rule 64, the filing of a motion for reconsideration or a
motion for new trial if allowed, interrupts the period for the
filing of the petition for certiorari. 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 reckoned from the notice of denial (Sec. 3, Rule 64,
Rules of Court). In Rule 65, the period within which to file
the petition if the motion for reconsideration or new trial is
denied, is sixty (60) days from notice of the denial of the
motion (Sec. 4, Rule 65, Rules of Court).
B. Prohibition (Rule 65)
I. Nature and purpose of the remedy
1. > Prohibition - an extraordinary writ commanding a
tribunal, corporation, board or person, whether exercising
functions that are judicial, quasi judicial or ministerial, to
desist from further proceedings when said proceedings are
without, or in excess of its jurisdiction, or with grave abuse
of its discretion, there being no appeal or any other plain,
Page160

appealing party as the quasi judicial functions is speedy and adequate remedy in the ordinary course of law
petitioner and the adverse impleaded as respondent (Sec. 2, Rule 65, Rules of Court).
party as respondent without (Sec. 5, Rule 65, Rules of
2. The purpose of prohibition is to secure an order to
command the respondent tribunal, board, corporation or
officer to desist from further proceedings in the action (Sec.
2, Rule 65, Rules of Court). Stated in another way, the
purpose of prohibition is to prevent an encroachment,
excess, usurpation or assumption of jurisdiction on the part
of tribunal, corporation, board or officer. It is granted when
it is necessary for the orderly administration of justice, or
prevent the use of the strong arm of the law in an oppressive
or vindictive manner, or multiplicity of actions.
3. A special civil action of prohibition is an original and
independent action and not merely a continuation or a part
of the trial resulting in the rendition of the judgment or
order complained of. Neither is such an action ancillary or
substitute to the action which the supervisory authority of
the appellate court is sought and directed. It bears stressing
that an action for prohibition or certiorari, for that matter,
does not divest the inferior or trial court of its jurisdiction
validly acquired over the case pending before it; it is merely
an invocation for the exercise of its supervisory power over
the lower court to insure that the lower court acts within its
jurisdiction.
II. Requisites for a writ of prohibition
- For a party to be entitled to a writ of prohibition, he must
establish the following requisites:
(a) The petition must be directed against a tribunal,
corporation, board or person exercising judicial, quasi-
judicial, or ministerial functions;
(b) The tribunal, corporation, board or person must have
acted without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack of jurisdiction;
(c) There is no appeal or any other plain, speedy, and
adequate remedy in the ordinary course of law
(d) Like a petition for certiorari, the petition for
prohibition shall be accompanied by a certified true copy
of the judgment or order subject of the petition, copies of
all pleadings and documents relevant and pertinent
thereto, and a sworn certification of nonforum shopping as
provided in Sec. 3 of Rule 46 (Sec. 2, Rule 65, Rules of
Court).
III. Prohibition distinguished from injunction
- An injunction is directed against a party to the action.
Prohibition is directed to the court or tribunal directing it to
refrain from the performance of acts which it has no
jurisdiction to perform.
IV. Prohibition distinguished from certiorari
1. A writ of certiorari seeks to annul a judicial or a quasi-
judicial act. A writ of prohibition is directed not only to a
judicial or a quasi judicial act but even to a ministerial act
(Sees. 1 and 2, Rule 65, Rules of Court).
2. A writ of certiorari is directed to the action of the court
which is sought to be annulled. A writ of prohibition is
directed to the court itself to restrain it from further
proceeding with the case.
3. The purpose of certiorari is to annul or modify the
judgment, order, resolution or proceedings of the public
respondent (Sec. 1, Rule 65, Rules of Court). The purpose of
prohibition is to command the respondent to desist from
further proceedings (Sec. 2, Rule 65, Rules of Court).
V. Basic requirements of both certiorari find prohibition
- There are certain basic requirements shared by bath special
civil fictions. Certiorari as a special civil. action is available
if the following essential requisites concur: (1) it must, be
directed against a tribunal, board, or officer exercising;
judicial or quasi judicial functions; (2) the tribunal, board, or
officer must have acted without or in excess of jurisdiction or
with grave abuse of discretion amounting to lack or excess of
jurisdiction; and (3) there is no appeal nor any plain, speedy,
and adequate remedy in the ordinary course of law.
- On the other hand, prohibition as a special civil action is
available only if the following essential requisites concur: (1)
it must be directed against a tribunal, corporation, board,
officer, or person exercising functions, judicial, quasi-
judicial, or ministerial; (2) the tribunal, corporation, board
or person has acted without or in excess of its jurisdiction, or
with grave abuse of discretion amounting lack or excess of
jurisdiction; and (3) there is no appeal or any other plain,
speedy, and adequate remedy in the ordinary course of law.
Note the absence of the term `ministerial' in Sec. 1 of Rule
65.
Examples:
(a) In an action for a sum of money, the defendant moved to
dismiss the complaint for improper venue it being obvious
that the venue was improperly laid, the complaint having
been filed in a place which was neither the residence of the
plaintiff nor that of the defendant. The motion was denied
and a subsequent motion for reconsideration of the order of
denial was also denied. The court could be deemed to have
acted with grave abuse of discretion. To prevent the court
from proceeding with the case, a petition for prohibition
would be proper to command the court from further
proceeding.
(b) Where a motion to dismiss is wrongfully denied under
circumstances attended by a grave abuse of discretion
amounting; to lack of jurisdiction, prohibition is a proper
remedy to prevent the court from proceeding with the
action.
(c) Prohibition, not mandamus is the proper remedy when a
motion to dismiss is wrongfully denied
Illustration (Bar 1980)
Antonio, a resident of Pampanga, filed a suit in the
CFI of Manila (now RTC) on a promissory note executed by
Andres, a resident of Cavite. The latter moved to dismiss on
the ground "that venue is improperly laid." The motion was
denied and Andres wants to question the denial before the
higher court. If you were Andres' lawyer, should your petition
be for certiorari, prohibition or mandamus?
Suggested answer.
If the impropriety of the venue is timely raised, the
remedy is prohibition where the purpose of petitioner is to
Page161
prevent the court from further exercising a power committed
with grave abuse of discretion amounting to lack of
jurisdiction (Sec. 2, Rule 65, Rules of Court). Certiorari may
also be available to annul the order of the court.

C. Mandamus (Rule 65)
I. Nature and purpose of mandamus
1. > Mandamus - an extraordinary writ commanding a
tribunal, corporation, board or person, to do an act required
to be done:
(a) When it or he unlawfully neglects the performance of
an act which the law specifically enjoins as a duty, and
there is no other plain, speedy and adequate remedy in
the ordinary course of law
(b) It is also available when one unlawfully excludes
another from the use and enjoyment of a right or office to
which much other is ontitlod
- For a writ of mandamus to be issued, it is essential that
petitioner should have a clear legal right to the thing
demanded and it must be the imperative duty of the
respondent to perform the act required.
2. The principal function of mandamus is to command, not to
inquire, expedite or to adjudicate.
II. Ministerial act or duty
1. It is a writ that commands the performance of a purely
ministerial duty imposed by law (Black's Law Dictionary, 5th
Ed., 866).
A duty is ministerial when it demands no special judgment,
discretion or skill. It is one in which nothing is left to
discretion and is a simple and definite duty imposed by law
(Black's, 5th Ed., 899). Hence, mandamus will not be
available to compel the performance of a discretionary act.
2. For mandamus to lie, the act must not only be ministerial
but must also be a duty enjoined by law, a duty which the
tribunal or person unlawfully neglects to perform (Sec. 3,
Rule 65, Rules of Court). Mandamus applies only to acts
required by law to be done. The tenor of the rule therefore,
excludes from its operation the performance of a contractual
duty.
3. Mandamus is an appropriate remedy to compel the
payment of the benefits to which an employee is entitled
under the law such as holiday pay.
4. Mandamus is not proper against a school or an official with
a duty that involves the exercise of discretion like on matters
of admission of students. Mandamus will not also lie to
compel an academic institution to allow the graduation of a
student who has failed to comply with the academic rules of
the school.
Mandamus is not available to compel a school to confer
upon a graduate his degree with honors.
5. As rule, mandamus requires the exhaustion of
administrative remedies available to the petitioner.
Prior resort to exhaustion of administrative remedies
however, is not required where the questions raised are
purely legal or when the respondent is estopped from
invoking the rule of exhaustion of administrative remedies.
6. Mandamus will not lie to compel a prosecutor to file an
information.
7. Mandamus will lie to compel execution of a judgment,
because execution of a final and executory judgment is a
matter of right (Sec. 1, Rule 39, Rules of Court). However,
for a writ of mandamus to be issued, it is essential that
petitioner should have a clear legal right to the thing
demanded and it must be the imperative duty of the
respondent to perform the act required.
8. Mandamus will not lie to compel the performance of an
illegal act.
II. Discretionary acts not compellable by mandamus
l. Mandamus does not lie to compel the performance of a
discretionary duty. Mandamus will not issue to control or
review the exercise of discretion of a public officer where
the law imposes upon said public officer the right and duty to
exercise his judgment in reference to any matter in which he
is required to act. It is his judgment that is to be exercised
and not that of the court.
2. Reconstitution is not a ministerial act. It involves the
exercise of discretion in the evaluation of the evidence
presented before it. How to rule on the admission of the
evidence cannot be compelled by mandamus.
3. Mandamus therefore, is not proper when the act against
which it is directed is one addressed to the discretion of the
tribunal or officer. A court for instance, may be compelled
by mandamus to act on a particular complaint filed before it,
but it will not lie to order the court to decide in a particular
manner and for or against a litigant. Deciding for the plaintiff
or a defendant requires the use of discretion.
- Mandamus is not available to direct the exercise of a
judgment or discretion in a particular way
Illustration (Bar 1991)
After reviewing the record of a preliminary
investigation of a homicide case, the Secretary of Justice
reversed the resolution of the Provincial Prosecutor and
directed the latter to move for the dismissal of the
Information which had been filed in the Regional Trial Court
of Pasig. The provincial Prosecutor thus filed such motion.
(a) xxx
(b) If the judge refuses to grant the Provincial
Prosecutor's motion to dismiss, may a special civil action
for mandamus lie to compel the judge to grant the
motion?
Suggested answer:
(b) Mandamus will not lie. The act of the judge in
granting or denying the motion is a discretionary act, not
ministerial.
III. Contractual duties not compellable by mandamus
- Mandamus cannot be availed of as a remedy to enforce the
performance of contractual obligations. No rule of law is
better settled than that mandamus does not lie to enforce
the performance of contractual obligations. It was not
intended to aid a plaintiff in the enforcement of a mere
contract right, or to take the place of the other remedies
Page162
provided by law for the adjudication of disputed claims. To
permit the writ of mandamus to be used for the purpose of
enforcing a mere contract right would be a wide departure
from the settled practice in respect to the character of cases
in which relief by mandamus may be obtained.
IV. Mandamus distinguished from injunction
- There are certain distinctions between mandamus and
injunction.
(a) > Mandamus - a special civil action while injunction is an
ordinary civil action;
(b) Mandamus is directed against a tribunal, corporation
board, or officer while injunction is directed against a
litigant;
(c) The purpose of mandamus is for the tribunal, corporation,
board or officer to perform a ministerial and legal duty while
the purpose of injunction is for the defendant either to
refrain from an act or to perform not necessarily a legal and
ministerial duty; and
(d) The purpose of mandamus is to perform a positive legal
duty and not to undo what has been done. The purpose of
injunction is to prevent an act to maintain the status quo
between the parties.
V. Mandamus distinguished from quo warranto
- Recall that mandamus also is available when one is
unlawfully excluded from the use or enjoyment of an office.
This is similar to it quo warranto proceeding in this respect,
although in mandamus, the suit is brought against the person
who is responsible for excluding the petitioner from office.
The respondent does not have to usurp, intrude into or hold
the office.
Quo warranto is brought against the holder of the office,
who is the person claiming the office as against the
petitioner, not necessarily the one who excludes the
petitioner.
Illustration (Bar 2001)
Petitioner Fabian was appointed Election Registrar
of the Municipality of Sevilla supposedly to replace the
respondent Election Registrar Pablo who was transferred to
another municipality without his consent and who refused to
accept his aforesaid transfer, much less to vacate his position
in Bogo town as Election Registrar, as in fact he continued to
occupy his aforesaid position and exercise his functions
thereto. Petitioner Fabian then filed a petition for mandamus
against Pablo but the trial court dismissed the petition
contending that quo warranto is the proper remedy.
Is the court correct in its ruling?
Suggested answer.
The court is correct. The facts do not indicate that
Pablo has excluded Fabian from his office. He is the holder of
the office and continues to do so believing he has a right to
the same and continues to exercise the functions of the
office as against the petitioner. The proper remedy is a quo
warranto proceeding.
VI. Requisites for mandamus
- Before the writ of mandamus is issued, the following
requisites must be complied with:
(a) The plaintiff has a clear legal right to the act
demanded. It will never be issued in doubtful cases. Note:
Mandamus does not establish a legal right, but merely
enforces one that is already clearly established.
(b) It must be the duty of the defendant, to perform the
act because the same is mandated by law;
(c) The defendant unlawfully neglects the performance of
the duty enjoined by law;
(d) The act to be performed is ministerial, not dis-
cretionary; and
(e) There is no appeal or any other plain, speedy and
adequate remedy in the ordinary course of law (Sec. 3,
Rule 65, Rules of Court).
Illustration (Bar 1978)
X filed a complaint against Y in the CFI of Manila
(now RTC) for annulment of a deed of mortgage, its
extrajudicial foreclosure and the certificate of title issued in
consequence thereof. Y filed an answer and after trial, the
complaint was dismissed. Within thirty days from notice of
such dismissal, X filed his notice of appeal, his record on
appeal and appeal bond, and duly served Y with a copy
thereof. Y filed a motion to dismiss the appeal on the ground
that the same was manifestly dilatory and this was granted
by the trial court. As counsel for X, what action will you take
and why?
Suggested answer.
I would file a petition for mandamus to compel the
court of origin to allow the appeal. Where all the
requirements for the perfection of an appeal have been
complied with, the duty to give due course to the same is not
discretionary. Denying the appeal constitutes an unlawful
failure to perform a ministerial duty (Sec. 3, Rule 65, Rules
of Court). Whether or not the appeal is dilatory is a
determination to be made by the appellate court and not the
court of origin.
V. Quo Warranto (Rule 66)
I. Nature and purpose of the action
1. > Quo warranto - literally means `by what authority' and
the object is to determine the right of a person to the use or
exercise of a franchise or office and to oust the holder from
its enjoyment, if his claim is not well-founded, or if he has
forfeited his right to enjoy the office.
2. Under the Rules of Court, it is a special civil action
commenced by a verified petition against the following:
(a) a person who usurps a public office, position or franchise;
(b) a public officer who performs an act constituting
forfeiture of a public office; or
(c) an association which acts as a corporation within the
Philippines without being legally incorporated or without
lawful authority to do so (See. 1, Rule 66, Rules of Court).
II. The petitioner
1. While as a rule, a quo warranto proceeding is commenced
by a verified petition brought in the name of the Government
of the Republic of the Philippines (Sec. 1, Rule 55, Rules of
Court) by the Solicitor General (Sec. 2, Rule 66), or in some
instances, by a public prosecutor (Sec. 3, Rule 66, Rules of
Court), the petition may be commenced by a private person
in his own name where he claims to be entitled to the public
office or position alleged to have been usurped or unlawfully
held or exercised by another (Sec. 5, Rule 66, Rules of
Page163
Court).
2. Accordingly, the private person as petitioner may maintain
the action without the intervention of the Solicitor General
and without need for any leave of court. In bringing a
petition for quo warranto, he must show that he has a clear
right to the office allegedly being held by another. It is not
enough that he merely asserts the right to be appointed to
the office. He must assert that he is entitled to the office
allegedly usurped or unlawfully held by another.
3. The Solicitor General or the public prosecutor may
commence the action at the instance of another person. In
this case, leave of court is necessary (Sec. 3, Rule 66, Rules
of Court).
III. Jurisdiction and venue
1. The petition may be brought in the Supreme Court, Court
of Appeals or in the Regional Trial Court which has
jurisdiction over the territorial area where the respondent or
where any of the respondents resides (Sec. 7, Rule 66, Rules
of Court). The petition may be brought in the Sandiganbayan
in certain cases but when in aid of its appellate jurisdiction
(PD 1606, 4 as amended by R.A. No. 8249, 4).
2. When the action is commenced by the Solicitor General,
the petition may be brought in the Regional Trial Court of
the City of Manila, the Court of Appeals or the Supreme Court
(Sec. 7, Rule 66, Rules of Court).
Illustration (Bar 2001)
A group of businessmen formed an association in
Cebu City calling itself Cars Co. to distribute/sell cars in said
city. It did not incorporate itself under the law nor did it
have any government permit or license to conduct its
business as such. The Solicitor General filed before a
Regional Trial Court in Manila a verified petition for quo
warranto questioning and seeking to stop the operations of
Car Co. The latter filed a motion to dismiss the petition on
the ground of improper venue claiming that its main office
and operations are in Cebu City and not in Manila.
Is the contention of Cars Co. correct?
Suggested answer.
The contention of Car Co. is not correct. While as a
rule, a petition for quo warranto filed before the RTC should
be brought in the place where the respondent resides, this
rule shall not apply when the petition is filed by the Solicitor
General who is given the prerogative to file the petition in
the Regional Trial Court of Manila.
IV. Period for filing
- An action for quo warranto in relation to a public office
must be filed within one (1) year after the cause of the
ouster, or the right of the petitioner to hold such office or
position arose (Sec. 11, Rule 66).
Illustration (Bar 1980)
If the principal of a public high school is illegally
replaced by another, is it a requirement that before he can
go to court on a quo warranto, he should first exhaust
administrative remedies?
Suggested answer.
No. There is no such requirement under Rule 66.
The action has to be brought within one (1) year from the
cause of ouster from office or the right to hold the office
arose. A quo warranto proceeding is one of the instances
where exhaustion of administrative remedies is not required.
V. Right to damages
- If the petitioner is adjudged to be entitled to the office, he
may sue for damages against the alleged usurper within one
(1) year from the entry of judgment establishing his right to
the office in question (Sec. 11, Rule 66, Rules of Court).
VI. Quo Warranto under the Omnibus Election Code
1. Under the Omnibus Election Code, a quo warranto
proceeding may be instituted with the Commission on
Elections by any voter contesting the election of any member
of Congress, regional, provincial or city officer within then
(10) days after the proclamation of the results of the
election. The ground relied upon shall be (a) ineligibility to
the position; or (b) disloyalty to the Republic of the
Philippines (Sec. 253, Omnibus Election Code).
2. If the petition is brought against a municipal official, the
petition for quo warranto must be brought in the appropriate
Regional Trial Court (Se(.-. 2.5:1, Omnibus Election Code;
Sec. 1, Rule 36, COMELEC Rules of Procedure). If it be against
any barangay official, the petition must be brought before
the appropriate Metropolitan Trial Court, Municipal Trial
Court, or Municipal Circuit Trial Court (Sec. 253, Omnibus
Election Code; Sec. 1, Rule 38, COMELEC Rules of
Procedure).
VII. Quo warranto in an elective office against quo warranto
in an appointive office distinguished
Quo warranto in Quo warranto in
an elective office an appointive office
a. the governing law is the a. the rules that govern
election law are the provisions of the
Rules of Court.
b. the issue is the eligibility of b. the issue is the legality
the person elected of the occupancy of the
office by virtue of a legal
appointment.
c. the petition is filed within c. it is within one (1) year
ten (10) days after the from the time the cause of
proclamation of the results of ouster, or the right of the
the election petitioner to hold the
office or position, arose.
d. the petition is brought in d. the petition is brought
the COMELEC, the Regional in the Supreme Court, the
Trial Court or the Municipal Court of Appeals or the
Trial Court as the case may be; Regional Trial Court.
e. the petitioner may be any e. the petitioner is the
voter even if he is not entitled person entitled to the
to the office office.
f. when the tribunal declares f. the court has to declare
the candidate-elect as who the person entitled to
ineligible, he will be unseated the office is if he is the
but the person occupying the petitioner
second place will not be
declared as the one duly
elected because the law shall
consider only the person who,
Page164
having duly filed his certificate
of candidacy, received a
plurality of votes

VIII. Quo warranto proceedings and election protests
1. A quo warranto proceeding in an election of public
officials should not be confused with an election protest.
Their distinctions have been explained as far back as the
early stages of Philippine jurisprudence.
- The cause of action in the first is based on the eligibility or
lack of it of the candidate or his being loyal or disloyal to the
Republic (Sec. 253, Omnibus Election Code). The cause of
action in an election protest is the irregularity in the conduct
of the elections.
2. As a general rule, the proper remedy after the
proclamation of the winning candidate for the position
contested would be to file a regular election protest or quo
warranto.
IX. Quo warranto against corporations
1. Although a quo warranto proceeding may be brought
against an association which acts as a corporation within the
Philippines without being legally incorporated or without
lawful authority so to act (Sec. 1[c], Rule 66, Rules of Court),
the petition may be brought only against a de facto
corporation, not a de jure corporation. The latter
corporation has no defect in its incorporation and exercises
corporate powers because it was organized in full compliance
with the laws (Black's, 5th Ed., 382). There is therefore, no
reason to attack its existence and its exercise of corporate
powers.
2. A de facto corporation is one which in good faith claims to
be a corporation, was organized in accordance and pursuant
to a valid law, and assumes corporate powers because it was
issued a certificate of incorporation. Traditionally, it has
been referred to as a corporation which exists in fact but not
in law. Under the law, its right to exercise corporate powers,
shall be inquired into by a collateral attack in a private suit
to which such corporation may be made a party (Sec. 20,
Corporation Code of the Philippines). Hence, its exercise of
corporate powers may be inquired into and its corporate
existence attacked by a quo warranto proceeding.
- Observe that under the Securities and Regulations Code of
2000 (R.A. 8799), that all the powers of the Securities and
Exchange Commission enumerated under Sec. 5 of
Presidential Decree No. 902-A were transferred to the courts
of general jurisdiction (RTC) and the same law also
enumerates as one of the powers of the Securities and
Exchange Commission the power to "suspend, revoke * * * the
franchise, or certificate of registration of corporations * * *
upon any of the grounds provided by law (Sec. 5.1[m], R.A.
8799).
VI. Expropriation (Rule 67)
I. Preliminaries
1. Together with the police power and the power of taxation,
the power of eminent domain is one of the inherent powers
of a state. Because they are inherent in every sovereign
state, these powers need not be conferred by law or by the
Constitution and any provision in the fundamental law
making reference to any of these powers should not be
construed as a conferment of the power but a recognition of
a power that already exists.
- The power of eminent domain in particular, has been
described as a right to take or reassert dominion over
property within the state for public use or to meet a public
exigency and is said to be an essential part of governance
even in its most primitive form and thus inseparable from
sovereignty.
But while the power of eminent domain does not owe its
existence from the Constitution, certain restraints may be
set to it by the Constitution for the protection of the
citizenry against state encroachment into fundamental and
equally inherent individual rights. Thus, the provisions of
Sec. 9, Art. III (Bill of Rights) of the Constitution lay down
specific limits to its exercise by requiring that the taking of
private property can be done only for public use and upon
the payment of just compensation.
2. Other constitutional provisions on eminent domain
describe the uses to which the power may be put to use. For
example, Sec. 18 of Art XII (National Economy and
Patrimony) recognizes the authority of the state to transfer
to public ownership and operation, privately owned
enterprises and utilities upon the payment of just
compensation, when required by national welfare and
defense. The state may also expropriate idle or abandoned
agricultural lands for distribution to the beneficiaries of the
agrarian reform program (Sec. 22, Art. XVIII, Transitory
Provisions, Philippine Constitution).
3. The scope of the power of eminent domain, as exercised
by Congress is plenary and is as broad as the police power.
Such power however, may also be delegated to local political
subdivisions and public utilities.
- Describing the delegation of the power, the Supreme Court
declared:
" * * * While such power may be validly delegated to
local government units, other public entities, and public
utilities, the exercise of such power by the delegated entities
is not absolute. In fact, the scope of delegated legislative
power is narrower than that of the delegating authority and
such entities may exercise the power to expropriate private
property only when authorized by Congress and subject to its
control and restraints imposed through the law conferring the
power or in other legislations. Indeed, local government units
themselves have no inherent power of eminent domain.
Thus, strictly speaking, the power of eminent domain
delegated to local government units is in reality not eminent
but "inferior" since it must conform to the limits imposed by
the delegation and thus, partakes only of a share in eminent
domain. The national legislature is still the principal of the
local government units and the latter cannot go against the
principal's will or modify the same.
"Indeed, despite the existence ol' legislative grant in favor of
local governments, it is still the duty of the courts to
determine whether the power of eminent domain is being
exercised in accordance with the delegating law (Beluso vs.
Municipality of Panay Capiz, GR. No. 153974, August 7,
Page165
2006).
II. Exercise of eminent domain by local government units
l. Sec. 19 of R.A. No. 7160, which delegates to local
government units the power of eminent domain expressly
provides:
SEC. 19. Eminent Domain. -A local government unit
may, through its chief executive and acting pursuant to an
ordinance, exercise the power of eminent domain for public
use, or purpose, or welfare for the benefit of the poor and
the landless, upon payment of just compensation, pursuant
to the provisions of the Constitution and pertinent laws:
Provided, however, That the power of eminent domain may
not be exercised 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 unit
may immediately take possession of the property upon the
filing of the expropriation proceedings and upon making a
deposit with the proper court of at least fifteen percent
(15%) of the fair market value of the property based on the
current tax declaration of the property to be expropriated:
Provided, finally, That, the amount to be paid for the
expropriated property shall be determined by the proper
court, based on the fair market value at the time of the
taking of the property.
2. The above provision (Sec. 19 of R.A. No. 7160 otherwise
known as the Local Government Code), lays down the
requisites that must concur before a local government unit
can exercise the power of eminent domain, to wit:
(a) An ordinance is enacted by the local legislative council
authorizing the local chief executive, in behalf of the local
government unit, to exercise the power of eminent domain
or pursue expropriation proceedings over a particular
private property;
(b) The power ol'erninerit domain is exercised for public
use, purpose or welfare, or for the benefit of the poor and
the landless;
(c) There is payment of just compensation, as required
under Section 9, Article III of the Constitution, and other
pertinent laws;
(d) A valid and definite offer has been previously made to
the owner of the property sought to be expropriated, but
said offer was not accepted.
3. The Court in no uncertain terms has pronounced that a
local government unit cannot authorize an expropriation of
private property through a mere resolution of its lawmaking
body. R.A. No. 7160 otherwise known as the Local
Government Code expressly requires an ordinance for the
purpose and a resolution that merely expresses the sentiment
of the municipal council will not suffice.
- Said the Court in one case: "A resolution will not suffice for
a local government unit to be able to expropriate private
property; and the reason for this is settled because a
municipal ordinance is different from a resolution. An
ordinance is a law, but a resolution is merely a declaration of
the sentiment or opinion of a lawmaking body on a specific
matter. An ordinance possesses a general and permanent
character, but a resolution is temporary in nature.
Additionally, the two are enacted differently - a third
reading is necessary for an ordinance, but not for a
resolution, unless decided otherwise by a majority of all the
Sanggunian members."
III. Stages in the expropriation process
- There are two stages in the expropriation process, namely;
1. The first stage is the determination of the authority of the
plaintiff' to expropriate. This determination includes an
inquiry into the propriety of the expropriation - its necessity
and the public purpose.
- The first stage will end in the issuance of an order of
expropriation if the court finds for the plaintiff or in the
dismissal of the complaint if it finds otherwise.
2. The second stage is the determination of just
compensation through the court-appointed commissioners.
IV. How expropriation is commenced
- There is no reason for the exercise of the power of eminent
domain through court action when the owner is willing to
part with his property. The commencement of a complaint
for expropriation is necessary only when the owner does not
agree to sell his property or if he is willing to sell but does
not agree with the price offered.
1. An expropriation proceeding is commenced by the filing of
a verified complaint which shall:
(a) state with certainty the right of the plaintiff to
expropriation and the purpose thereof,
(b) describe the real or personal property sought to be
expropriated, and
(c) join as defendants all persons owning or claiming to
own, or occupying, any part of the property or interest
therein showing as far as practicable the interest of each
defendant. If the plaintiff cannot with accuracy identify
the real owners, averment to that effect must be made in
the complaint (Sec. 1, Rule 67, Rules of Court).
2. The defendant shall be served with summons (Sec. 3, Rule
67, Rules of Court).
3. Note that under both Rule 67 and Rep. Act No. 8974, the
law governing expropriation of private property for national
government infrastructure projects, the Government
commences expropriation proceedings through the filing of a
complaint. Unlike in the case of local governments which
necessitate an authorizing ordinance before expropriation
may be accomplished, there is no need under Rule 67 or Rep.
Act No. 8974 for legislative authorization before the
Government may proceed with a particular exercise of
eminent domain.
V. Answer of the defendant
1. The defendant shall serve an answer if he has an objection
to the complaint or if he has a defense to the taking of his
property. The answer is required to specifically designate or
identify the property in which he claims to have an interest,
and to state the nature and extent of the interest claimed.
He must allege all his objections and defenses to the taking
of his property because those objections or defenses not
adduced are deemed waived. Notice that this is the same
principle observed in the omnibus motion rule under Sec. 8 of
Rule 15 governing ordinary civil actions.
Page166
- If the answer omits some defenses, the remedy, in order to
prevent a waiver of those not alleged, is to seek leave to
amend the answer within ten (10) days from the filing
thereof. Leave is required because of the tenor of the rule
which provides "
* the court, in the interest of justice, may permit
amendments to the answer * * * " (Sec. 3, Rule 67, Rules of
Court; Italics supplied). In ordinary civil actions this
amendment would have been a matter of right as long as the
amendment is made before the service of a reply which is
the responsive pleading to the answer (Sec. 2, Rule 10, Rules
of Court).
2. In ordinary civil actions, the defendant may file an answer
with a counterclaim, cross-claim or with leave of court, file a
third-party complaint. Under Sec. 3 of Rule 67, none of these
pleadings shall be alleged or allowed in the answer or in any
subsequent pleadings (Sec. 3, Rule 67, Rules of Court).
3. If the defendant does not have any objection to the
complaint or does not have a defense to the taking of his
property, he need not even file an answer. Instead, he may
file and serve a notice of appearance and a manifestation to
the fact that he has no objections or defenses to the taking
of the property. 1n the manifestation, he shall likewise
specifically designate or identify the property in which he
claims to have an interest. Thereafter, he shall be entitled to
notices of all proceedings affecting the property even if he
has no objections or defenses (Sec. 3, Rule 67, Rules of
Court).
4. While it is the rule that the failure to answer or to
interpose objections in the answer will have the effect of the
waiver of the defenses of the defendant to the complaint for
expropriation, the defendant who does not file an answer
will not lose his standing in court unlike the defaulted
defendant in an ordinary civil action who cannot appear in
the trial. In expropriation proceedings the waiver of the
objections or even the failure to file an answer will not bar
the defendant from presenting evidence later on as to the
amount of the compensation to be paid for his property and
to share in the distribution of the award (Sec. 3, Rule 67,
Rules of Court).
VI. Entry upon the property or possession thereof
1. The recognition of the requirements of the public good
allows the expropriator to take possession of the property
upon the filing of the complaint although the mere filing of
the complaint does not entitle the plaintiff to take or enter
upon the possession of the real property subject of the
complaint. Under Sec. 2 of Rule 67, in order to be entitled to
the possession of the property subject of the complaint for
expropriation, the plaintiff upon the filing of the complaint
or at any time thereafter, must deposit with the proper
government authority an amount equivalent to the assessed
value of the property for purposes of taxation. The deposit
shall be in money, unless the court authorizes a deposit in
the form of a certificate of deposit of a government bank of
the Republic of the Philippines payable on demand to the
authorized depositary. If personal property is involved, its
value shall be provisionally ascertained and the amount to be
deposited shall be promptly fixed by the court. Notice is
required to be sent to the defendant before placing the
plaintiff in possession of the property (Sec. 2, Rule 67, Rules
of Court).
2. The deposit having been made, the court shall order the
sheriff or other proper officer to place the plaintiff in
possession of the property involved and to promptly submit a
report to the court. Copies of the report are to be served to
the parties (Sec. 2, Rule 67, Rules of Court).
3. The deposit requirement serves as an advanced payment
to the owner of the property should the court decide in favor
of the plaintiff and should it be otherwise the deposit shall
serve as indemnity against any damage which the owner may
have sustained.
VII. Sec. 2 of Rule 67 deemed modified by R.A. 8974
1. "Republic Act No. 8974 (Rep. Act No. 8974), otherwise
known as "An Act to Facilitate the Acquisition of Right-of-
Way, Site or Location for National Government Infrastructure
Projects and For Other Purposes" and its Implementing Rules
and Regulations (Implementing Rules) had modified Sec. 2 of
Rule 67 in many respects.
- "There are at least two crucial differences between the
respective procedures under Rep. Act No. 8974 and Rule 67.
Under the statute, the Government is required to make
immediate payment to the property owner upon the filing of
the complaint to be entitled to a writ of possession, whereas
in Rule 67, the Government is required only to make an
initial deposit with an authorized government depositary.
Moreover, Rule 67 prescribes that the initial deposit be
equivalent to the assessed value of the property for purposes
of taxation, unlike Rep. Act No. 8974 which provides, as the
relevant standard for initial compensation, the market value
of the property as stated in the tax declaration or the
current relevant zonal valuation of the Bureau of Internal
Revenue (BIR), whichever is higher, and the value of the
improvements and/or structures using the replacement cost
method.
- "The relevant provision of R.A. 8974 states:
SEC. 4. Guidelines for Expropriation Proceedings. -
Whenever it is necessary to acquire real property for the
right-of'-way, site or locution fur tiny national govornment
infrastructure project through expropriation, there are
appropriate proceedings before the proper court under the
following guidelines:
a) Upon the filing of the complaint, and after due notice to
the defendant, the implementing agency shall immediately
pay the owner of the property the amount equivalent to the
sum of (1) one hundred percent (100%) of the value of the
property based on the current relevant zonal valuation of the
Bureau of Internal Revenue (BIR); and (2) the value of the
improvements and/or structures as determined under Section
7 hereof,
- "In contrast, the first paragraph of Section 2 of Rule 67
provides:
SEC. 2. Entry of plaintiff upon depositing value with
authorized government depository. - 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
Page167
deposits with the authorized government depositary an
amount equivalent to the assessed value of the property for
purposes of taxation to be held by such bank subject to the
orders of the court. Such deposit shall be in money, unless in
lieu thereof the court authorizes the deposit of a certificate
of deposit of a government bank of the Republic of the
Philippines payable on demand to the authorized government
depositary.
2. "While Rule 67 merely requires the Government to deposit
with an authorized government depositary the assessed value
of the property for expropriation for it to be entitled to a
writ of possession, Rep. Act No. 8974 requires that the
Government make a direct payment to the property owner
before the writ may issue. Moreover, such payment is based
on the zonal valuation of the BIR in the case of land, the
value of the improvements or structures under the
replacement cost method, or if no such valuation is available
and in cases of utmost urgency, the proffered value of the
property to be seized.
- "Rep. Act No. 8979, which provides for a procedure
eminently more favorable to the property owner than Rule
67, inescapably applies in instances when the national
governmen L expropriates property "for national government
infrastructure projects." 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 R.A. 8974 to supersede the system of deposit under
Rule 67 with the scheme of "immediate payment" in cases
involving national government infrastructure projects is
indeed very clear.
3. Under Sec. 19 of the Local Government Code, the amount
of deposit shall be at least fifteen percent (15%) of the fair
market value of the property based on the current tax
declaration of the property to be expropriated.
VIII. Order of expropriation
1. An order of expropriation (also referred to as order of
condemnation) will be issued declaring that the plaintiff has
a lawful right to take the property for the public use or
purpose described in the complaint upon the payment of just
compensation in the event the objections of the defendant
are overruled or when no party appears to object to or to
defend against the expropriation (Sec. 4, Rule 67, Rules of
Court).
2. After the rendition of the order of expropriation, the
plaintiff shall not be permitted to dismiss or discontinue the
proceeding except upon such terms as the court deems just
and equitable (Sec. 4, Rule 67, Rules of Court).
3. The order of expropriation, as far as the court is
concerned, settles the issue as to the right to expropriate,
the issue of public purpose. The next vital issue in the
proceedings is the determination of just compensation.
IX. Appeal from the order of expropriation
1. The final order sustaining the right to expropriate the
property may be appealed from by any party aggrieved by
such order (Sec. 4, Rule 67, Rules of Court). The appeal shall
not however, prevent the court from determining the just
compensation to be paid. This should be taken to mean that
despite the appeal from the order of expropriation, the court
may proceed to the second stage of the expropriating
process, the determination of just compensation.
2. If on appeal, the appellate court determines that the
plaintiff has no right of expropriation, judgment shall be
rendered ordering the Regional Trial Court to enforce the
restoration of the property to the defendant and the
determination of the damages which the defendant may
recover by reason of the possession taken by the plaintiff
(Sec. 11, Rule 67, Rules of Court).
X. Ascertainment of compensation
l. The order of expropriation merely declares that the
plaintiff has the lawful right to expropriate the property but
contains no ascertainment of the compensation to be paid to
the owner of the property. So upon the rendition of the order
of expropriation, the court shall appoint not more than three
(3) commissioners to ascertain the just compensation for the
property. Objections to the appointment maybe made within
ten (10) days from service of the order of appointment (Sec.
5, Rule 67, Rules of Court). The commissioners are entitled
to fees and their fees shall be taxed as part of the costs of
the proceedings, and all costs shall be paid by the plaintiff
except those costs of rival claimants litigating their claims
(Sec. 12, Rule 67, Rules of Court).
- It has been ruled that the appointment of commissioners to
ascertain just compensation for the property sought to be
taken is a mandatory requirement in expropriation cases.
Where the principal issue is the determination of just
compensation, a hearing before the commissioners is
indispensable to allow the parties to present evidence on the
issue of just compensation. While it is true that the findings
of commissioners may be disregarded and the trial court may
substitute its own estimate of the value, the latter may only
do so for valid reasons, that is, where the commissioners
have applied illegal principles to the evidence submitted to
them, where they have disregarded a clear preponderance of
evidence, or where the amount allowed is either grossly
inadequate or excessive. Thus, trial with the aid of the
commissioners is a substantial right that may not be done
away with capriciously or for no reason at all. Where no trial
or hearing was conducted to afford the parties the
opportunity to present their own evidence, the court should
disregard the commissioners' findings. The absence of such
trial or hearing constitutes a violation of the right of due
process.
2. The parties may introduce their evidence before the
commissioners and they may argue their case either by
themselves or by counsel. In ascertaining the compensation,
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
but in no case shall the consequential benefits assessed
exceed the consequential damages or shall the owner be
deprived of the actual value of his property so taken (Sec. 6,
Rule 67, Rules of Court).
3. As a rule, the commissioners shall make their report,
within sixty (60) days from the date they were notified of
Page168
their appointment. This period may be extended in the
discretion of the court. Upon the filing of such report, the
clerk of court shat I serve copies thereof on all interested
parties, with notice that, they are allowed to file their
objections to the findings of the report, if they so desire,
within ten (10) days (Sec. 7, Rule 67, Rules of Court).
XI. Judgment as to compensation
- The court, after hearing, may either accept the report or
set aside the same or accept the report in part or reject the
same in part. If it accepts the report, it shall render judgmen
I in accordance with the report. If it sets aside the report, it
may appoint new commissioners or recommit the same to the
commissioners for further report of facts. Whatever other
orders the court may make shall always consider the interest
of all the parties to the case (Sec. 8, Rule 67, Rules of'Court).
XII. Appeal from the judgment as to compensation
1. The judgment rendered by the court as to the just
compensation may be appealed from but the appeal shall not
have the effect of delaying the right of the plaintiff to enter
upon the property and to appropriate the same for public use
or purpose. But if the appellate court determines that the
plaintiff has no right of expropriation, judgment shall be
rendered ordering the Regional Trial Court to restore the
property to the defendant and to determine the damages
which he may have sustained by reason of the possession
taken by the plaintiff (Sec. 11, Rule 67, Rules of Court).
2. If the judgment is affirmed, the costs of the appeal shall
be paid not by the plaintiff but by the owner of the property
who appealed the judgment (Sec. 12, Rule 67, Rules of
Court).
3. Be it remembered that it is not only the judgment of the
court as to the compensation which is appealable. The
previous order of expropriation is also appealable. Hence, in
expropriation proceedings multiple appeals are permitted
and the reglementary period for appeal is thirty (30) days.
XIII. Meaning of just compensation
1. As to what just compensation is, the Supreme Court's
ruling in a case is enlightening:
"> Just compensation - the full and fair equivalent
of the property sought to be expropriated. The measure is
not the taker's gain but the owner's loss. The compensation,
to be just, must be fair not only to the owner but also to the
taker. Even as undervaluation would deprive the owner of his
property without due process, so too would its overvaluation
unduly favor him to the prejudice of the public.
"To determine just compensation, the trial court
should first ascertain the market value of the property, to
which should be added the consequential damages after
deducting therefrom the consequential benefits which may
arise from the expropriation. If the consequential benefits
exceed the consequential damages, these items should be
disregarded altogether as the basic value of the property
should be paid in every case.
"The market value of the property is the price that
may be agreed upon by parties willing but not compelled to
enter into the contract of sale. Not unlikely, a buyer
desperate to acquire a piece of property would agree to pay
more, and a seller in urgent need of funds would agree to
accept less, than what it is actually worth. x x x
"Among the factors to be considered in arriving at
the fair market value of the property are the cost of
acquisition, the current value of like properties, its actual or
potential uses, and in the particular case of lands, their size,
shape, location, and the tax declarations thereon.
2. If the compensation is not paid when the property is
taken, but is postponed to a later date, the interest awarded
is actually part of just compensation which takes into
account such delay.
3. At what point should compensation for the property taken
be determined? Is it as of the filing of the complaint for
expropriation or as of the time the plaintiff takes possession
of' the property?
(a) Sec. 4 of Rule 67 provides that the just compensation
shall be determined as of the date of the taking of the
property or the filing of the complaint, whichever came
first.
(b) A relatively recent case where the taking preceded,
the filing of the complaint for expropriation, held that
compensation for property expropriated must be
determined at the time the expropriating authority takes
possession thereof and not as of the institution of the
proceedings. Explaining the reason for the ruling, and
citing a long line of cases, the Court explained in Sarabia:
"The value of the property should be fixed as of
the date when it was taken and not the date of the filing
of the proceedings. For where property is taken ahead of
the filing of the condemnation proceedings, the value
thereof may be enhanced by the public purpose for which
it is taken; the entry by the plaintiff upon the property
may have depreciated its value thereby; or, there may
have been a natural increase in the value of the property
from the time it is taken to the time the complaint is
filed, due to general economic conditions. The owner of
private property should be compensated only for what he
actually loses; it is not intended that his compensation
shall extend beyond his loss or injury. And what he loses
is only the actual value of his property at the time it is
taken. This is the only way the compensation to be paid
can be truly just; i.e., "just" not only to the individual
whose property is taken, "but to the public, which in to
pay for it."
(c) In a case of more recent vintage where the filing of the
complaint preceded the plaintiffs entry into' the property
it was held: " * * * Where the institution of the action
precedes entry into the property, the just compensation is
to be ascertained as of the time of the filing of the
complaint.
(d) Under Sec. 19 of the Local Government Code the
amount to be paid for the expropriation of the
expropriated property shall be determined based on the
fair market value at the time of the taking of the property.
XIV. Payment of just compensation
1. The payment shall involve the amount fixed in the
judgment and shall include legal interest from the taking of
possession of the property (Sec. 10, Rule 67, Rules of Court).
2. If the defendant declines to receive the amount tendered,
the same shall be ordered deposited in court and such
deposit shall have the same effect as actual payment thereof
Page169
to the defendant or to the person ultimately adjudged or
entitled thereto (Sec. 10, Rule 67, Rules of Court).
3. If there are conflicting claims to the property or the
ownership thereof is uncertain, the court may order that the
sum due as compensation be paid to the court for the benefit
of the person who shall be later on adjudged entitled to
payment (Sec. 9, Rule 67, Rules of Court).
XV. Right of plaintiff after payment
- After payment of the just compensation as determined in
the judgment, the plaintiff shall have the right to enter upon
the property expropriated and to appropriate the same for
the public use or purpose defined in the judgment or to
retain possession already previously made in accordance with
Sec. 2 of Rule 67 (Sec. 10, Rule 67, Rules of Court).
XVI. Recording of the 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 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. 13, Rule 69,
Rules of Court).
XVII. Nonpayment of just compensation; effect
- Non payment of just compensation does not entitle the
private landowner to recover possession of the expropriated
lots. I-lowever, in cases where the government lailed to pay
just compensation within live (5) years from the finality
ofjudgment in the expropriation proceedings, the owners
concerned shall have the right to recover possession of their
property.
XVIII. When title passes
- Title to the property expropriated passes from the owner to
the expropriator only upon full payment of just
compensation.
VII. Foreclosure of Real Estate Mortgage (Rule 68)
I. Preliminaries
l. A real estate mortgage is an accessory contract executed
by a debtor in favor of a creditor as security for the principal
obligation. This principal obligation is a simple loan or
mutuum described in Art. 1953 of the Civil Code of the
Philippines. To be a real estate mortgage, the contract must
be constituted on either immovables (real property) or
inalienable real rights. If constituted on movables, the
contract is a chattel mortgage (Art. 2124, Civil Code of the
Philippines).
2. A real estate mortgage creates a real right which follows
the property whoever the owner may become after the
constitution of the mortgage. Hence, the new owner who
knows of the mortgage (or if registered), is bound by the
mortgage even if he is not a party to the contract of
mortgage. Art. 2126 of the Civil Code of the Philippines is
explicit: "The mortgage directly and immediately subjects
the property upon which it is imposed, whoever the possessor
may be to the fulfillment of the obligation for whose security
it was constituted."
3. A mortgage contract may have a provision in which the
mortgage is a security for past, present and future
indebtedness. This clause known as a dragnet clause or
blanket mortgage clause has its origins in American
jurisprudence. The Supreme Court ruled that mortgages
given to secure future advancements are valid and legal
contracts.
4. If the debt is not paid and the debtor defaults, the
creditor cannot ipso facto appropriate the mortgaged
property despite a stipulation to that effect because of the
policy against, a pactum commissorium, an agreement that is
legally infirm. Art. 2088 of the Civil Code of the Philippines
expressly prohibits the creditor from appropriating the things
given by way of pledge or mortgage and any stipulation to
the contrary is null and void. This appropriation to be null
and void has been interpreted to refer to an automatic
appropriation granted by contract to the creditor in case of
non-payment of the obligation.
5. The mortgagor need not be the debtor and the latter need
not be the mortgagor. The mortgagor who is not the debtor
in the principal obligation is referred to as an
accommodation mortgagor. This situation is not prohibited by
law and has in fact, a legal basis. The law provides: "Third
persons who are not parties to the principal obligation may
secure the latter by pledging or mortgaging their own
property" (Art. 2085, Civil Code of the Philippines).
- Since the accommodation mortgagor is ordinarily not the
recipient of the loan, his liability extends only up to the loan
value of the mortgaged property and not to the entire loan
itself.
6. There can be several mortgages over the same property
since there is neither a law nor a rule prohibiting the
existence of more than one encumbrances over a property.
These encumbrances have no effect on the ownership of the
property and are treated merely as liens, the first one
normally being treated as more superior over subsequent
encumbrances. However, even a junior encumbrancer may
initiate foreclosure proceedings ahead of a prior
encumbrancer in case the debt in his favor matures earlier.
- If the second mortgagee for instance, files a complaint for
foreclosure, there is also no rule prohibiting the former from
impleading the first mortgagoo (/)(, /.a Riva us. Reynoso, 61
Phil. 734). If he is not ,joined, lie may intervene in the action
if he desires and if the obligation in his favor is already due
and payable. This intervention is not however, indispensable
because his lien remains to exist over the mortgaged
property.
7. While Art. 2125 of the Civil Code of the Philippines
provides that "in order for a mortgage to be validly
constituted, * * * the document in which it appears * * * be
recorded in the Registry of Property." The same provision
also provides that if the instrument is not recorded, "the
mortgage is nevertheless binding between the parties." The
registration of the mortgage is necessary for the purpose of
Page170
binding third persons.
8. An action to foreclose a mortgage is one incapable of
pecuniary estimation and should be filed in the Regional Trial
Court. It stands in the same footing as actions for specific
performance, support, annulment of a judgment, actions
questioning the validity of marriage, actions to annul a deed
of sale or conveyance, and an action for rescission which is a
counterpart of specific performance.
9. An action for foreclosure of mortgage of real property is
an action affecting interest in real property and is hence, a
real action (Sec. 1, Rule 4, Rules of Court). The venue of real
actions is the place where the real property involved, or a
portion thereof, is situated (Sec. 1, Rule 4, Rules of Court). It
has been held that if several parcels of land located in
different provinces are covered by a single mortgage
contract, the action may be filed in any of the provinces
where any of the parcels of land is located. The judgment of
the court of the province where the action is filed may be
executed in all the other provinces.
II. Alternative remedies of a creditor
1. Because of the prohibition against pactum commissorium,
in case of default of the debtor, the creditor has the
following alternative remedies:
(a) To file an action for collection of a sum of money; or
(b) To foreclose the mortgage, ifone has been constituted.
- An election of one operates as a waiver of the other. For
this purpose, a remedy is deemed chosen upon the filing of
the complaint for collection or upon the filing of the
complaint for foreclosure of mortgage. As to an extra judicial
foreclosure, such mode is deemed elected by the filing of the
application for foreclosure with the Office of the Sheriff of
the Province where the sale is to be made. The mere act of
filing an action for collection is a waiver of the remedy to
foreclose the mortgage. No final judgment in the collection
suit is required for the rule on waiver to apply. By instituting
a civil action to recover on the promissory note, the plaintiff
is considered to have abandoned his mortgage lien on the
property.
2. The death of the mortgagor does not extinguish his debt
and does not preclude the foreclosure of any real estate
mortgage he may have executed prior to his death. When the
mortgagor dies, the following remedies may be availed of by
the mortgagee:
(a) He may abandon or waive the mortgage or security and
claim the entire debt from the estate of the mortgagor in
accordance with Rule 86 by sharing in the general
distribution of the estate;
(b) To foreclose the mortgage judicially and claim any
deficiency in accordance with Rule 86; or
(c) To rely upon the mortgage or other security exclusively
and foreclose the same at anytime before it is barred by
prescription without the right to file a claim for any
deficiency as creditor of the estate and without a right to
share in the distribution of the other assets of the estate
(Sec. 7, Rule 86, Rules of Court).
III. Splitting of a single cause of action
- A creditor cannot file a civil action against the debtor for
collection of the debt and subsequently file an action to
foreclose the mortgage. This is an example of'splitting of a
single cause of action, a practice that is vexatious and
oppressive.
Illustration (Bar 1999)
A purchased a lot from B for P1,5000,000. He gave a
downpayment of P5000,000.00, signed a promissory note
payable thirty days after date, and as security for the
settlement of the obligation, mortgaged the same lot to B.
When the note fell due and A failed to pay, B commenced
suit to recover to recover from A the balance of P1 million.
After securing a favorable judgment on his claim, B brought
another action against A in the same court to foreclose the
mortgage. A now files a motion to dismiss the second action
on the ground of bar by a prior judgment. Rule on the
motion.
Suggested answer:
The motion of A should be granted. The failure to
pay a debt secured by a mortgage constitutes but a single
cause of action. The creditor cannot file an action to collect
the debt and thereafter file another action to foreclose the
mortgage. The filing of the second action violates the rule
against splitting a single cause of action.
IV. Modes of foreclosure of real estate mortgage
1. (a) Judicial foreclosure pursuant to Rule 68 of the Rules of
Court; and
(b) Extra judicial foreclosure pursuant to Act. No. 3135 as
amended by Act No. 4118.
2. Extra judicial foreclosure is the mode to be used if there is
a special power inserted in or attached to the real estate
mortgage contract allowing an extra judicial foreclosure sale
(Sec. 1, Act No. 3135 as amended). Where there is no such
special power, the foreclosure shall be done judicially
following the procedure set under Rule 68. When there is no
such authority under a special power of attorney, the
foreclosure must be made judicially.
V. Applicability of Rule 68
- Rule 68 applies only to judicial foreclosures of real estate
mortgage (Sec. 1, Rule 68, Rules of Court).
VI. Complaint for foreclosure
- The complaint for foreclosure of real estate mortgage shall
set forth the following:
(a)The date and due execution of the mortgage;
(b) The assignments of the mortgage if any;
(c) The names and residences of the mortgagor and
mortgagee;
- The mortgagor, being a contracting party is deemed
indispensable to the suit. Without him being impleaded,
there would be no final determination of the action. If there
are junior encumbrancers it would be procedurally more
advisable to implead them so complete relief could be had in
the action. The junior lien holders or mortgagees are merely
necessary parties. Being merely necessary parties, the
mortgage may nevertheless be foreclosed even without them
being impleaded although the plaintiff under Sec. 9 of Rule 3
is obligated to state their names in the complaint, if known
and shall state why they are omitted.
Page171

(d) A description of the mortgaged property;
(e) A statement of the date of the note and other
documentary evidence of the obligation secured by the
mortgage;
(f) The amount claimed to be unpaid thereon; and
(g) 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 (Sec. 1 Rule 68, Rules
of Court). These include persons who may now own the
property rriortgaged. Under Art. 2130 of the Civil Code
of the Philippines, the mortgagor may sell the property
despite the mortgage over it because a "stipulation
forbidding the owner from alienating the immovable
mortgaged shall be void." Also included are the junior
encumbrancers earlier referred to, the persons who may
have, under the contract, obligated to pay the mortgage
debt or those who may have control of the property
mortgaged.
VII. Procedure
- A foreclosure suit proceeds like an ordinary civil action.
When a complaint is filed, summons is issued and served
upon the defendant who also files his answer to the
complaint for foreclosure. After the filing of the answer, a
pre-trial is held and then the trial is conducted.
VIII. Judgment on foreclosure
1. If after the trial, the court finds that the matters set forth
in the complaint are true, it shall render a judgment
containing the following matters:
(a) an ascertainment of the amount due to the plaintiff
upon the mortgage debt or obligation, including interest
and other charges as approved by the court, as well as
costs;
(b) a judgment of the sum found due;
(c) an order that the amount found due 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 (120)
days from the entry of judgment;
(d) and an admonition that in default of such payment the
property shall be sold at public auction to satisfy the
judgment (Sec. 2, Rule 68, Rules of Court).
2. The judgment of the court on the above matters is
considered a final adjudication of the case and hence, is
subject to challenge by the aggrieved party by appeal or by
other postjudgment remedies.
3. The period granted to the mortgagor for the payment, of
the amount found due by the court is not just a procedural
requirement but a substantive right given by law to the
mortgagee as his first chance to save his property from final
disposition at the foreclosure sale (De Leon vs. Ibanez, 95
Phil. 119). This is a substantial requirement which cannot be
omitted.
IX. Equity of redemption
- The period mentioned in the judgment of the court is the
period within which the mortgagor may start exercising his
"equity of redemption," which is the right to extinguish the
mortgage and retain ownership of the property by paying the
debt. The equity of redemption may be exercised even after
the foreclosure sale provided it is made before the sale is
confirmed by order of the court.
- The equity of redemption may also exist in favor of other
encumbrancers. If subsequent lien holders are not impleaded
as parties in the foreclosure suit, the judgment in favor of
the foreclosing mortgagee does not bind the other lien
holders. In this case, their equity of redemption remains
unforeclosed (unforeclosed equity of redemption). A separate
foreclosure proceeding has to be brought against them to
require them to redeem from the first morgagee or from the
party acquiring the title to the mortgaged property.
X. Right of redemption
1. The right of redemption is a right granted to a mortgagor
to repurchase the property even after the confirmation of
the sale and even after the registration of the certificate of
sale.
2. There is no right of redemption in a judicial foreclosure of
mortgage under Rule 68. This right of redemption exists only
in extra judicial f'oreclosures whore Chore is always a right of
redemption within one year from the date of sale.
- This period of redemption in extra judicial foreclosures is
shortened by the General Banking Act of 2000 (Sec. 47, 2nd
paragraph) when the mortgagor is a juridical person. The
period of redemption is "until, but not after" the registration
of the certificate of sale with the Register of Deeds," "which
in no case shall be more than three (3) months after
foreclosure, whichever is earlier" Since the law mandates
that the registration should be effected not more than (3)
months after the foreclosure, the redemption cannot be
made after the lapse of three (3) months from the
foreclosure of the mortgaged property.
3. In judicial foreclosures there is only an equity of
redemption which can be exercised prior to the confirmation
of the foreclosure sale. This means that after the foreclosure
sale but before its confirmation, the mortgagor may exercise
his right to pay the proceeds of the sale and prevent the
confirmation of the sale. This is the well-recognized general
rule.
- This rule however, has an exception. There is a right of
redemption if the foreclosure is in favor of banks as
mortgagees, whether the foreclosure be judicial or
extrajudicial. This right of redemption is explicitly provided
in Sec. 47, par. 1, of the General Banking Law of 2000. While
the law mentions the redemption period to be "one year
after the sale of the real estate," this has been construed to
be "one year counted from the date of registration of the
certificate of sale in the Registry of Property". Hence, if
the mortgagee is a bank, the mortgagor may exercise a right
of redemption and this rule applies even if the foreclosure is
judicial in accordance with Rule 68 of the Rules of Court.
Illustration Bar (2000)
AB mortgaged his property to CD. AB failed to pay
his obligation and CD filed an action for foreclosure of
mortgage. After trial, the court issued an Order granting CD's
Page172
prayer for foreclosure of mortgage and ordering AB to pay CD
the full amount of the mortgage debt including interest and
other charges not later than 120 days from date of receipt of
the Order. AB received the Order on August 10, 1999. No
other proceeding took place thereafter. On December 20,
1999, AB tendered the full payment adjudged by the court to
CD but the latter refused to accept it on the ground that the
amount was tendered beyond the 120-day period granted by
the court. AB filed a motion in the same court praying that
CD be directed to receive the amount tendered by him on
the ground that the Order does not comply with the
provisions of Sec. 2, Rule 68 which gives AB 120 days from
entry of judgment, and not from date of receipt of the
Order. The court denied his motion on the ground that the
Order had already become final and can no longer be
amended to conform to Sec. 2 of Rule 68. Aggrieved, AB files
a petition for certiorari against the Court and CD. Will the
petition for certiorari prosper?
Suggested answer.
The petition will prosper. The period for payment is
reckoned from the date of entry of judgment, not from the
receipt of the Order of the court. Since no appeal was taken
from the judgment when AB received the notice of the Order
on August 10, 1999, the Order became final on August 25,
1999 or 15 days thereafter. Under Sec. 2 of Rule 36, the date
of the finality of the judgment or final order is also the date
of its entry. The Order then was deemed entered on August
25, 1999. The 120-day period would have ended on December
24, 1999. The tender of payment by AB on December 20,
1999 is well within the period set under Sec. 2 of Rule 68.
XI. Sale of the mortgaged property
1. If the mortgagor fails to pay the sum due within the period
(90-120 days) stated by the court in its judgment, it soul d be
good practice for the mortgagee to file a motion for the sale
of the mortgaged property because under the Rules, thecourt
shall order the sale of the property only upon motion of the
mortgagee (Sec. 3, Rule 68, Rules of Court). The motion will
be granted as a matter of course, no notice thereof upon the
mortgagor being required.
- It has been held that the motion for the sale of the
mortgaged property is non-litigable and may be made ex
parte.
2. The manner of sale shall follow the rules governing
execution sales under Rule 39 (Sec. 3, Rule 68, Rules of
Court). In addition, the rules under Rule 39 governing the use
of the property during the period of redemption (Sec. 31,
Rule 39), the disposition of the rents, earnings and income of
the property pending redemption (Sec. 32, Rule 39), and the
recovery of the price of the sale by the purchaser and the
rules on revival of the judgment (Sec. 34, Rule 39), shall
likewise be applicable to judicial foreclosures insofar as they
are not inconsistent with Rule 68 (Sec. 8, Rule 68, Rules of
Court).
XII. Confirmation of the sale
l. After the foreclosure sale has been effected, the
mortgagee should file a motion for the confirmation of the
sale (Sec. 3, Rule 68, Rules of Court). Unlike the motion for
the sale of the mortgaged property which is a motion ex
parte, the motion for the confirmation of the sale requires a
notice and a hearing. In this hearing the mortgagor will be
allowed the opportunity to show cause why the sale should
not be confirmed an(? to inform them when the his right will
be cut off (Tglao vs. Boto a t2 s, 90 Phil. 275). If a hearing is
required and the mortgagor was not notified of the hearing,
the subsequent confirmation of the sale is vitiated and
consequently it is as if no confirmation ever took place. The
mortgagor may therefore, still insist on his right to exercise
his equity of redemption even after the alleged confirmation
which is in fact of no effect.
2. After the hearing and the court finds valid grounds for its
confirmation, it shall issue an order confirming the
foreclosure sale. This order confirming the sale is a judgment
in itself' and is deemed a final adjudication on the propriety
and merits of the sale. It is hence, also appealable.
Illustration (Bar 1984)
In an action for foreclosure of real estate mortgage,
judgment was rendered against A, the mortgagor-debtor. As
A failed to pay the mortgage, debt plus interest thereon
within the period stated in the judgment, the mortgaged
property was sold at public auction on October 1, 1984 at a
price less than the amount of the judgment.
On October 3,198, A was able to raise enough
money to fully satisfy the judgment, including all expenses of
the sale of the mortgaged property.
Assuming that the mortgagor has no right of
redemption under the law, what steps should A take to
protect his interest under the circumstances?
Suggested answer.
A should deposit the entire amount with the court
for the satisfaction of the judgment and all the expenses for
the sale before the court confirms the foreclosure sale. The
equity of redemption of the mortgagor may be exercised
prior to the confirmation of the sale. After its confirmation
no further redemption may be made.
XIII. Effect of confirmation of the sale
1. The confirmation of the sale shall divest the rights in the
property of all the parties to the action and shall vest their
rights in the purchaser, subject to such rights of redemption
as may be allowed by law (Sec. 3, Rule 68, Rules of Court).
- It is said that title vests in the purchaser upon a valid
confirmation of the sale and retroacts to the date of sale.
2. The import of Sec. 3 of Rule 68 includes one vital effect:
The equity of redemption of the mortgagor or redemptioner
is cut-off and there will be no further redemption, unless
allowed by law (as in the case of banks as mortgagees). The
equity of redemption starts from the ninety-day period set in
the judgment of the court up to the time before the sale is
confirmed by an order of the court. Once confirmed, no
equity of redemption may further be exercised.
XIV. Effect of the finality of the confirmation of the sale
1. The order of confirmation is appealable and if not
appealed within the period for appeal becomes final.
2. 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
Page173
any, shall be entitled to the possession of the property and
he may secure a writ of possession, upon motion, from the
court which ordered the foreclosure unless a third party is
actually holding the same adversely to the judgment obligor
(Sec. 3, Rule 68, Rules of Court).
- Be it noted that the writ of possession shall be issued upon
motion. Hence, the purchaser or last redemptioner must file
a motion for the issuance of a writ of possession in the court
which ordered the foreclosure (Sec. 3, Rule 68, Rules of
Court). The writ of possession is a means of enforcing and
recognizing rights of the purchaser emphasized in Sec. 3 of
Rule 68 which provides that the confirmation of the sale
operates to divest all parties to the action of their respective
rights and vest them in the purchaser.
3. It was ruled that a pending suit for annulment of the
mortgage or annulment of the foreclosure proceedings does
not defeat the right of the purchaser to a writ of possession
to which the purchaser is entitled as a matter of right.
XV. Registration of the sale
1. A certified copy of the order confirming the sale is
necessary for the sale to be' registered in the registry of
deeds. If there is no right of redemption, the certificate of
title in the name of the mortgagor shall be cancelled and a
new one issued in the narne of the purchaser (Sec. 7, Rule
68, Rules ol'Court).
2. When a right of redemption exists, the certificate of sale
and the order confirming the sale shall be registered and a
brief memoranda thereof shall be made by the register of
deeds upon the certificate of title. The certificate of title
however, in the name of the mortgagor shall not be
cancelled. In the event the property is redeemed, the deed
of redemption shall be registered with the register of deeds
and a brief memorandum thereof shall likewise be made
upon the certificate of title (Sec. 7, Rule 68, Rules of Court).
3. 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 register of
deeds. The certificate of title in the name of the mortgagor
shall then be canceled and a new one issued in the name of
the purchaser (Sec. 7, Rule 68, Rules of Court).
XVI. Disposition of the proceeds of the foreclosure sale
- The proceeds of the 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 encumbrancers in the order
of their priority. If there be any further balance after paying
them or if there be no junior encumbrancers, the same shall
be paid to the mortgagor or any person entitled thereto (Sec.
4, Rule 68, Rules of Court).
XVII. Deficiency judgment
1. If 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.
Execution may issue immediately if the balance is all due at
the time of the rendition of the judgment. If not due, the
plaintiff shall be entitled to execution at such time as the
remaining balance shall become due and such due date shall
be stated in the judgment (Sec. 6, llule 68, Rules of Court).
Note that the deficiency judgment is in itself' a judgment
hence, also appealable.
2. No independent action need be filed to recover the
deficiency from the mortgagor. The deficiency judgment
shall be rendered upon motion of the mortgagee.
- The motion must be made only after the sale and after it is
known that a deficiency exists. Before that, any court order
to recover the deficiency is void.
- It has been held that the mortgagor who is not the debtor
and who merely executed the mortgage to secure the
principal debtor's obligation, is not liable for the deficiency
unless he assumed liability for the same in the contract.
Since a deficiency judgment cannot be obtained against the
mortgagor who is not the debtor in the principal obligation,
mortgagee may have to file a separate suit against the
principal debtor.
3. Where the debtor-mortgagor is a non-resident and who at
the time of the filing of the action for foreclosure and during
the pendency of the proceedings was outside the Philippines,
it is believed that a deficiency judgment under Sec. 6 would
not be procedurally feasible. A deficiency judgment is by
nature in personam and jurisdiction over the person is
mandatory. Having been outside the country, jurisdiction
over his person could not have been acquired.
XVIII. Rule in case there is a surplus instead of a deficiency
- It is the duty of the mortgagee to return to the mortgagor
any surplus in the selling price during the foreclosure sale.
XIX. Summary of distinctions between judicial foreclosure
and extra judicial foreclosure of real estate mortgage.
- Judicial and extrajudicial foreclosures may be distinguished
from each other as follows:
(a) A judicial foreclosure is governed by the Rules of*
Court; an extrajudicial foreclosure is governed by Ad, No.
31,35 as amended.
(b) A judicial foreclosure involves the filing of an
independent action; an extrajudicial judicial foreclosure
does not require filing of an action.
(c) There is an equity of redemption in a judicial
foreclosure and no right of redemption except when the
mortgagee is a banking institution; there is a right of
redemption in extrajudicial foreclosure of mortgage.
(d) In a judicial foreclosure of judgment there could be a
deficiency judgment rendered by the court; there can be
no judgment for a deficiency in an extrajudicial
foreclosure because there is no judicial proceeding,
although recovery of the deficiency is allowed.
(e) In a judicial foreclosure, recovery of the deficiency can
be done by mere motion for a deficiency judgment; in an
extrajudicial foreclosure, the recovery of the deficiency is
through an independent action and although nothing about
the recovery of the deficiency is provided in Act No. 3135,
there is no prohibition either.
VIII. Partition (Rule 69)
I. Preliminaries
Page174
1. > Partition - the separation, division and assignment of a
thing held in common among those to whom it may belong.
2. Partition presupposes the existence of a co-ownership over
a property between two or more persons. The rule allowing
partition originates from a well-known principle embodied in
the Civil Code of the Philippines that no co-owner shall be
obliged to remain in the co-ownership. Because of this rule,
he may demand at any time the partition of the property
owned in common (Art. 494, Civil Code of the Philippines).
3. There are nevertheless instances when a co-owner may
not demand partition at any time as when:
(a) There is an agreement among the co-owners to keep
the property undivided for a certain period of time but not
exceeding ten years (Art. 494, Civil Code of the
Philippines);
(b) When partition is prohibited by the donor or testator
for a period not exceeding twenty years (Art. 494; Art.
1083, Civil Code of the Philippines);
(c) When partition is prohibited by law (Art. 494, Civil
Code of the Philippines);
(d) When the property is not subject to a physical division
and to do so would render it unserviceable for the use for
which it is intended (Art. 495, Civil Code of the
Philippines); or
(e) When the condition imposed upon voluntary heirs
before they can demand partition has not yet been
fulfilled (Art. 1084, Civil Code of the Philippines).
4. An important principle to note is that prescription does
not run in favor of a co-owner or co-heir against his co-owner
or co-heirs as long as there is a recognition of the co-
ownership expressly or impliedly (Art. 494, Civil Code of the
Philippines).
5. Also, the action for partition cannot be barred by
prescription as long as the co-ownership exists.
- But while the action to demand partition of a co-owned
property does not prescribe, a co-owner may acquire
ownership thereof by prescription where there exists a clear
repudiation of the co-ownership and the co-owners are
apprised of the claim of adverse and exclusive ownership.
II. Modes of partition
1. Partition may be made in either of two ways:
(a) By agreement of the parties; or
(b) By judicial proceedings under the Rules of Court (Art.
496, Civil Code of the Philippines).
2. The right of the co-owners to opt for an agreement of
partition in lieu of a judicial partition is recognized by the
Rules of Court. Sec. 12 thereof provides that "Nothing in this
Rule * shall be construed * * * 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"
(Sec. 12, Rule 69, Rules of Court).
3. If the co-owners cannot agree on the partition of the
property, the only recourse is the filing of an action for
partition.
III. Action for partition
1. The action shall be brought by the person who has a right
to compel the partition of real estate (Sec 1, Rule 69, Rules
of Court) or of an estate composed of personal property, or
of both real and personal property (Sec. 13, Rule 69, Rules of
Court).
2. The plaintiff is a person who is supposed to be a coowner
of the property or estate sought to be partitioned. The
defendants are all the co-owners.
- All the co-owners must be joined. Accordingly, an action
will not lie without the joinder of all co-owners and other
persons having interest in the property. All the co owners
therefore, are indispensable parties.
3. The plaintiff shall state in his complaint, the nature and
extent of his title, an adequate description of the real estate
of which partition is demanded, and shall join as defendants
all other persons interested in the property (Sec. 1, Rule 69,
Rules of Court). He must also include a demand for the
accounting of the rents, profits and other income from the
property which he may be entitled to (Sec. 8, Rule 69, Rules
of Court). These cannot be demanded in another action
because they are parts of the cause of action for partition.
They will be barred if not set up in the same action pursuant
to the rule against splitting a single cause of action.
4. Because of the absence of special procedural rules in Rule
69, it is presumed that the rules in ordinary civil actions shall
be used. Hence, after the complaint is filed, the defendants
shall be served with summons and shall file and serve their
answers. After the last pleading has been filed, the rule on
pretrial will follow. A trial will likewise be held before the
court renders its judgment.
5. When the allegations of the complaint allege that the
plaintiff asserts exclusive ownership of the party sought to be
partitioned, the nature of the action is not one for partition.
It is an action for the recovery of property.
IV. Order of partition
1. During the trial, the court shall determine whether or not
the plaintiff is truly a co-owner of the property, that there is
indeed a co-ownership among the parties, and that a
partition is not legally proscribed thus, may be allowed. If
the court so finds that the facts are such that a partition
would be in order, and that the plaintiff has a right to
demand partition, the court will issue an order of partition.
2. The settlement of the issue of ownership is the first stage
in an action for partition, and the action will not lie if the
claimant has no rightful interest in the property in dispute.
- Because the issues to be determined by the court are
incapable of pecuniary estimation, the action shall be filed in
the Regional Trial Court and since it is an action which
involves interest in real property, it shall be brought in the
place where the property is situated.
- It has been held that actions for partition should be filed in
the Court of First Instance (now Regional Trial Court) of the
province where the property is situated.
- The rule is clear: "The court shall order the partition of the
Page175
property among all the parties in interest, if after trial it,
finds that the plaintiff has the right to partition (Sec. 2, Ruh,
69, Rules of Court). It was held that this order of partition
including an order directing an accounting is final and not.
interlocutory and hence, appealable thus, revoking previous
contrary rulings (Vda. De Zaldarriaga vs. Enriquez,1 SCRA
1188) on the matter.
- Worthy of note is the present rule that a final order
decreeing (a) partition and (b) accounting may be appealed
by any party aggrieved thereby (Sec. 2, Rule 69, Rules of
Court).
V. Partition by agreement
1. Observe that the order of partition is one that directs the
parties or co-owners to partition the property and the parties
may make the partition among themselves by proper
instruments of conveyance, if they agree among themselves.
If they do agree, the court shall then confirm the partition so
agreed upon by all of the parties, and such partition,
together with the order of the court confirming the same,
shall be recorded in the registry of deeds of the place in
which the property is situated (Sec. 2, Rule 69, Rules of
Court).
2. There always exists the possibility that the co-owners are
unable to agree on the partition. If they cannot partition the
property among themselves, the next stage in the action will
follow, the appointment of commissioners.
VI. Partition by court-appointed commissioners
1. If the parties are unable to agree upon the partition, the
court shall appoint not more than three (3) commissioners
who are competent and disinterested persons, to make the
partition for the parties (Sec. 3, Rule 69, Rules of Court). The
appointment of commissioners which is a mandatory under
the circumstances, presupposes that the parties cannot agree
on the partition among themselves.
- Observe that the provision authorizes the commissioners
merely to make or effect the partition. Nothing in the
provision grants them the authority to rtdjudicttto on
cluosLiorrs of title or ownership of the property hence, Sec.
12 of Rule 69 emphasizes that the partition of the property
under Rule 69 is not meant to prejudice, defeat, or destroy
the rights of any person holding a title paramount to the title
of the parties among whom the partition shall have been
made (Sec. 12, Rule 69, Rules of Court).
2. If the commissioners determine that the property cannot
be divided without prejudice to the interests of the parties,
the court may order that the property be assigned to one of
the parties willing to take the same, provided he pays to the
other parties such amounts as the commissioners deem
equitable. Instead of being so assigned, an interested party
may ask that the property be sold, in which case the court
shall order the commissioners to sell the property at a public
sale (Sec. 3, Rule 69, Rules of Court).
VII. Report of the commissioners
1. The commissioners shall make a full and accurate report
to the court of all their proceedings as to the partition. Upon
the filing of such report, copies thereof shall be served by
the clerk of court upon 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. 6, Rule
69, Rules of Court).
2. The court, may, upon hearing, accept the report and
render judgment in accordance with the same. The court
may., instead of accepting the report, recommit the same to
the commissioners for further report of facts. It may also
accept the report in part or reject the report in part or it
may render such judgment that shall effectuate a fair and
just partition of the real estate (Sec. 7, Rule 69, Rules of
Court). Under Sec. 7; the court cannot render judgment on
the report forthwith upon its receipt of the same. The rule
mandates that a hearing must be conducted before a
rendition of a judgment.
VIII. Judgment of partition
1. The proceedings had before the commissioners shat: not
bind the parties or pass title to property until the court shall
have accepted the report of the commissioners and rendered
judgment thereon (Sec. 6, Rule 69, Rules of Court).
2. A certified copy of the judgment shall be recorded in the
registry of deeds of the place in which the real estate is
situated (Sec. 11, Rule 69, Rules of Court).
3. A reading of the Rules will reveal that there are actually
three (3) stages in the action each of which could be the
subject of appeal, to wit: (a) the order of partition where
the propriety of the partition is determined; (b) the
judgment as to the accounting of the fruits and income of
the property; and (c) the judgment of partition.
- The action hence, admits multiple appeals and would
require a record on appeal.
IX. Rule when there are expenses to be paid from the estate
- In a situation where there remains an issue as to the
expenses chargeable to the estate, partition is inappropriate.
The determination of the expenses like those related to the
deceased's final illness and burial which are chargeable to
the estate cannot be done in an action in partition. Thus, the
heirs have to first submit their father's estate to settlement
because in estate settlement proceedings, there is a proper
procedure for the accounting of all expenses for which the
estate must answer. If it is any consolation at all to
petitioner, the heirs or distributees of the properties may
take possession thereof even before the settlement of
accounts, as long as they first file a bond conditioned on the
payment of the estate's obligations.
IX. Forcible Entry and Unlawful Detainer (Rule 70)
I. Actions to recover possession of real property
- Under existing law and jurisprudence, there are thr kinds of
actions available to recover possession of real property;
(a) action interdictal; (b) action publiciana; and (c) action
reivindicatoria.
II. Action interdictal
1. The actions of forcible entry and unlawful detainer belong
to the class of actions known by the generic name action
interdictal (ejectment) where the issue is the right of
physical or material possession of the subject real property
Page176
independent of any claim of ownership by the parties
involved.
2. Action interdictal comprises two distinct causes of action,
namely, forcible entry (detentacion) and unlawful detainer
(desahuico). In forcible entry, one is deprived of physical
possession of real property by means of force, intimidation,
strategy, threats, or stealth whereas in unlawful detainer,
one illegally withholds possession after the expiration or
termination of his right to hold possession under any
contract, express or implied. The two are distinguished from
each other in that in forcible entry, the possession of the
defendant is illegal from the beginning, and that the issue is
which party has prior de facto possession while in unlawful
detainee, possession of the defendant is originally legal but
became illegal due to the expiration or termination of the
right to possess.
3. The jurisdiction of these two actions, which are summary
in nature, lies in the proper Municipal Trial Court or
Metropolitan Trial Court. Both actions must be brought within
one year from the date of actual entry on the land, in case of
forcible entry, and from the date of last demand, in case of
unlawful detainer. The issue in said cases is the right to
physical possession.
III. Action publiciana and action reivindicatoria
1. Action interdictal is not to be confused with other real
actions like action publiciana and action reivindicatoria.
2. > Accion publiciana - the plenary action to recover the
right of possession which should be brought when
dispossession has lasted for more than one year. It is an
ordinary civil proceeding to determine the better right of
possession of realty independently of title. In other words, if
at the time of the filing of the complaint more than one year
had elapsed since defendant had turned plaintiff out of
possession or defendant's possession had become illegal, the
action will be, not one of the forcible entry or illegal
detainer, but an accion publiciana.
- An accion reivindicatoria, unlike the remedies previously
discussed, involves not only possession, but ownership of the
property. Under Article 434 of the Civil Code, two things
must be alleged and proven in an accion reivindicatoria: (1)
the identity of the property; and (2) plaintiff's title to it.
IV. Possession as the issue
1. 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 to be in possession.
2. Where the basic issue is not possession but interpretation,
enforcement and/or rescission of the contract, the same is
no longer an ejectment suit.
3. Where there is a claim of ownership and the action seeks
to recover ownership from the defendant including the
possession of the property, the action is no longer interdictal
but an accion reivindicatoria or accion de reivindicacion.
V. Summary nature of the actions
- Forcible entry and unlawful detainer actions are summary
in nature designed to provide for an expeditious means of
protecting actual possession or the right to possession of the
property involved actions both fall under the coverage of the
Rules on Summary Procedure irrespective of the amount of
damages or unpaid rentals sought to be recovered (Sec. 3,
Rule 70, Rules of Court).
VI. Real and in personam actions
1. Forcible entry and unlawful detainer actions are actions
affecting possession of real property hence, are real actions.
The venue of these actions therefore, is the place where the
property subject of the action is situated (Sec. 1, Rule 4,
Rules of Court).
2. Forcible entry and unlawful detainer actions are not only
real actions. They are also actions in personam because the
plaintiff seeks to enforce a personal obligation to vacate the
property subject of the action and restore physical possession
thereof the plaintiff.
Illustration (Bar 1991)
For failure of the tenant to pay rentals, A, the
courtappointed administrator of the estate of Henry Datu
decides to file an action against the former for the recovery
of possession of the leased premises located in Davao City
and for the payment of the accrued rentals in the total
amount of P25,000.00.
(a) xxx
(b) What is the court of proper jurisdiction and
venue of the intended action?
Suggested answer:
(b) The court with jurisdiction over the action is
the Municipal Trial Court of Davao City. The cause is
obviously an unlawful detainer case which is within the
jurisdiction of said court (Sec. 33, BP 129). The action is a
real action and must be filed in the place where the property
is located which is Davao City (Sec. 2, Rule 4, Rules of
Court).
VII. Jurimdiction of the M'l.'C; summary procedure
1. The actions of forcible entry and unlawful detainer me
within the exclusive and original jurisdiction of the Municipal
Trial Court, Municipal Circuit Trial Court and the
Metropolitan Trial Court (Sec. 33[21, BP 129; R.A. 7691) and
shall be governed by the rules on summary procedure i
rrespective of the amount of damages or rentals sought to be
recovered (Sec. 3, Rule 70, Rules of Court). Note: Please
refer to discussions on Summary Procedure in Chapter III.
2. The decision in an ejectment case does not bind the title
to or ownership of the land or building. It does not also bar
an action between the same parties respecting title to the
property.
3. In actions for forcible entry, it may be stressed, two
iiIlegations are mandatory for the municipal court to acquire
jurisdiction. First, the plaintiff must allege his prior physical
possession of the property. Second, he must also allege that
he wits deprived of his possession by any of the means
provided lirr in Section 1, Rule 70 of the Rules of Court,
namely, force, intimidation, threat, strategy, and stealth. If
the alleged dispossession did not occur by any of these
means, the proper recourse is to file not an action for
Page177
forcible entry but a plenary rwtion to recover possession.
VIII. Effect of the pendency of an action involving ownership
can the action for forcible entry and unlawful detainer
- A pending action involving ownership of the subject
property does not bar the filing of an ejectment suit, nor
suspend the proceedings of one already instituted. The
underlying reason is to prevent the defendant from trifling
with the summary nature of an ejectment suit by the simple
expedient of asserting ownership over the disputed property.
IX. Examples of cases in the RTC which do not bar an action
for forcible entry or unlawful detainer
- The following are examples of cases in the Regional Trial
Court which do no abate or prevent the filing of an action for
forcible entry and unlawful detainer are:
(a) An injunction suit filed in the RTC by the defendant in
the ejectment suit;
(b) An `accion publiciana" in another court between the
same parties in the ejectment suit;
(c) An action for quieting of title involving the same
property and the same parties;
(d) Suit for specific performance with damages like an
action to compel the renewal of a lease contract;
(e) An `accion" reivindicatoria in another court between
the same parties over the same property;
(f) An action for reformation of the instrument; or
(g) An action for annulment of sale or title between the
same parties involving the same property.
Illustration (Bar 2000)
BB files a complaint for ejectment in the
Metropolitan Trial Court on the ground of non-payment of
rentals against JJ. After two days, JJ files in the Regional
Trial Court a complaint against BB for specific performance
to enforce the option to purchase the parcel of land subject
of the ejectment case. What is the effect of JJ's action on
BB's complaint?
Suggested answer.
The action for specific performance in the Regional
Trial Court has no effect on the ejectment case and shall
proceed irrespective of the outcome of the RTC case. The
issues in the ejectment case is mere possession while the
issue in the specific performance case is the validity as well
as the enforceability of the option to purchase.
X. Distinctions between forcible entry and unlawful detainer
1. In forcible entry the possession of the defendant is illegal
from the very beginning having deprived the actual possessor
of his possession by force, intimidation, threat, strategy or
stealth (Sec. 1, Rule 70, Rules of Court, Tirona vs. Alejo, 367
SCRA 17). In unlawful detainer, the possession by the
defendant is legal in the beginning which however,
subsequently becomes illegal because of the expiration or
the termination of the right to have possession, by virtue of
any contract, express or implied (Sec. 1, Rule 70, Rules of
Court).
It is the nature of defendant's entry into the land which
determines the cause of action, whether it is forcible entry
or unlawful detainer. If the entry is illegal, then the action
which may be filed against the intruder is forcible entry. If,
however, the entry is legal but the possession thereafter
becomes illegal, the case is unlawful detainer.
- In unlawful detainer cases, an allegation that the defendant
is unlawfully withholding possession from the plaintiff is
deemed sufficient, without necessarily employing the
terminology of the law. The phrase "unlawfully withholding"
has been held to imply possession on the part of the
defendant, which was legal in the beginning, having no other
source than a contract, express or implied, and which later
expires as a right and is being withheld by defendant.
- In order to constitute force that would justify a forcible
entry case, the trespasser does not have to institute a state
of war. The act of going to the property and excluding the
lawful possessor from the property necessarily implies
exertion of force over the property. The words "by force,
intimidation, threat, strategy or stealth" include every
situation or condition under which one person can wrongfully
enter upon real property to exclude another, who has prior
possession.
2. In forcible entry, the plaintiff must allege and prove his
prior physical possession of the property. This allegation is
not required in unlawful detainer.
3. In forcible entry, a demand to vacate is not required
before the filing of the action because the occupancy is
illegal from the very beginning. In unlawful detainer, demand
to vacate is necessary as a rule.
4. In forcible entry, the one-year period within which to file
the action is counted generally from the date of actual entry
by the defendant, i.e., from the time of possession.
However, when the entry is by stealth, the period must be
counted from the demand to vacate upon learning of the
stealth. In unlawful detainer, it is counted from the date of
the last demand in case of non-payment of rentals or
violation of the conditions of the lease.
XI. When defendant occupies premises by mere tolerance
1. If the defendant stays in the premises by mere tolerance
of the owner, the possession becomes unlawful upon failure
to comply with the demand to vacate made by the owner.
The unlawful withholding of possession is to be counted from
the date of the demand to vacate
2. To categorize the cause of action as one for unlawful
detainer, the tolerance must exist at the start of possession
by the defendant. The rule as to tolerance does not hold true
in a case where there was forcible entry at the start.
3. It is settled that one whose stay is merely tolerated
becomes a deforciant illegally occupying the land the
moment he is required to leave. It is essential in unlawful
detainer cases of this kind, that plaintiff's supposed acts of
tolerance must have been present right from the start of the
possession which is later sought to be recovered. if the
possession of the defendanf, was illegal at the inception and
not merely tolerated because the defendant started to
occupy the subject lot and then built a house thereon
without the permission and consent of the owner orrightful
possessor, the defendant's entry into the land was effected
clandestinely, without the knowledge of the owners. It is
therefore, a possession by stealth which is forcible entry. As
explained in Sarona vs. Villegas, cited in Munoz vs. Court
Page178
ofAppeals, tolerance must be present right from the start of
possession sought to be recovered, to categorize a cause of
action as one of unlawful detainer, not of forcible entry x x x
4. A person who occupies the land of another at the latter's
tolerance or permission, without any contract between them,
is necessarily bound by an implied promise that he will
vacate upon demand, failing which, a summary action for
ejectment is the proper remedy against him.
XII. Demand in unlawful detainer cases
1. Unless there exists a stipulation to the contrary, an
unlawful detainer case shall be commenced only after
demand to pay or comply with the conditions of the lease
and to vacate is made upon the lessee (Sec. 2, Rule 70, Rules
of Court).
2. To understand the manner of the demand required by the
Rules for an unlawful detainer case, attention need be given
to the phraseology of Sec. 2 of Rule 70.
- Where the suit is based on the defendant's failure to pay
the rentals agreed upon, the proper demand should be "to
pay and to vacate". It should not be "to pay or to vacate."
The latter demand which is in the alternative does not make
out a case for unlawful detainer since it is not in accordance
with the required tenor of the demand prescribed by Sec. 2
of Rule 70. Thus, a demand to pay P500,000 by way of unpaid
rentals or to vacate if not paid within five days does not
make out an action for unlawful detainer but merely one for
collection of a sum of money and must be filed with the
Regional Trial Court (Sec. 2, Rules of Court).
- Where the suit is predicated upon the defendant's
noncompliance with the conditions of the lease contract, the
proper demand should be "to comply. . . and to vacate" and
not "to comply.. or to vacate. The latter type of demand
gives rise to an action for specific performance, not unlawful
detainer.
3. In Barrazona vs. RTC of Baguio, in an action for a sum of
money in the Regional Trial Court, defendant filed with the
RTC a Motion to Dismiss on the ground, among others, that
the RTC has no jurisdiction over the complaint because the
allegations of the complaint clearly indicate that the action
is one for ejectment (illegal detainer) which is under the
exclusive jurisdiction of MTC. A perusal of the allegations
indeed shows that plaintiff made several demands upon
petitioner to pay her overdue rentals and to vacate the
premises. These allegations make out a case of unlawful
detainer and not of an action for a sum of money even if the
alleged arrears is over P900,000.00.
4. A demand in the alternative either to pay the increased
rental or otherwise to vacate the land is not the demand that
gives rise to a cause of action for unlawful detainer. If the
lessee decides to stay in the premises, he thereby merely
agrees to pay and to assume the new rental and cannot be
ejected until he' defaults in said obligation and necessary
demand is first made
5. The requirement for a demand implies that the mere
failure of the occupant to pay rentals or his failure to comply
with the conditions of the lease does not ipso facto render
his possession of the premises unlawful. It is the failure to
comply with the demand that vests upon the lessor a cause
of action.
XIII. Form of demand
1. The demand may be in the form of a written notice served
upon the person found in the premises. The demand may also
be made by posting a written notice on the premises if' no
person can be found thereon (Sec. 2, Rule 70, Rules of
Court).
2. It has been ruled however, that the demand upon it tenant
may be oral (Jakihaca us. Aquino, 181 SCRA 67). Sufficient
evidence must be adduced however, to show that there was
indeed a demand like testimonies from disinterested and
unbiased witnesses.
XIV. Effect of non-compliance with the demand
- If the demand is not complied with after fifteen (15) days i
n the case of land or five (5) days in the case of buildings,
the I essor may now proceed against the lessee (Sec. 2, Rule
71, Rules of Court).
Illustration (Bar 1990)
Juan Santos, who is leasing an apartment unit in
Antipolo, Rizal from Maria Cruz, a resident of Quezon City,
under a five (5) year contract expiring on October 15, 1991,
is in arrears in his rent for three months as of August 15,
1990. Maria Cruz, through counsel, sends a demand letter to
Juan Santos.
Suppose that Juan Santos, upon receipt of the letter of
demand to pay and vacate the apartment unit, immediately
pays the rentals in arrears. He claims that he was so busy
with his business that he neglected to pay his rent. May Maria
Cruz still file an unlawful detainer case against Juan Santos?
Discuss with reasons.
Suggested answer.
Maria Cruz may still file an unlawful detainer case.
The failure to vacate after a demand to pay and vacate gave
rise to a cause of action in favor of the lessor. The
subsequent payment did not cure his unlawful withholding of
possession of the premises.
XV. When demand is not required in unlawful detainer cases
1. Demand is not required, when (a) there is a stipulation
dispensing with a demand (Art. 1169, Civil Code of the
Philippines), or (b) when the ground for the suit is based on
the expiration of the lease because when the lease expires
the cause of action for unlawful detainer immediately arises.
Hence the lessor can now file an action for ejectment. As a
rule, demand is required only when the ground for ejectment
is failure to pay rent or to comply with the condition of the
lease.
2. Demand to vacate is, however, required when the lease is
on a month-to-month basis to terminate the lease upon the
expiration of the month in order to prevent the application
of the rule of tacita reconduccion or implied new lease.
Illustration (Bar 1997)
On 10 January 1990, X leased the warehouse of A
under a lease contract with a period of five (5) years. On 08
Page179
June 1996, A filed an unlawful detainer case against X
without a prior demand for X to vacate the premises.
(a) Can X contest his ejectment on the ground that there was
no prior demand for him to vacate the premises?
(b) xxx
Suggested answer:
(a) X cannot successfully contest his ejectment
on the ground of absence of a demand. By the time the
action was filed, the lease had already expired. Demand to
vacate is not required when the ground for the suit is based
on the expiration of the lease because when the lease
expires the cause of action for unlawful detainer
immediately arises.
XVI. Tacita reconduccion
1. Under Art. 1670 of the Civil Code of the Philippines, if at
the end of the lease, the lessee continues to enjoy the
property leased for fifteen days with the consent of the
lessor, and no notice to the contrary hart been given, it is
understood that there is an implied new lease, not fir the
period in tlw original contract, but for the time established
in Articles 1682 and 1687 of the same code.
2. The terms of the contract which are revived in the implied
new lease are those terms which are germane to the lessee's
right of continued enjoyment of the property leased.
The option to buy the property in the original lease is not
germane to possession of the premises and is not deemed
revived.
3. When there is tacita reconduccion, the lessee cannot be
deemed as unlawfully withholding the property. There is no
unlawful detainer.
XVII. Defense of tenancy
1. Jurisdiction is determined by the allegations of the
complaint. Hence, the defenses in the answer do not
determine jurisdiction.
2. If the defendant raises the issue of tenancy as a defense
and alleges lack of jurisdiction as a defense because a
tenancy case falls within the jurisdiction of the Department
of Agrarian Reforms Adjudicatory Board (DARAB), it would be
error for the court to dismiss the complaint on that ground
alone. The mere raising of the issue of tenancy does not
automatically divest the court of jurisdiction because as
earlier pointed out, the jurisdiction of the court is
determined by the allegations of the complaint and is not
dependent upon the defenses set up by the defendant.
- In an ejectment case, the jurisdiction of the court is
determined by the allegations of the complaint.
3. Where tenancy is raised as a defense, the court must
conduct a preliminary hearing on the matter to determine
the veracity of the allegations of tenancy. If during the
hearing, it is shown that tenancy is the real issue, then the
court shall dismiss the case for lack of jurisdiction.
XVIII. Defense of ownership
1. The assertion by the defendant of ownership over the
disputed property does not serve to divest the inferior court
of its jurisdiction.
The defendant cannot deprive the court of jurisdiction by
merely claiming ownership of the property involved.
2. When the defendant raises the issue of ownership, the
court may resolve the issue of ownership but only under the
following conditions:
(a) when the issue of possession cannot be resolved
without resolving the issue of ownership; and
(b) the issue of ownership shall be resolved only to
determine the issue of possession (Sec. 16, Rule 70, Rules
of Court, Duran vs. Court ofAppeals). Such judgment would
not bar an action between the same parties respecting
title to the land or building. The resolution of the McTC on
the ownership of the property is merely provisional or
interlocutory. Any question involving the issue of
ownership should be raised and resolved in a separate
action brought specifically to settle the question with
finality.
3. It bears stressing that in unlawful detainer cases, the only
issue for resolution, independent of any claim of ownership
by any party litigant, is: who is entitled to the physical and
material possession of the property involved? The mere fact
that defendant raises the defense of ownership of the
property in the pleadings does not deprive the MTC of its
jurisdiction to take cognizance of and decide the case.. In
cases where defendant raises the question of ownership in
the pleadings and they question of possession cannot be
resolved without deciding the issue of ownership, the court
may proceed and resolve the issue of ownership but only for
the purpose of determining the issue of possession. However,
the disposition of the issue of ownership is not final, as it
may be the subject of separate proceeding; specifically
brought to settle the issue. Hence, the bare fact that
petitioners, in their answer to the complaint, raised the issue
of whether they owned the property as trustors of a
constructive trust did not divest the MTC of its jurisdiction to
take cognizance of the case and decide the same on its
merits.
4. The summary nature of the action is not changed by the
claim of ownership of the property of the defendant. The
McTC is not divested of its jurisdiction over the unlawful
detainer action simply because the defendant asserts
ownership over the property.
XIX. How to obtain possession of the premises during the
pendency of the action
1. When the action is filed, the plaintiff in an ejectment case
is not in possession of the property. To obtain possession,
Sec. 15 of Rule 70 permits the plaintiff to present a motion,
within five (5) days from the filing of the complaint, for the
issuance of a writ of preliminary mandatory injunction to
restore him in his possession. This motion shall be resolved
within thirty (30) days from its filing (Sec. 15, Rule 70, Rules
of Court).
2. If the judgment of the MTC is appealed, the Regional Trial
Court may issue a writ of preliminary mandatory injunction
to restore the plaintiff in his possession, upon motion of the
plaintiff filed within ten (10) days from the perfection of the
appeal, if the court is satisfied that the defendant's appeal is
frivolous or dilatory or that the plaintiff's appeal is prima
Page180
facie meritorious (Sec. 20, Rule 70, Rules of Court).
XX. Judgment not binding on ownership
1. If an issue of ownership is raised in an action for forcible
entry or unlawful detainer and the court makes a
determination of ownership, such determination is only
initial and is made merely for the purpose of settling the
issue of possession. The lower court's adjudication of
ownership in the ejectment case is only provisional and
would not bar any action between the same parties involving
title to the property, if and when such action is brought
seasonably before the proper forum.
2. The decision in an ejectment case does not bind the title
to or ownership of the land or building. It does not also bar
an action between the same parties respecting title to the
property.
3. The judgment rendered in an action for forcible entry or
unlawful detainer shall 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 (Sec. 18, Rule 70, Rules of Court).
XX. Damages recoverable
- The damages recoverable in a case of forcible entry and
unlawful detainer are those corresponding to the "sum justly
due as arrears of rent or as reasonable compensation for the
use and occupation of the premises." The court may also
award attorney's fees and costs (Sec. 17, Rule 70, Rules of
Court).
XXI. Immediate execution of judgment
1. A judgment on a forcible entry and detainer action is
immediately executory to avoid injustice to a lawful
possessor, and the court's duty to order the execution is
practically ministerial.
2. The rule mandating the immediate execution in an
ejectment case, applies when the judgment is against the
defendant. It does not apply when it is the defendant that
prevails. Under Sec. 19 of Rule 70, execution shall issue
immediately upon motion "If judgment is rendered against
the defendant. . ."
- If the judgment is in favor of the defendant, obviously, the
judgment is not immediately executory.
XXII. How to stay immediate execution of the judgment
1. The defendant must take the following steps to stay the
execution of the judgment:
(a) perfect an appeal;
(b) file a supersedeas bond to pay for the rents, damages
and costs accruing down to the time of the judgment
appealed from; and
(c) deposit periodically with the Regional Trial Court,
during the pendency of the appeal, the adjudged amount
of rent due under the contract or if there be no contract,
the reasonable value of the use and occupation of the
premises.
- The periodic deposits are designed to cover all rentals
from the judgment of the MTC until the final judgment of
the appellate court. Thus, even if an appeal has been
perfected but the required periodic deposits are not made,
execution may be obtained upon proper motion with notice
despite the posting of a supersedeas bond because said
bond covers only back rentals declared in the judgment of
the Municipal Trial Court. The bond does not answer for
rentals that accrue during the appeal process.
2. The supersedeas bond shall be equivalent to the unpaid
rentals, damages and costs which accrued down to the time
of the judgment (Sec. 19, Rule 70, Rules of Court). In other
words, the supersedeas bond covers the monetary judgment
of the lower court. If the judgment does not make any
pronouncement the pecuniary liability of the defendant, the
bond should not be required. Attorney's fees are not covered
by a supersedeas bond.
Illustration (Bar 1997)
On 10 January 1990, X leased the warehouse of A
under a lease contract with a period of five (5) years. On 08
June 1996, A filed an unlawful detainer case against X
without a prior demand for X to vacate the premises.
(a)
(b) In case the Municipal Trial Court renders
judgment in favor of A, is the judgment immediately
executory?
Suggested answer:
(b) The judgment in favor of A, the plaintiff is
immediately executory. In no uncertain terms, the rule
provides that if judgment is rendered against the defendant,
execution shall issue immediately unless an appeal is
perfected, a supersedeas bond when applicable is posted and
the required periodic deposits are made (Sec. 19, Rule 70,
Rules of Court).
Illustration (Bar 1990)
While the ejectment suit was pending before the
Municipal Court, Juan Santos religiously deposits all current
rentals. In due time, the judge ordered Juan Santos to pay all
rents until he vacates the premises as well as attorney's fees
in the amount of P5,000.000. Maria Cruz moves for
immediate execution on the ground that Juan Santos did not
deposit the attorney's fees of P5,000.00 and he did not put a
supersedeas bond for the award.
Should the court grant immediate execution? Decide
with reasons.
Suggested answer:
The court should not grant immediate execution. A
supersedeas bond covers rentals in arrears up to the time of
the judgment. Since there are no unpaid rentals, there is no
reason for the bond. Also, the Rules do not require a deposit
for attorney's fees so execution may be stayed.
XXIII. Where to appeal
1. The judgment or final order of the court shall be
appealable to the appropriate Regional Trial Court which
shall decide the same in accordance with Sec. 22 of BP 129.
The decision of the Regional Trial Court shall be immediately
executory, without prejudice to a further appeal (Sec. 21,
Rules on Summary Procedure; Sec. 21, Rule 70, Rules of
Court).
2. The mode of appeal is the same as in ordinary civil actions
Page181
under Rule 40 of the Rules of Court where a notice of appeal
is filed with and the docket fee paid in the court of origin,
which is the Municipal Trial Court.
XXIV. Persons bound by the judgment in ejectment cases
1. As a rule, the judgment in an ejectment case is binding
only upon the parties properly impleaded and given an
opportunity to be heard. This is because an ejectment suit is
an action in personam. However, the judgment becomes
binding on anyone who has not been impleaded in certain
instances as in the following:
(a) A sublessee is bound by the judgment against the
lessee because his right to the premises is merely
subsidiary to that of the lessee
(b) A guest or a successor in interest, the members of the
family of the lessee or his servants and employees are
likewise bound by the judgment even if not impleaded in
the suit for ejectment.
(c) Trespassers, squatters or agents of the defendant
fraudulently occupying the property to frustrate the
judgment; and
(d) Transferees pendente lite and other privies of the
defendant.
X. Contempt (Rule 71)
I. Meaning of contempt
1. > Contempt of court - disobedience to the court by acting
in opposition to its authority, justice and dignity. It signifies
not only a willful disregard or disobedience of the court's
orders but also conduct tending to bring the authority of the
court and the administration of law into disrepute or, in
some manner to impede the due administration of justice.
2. The power to declare a person in contempt of court and in
dealing with him accordingly is an inherent power lodged in
courts ofjustice, to be used as a means to protect and
preserve the dignity of the court, the solemnity of the
proceedings therein, and the administration of justice from
callous misbehavior, offensive personalities, and
contumacious refusal to comply with court orders.
3. Contempt of court is a defiance of the authority, justice or
dignity of the court; such conduct as tends to bring the
authority and administration of the law into disrespect or to
interfere with or prejudice parties litigants or their witnesses
during litigation. It is defined as disobedience to the Court by
acting in opposition to its authority, justice, and dignity. It
signifies not only a willful disregard or disobedience of the
court's orders, but such conduct as tends to bring the
authority of the court and the administration of law into
disrepute or in some manner to impede the due
administration of justice.
II. Functions of contempt
- Contempt proceedings has a dual function:
(1) vindication of public interest by punishment of
contemptuous conduct; and
(2) coercion to compel the contemnor to do what the law
requires him to uphold the power of the Court, and also to
secure the rights of the parties to a suit awarded by the
Court.
III. Kinds of contempt according to nature
l. Contempt may be civil or criminal depending on the nature
and effect of the contemptuous act.
2. > Criminal contempt - "conduct directed against the
authority and dignity of the court or a judge acting judicially;
it is an obstructing the administration of justice which tends
to bring the court into disrepute or disrespect."
3. On the other hand, > civil contempt - the failure to do
something ordered to be done by a court or a judge for the
benefit of the opposing party therein and is therefore, an
offense against the party in whose behalf the violated order
was made. If the purpose is to punish, then it is criminal in
nature; but if to compensate, then it is civil.
4. The distinction between criminal and civil contempt is so
thin as to be almost imperceptible. But it does exist in law. It
is criminal when the purpose is to vindicate the authority of
the court and protect its outraged dignity. It is civil when
there is failure to do something ordered by a court to be
done for the benefit of a party.
5. Criminal contempt proceedings should be conducted in
accordance with the principles and rules applicable to
criminal cases, in so far as such procedure is consistent with
the summary nature of contempt proceedings. Hence, the
strict rules that govern criminal prosecutions apply to
prosecutions for criminal contempt that the accused is to be
afforded many of the protections provided in regular criminal
cases and that proceedings under statutes governing them
are to be strictly construed. However, criminal proceedings
are not required to take any particular form as long as the
substantial rights of the accused are preserved.
6. Civil contempt proceedings on the other hand, are
generally held to be remedial and civil in nature, that is, for
the enforcement of some duty, and essentially a remedy
resorted to, to preserve and enforce the rights of a private
party to an action and to compel obedience to a judgment or
decree intended to benefit such a party litigant. The rules of
procedure governing contempt proceedings or criminal
prosecutions, ordinarily are inapplicable to civil contempt
proceedings.
IV. Kinds of contempt according to the manner of commission
- There are two kinds of contempt under this classification:
(a) direct, and
(b) indirect.
V. Direct contempt
- Direct contempt in general is committed in the presence of
or so near the court or judge as to obstruct or interrupt the
proceedings before the same. Indirect contempt is one not
committed in the presence of the court. It is an act done at a
distance which tends to belittle, degrade, obstruct or
embarrass the court and justice
VI. Acts constituting direct contempt
1. Any of the following acts constitutes direct contempt:
(a) Misbehavior in the presence of or so near the court as
to obstruct or interrupt the proceedings befor-J the same;
(b) Disrespect toward the court;
(c) Offensive personalities towards others;
Page182
(d) Refusal to be sworn as a witness or to answer as a
witness;
(e) Refusal to subscribe an affidavit or deposition when
lawfully required to do so (Sec. 1, Rule 71, Rules of Court).

2. The acts of a party or a counsel which constitute willful
and deliberate forum shopping constitute direct contempt
(Sec. 5, Rule 7, Rules of Court).
3. Unfounded accusations or allegations or words tending to
embarrass the court or to bring it into disrepute have no
place in a pleading. If a pleading containing derogatory,
offensive and malicious statements is submitted in the same
court or judge in which the proceedings are pending, it is
direct contempt, equivalent as it is to a misbehavior
committed in the presence of or so near a court or judge as
to interrupt the administration of justice.
A finding of contempt on the part of a lawyer does not
preclude the imposition of disciplinary sanctions against him
for his contravention of the ethics of the legal profession.
VII. No formal proceeding required
- No formal proceeding is required to cite a person in direct
contempt. The court may summarily adjudge one in direct
contempt (Sec. 1, Rule 71, Rules of Court).
VIII. Penalty
1. The penalty for direct contempt depends upon the court
against which the act was committed.
(a) If the act constituting direct contempt was committed
against a Regional Trial Court or a court of equivalent or
higher rank, the penalty is a fine not exceeding two
thousand pesos or imprisonment not exceeding ten (10)
days, or both.
(b) If the act constituting direct contempt was committed
against a lower court, the penalty is a fine not exceeding
two hundred pesos or imprisonment not exceeding one (1)
day, or both (Sec. 1, Rule 71, Rules of Court).
2. If the contempt consists in the refusal or omission to do an
act which is yet within the power of the respondent to
perform, he may be imprisoned by order of the court
concerned until he performs it (Sec. 8, Rule 71, Rules of
Court).
IX. Remedy of a person adjudged in direct contempt
l. A person adjudged in direct contempt may not appeal
therefrom. His remedy is a petition for certiorari or
prohibition directed against the court which adjudged him in
direct contempt (Sec. 2, Rule 71, Rules of Court).
2. Pending the resolution of the petition for certiorari or
prohibition, the execution of the judgment for direct
contempt shall be suspended. The suspension however, shall
take place only if the person adjudged in contempt files a
bond fixed by the court which rendered the judgment. This
bond is conditioned upon his performance of the judgment
should the petition be decided against him (Sec. 2, Rule 71,
Rules of Court).
X. Indirect contempt in general is committed by a person
who commits any of the following acts:
(a) disobedience or resistance to a lawful writ, process,
order or judgment of a court;
(b) any abuse of or any unlawful interference with the
processes or proceedings of a court not constituting direct
contempt; and
(c) any improper conduct tending, directly or indirectly, to
impede, obstruct or degrade the administration of justice.
XI. Examples of specific acts constituting indirect contempt
1. A person guilty 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 (Bar 1995);
(c) Any abuse of or any unlawful interference with the
processes or proceedings of a court not constituting direct
contempt;
(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 (Sec. 3, Rule 71, Rules of
Court).
2. The failure by counsel to inform the court of the death of
his client constitutes indirect contempt within the purview of
Sec. 3 of Rule 71 since it constitutes an improper conduct
tending to impede the administration of justice. It also is a
ground for disciplinary action under Sec. 16 of Rule 3 of the
Rules of Court.
Illustration (Bar 1995)
Suppose that by virtue of an execution_ of the
judgment in an ejectment case, defendant was successfully
ousted from the property in litigation and plaintiff was
lawfully placed in possession thereof, but seven (7) years
later defendant re-entered the property and forcibly took
over possession, can plaintiff move that defendant be
declared in indirect contempt? Explain.
Suggested answer.
The defendant may be declared in contempt. The
act of the defendant constitutes indirect contempt defined in
Sec. 3(b) of Rule 71 of the Rules of Court.
However, unless the charge is initiated by the
court, the defendant may be declared in contempt only after
a verified petition is filed and heard in the proper court. A
mere motion under the present rules is not a mode of
initiating indirect contempt.
Note: It has been ruled that contempt by re-entry
upon the land is punishable even if no party litigant has been
adversely affected because the act is an open defiance of the
authority of the court.
Page183
Illustration (Bar 1993)
In an action for injunction and damages, the
plaintiff applied for a temporary restraining order (or "TRO")
and preliminary injunction. Upon filing of the complaint, the
court issued a TRO and set the application for preliminary
injunction for hearing.
As the 20-day lifetime (January 3 to 23) of the TRO
was about to expire, the court issued an order dated January
21, 1993 extending the effectivity of the TRO for another
twenty days (January 24, 1993 to February 13, 1993).
On March 5, 1993, the court, after hearing, denied
the application for preliminary injunction.
Supposing that on January 28, 1993, the defendant
committed an act in violation of the TRO, is he guilty of
indirect contempt? Explain.
Suggested answer.
The defendant is not guilty of indirect contempt
because on January 28, 1993, there was no TRO that could be
legally violated. The court (which under the facts is impliedly
a Regional Trial Court because injunction is incapable of
pecuniary estimation), had no authority to extend the TRO
for another twenty days. The extension was null and void.
Sec. 5 of Rule 38 is explicit. ". . . The effectivity of a
temporary restraining order is not extendible without need
for 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."
XII. Contempt in relation to execution of judgments
1. Generally, contempt is not a means of enforcing a
judgment. For example, the mere refusal or unwillingness of
the judgment debtor to vacate the property is not a
sufficient ground to hold him in contempt. The writ of
possession was not directed to the judgment debtor but to
the sheriff who was directed to deliver the property to the
prevailing party. As the writ did not command the judgment
debtor to do anything, he cannot be guilty of the acts
described in Rule 71 which is "disobedience of or resistance
to a lawful writ, process, order, judgment or command of
any court." The proper procedure is not for the court to cite
the debtor in contempt. What the officer should do is to
dispossess him of the property but if after the dispossession,
the judgment debtor should execute acts of ownership or
possession or in any manner disturb the possession of the
judgment creditor, then and only then may he be punished
for contempt.
- It is not the refusal to vacate which constitutes contempt
but the act of re-entry after the ouster. The contempt pro-
ceedings in this case will be pursuant to Sec. 3(b) of Rule 71.
2. If the judgment is one for the payment of money, the
sheriff shall demand from the judgment obligor the
immediate payment of the full amount stated in the writ of
execution (Sec. 9, Rule 39, Rules of Court). If the judgment
obligor does not comply with the demand, it is believed that
no contempt charges could lie against the judgment obligor
because the writ is not directed to the obligor but to the
sheriff. If the obligor is unable to pay in cash, certified check
or any acceptable mode of payment, the remedy of the
sheriff is not to initiate contempt proceedings but to levy
upon the properties of the obligor for the satisfaction of the
judgment.
3. When the subject of execution is a special judgment which
directs the performance of an act other than the payment of
money or the sale or delivery of property, the judgment can
be complied with only by the judgment obligor or by the
officer so directed by the judgment and not by anyone else.
This kind of judgment is specifically directed to the person
required to obey the same and against whom the judgment
was rendered. If he disobeys the judgment, he may be
punished for contempt (Sec. 11, Rule 39, Rules of Court). The
refusal would constitute a violation of a writ or order
directed to the party required to obey the same and falls
squarely within the purview of Sec. 3(b) of Rule 71 in relation
to Sec. 11 of Rule 39. Thus, an officer against whom a writ of
certiorari, prohibition and mandamus was issued who
disobeys the writ may be punished for contempt (Sec. 9, Rule
65, Rules of Court). Also, a litigant against whom a
temporary restraining order was issued may be liable for
indirect contempt if he defies the order.
XIII. How a proceeding for indirect contempt is commenced
1. Unlike direct contempt which is summary, an act
constituting an indirect contempt is to be punished only after
a charge in writing and a hearing (Sec. 3, Rule 71, Rules of
Court). The requirement of a written charge and a hearing
shall not however, be construed to prevent the court from
issuing process to bring the respondent into court, or from
holding him in custody pending the proceedings (Sec. 3, last
paragraph, Rule 71, Rules of Court).
2. The procedural requisites before the accused may be
punished for indirect contempt: (1) a charge in writing to be
filed; (2) an opportunity for the person charged to appear
and explain his conduct; and (c) to be heard by himself or
counsel.
3. There are only two ways a person can be charged with
indirect contempt, namely: (a) through a verified petition;
and (b) by order or formal charge initiated by the court motu
proprio (Sec. 4, Rule 71, Rules of Court).
(a) If the charge is initiated motu proprio by the court
against which the contempt was committed, it is
commenced by an order of the same court or any formal
charge requiring the respondent to show cause why he
should not be punished for contempt.
(b) If initiated by someone other than the court, the
charge is commenced by a verified petition. This petition
shall be accompanied by supporting particulars and
certified true copies of documents or papers involved
therein. It shall likewise comply with the requirements or
the filing of initiatory pleadings for civil actions in the
court concerned (Sec. 4, Rule 71, Rules of Court). Since it
is considered an initiatory pleading and must comply with
the requirements for the filing of initiatory pleadings, the
petition must hence, contain a certification against forum
shopping described
4. The provisions of the Rules are worded in very clear and
categorical language. In case where the indirect contempt
charged is not initiated by the courts, the filing of a verified
petition which fulfills the requirements on initiatory
pleadings is a prerequisite. Beyond question is the mandatory
requirement of a verified petition in initiating an indirect
contempt proceeding. Prior to the 1997 amendment of the
Page184
Rules, a mere motion was tolerated by the courts in initiating
indirect contempt proceedings. At the onset of the 1997
Revised Rules on Civil Procedure, however, such practice can
no longer be countenanced and a conviction for indirect
contempt by mere motion suffers from a serious procedural
defect.
5. If the contempt charges arose out of or are related to a
principal action pending in the court, the petition for
contempt shall allege such fact but the petition shall be
docketed, heard and decided separately from the principal
action. The court however, in the exercise of its discretion
may order the consolidation of the contempt charge and the
principal action for joint hearing and decision (Sec. 4, Rule
71, Rules of Court).
XIV. Necessity for hearing
1. A respondent in a contempt charge must be served with a
copy of the petition. Unlike in civil actions, the court does
not issue summons on the respondent. While the respondent
is not required to file a formal answer similar to that in
ordinary civil actions, the court must set the contempt
charge for hearing on a fixed date and time on which the
respondent must make his appearance to answer the charge.
On the date and time of the hearing, the court shall proceed
to investigate the charges and consider such answer or
testimony as the respondent may make or offer.
2. If he fails to appear on that date after due notice without
justifiable reason, the court may order his arrest, just like
the accused in a criminal case who fails to appear when so
required. The court does not declare the respondent in
default.
3. If the hearing is not ordered to be had forthwith, the
respondent may be released from custody upon the filing of a
bond for his appearance at the hearing (Sec. 6, Rule 71,
Rules of Court).
XV. Court where the charge for indirect contempt is to be
filed
- Where the charge for indirect contempt is to be filed
depends upon the level of the court against which the
contempt was committed.
(a) Where the act was 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.
(b) Where the act was committed against a lower court,
the charge may be filed with the Regional Trial Court in
which the lower court is sitting. It may also be filed in the
lower court against which the contempt was allegedly
committed. The decision of the lower court is subject to
appeal to the Regional Trial Court (Sec. 5, Rule 71, Rules
of Court; En Bane Resolution, SC, July 21, 1998).
(c) Where the act was committed against persons or
entities exercising quasi-judicial functions, the charge
shall be filed in the Regional Trial Court of the place
wherein the contempt was committed (Sec. 12, Rule 71,
Rules of Court).
XVI. Punishment for indirect contempt
- The punishment for indirect contempt depends upon the
level of the court against which the act was committed.
(a) Where the act was committed against 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.
(b) Where the act was 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.
Aside from the applicable penalties, 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 (Sec. 7, Rule 71, Rules of
Court).
(c) Where the act was committed against a person or
entity exercising quasi judicial functions, the penalty
imposed shall depend upon the provisions of the law which
authorizes a penalty for contempt against such persons or
entities.
XVII. Imprisonment
1. Sec. 8 of Rule 71 of the Rules of Court provides for
indefinite incarceration in contempt proceedings to compel a
party to comply with the order of the court. "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." This may be resorted to where the attendant
circumstances are such that the noncompliance with the
court order is an utter disregard of the authority of the court
which has then no other recourse but to use its coercive
power. When a person or party is legally and validly required
by a court to appear before it for a certain purpose, and
when that requirement is disobeyed, the only remedy left for
the court is to use force to bring such person or party before
it.
2. The punishment is imposed for the benefit of a
complainant or a party to a suit who has been injured aside
from the need to compel performance of the orders or
decrees of the court, which the contemnor refuses to obey
although able to do so. In effect, it is within the power of the
person adjudged guilty of contempt to set himself free.
3. It is only the judge who orders the confinement of a
person for contempt of court who could issue the Order of
Release.
XVIII. Remedy of a person adjudged in indirect contempt
- The person adjudged in indirect contempt may appeal from
the judgment or final order of the court in the same manner
as in criminal cases. The appeal will not however, have the
effect of suspending the judgment if the person adjudged in
contempt does not file a bond in an amount fixed by the
court from which the appeal is taken. This bond is
conditioned upon his performance of the judgment or final
order if the appeal is decided against him (Sec. 11, Rule 71,
Rules of Court).
XIX. Contempt against quasi judicial entities
1. The rules on contempt under Rule 71 apply to contempt
committed against persons or entities exercising quasi
judicial functions or in case there are rules for contempt
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adopted for such bodies or entities pursuant to law, Rule 71
shall apply suppletorily (Sec. 12, Rule 71, Rules of Court).
2. Quasi judicial bodies that have the power to cite persons
for indirect contempt pursuant to Rule 71 of the Rules of
Court can only do so by initiating them in the proper Regional
Trial Court. It is not within their jurisdiction and competence
to decide the indirect contempt cases. These matters are
still within the province of the Regional Trial Courts. The
requirement for a verified petition must also be complied
with. The DARAB for example, has no power to decide the
contempt charge filed before it.
3. The Regional Trial Court of the place wherein the
contempt has been committed shall have jurisdiction over
the charges for indirect contempt that may be filed (Sec. 12,
Rule 71, Rules of Court).

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