INTRODUCTION
1.) Court is the entity, body, or tribunal vested with a portion of the judicial power, while judge is the
The first thing that we will take up in Civil Procedure are basic concepts. We are going to discuss the legal
concept of courts. As you will know, whenever we talk of procedural law, we have no choice but to
involve courts in our discussion. Lets try to have a mental picture of courts. If I (Dean Iigo) say courts,
please tell me the scene that comes into your mind. What do you see? There is a table, a gavel, there is
someone sitting there. Then below, there are lawyers sitting down. That is how everybody pictures a
court. But actually, what was pictured out was a courtroom and not a court.
Similar example: How can you picture a corporation? A corporation, as you know in Persons, is a juridical
entity. It is a creature of the law. It is a person under the law but it has no physical existence. But what
you see in a corporation is a building and people who are running the office business. Well, that is the
office of the corporation.
A corporation cannot run without people running it. But a corporation can own properties, kaya you see
the building, the office, the equipments there. The president or the vice-president are the officers of the
corporation. But the officers are not the corporation, they run the affairs of the corporation. Ganoon din
ang court. A court has no physical existence, only a legal one.
Q: What is a court?
A: A court is an entity or body vested with a portion of the judicial power. (Lontok vs. Battung, 63 Phil.
1054)
Q: Why portion only?
A: This is because the Constitution provides that the judicial power shall be vested in one Supreme
Court (SC) and in such other lower courts as may be established by law. (Art. VIII, Section 1, 1987
Constitution.
The reason that the law creates different courts is to divide the cases or judicial power among them so
that one court may not be burdened with so many cases. So, judicial power is not exercised only by one
court, but by several courts. It is like a cake. You slice the cake into parts this part is for you, this part is
mine. So, kanya-kanya tayo ng trabaho. You cannot put the burden only in one court.
For example, you want to sue your debtor for not paying a loan. You mean to tell me that you will go to
the SC? All cases in the Philippines will have to filed there? NO. You cannot do it. You have to start from
certain courts in you city or municipality.
Ngayon, pag-sinabi mo kung saan ako mag-file, sa Regional Trial Court (RTC) ba? O sa Municipal Trial
Court (MTC)? Of course, depende yan on how much you are claiming. If you are claiming so much, dito
ka. If you claim is lower, dito ka naman. Why is that? Because each has its own work. Each one has its
own portion what is yours is yours, what is mine is mine.
Thus, each court has its own jurisdiction and may only try cases within its jurisdiction. No court has all
the power of the judiciary but only a portion of it. So there is a division of labor. Just as corporations
cannot act without its officers, a court cannot function without a judge. But do not say that the court and
the judge mean the same thing. The judge is the person or officer who presides over a court.
Q: Distinguish court from judge.
A: The following are the distinctions:
person or officer who presides over a court. Judges are human beings they die, they resign, they retire,
they maybe removed. The court continues to exist even after the judge presiding over it ceases to do so.
2.) The two concepts may exist independently of each other, for there may be a court without a judge
or a judge without a court. (Pamintuan vs. Llorente, 29 Phil. 342)
EXAMPLE: The present Supreme Court (SC), the justices presiding over it are not the same justices who
presided it in the early part of this century yet the Court in some decisions states that as early 1905,
WE have already ruled such as such Why do they use WE? They are talking about the court, they are
not talking about themselves. The court is continuous. It does not die alongside with the justices who
presided on it.
Q: Classify courts in general.
A: Generally, courts may be classified as:
1.) Superior Courts and First-Level courts (inferior courts);
2.) Courts of Original jurisdiction and Courts of Appellate jurisdiction;
3.) Civil Courts and Criminal Courts; 4.) Courts of law and Courts of equity;
5.) Constitutional Courts and Statutory Courts.
SUPERIOR COURTS vs. FIRST-LEVEL COURTS
Q: Distinguish superior courts from inferior courts.
A: SUPERIOR COURTS, otherwise known as courts of general jurisdiction, are those which take
cognizance of all kinds cases, whether civil or criminal, and possess supervisory authority over lower
courts.
FIRST-LEVEL COURTS (inferior courts), otherwise known as courts of special or limited jurisdiction, are
those which take cognizance of certain specified cases only. (14 Am. Jur. 249)
Q: What courts are superior or inferior?
A: It DEPENDS on what viewpoint you are looking. If you are looking from the viewpoint of the
Constitution, there is only one superior court the Supreme Court.
From the real viewpoint, the Court of Appeals (CA) maybe inferior to the SC but it is a superior court for
it exercises supervision over RTC. In the same manner that the RTC might be inferior to the SC and the CA
but it has also power of supervision over MTC. The jurisdiction of the RTC is varied. It is practically a jack
of all trade. The RTC has also the power of supervision over MTC.
A superior court may therefore handle civil, criminal cases while an inferior court may try specified cases
only. The SC, CA including the RTC are considered as superior courts.
The MTC is a first-level (inferior) court so that its power is limited to specified cases despite of the law
which expanded the jurisdiction of the MTC. It is already at the bottom. Wala ng under pa sa kanya.
In 1996 Bar: Explain the hierarchy of courts in the Philippines. Practically, the judicial level is being asked
by the examiner.
ORIGINAL COURT vs. APPELLATE COURT
Q: Distinguish original court from appellate court.
A: ORIGINAL COURTS are those where a case is commenced, while APPELLATE COURTS are those where
a case is reviewed. (Ballentine's Law Dict., 2nd Ed., p. 91)
So, if you are filing a case for the first time, that case is filed in an original court. But the case does not
necessarily end there. You may bring the case to the appellate court which has the power to change the
decision of the original court.
Q: Is the SC an original or appellate court?
A: The SC is both an original and an appellate court. Some people have the impression that you cannot
file a case there for the first time that you have to file it somewhere else, then doon (SC) mo i- akyat.
But when we study the jurisdiction of the SC, we will be able to know that it is not only an appellate
court, but also an original court. The SC has original jurisdiction on cases of certiorari, prohibition,
mandamus, etc. There are certain cases where one may file directly to the SC.
Q: Is the CA an original or appellate court?
A: The same is true with the CA. It is both original and appellate court. (Section 9, BP 129) When we
study the jurisdiction of the CA, you will see that it is both an original and an appellate court. There are
cases which are elevated to it from the RTC, but there are also cases which are filed there for the first
time.
Q: How about the RTC? Is the RTC an original or appellate court?
A: The RTC is also both original and appellate court. You can file certain cases there for the first time, and
there are also decisions of the MTC which are appealable to the RTC.
Q: How about the MTC? Is the MTC an original or appellate court?
A: The MTC however, is a 100% original court. It is the lowest court in the hierarchy. There are no cases
appealed to it. There is no such animal as barangay court. The barangay captains do not decide cases,
they only conciliate.
CIVIL COURTS vs. CRIMINAL COURTS
Q: Distinguish civil courts from criminal courts.
A: CIVIL COURTS are those which take cognizance of civil cases only, while CRIMINAL COURTS are those
which take cognizance of criminal cases only. (14 Am. Jur. 249; Ballentine's Law Dict., 2nd Ed., p. 301)
All the courts in the Philippines are both civil and criminal courts. They can handle both types of cases.
The SC decides civil and criminal cases. The same thing with the CA, RTC and MTC.
So, in the Philippines, there is no such thing as a 100% criminal court or civil court. Unlike before, during
the 70's there are some special courts which were existing but were abolished by BP 129. There was the
old Circuit Criminal Court. As the name implies, it is purely a criminal court.
But with the abolition of those special courts, all their powers were transferred to the present RTC. Right
now, there is no such thing as a 100% civil court or a 100% criminal court. So, all our courts are both civil
and criminal courts at the same time.
COURTS OF LAW vs. COURTS OF EQUITY
Q: Distinguish Courts of Law from Courts of Equity.
A: COURTS OF LAW are tribunals only administering the law of the land, whereas COURTS OF EQUITY are
tribunals which rule according to the precepts of equity or justice, and are sometimes called courts of
conscience. (Ballentines Law Dict., 2nd Ed., p. 303)
Courts Of Law dispose cases according to what the law says I will decide your case by what the law
says. Yan ang court of law! When we say Courts Of Equity, it adjudicates cases based on the principles of
equity. Principle of equity means principles of justice, fairness, fair play.
Q: Are the Philippines courts, courts of law? Or courts of equity? Do they decide cases based on what the
law says? or, do they decide cases based on the principle of justice and fairness?
A: In the Philippines, our courts are both courts of law and of equity. In the case of substantive law, there
is a thin line which divides the principle of law from the principle of equity because principles of equity
are also found in the principles of law. Equity is what is fair and what is just and equitable. Generally,
what is legal is fair.
As a matter of fact under the Civil Code, when the law is silent, you decide it based on what is just and
fair. Kaya nga may kasabihan na EQUITY FOLLOWS THE LAW. In the Philippines you cannot distinguish
sometimes the principle of law and the principle of equity because principles of equity are also written in
the law. Example: The principle of estoppel, laches or solutio indebiti. One cannot say that they are
purely principles of equity since they are also found in our law. Under the Civil Code, when there is no
applicable law, courts still have to decide according to customs and general principles.
Example: ESTOPPEL. Estoppel is an equitable doctrine that it is not fair that you disown your own
representation after misleading somebody. But if you look a the Civil Code, meron mang chapter diyan
ba! estoppel! So if you apply estoppel, you cannot say that you are applying a principle not found
under the law.
Example: LACHES the half-brother of prescription if you delay a certain right then you must have no
right. That is more of equity, rather than of law.
Example: SOLUTIO INDEBITI. No one should enrich himself at the expense of another. That is a principle
of equity. But if you look at the Civil Code, it's there!
The SC, when deliberating, focuses more on justice and equity where reason can always be found. The
SC once said that equity follows the law. In the case of :
ALONZO vs. INTERMEDIATE APPELLATE COURT
May 28, 1987, J. Cruz
HELD: The question is sometimes asked, in serious inquiry or in curious conjecture, whether
we are a court of law or a court of justice. Do we apply the law even if it is unjust or do we
administer justice even against the law? Thus queried, we do not equivocate. The answer is
that we do neither because we are a court both of law and of justice. We apply the law with
justice for that is our mission and purpose in the scheme of our Republic.
So the SC described it self both as a court of law and court of equity. I have already talked with so many
justices of the SC before. And I asked them on how do they deliberate on cases when somebody files an
appeal or petition. They told me, if you want to convince the SC to hear your case because the
tendency of some lawyers is that they will file their petition and they will cite the law. Meaning, backed-
up by statutory provisions ba. A justice of the SC told me that that is a wrong approach. Do not tell us
what is the law. We know more law than you do! When you file a petition, fairness must be on your side!
Because when we deliberate and we agree that your side seems to be the correct one, to decide on your
favor is more than just to decide on the other side. Then, we will even look for the law to support our
decision. So, you don't have to tell us what is the law, we will look for it. And if there is no law, we will
make it for you, by interpreting because we are a court more of equity than of law. But when we look
on the equity, we will look for the law and chances are, there is the law to follow.
CONSTITUTIONAL COURTS vs. STATUTORY COURTS
Q: Distinguish Constitutional Courts from Statutory Courts.
A: CONSTITUTIONAL COURTS are created directly by the Constitution itself, while STATUTORY COURTS
are created by law or by the legislature.
In our country, there is only one Constitutional court the Supreme Court. Even the Sandiganbayan is
not considered a Constitutional court because it was not created by the Constitution directly. The 1973
Constitution ordered Congress to create Sandiganbayan. It was law that created Sandiganbayan (PD
1486). There is a provision in the 1973 Constitution which says, There should be created a
Sandiganbayan.
The CA, RTC, and the MTC are created by the Congress. Thus, Congress has the power to abolish the said
courts but it can never abolish the Supreme Court.
So there is only one Constitutional court. All the rest, from the CA down and all other special courts, are
only creatures of Congress. In political law, the power to create carries with it the power to abolish. That
is why, BP 129 abolished all existing courts at that time (CFI, CA, Juvenille, etc.) and RTC, IAC, MTC were
created. That was the judicial reorganization of 1980 under BP 129. But there is only court which the
Batasan Pambansa could not touch the Supreme Court.
They have no power to abolish the SC because it is created by the Constitution. Pareho lang tayong tabla
eh. Congress is also created by the Constitution. So if you want to abolish the SC, you must call for a
constitutional convention to change the Constitution.
INHERENT POWERS OF THE COURT
Before we leave the concepts of courts, you must know that the courts of justice have what we call
inherent powers. Just like the State have certain inherent powers, whether written or not, these things
are understood to have them Police power, power of eminent domain, and power of taxation.
Courts have also inherent powers. Their very existence automatically necessitates the existence of these
powers. Now, that was already asked in the Bar before what are the inherent powers of the court?
Q: What are the inherent powers of the court?
A: Section 5 Rule 135 of the Rules of Court of the provides:
Section 5. Inherent powers of courts. Every court shall have the power:
(a) to preserve and enforce order in its immediate presence;
(b) to enforce order in proceedings before it, or before a person or persons empowered
to conduct a judicial investigation under its authority;
(c) to compel obedience
to its judgments orders, and processes, and to the lawful orders of a judge out of
court, in a case therein;
(d) to control, in furtherance of justice, the conduct of its ministerial officers, and of all
other persons in any manner connected with a case before it, in every manner
appertaining thereto;
(e) to compel the attendance of persons to testify in a case pending therein;
(f) to administer or cause to be administered oaths in a case pending therein, and in
all. other cases where it may be necessary in the existence of its powers;
(g) to amend and control its process and orders so as to make them conformable to
law and justice;
(h) to authorize a copy of a lost or destroyed pleading or other paper to be filed and
used instead of the original, and to restore, and supply deficiencies in its records
and proceedings.
There are many powers enumerated. Some of them are common sense. Every court has the power to
see to it that everything of his order is enforced; to compel obedience to his order. Common sense yan.
You are inutile if you cannot even enforce your own judgment! So I've been telling some judges here, eh.
Sometimes we talk about this: they say, it seems that I don't have the power under the Rules of Court.
It's beyond my power. I made a decision but I cannot see how was it enforced. Parang pampalakas-loob
ang Rule 135, Section 5 because you can see there the powers that you do not know you have. These are
inherent eh hindi puwedeng alisin sa iyo iyan. Otherwise, maging inutil ka I have the power to decide
but I do not know how to enforce my decision. That is a sign of impotence (Charles, pinaringgan ka ni
Dean!). As a matter of fact, the next section (Section 6, Rule 135) tells us how to carry out your
judgment. If you do not know how to carry out your judgment because the law is silent, Section 6 says,
look for a way. Hanapan mo ng paraan!
SITUATION: Suppose I have the power to decide and I render a decision. I want to enforce the decision,
how do I enforce? Well, usually the law provides for the procedure.
Q: But suppose the law does not provide for any manner to enforce? For example a judge has rendered a
decision, and the law is silent on how to enforce it, do you mean to say that the order is unenforceable
because the law is silent?
A: NO. Section 6 of Rule 135 answers the question.
SEC 6. Means to carry jurisdiction into effect When by law jurisdiction is conferred on a
court or a judicial officer, all auxiliary writs, processes and all other means to carry it into
effect maybe employed by such court or officer; and if the procedure to be followed in the
exercise of such jurisdiction is not specifically pointed out by law or these rules, any suitable
process or mode of proceeding may be adopted which appears conformable to the spirit of
said law or rules.
What Section 6 is trying to say is that when you have the power to decide, you have the power to
enforce. And if the law is silent, you have to think how to do it. Be creative. Provided you conform with
the spirit of the rule. So you do not make the order useless simply because there is no rule. In other
words, try to look for a way on how to enforce you judgment. That is part of your power.
ENFORCEABILITY OF COURT WRITS AND PROCESSES
Another provision that I want to emphasize before we leave this subject of court is Section 3 of the
Interim Rules.
Question: The court of Davao will issue a writ or a process. Can that writ or process be enforced in Cebu
or Manila? Or only in Davao? Or only in Region IX? Hanggang saan ba ang enforceability ng aking writ or
processes? You have to distinguish what kind of writ or process you are talking about.
Under Section 3, Interim Rules:
Sec. 3. Writs and Processes. -
a) Writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction
issued by a regional trial court may be enforced in any part of the region.
b) All other processes whether issued by the RTC or MetTC, MTC, and MTC may be served
anywhere in the Philippines, and, the last three cases, without a certification by the judge
of the RTC.
Q: What is the area of enforceability of writs and processes of the courts?
A: Under Section 3 of the Interim Rules, you have to distinguish what kind of writ or process you are
talking about:
a) If it is a writ of certiorari, prohibition, mandamus, quo warranto, habeas corpus,
injunction, it can be enforced anywhere within the region. So at least, RTC can enforce it
within the region and it cannot enforce those writs outside the region.
EXAMPLE: If you are illegally detained, you can ask the court to issue a writ of habeas corpus.
Now, a person is detained in Bansalan and the family is here in Davao City. They filed a
petition for habeas corpus in Makilala, North Cotabato. Makilala is in Region 12 and the RTC
of Bansalan is part of the 11th judicial region. Thus, the judge in Makilala cannot issue the writ
of habeas corpus due to the fact that Bansalan belongs to the 11th judicial region while
Makilala is in the 12th judicial region. The RTC of Tandag, Surigao is Region 12 and therefore
can issue a writ of habeas corpus to be enforced in Makilala which is hundreds of miles away
because they are of the same judicial region. And yet the RTC of Bansalan cannot issue a writ
to be enforced in Makilala, North Cotabato, which is the next town, because that is not part of
their region. The law is very clear: writs of certiorari, prohibition, mandamus, quo warranto,
habeas corpus and injunction issued by a trial court may be enforced in any part of the region.
b) Section 3 further says, all other writs are enforceable anywhere in the Philippines.
Suppose the MTC issues a warrant for the arrest of the accused in the criminal case, and he
fled to Baguio City, such warrant can be enforced there. This includes summons, writs of
execution or search warrants.
-oOo-
JURISDICTION IN GENERAL
The word JURISDICTION is derived from 2 Latin words: 1.) JURIS law; 2.) DICO to speak, or to say. So,
in effect, when you say jurisdiction, literally translated, it means, I speak by the law. It means that you
are saying I speak with authority because when you invoke the law, then your act is authorized. Even in
old times when the representatives of the king or the sovereign will try to arrest somebody or will try to
enter your house, they open up in the name of the law. They will always invoke in the name of the law.
So when you say, I speak by the law I will do it in the name of the law. It connotes authority or power.
You cannot be wrong. How can you be wrong if you are doing it in the name of the law? So more or less
jurisdiction simply means authority or power. So more or less that is the whole concept of jurisdiction. It
simply means authority or power. That is precisely what jurisdiction is all about.
JURISDICTION simply means the power of the court to hear try and decide a case. In its complete aspect,
jurisdiction includes not only the powers to hear and decide a case, but also the power to enforce the
judgment. (14 Am. Jur. 363-364)
Q: What is the effect if the court has no jurisdiction?
A: If a court has no jurisdiction, it has no power or authority to try a case and that is a concept you
already know in Criminal Procedure. Without jurisdiction, the trial is null and void as well as the
judgment.
Lets go to a criminal case. Can you file an information for murder before the MTC? Or can you file an
information for slight physical injuries before the RTC? There is something wrong there. If a slight
physical injury case is filed against you in the RTC, what will you do? If Im the lawyer of the accused why
will I allow my client to be arraigned and to be tried when everything is null and void. Kapoy- kapoy lang
ako. So Ill file a motion to quash under Rule 117. Thats the same thing in civil cases. If you file a civil
case before a court that has no jurisdiction, then it can be dismissed for lack of jurisdiction.
JURISDICTION vs. EXERCISE OF JURISDICTION
Now, let us not confuse jurisdiction with certain terms related to it. Q: Distinguish jurisdiction from
exercise of jurisdiction.
A: The authority to decide a case, not the decision rendered, is what makes up jurisdiction. It does not
depend upon the regularity of the exercise of that power or upon the rightfulness of the decision made.
Where there is jurisdiction over of the person and subject matter, the resolution of all other questions
arising in the case is but an exercise of jurisdiction. (Herrera vs. Barreto, 25 Phil. 245)
In other words, JURISDICTION is the authority. If I have no authority, I cannot act. And if I have authority,
I can act. Now, if the court has authority, it will try the case and render judgment.
Now, what the court will do later, like try the case and render judgment is merely an EXERCISE OF ITS
JURISDICTION. So the trial and judgment are all products of the exercise of jurisdiction. You cannot talk
of exercise without having first the authority. It is a useless procedure when you say I will exercise
something which I do not have.
Q: Why is it important to distinguish jurisdiction from exercise of jurisdiction?
A: Definitely, a court acting as such may commit errors or mistakes. That is why the action of the court
can be questioned later in a higher court. A court can commit an error which is either an error of
jurisdiction or an error of judgment.
EXAMPLE: A case of murder was filed in the MTC. The accused, Ken Sur, files a motion to quash because
MTC has no jurisdiction over cases of murder. Eh, yong judge iba man yong libro niya, No, I have
jurisdiction. So the court denied the motion to quash. Meaning, the judge has decided to assume
jurisdiction. So, meaning from the very start mali na. Now what do you call that? When the court without
authority assumes authority over the case that is called ERROR OF JURISDICTION the court committed
an error of jurisdiction.
EXAMPLE: Suppose the case for murder is filed in the RTC where the court has jurisdiction. So walang
mali, everything is correct. But in the course of the trial, you cannot avoid mistakes being committed like
for example, the court misinterpreting the provision of the RPC saying that this is a requirement, this is
not a requirement for the crime. Meaning misapplication or misinterpretation of the RPC as well as
misinterpretation of the rules of evidence wrong interpretation of the law. And the accused was
convicted but actually tingin mo mali man ito, di ba! Under the law, this elements was not considered or
this element was considered as present. Do you say the decision of the judge is null and void? NO, the
judgment is valid kaya lang mali. So, you do not say the court committed an error in the exercise of
jurisdiction, and that is called an ERROR OF JUDGMENT. And that was also asked in the bar.
ERROR OF JURISDICTION vs. ERROR OF JUDGMENT
BAR QUESTION: Distinguish ERRORS OF JURISDICTION from ERRORS OF JUDGMENT.
A: The following are the distinctions:
1.) When a court acquires jurisdiction over the subject matter, the decision or order on all
other questions arising in the case is but an exercise of jurisdiction; Errors which the court
may commit in the exercise of such jurisdiction are merely ERRORS OF JUDGMENT; whereas,
When a court takes cognizance of a case over the subject matter of which it has no
jurisdiction, the court commits an ERROR OF JURISDICTION.
2.) ERRORS OF JURISDICTION are reviewable by certiorari; whereas,
ERRORS OF JUDGMENT are reviewable by appeal.
Meaning, when a court has no jurisdiction but insists in handling the case, that is a mistake by the trial
court. It is called an error of jurisdiction.
Now, suppose a court has jurisdiction over the case but the decision is wrong it applied the wrong
provision of the law, or interpretation of evidence. This is not an error of jurisdiction because the court
has authority. But in the exercise of its jurisdiction, it committed several errors. This is now what you call
an error of judgment.
Q: What is the use of distinguishing error of jurisdiction from error of judgment?
A: The difference is in the remedy taken. Actually, it is still an error. If it is an error, it can be corrected by
a higher court. The importance, however, as we will see later, is that there is a definite procedure for
correcting a mistake and other procedures which we will know later where the court commits an error of
judgment and an error of jurisdiction.
In error of judgment, if the judgment is wrong, it is a valid judgment. Your remedy is to APPEAL the
wrong judgment to a higher court. But when a court commits an error of jurisdiction, where it insists on
handling a case when it has no authority, I can question its actuation not necessarily by appeal, but by
resorting to extraordinary remedies, which refer to the remedy of CERTIORARI or PROHIBITION.
(Araneta vs. Commonwealth Ins. Co., L-11584, April 28, 1958; Nocon vs. Geronimo, 101 Phil. 735)
The principle came out in the bar. This error should have been raised on ordinary appeal, not by
certiorari because certiorari is only confined to correcting errors of jurisdiction or grave abuse of
discretion. The governing rule is that the remedy of certiorari is not available when the remedy of appeal
is available. And when the remedy of appeal is lost, you cannot revive it by resorting to certiorari
because certiorari is not a substitute for the lost remedy of appeal.
So, the remedies given by the law are different. These are basic terms which you should remember.
Q: In whom is jurisdiction is vested?
A: Jurisdiction is vested with the court, not in the judge. A court may have several branches, and each is
not a court distinct and separate from the others. So, when a case is filed before a branch, the trial may
be had or proceedings may continue before another branch or judge. (Tagumpay vs. Moscoso, L-14723,
May 29, 1959)
EXAMPLE: The RTC of Davao is composed of several branches eleven to twelve judges. But technically,
there is only one court the RTC of Davao. We do not consider branches as separate courts.
Q: Now, if the case is filed and is assigned to Branch 8, can that case later be transferred and continued
in Branch 9?
A: Ah YES, because you never leave the same court. You are still in the same court. This is because
jurisdiction is not with the judge. It is with the court itself.
TYPES OF JURISDICTION:
Types of jurisdiction:
1.) General Jurisdiction and Special or Limited Jurisdiction; 2.) Original Jurisdiction and
Appellate Jurisdiction; and
3.) Exclusive Jurisdiction and Concurrent or Coordinate Jurisdiction;
1. GENERAL JURISDICTION and SPECIAL OR LIMITED JURISDICTION
a.) GENERAL JURISDICTION is the authority of the court to hear and determine all actions and
suits, whether civil, criminal, administrative, real, personal or mixed. It is very broad to hear
and try practically all types of cases. (14 Am. Jur. 249; Hahn vs. Kelly, 34 Cal. 391)
b.) SPECIAL or LIMITED JURISDICTION is the authority of the court to hear and determine
particular cases only. Its power is limited. (14 Am. Jur. 249; Hahn vs. Kelly, 34 Cal. 391)
So, the court is authorized to hear and try certain specified cases. Limitado pa ang power niya.
And when you go over the Judiciary Act, studying the jurisdiction of the different courts, in
civil cases you will see that the jurisdiction of some courts like the RTC, masyadong far
ranging. It covers many things whereas the jurisdiction of the MTC, makipot. Very narrow bah
because it is a court of limited or special jurisdiction.
2. ORIGINAL JURISDICTION and APPELLATE JURISDICTION
a.) ORIGINAL JURISDICTION is the power of the court to take cognizance of a case at its
inception or commencement. (Ballentines Law Dict., 2nd Ed., pp. 91 and 917) One can file the
case there for the first time.
b.) APPELLATE JURISDICTION is the power vested in a superior court to review and revise the
judicial action of a lower court. (Ballentines Law Dict., 2nd Ed., pp. 91 and 917) If one court
has the power to correct the decision of a lower court, the power of this court is appellate.
This is because it commenced somewhere else and it is just reviewing the decision of the said
lower court.
EXAMPLE: Maya Quitain will file a civil case in the RTC and that court will take cognizance and
try it. You are invoking the original jurisdiction of the RTC. After trial, Maya lost the case, so
Maya decided to appeal the decision of the RTC to the CA. The case is now there. It is now in
the CA and you are now invoking its appellate jurisdiction.
3. EXCLUSIVE JURISDICTION and CONCURRENT OR COORDINATE JURISDICTION
a.) EXCLUSIVE JURISDICTION is that possessed by a court to the exclusion of all others.
Q: Sugar JJ filed a collection case against John Vera, for an unpaid loan of P5,000. The judiciary
law says, if you file a civil case to collect an unpaid loan below P200,000, you should file it
with the MTC. Can Sugar JJ file it in the RTC?
A: NO. Therefore the jurisdiction of the MTC is EXCLUSIVE. It does not share its power with
other courts.
b.) CONCURRENT or COORDINATE JURISDICTION is that possessed by the court together with
another or other courts over the same subject matter, the court obtaining jurisdiction first
retaining it to the exclusion of the others, but the choice of court is lodged in those persons
duly authorized to file the action. (Villanueva vs. Ortiz, 58 O.G. 1318, Feb. 12, 1962)
Example: Thaddeus Tangkad wants to file a case or petition in court. Then, he looks at the law
and the law says that you can file it in this court or, kung ayaw mo diyan, puwede din dito,
diyan or doon Thaddeus Tangkad can file it in this court or in other courts. Therefore, he has
the right to choose where to file. So if Thaddeus files it in court #2, and it assumes now
jurisdiction, out na ang court #1 and court #3. If he files it in court #3, out na yong #1 and #2.
Now this is what you call CONCURRENT jurisdiction because you can file the case in two
courts or more at your choice.
Now, last time we were classifying courts and you learned that the SC is meron palang original
jurisdiction. Ito palang CA also has original jurisdiction. Ang RTC obviously is more of an
original court than an appellate court.
Q: Are there certain types of cases or petitions where I can file it directly with the SC or file
with the CA or file it with the RTC?
A: YES and the best example is a petition for HABEAS CORPUS. The SC, CA and
RTC share concurrent jurisdiction to entertain petitions for habeas corpus. Makapili ka. I-file
mo SC, puwede. Kung gusto mo sa CA, puwede din. Kung ifile mo sa RTC, puwede. In effect,
these are the instances when the SC, CA and RTC exercise concurrent jurisdiction.
ELEMENTS OF JURISDICTION IN CIVIL CASES
In your study of criminal procedure where you also studied the law on jurisdiction, there are also some
elements of jurisdiction in criminal cases. Otherwise, the proceeding will be illegal. Jurisdiction over the
subject matter; Jurisdiction over the person of the accused; and the third is territorial jurisdiction, i.e. the
case should be filed in the place where the crime was committed. In civil cases meron din iyong
counterpart.
Q: What are the elements of jurisdiction in civil cases?
A: The following:
a.) Jurisdiction over the subject matter ;
b.) Jurisdiction over the person of the parties to the case;
c.) Jurisdiction over the res; and
d.) Jurisdiction over the issues.
Q: Now, what happens if in a particular case one of these is missing?
A: The proceedings become questionable. The proceedings become void. The judgment is not binding.
That is the effect of lack of jurisdiction. The proceedings are tainted with illegality and irregularity.
Alright, lets go over them one by one.
A. JURISDICTION OVER THE SUBJECT MATTER
Q: Define jurisdiction over the subject matter.
A: Jurisdiction over the subject matter is the power of the court to hear and determine cases of the
general class to which the proceedings in question belongs. (Banco Espaol-Filipino vs. Palanca, 37 Phil.
291)
In other words, it is the jurisdiction over the nature of the action. Now, you know already the various
types of civil cases such as actions for nullity of marriage, action publiciana, action reivindicatoria, etc.
This is what we call the NATURE OF THE ACTION.
Now, if the nature of the subject matter of the action, e.g. annulment of marriage, where will you file it?
It should not be filed in the wrong court or else it will be dismissed. The counterpart of that in Criminal
law is e.g. offenses punishable by death penalty cannot be tried with the MTC. Annulment cases should
be filed in the RTC otherwise it will be dismissed for lack of jurisdiction over the subject matter.
Q: How is jurisdiction over the subject matter acquired or conferred?
A: Jurisdiction over the subject matter is conferred by law and is never acquired by consent or
submission of the parties or by their laches. This is a matter of legislative enactment which none but the
legislature can change. (MRR Co. vs Atty. Gen. 20 Phil. 523; Otibar vs. Vinson, L-18023, May 30, 1962) It
cannot be acquired by an agreement between the parties, waiver, failure to object (silence).
Q: Now, suppose I want to file a case against you and under the law that should be filed in the RTC. But
both of us believe that the judges of the MTC like Judge Caete knows more, he is more competent than
the other judge there. Maganda siguro dito na lang tayo sa MTC. O sige, we sign an agreement,
magpirmahan tayo that we will file the case by agreement in the MTC. By agreement, doon sa MTC
natin i-file. Did the MTC acquire jurisdiction over the case because the parties agreed?
A: NO, agreements between parties cannot change the law. Jurisdiction is conferred by law, not by
agreements of the parties. Jurisdiction over the subject matter cannot be agreed upon. It is acquired by
or conferred to the court by law either the Constitution or the Judiciary Law. The parties cannot agree
to have the case submitted to another court.
Q: Now, suppose I will file a case against you in a wrong court. Ikaw naman hindi ka kumibo. Actually
what you should do there is file a motion to dismiss (or in criminal cases a motion to quash.) But hindi ka
nagkibo Sige lang. I will not complain. So is it okey? Since you did not object, you did not file a motion
to dismiss, you did not file a motion to quash, did the wrong court acquired jurisdiction over the case?
A: NO. Jurisdiction cannot be conferred by silence of the parties or by waiver. Estoppel or waiver or
silence or failure to object cannot vest jurisdiction in the wrong court because jurisdiction over the
subject matter is conferred by law. And when the court has no jurisdiction, the court by itself has the
power to dismiss, Why will I burden myself for trying a case, when I have no jurisdiction?
The ONLY exception is when there is estoppel by laches, as laid down in tile TIJAM vs. SIBONGHANOY
(April 15, 1968). The issue of jurisdiction was not questioned for an unreasonable length of time. BUT the
rule is, it can be raised at any stage of the proceeding even for the first time on appeal. And even the
parties may not raise it, the court motu propio has the authority to dismiss it.
Q: How is jurisdiction over the subject matter determined?
A: It is determined by the allegations of the complaint. It does not depend upon the pleas or defenses of
the defendant in his answer or motion to dismiss. (Cardenas vs. Camus, L-19191, July 30, 1962; Edward J.
Nell Co. vs. Cubacub, L-20842, June 23, 1965; Serrano vs. Muoz Motors, L-25547, Nov. 27, 1967)
B. JURISDICTION OVER THE PERSON
Q: Define jurisdiction over the person.
A: Jurisdiction over the person is the power to render a personal judgment through the service of
process or by voluntary appearance of a party during the progress of a cause. (Banco Espaol-Filipino vs.
Palanca, 37 Phil. 291)
Q: In criminal cases, how does the court acquire jurisdiction over the person of the accused?
A: By having him (1) arrested; (2) by service of the warrant of arrest; or (3) by his voluntary surrender.
Q: Even if he is not arrested, can the court try an accused without the accused being arrested?
A: Of course not, because the court has not acquired jurisdiction over his person. Arestuhin mo
muna. Then puwede siyang mag-bail kung gusto niya. After na-arrest, naglayas, nagsibat? Bahala ka i- try
in absentia. There will be a valid decision because the court has already acquired jurisdiction. Of course
we cannot enforce the decision until we caught him. Pero pagnahuli, ka diretso ka na sa prisuhan. You
say, I was not able to give my side. I was not able to confront and cross-examine the witness against
me. Eh, bakit ka naglayas? Pasensiya ka! Thats the concept of trial in absentia. But for trial in absentia
to proceed in criminal cases, you must first arrest him. You cannot try him without being arrested. You
must arrest him and arraign him first. The same thing in civil cases. It must be that the court must
acquire jurisdiction over this person.
Normally, when we say jurisdiction over the parties, we are referring to the PLAINTIFF the one suing,
and the DEFENDAN'T the one being sued. For the decision to be valid, the court must obtain
jurisdiction over the person of the plaintiff and the defendant. Otherwise, the decision will not bind the
parties over whom the court has not acquired jurisdiction.
That is why jurisdiction over the parties is the power of the court to render a personal judgment which
will bind the parties to the case. What is the use of rendering a decision if the parties are not bound? It
must have effect.
Q: How does the court acquire jurisdiction over the plaintiff?
A: Jurisdiction over the person of the plaintiff is acquired from the moment he files his complaint. Upon
filing his complaint in court, he is automatically within the jurisdiction of the court. (MRR Co. vs Atty.
Gen. 20 Phil. 523)
Q: How does the court acquire jurisdiction over the defendant? A: Jurisdiction over the person of the
defendant is acquired:
1.) upon service on him of coercive process in the manner provided by law; or
2.) by his voluntary submission to the jurisdiction of the court. (MRR Co. vs Atty. Gen. 20 Phil.
523)
First Instance: UPON SERVICE ON HIM OF COERCIVE PROCESS IN THE MANNER PROVIDED BY LAW
The first instance when a court acquires jurisdiction over the person of the defendant is through a
service upon him of the appropriate court process which in civil law is called service of summons. This is
the counterpart of warrant of arrest in criminal procedure.
So if the defendant was never served with summons, any judgment rendered by the court will not bind
him. Even if he is the loser in the case, judgment cannot be enforced because the court did not acquire
jurisdiction over his person.
The same principle holds true in criminal cases. A court cannot try and convict an accused over whose
person the court never acquired jurisdiction. In criminal cases, the court acquires jurisdiction over the
person through the issuance of a warrant of arrest. The warrant cannot have its effect even if it was
issued, if the same had not been served, i.e. by effecting the arrest of the accused by virtue of a warrant.
Q: In criminal cases, how can the warrant of arrest be effected?
A: Once an information has been filed in court, the court issues a warrant. Then, the arresting
officer will arrest the accused. The court acquires jurisdiction by ENFORCEMENT OF SERVICE for effective
arrest of the accused pursuant to the warrant of arrest.
Second Instance: BY HIS VOLUNTARY SUBMISSION TO THE JURISDICTION OF THE COURT
Another way to acquire jurisdiction over the person of the accused even if the accused is not arrested is
through VOLUNTARY SURRENDER. Since there is no more need for the warrant, the court will recall the
same. In civil cases, it is the voluntary submission of the defendant to the jurisdiction of the court.
Q: Defendant was served with summons improperly or irregularly therefore, he could question the
jurisdiction of the court over his person. But instead, he did not question the jurisdiction of the court
despite the defective service of court process. Did the court acquire jurisdiction over the person of the
defendant?
A: YES, because jurisdiction over the person can be acquired by: a.) waiver;
b.) consent; or
c.) lack of objection by the defendant. (MRR Co. vs. Atty. Gen. 20 Phil. 523)
This is unlike the jurisdiction over subject matter wherein the case could be dismissed upon filing in the
wrong court. The SC said that when you remained silent despite the defects, your silence has cured the
defect. Meaning, the jurisdiction over your person was acquired by waiver, or consent, or lack of
objection.
Q: Distinguish jurisdiction over the subject matter from jurisdiction over the person of the defendant?
A: Lack of jurisdiction over the person of the defendant may be cured by waiver, consent, silence or
failure to object, whereas jurisdiction over the subject matter cannot be cured by failure to object or by
silence, waiver or consent. (MRR Co. vs. Atty. Gen. 20 Phil. 523)
C. JURISDICTION OVER THE RES
RES is the Latin word for thing. Q: Define jurisdiction over the res.
A: Jurisdiction over the res is that acquired by the court over the property or the thing in contest,
and is obtained by seizure under legal process of the court whereby it is held to abide such order as the
court may make. (Banco Espaol-Filipino vs. Palanca, 37 Phil. 291)
Q: A and B quarreled over a piece of land. What is the res of the case? A: The piece of land is the res of
the case.
Q: However, res may not be tangible. For example, Weng Kolotski is an illegitimate child. She wants to be
acknowledged by her father. Thus, she filed a case against her father for compulsory recognition. What is
the res?
A: The res is the status of the child because it is the object of the litigation.
Q: Why is jurisdiction over the res important?
A: Sometimes it is a substitute for jurisdiction over the person. There are instances when the court
cannot acquire jurisdiction over the defendant like when he is abroad. But if the court acquires
jurisdiction over the res, the case may go on. Even if the court cannot acquire jurisdiction over the
person of the defendant, jurisdiction over the res becomes a substitute over the person.
EXAMPLE: Even if the defendant is a non-resident who is out of the country and the object of litigation is
here in the Philippines, then acquisition of jurisdiction over the res confers jurisdiction to the court even
if the defendant is abroad. The res here is where the judgement can be enforced.
That is why in Rule 14, there is an extra-territorial service of summons. But based on a SC ruling, the
extra-territorial service of summons is not for the purpose of acquiring jurisdiction over the person of the
defendant but is merely how to comply with the due process clause.
D. JURISDICTION OVER THE ISSUES
Q: Define jurisdiction over the issues.
A: Jurisdiction over the issue is the authority to try and decide the issues raised by the pleadings of the
parties. (Reyes vs. Diaz, 73 Phil. 484)
Q: What are pleadings?
A: They are governed by Rule 6.
Rule 6, Section 1 - Pleadings are the written allegation of the parties of their respective
claims and defenses submitted to the court for trial and judgment.
In a civil case, the parties before the trial file in court pleadings. That is where you state your position.
EXAMPLE: Francis Paloy Ampig will sue you to collect a loan. So Paloy will file a complaint in court. That
is a pleading. Then you have to answer Paloys complaint in court. You say that you do not owe him
anything because you already paid him. So you prepare your answer in writing in court and that is also
called a pleading. Based on what Paloy said in his complaint and your answer, we will now know what
they are quarreling about.
For example: Paloy says you borrowed money, you never paid him. Now according to your answer, No.
I already paid him.
Q: Now what is the issue?
A: The issue is, whether the obligation still existing or is it already extinguished by payment. So that is
the issue. So that is where we will know what we will try in this case.
Q: Suppose after the trial, the court said that the obligation has been extinguished by condonation. Now
where did the court get that? Your defense is payment, and the decision now it was extinguished by
condonation. Is the decision correct?
A: The decision is WRONG because the parties did not raise condonation as the issue. The case was
decided on an issue that was not even raised by the parties. So the court never acquired jurisdiction over
the issue. In other words, the court should only rule on what the parties raised in their pleadings. That is
what we call jurisdiction over the issue. The court should only rule on what the parties claim.
So, the court is supposed to rule on the issue raised and not those not raised by the parties.
Take note that jurisdiction over the issues in civil cases is acquired after defendant has filed an answer. In
criminal cases, jurisdiction over the issues is acquired upon filing of a complaint. For a decision to be
effective, the court must acquire the jurisdiction over the subject matter, the person, the res in case the
defendant is not around, and the last is jurisdiction over the issue.
Q: Distinguish jurisdiction over the subject matter and jurisdiction over the issues. A: The following are
the distinctions:
1.) Jurisdiction over the subject matter is the power to hear and try a particular case, while
Jurisdiction over the issues is the power of the court to resolve legal questions involved in the case;
2.) Jurisdiction over the subject matter is acquired upon filing of the complaint, while
Jurisdiction over the issues of the case is acquired upon filing of the answer which joins the issues involve
in the case.
EXAMPLE: I am the plaintiff, I will file a case in court to collect an unpaid loan. From the moment I file the
case, the court has acquired jurisdiction over the subject matter. Now, you are summoned. File ka naman
ng sagot mo, Wala akong utang, bayad na. Then the court has now acquired jurisdiction over the issue.
One is acquired upon filing of the complaint and the other one is acquired after the filing of the answer
by the defendant.
a. Regular courts
a.) ORIGINAL JURISDICTION OF THE SUPREME COURT
Article VIII, Section 5 , paragraph 1 of the 1987 Constitution enumerates the ORIGINAL jurisdiction of the
SC:
Section 5. The Supreme Court shall have the following powers:
[1] Exercise original jurisdiction over cases affecting ambassadors, other public ministers
and consuls, over petitions for certiorari, prohibition, mandamus, quo warranto , and
habeas corpus.

Now, it is still premature for us to discuss now what do you mean by certiorari, prohibition, mandamus,
quo warranto because that is discussed exhaustively in the study of Special Civil Actions. But you are
more acquainted with habeas corpus. It is a special proceeding. If you are illegally detained, you can file a
petition for habeas corpus directly before the SC because it has original jurisdiction.

So that is the first provision in the Constitution dealing with the jurisdiction of the SC. However, the SC is
not only an original court, it is also an appellate court.

b.) APPELLATE JURISDICTION OF THE SUPREME COURT

The appellate jurisdiction is found in Section 5, Paragraph (2), Article VIII 1987 Constitution:

Note: 2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules
MetTC- In Manila of Court may provide, final judgments and orders of lower courts in:
MTCC- cities outside Manila e.g. Cebu, Davao
MTC- municipalities such as Digos, Panabo a) All cases in which the constitutionality or validity of any treaty, international
MCTC- circuitized areas because it is impractical and expensive to maintain one MTC in every or executive agreement, law, presidential decree, proclamation, order,
municipalities. instruction, ordinance, or regulation is in question.

b.) Special courts b) All cases involving the legality of any tax, impost, assessment, or toll, or any
penalty imposed in relation thereto.
There are also Special Courts which are also considered part of the judiciary. These are:
1. Court of Tax Appeals (RA 1125) c) All cases in which the jurisdiction of any lower court is in issue.
2. Sandiganbayan (PD 1486 as amended)
3. Sharia District Courts and the Sharia Circuit Courts (PD 1083 , also known as the Code of d) All criminal cases in which the penalty imposed is reclusion perpetua or
Muslim Personal Law); higher.
4. Family Courts
e) All cases in which an error or question of law is involved.
We are concerned only of the jurisdiction of the REGULAR COURTS.
a) All cases in which the constitutionality or validity of any treaty, international or executive agreement,
law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
JURISDICTION OF THE SUPREME COURT
So if the RTC in a certain civil case declares the law as unconstitutional since it has the power to do so,
The highest court of the land is the Supreme Court. It was not affected by the Judiciary Law (BP 129) the same has to be appealed directly to the SC. It cannot pass through the CA because the SC has
which reorganized the judiciary in 1983. Being a constitutional court, its jurisdiction is found in the exclusive appellate jurisdiction regarding the matter.
fundamental law itself. The SC is both an original and appellate court.
b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in
relation thereto.
This is related to the legality of tax cases whether a tax or tax penalty is legal or not. However,
whatever decision the lower court gives, it has to be appealed directly to the SC.
(c) All cases in which the jurisdiction of any lower court is in issue
EXAMPLE: The RTC or the MTC says it has jurisdiction or it has no jurisdiction over a case. The aggrieved
party, it if wants to raise that joint, it must go to the SC. When the issue is purely jurisdiction, the SC shall
have exclusive appellate jurisdiction.
Now, when the law says all cases in which the jurisdiction of any lower court is in issue, the cases involve
100% pure jurisdiction as an issue. There are no factual issues involved. If the issue of jurisdiction is
mixed with a factual issue, the appeal should be in the CA without prejudice to the filing of the same
with the SC later. So, this is 100% issue of jurisdiction. No factual issue is involved.
(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.
We will not dwell on this. This is more on Criminal Procedure. We are only interested in civil cases.
(e) All cases in which only an error or question of law is involved.
Take note that ONLY an error or question of law is involved. So, if there is a mixed question of law and a
question of fact, appeal must be filed with the CA. You only go to the SC if the appeal is 100% legal. That
applies to both criminal and civil cases.
QUESTIONS OF LAW and QUESTIONS OF FACT
The best example of questions of law where the issues are purely legal are classroom problems. The
question is: Who is right? A or B? Reasons. You apply the law. But as to what happened, the facts are
already given. Based on these facts who is correct? Yun ang tinatawag na question of law.
Pero if the facts are still vague, that is not a question of law, that is a question of fact. Example: Lyle filed
a case against Aivy to collect an unpaid loan. According to Lyle, Aivy borrowed money from him and its
already overdue and she has not paid. Aivy admits she borrowed money from Lyle but says she has
already paid. Now, the question in the exam: Who is telling the truth?
My golly! How can you answer the question who is telling the truth? In other words, I have to hear them.
Yun ang tinatawag na question of fact what happened, pinag-aawayan pa. When you go to SC in civil
cases, you are not there to ask the SC to determine who is telling the truth. You are asking who is right
under the law.
OTHER CONSTITUTIONAL PROVISIONS DEALING WITH THE JURISDICTION OF THE SUPREME COURT
Article IX, Section 7, paragraph (a), 1987 Constitution:
Each Commission shall decide by a majority vote x x x. Unless otherwise provided by this Constitution
or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on
certiorari by the aggrieved party within thirty days from receipt of a copy thereof.
The COMELEC, COA and the CSC act also as courts of justice. They have powers to decide certain cases
within their jurisdiction. Election cases, sa COMELEC man yan ba. Claims against the government COA.
Or disallowance on disbursement by government officers or removal from government service CSC.
Now, according to Section 7, any decision, order or ruling of these commissions may be brought to the
SC on certiorari, etc. So you will see that the decisions of the constitutional commissions are reviewable
by the SC.
However, Congress amended the Judiciary Law particularly Section 9 on the jurisdiction of the CA by now
making decisions of the CSC no longer appealable to the SC directly but appealable to the CA. So based
on the present law, out of the three constitutional commissions, the only ones whose decisions are
appealable directly to the SC are those of the COMELEC and the COA
When that law was passed where the decisions of the CSC are appealable to the CA, first I was stunned. I
said there is something queer here because the CSC is a constitutional body and the CA is not. So why
will a decision of a constitutional body be reviewable by a non-constitutional body? And I said parang it
might violate the Constitution. Under the Constitution, decisions of the constitutional commissions are
appealable to the SC. Does Congress have the power to change that by making it appealable to the CA?
So I had to look at the provision again to find out whether this is possible. But pwede naman pala. You
look at the provision, Unless otherwise provided by this Constitution or by law.. Meaning, the decisions
are appealable to the SC unless otherwise provided by law. The Constitution itself gave Congress the
power to change it. So there is no problem.
Article VII, Section 4, last paragraph, 1987 Constitution:
The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election,
returns, and qualifications of the President or Vice-President, and may promulgate its rules for the
purpose.
If theres an electoral protest for the President and Vice-President, the matter is not to be decided by the
COMELEC but by the SC. This is what is called as the SC acting as the Presidential Electoral Tribunal. The
only case so far was that filed by Defensor-Santiago but which was dismissed, the SC ruled that when she
ran for the Senate, she has already technically abandoned her interest for the Presidency.
Article VII, Section 18 (3), 1987 Constitution Commander-in-Chief Clause
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of
the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or
extension thereof, and must promulgate its decision thereon within thirty days from its filing.
So, the SC, in an appropriate proceeding filed by any citizen review the sufficiency of the factual basis of
the proclamation of martial law. Meaning, the SC can inquire into the basis on why martial law is
declared.
Which therefore abandons the Political Question doctrine laid down in many earlier cases that it is the
prerogative of the President to determination, at his discretion, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of the writ or the extension thereof.

So this particular provision of the Constitution came about in 1987 to check the supposed excesses
during the time of Marcos, though it came too late. It may well take another 100 years to produce
another Marcos.
Article VIII, Section 2, 1987 Constitution:
The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various
courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5
hereof.
Congress may change or even remove the jurisdiction of the RTC or CA. The law can change them
because jurisdiction over the subject matter is conferred by law. However, Congress does not have the
power to lessen or deprive the Supreme Court of its jurisdiction under Section 5, Article VIII.
However Article VI, Section 30 states:
No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this
Constitution without its advice and concurrence.
Thus , Congress cannot lessen but it can increase the SCs powers and jurisdiction, PROVIDED it is with
the latter's advice and concurrence.
The provision under the Ombudsman Law (RA) with regards to the Ombudsmans disciplining power
appealable directly to the SC, was declared unconstitutional by the SC because it increased the SCs
jurisdiction and was passed without the advise and concurrence of the SC.
So more or less, these are the scattered provisions of the Constitution dealing with the SCs jurisdiction.
[Note: PLEASE REFER TO THE HANDOUT HEREIN ATTACHED FOR A COMPLETE OUTLINE OF THE SUPREME
COURT'S JURISDICTION.]
The ORIGINAL EXCLUSIVE jurisdiction of the SC refers to petitions for the issuance of writs of certiorari,
prohibition and mandamus as defined in Rule 65 against the following: the CA, the COMELEC, COA,
Sandiganbayan, Central Board of Assessment Appeals, NLRC or the Secretary of Labor under the Labor
Code.
The cases where its original jurisdiction is CONCURRENT with the CA are likewise petitions for the
issuance of writs of certiorari, prohibition, mandamus against the following: the SEC, the CSC, the
different boards, tribunals or agencies which replaced the old Public Service Commission (e.g. LTFRB).
Also, issuance of writ of certiorari against the RTC and other quasi-judicial agencies, courts,
instrumentalities and commissions.
CONCURRENT with the RTC are those actions affecting ambassadors and other public ministers and
consuls. This is based on the Judiciary Law and the Constitution.
CONCURRENT with the CA and RTC are those involving habeas corpus, quo warranto, and writs of
certiorari, prohibition, and mandamus against inferior courts and bodies. For example, a petition for
mandamus against the MTC of Davao City can be filed with the SC, CA, or RTC although the policy of the
Supreme Court is that it should be filed with the RTC based on the hierarchy of the courts. (Vergara vs.
Suelto, 156 SCRA 758)
Finally, with the advent of the new law (RA 8249), there is now a CONCURRENCE between the SC and the
Sandiganbayan in so far as petitions for certiorari, prohibition, mandamus, habeas corpus, injunction and
other ancillary writs in aid of the Sandiganbayan's APPELLATE JURISDICTION.
b.) APPELLATE JURISDICTION OF THE SUPREME COURT:
1.) Automatic review of death penalty. So when the RTC imposes the death penalty, whether the accused
appeals or not, the case will be elevated to the SC;
2.) Ordinary appeal from the RTC direct to the SC. This only applies to criminal cases where the penalty of
reclusion perpetua or life imprisonment is imposed or other offenses which arise out of the same
occurrence or committed by the accused on the same occasion;
3.) Appeal by Certiorari under Rule 45. When it comes to appeal by Certiorari, there are three types:
3.1.) From the CA or all appeals from the CA are certiorari which is different from the
certiorari in Rule 65.
3.2.) From the RTC direct to the SC. Now, this is not ordinary appeal because this only applies
to criminal cases. In civil cases, if you want to go directly to the SC, you can do so by appeal by
certiorari, provided that the following conditions are met:
a.) If no question of fact is involved and the case involves the constitutionality or
legality validity of any tax, impost, etc., or jurisdiction of the lower courts is in issue ( Article
VIII, section 5 par.(2)
b.) only an error or question of law involved (supra);
c.) a judgment rendered upon an award under the Arbitration Law (RA 876)
d.) appeal on pure questions of law in cases of appeal to the RTC from inferior
courts. So, from the MTC to the RTC ordinary appeal. From the RTC, on pure questions of
law, to the SC appeal by certiorari.
3.3.) Appeal from other courts or administrative agencies liked appeal from the
Sandiganbayan to the SC, from the Central Board of Assessment Appeal or from the
Ombudsman.
JURISDICTION OF THE COURT OF APPEALS
BRIEF HISTORY OF THE COURT OF APPEALS
The jurisdiction of the CA is now governed by BP 129 or the Judiciary Reorganization Act of 1980. BP 129
was passed in 1983 by the former Batasang Pambansa which practically abolished all the regular courts
at that time, and also with the special courts except the SC which cannot be abolished by Congress. What
was also spared was the Court of Tax Appeals which was likewise not affected.
In lieu of these, other courts were created. The constitutionality of BP 129 was challenged as violative of
the security of tenure of the judges. But its constitutionality was sustained in the case of DELA LLANA vs.
ALBA, 112 SCRA 294.
The CA is composed of over 50 justices but I think new divisions were created. They decide cases by a
division of three.
Before BP 129, the court was also called the Court of Appeals, the counterpart of the present CA,
though the CA now is different and more powerful than the old one. BP 129 abolished the old CA and
created another court which was called the INTERMEDIATE APPELLATE COURT (IAC).
So, from the 1983 to 1986, it was called the IAC. After the EDSA Revolution, President Aquino, pursuant
to her law-making powers, issued E.O. #33 amending the Judiciary Law and changed the name of IAC to
CA (referring to the jurisdiction of the IAC).
Many people thought that the CA of President Aquino under E.O. #33 is actually the IAC under another
name only, pinalitan lang ng pangalan. But in a case decided by the SC, reported in
IN RE: LETTER OF ASSOCIATE JUSTICE REYNATO S. PUNO 210 SCRA 589 [1992]
HELD: E.O. # 33 created an entirely new court. Therefore, the IAC existed only for three years from
1983 to 1986. Hence, President Aquino not only re-baptized or re-christened the IAC but she actually
abolished the IAC and created a new CA.
It is the holding of the Court that the present Court of Appeals is a new entity, different and distinct
from the Court of Appeals or the Intermediate Appellate Court existing prior to Executive Order No. 33,
for it was created in the wake of the massive reorganization launched by the revolutionary government
of Corazon C. Aquino in the aftermath of the people power (EDSA) revolution in 1986.
So, in effect, Section 9 which defines the second highest court of the land has been amended twice. First,
by E.O. #33. And then on February 1995, it was amended again by RA 7902, known as The Act
expanding the jurisdiction of the CA.
The essential features of the CAs jurisdiction are as follows:
ORIGINAL JURISDICTION OF THE COURT OF APPEALS
[1] Section 9, paragraph 1, BP 129 Section 9 Jurisdiction The Court of Appeals shall exercise:
(1) Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas
corpus, and quo warranto, and auxiliary writs or processes whether or not in aid of its
appellate jurisdiction.
Does the language sound familiar to you? Original jurisdiction to issue writs of mandamus, prohibition,
certiorari, habeas corpus, quo warranto. Did you hear that before?
Under the original jurisdiction of the Supreme Court the language is the same, eh. Now, we take the
same provision for the second time. So, if I would like to file a petition for habeas corpus, where will I file
it?
Q: If I file it with the Supreme Court, is it allowed? A: Yes, because the Constitution says so.
Q: But suppose I will instead file it with the CA, is it also allowed? A: Yes, under Section 9, paragraph 1.
So what is the conclusion? The SC and the CA exercises concurrent jurisdiction to entertain petitions to
issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto.
Alright, so I will go to a specific SITUATION: Im a clever lawyer, and I will file a petition for quo warranto.
In order to be sure I will get what I want, I will prepare two identical petitions. Since concurrent man sila,
I will file before the SC and the other one with the CA. Sigurista ba kung madisgrasya sa isa, meron
pang isa.
Q: Can I do that? Meaning, I will file one petition before the SC, I will file another petition, pareho-
pareho I will invoke the jurisdiction of the two courts at the same time. Now, suppose I will do that,
what do you think will happen to me?
A: The consequence is found in Section 17 of the Interim Rules. Thats why, as I said, the Interim Rules
are still intact.
Interim Rules, Sec. 17. Petitions for writs of certiorari, etc. - No petition for certiorari, mandamus,
prohibition, habeas corpus or quo warranto may be filed in the IAC if another similar petition has been
filed or is still pending in the SC. Nor may such petition be filed in the SC if a similar petition has been
filed or is still pending in the IAC, unless it is to review the action taken by the IAC on the petition filed
with it. A violation of this rule shall constitute contempt of court and shall be a cause for the summary
dismissal of both petitions, without prejudice to the taking of appropriate action against the counsel or
party concerned.
So, eto, you believe you are a clever lawyer, so you will file two identical petitions. Do you know what
will happen to you according to the provision? Once the CA learns that you filed an identical petition
with the SC, the CA will dismiss the petition before it. And once the SC also learns that you also filed
before the CA, the SC will also dismiss the one you filed before it. So you end up with nothing because
both courts will dismiss.
And not only that, both courts will declare you in contempt of court and if you are a lawyer, disciplinary
actions may be taken against you. That is what you will get if you think you are clever. It turns out that
you placed yourself in a frying pan. In other words, this is what is called abhorrent, contemptible practice
of FORUM SHOPPING. Have you heard that term before forum shopping? Yun bang sabay-sabay kang
mag-file ng case. You will invoke the jurisdiction of two or more courts simultaneously. That is an act of
contempt of court (Rule 7, Section 5).
EXCLUSIVE JURISDICTION OF THE COURT OF APPEALS
[2] Section 9, paragraph 2, BP 129
(2) Exclusive jurisdiction over actions for annulment of judgments of Regional Trial
Courts;
Yes, you will notice again that this type of action belongs to the original jurisdiction of the CA. But there
is something that you will notice. In paragraph 2, it says there exclusive jurisdiction. In paragraph 1,
the word exclusive is not present. As already explained earlier in paragraph 1, the jurisdiction of the CA
is concurrent with the SC. In paragraph 2, the original jurisdiction of the CA is exclusive with the CA. You
can only file this type of action before the CA such as an action for annulment of judgments of the RTCs.
Q: Actions for annulment of judgments of RTCs, an action to annul a judgment of the RTC. Now, is this
similar to an appeal? Is this the same as appealing the decision of the RTC to the CA?
A: No, because in appeal, you are invoking the appellate jurisdiction of the CA. Here in paragraph 2, it is
not appellate jurisdiction. Original ito, eh. Meaning, you are filing an action before the CA for the first
time. And the nature of the action is to annul a judgment of the RTC.
Well, you are familiar with the Civil Law about actions of annulment of contracts. So, if there is such a
case of annulment of contract, there is also such a case as annulment of judgments of the RTCs and you
come to wonder:
Q: What would be the ground? What will be the ground to annul the judgment of the RTC and how do
you distinguish it from an appeal?
A: The present 1997 Civil Procedure now contains a specific rule on this. Before 1997, the guidelines on
annulment of judgment of the RTCs are SC decisions. There is no specific rule, ba. But yung guidelines
are based on jurisprudence.
Right now, starting July 1, 1997, there is now a specific rule on annulment of judgments of RTC. And that
is Rule 47. That is an entirely new rule. So that is enacted precisely to implement Section 9 Paragraph 2.
Of course, we will discuss that rule very much later.
APPELLATE JURISDICTION OF THE COURT OF APPEALS
Now well go the 3rd. Paragraph 3 is the most popular jurisdiction of the CA. Appellate, eh. This is what
is often involved. Most of the cases which land in the CA are appealed cases. Alright, so paragraph 3
defines the appellate jurisdiction of the CA.
[3] Section 9, paragraph 3, BP 129
(3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders or
awards of the RTCs and quasi-judicial agencies, instrumentalities, boards or commissions, including the
Securities and Exchange Commission, the Social Security Commission, the Employees Compensation
Commission and the Civil Service Commission, except those falling within the appellate jurisdiction of
the SC in accordance with the Constitution, the Labor Code of the Philippines under PD 442, as
amended, the provisions of this Act, and of subparagraph (1) of the third paragraph and subparagraph
(4) of the fourth paragraph of Sec. 17 of the Judiciary Act of 1948.
Take note, the appellate jurisdiction of the CA is EXCLUSIVE. Now, if you will analyze paragraph 3, you
will notice that the CA is a powerful court because it has exclusive appellate jurisdiction over all final
judgments, decisions, resolution, orders or awards of RTCs. So as a general rule, if the RTC, anywhere in
the country renders a decision and you want to appeal, whether civil or criminal, chances are it will go
the to CA. It is a powerful court, eh all RTCs eh exclusive pa.
And not only only RTCs. The law says and quasi-judicial agencies, instrumentalities, boards or
commissions Not only decisions of the RTC but quasi-judicial, this is what you call administrative
bodies. Administrative bodies are not actually part of the executive branch but they act just like courts of
justice. They can decide cases and there are hundreds of administrative agencies in the Philippines. And
therefore, if you lost a case before anyone of these bodies, or tribunals, you appeal the decision not with
the SC, but to the CA.
The amendments by RA 7902 is even more specific by adding this phrase, including the SEC, SSS, the
Employees Compensation commission and the Civil Service Commission (CSC). That is the addition. Gi-
klaro ba.
CSC this is what Ive notice beforeI told you before. Before this law was passed, under the
Constitution, decisions of the CSC are appealed to the SC together with the COMELEC and the COA.
But with the passage of RA 7902, the appeal from the CSC has been transferred to the CA, so what is left
behind in the Constitution is the COMELEC and the COA na lang.
For a while there I thought that this was wrong because the CSC is a constitutional body and its decisions
shall be appealed to a non-constitutional body like the CA. So, how do we reconcile this with the
Constitution, Article IX-A, Section 7, where it states that the ruling of each commission shall be reviewed
by the SC? However, the same provision states that: Unless otherwise provided by this Constitution or
by law. And the law is the RA 7902. So, this is how we reconcile it, in other words, the Constitution and
the law can provide for a different mode.
Obviously, the purpose of this statute is to unburden the SC with so many cases. At least transfer some
of the workload to the CA. That is the obvious purpose.
The phrase except those falling within the appellate jurisdiction of the Supreme Courtmeans all cases
should be appealed to the CA except those which belong to the SC under the Constitution. We know that
already. When the issue is the constitutionality of the law, treaty, legality of any tax, the jurisdiction of
any lower court yan, hindi puwede sa CA. Diretso yan sa SC.
And also except those falling under the Labor Code of the Philippines. A labor case is not supposed to
be filed in court but with a quasi-judicial agency known as the NLRC and you start in the local level from
the Labor Arbiter, then the decisions of the Labor Arbiter are appealable to the NLRC and then from
there, where will you go?
Q: Is the decision of the NLRC appealable before the CA? Because it is also a quasi-judicial agency and
under the law, all decisions of quasi-judicial agencies are supposed to be appealed to the CA.
A: NO. The decision of the NLRC is an exception except those under the appellate jurisdiction of the SC
under the Constitution and in accordance with the Labor Code (PD 422). So conclusion: NLRC decisions
cannot be appealed to the CA and the only way to elevate it is to the SC by what we call certiorari, not
appeal. Also, decisions of the Secretary of Labor, under the Labor Code are not reviewable by the CA, but
they are reviewable directly by the SC.
And then there is the phrase, "the provisions of this Act, and of subparagraph (1) of the third paragraph
and subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948. So, in other
words, the new Judiciary Law still makes some reference to the old law. This shows that the entire 1948
Judiciary Law has not been totally repealed. Some provisions are still intact because of the reference.
Now what is this subparagraph 1 of the third paragraph? It only applies to criminal cases. EXAMPLE: A
person is sentenced to reclusion perpetua, his co-accused is sentenced to reclusion temporal or prison
mayor, and all of them will appeal, all of them should be sa SC na. Otherwise, you will be splitting the
appeal into two parts.
Subparagraph 4 of the fourth paragraph of Section 17. When by appeal from the RTC is on pure legal
question, SC yan.
Q: Suppose nasagulan ng questions of fact, I will appeal questions of fact and questions of law.
A: Under the 1948 Judiciary Law, you cannot appeal directly to the SC. You must appeal to the CA.
The same thing on when the issue is on the constitutionality of a treaty, law, legality of tax, when the
jurisdiction of the lower court is in issue, as explained here in this paragraph of the Judiciary Act of 1948,
if the appeal is 100% constitutional issue, jurisdictional or legality issue appeal is to the SC under the
Constitution. But if it is mixed with questions of fact, do not go to the SC. You go first to the CA. That is
what the paragraph is all about. Alright, so that takes care of the jurisdiction of the CA.
[4] Section 9, last paragraph, BP 129:
The Court of Appeals shall have the power to try cases and conduct hearings, receive evidence and
perform any and all acts necessary to resolve factual issues raised in cases falling within its original
and appellate jurisdiction, including the power to grant and conduct new trials or further proceedings.
Trials or hearings in the CA must be continuous and must be completed within three (3) months unless
extended by the Chief Justice. (As amended by RA 7902)
This paragraph shows that the present CA that we have now is a more powerful court than before. It is a
unique court. Aside from being an appellate court, it also acts as a trial court. It may receive evidence but
only those evidence which were overlooked by the trial court. It can order a new trial or conduct a new
trial itself.
Q: If an issue of fact is tried before the RTC, can I always ask the CA to allow me to present evidence?
Does it mean to say now that since the CA is a very powerful court, it can take the place of the RTC?
Meaning, if Im a party instead of presenting my case before the RTC, I will not, Doon na lang sa CA.
A: That is already interpreted in the case of
LINGER AND FISHER vs. INTERMEDIATE APPELLATE COURT
125 SCRA 522 [1983]
HELD: The power of the CA to receive evidence refers only to incidental facts which were not 100
percent touched upon, or matters which were simply overlooked by the trial court. You cannot opt not
to present evidence before the RTC. It only refers to incidental facts.
Evidence necessary in regards to factual issues raised in cases falling within the Appellate Courts
original and appellate jurisdiction contemplates incidental facts which were not touched upon, or fully
heard by the trial or respondent Court. The law could not have intended that the Appellate Court would
hold an original and full trial of a main factual issue in a case, which properly pertains to Trial Courts.
JURISDICTION OF THE REGIONAL TRIAL COURTS
Ito ang third level, no? And by going over their jurisdiction, you will see that it is a court of general
jurisdiction and it is actually the workforce of the whole judiciary. Yantalagang mabigat ang trabaho
nitong RTC. Their workload is terrible. Before, somebody asked me, Dean, gusto mong mag- judge sa
RTC? Inyuha na na! (Burawi nyo!) Inyo na nang trabaho na yan because there are 2 things there when
you get the job of the RTC judge: Of course, you want to excel, you want to do your job properly and
efficiently, you will die early because of the workload. Or, you end up as one who is lazy. You end up with
administrative cases for laziness, left and right. So mabuti pa, huwag ka na lang magtrabaho diyan, kasi
mabigat ang trabaho diyan.
Q: How many RTCs are there in the Philippines, from Northern Luzon to Southern Mindanao? In your
opinion?
A: You look at the opening clause of Section 13:
Section 13 (1) Creation of Regional Trial Courts There are hereby created thirteen (13) Regional Trial
Courts, one for each of the following regions: x x
So the Judiciary law has divided the country into 13 areas which is called JUDICIAL REGION. From the 1st
to the 12th, the 13th is actually in the National Capital Region (NCR), Metro Manila. Every division is
divided into branches and the number of branches keep on increasing by law.
So, to what region do we belong? We are in the 11th judicial region. So there is one RTC for the 11th
judicial region, pero bakit yun ganoon? Davao City lang, more than 10 na? Well, here is where you will
go back to your fundamentals. A court is not the same as a judge. Yan
Actually, what the law says is that, there are 13 RTCs, and every court is divided into branches. So, kung
branches siguro, malapit nang maging 1000 throughout the country. So there are 13 courts with almost
1000 judges. Now, as a matter of fact, if you want to know exactly how many there are, you refer to your
Section 14. Actually, this has been amended many times because from 1980 up to the present, Congress
passed laws. In fact when the law took effect, according to Section 14, there are originally 29 RTC judges
commissioned for the 11th judicial region 29 originally.
Now, from what I know, based on the amendment in 1991, it was increased from 29 to 41. So there are
supposed to be 41 RTC judges for the 11th judicial region. As I said, unless from 1991 to the present
dinagdagan na naman nila.
So 41 RTC judges shall be commissioned for the 11th judicial region. There should be 6 branches which
sits thereafter for the province of Davao del Norte, which sits at Tagum, Nabunturan and Panabo. Four
branches which sit thereat for the province of Davao Oriental which sits at Mati, Bagangga and Butuan.
Sixteen branches which sit thereat for the province of Davao del Sur. And the City of Davao which sits at
Davao City, Digos, Malita and Bansalan. Then 10 branches whish sit thereat for the province of South
Cotabato and the City of General Santos which sit at General Santos City, Koronadal [the City of Eumir,
Francis and Mortz], Surallah, and Polomolok. And 5 branches which sit thereat for the province of
Surigao del Sur which sit at Tandag, Ginanga, Bislig and Kantilan. So that is how they are distributed
within the 11th the juridical region.
Q: So, since there are 41 of them scattered throughout the 11th judicial region, from Surigao to South
Cotabato, for example, I would like to file a case against my neighbor based in Davao. So i-file ko sa
Polomolok, anyway thats the same court, eh. Or a criminal in Davao City file-an sa Mati. Anyway, the
same court na. Are you allowed to do that?
A. The answer is NO! Every branch of the RTC has its own area of responsibility. Except in Davao
City, or in chartered cities, the authority of every branch here is throughout Davao City. But sa probinsya,
hati-hati yan eh, and the provision there is Section 18 of BP 129.
BP 129, Section 18 . Authority to define territory appurtenant to each branch The Supreme Court shall
define the territory over which a branch of the Regional Trial Court shall exercise its authority. The
territory thus defined shall be deemed to be the territorial area of the branch concerned for purposes
of determining the venue of all suits, proceedings or actions, whether civil or criminal, as well as
determining the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts
over which the said branch may exercise appellate jurisdiction. The power herein granted shall be
exercised with a view to making the courts readily accessible to the people of the different parts of the
region and making the attendants of litigants and witness as inexpensive as possible.
Yan, so in the province every branch has its own defined area. So, for example if you are from
Nabunturan, you cannot file a case in Panabo. Kalayo-layo niyan. There is a branch there in Nabunturan.
Doon ka mag-file. Kanya-kanya ng responsibility.
Now, the law says, the SC has the power to define the area of its branch for purposes of supervising that
area and the MTC there. Now, as early as 1983, the SC has already come out with administrative order
throughout the Philippines defining the area of responsibility of each branch. Sometimes I need that, eh,
because there are cases to be filed outside Davao City, especially Cotabato Province. And you have to be
updated kung sang branch ba ako pupunta nito. Sometimes you have a hard time, eh. For example, the
case originated in Babak, part of Davao del Norte, saan ba ito i-file? Panabo or Tagum? I need to consult
that circular. Yanthat will be very helpful. Now you please correlate Section 18 of the Judiciary Law
with the Interim Rules Section 2 because Section 2 of the Interim Rules is related to this, eh.
Interim Rules, Sec. 2. Territorial Jurisdiction of Courts. -
a) MetTCs, MTCs and MCTCs shall exercise their jurisdiction in the city, municipality or circuit
for which the judge thereof is appointed or designated.
b) A Regional Trial Court shall exercise its jurisdiction within the area defined by the SC as the
territory over which the particular branch concerned shall exercise its authority, in accordance
with Sec. 18 of BP 129.
Yaan! So every RTC shall have authority. Alright, these are what you call administrative provisions.
Now, lets go to the jurisdiction of the RTC:
EXCLUSIVE ORIGINAL JURISDICTION Section 19 as amended by RA 7691 CONCURRENT ORIGINAL
JURISDICTION with other courts Section 21 APPELLATE JURISDICTION Section 22
EXCLUSIVE ORIGINAL JURISDICTION OF THE RTC
Sec. 19 Jurisdiction in civil cases Regional Trial Courts shall exercise exclusive original jurisdiction:
[1] In all civil actions in which the subject of the litigation is incapable of pecuniary estimation.
What does it mean? When the subject of the litigation is not expressed in terms of pesos, centavos.
Alright.
In most cases that we know, the demand of the plaintiff is expressed in terms of amount, eh. EXAMPLE:
A creditor will file a case for the collection of the unpaid loan from the defendant. Ang nakalagay sa
demanda niya, that after trial that the court should order the defendant to pay him the sum of P500,000
na utang with interest. So, the subject is expressed in terms of amount of damages ba, the court shall
award to the defendant damages amounting to half a million. Karamihan ng kaso ganyan.
But here, in this civil case, the subject of the civil case is not capable of pecuniary estimation. It cannot be
estimated or calculated in pesos.
EXAMPLE is an action for annulment; rescission of contract; an action for specific performance; an action
for declaratory relief by express provision of the law now; an action for the permanent injunction against
somebody;
[2] In all civil actions which involve the title to, or possession of, real property or any interest therein,
where the assessed value of the property involved exceeds P20,000 or for civil actions in Metro Manila,
where such value exceeds P50,000 except actions for forcible entry into and unlawful detainer of lands
and buildings; original jurisdiction over which is conferred upon the Metropolitan Trial Courts,
Municipal Circuit Trial Courts;
So real actions outside of forcible entry and unlawful detainer. The best example would be accion
publiciana, accion reinvidicatoria, quieting of title, provided the value of the property exceeds
P20,000.00 based on the assessed value of the property.
So, for a lesser value, MTC has jurisdiction. This is why MTCs now has jurisdiction over accion publiciana
when the value of the property is P20,000 or less. But kung forcible entry and unlawful detainer, klaro
yan walang RTC.
Now, if in Metro Manila, then value is P50,000. But outside Metro Manila, the assessed value is only
P20,000.
[3] In all civil actions in admiralty and maritime jurisdiction where the demand or claim exceeds One
Hundred Thousand pesos (P100,00.00) [now PhP 200,000.00] or, in Metro Manila, where such demand
or claim exceeds Two Hundred Thousand pesos (P200,000.00)[now, PhP 400,000].
EXAMPLE: The shipper will ship to you in Davao goods involving common carrier. While in transit, the
goods are lost or they are totally damaged. You would like to file a claim or a case against the carrier,
what kind of a case? That is an admiralty or maritime case.
Q: If you are going to file a case against the shipping company, where will you file it? RTC or MTC?
A: It depends on how much is your claim. If your claim of the damaged or lost cargo exceeds P200,000, sa
RTC; if it is P200,000 or less, sa MTC. In Metro Manila, the jurisdiction is higher it should be over
P400,000. Now do not confuse this with No. 2 because that involves LAND with more than P20,000
value.
Take note that prior to August 16, 1999, the claim should exceed P100,000 or P200,000 in Metro Manila
as the case may be. Now, the claim is adjusted to P200,000 and P400,000, respectively pursuant
to Section 5 of RA 7691 which took effect last August 15, 1995:
RA 7691, Sec. 5. After five (5) years from the effectivity of this Act, the jurisdictional amounts mentioned
in Sec. 19(3), (4), and (8); and Sec. 33(1) of Batas Pambansa Blg. 129 as amended by this Act, shall be
adjusted to Two hundred thousand pesos (P200,000.00). Five (5) years thereafter, such jurisdictional
amounts shall be adjusted further to Three hundred thousand pesos (P300,000.00): Provided, however,
That in the case of Metro Manila, the abovementioned jurisdictional amounts shall be adjusted after five
(5) years from the effectivity of this Act to Four hundred thousand pesos (P400,000,00).
So after August 16, 1999 (5 years from the effectivity of RA 7691) yung P100,000.00 naging P200,000 na.
Yung P200,000 in Metro Manila, naging P400,000. Then after another 5 years (2004), aakyat na naman
ang jurisdiction ng MTC. So from the original P100,000.00 magiging P300,000 na yan. Automatic ha.
[4] In all matters of probate, both estate and intestate, where the gross value of the estate exceeds
One Hundred Thousand pesos (P100,000.00) [now P200,000] or, in probate matters in Metro Manila,
where such gross value exceeds Two Hundred Thousand pesos (P200,000.00) [now P400,000].
In the subject of Wills and Succession, when a person dies, his estate, his property will be settled for the
benefit of his creditors and heirs. That is what you call either as testate or intestate proceedings
depending on whether the deceased left a will or none.
Q: Where should the estate of the deceased person be settled, RTC or MTC?
A: It depends on how much is the gross value of his estate. If it exceeds P200,000, RTC. If it is
P200,000 or less, it should be with the MTC. In Metro Manila again, it is doubled, the gross should be
more than P400,000. And again, this will automatically increase after 5 years from 1999.
[5] In all actions involving the contract of marriage and marital relations.
Most of these cases are under the Family Code.
Q: What are the possible actions which you can imagine involve the contract of marriage and marital
relations?
A: Annulment of marriage, legal separation, declaration of nullity, dissolution of the absolute community
of husband and wife, and action for support. These cases are the ones arising under the Family Code,
where it arises out of a marital relationship.
Take note that these cases are NO LONGER covered by the RTC because under RA 8369 (Family Courts
Act of 1997), these cases should now be tried by the FAMILY COURTS.
RA 8369, SECTION 5. Jurisdiction of Family Courts. The Family Courts shall have exclusive original
jurisdiction to hear and decide the following cases:
xxxxxx
d) Complaints for annulment of marriage, declaration of nullity of marriage and those relating to marital
status and property relations of husband and wife or those living together under different status and
agreements, and petitions for dissolution of conjugal partnership of gains;
xxxxxx
Now, in areas where there are no family courts, the cases shall be adjudicated by the RTC. So certain
branches of the RTC will act as family courts (acting family courts.
We shall skip first no. 6. We will return to that later. Lets go to no. 7.
[7] In all civil actions and special proceedings falling within the exclusive original jurisdiction of a
Juvenile and Domestic Relations Court and of the Court of Agrarian Relations as now provided by law;
Before BP 129, these were special courts existing before 1980. Among these courts were the so called
Juvenile and Domestic Relations Courts (JDRC). Then you have the Court of Agrarian Relations (CAR)
which tried the cases involving tenancy, agricultural lessor, agricultural lessee, agricultural lands. When
BP 129 was enacted, the CAR and the JDRCs were abolished. Cases which they used to handle were
automatically transferred to the RTC. That was after BP 129 took effect.
What were the cases which were usually falling within the original jurisdiction of the former JDRC?
Usually, those involving family and children, like support filed by the child against his father, compulsory
recognition, custody of children, adoption proceedings these are the cases which are usually heard by
the JDRC.
Under BP 129, all of these are now within the jurisdiction of RTC. HOWEVER, this has been amended
again by RA 8369 (Family Courts Act of 1997) These cases are now under the jurisdiction of the FAMILY
COURTS: (See Sections 5 [b], [c], [e], [g])
RA 8369, SECTION 5. Jurisdiction of Family Courts. The Family Courts shall have exclusive original
jurisdiction to hear and decide the following cases:
xxxx
b) Petitions for guardianship, custody of children, habeas corpus in relation to the latter;
c) Petitions for adoption of children and the revocation thereof;
xxxx
g) Petitions for declaration of status of children as abandoned, dependent
or neglected children, petitions for voluntary or involuntary commitment of children; the suspension,
termination, or restoration of parental authority and other cases cognizable under Presidential Decree
No. 603, Executive Order No. 56, (Series of 1986), and other related laws;
xxxxx
But the law transferring the jurisdiction of the CAR to the RTC became partially obsolete with the
enactment of the Comprehensive Agrarian Reform Law (CARL) or RA 6657 (June 15, 1988). Under the
CARL, all agrarian disputes between landlord and tenant, lessor and lessee were transferred to the DAR
particularly the DAR Adjudication Board (DARAB), making them quasi-judicial cases . So, from CAR to
RTC, from RTC to DARAB
So the RTC has NO jurisdiction, EXCEPT in the following 2 cases:
1.) Cases where the issue is PAYMENT OF JUST COMPENSATION, f or, the property which has been taken
under CARP law;
EXAMPLE: If you are a landowner and your agricultural land is placed under the CARP coverage, the
government will fix the payment for you. The trouble is that you did not lot agree on the amount of
payment. Agrabiyado ka sa compensation ng gobyerno. Now, you go to RTC and you ask for higher
compensation.
1.) Prosecution of criminal offenses for violation of the CARL;
So these are the only agrarian cases which still belongs to the RTC. This was explained by the SC in the
case of
 QUISMUNDO vs. COURT OF APPEALS
201 SCRA 609 [1991]
HELD: Wth the enactment of Executive Order No. 229, which took effect on August 29, 1987, the
Regional Trial Courts were divested of their general jurisdiction to try agrarian reform matters. The said
jurisdiction is now vested in the Department of Agrarian Reform. Said provisions thus delimit the
jurisdiction of the regional trial courts in agrarian cases only to two instances:
1.) petitions for the determination of just compensation to landowners; and
2.) prosecution of criminal offenses under said Act.
[8] In all cases in which the demand, exclusive of interest, damages of whatever kind, attorneys fees,
litigation expenses, and costs or the value of the property in controversy exceeds One Hundred
Thousand pesos (P100,000.00) [now P200,000] or, in such other cases in Metro Manila, where the
demand, exclusive of the above-mentioned items exceeds Two Hundred Thousand pesos
(P200,000.00)[now P400,000]
The best example is money claim. Most cases which go to court now are money claims an action to
collect sum of money.
Q: Unpaid loan you would like to collect an unpaid loan of your debtor. Where will you file your case?
A: It depends on how much are you collecting. If it is over P200,000 outside Metro Manila RTC, in
Metro Manila, double the amount P400,000. If the amount that you are collecting is only P200,000 or
less obviously, you file your case in the MTC.
If the value of the claim is > P200,000 RTC
If the value of the claim is = or < P200,000 MTC
So this is the same as number [3] and [4] where the jurisdiction of the MTC was raised from P20,000 to
P100,000. And under the present law, it is now P200,000. But again, this is subject to the automatic
increase in jurisdiction by 2004.
Q: Suppose the principal amount that you borrowed from me is P200,000, the interest is P30,000. And
you are collecting P10,000 for moral damages, another P10,000 for expense of litigation, etc. So my total
claim is P250,000. Where will I file the case?
A: MTC pa rin. In determining the jurisdictional limit of P200,000, do not include the interest, damages,
attorneys fees, etc. So you deduct those from the principal claim even if you put them in your complaint
because the law says, xxx exclusive of interest, damages of whatever kind, attorneys fees, litigation
expenses, and costs xxx.
Q: What are litigation expenses and costs?
A: Costs are not the same as attorneys fees and litigation expenses. Actually, attorneys fees and
litigation expenses are part of damages. Costs are governed by Rule 141, while attorneys fees and
litigation expenses are governed by the Civil Code. Because there is some confusion there, akala ang
costs and litigation expense, pareho. No, they are not the same.
ACTIONS PURELY FOR DAMAGES
SITUATION: Suppose the action is purely for damages, like breach of contract of carriage. Instead of
bringing you to your destination, you ended up in the hospital. You now sue the common carrier for
damages and your claim is P1 million for injuries, moral, exemplary, etc. Now, because the law says the
jurisdiction of the RTC is above P200,000 but do not include damages. The claim in this case is P1 million,
all for damages. Now, where will you file the case?
Somebody said it should be in the MTC because in determining the jurisdiction of the RTC, you do not
include damages. If that is the interpretation, I said, all damage suits cannot be tried by the RTC because
remember, you pay filing fee for these cases but the jurisdiction is limited to the MTC. That is absurd! I
do not believe that kung puro damages wala ng jurisdiction ang RTC. Otherwise, all damage suits should
be filed in the MTC.
This question has been clarified by SC Circular No. 09-94: Guidelines in the Implementation of RA 7691
Extending the Jurisdiction of the MTCs where the SC said that the provision excluding damages applies
only if the damages are INCIDENTAL to the action. If the main cause of action is 100% damages, you
include it in determining tire P200,000 jurisdictional limit of the MTC.
EXAMPLE: Ms. Pastor rode on a PAL fight. The plane crashed but she survived. She claims for damages
for breach of contract of carriage amounting to P1 million.
Q: Where will she file her case?
A: RTC because the amount of the claim for damages exceeded P200,000. Since the case is purely for
damages, it is included in determining the jurisdiction of the court.
The rule is, you only exclude the damages if it is a secondary claim. But if damages is the primary or only
claim, you determine whether the total claim for damages is above P200,000, or equal to or less than
P200,000. Yaaann!
The SC said in this Circular, the exclusive damages of whatever kind in determining the jurisdiction
under Section 19 paragraph [8] applies to cases where the damages are merely incidental to or a
consequence of the main cause of action. However, if the claim for damages is the main cause of action,
the amount of such claim should be considered in determining the jurisdiction.
EXAMPLE: Inay will file a case against Janis to recover a piece of land worth P20,000.00 only. But her
claim for damages exceeds P300,000. So, you will notice ang claim for damages is incidental lang. Ang
main action is to recover a piece of land.
Q: In what court will Inay file a civil case where she wants to recover a piece of land with value of only
P20,000?
A: MTC because of paragraph [2]. But ang damages naman is P300,000? MTC pa rin iyan because such
damages, being incidental, is not included in determining the jurisdiction of the RTC.
However, if my actions against you is purely damages, like I will file a case against you for damages
arising from vehicular collision and I will claim P300,000 for damages, it should be in the RTC. That is the
explanation. The term excluding damages applies only if the damages are purely incidental to the case.
But if the action is purely damages, then you observe the P200,000 jurisdictional limit.
Now, the law says, exclusive of interest, damages of whatever kind, attorneys fees, litigation expenses,
and costs or THE VALUE OF THE PROPERTY IN CONTROVERSY exceeds P200,000.
Q: What is the property in controversy?
A: Obviously here, the property is PERSONAL PROPERTY not real. If the property sought to be recovered
is real, apply paragraph [2] of Section 19 on recovery of real property.
Q: In the subject of Sales, the unpaid seller would like to rescind the sale and get back the unit. Where
will the unpaid seller file the case?
A: If above P200,000 sa RTC ka. It if is only P200,000 or less, sa MTC. So this is an example of the value
of the [personal] property in controversy.
Q: (By a classmate, Review class) Who shall determine the value or how should the value be determined?
A: You will learn the answer when we reach Rule 16 on Motion to Dismiss. In determining the jurisdiction
of the court, in the meantime, which will prevail? You will learn later that the allegations of the
complaint will prevail.
Like for example, I will file a case against you for an unpaid loan of P250,000. Then you say in your
motion to dismiss, No! ang utang ko sa iyo is not P150,000, but only P80,000. Therefore, the RTC has no
jurisdiction. So there is now a conflict with what Im saying and with what you are saying.
With that, we will discuss the conflict later. Now, we do not know who is telling the truth. For the
moment, the rule is, you follow the plaintiff because jurisdiction is determined by the allegations of the
complaint. It is the complaint which will determined whether the court has jurisdiction over the subject
matter. It is not based on what the defendant is saying. That is the answer there.
Let us go to some interesting cases on this provision.
ORTIGAS AND CO., LTD PARTNERSHIP vs. HERRERA
120 SCRA 89 [1983]
FACTS: A entered into an agreement with B where A deposited the sum of P50,000 with
B. After certain conditions are complied B has to return the amount to A. According to A the
conditions are already complied with but B still refuses to return the money. So A filed a complaint which
he denominated as sum of money and since he is only asking for the return of P50,000, A filed the case in
the MTC.
ISSUE #1: Whether or note the MTC has jurisdiction over the case.
HELD: The MTC has NO jurisdiction. It should be filed in the RTC. It is not an action to collect a loan. You
are not recovering a loan. You are compelling him to comply with the agreement to return the money
after certain condition are complied with, di ba? You are trying to enforce your agreement. therefore
your action is an action for SPECIFIC PERFORMANCE which should be tried by the RTC under paragraph
[1].
When a party to a contract has agreed to refund to the other party a sum of money upon compliance by
the latter of certain conditions and only upon compliance therewith may what is legally due him under
the written contract be demanded, the action is one not capable of pecuniary estimation. So it is
cognizable by the RTC.
ISSUE #2: But according to the plaintiff, when he filed the complaint, it is entitled for sum of money
which should fall under paragraph [8]. Is the plaintiff correct?
HELD: NO. The plaintiff is wrong. The title of the action is not determinative of the court. Just like the rule
on contracts where the nature of the contract is not determined by the title but by stipulation.
The factual allegations in the complaint seeking for the performance of an obligation of
a written contract which is a matter clearly incapable of pecuniary estimation prevail over the
designation of the complaint as one for the sum of money and damages.
[6] In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising
judicial or quasi-judicial functions
Practically, this makes the RTC the universal catcher what does not belong to anyone of you, belongs to
me. Thats what this provision is saying.
EXAMPLE: An employee, Inday Locsin, files a case against the employer, Kenneth Lim, to claim non-
payment of wages, overtime pay, ECOLA and reinstatement for illegal termination. Under the Labor
Code, dapat sa NLRC. So it does not belong to RTC but if there is no vesting to NLRC, then it goes to the
RTC.
A case which does not belong to any other court. Lets try to connect it with something you know. Q: If
you want to file an action for annulment of judgment of RTC, where will you file your action?
A: CA only an exclusive original jurisdiction of the action for annulment of the judgment of the RTC.
Q: Suppose Karen will file an action for annulment of judgment of the MTC. Does it belong to the CA?
A: NO! What the law says is: annulment of judgment of RTC, and not MTC. How about Supreme
Court? Lalong wala. Saan ka pupunta? There is really no provision in BP 129 which goes that way. I
dont think you can go to NLRC.
Wala kang mapuntahan, saan ka tatakbo? Sa RTC because it does not belong to the jurisdiction of any
other court. It should fall under paragraph [6] That is why, this, there are problems reaching the SC on
jurisdiction whether a case belongs to this, to the regular court or to a special quasi-judicial body. And
we are going to go over some of these cases.
SANDOVAL vs. CANEBA
190 SCRA 77 [1990]
FACTS: The quarrel in this case involves the owner of the subdivision and the buyer. Later on, the buyer
refused to pay the unpaid installments. The subdivision developer filed a case for the collection of unpaid
installments over the subdivision lots. Now, if you look at the law, parang money claims sa RTC or MTC.
HELD: The regular courts have no jurisdiction. That should be decided by the Housing and Land Use
Regulatory Board (HLURB) formerly known as NHA. Under PD 957, it is the HLURB not the RTC or MTC
which has the jurisdiction to hear a case involving non- payment of installments over subdivision lots.
The counterpart of this case was the case of
CT TORRES ENTERPRISES, INC. vs. HIBIONADA
191 SCRA 268 [1990]
FACTS: This is also the case between the buyers of a subdivision lot against the subdivision developer.
Only this time baliktad it is the subdivision lot buyers who are suing the developer of the subdivision.
The subdivision lot owners filed against the subdivision developer for not maintaining properly the roads
of the subdivision. So they filed a case for specific performance with damages to compel the developer
to comply with the contract to maintain the roads.
HELD: The jurisdiction is with the HLURB and not with the regular courts. But according to the plaintiff
But Im also claiming for damages so that it should be filed before the regular courts. How can the
HLURB award damages? Only the regular courts can award the damages. Can the HLURB award
damages? According to the SC:
The argument that only courts of justice can adjudicate claims resoluble under the provisions of the Civil
Code is out of step with the fast-changing times. There are hundreds of administrative bodies now
performing this function by virtue of a valid authorization from the legislature. This quasi-judicial
function, as it is called, is exercised by them as an incident of the principal power entrusted to them of
regulating certain activities falling under their particular expertise.
So quasi-judicial bodies are now authorized to award damages.
As a matter of fact in Labor Relations, the question is asked whether the NLRC is authorized to grant
damages also to an employee, moral and exemplary, which normally is only awarded by courts. The
Labor Code says yes. In other words, even damages now can be awarded by administrative bodies such
as NLRC.
FAJARDO vs. BAUTISTA
232 SCRA 291 [1994]
FACTS: Isabelo and Marita Jareno and the owners and developers of a subdivision. Fajardo and others, as
buyers, signed separate contracts each designated a contract to sell under which for consideration
therein stated, the Jarenos bound themselves to sell to Fajardo et al the of subject thereof, and after the
latter shall have paid the purchase price and interest shall execute in favor of Fajardo et al the
corresponding deeds of sale.
When these contracts to sell are still ongoing the Jarenos sold these lots to other buyers and the title was
transferred to the second buyer. So when Fajardo et al learned about it, they filed separate complaints
with the RTC for annulment of the sale to the other buyers.
Now, according to Fajardo, the jurisdiction of the case belongs to the RTC and not with the HLURB
because the title of the lots are transferred to the other buyers. It is no longer under the name of Jareno.
Secondly, their action is for the annulment of title to a third person. Thirdly, these third persons are not
the developers; fourthly, under the Judiciary Law, actions involving title to a real property are to be tried
by the RTC.
HELD: The RTC still has NO jurisdiction because the case involved unsound real estate business practice
on the part of the subdivision owners and developers. Under the law, unsound real estate business
practice is under the HLURB. The practice in the case is not a sound real estate business I am a
developer, I enter into a contract with you and then later on I sold the contract to a third person, that is
unsound!
By virtue of P.D. 1344, the HLURB has the exclusive jurisdiction to hear and decide the matter. In
addition to involving unsound real estate business practices, the complaints also involve specific
performance of the contractual and statutory obligations of the owners or developers of the
subdivision. So it is still with the HLURB and not with the regular courts.
BENGUET CORPORATION vs. LEVISTE
204 SCRA 99 [1991]
FACTS: A mining company entered into a operations agreement for management with another mining
company. Then later on, one wants to file a case for rescission of the agreement for one reason or
another. So it was filed with the RTC.
HELD: The RTC has NO jurisdiction again because PD 1281 vested with the Bureau of Mines with
jurisdictional supervision and control over all issues on mining claims and that the Bureau of Mines shall
have the original exclusive jurisdiction to hear and decide cases involving the cancellation and
enforcement of mining contracts.
The trend is to make the adjudication of mining cases a purely administrative matter. Another case is the
case of
MACHETE vs. COURT OF APPEALS
250 SCRA 176 [1995]
FACTS: This case involves the collection by the landowner of unpaid back rentals from his leasehold
tenants. The landowner filed the money claims before the RTC.
HELD: The RTC has no jurisdiction over cases for collection of back rentals for the leasehold tenants. This
is an agrarian dispute which exclusively cognizable by the DARAB.
The failure of petitioners to pay back rentals pursuant to the leasehold contract with landowner is an
issue which is clearly beyond the legal competence of the trial court to resolve. The doctrine of primary
jurisdiction does not warrant a court to arrogate unto itself the authority to resolve a controversy the
jurisdiction over which is initially lodged with an administrative body of special competence.
Lets go to Professional Regulation Commission (PRC). That is the government body which administers all
government examination for professionals except members of the law profession. Sa medicine, CPA,
engineer, lahat andiyan sa kanila, including plumber and marine officers. Basta lahat ng merong
examination sa kanila yan except sa bar which is under the jurisdiction of the SC. Now, this is what
happened in the case of
LUPANGCO ET AL vs. COURT OF APPEALS
160 SCRA 848 [1988]
FACTS: Lupangco et al were BS Accounting graduates and reviewing to take the CPA exams in 1985.
There were some anomalies (leakages) in the 1985 CPA Board Examination. By next year, the PRC passed
a resolution prohibiting CPA examinees to attend review classes or conferences because of leakages.
They are prohibited from receiving any handouts, review materials or any tip from any school, college or
university. That was Resolution No. 105 of the PRC.
So petitioners Lupangco et al, all CPA reviewers filed an injunction suit against the PRC and to declare the
resolution unconstitutional. They filed it with the RTC. The PRC moved to dismiss alleging that the RTC
has no jurisdiction over the case because the one which has the jurisdiction is the CA exclusive
jurisdiction to review any decision, order, ruling or- resolution of any quasi-judicial body. And the PRC is a
quasi-judicial body. So their resolution can only be questioned before the CA and not with the RTC.
HELD: The PRC is WRONG because PRC is not only a quasi-judicial body; it is also a quasi-legislative body.
It also acts as legislative body by issuing rules and regulations.
Now, what kind of resolution is being questioned here? It is a resolution pursuant to it purely
administrative function. It is a measure to preserve the integrity of licensure examination. Therefore, it
does not belong to the CA. It is not the type of resolution contemplated by Section 9.
The authority of the CA to review all resolutions of all quasi-judicial bodies pursuant to the law does not
cover rules and regulations of general applicability issued by the administrative body to implement its
purely administrative policies and functions like Resolution No. 105 which was adopted by the PRC as a
measure to preserve the integrity of licensure examinations. So that is not the resolution reviewable by
the CA.
Now, under what provision under Section 19 can we justify the jurisdiction of the RTC in the case. The SC
said: It is under paragraph 1 where the case is incapable of pecuniary estimation or, it may fall under
paragraph 6 where the case is not within the exclusive jurisdiction by any court, tribunal or- body
exercising Judicial or quasi-judicial functions.
So, if it is not reviewable by the CA, in what court can you question the resolution? Definitely, not the CA,
definitely not the SC. I dont think its with the NLRC. So it will fall under the jurisdiction of the RTC. Or, it
can also fall under paragraph [1,] where the subject matter of the suit is not capable of pecuniary
estimation because what is the nature of the demands is to declare unconstitutional this resolution. So it
belongs to the jurisdiction of the RTC.
BERNARDO vs. CALTEX PHIL. INC.
216 SCRA 170 [1992]
FACTS: Under E.O. No. 172, when there is a dispute between an operator or dealer and an Oil company
regarding dealership agreement, the case shall be under the jurisdiction of the Energy Regulatory Board
(ERB). So any dispute regarding their relationship agreement except disputes arising out of the
relationship as debtor and creditor. So if the dispute arose out of the relationship as bebtor and creditor,
it should be filed with the RTC.
Now what happened here is that on December 5, 1990, Bernardo, a dealer of Caltex, ordered gasoline
from Caltex. So he ordered in the morning. At 6:00 at night on the same day, there was a price increase.
So when the gasoline was delivered the following day, Caltex charged Bernardo for the increased price.
Bernardo refused to pay and he he filed a case before the RTC. Caltex argued that the case should be
filed with the ERB.
HELD: The RTC has jurisdiction because a contract of sale of petroleum products was here perfected
between Caltex and its operator/dealer Bernardo; that in virtue of the payment admittedly made by
Bernardo, Caltex became a debtor to him in the sense that it was obligated to make delivery to
Bernardo of the petroleum products ordered by him; and that the only issue is the manner by which
Caltex shall perform its commitment in Bernardos favor. It is rather one cognizable by the Regional Trial
Court, as a dispute indeed arising out of their relationship as debtor and creditor.
What the controversy is all about, to repeat, is simply the prices at which the petroleum
products shall be deemed to have been purchased from Caltex by Bernardo in December 5, 1990. This is
obviously a civil law question, one determinable according to the provisions of the Civil Code and hence,
beyond the cognizance of the Energy Regulatory Board.
CONCURRENT ORIGINAL JURISDICTION OF THE RTC
Sec. 21. Original jurisdiction in other cases. - Regional Trial Courts shall exercise original jurisdiction:
[1] In the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus, and
injunction which may be enforced in any part of their respective regions;
Q: What is the difference between the original jurisdiction of the RTC in Section 21 and the original
jurisdiction of the RTC in Section 19?
A: In Section 19, you have the EXCLUSIVE original jurisdiction, whereas in Section 21 you have the
original jurisdiction but CONCURRENT with other courts.
Thus original jurisdiction stated in Section 21 is also shared with the SC and CA. Therefore , the SC, CA,
and RTC have original concurrent jurisdiction under Section 21. Like issuance of writs of certiorari,
prohibition, mandamus, quo warranto, habeas corpus, etc. This is concurrent with the CA and the SC.
Such writs may be issued by (a) the RTC under Section 19; (b) CA under Section 9; and (c) SC under Article
VIII Section 5 of the Constitution. The 3 courts share concurrent jurisdiction over these cases.
However the only difference is that writs issued by an RTC can only be enforced in the same region
where the RTC belongs. Unlike writs issued by the SC and CA, they can be enforced anywhere in the
Philippines.
[2] In actions affecting ambassadors and other public ministers and consuls.
The SC and RTC have original concurrent jurisdiction in actions affecting ambassadors, other public
ministers and consuls. Section 21 paragraph 2 states only of the concurrent original jurisdiction of the SC
and RTC. Section 19 on the jurisdiction of CA does not include the action stated in section 21 paragraph 2
as part of its (CAs) jurisdiction.
APPELLATE JURISDICTION OF THE RTC
Sec. 22. Appellate jurisdiction. - Regional Trial Courts shall exercise appellate jurisdiction over all cases
decided by MetTCs, MTCs and MCTCs in their respective territorial jurisdictions. Such cases shall be
decided on the basis of the entire record of the proceedings had in the court of origin and such
memoranda and/or briefs as may be submitted by the parties or required by the RTCs. The decision of
the RTCs in such cases shall be appealable by petition for review to the CA which may give it due course
only when the petition show prima facie that the lower court has committed an error of fact or law
that will warrant a reversal or modification of the decision or judgment sought to be reviewed.
Now take note that the RTC also has appellate jurisdiction under Section 22. These are cases decided by
the MTC. So they act as a sort of court of appeals. The RTC exercises appellate jurisdiction over all cases
decided by the MTC in their respective territorial jurisdiction.
Q: How will the RTC decide on the appeal?
A: It shall be decided on the basis of the entire record of the proceedings had in the court of origin (MTC)
such as memoranda and/or briefs as may be submitted. This means that witnesses will not be made to
appear again in the appeal. It is only a matter of reviewing the testimony, stenographic notes, evidence
presented, memoranda and briefs by the RTC judge.
Q: What are memoranda and briefs?
A: It is where the appealing party will argue that the decision is wrong and try to convince the judge that
the decision is wrong, and the other party to counter act that the decision is correct.
Q: Assuming that the case is originated in the MTC and subsequently dismissed by the RTC on appeal, is
the decision by the RTC rendered pursuant to its appellate jurisdiction appealable to the CA?
A: YES, but the mode of appeal is now different. The decision of the RTC in such cases shall be appealable
by petition to review to the CA. The CA may or may not give it due course.
Q: What is the difference between an appeal made from the RTC to CA and appeal from the MTC to RTC,
which is dismissed the same and subsequently appealed to the CA?
A: The former (RTC CA) is in pursuance to the original jurisdiction of the RTC. The latter (MTC- RTC-CA)
is in pursuance to the appellate jurisdiction of the RTC. (They are governed by different rules)
To illustrate:
Unlike in a case under the original jurisdiction of the RTC, where an appeal to the CA is a matter of
course. Meaning, for as long as your appeal is on time and properly made, the CA will entertain it.
It is different, however, in a case under the appellate jurisdiction of the RTC, even if your appeal is on
time and properly made, there is no assurance that the CA will entertain the appeal. The CA may give it
due course only when your petition for review shows prima facie evidence that the lower court has
committed as error of fact or law that will warrant a reversal or modification of the decision or judgment
sought to be reviewed.
Now, statistically for the past 20 years, the rate of petitions for review from the RTC which are given due
course is only 15%-17%. For every 100 petitions for review, 15 are given due course, 85 are thrown out.
They did not pass the test under Section 22. It is really a difficult process.
Summary of RTC jurisdiction:
1.) As to the EXCLUSIVE original jurisdiction Section 19 (BP 129); 2.) As to its original CONCURRENT
jurisdiction Section 21 (BP 129); 3.) As to its APPELLATE jurisdiction Section 22 (BP 129)
JURISDICTION OF THE MUNICIPAL TRIAL COURTS
Actually, when you know the jurisdiction of the RTC, automatically you know the jurisdiction of the MTC.
In criminal cases for example, sa RTC, imprisonment of more than 6 years until death penalty. So,
necessarily 6 years or below, sa MTC. Same with civil cases.
Summary of jurisdiction of MTC:
A.) As to original jurisdiction Section 33
B.) As to delegated jurisdiction Section 34
C.) As to special jurisdiction Section 35
A.) EXCLUSIVE ORIGINAL JURISDICTION OF THE MTC
Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial
Courts in civil cases. - Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial
Courts shall exercise:
1) Exclusive original jurisdiction over civil actions and probate proceedings, testate and
intestate, including the grant of provisional remedies in proper cases, where the value of the personal
property, estate, or amount of the demand does not exceed Two hundred thousand pesos
(P200,000.00) or, in Metro Manila where such personal property, estate, or amount of the demand
does not exceed four hundred thousand pesos (P400,000.00), exclusive of interest, damages of
whatever kind, attorney's fees, litigation expenses, and costs, the amount of which must be specifically
alleged: Provided, That interest, damages of whatever kind, attorney's fees, litigation expenses, and
costs shall be included in the determination of the filing fees: Provided further, That where there are
several claims or causes of actions between the same or different parties, embodied in the same
complaint, the amount of the demand shall be the totality of the claims in all the causes of action,
irrespective of whether the causes of action arose out of the same or different transactions.
Well if you know the jurisdiction of the RTC on money claims and probate cases, automatically you will
also know that of the MTC. Under the law, it is only the principal claim or the main claim which is
computed. Interest, damages of whatever kind, attorneys fees, litigation expenses and cost are not
included in determining the jurisdiction.
Even if the amount of damages and attorneys fees do not determine jurisdiction, they must still be
specifically alleged in the complaint for the purpose of payment of docket fees. Thus, the higher the
amount one is claiming the higher the filing fee.
So with that , we will now go to decided cases involving docket fees.
JURISPRUDENCE ON THE FILING FEE IN CIVIL CASES:
Rule 111, the filing of criminal action, the civil aspect is deemed instituted. If it claims for moral and
exemplary damages, the filing fees should be paid immediately. If not stated, then it will be a lien in the
judgment. Compensatory damages are exempt from the filing of the fee.
Technically, a complaint in a civil case is not considered as filed unless you pay the complete amount of
the docket fee. Even if a complaint is filed, say, on December 1 and the payment is made only on the
December 4, the complaint is deemed officially filed on the December 4 when the payment of the whole
amount is effected.
This is so material for the purpose of prescription. Suppose today December 1 is the last day for the filing
of the complaint and the whole amount is not fully paid. ON December 2, the action is prescribed
already. Thus, the court acquires no jurisdiction over the case until the filing of the fee for the whole
amount is made.
In the case of
MANCHESTER DEVELOPMENT CORP. vs. CA
149 SCRA 562
FACTS: The plaintiff files a complaint and paid the docket fee but he did not specify the amount of the
damages he was claiming. He contended that he is claiming for moral damages in such amount as the
court will grant. Respondent contended, on the other hand, that it cannot be done, there is a necessity
to state the exact amount of the damages in order to determine the correct amount of the docket fee.
So the plaintiff amended the complaint and paid the balance of the docket fees.
ISSUE: Whether or not the subsequent amendment cures the defect?
HELD: No, the defect is incurable. Thus, the action has to be dismissed. The court acquires no jurisdiction
over the case. The remedy is to re-file the complaint and pay again the complete amount of the docket
fee. The prior payment made is forfeited in as much as the defect in the first complaint is incurable.
So based on the MANCHESTER ruling, you cannot cure the defect by merely amending the complaints.
The moment the case is filed, the court acquires jurisdiction. You cannot by yourself confer jurisdiction.
Very harsh noh? However, the SC, after reflecting on what it said in the case of MANCHESTER, realized
the harshness of their decision. This Manchester ruling was relaxed in the subsequent case of SUN
INSURANCE OFFICE which now the governing law:
SUN INSURANCE OFFICE LTD. vs. COURT OF APPEALS
170 SCRA 274 [1989]
HELD: Thus, the Court rules as follows:
1. It is not simply the filing of the complaint or appropriate initiatory pleading, but the payment
of the prescribed docket fee, that vests a trial court with jurisdiction over the subject matter or nature of
the action. Where the filing of the initiatory pleading is not accompanied by payment of the docket fee,
the court may allow payment of the fee within a reasonable time but in no case beyond the applicable
prescriptive or reglementary period.
2. The same rule applies to permissive counterclaims, third party claims and similar pleadings,
which shall not be considered filed until and unless the filing fee prescribed therefore is paid. The court
may also allow payment of said fee within a reasonable time but also in no case beyond its applicable
prescriptive or reglementary period.
3. Where the trial court acquires jurisdiction over a claim by the filing of the appropriate
pleading and payment of the prescribed filing fee but, subsequently, the judgment awards a claim not
specified in the pleading, or if specified the same has been left for determination by the court, the
additional filing fee therefor shall constitute a lien on the judgment. It shall be the responsibility of the
Clerk of Court or his duly authorized deputy to enforce said lien and assess and collect the additional fee.
For example, I make a partial payment of the docket fee because of inadequacy of money. Under the
SUN INSURANCE ruling, kung kulang ang bayad, huwag namang i-dismiss ang kaso! Give the party a
reasonable time to pay the balance. When the filing of the initiatory (complaint) pleading is not
accompanied by the payment of the docket fees, the court may allow the payment of the fee within a
reasonable time but in no case beyond the prescriptive period. Meaning, if by the time you paid the
balance, nag prescribe na ang cause of action, ah wala na! So, provided that the action has not
prescribed.
The same rule applies to permissive counterclaims. So this answers the question:
Q: Is the defendant obliged to pay the docket fee?
A: It DEPENDS: if the counterclaim is permissive, dapat magbayad ka. If the counterclaim is compulsory,
libre yan!
And the third rule laid down in Sun Insurance: if the judgment awards a claim not specified in the
pleadings, the filing fee therefor shall be a lien in the judgment. It shall be the responsibility of the clerk
of Court or his duly-authorized deputy to enforce the lien, assess and collect the additional fee.
Q: When can this possibly happen?
A: That can happen for example if I ask for damages. A man was hospitalized because of physical injuries.
Nag file siya ng kaso. Sabi ng court, may damages ito. So the court acknowledged the claim of P300,000.
But after the case is filed, di pa rin siya nakabayad sa hospital. After filing, marami pang gastos! So in
other words he might ask from the court another P 50,000.
Q: Can the court award the P 50,000?
A: Yes, because the additional expenses came only after the filing of the case. The additional expenses
occurred only after filing the case. So nagkulang ngayon ang docket fee. Bayaran mo, dont dismiss the
case!
The Sun Insurance is a leading case on docket fee. It was followed with a third case in December 1989
which further clarified the SUN INSURANCE ruling. This is the case of
TACAY vs. RTC OF TAGUM, DAVAO DEL NORTE
180 SCRA 433 [1989]
NOTE: When this case was filed, wala pa yong INSURANCE. The guiding rule was still
MANCHESTER. But while this was pending lumabas na yong SUN INSURANCE.
FACTS: The case was for recovery of land with damages (accion publiciana). So it is not purely for
damages. So how will you assess the filling fees? Based on the value of the land, binayaran ng plaintiff
ang docket fee. Defendant moved to dismiss based on MANCHESTER because the plaintiff did not specify
in the complaint how much damages he was claiming. Now the RTC of Tagum denies the motion to
dismiss. The defendant goes to the SC citing MANCHESTER.
Of course sabi ng SC wala na ang Manchester because of Sun Insurance. But here is another rule:
HELD: Dalawa ang filing fee: the assessed value of the land and for the damages. There are two (2)
options here: (1.) Kung nabayaran ang docket fee for the recovery of land pero wala ang para sa
damages, do not dismiss the entire case! That is crazy if you will dismiss the entire case kasi nagbayad
man siya ng docket fee for the recovery of the land. Just do not consider the claim for the damages. Or,
(2.) second option, citing SUN INSURANCE, give him reasonable time to pay the balance. So that's the
case of TACAY.
Where the action involves real property and a related claim for damages as well, the legal fees shall be
assessed on the basis of both (a) the value of the property and (b) the total amount of related damages
sought. The court acquires jurisdiction over the action if the filing of the initiatory pleading is
accompanied by the payment of the requisite fees, or, if the fees are not paid at the time of the filing of
the pleading, as of the time of full payment of the fees within such reasonable time as the court may
grant, unless, of course, prescription has set in the meantime.
Now, there are other interesting cases on the issue on docket fees.
FILIPINAS SHELL PETROLEUM CORP. vs. COURT OF APPEALS
171 SCRA 674 [1989]
FACTS: Adrian dela Paz sued all oil companies (Shell, Caltex, Mobil, etc.) of the Philippines for
infringement of patent with prayer for the payment of reasonable compensation for damages. According
to him, these companies used in their operation a certain type of machine which he claimed he invented.
His patent was infringed. Thus, all these companies are all liable to him for royalties. The estimated
yearly royalty due him is P236,572. Since the violation has been for many years already, his claims
reached millions. The trial court ordered him to pay P945,636.90 as docket fee. He had no money so he
questioned it. So sabi rig court: We will allow you to file the case and the docket fee is deductible from
whatever judgment of damages shall be awarded by the court. So, parang file now pay later.
HELD: There is no such thing as file now pay later. No justification can be found to convert such payment
to something akin to a contingent fee which would depend on the result of the case. Hindi pwede sa
gobyerno yan! Example is kung matalo ka sa kaso the case is dismissed. Tabla ang gobyerno? So, di
pwede yan!
Filing fees are intended to take care of court expenses in the handling of cases in terms
of cost of supplies, use of equipments, salaries and fringe benefits of personnel, etc., computed as to
man hours used in handling of each case. The payment of said fees therefore, cannot be made
dependent on the result of the action taken, without entailing tremendous losses to the government and
to the judiciary in particular.
Alam ninyo, ang dapat sana n'yang ginawa, nag file sya ng motion to allow him to litigate as a pauper. In
legal ethics, pwede yan sa abogado yung contingent fee: Attorney, will you handle my case? Wala
akong pera. I will offer a contingent fee. Okay, Ill handle your case. Pag-talo, wala kang utang. Pag
panalo, kalahati sa akin. Yan! Pwede yan. Pero sa gobyerno, wala yan because usually the judiciary gets
its budget from the filing fees.
LACSON vs. REYES
182 SCRA 729
FACTS: There was a case filed and then the lawyer filed a motion to direct the plaintiff to pay him his
attorneys fees a motion for payment of attorneys fees. So sabi ng court: Attorney, magbayad ka ng
docket fee. Bakit? Motion nga lang yan, may docket fee pa? Grabeeh!
HELD: No, bayad ka uli. It may be true that the claim for attorney's fees was but an incident in the main
case, still, it is not an escape valve from the payment of docket fees because as in all actions, whether
separate or as an offshoot of a pending proceeding, the payment of docket fees is mandatory. The
docket fee should be paid before the court would validly act on the motion.
SUSON vs. COURT OF APPEALS
278 SCRA 284 [August 21, 1997)
FACTS: Mortz filed a case against Charles in Leyte. After filing, the court dismissed the case because it
should be filed in Cebu. Mortz wrote a letter to the Office of the Court Administrator (OCA) asking that
the docket fee paid in Leyte be considered applicable to Cebu. OCA granted his request.
Charles questioned it because of the rule that the payment of docket fee is jurisdictional.
HELD: The OCA has neither the power nor the authority to exempt any party not otherwise exempt
under the law or under the Rules of Court in the payment of the prescribed docket fees. It may be
noteworthy to mention here that even in the Supreme Court, there are numerous instances when a
litigant has had to re-file a petition previously dismissed by the Court due to a technicality (violation of a
pertinent Circular), and in these instances, the litigant is required to pay the prescribed docket fee and
not apply to the re- filed case the docket fees paid in the earlier dismissed case.
In the case at bar, in the strict sense, Mortzs complaint cannot be deemed to have been re-filed in
Cebu City because it was not originally filed in the same court but in the RTC Leyte. Thus, when Mortzs
complaint was docketed by the clerk of court of the RTC Cebu City, it became an entirely separate case
from that was dismissed by the RTC of Leyte due to improper venue. As far as the case in Cebu is
concerned, while undoubtedly the order of dismissal is not an adjudication on the merits of the case, the
order, nevertheless, is a final order. This means that when private respondent did not appeal therefrom,
the order became final and executory for all legal intents and purposes.
DE LEON vs. COURT OF APPEALS
287 SCRA 94 [March 6, 1998]
FACTS: The question for decision is whether in assessing the docket fees to be paid for the filing of an
action for annulment or rescission of a contract of sale, the value of the real property, subject matter of
the contract, should be used as basis, or whether the action should be considered as one which is not
capable of pecuniary estimation and therefore the fee charged should be a flat rate of P400.00 as
provided in Rule 141, Section 7(b)(1) of the Rules of Court.
Polgas argued that an action for annulment or rescission of a contract of sale of real property is a real
action and, therefore, the amount of the docket fees to be paid by Dagul should be based either on the
assessed value of the property, subject matter of the action, or its estimated value as alleged in the
complaint.
Since Dagul alleged that the land, in which they claimed an interest as heirs, had been sold for
P4,378,000.00 to Polgas, this amount should be considered the estimated value of the land for the
purpose of determining the docket fees.
Dagul countered that an action for annulment or rescission of a contract of sale of real property is
incapable of pecuniary estimation and, so, the docket fees should be the fixed amount of P400.00 in Rule
141, Section 7(b).
HELD: Dagul is correct. In determining whether an action is one the subject matter of which is not
capable of pecuniary estimation, this Court has adopted the criterion of first ascertaining the nature of
the principal action or remedy sought. If it is primarily for the recovery of a sum of money, the claim is
considered capable of pecuniary estimation, and whether jurisdiction is in the municipal courts or in the
courts of first instance would depend on the amount of the claim.
However, where the basic issue is something other than the right to recover a sum of
money, or where the money claim is purely incidental to, or a consequence of, the principal relief sought,
like in suits to have the defendant perform his part of the contract (specific performance) and in actions
for support, or for annulment of a judgment or to foreclose a mortgage, this Court has considered such
actions as cases where the subject of the litigation may not be estimated in terms of money, and are
cognizable exclusively by courts of first instance.
The rationale of the rule is plainly that the second class cases, besides the determination of damages,
demand an inquiry into other factors which the law has deemed to be more within the competence of
courts of first instance, which were the lowest courts of record at the time that the first organic laws of
the Judiciary were enacted allocating jurisdiction.
Actions for specific performance of contracts have been expressly pronounced to be
exclusively cognizable by courts of first instance and no cogent reason appears, and none is here
advanced by the parties, why an action for rescission (or resolution) should be differently treated, a
"rescission" being a counterpart, so to speak, of specific performance.
In both cases, the court would certainly have to undertake an investigation into facts that would justify
one act or the other. No award for damages may be had in an action for rescission without first
conducting an inquiry into matters which would justify the setting aside of a contract. Issues of the same
nature may be raised by a party against whom an action for rescission has been brought, or by the
plaintiff himself.
It is, therefore, difficult to see why a prayer for damages in an action for rescission should be taken as
the basis for concluding such action as one capable of pecuniary estimation a prayer which must be
included in the main action if plaintiff is to be compensated for what he may have suffered as a result of
the breach committed by defendant, and not later on precluded from recovering damages by the rule
against splitting a cause of action and discouraging multiplicity of suits.
Thus, although eventually the result may be the recovery of land, it is the nature of the action as one for
rescission of contract which is controlling.
Since the action of Polgas against Dagul is solely for annulment or rescission which is not susceptible of
pecuniary estimation, the action should not be confused and equated with the value of the property
subject of the transaction; that by the very nature of the case, the allegations, and specific prayer in the
complaint, sans any prayer for recovery of money and/or value of the transaction, or for actual or
compensatory damages, the assessment and collection of the legal fees should not be intertwined with
the merits of the case and/or what may be its end result.
TOTALITY RULE
Now, continuing with Section 33, it says there in paragraph [1]:
Provided further, That where there are several claims or causes of actions between the same or
different parties, embodied in the same complaint, the amount of the demand shall be the totality of
the claims in all the causes of action, irrespective of whether the causes of action arose out of the same
or different transactions.
What do you call that rule? The TOTALITY RULE.
ILLUSTRATION: Joinder of causes of action. The defendant secured from me two or more loans. Lets say,
apat na utang covered by four (4) promissory notes and all of them are due and he has not paid me any.
Let's say each note covers a principal amount of P75,000. Now, I decided to file one complaint
embodying my four causes of action against him although I have the option also to file four separate
complaints. If you will look at the value of each claim which is P75,000 that is triable by the MTC. But if
you will add the four claims that will be P300,000.00.
Q: Which will prevail? The amount of each of the claim or the total?
A: The total amount will prevail. So it should be filed in the RTC. That is the totality rule.
Never mind that there are four (4) separate loans because the law says irrespective of whatever the
cause of action arose out of the same or different transactions. Now in that example, there is only one
plaintiff and one defendant. The plaintiff has four claims against the same defendant. Now suppose
there are 4 plaintiffs suing the same defendant in what is called in procedure as joinder of causes of
action and joinder of parties.
EXAMPLE: There are four (4) passengers riding on a public vehicle. They were all injured when the bus
met an accident and all of them were hospitalized. So after they were discharged, the four of them
wanted to sue the bus company for damages arising from contract of carriage or culpa contractual. Since
they hired the same lawyer, the lawyer said, Why will I file 4 complaints? Isahin na lang. I will join
them. In effect, he joined 4 causes of action.
Q: The same question will arise. What will be now the basis of jurisdiction? The claim of every plaintiff or
the total claims of the 4 plaintiffs?
A: The total claims. You apply the totality rule because the law says where there are several claims or
cause of action between the same or different parties. So whether the parties are the same or the
parties are different embodied in the same complaint the amount of the demand shall be the totality of
the claims the totality rule applies in both situations.
We will now go to paragraph [2] of Section 33.
[2] Exclusive original jurisdiction over cases of forcible entry and unlawful detainer: Provided, That
when, in such cases, the defendant raises the question of ownership in his pleadings and the question
of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall
be resolved only to determine the issue of possession. x x x x
This is related to the Law on Property FORCIBLE ENTRY (recovery of physical possession, e.g. squatting)
and UNLAWFUL DETAINER (e.g. you eject a lessee does not pay his rent.) MTC lahat iyan. The two cases
should not be confused with accion publiciana which is also the recovery of possession but that is a
better right. Now, in unlawful detainer, the plaintiff also prays not only to eject the defendant but also to
claim for back rentals or the reasonable amount of the use and occupation of the property in case of
forcible entry.
Q: Suppose the unpaid rentals already amount to almost half a million pesos so, unlawful detainer plus
back rentals of half a million. Where should the case be filed?
A: The case should still be filed with the MTC. What determines jurisdiction is the nature of the
action, and not the amount of recoverable rentals. Kahit na one (1) million pa yan, MTC pa rin yan.
Q: In an action for forcible entry or unlawful detainer, can the party present evidence of ownership? A:
The general rule is NO because the MTC cannot adjudicate ownership. That has to be threshed out in
the proper civil action in the RTC. But if evidence of ownership is presented in the forcible entry or
unlawful detainer case, it is only incidental and it is only resolved to determine the issue of
possession. But the declaration of ownership is not final that is only prima facie. The question of
ownership must be litigated in a separate action in the RTC.
Let us now proceed to the third paragraph of Section 33 as amended by R.A. 7691:
[3] Exclusive original jurisdiction in all civil actions which involve title to, or possession of, real property
or any interest therein where the assessed value of the property or interest therein does not exceed
Twenty thousand pesos (P20,000.00) or, in civil actions in Metro Manila, where such assessed value
does not exceed Fifty thousand pesos (P50,000.00) exclusive of interest, damages of whatever kind,
attorney's fees, litigation expenses and costs: Provided, That in cases of land not declared for tax
purposes, the value of such property shall be determined by the assessed value of the adjacent lots. (As
amended by RA 7691)
Aside from forcible entry and unlawful detainer, MTCs have now jurisdiction over other real actions like
accion publiciana and accion reinvidicatoria cases where the assessed value of the land should be
P20,000 or less. In Metro Manila, it is P50,000 or less. That is the amendment brought about by RA 7691
which expanded the jurisdiction of the MTC.
B.) DELEGATED JURISDICTION OF THE MTC
Sec. 34. Delegated Jurisdiction in Cadastral and Land Registration Cases. - MetTCs, MTCs and MCTCs
may be assigned by the Supreme Court to hear and determine cadastral or land registration cases
covering lots where there is no controversy or opposition, or contested lots where the value of which
does not exceed One hundred thousand pesos (P100,000.00), such value to be ascertained by the
affidavit of the claimant or by agreement of the respective claimants if there are more than one, or
from the corresponding tax declarations of the real property. Their decisions in these cases shall be
appealable in the same manner as decisions of the RTCs. (As amended by RA 7691)
Review: These are related to your study of Land, Titles and Deeds (The Property Registration Decree)
When you file a petition for land registration, the object is to have your property registered and fall
under the Torrens System of the Land Registration. Patituluhan ba! Now, what is the difference between
a land registration proceeding and a cadastral proceeding? Cadastral is compulsory registration.
Now do not confuse this P100,000 (Section 34) with the P20,000 under Section 33. Section 34 deals with
cadastral and land registration cases. Section 33 involves civil cases (accion publiciana, etc.)
C.) SPECIAL JURISDICTION OF MTC
Sec. 35. Special jurisdiction in certain cases. - In the absence of all the Regional Trial Judges in a province
or city, any Metropolitan Trial Judge, Municipal Trial Judge, Municipal Circuit Trial Judge may hear and
decide petitions for a writ of habeas corpus or applications for bail in criminal cases in the province or
city where the absent Regional Trial Judges sit.
This is what we call special jurisdiction. That only applies to two (2) types of cases: (1) Habeas corpus and
(2) hearing of petitions for bail.
Remember that habeas corpus is not within the jurisdiction of the MTC. It is with the RTC. Also, the
hearing on petition for bail, RTC yan because the offense may be a heinous one, but under the law on
criminal procedure you can file a petition for bail to have your temporary freedom while the case is going
on. Thats supposed to be in the RTC.
But suppose there is no available RTC judge, all of them are sick or all of them are attending a convention
(this actually happened in Davao in 1990) Section 35 provides that the MTC, in the absence of RTC
judges, can hear and decide on habeas corpus case petitions and applications or petitions for bail in
criminal cases. So acting pa rin yan because they are urgent and the liberty of a person is at stake.
That is allowed because of the urgency of the situation. There is no need for a SC authorization.
However, this is only allowed in the absence of the RTC judges. But if the RTC judge comes back, he has
to take over the petition.
So with that we are through with the jurisdiction of our courts. So we will now proceed to remedial law
proper.

Q: Now, what is this delegated jurisdiction all about?

A: It refers only to cadastral and land registration cases which involve the titling of property under the
Torrens system or cadastral land registration.

Under the Property Registration Decree, only the RTC has authority to entertain land registration and
cadastral cases. But now, Section 34 gives the Supreme Court the authority to DELEGATE MTCs to hear
and decide land registration and cadastral cases under the following conditions:
1.) when there is no controversy or nobody is contesting your petition; or
2.) even if the petition is contested where the value of the land to be titled does not exceed P100,000.

In which case, these MTCs can decide and their decisions are appealable directly to the CA. Para bang
acting RTC sila ba. Thats what it is called delegated jurisdiction. Delegate means it really has to be
assigned to you.
 CIVIL PROCEDURE PROPER
Laws are classified as either Remedial or Substantive Law. Remedial Law is also known as Adjective or
Procedural Law.
REMEDIAL LAW vs. SUBSTANTIVE LAW
Q: Distinguish Remedial law from Substantive law?
A: SUBSTANTIVE LAW is that branch of the law which creates, defines and regulates rights. (Bustos vs.
Lucero, 81 Phil. 640; Ballentines Law Dict., 2nd., pp. 66, 1023) Like the Civil Code, the rights of children,
husband and wife, creditor and debtor are all found there.
REMEDIAL LAW is that branch of law which prescribes the method of enforcing rights or obtaining
redress for their invasion. (Ibid) Example of Remedial Law is the Rules of Court.
So a right is useless unless you enforce it. And the manner of enforcing rights is now prescribed by
remedial law. Like in civil cases, my neighbor borrowed from me but until now, despite several demands,
he refused to pay. Under the law on Obligations and Contracts, I have the right to collect. But how do I
collect? Is it by writing a letter to the judge, Dear Judge? or Is it by calling him on the phone? I-text ko
kaya? Di puwede yan! There must be a procedure. That is where the Civil Code leaves you behind and
that is where the Rules of Court will take over. So the 2 laws go hand in hand. That is what the SC said in
the 1992 case of
DE DIOS vs. COURT OF APPEALS
212 SCRA 519 [1992] Cruz, J.
HELD: The 2 laws have a symbiotic relationship. They go hand in hand one supports the other. They are
not antagonistic towards each other.
Procedural rules are designed to insure the orderly and expeditious administration of justice by
providing for a practical system by which the parties to a litigation may be accorded a full and fair
opportunity to present their respective positions and refute each other's submissions under the
prescribed requirements, conditions and limitations. Adjective law is not the counterfoil of substantive
law. In fact, there is a symbiotic relationship between them. By complying faithfully with the Rules of
Court, the bench and the bar are better able to discuss, analyze and understand substantive rights and
duties and consequently to more effectively protect and enforce them.
ASPECTS OF REMEDIAL LAW
Q: Give the two (2) aspects of Remedial Law. A: There are 2 aspects of Remedial Law:
1.) PUBLIC ASPECT one which affords a remedy in favor of the State against the individual
(e.g. criminal procedure) or in favor of the individual against the State (e.g. habeas corpus) on the other
hand,
2.) PRIVATE ASPECT one which affords a remedy in favor of an individual against another individual, like
the rules on civil procedure. (Gamboas Introduction to Philippine Law, 6th Ed., pp. 97-99)
BRIEF HISTORY OF THE LAW ON CIVIL PROCEDURE IN THE PHILIPPINES
The origin of our law on procedure is American. Forget the law on procedure during the Spanish regime.
But the first known ancestor of the law on Civil Procedure was the old Act 190, otherwise known as the
Code of Civil Procedure, which was enacted on August 7, 1901 by the United States and Philippine
Commission.
And that was the law until 1940 because on July 01,1940 the SC enacted the Rules of Court which we
now call the Old Rules of Court. That continued for another 24 years until January 01, 1964 when the SC
enacted the Revised Rules of Court repealing the Old Rules of Court. And that continued for another 33
years until July 01,1997 where the SC enacted and which took effect on that day (July 01, 1997) the New
Rules on Civil Procedure.
SUMMARY:
1.) First Law August 07, 1901 Act 190 Code of Civil Procedure (40 years)
2.) Second Law July 01, 1940 Old Rules of Court (24 years)
3.) Third Law January 01, 1964 Revised Rules of Court (33 years)
4.) Fourth Law July 01, 1997 New Rules of Civil Procedure.
SOURCES OF THE 1997 RULES OF CIVIL PROCEDURE
Well of course the sources are almost the same as the prior law. The old Rules of Court is also a source.
Many provisions were taken from the 1964 Rules, substantive law like the Civil Code and jurisprudence.
And of course SC circulars. Many circulars are now incorporated under the new rule. So those are the
main sources.
SOURCES:
1.) Previous Rules of Court; 2.) Jurisprudence;
3.) New Civil Code; 4.) SC Circulars
RULE-MAKING POWER OF THE SUPREME COURT
The Rules of Court (1940, 1964, 1997) have all been enacted by tile SC. It is law, not enacted by Congress
but enacted by the SC.
Q: What is the authority of the SC to enact a law when actually the role of the judiciary is only to
interpret the law? Is this not a violation of the separation of powers?
A: The authority of the SC in enacting the prior rules and the present rules is what you call its rule-making
power which provision was found in the 1935, 1973 and 1987 Constitutions. Based on the present law,
the rule-making power of the SC is expressed in Article VIII, Section 5, paragraph [5] which is substantially
the same as the 1935 and 1973 Constitutions. Only everytime they amend the Constitution, it is getting
longer and longer.
Rut the pertinent portion which has not been changed is that the SC shall have the power to
promulgate rules on pleading, practice and procedure. That is the authority of the SC in enacting the
Rules of Court. But you should know also the limitations.
LIMITATIONS TO THE RULE-MAKING POWER OF THE SC
The Constitution has also placed limitations on these powers. As currently worded, one limitation
provided for by the Article is the rules of procedure to be enacted by the SC shall provide for a
simplified and inexpensive procedure for the speedy disposition of cases. The second one is: the rules
shall be uniform for all courts of the same grade. And the third is: the rules shall not diminish, increase
or modify substantive rights.
LIMITATIONS :
1. The Rules of Court shall provide a simplified and inexpensive procedure for the speedy
disposition of cases;
2. The Rules of Court shall be uniform for all courts of the same grade; and
3. The Rules of Court shall not diminish, modify or increase substantive rights.
NO, Rule 1 is the general provision for the entire Rules of Court. You look at the title, These rules shall
be known as the Rules of Court. This is the common denominator from the first to the last Rule. Thats
why it says there special proceedings, civil cases and criminal cases. Now we are not interested in
criminal cases of course. Civil action na larg tayo muna.
xxxxx
(a) A civil action is one by which a party sues another for the enforcement or protection of a
right, or the prevention or redress of a wrong.
A civil action may either be ordinary or special. Both are governed by the rules for ordinary civil actions,
subject to the specific rules prescribed for a special civil action.
xxxxx
Well the definition of a civil action is there. The definition now becomes shorter compared to the
previous definition. Its the same definition. It has only been shortened.

Substantive rights are created by substantive law so the Rules of Procedure should not increase, diminish
or modify them. In effect, the Rules of Court should not amend the substantive law. It can only interpret
substantive law but should not change it completely. Those are the limitations. With that we are now
ready to tackle the 1997 rules on civil procedure.
A CIVIL ACTION is one by which a party sues another for the enforcement or protection of a right, or the
prevention or redress of a wrong. So, that is the purpose of a civil suit to enforce or protect your right
or you sue somebody for the purpose of preventing or redressing a wrong.
CLASSIFICATION OF CIVIL ACTIONS

Rule 01 Q: Classify civil actions. A: The following:

GENERAL PROVISIONS I. As to NATURE (Section 3 [a])
a.) Ordinary Civil Actions ;
SECTION 1. Title of the Rules. These Rules shall be known and cited as the Rules of Court. b.) Special Civil Actions

SEC. 2. In what courts applicable. These Rules shall apply in all the courts, except as otherwise II. As to CAUSE or FOUNDATION:
provided by the Supreme Court. a.) Real Actions;
b.) Personal Actions;
Section 1 provides the title of the Rule Rules of Court. And Section 2, these rules shall apply in all the c.) Mixed Actions
courts except as otherwise provided by the Supreme Court. Meaning, applicable to all courts except
when the SC say otherwise. For example: The SUMMARY RULES on procedure which is applicable to III. As to PLACE OF FILING
some cases in the MTC. a.) Local Actions;
b.) Transitory Actions
Another example of when the SC say otherwise is Section 4 that the rules shall not apply to election
cases, land registration, cadastral, naturalization, insolvency proceedings and other cases not herein IV. As to OBJECT
provided for except by analogy. That is formerly Rule 143. Ngayon nilagay nila sa umpisa. The placement a.) Action In Personam
is better so that we will see it immediately. That is actually not a new provision. Thats an old one. It used b.) Action In Rem
to be in Rule 143, now it is in Rule 1. c.) Action Quasi In Rem

Sec. 3. Cases governed. These Rules shall govern the procedure to be observed in actions, civil or
criminal, and special proceedings.
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Now, some people are asking me, Akala ko ba civil procedure ito, bakit merong criminal? How come it
mentions criminal cases and definitions when it is supposed to be 1997 Rules on Civil Procedure?
I. CIVIL ACTION; CLASSIFICATION AS TO NATURE
ORDINARY CIVIL ACTIONS and SPECIAL CIVIL ACTIONS
The special civil actions are governed by Rules 62 to 71. And the actions not among those mentioned is
automatically ordinary. And even at this stage, you should be able to give already what. are the special
civil actions. So, it is a matter of looking at the table of contents.
Rules 62 to 71: Interpleader, Declaratory Relief, Certiorari, Prohibition, Mandamus, Quo Warranto,
Expropriation, Foreclosure of Mortgage, Partition, Forcible Entry, Unlawful Detainer and Contempt.
There is a new one Review of Final Decisions or Resolutions of the COMELEC and COA under Rule 64.
But actually it says there, it is governed by Rule 65. So in other words Certiorari (Rule 65) pa rin although
its a new rule now. Rule 64 is entitled Review of Decisions of the COMELEC and the COA, but it shall he
governed by Rule 65 on Certiorari .
Q: What is so important in distinguishing a special civil action from an ordinary civil action?
A: What makes an action special is simply because of the fact that there are some specific rules
prescribed for them which are not found in other rules. But to say that the rules on ordinary civil actions
do not apply to special civil actions is false. The law is very clear. Both are governed by the rules on
ordinary civil actions subject to the specific rules.
Therefore, in case of conflict between the specific rule governing a particular type of civil action and the
ordinary, then you follow the specific provision. But if the rules on special civil actions are silent, apply
the ordinary rules.
Give an example of a case where in the absence of a special provision in the rules on special civil actions
the court had to apply the rules on ordinary civil actions by analogy. The case of
AMBERTI vs. COURT OF APPEALS
195 SCRA 659 [1991]
FACTS: This case involved a petition for certiorari (special civil action under Rule 65) and then before the
respondent could answer the petition, he withdrew the petition. And then later on he changed his mind.
He re-filed the petition. The question that was asked by the SC is when you file a special civil action for
certiorari and then before the other party could answer you withdraw it, is the withdrawal with or
without prejudice? Can you re-file it?
There is no rule in Rule 65 answering that question so the SC had to resort to the
ordinary rules by analogy.
HELD: Certiorari is similar to appeal although it is not really an appeal. And the SC looked at the law on
appeal. What happens when you perfect your appeal and then later on you withdraw your appeal? What
will happen to the order or judgment? Rule 50 says that if you withdraw the appeal, the judgment
appealed from will now become final and executory. Therefore, since it is now final and executory, you
cannot change it anymore.
Applying the foregoing rules in a supplementary manner (or by analogy), upon the withdrawal of a
petition in a special civil action before the answer or comment thereto has been filed, the case shall
stand as though no appeal has been taken, so that the judgment or order of the lower court being
questioned becomes immediately final and executory. Thus, a resolution granting the withdrawal of such
a petition is with prejudice and petitioner is precluded from bringing a second action based on the same
subject matter.
So thats a perfect example of the application of ordinary rules in special civil actions.
Now, there are other classifications of civil actions which are not expressly stated in Section 3. The only
one stated there is ordinary and special.
II. CIVIL ACTIONS; CLASSIFICATION AS TO CAUSE OF FOUNDATION:
REAL, PERSONAL or MIXED ACTIONS
An action is either a real or personal action. And that is important because of Rule 4 the venue for real
actions is different from the venue for personal actions.
A REAL ACTION is briefly described as an action where the issue or the subject involved is title,
ownership, possession or interest over a real property like accion publiciana, forcible entry, unlawful
detainer, foreclosure of mortgage or real property, partition of real property. (c.f. Section 19, BP 129
controversy relates to real property)
On the other hand, when the issue is not one of those meaning, it is founded on privity of contract, or
on quasi-delict, such as actions for a sum of money, or damages, for the enforcement or resolution of a
contract, or for recovery of personal property, these are the PERSONAL ACTIONS. (Casilan vs. Tomassi, 90
Phil. 765; Cachero vs. Manila Yellow Taxicab, 101 Phil. 523; Bautista vs. Piguing, L-10006, Oct. 31, 1957)
Some textwriters give a third classification: the MIXED ACTIONS where there is a mixture of real and
personal actions. Mixed actions are such as pertain in some degree to both real and personal and,
therefore, are properly reducible to neither of them, being brought for the specific recovery of land and
for damages sustained in respect of such land. (Dela Cruz vs. Seminary of Manila, 18 P{hil. 330)
Like an action for recovery of a piece of land with damages. So thats a mixed action. Although it is more
of real rather than personal. If the damage is only incidental, then it is more of a real action rather than a
personal action like the case of TACAY. The claim for damages is incidental, the main purpose is recovery
of possession of land.
III. CIVIL ACTIONS; CLASSIFICATION AS TO THE PLACE OF FILING:
LOCAL ACTIONS and TRANSITORY ACTIONS
A LOCAL ACTIONS is an action which can only be instituted in a particular place whereas a personal
action follows the residence of the parties. Good examples of local actions are real actions. Real actions
are also automatically local actions. They can only be instituted in the place where the property is
situated. This is already provided by law (e.g. accion publiciana, forcible entry, unlawful detainer can
only be filed where the land is situated.)
TRANSITORY ACTIONS are those which follow the party wherever he may reside. (1 Am. Jur. 430)
Personal actions are transitory it is based on where the plaintiff or where the defendant resides at the
option or election of the plaintiff. It is based on the residence of the parties.
We will go to the fourth classification as to object of the suit.
IV. CIVIL ACTIONS; CLASSIFICATION AS TO OBJECT:
ACTIONS IN PERSONAM, IN REM and QUASI IN REM
ACTIONS IN PERSONAM vs. ACTIONS IN REM
How do we differentiate one from the other? The SC in the past has given the definition in some cases
which definition appears in many books as quoted by authors. But the trouble with these definitions,
sometimes, the more you read it the more you dont understand what the definition is all about. For
example:
If the technical object of the suit is to establish a claim generally against some particular persons, with a
judgment which, in theory, at least, binds his body. or to bar some individual claim or objection, so that
only certain persons are entitled to be heard, the action is IN PERSONAM. (Grey Alba vs. Dela Cruz, 17
Phil. 49; Sandejas vs. Robles, 81 Phil. 421)
But, if the object of the suit is to bar indifferently all who might be minded to make an objection of any
sort against the rights sought to be established, and if anyone in the world has a right to be heard on the
strength of alleging facts which, if true, show an inconsistent interest, the action is IN REM. (Grey Alba
vs. Dela Cruz, 17 Phil. 49; Sandejas vs. Robles, 81 Phil. 421)
To simplify the definition:
ACTION IN PERSONAM any judgment that the court will render in that case binds only the parties to
the action and their privies or their successors-in-interest.
ACTION IN REM any judgment with the court will render in the case binds not only the parties to the
case but the whole world, then the action is in rem.
To follow the language of the SC in the case of:
CHING vs. COURT OF APPEALS
181 SCRA 9
HELD: Actions in personam and actions in rem differ in that the former are directed against specific
persons and seek personal judgments, while the latter are directed against the thing or property or
status of a person and seek judgments with respect thereto as against the whole world.
Action in personam; EXAMPLE:
ILLUSTRATION: Recovery of land, accion publiciana: Momma Jessa vs. Little Lulu. Sabi ng court: Alright
Momma Jessa, you are the winner and you are entitled to the land. Now, here comes Baby Maya.
Momma Jessa says, Wala na iyan, tapos na iyan. In the case, that was already decided that I am
entitled. Sabi ni Baby Maya, Ah, that is between you (Momma Jessa) and Little Lulu. But Im different. I
have evidence to prove that my right is better than yours. I am not bound by that decision.
Q: Is the judgment rendered in the case between Momma Jessa and Little Lulu binding on Baby Maya?
A: NO, because Baby Maya is not a party to that case. She cannot be bound by a judgment where she is
not a party. Hence, the action between Momma Jessa and Little Lulu is an action in personam.
Action in Rem; Example:
ILLUSTRATION #1: Action for annulment of marriage or declaration of nullity of marriage. Suppose the
husband (Joshua) files a case against his wife (Tekla) to annul their marriage. After trial, the court
rendered judgment annulling the marriage of Joshua and Tekla. It became final. Now, the status of the
parties is SINGLE na naman because the marriage is annulled. Joshua meets another girl, Maying, and
courted her and told Maying, I would like to marry you. Maying said, I cannot marry you because I
know you are married. How can I marry you when you are already married? Joshua said, Not anymore.
Im no longer married because my marriage with Tekla is already annulled and here is the decision. So,
Im single. According Maying, No, I am not bound by that judgment because I was not a party to that
case.
Q: When the court ruled in the case between Joshua and Tekla that the marriage is annulled and that
now you are single, is the judgment binding on anybody?
A: YES. Your status is single and whether you are a party in the case or not, you are bound by the
judgment because it is directed against the whole world. Your status is to be respected.
ILLUSTRATION #2: When a son, Carlo the Spokes, files a case against the father, Rod the Tenor ( most
outstanding student of Pavarotti ), to be considered a recognized child and the court said, Yes, you
are declared a child of the defendant, Rod the Tenor is now compelled to recognize you. Your status as
a recognized child is not only binding on your father but is binding on the whole world. Your status is no
longer unrecognized.
Take note, an action in rem and in personam have often been confused with the classification of real and
personal action. They sound almost the same. That an action in personam is also a personal action, or,
when an action is in rem it is also a real action it is not true. That is a different classification. An action
could be as to cause it could be real. As to object, it could be in personam. In the same manner, it could
be personal action but an action in rem. So, these are two different classification.
ILLUSTRATION: Eugenia files a case against Concon to recover the possession of a piece of land. It is a
REAL action. In real action, the subject is possession or ownership of real property. Any judgment therein
binds only the parties, and not the whole world. So, it is also an action IN PERSONAM. It is a real action
as to cause, but as to object, it is in personam.
ILLUSTRATION: Papa Paul filed a case to annul his marriage with his wife. It is a PERSONAL action because
it does not involved his property. It is about status. But it is also IN REM because the judgment therein is
binding the whole world.
So, magka-iba yan!!! As a matter of fact, it is not only students but even lawyers and judges interchange
one with the other. Last year, I was reading the SCRA, I cannot remember the decision where before
deciding, the SC gave a lecture: The trouble with this case, the basic error of the court is that it confused
real action with an action in rem and an action in personam with a personal action a real action could be
in personam and a personal action could be in rem. So do not be confused.
QUASI IN REM
Text writers gave a sort of third classification as to object. This is called action quasi in rem. QUASI
means almost. So, quasi in rem is almost in rem. Actually, it is in personam but almost in rem.
Q: Define action quasi in rem.
A: An action quasi in rem is actually in personam because it is directed only against a particular individual
but the purpose of the proceeding is to subject his property to the obligation of lien burdening it. The
object of the case is the sale or other disposition of property of the defendant over which you have a
right or lien over the property.
EXAMPLE: Foreclosure of Mortgage. Somebody borrows money from you and mortgages his land as
security for the loan. Then later, he cannot pay. You decide to institute foreclosure proceedings over the
mortgage property. I presume you know the object of the foreclosure. If the property is foreclosed, the
property over which you have a lien a right because it is mortgaged to you that property will be sold
at public auction and the proceeds will be given to the mortgagee or creditor in payment of the
obligation.
ILLUSTRATION: An action to foreclose a mortgage is the best example of a civil action quasi in rem
because there is a defendant (mortgagor) and the object of the case is to have the property mortgaged
sold or disposed of in order to satisfy the mortgage lien of the mortgagee. It is in personam because it is
directed only against person who mortgaged to you. But once the property is foreclosed, practically
everybody has to respect it. Wala ka ng right doon sa property. Naunahan ka na. Thats why it is called
quasi in rem.
Or, to borrow the language of the SC in simplifying the term quasi in rem, quasi in rem means against
the person in respect to the res, against the mortgagor in respect to the thing mortgaged.
CIVIL ACTIONS vs. SPECIAL PROCEEDINGS
Q: Define a special proceeding. A: Rule 1, Section 3 [c]:
c) A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular
fact. (2a, R2)
Special proceedings should not be confused with a civil action. Special Proceedings are governed by
Rules 72-109 of the Rules of Court. You look at the table of contents and you will see them. That is a third
year subject.
BAR QUESTION: Distinguish a civil action from a special proceeding. A: The following:
1.) A CIVIL ACTION is one by which a party sues another for the enforcement or protection of a right, or
the prevention or redress of a wrong, whereas,
A SPECIAL PROCEEDING is a remedy by which a party seeks to establish a status, a right, or a particular
fact;
2.) In a civil action, there are two (2) definite and particular adverse parties, the party who demands a
right, called a plaintiff, and the other whom the right is sought, called a defendant, whereas,
In a SPECIAL PROCEEDING, while there is a definite party petitioner, there is no definite adverse party as
the proceeding is usually considered to be against the whole world;
3.) A CIVIL ACTION requires the filing of formal pleadings, whereas
In a SPECIAL PROCEEDING, relief may be obtained by mere application or petition;
4.) The period to appeal in CIVIL ACTIONS is generally 15 days and the requirement is the filing of a
notice of appeal, whereas
In SPECIAL PROCEEDINGS the period to appeal is 30 days and aside from notice of appeal, the law
requires the filing of a record on appeal.
Of course the basic distinction is found in Section 3 a civil action is one by which a party sues another
for the enforcement or protection of a right, or the prevention or redress of a wrong. Whereas, a special
proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact.
The object of a civil action is to enforce or protect a right or to prevent or redress a wrong. But the object
of a special proceeding is only to establish a status, a right or a particular fact.
If a creditor sues the debtor to collect an unpaid loan, is that a civil action or a special proceeding? That is
a civil action because the creditor wants to enforce or protect his right to collect. The creditor is
compelling the debtor to pay. It is adversarial.
A good example of a special proceeding is a petition for ADOPTION. It is a special proceeding because the
purpose is to establish a status of parents and child who were not related to each other. In other words,
to create a relation of parents and child under the law between two people. The procedure in the law of
adoption will be studied in the subject on special proceedings.
There was one article which I read about adoption. This is how the author describes adoption: Adoption
is one of the sacred mysteries of the law. It concerns the making of a natural person as a legitimate child
of another person without the intervention of sex. A man becomes a father of the child he did not sire. A
woman becomes the mother of a child she did not bear. It is through the magic or fiction of the law that
adopters become parents of children unrelated to them by blood, or if related, the relationship is one of
illegitimacy.
So you can adopt you own illegitimate child for the purpose of improving his status. So, when you file a
petition for adoption, you are not suing somebody to enforce or protect a right or prevent or redress a
wrong. The purpose is to create a status of parent and child between 2 people who are not related to
each other.
And when you file a petition for adoption, you are not filing a case against anybody. Wala ka namang
kalaban, eh. There is a petitioner, the one who files, but there is no definite party. But it is directed
against the whole world because once the adoption is granted, then, as far as the whole world is
concerned, they have to respect the status that this is now your child. Kaya nga, it is in rem. Generally,
special proceedings are in rem.
But since it is directed against the whole world, anyone in the world can come forward and oppose the
petition. Kaya nga may publication. You go to court and file your opposition. So wala kang kalaban na
particular person but in reality, anybody in the world can come forward and oppose it. That's the
difference between a special proceeding and a civil action.
Sec. 4. In what cases not applicable. - These Rules shall not apply to election cases, land registration,
cadastral, naturalization and insolvency proceedings, and other cases not herein provided for, except
by analogy or in a suppletory character and whenever practicable and convenient. (R143a)
The Rules of Court do not apply to certain proceedings in court. A good example is Section 2 these rules
shall apply in all the courts except as otherwise provided by the SC.
Q: What court proceedings where the Rules of Court are not applicable?
A: Election cases, land registration cases, cadastral cases, naturalization cases, insolvency proceedings,
and other cases not herein provided for except by analogy of for suppletory purposes.
In these cases, the Rules of Court are suppletory in character. In case of conflict between election law
and the Rules of Court, forget the Rules of Court. But when the Election Code is silent, you apply the
Rules of Court by analogy or for suppletory purposes.
There are some election cases which fall within the jurisdiction of the courts, not necessarily COMELEC.
For example, violation of election code where the party may be adjudged to go to jail. That is a criminal
case. That is governed by the rules on criminal procedure. It is more on imprisonment.
Sec. 5. Commencement of an action. - A civil action is commenced by the filing of the original
complaint in court. If an additional defendant is impleaded in a later pleading, the action is
commenced with regard to him on the date of the filing of such later pleading, irrespective of whether
the motion for its admission, if necessary, is denied by the court. (6a)
Q: When is a court action deemed commenced?
A: A civil action is commenced by the filing of the original complaint in court . Of course this is not really
complete. The filing of the original complaint in court must be accompanied by the payment of the
correct docket fee. A complaint is not deemed filed until the docket fee is paid. This is important to
determine the exact date that the action has commenced because it is from that moment that the
running of the prescriptive period is interrupted.
The second sentence of Section 5 states that, If an additional defendant is impleaded in a later pleading,
the action is commenced with regard to him on the date of the filing of such later pleading
Example: Today (November 19, 1997), I filed a complaint against A. So, the action is commenced on Nov.
19, 1997. However next month, say, December 19, if there is an additional defendant, the date of the
commencement of the action with regards to the additional defendant is not the date when the original
action is filed, but on the date when he was included in the amended pleading.
Last section. How do you interpret or construe the Rules of Court?
Sec. 6. Construction. - These Rules shall be liberally construed in order to promote their objective of
securing a just, speedy and inexpensive disposition of every action and proceeding. (2a)
So, the Rules of Court shall be interpreted liberally in order to promote their object which is to promote
their objective of securing a just, speedy and inexpensive disposition of every action and proceeding. The
purpose of Procedural Law is to hasten litigation. So you do not interpret it to prolong a case. That is
based on the principle of liberal construction. According to the SC in one case commenting on this:
DE GUZMAN vs. SANDIGANBAYAN
256 SCRA 171, (en banc)
HELD: The Rules of Court was conceived and promulgated to set forth guidelines in the dispensation of
justice but not to bind and chain the hand that dispenses it, for otherwise, courts will be mere slaves to
or robots of technical rules, shorn of judicial discretion. That is precisely why courts in rendering real
justice have always been, as they in fact ought to be, conscientiously guided by the norm that when on
the balance, technicalities take a backseat against substantive rights, and not the other way around.
Truly then, technicalities, should give way to the realities of the situation.
So, the purpose of procedure is to help the hand that dispenses justice and not to tie these hands.
Otherwise, the courts will become mere robots. And, as much as possible, courts should avoid
technicalities. To give way to the realities of the situation.
In one case, Lawsuits, unlike duels, are not to be won by a rapiers thrust. (Alonzo vs. Villamor, 16 Phil.
315) Hindi yan espadahan na ang unang magsaksak, daog . That is not the concept of litigation. You do
not lie in ambush. Thats another pronouncement.
Thats why the SC said in another case:
SANTOS vs. COURT OF APPEALS
198 SCRA 806
HELD: Procedural rules are not intended to hamper litigants or complicate litigation but, indeed, to
provide for a system under which suitors may be heard in the correct form and manner and at the
prescribed time in a peaceful confrontation before a judge whose authority they acknowledge. The other
alternative is the settlement of their conflict through the barrel of a gun.
Meaning, the purpose of the rules is for people to fight each other in a civilized way. If you cannot accept
the judicial system, what is your alternative? The only alternative is to shoot your opponent. We will
settle our conflict through the barrel of a gun. Barilan na lang tayo. So if you do not accept the system of
justice, that is your alternative.
For all its shortcomings and its defects, the judicial system is still the civilized way of dealing with your
opponent.
BAR QUESTION: When may lapses in the literal observance in the Rules of Court be excused? A: In the
case of
ETHEL CASE, ET AL vs. FERNANDO JUGO, ET AL
77 Phil. 523
HELD: Lapses in the literal observance of a rule of procedure will be overlooked: 1.) when they do not
involved public policy;
2.) when they arose from an honest mistake or unforeseen accident; 3.) when they have not prejudiced
the adverse party; and
4.) when they have not deprived the court of its authority.
One final note, while it is true that the Rules of Court should be liberally construed as a general rule,
there are certain provision which according to the SC, should be strictly construed because they were
intended precisely to minimize delay.
A good example would be provisions which prescribe the time during which certain acts are going to be
done, like the filing of an answer, because if you will disregard this, it will promote more delay rather
than expedite litigations. Now, for the first time, Section 2, which is also a new provision, has incorporated the definition of what
is a cause of action. However, again, it is not a new principle because even under the 1964 Rules we must
Another example is the filing of a notice of appeal. Hindi mo pwedeng palitan yan. These are the such definition is already recognized.
provisions which are to be strictly construed because while it is true that the Rules of Procedure are to
be liberally construed, it is not a license to completely ignore these rules. Even the SC made the warning. Q: Define cause of action.
Like in the cases of A: CAUSE OF ACTION is an act or omission by which a party violates a right of another.
ANTONIO vs. COURT OF APPEALS
167 SCRA 127 Cause of Action; ELEMENTS:

HELD: It is the common practice of litigants who have no excuse for not observing the procedural rules Q: What are the ELEMENTS of cause of action ? A: There are supposed to be 3 main elements:
to minimize the same as mere technicalities. Then they cry for due process. These procedural rules are in
fact intended to ensure an orderly administration of justice precisely to guarantee the enjoyment of 1. a right pertaining to the plaintiff;
substantive rights. 2. a correlative obligations of the defendant; and
3. violation of plaintiff's right by the defendant (also called delict)
LIMPOT vs. COURT OF APPEALS
170 SCRA 367 You remove one of these and there is no cause of action. You think of any case under the sun, it must
have all these elements. Now, there is a fourth element added by some cases and commentators the
HELD: Procedural rules are not be belittled or dismissed simply because their non- observance may have element of damage suffered by the plaintiff. So based on that, these are the elements of a cause of
resulted in prejudice to a party's substantive rights, as in this case. Like all rules, they are required to be action:
followed except only when for the most persuasive of reasons they may be relaxed to relaxed to relieve
a litigant of an injustice not commensurate with the degree of his thoughtlessness in not complying with 1. a RIGHT pertaining to the plaintiff;
the procedure prescribed. While it is true that a litigation is not a game of technicalities, this does not 2. a CORRELATIVE OBLIGATIONS of the defendants;
mean that the Rules of Court may be ignored at will and at random to the prejudice of the orderly 3. a VIOLATION of plaintiffs right; and
presentation and assessment of the issues and their just resolution. 4. DAMAGE suffered by the plaintiff.

This reminds me of a lawyer who did not comply with the rules and he was arguing that the rules should
be liberally construed. And then the judge says: There is a thin line between liberal construction of the
rules and gross ignorance of the rules! Yaan! It is either you did not follow the rules strictly or you do
not really know the rules.
ORDINARY CIVIL ACTIONS
Even if there is violation, if there is no damage, then what relief are you asking for? There can be no
action where no injury is sustained.
As a matter of fact, in a recent case, the SC remarked that wrong without damage or damage without
wrong does not constitute a cause of action since damages are merely part of the remedy allowed for
the injury caused by a beach or wrong.

Rule 02 There can be damage without injury in those instances in which the loss harm was not the result of a
CAUSE OF ACTION violation of a legal duty. These equations loss are after all called damnum absque injuria. Another latin
maxim, accio non datur non damnificato, which means there could be no action where no injury is
SECTION 1. Ordinary civil actions, basis of. - Every ordinary civil action must be based on a cause of sustained. So that is part of the definition of cause of action. Damage without injury does not create any
action. (n) cause of action.

Section 1 of Rule 1 is entitled cause of action. That is an entirely new title, which is not found in the 1964
Rules. Section 1 expresses the principle that every ordinary civil action must be based on a cause of
action. That is a new provision but it is a fundamental principle all along you cannot have a case unless
you have a cause of action.
As a matter of fact under Rule 16, one of the grounds for a motion to dismiss is that your pleading states
no cause of action.
Sec. 2. Cause of action, defined. - A cause of action is the act or omission by which a party violates a
right of another. (n)
So the elements are: right, obligation, violation and damage. These are the four elements of a cause of
action. You cannot imagine of any civil case where the 4 elements are not present.
EXAMPLE: A debtor borrows money from creditor. Then, it is already due. Ayaw pa ring magbayad. Lets
try to find out the elements.
RIGHT - the right of the creditor to get back his money;
OBLIGATION The defendant has the obligation to pay back the loan under the law on contracts;
VIOLATION or delict or wrong the account fell due and the debtor is supposed to pay the creditor, but
the former did not pay the latter;
DAMAGE. the creditor cannot get back his money.
So, the 4 elements are there. Of course, when you file a complaint against somebody, you do not
prepare the complaint by enumerating the elements. In other words, nasa istorya man yan ba. It is up for
the defendant to analyze. It is the duty of the lawyer to analyze the complaint whether the 4 elements
are present.
ANOTHER EXAMPLE: Damages arising from culpa aquiliana. You are crossing the street and a driver just
bump you there. And you are hospitalized. You fail to report for work.
RIGHT it is the right of every person not to be molested. You have the right to walk peacefully and not
to be harmed;
OBLIGATION it is the obligation of every person driving to be careful so that he will not bump other
people. You do not have to enter into a contract with a person saying you will not bump him;
DELICT or wrong because of your recklessness, you violated his right by injuring him;
DAMAGE I have to spend money in the hospital and I lost my income.
The 4 elements are present. So there is a cause of action. In other words, you cannot imagine a civil case
where the 4 elements are not present.
ANOTHER EXAMPLE: Defendant borrowed money from you last year payable in November 1998. And
despite demands, still he has not paid you. Now, is there a cause of action?
RIGHT the creditor has the right to collect; OBLIGATION every debtor has the obligation to pay;
DAMAGE I have not recovered the money;
DELICT or wrong there is NO delict yet.
Why? There is no delict yet because the account is payable next year pa. So, it is still premature to file a
collection case now because one element is missing. So, if I am the lawyer of the defendant, I will
question your complaint. It is not based on a cause of action. That is dismissable under Rule 16.
CAUSE OF ACTION vs. RIGHT OF ACTION
And of course, as part of the study of cause of action, we must be able to differentiate it from the so-
called right of action. These are basic fundamental issues in Civil Procedure: Distinguish a cause of action
from a right of action (bar question).
Q: Define right of action.
A: Right of action is the right of the plaintiff to bring an action and to prosecute that action to final
judgment. (Marquez vs. Varela, 92 Phil. 373)
Q: What are the ELEMENTS of a right of action? A: There are two (2) elements:
1.) the plaintiff must have a good cause of action; and
2.) the must have performed all conditions precedent to the filing of the action.
So, you cannot have a right of action unless you first have a cause of action. That is why the SC said in
the case of
DE GUZMAN, JR. vs. COURT OF APPEALS
192 SCRA 507
HELD: The right of action springs from the cause of action, but does not accrue until all the facts which
constitute the cause of action have occurred. When there is an invasion of primary rights, then and not
until then does the adjective or remedial law become operative, and under it arise rights of action. There
can be no right of action until there has been a wrong a violation of a legal right and it is then given
by the adjective law.
So, there can be no right of action until there has been a wrong, a violation of a legal right. There can be
no right of action unless there is first a cause of action.
And you must comply with the conditions precedent. You cannot file a case unless you comply with
certain conditions and the best illustration of this element is the case of
PHIL. AMERICAN GENERAL INSURANCE CO. vs. SWEETLINES
212 SCRA 194
FACTS: This involves a shipped cargoes from Manila to Davao but the goods were damaged. Based on
damaged cargoes, the consignee filed a case against the carrier. Actually, in the bill of lading, there is a
stipulation that if the consignee wants to file a case arising from the contract of carriage against the
carrier, the consignee must first send a notice of loss to the carrier and then if the carrier will not honor
it, and that is the time the consignee can file a case before the court. Now, he went to court directly
without filing a notice of loss to the carrier.
ISSUE: Whether or not there is a right of action.
HELD: There is NO right of action because the consignee did not comply with the conditions precedent.
The right of action does not arise until the performance of all conditions precedent to the action.
Performance or fulfillment of all conditions precedent upon which a right of action depends must be
sufficiently alleged, considering that the burden of proof to show that a party has a right of action is
upon the person initiating the suit.
More particularly, where the contract of shipment contains a reasonable requirement of giving notice
of loss of or injury to the goods, the giving of such notice is a condition precedent to the action for loss or
injury or the right to enforce the carriers liability.
BAR QUESTION: Distinguish a CAUSE OF ACTION from a RIGHT OF ACTION.
A: The following are the distinctions:
1.) Cause of action is the delict or wrong committed by the defendant, whereas
Right of action refers to the right of the plaintiff to institute the action;
2.) Cause of action is created by substantive law (e.g. rights under the Civil Code), whereas Right of
action is regulated by procedural law;
Right of action is a remedial right belonging to some persons, while cause of action is a formal
statement of the operative facts that give rise to such remedial right. (De Guzman vs. CA, supra)
3.) Right of action may be taken away by the running of statute of limitations, by estoppel or other
circumstances which do not affect at all the cause of action.
EXAMPLE: When a debtor borrows money and he does not pay. His failure to pay is the cause of action.
After 10 years, the right to collect has prescribed and you cannot recover anything. Actually, what is
barred is his right of action, not the cause of action because the moment he does not pay, there is
already a wrong and you cannot erase a wrong. The cause of action is not affected by prescription. In
fact, the Civil Code provides that the obligation is converted into natural obligation, which is based on
equity rather than a right.
Because sometimes, you say that the action has prescribed. So you are invoking the law on prescription.
But what has prescribed? Is it the cause of action? No. The cause of action does not prescribe. What has
prescribed is the right of action. Yaan!
SPLITTING A CAUSE OF ACTION
Sec. 3. One suit for a single cause of action. - A party may not institute more than one suit for a single
cause of action. (3a)
Section 3 is known as the rule against splitting the cause of action.
Q: What is splitting a single cause of action?
A: Splitting a cause of action is the practice of dividing one cause of action into different parts and
making each part a subject of a different complaint. (Bachrach vs. Icarigal, 68 Phil. 287)
That practice is expressly prohibited by law as expressed in Section 3, A party may not institute more
than one suit for a single cause of action. The rule is simple: If there is one cause of action, you file only
one case. You cannot file two, three or four cases arising out of one cause of action, otherwise you are
splitting it.
EXAMPLE: In a suit under a promissory note, you file a case to collect the principal; another action to
collect the interest; another action to collect attorneys fees. So, there is only one note and you sue me
three times but there is only one cause of action. Now, under the law, you have split your cause of
action. You should file only one case to recover the principal and the interest as well as the attorneys
fees.
EXAMPLE: Damage (injury) suit: Carlo, while walking was bumped by a vehicle. He filed one case against
the owner of the vehicle for reimbursement of hospital expenses; one case to recover his expenses for
medicine; another one for doctors fees; then another case for the lost income. Practical by you have
filed four cases arising from one cause of action. Isang banggaan lang, naging apat ang kaso? Again, the
Carlo here has engaged in the prohibited practice of splitting cause of action. The correct procedure is
that he should file one action and demand the recovery of all these expenses and the lost income.
Sec. 4. Splitting a single cause of action; effect of. - If two or more suits are instituted on the basis of
the same cause of action, the filing of one or a judgment upon the merits in any one is available as a
ground for the dismissal of the others. (4a)
Q: And what are the effects of splitting a cause of action? A: Under Section 4, the following are the
effects:
1.) The filing of one is available as a ground for the dismissal of other. That is what you call LITIS
PENDENTIA there is another action pending between the same parties for the same cause. This is one
ground for dismissal of a case (Rule 16 Motion to Dismiss, Section 1 [e])
So you file a case. And while it is pending, you file another case against the same party with the same
cause of action. Under Section 4, one of them is subject to dismissal.
2.) a judgment upon the merits in any one is available as a ground for the dismissal of the others.
That is what you call barred by prior judgment or RES ADJUDICATA, which is also a ground for dismissal
under Rule 16, Section 1 [f].
EXAMPLE: A case was already decided a long time ago. Now, you are reviving the same case you are
filing again. Under Section 4, the judgment in the first case years ago would be cited as a basis for the
dismissal of the second case.
Q: What is the reason or philosophy for the rule against splitting a single cause of action?
A: The rule against splitting a cause of action is intended to prevent repeated litigations between the
same parties in regard to the same subject of controversy; to protect the defendant from unnecessary
vexation; and to avoid the costs incident to numerous suits. (Bachrach vs. Icarigal, supra; Bacolod City
vs. San Miguel, Inc., L-25134, Oct. 30, 1969)
Actually, the reason is common sense eh to protect the defendant from unnecessary vexation. Why
create two cases when you have only one cause of action? And why make me spend more? Magasto
yung balik-balik sa court. It becomes an expensive process. And why should you harass somebody when
he only committed one wrong? You file a case against him but do not harass him more than once. Nemo
debet vis vesare procuna em iyadens cusa No man shall be twice vexed for one and the same cause.
SINGLENESS OF A CAUSE OF ACTION
Q: How do you determine the singleness of a cause of action?
A: The singleness of a cause of action is determined by the singleness of the delict or wrong committed
by the defendant and not by the number of remedies that the law grants the injured party. Meaning, a
single delict may give rise to two or more possible remedies but it does not mean to say the injured party
can avail of all those remedies simultaneously or one after another. (Bachrach vs. Icarigal, supra; David
vs. De la Cruz, L-11656, April 18, 1958)
EXAMPLE: Obligations and Contracts: A violation or a breach of contract could give rise to a civil action
for specific performance or a civil action for rescission of contract. However, it does not mean to say that
the injured party can file both or one after the other. Otherwise, he will be splitting his cause of action.
EXAMPLE: There is the Recto Law (on Sales) on the remedies of an unpaid seller of personal properties. I
think the law grants three remedies (1) rescind the contract of sale; (2) exact fulfillment of obligation;
and (3) foreclosure of mortgage. But even the law on Sales is very clear: the choice of one automatically
bars resort to the other because it will be against splitting the cause of action.
EXAMPLE: Credit Transactions: A bank has two (2) possible remedies against a debtor for non- payment
of a loan secured by a mortgaged say, piece of land: (1) foreclose the mortgage on the land; or
(2) file an action to collect the loan. Here, the bank cannot file a case the debtor to collect the
loan and at the same time file an action to foreclose the mortgage for it will be splitting the cause of
action. So it is either you enforce the principal contract of loan, or, you enforce the accessory contract of
mortgage. This is what happened in the case of
DANAO vs. COURT OF APPEALS
154 SCRA 446
FACTS: The Danao spouses borrowed money from the bank, mortgaged their property and then they
failed to pay. The bank filed a civil action to collect the loan. After filing a civil action to collect the loan,
the bank instituted an action to foreclose the mortgage.
HELD: Anent real properties in particular, the Court has laid down the rule that a mortgage creditor may
institute against the mortgage debtor either a personal action for debt or a real action to foreclose the
mortgage. In other words, he may pursue either of the two remedies, but not both.
Evidently, the prior recourse of the creditor bank in filing a civil action against the Danao spouses and
subsequently resorting to the complaint of foreclosure proceedings, are not only a demonstration of the
prohibited splitting up of a cause of action but also of the resulting vexation and oppression to the
debtor.
So those are examples of splitting a cause of action and illustrations of the rule that one cause of action
may give rise to two or more remedies but it does not follow that you can avail of all those remedies.
One is enough, otherwise, you will be splitting again you cause of action.
RULES IN DETERMINING THE SINGLENESS OF A CAUSE OF ACTION
Now, with respect to splitting a cause of action, you must familiarize yourselves on how this rule is
applied to breach of contract and if there are several stipulations. Sometimes it is easy to determine
whether there is one cause of action. Sometimes it is difficult. Sometimes you get confused, ano ba ito?
Isa lang ba ito o more than one?
RULE #1 (General Rule):
A contract embraces only one cause of action because it may be violated only once, even if it contains
several stipulations. (Quioque vs. Bautista, L-13159, Feb. 28, 1962)
EXAMPLE: Pauline enters into a contract with Nudj which contains 3 stipulations: (#1) that next month,
Pauline will deliver to Nudj 100 sacks of rice; (#2) on the same date, Pauline will also deliver to Nudj 100
sacks of corn; and (#3) on the same date, Pauline will also deliver to Nudj 100 sacks of sugar. When the
day arrived, nothing was delivered. So three stipulations were violated.
Q: How many causes of action does Nudj have against Pauline?
A: ONE. The contract is only one cause of action even if it contains several stipulations. The cause of
action is not based on the number of paragraphs violated but on the contract itself.
RULE #2 (Exception to the General Rule):
A contract which provides for several stipulations to be performed at
different times gives rise to as many causes of action as there are violations. (Larena vs.
Villanueva, 53 Phil. 923)
EXAMPLE: A loan with a promissory note where the principal amount is payable in installment. There is
one promissory note where the loan is P300,000. And then the first installment is payable this year
(1997). And then the second installment is payable in 1998 and the third installment is payable in 1999
without any acceleration clause. So, there is only one contract of loan but the principal is payable in
three installments at different times.
For non- payment of the first installment this year (1997), the creditor can file one case. So P100,000 for
1997 one cause of action.
Q: Next year, he did not pay the second installment, can the creditor file another case?
A: YES, because this time it is the exception. Every installment is one cause of action even if there is only
one note. Remember that they are to be performed at different times.
RULE #3 (Exception to the exception):
All obligations which have matured at the time of the suit must be integrated as one cause of action in
one complaint, and those not so included would be barred. (Larena vs. Villanueva, 53 Phil. 923)
EXAMPLE: In 1997, the debtor did not pay but the creditor did not file any case, pinabayaan lang niya.
Then in 1998, the second installment was not also paid. So dalawa na. The total claim now is P200,000.
So the creditor said, there are two unpaid installments1997 and 1998! So dalawa na, I will file two
cases.
Q: Is the creditor correct?
A: He is wrong. Isahin mo na lang yan. When all the installment are already due and the creditor has not
filed any case for the collection of the first installment, this time, when he files for collection of the
unpaid second installment, everything must be integrated. So there should only be one complaint for
P200,000 representing the first and second installments. If you do not file a claim for one, it is deemed
barred.
So for example, if you will wait for the entire note to mature, you cannot apply rule 2. You should only
file one action for P300,000 and you go back to the general rule.
RULE #4 (Exception to Rule #2):
However, when the failure to comply with one of several stipulations in a continuing contract constitutes
a total breach, a single cause of action for damages, actual as well as prospective, arises from such
breach. (Blossom & Co. vs. Manila Gas Corp., 55 Phil. 226)
EXAMPLE: This year the first installment fell due. So the creditor demanded payment for the first
installment from the debtor which the latter denied,! The signature in the note is not mine!
Now, in that kind of statement, he is not only repudiating the first installment. He is repudiating the
entire note. So under rule #4, the creditor can file a case for the entire loan of P300,000 because it has
been repudiated. If you only file only one for the P100,000 which fell due, then next year, file na naman,
it will be useless because he will still maintain the same position, Wala akong utang sa iyo! Tigas ng
ulo! So you do not wait anymore for the 2nd and 3rd installments to fall due. You file only one case for
the entire breach. There is a total breach for a continuing obligation and there is now only one cause of
action for the entire promissory note
So these are the basic principles of cause of action that I want you to remember.
JOINDER OF CAUSES OF ACTION
SEC. 5. Joinder of causes of action. - A party may in one pleading assert, in the alternative or
otherwise, as many causes of action as he may have against an opposing party, subject to the
following conditions:
xxxxx
A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may
have against an opposing party (opening paragraph of Section 5)
Q: What do you mean by joinder of causes of action?
A: Joinder of causes of action is the provision of the Rules which allows a party to join in one pleading
two or more causes of actions against the opposing party.
PROBLEM: In 1994, the debtor secured a loan of P50,000 payable in 1997. In 1995, a second loan of
P50,000 payable in 1997 and then in 1996, another loan of P50,000 payable in 1997. So there are three
debts that will fall due in 1997. In 1997 when they became due, the creditor filed 3 cases against the
debtor one case for every promissory note.
Q: Were the cases properly filed?
A: YES because there were 3 promissory notes. But the creditor can file one complaint to join the three
loans. This is called joinder of causes of action. This is different from the case of an installment where
there is only one loan although payable in three installments.
In the problem above, there are 3 loans, 3 promissory notes in 3 different years. So there are 3 causes of
action. And when you file one case for every promissory note, you are not violating the rule against
splitting a cause of action. You are actually not filing more than one case because there is one case for
every loan. However, while you are allowed to file three cases, Section 5 allows you to file only one case
and that is called joinder of causes of action.
THE PRINCIPLE: You cannot file more than one case when you have only one cause of action but the law
allows you to file one case for more than one cause of action.
Q: Under Section 5, is the creditor obliged to file one complaint for the 3 promissory notes?
A: NO, because joinder of causes of action is permissive. He may or may not. So the creditor may file 3
complaints for the 3 promissory notes, or, file only one complaint asserting the 3 claims for the 3
promissory notes.
ALTERNATIVE and CUMULATIVE Joinder of Causes of Action
Q: How may causes of action be joined?
A: Causes of action may be joined either: (a) alternatively or (b) cumulatively.
An ALTERNATIVE JOINDER exists when your cause of action is either one or the other. You are not
seeking relief from both but either one.
A CUMULATIVE JOINDER exists when you are seeking relief for all your causes of action. ALTERNATIVE
joinder; Example:
Aileen is the importer of the goods that were shipped on board a carrier. Upon reaching Davao City, they
were departed with the arrastre or stevedoring operator. The goods were delivered to Aileen in a
damaged condition, and then reklamo siya sa arrastre or stevedoring. Then the arraster says, Damaged
na dati yan when it was unloaded from the carrier. Then when Aileen went to the carrier, Carrier: No,
the damage happened in their (arrastres) custody.
Now, the Aileen here has two (2) possible causes of action: (1) an action against the stevedoring
operator under the contract of depositary under the law on Credit Transaction; Or,
(2) an action against the carrier under the Law on Transportation. So there are 2 possible causes
of action.
Q: Can Aileen file a complaint incorporating the two (arrastre and the carrier) both as defendants?
A: YES, that is allowed. This is alternative joinder because Aileen is not claiming from both of them, but
either one or the other. Aileen is not sure so she decided to file a case against both of them. At least isa
sa kanila matamaan man ba.
ALTERNATIVE joinder; Another Example:
Chams is a passenger riding on a public utility vehicle which collided with another vehicle and she is not
sure who is at fault. If the fault lies with the other vehicle, and the driver of the bus where Chams was
riding is not at fault, then her cause of action against the other vehicle is quasi-delict. But if the fault lies
with the driver of the bus where she was riding, her cause of action is culpa contractual. So she has 2
possible causes of action.
Q: Is it possible for Chams to file one complaint naming both the drivers or both operators as
defendants?
A: YES. Either of them is liable to her. That is alternative joinder of causes of action.
CUMULATIVE JOINDER; Example:
Pches, who is forever on a diet, files a case to collect 3 unpaid promissory notes from the John The
Yellow Man. Pches is not claiming from either promissory notes but she is claiming all.
ANOTHER EXAMPLE: Roy The Councilor, an illegitimate child files a case against his father for
compulsory acknowledgment as illegitimate child and support. There are two causes of action which are
gained: an action for recognition and also for support. This is not alternative actions but rather, these are
cumulative. The child is asking for BOTH relief.
That is why the manner of joining the defendants alternatively or otherwise should be correlated with
Rule 3, Section 13 and Rule 8, Section 2:
RULE 3, SEC. 13. Alternative defendants. - Where the plaintiff is uncertain against who of several
persons he is entitled to relief, he may join any or all of them as defendants in the alternative,
although a right to relief against one may be inconsistent with a right of relief against the other. (13a)
RULE 8, SEC. 2. Alternative causes of action or defenses. - A party may set forth two or more
statements of a claim or defense alternatively or hypothetically, either in one cause of action or
defense or in separate causes of action or defenses. When two or more statements are made in the
alternative and one of them if made independently would be sufficient, the pleading is not made
insufficient by the insufficiency of one or more of the alternative statements. (2)
Q: When is joinder of causes of action allowed?
A: Under Section 5, joinder of causes of action is allowed under the following conditions:
a.) The party joining the causes of action shall comply with the rules on joinder of parties;
b.) The joinder shall not include special civil actions or actions governed by special rules;
c.) Where the causes of action are between the same parties but pertain to different venues
or jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the
causes of action falls within the jurisdiction of said court and the venue lies therein; and
d.) Where the claims in all the causes of action are principally for recovery of money, the
aggregate amount claimed shall be the test of jurisdiction. (5a)
a.) The party joining the causes of action shall comply with the rules on joinder of parties
We will meet joinder of parties when we reach Rule 3, Section 6 which provides that two (2) or more
persons can join as plaintiffs in one complaint or can be joined as defendants in one complaint, provided
there is a common question of fact or law involved in that case.
EXAMPLE: Two or more passengers riding on the same bus, met an accident. All of them were injured. So
lahat sila may cause of action noh? Every passenger who gets injured has a cause of action. So they
decided to file a damage suit.
Q: Can they be joined in one complaint?
A: YES because there is a common question of fact or law. They are riding on the same bus, meeting the
same accident, against the same operator. So there is a joinder of parties under Rule 3. And if the joinder
of parties under Rule 3 is proper, then their causes of action can also be joined under Rule 2 because the
condition is: shall comply with the rules on joinder of parties.
Q: Suppose these passengers were riding on different buses owned by the one operator. They are on
different trips. One is going to Mati; one is going to General Santos; and one is going to Cotabato. All of
them met an accident. Well of course the same kind of case: damage suit, breach of contract against the
same operator. Now, can their causes of action be joined?
A: NO. They cannot be joined because there is no common question of fact or law. The defense of the
operator here is different from his defense there. Meaning, passenger A has nothing to do with the
complaint of passenger B because there is no common denominator between them. So if you cannot join
them under Rule 3, the joinder of causes of action under Rule 2 is also improper.
b.) The joinder shall not include special civil actions or actions governed by special rules
So, a joinder shall not include special civil actions or actions governed by special rules. The reason here is
simple: Special Civil Actions are governed by certain rules which do not apply to ordinary civil actions. So
a special civil action cannot be joined with an ordinary civil action, or, an ordinary civil action cannot be
joined with an action governed by special rules such as Election cases, naturalization cases, insolvency
cases. In the 1983 case of
UNION GLASS AND CONTAINER CORP. vs. SEC
126 SCRA 31
FACTS: (This is still a good ruling) A stockholder of a corporation who is also the creditor of the
corporation decided to file one complaint against the corporation asserting several causes of action,
among them is his rights as a stockholder under the Corporation Code and also his rights as a creditor
under the Civil Code.
HELD: The joinder is improper. In the first place, one is governed by a quasi-judicial body (SEC). So how
can the RTC try a case when the cause of action is pertaining to the SEC and it is governed by the special
rules of the SEC? So you cannot join that.
c.) Where the causes of action are between the same parties but pertain to different venues or
jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes of action
falls within the jurisdiction of said court and the venue lies therein
PROBLEM: Maceste encroached on two parcels of land belonging to me. In one parcel of land, the
assessed value of that is only P20,000. In another parcel of land, the assessed vaue is P1 million. I would
like to file a case of action publiciana against him. Dalawa eh there are 2 lands encroached. The first
accion publiciana is triable by the MTC (P20,000). The other accion publiciana is triable by the RTC.
Q: Can I join them?
A: YES, and it must be filed it in the RTC. The jurisdiction of the RTC will prevail.
PROBLEM: Maceste encroached on my land in Tagum with an assessed value of P20,000. And then he
encroached in another land of mine in Davao City with an assessed value of P1 million. You will notice
that in the Tagum land, the jurisdiction is in the MTC for the case accion publiciana and the venue is
Tagum because the property is situated there. In the other case, the jurisdiction is in the RTC and the
venue is Davao City.
Q: Can I file a case against Maceste joining the 2 cases?
A: YES.
Q: Where is now the governing venue?
A: The venue of the RTC case prevails. Therefore, the case must be filed in Davao City.
PROBLEM: Maceste encroached on my land in Tagum with an assessed value of P1 million. And then he
encroached in another land of mine in Davao City with an assessed value of P1 million also. You will
notice that in the Tagum land, the jurisdiction is RTC for the case accion publiciana. In the other case, the
jurisdiction is also in the RTC of Davao City. So both actions, RTC.
Q: In which RTC will you file the case joining the causes of action? A: Either Tagum or Davao City because
both are RTCs.
PROBLEM: Maceste encroached on my land in Tagum with an assessed value of P20,000. And then he
encroached in another land of mine in Davao City with an assessed value of P20,000 also. In the Tagum
land, the jurisdiction is MTC for the case accion publiciana. In the other case, the jurisdiction is also in the
MTC. So both actions, MTC.
Q: Can I join in one complaint the 2 actions?
A: NO, because the law says provided one of the causes of action falls within the jurisdiction of said court
and the venue lies therein. One of them belongs to the RTC. In the example, both belong to the MTC.
PROBLEM: Maceste encroached on my land more than one year ago and the land has an assessed value
of only P20,000. So if I will file an accion publiciana, it has to be filed with the MTC. On the other hand,
Aaron encroached my other parcel of land more than one year ago and the assessed value of the land is
P1 million. So my cause of action there is also accion publiciana but triable by the RTC. so I decided to file
a case naming both of them as defendants.
Q: Can they be joined under Section 5?
A: NO. The law allows only if it is between the same parties. This time the parties are not the same. Plus
the fact that you might violate paragraph [a] there is no common question of fact and law between
them.
PROBLEM: Maceste encroached on my land in Davao City on month ago and then he encroached on
another land of mine (assessed value of P1 million) in Davao City two years ago. Therefore, one case is
forcible entry triable by the MTC and the latter is accion publiciana triable by the RTC.
Q: Can I join them under paragraph [c] although they belong to MTC and RTC?
A: NO, you cannot join them because of paragraph [b] a forcible entry is special civil action which
is also governed by the Summary Procedure. You cannot join a special civil action. So what is violated
here is not paragraph [c] but paragraph [b].
d.) where the claims in all the causes of action are principally for recovery of money, the aggregate
amount claimed shall be the test of jurisdiction
The last is only a repetition of the old rule: TOTALITY RULE. There is nothing new here. So judiciary law,
totality rule, basta sums of money.
SEC. 6. Misjoinder of causes of action. - Misjoinder of causes of action is not a ground for dismissal of
an action. A misjoined cause of action may, on motion of a party or on the initiative of the court, be
severed and proceeded with separately. (n)
There is misjoinder when two (2) or more causes of action where joined in one complaint when they
should no be joined.
EXAMPLE: A case joining an accion publiciana case and a forcible entry case which is not proper because
a special civil action (forcible entry) cannot be joined. In this case there is misjoinder of causes of action.
Under Section 6, if there is misjoinder, you do not dismiss the case. The remedy is to ask the court that
the misjoined case be severed and tried separately. Now, ang counterpart nito which is still present is
misjoinder of parties under Rule 3, Section 11:
RULE 3, Sec. 11. Misjoinder and non-joinder of parties. - Neither misjoinder nor non-joinder of parties
ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of
any party or on its own initiative at any stage of the action and on such terms as are just. A claim
against a misjoined party may be severed and proceeded with separately. (11a)
So misjoinder of parties and misjoinder of causes of action are not grounds for dismissal of an action.
Just remove the misjoined cause of action or the misjoined party.
Rule 03
PARTIES TO CIVIL ACTIONS
CLASSES OF PARTIES:
I. Real Parties in Interest
II. Representative Parties
III. Permissive Parties
IV. Indispensable Parties
V. Necessary Parties
Sec. 1. Who may be parties; plaintiff and defendant. - Only natural or juridical persons, or entities
authorized by law may be parties in a civil action. The term "plaintiff" may refer to the claiming party,
the counter- claimant, the cross-claimant, or the third (fourth, etc.)-party plaintiff. The term
"defendant" may refer to the original defending party, the defendant in a counterclaim, the cross-
defendant, or other third (fourth, etc.)-party defendant. (1a)
Q: Who may be parties to a civil case?
A: Only natural or juridical persons or entities authorized by law may be parties in a civil action.
So, you cannot sue or be sued unless you are a person. A dead man cannot sue and he cannot be sued
because he has no more personality.
That is why in one case, Brod Pito sued the firm name, Paningkamot Store. So, it is Brod Pito vs.
Paningkamot Store. The SC said, that is wrong. Paningkamot Store is not a person. PangaIan ng tindahan
iyan. The correct procedure is you sue the owner because he is the real person. But the defect is not
really substantial. It is only a formal defect that can easily be corrected.
ENTITIES AUTHORIZED BY LAW
Q: Give an example of an entity authorized by law which can be sued although it is not a person. A: The
best example is Section 15 of this rule.
Section 15. Entity without juridical personality as defendant.- When two or more persons not organized
as an entity with juridical personality enter into u transaction, they may be sued under the name by
which they are generally or commonly known.
In the answer of such defendant the names and addresses of the persons composing said entity must all
be revealed.
Another example of an entity authorized by law which may not be a natural or juridical person is a labor
union under the Labor Code. It is an entity authorized by law to file a case in behalf of the of its
members. Although it may not have been incorporated under the Corporation Law but registered under
the Labor Code.
Q: Who are the plaintiffs, defendants?
A: The term PLAINTIFF may refer to the claiming party, the original plaintiff, the counter-claimant, the
cross-claimant, the third (fourth, etc.)- party plaintiff. So, the word plaintiff covers them.
The term DEFENDANT may refer to the original defending party, the defendant in a counterclaim, the
cross-defendant, or other third (fourth, etc.)-party defendant. These are explained in Rule 6, Sections 6,
8 & 11.
I. REAL PARTIES IN INTEREST
Sec 2. Parties in interest. - A real party in interest is the party who stands to be benefited or injured by
the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by
law or these Rules, every action must be prosecuted or defended in the name of the real party in
interest. (2a)
Q: Who is a real party in interest?
A: A real party in interest is the party who stands to be benefited or injured by the judgment in the suit.
(Section 2)
That is a new sentence taken form jurisprudence because the prior rule never gave a definition of real
parties in interest but jurisprudence gives a definition. That definition is taken from the leading case of
SALONGA VS. WARNER BARNES & CO. (88 Phil. 125). That is exactly how it is defined and that definition
has been repeated through the years.
every action must be prosecuted or defended in the name of the real party in interest
So a complaint is dismissible if it is not made in the name of the real party in interest.
In an action to recover a piece of land , you do not file a case against tenant. He is not the real party in
interest. You must file the case against the owner of the land.
When you are riding in a bus which collided and you were injured, do not file a case against the driver for
damages. Your contract in not with the drive. Your contract is with the operator. So you file a case of
culpa contractual against the owner or operator.
GENERAL RULE: In a breach of contract, the real parties in interest are the parties to the contract. So
strangers, as a rule, have no business suing in a contract because they are not real parties in interest.
EXCEPTION: When there is a stipulation in the contract favorable to a third person (stipulation pour
autrui Art. 1311, NCC) Example: Third-Party Liability (TPL) in insurance. A insured his car with B for TPL.
A bumped C. C can file a case against A and B to recover from the insurance contract.
BALIWAG TRANSIT vs. COURT OF APPEALS
169 SCRA 649 [1989 BAR]
FACTS: A student who was riding in one of the Baliwag buses met an accident. So, an action was filed
where the parents and the injured boy were the co-plaintiffs against Baliwag Transit. While the case was
going on, the boy entered into amicable settlement with the bus company. Based on the settlement,
Baliwag moved to dismiss the case. The parents objected, We are objecting because we are also
plaintiffs. We didnt know about the settlement. We were the ones who spent money, therefore it
should not be dismissed simply because our son is withdrawing the case.
HELD: The parents are not the real party in interest. The were not the passengers. The real parties in a
contract of carriage are the parties to the contract itself. In the absence of any contract of carriage
between the transportation company and the parents of the injured party, the parents are not real
parties in interest in an action for breach of contract.
SALONGA vs. WARNER BARNES
88 Phil. 125 [Bar Problem]
FACTS: Aiza Guadolope decided to go abroad but she has properties in the Philippines. So she executed a
special power of attorney in favor of Ken A. Sabayah: You have the full power to administer, to collect
all my money; to withdraw my money in the bank; with full power to sue these people who owe me;
with the authority to hire a lawyer; and enter into a contract. Practically, you are my alter ego. And then
Aiza went abroad.
Ken started to manage the property. One of the tenants failed to pay rentals. So in accordance with the
authority, he hired a lawyer. In preparation of the complaint, it was stated that, Ken, plaintiff vs. Lewee
Yoda, defendant.
ISSUE: Is the action properly filed?
HELD: NO. The real property in interest is the principal, the owner of the property. Ken is only an
attorney-in-fact. An attorney-in-fact cannot use in his own name because he is not the real party in
interest. Ken is given the authority to sue, to manage, hire a lawyer but not as the plaintiff because the
real party in interest is Aiza. The complaint should be name as Aiza, plaintiff vs. Leewee Yoda,
defendant. Yaan!
Q: Suppose Ken, the lawyer will amend the complaint: Ken, as attorney-in-fact of Aiza, plaintiff
vs. Leewee Yoda, defendant is the complaint properly filed.
A: NO. This is even worse because Ken is admitting that he is only an attorney-in-fact. The more reason
na nahalata ka that he is not the real party in interest. If Ken wants to include the his name, it should be:
Aiza, plaintiff, represented by Ken, his attorney-in-fact vs. Leewee Yoda, defendant.
Q: Does the law require Aiza to come here to file the case?
A: NO. Take note that the law does not require the principal (A) to come back to file the case because,
the law does not say every action must be prosecuted and defendant BY the real party in interest.
Hindi naman sinabing by eh. So an attorney-in-fact can prosecute or defend a party but in the name of
the real party in interest. The real party in interest has submitted to the jurisdiction of the court by filing
the complaint through his lawyer.
II. REPRESENTATIVE PARTY
Sec. 3. Representatives as parties. - Where the action is allowed to be prosecuted or defended by a
representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title
of the case and shall be deemed to be the real party in interest. A representative may be a trustee of
an express trust, a guardian, an executor or administrator, or a party authorized by law or these Rules.
An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued
without joining the principal except when the contract involves things belonging to the principal. (3a)
Section 3 is a relaxation of Section 2 because under Section 2, you cannot sue and be sued if you are not
the real party in interest. But Section 3 allows one who is not a real party in interest to sue and be sued
in behalf of somebody else. It is possible if you can qualify as a representative party.
Example: GUARDIAN. Suppose Judee, a minor was injured. A case for damages has to be filed in behalf of
the minor. A minor cannot use and be sued but she is the real party in interest. The law allows the
parents to come in and also be the plaintiff. The parents are what we the representative party. The law
still requires for the minor to be included in the case. The law states that the beneficiary shall be
included in the title of the case and shall be deemed to be the real party in interest.
Example: TRUSTEE; EXECUTOR; ADMINISTRATOR. Another example is a trustee of an express trust, or
executor or administrator of the estate of a deceased person. When a person dies, what survives after
him is his estate which represent everything that is left behind. This later on will be given to his heirs. But
for the meantime under the law on succession, the executor or administrator will take charge of his
property.
Q: If the estate of the deceased has some collectibles, who will file the case?
A: The administrator or executor as the representative party. If you want to sue the estate, you should
sue the estate through the administrator or executor.
CHING vs. COURT OF APPEALS
181 SCRA 9
FACTS: Angel Maya wanted to sue Devil John who owe her a sum of money. The problem is, she cannot
locate Johns whereabouts. Also, Maya was not certain whether John is dead or alive. So, to play it safe,
what the Maya did was to file a case against the defendant and/or the estate of defendant. Maya
obtained a judgment against the defendant and/or the estate of defendant.
Later on when the judgment was enforced, it turned out that the John was already dead (tsk! tsk!) but he
has properties left behind. So, they started to take hold of their properties. Now, the heirs of the John
challenged the decision.
ISSUE: Whether or not there was a valid judgment against the defendant/or the estate of the
defendant.
HELD: The decision is void. The decision of the lower court insofar as the deceased is concerned, is void
for lack of jurisdiction over his person. He was not, and he could not have been validly served with
summons. He had no more civil personality. His juridical personality, that is fitness to be subject of legal
relations, was lost through death (Arts. 37 and 42 Civil Code).
The same conclusion would still inevitably be reached notwithstanding joinder of Bs estate as co-
defendant. It is a well-settled rule that an estate can sue or be sued through an executor or administrator
in his representative capacity.
So, the Court cited Section 3. In order to bind the estate, you should sue the executor or the
administrator of his estate. So, either way, the case cannot prosper.
The last sentence of Section 3:
An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued
without joining the principal except when the contract involves things belonging to the principal.
The agent cannot sue because the principal is the real party in interest. But when an agent acts in his
own name and for the benefit of an undisclosed principal, he may sue and be sued, EXCEPT when the
contract involves things belonging to the principal. Under the exception, the principal has really to be
included. The agent cannot file a case where the principal will lose his property without being named as
part to the case.
Sec 4. Spouses as parties. - Husband and wife shall sue or be sued jointly, except as provided by law.
(4a)
Normally, the husband and the wife should sue and be sued together. Even if the wife borrowed money
alone and you want to sue the woman, still the husband should be included. Why? In the property
relationship between the husband and wife, they are governed by absolute community or conjugal
partnership. Whether you like it or not, the implication of the wife is also the implication of the husband
because of the property relationship.
In the same manner, if the wife wants to collect, even if the husband does not know anything about it,
the husband should still be named as party plaintiff, on the ground again that in the income that she can
get redounds to the benefit of the conjugal partnership.
And there were decided cases in the part where even if for example, a wife sues without the husband,
the defect is not fatal but merely format. The complaint should not be dismissed. All that is to be done is
to amend the complaint impleading the husband. (Cuyugan vs. Dizon, 76 Phil. 80)
Q: Give an exception to that general rule that husband and wife shall sue or be sued jointly.
A: The EXCEPTION is in case of Complete Separation of Property (Article 145, Family Code), and under
Article 111, Family Code:
Art. 111. A spouse of age may mortgage, alienate, encumber or otherwise dispose of his or her exclusive
property without the consent of the other spouse and appear alone in court to litigate with regard to the
same. (Family Code)
Sec 5. Minor or incompetent persons. - A minor or a person alleged to be incompetent, may sue or be
sued, with the assistance of his father, mother, guardian, or if he has none, a guardian ad litem. (5a)
Section 5 is related to Section 3. The minor or incompetent person must be assisted by the parents and
considered as representative party. Incompetent persons includes insane people or mentally retarded
people. They are supposed to be under the custody of other persons, the guardians. If no guardian, the
court has to appoint a guardian called the guardian ad litem.
III. PERMISSIVE PARTY
Sec 6. Permissive joinder of parties. - All persons in whom or against any right to relief in respect to or
arising out of the same transaction or series of transactions is alleged to exist, whether jointly,
severally, or in the alternative, may, except as otherwise provided in these Rules, join as plaintiffs or
be joined as defendants in one complaint, where any question of law or fact common to all such
plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may
be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection
with any proceedings in which he may have no interest. (6)
Section 6 is known as permissive joinder of parties. This is related to Section 5 [a] of Rule 2 on joinder of
causes of action because when there is proper joinder of parties, necessarily there is also automatic
joinder of causes of action. But there could be joinder of causes of action without joinder of parties.
Q: May two or more persons join in one complaint as plaintiffs? Or can two or more persons be joined
together as defendants?
A: YES, under two conditions, to wit:
1.) There is a right to relief in favor of or against or against the parties joined in respect to or arising out
of the same transaction or series of transactions; and
2.) There is a question of law or fact common to the parties joined in the action.
PROBLEM: Suppose some passengers riding a particular common carrier are injured because of an
accident. All of them want to sue the operator of the carrier for damages arising out of the breach of
contract of carriage. Under the Law on Transportation, it possible for each passenger to file his own case
because our causes of action are different from each other. But can they be joined together in one
complaint against the common carrier?
A: YES because there is a common question of law or fact in the causes of actions of the injured
passengers: the evidence is identical; the issues whether the carrier is at fault are the came; the
witnesses for both parties will be the same; the report will be the same; the defense of the operator
against one party will be the same defense as against the other passenger. So, since there is a common
denominator on their causes of action, they can be joined.
It would be different if the passengers were riding on different buses belonging to the same company,
and all of them met an accident. What happened to Passenger No. 1 does not concern Passenger No. 2.
The evidence will not be the same. So, there is no common denominator no common question of fact.
Therefore, they cannot be joined.
PROBLEM: Suppose a story appeared in the Inquirer where 5 people were called as jueteng kings. They
were allegedly involved in jueteng these are the jueteng kings: Ken, Kenneth, Francis, Thad and Sheriff.
Now, the five of them want to sue the Inquirer for damages arising from libel. Is it possible for the five (5)
people named in the article to file only one complaint against the editor and publisher of the Inquirer?
A: YES because it is of the same story. Their names appeared in the same story. It is not a different
issue. So there is a common question of act law in their cause of action.
PROBLEM: Myra, while driving a car, bumped another vehicle, injuring the driver and causing injury to
other passengers. So, there are three offended parties : the owner of the vehicle, the driver of the
vehicle , and the passenger. There are three(3) causes of action. Can they join in one complaint against
Myra, the owner of the car which bumped them?
A: YES because there is a common question of fact and law. There is only one accident.
Q: But suppose the three of them will file 3 separate cases against Myra, puwede?
A: Puwede, because permissive joinder of parties is not mandatory. Kaya nga permissive eh! It is not
mandatory but optional although the law encourages permissive joinder of parities.
Q: Why does the law encourage joinder of parties? A: The following are the reasons:
1.) to promote convenience in trial; 2.) to prevent multiplicity of suits;
3.) to expedite the termination of the litigation; and
4.) to attain economy of procedure under which several demands arising out of the same occurrence
may be tried together thus avoiding the repetition of evidence relating to facts common to the general
demands.
Now, take note that when there is joinder of parties, there is automatically a joinder of causes of action.
That is why one of the conditions of limitations in joinder of causes of action is you must observe the rule
on joinder of parties. If joinder of parties is improper under Rule 3, the joinder of causes of action is also
proper under Rule 2, Section 5
Principle: WHEN THERE IS JOINDER OF PARTIES, THERE IS ALSO A JOINDER OF CAUSES OF ACTION. BUT
THERE CAN BE A JOINDER OF CAUSES OF ACTION WITHOUT A JOINDER OF PARTIES.
Paano yun?
EXAMPLE: When there is only one plaintiff and one defendant: Suppose Melissa will secure three (3)
loans from me.
Q: How many causes of action do I have if Melissa will not pay me? A: Three (3) man ba!
Q: Now, can I join them in one complaint? A: Yes.
Q: Is there joinder of causes of action? A: Yes.
Q: Is there joinder of parties?
A: NONE, because there is only one plaintiff and one defendant.
So, there can be joinder of causes of action without joinder of parties because there is only one plaintiff
and one defendant. But if you join parties in Rule 3, automatically, there is joinder of causes of action.
This is the relationship of these two provisions.
Finally, the last two types of parties to the action are the so-called indispensable parties and necessary
parties. (Section 7 and Section 8, respectively)
INDISPENSABLE PARTY and NECESSARY PARTIES
Sec. 7. Compulsory joinder of indispensable parties. Parties in interest without whom no final
determination can be had of an action shall be joined either as plaintiffs or defendants. (7)
Sec. 8. Necessary party. A necessary party is one who is not indispensable but who ought to be joined
as a party if complete relief is to be accorded as to those already parties, or for a complete
determination or settlement of the claim subject of the action. (8a)
Take note that under the Old Rules, Section 8, the party there was called proper party. Now they
change the word from proper party to necessary party. This readopts the old name under the 1940 creditor will now file another case against the guarantor.
Rules. Under the old rules, the parties were either indispensable or necessary. Then under the 1964 Rule,
it was changed from necessary to proper. Now, under the new rule, back to its old name: necessary REVIEW: What is the difference between joint debtors and solidary debtors? In solidary, the creditor can
party.
Q: Distinguish indispensable from necessary party.
A: An INDISPENSABLE PARTY must be joined under any and all conditions, his presence being a sine qua
non of the exercise of judicial power, for without him, no final determination can be had of the action.
(Borlasa vs. Polistico, 47 Phil. 345)
A NECESSARY PARTY ought to be joined whenever possible in order to adjudicate the whole controversy
and avoid multiplicity of suits, but if for some reason or another he cannot be joined, the court may
proceed without him and the judgment shall not prejudice his rights. (Ibid.)
Q: Give examples of indispensable party.
A: In an action for partition of land, all the co-owners thereof are indispensable parties. (De Lara vs. De
Lara, 2 Phil. 294) In an action for annulment of partition, all of the heirs must be made parties. (Caram vs.
CA, 101 Phil. 315) In an action for recovery of ownership of land, the person who claims to be the owner
of the land is the indispensable party defendant and not the one in possession as tenant. (Sanidad vs.
Cabotaje, 5 Phil. 204; Manza vs. Santiago, 96 Phil. 938)
Q: Give examples of necessary party.
A: In an action for collection of debt instituted by the creditor against the surety, the principal debtor is
merely a necessary party. (Vao vs. Alo, 95 Phil. 495) In an action for recovery of debt instituted by the
creditor against the debtor, the guarantor or surety is merely a necessary property. (Ibid.) In an action
for foreclosure of a real estate mortgage instituted by the first mortgagee, the second mortgagee is
merely a necessary party. (Somes vs. Govt of Phil., 62 Phil. 432)
REVIEW: What is the difference between a surety and a guarantor? The liability of guarantor to the
creditor is only secondary. Meaning, the guarantor is only liable to the creditor if the principal debtor
cannot pay like when the debtor is insolvent. On the other hand, a surety is principally liable to the
creditor whether or not the debtor can pay.
PROBLEM: In credit transactions, there is a creditor, debtor and surety. Debtor borrowed money from
the creditor, then another acted as the surety. Now, suppose the debtor will not pay, the creditor files
now a case against the surety without the debtor. The debtor was not included in the case.
Q: Can the case proceed even without the debtor being sued? A: YES, the case may proceed.
Now, the surety may be ordered to pay. Pero bag binayaran ng surety iyong creditor, what will he do
next? He will now sue the principal debtor for reimbursement. Meaning, there is still a future case. Thus,
there could be no complete relief between those who are parties. So, the debtor is a necessary party,
and not indispensable. But it is advisable to join the debtor in one case, para pag nag-claim ang creditor
from the surety, the latter can automatically claim from the debtor. Pang-one time ba!
PROBLEM: Kuya Mortz borrowed money from Doa Eugenia a.k.a. Genie. Ate Maya is the guarantor. The
Doa Genie filed a case against Kuya Mortz. She did not include the guarantor.
Q: Can the case proceed even without the guarantor?
Q: YES because the guarantor is merely a necessary party. And if the debtor turns out to be insolvent, the
collect the whole obligation from any of the debtors without prejudice to the right of the latter for
reimbursement of his share in the obligation from his co-debtors. On the other hand, in joint obligation,
the creditor can only get from a debtor the latters share in the whole obligation. Meaning, the creditor
cannot compel the debtor to pay the share of his co-debtor. Kanya-kanya tayo.
PROBLEM: Manuel and Cathy are JOINT debtors of P100,000 (50-50 sharing). Doa Eugenia is the
creditor. Both did not pay Doa Eugenia.
Q: If Doa Eugenia files a case against Manuel only, can the case proceed without Cathy?
A: YES but Doa Eugenia can only collect from Manuel up to P50,000 only because of their joint
obligation. Cathy is only necessary insofar as Manuels share is concern. But Manuel is indispensable
party insofar as his share is concern.
Q: But if Doa Eugenia wants to collect the entire P100,000, what should she do? A: She should file a
case against both Manuel and Cathy.
PROBLEM: Manuel and Cathy are SOLIDARY debtors of P100,000 (50-50 sharing). Doa Eugenia is the
creditor. Both did not pay Doa Eugenia.
Q: If Doa Eugenia files a case against Manuel only, can the case proceed without Cathy?
A: YES and Manuel is required to pay Doa Eugenia the whole amount of the debt because of solidary
obligation. Then Manuel can proceed against Cathy for reimbursement. Be is merely necessary party.
Sec. 9. Non-joinder of necessary parties to be pleaded. Whenever in any pleading in which a claim is
asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall state
why he is omitted. Should the court find the reason for the omission unmeritorious, it may order the
inclusion of the omitted necessary party if jurisdiction over his person may be obtained.
The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a
waiver of the claim against such party.
The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and
the judgment rendered therein shall be without prejudice to the rights of such necessary party. (8a,
9a)
If you do not implead a necessary party, you must give an explanation why did you not implead him. The
law requires as much as possible that all parties be impleaded to avoid multiplicity of suits. EXAMPLE:
Tato The Hunk files a case against Andre The Hippie, a surety, without including Sheriff The Punk as
the debtor. In the complaint of Tato, he shall explain why he is not including Sheriff.
Assuming that a necessary party cannot be impleaded, his non-inclusion does not prevent the court from
proceeding with the action. The judgment rendered shall be without prejudice to the rights of such
necessary party.
However, if the court finds no valid reason for not impleading a party, the court may order the inclusion
of the necessary party under Section 9. And take note that under the new rules, the failure to comply
with the order of inclusion without justifiable cause shall be deemed a waiver of the claim against such
(necessary) party.
EXAMPLE: If Tato, without justifiable cause, refuses to include Sheriff despite the order of the court, and
later on, Andre cannot also pay Tato, there is no way now for Tato to go against Sheriff anymore because
he (Tato) failed to comply with the order of inclusion without justifiable cause.
Sec. 10. Unwilling co-plaintiff. If the consent of any party who should be joined as plaintiff can not be
obtained, he may be made a defendant and the reason therefor shall be stated in the complaint. (10)
This is particularly true with INDISPENSABLE parties the case cannot proceed without you.
EXAMPLE : There are 4 brothers and 1 sister. They have to file a case against somebody to recover
property which they believe was owned by their parents. Then, brother 4 say to sister 1, Let us file a
case. But sabi ni sister 1, Pilitin mo muna ako. Then she says, Ayoko nga, hindi mo ako pinilit eh! the pleasure of the plaintiff. The rule presupposes that the original inclusion had been made in the
Meaning, all of them will suffer because ayaw ni sister 1 mag-file ng kaso.
Q: Now, what is the remedy of the 4 brothers?
A: Under Section 10, include the one who refused as one of the defendants. If there is unwilling plaintiff,
name him as defendant whether he likes it or not.
MISJOINDER AND NON-JOINDER OF PARTIES
Sec. 11. Misjoinder and non-joinder of parties. Neither misjoinder nor non- joinder of parties is ground
for dismissal of an action. Parties may be dropped or added by order of the court on motion of any
party or on its own initiative at any stage of the action and on such terms as are just. Any claim against
a misjoined party may be severed and proceeded with separately. (11a)
This is similar to Section 6 of Rule 2 misjoinder of causes of action is not a ground for dismissal of an
action. Misjoinder or non-joinder at parties is not a ground for a motion to dismiss because at any stage
of the case, the court can order a misjoined party to be removed or a party not joined to be included.
Q: Do you know what MISJOINDER of parties mean?
A: It means that two or more parties should not be joined but they are improperly joined. A good
example is, if there is no common question of fact or law. Meaning, you do not have any business to be
here but you are joined or misjoined. That is what we call misjoinder of parties. It is also known as
spurious class suit.
Well, NON-JOINDER is different. A party who should be joined was not joined such as a necessary party.
Q: What happens if a party is misjoined or if there is a non-joinder, should the case be dismissed? A: Not,
that is not a ground for dismissal.
Q: So what is the remedy then?
A: The remedy is to order the removal of the party who is misjoined, or to order the inclusion of the
party who should be joined. And that is not a defect which should cause the dismissal of the case
because the can always issue an order ordering the removal of a misjoined party or the inclusion of
joinder of a party who should be included.
Q: Does it mean to say therefore, that the plaintiff has the license to include anybody in an action? Like
for example, I have a case against somebody in the class, the trouble is in the meantime, I cannot identify
who among you who did the wrong to me. So I will file a case against all of you. Anyway later on, I can
dump you kung hindi ka talaga sabit. Now, is this allowed?
A: NO. That is not a license. What the law contemplates, according to the SC, the party was joined in
good faith believing that he was a defendant but actually it turned out to be wrong. So, you have no right
to sue anybody just like that. That is not an excuse for suing any party left and right. In the case of
REPUBLIC vs. SANDIGANBAYAN
173 SCRA 72 [1989]
HELD: Section 11 of Rule 3 does not comprehend whimsical and irrational dropping or adding of parties
in a complaint. What it really contemplates is erroneous or mistaken non- joinder and misjoinder of
parties. No one is free to join anybody in a complaint in court only to drop him unceremoniously later at
honest conviction that it was proper and the subsequent dropping is requested because it turned out
that such inclusion was a mistake.
CLASS SUIT
SEC. 12. Class suit. When the subject matter of the controversy is one of common or general interest to
many persons so numerous that it is impracticable to join all as parties, a number of them which the
court finds to be sufficiently numerous and representative as to fully protect the interests of all
concerned may sue or defend for the benefit of all. Any party in interest shall have the right to
intervene to protect his individual interest. (12a)
As a GENERAL RULE, if there are several real parties in interest, they shall be included in the case
whether indispensable or necessary. Example: There are 30 of us. The general rule is that all parties in
interest, indispensable or necessary shall be included.
EXCEPTION to the General Rule: Class Suit. Meaning, some of you will sue to represent the rest. That is
also known as the doctrine of virtual representation. The concept of a class suit was first enunciated in
the old case of
BORLAZA vs. POLISTICO
47 Phil. 345
FACTS: This case has something to do with raffle. A group of people decided to form an association which
they called Turnuhang Polistico. You become a member of this association by contributing a certain
sum of money. And then every Sunday after mass, half of the collection will go to the treasurer of the
association. The other half will be raffled off. This has been going on for months and years. The time
came when the funds of the association became very big. Some of the members, in behalf of all the
members, decided to file a case against the officers to render an accounting of all the amounts. The real
parties in interest would be the members.
ISSUE: Is the suit filed by some members in behalf of some members proper?
HELD: YES, because if We will require all the members to appear, it will be quite impossible. Therefore,
some members must be made to sue but only in behalf of all the members who are not around and it is
impracticable to bring them all to the court. A number of them may sue for the benefit of all.
Q: What are the CONDITIONS FOR A VALID CLASS SUIT ?
A: Under Section 12, the following are the conditions of a valid class suit:
1. The subject matter of the controversy is one of common or general interest to many persons
(such as the funds of the association in the case of POLISTICO); and
2. The parties are so numerous that it is impracticable to bring them all before the court.
In which case a number of them which the court finds to be sufficient and numerous and representative
as to fully protect the interests of all concerned may sue or defend for the benefit of all. Example is a
taxpayers suit filed in behalf of all the taxpayers in the Philippines. And there is no specific number of
persons that is provided by law.
Now, we will go to some interesting cases on class suit decided by the Supreme Court:
SULO NG BAYAN vs. ARANETA, INC.
72 SCRA 347 [1976]
FACTS: This concerns the big property of the Aranetas in Quezon City. It has been the subject matter of
litigation for the past years 3 or 4 decades. It is a big track of land in Quezon City occupied by so many
people who want to acquire it. They are questioning the title of the Aranetas
So, Sulo (torch) ng Bayan is the association of squatters. Since the properties of the Araneta is very big,
they subdivided it kanya-kanyang lote. Then a case was filed by Sulo ng bayan Association against
Araneta to annul the title of the latter.
ISSUE #1: Whether or not the action was file in the name of the real in interest.
HELD: Sulo ng Bayan is not the real party in interest. It violates Section 2 the action
must be prosecuted and defended in the name of the real parties in interest. The members occupying
the land are the plaintiffs. The association is not the one occupying the lot. So, the first question is, who
should be the plaintiff? It should be the members.
ISSUE #2: Whether or not the action was properly pleaded as a class suit
HELD: NO. This is the more important reason why they cannot qualify as a class suit: In a class suit, the
subject matter is of common interest to all. Meaning, lahat tayo is interesado. To illustrate:
You are Occupant No. 1, which lot do you occupy? Here (a particular lot). Meron ka bang interest
diyan? Meron. Do you have an interest in that (another lot) portion? Wala. If that is so, then the
subject matte is not of common interest. The interest of one occupant is only on the lot he occupies.
Meaning, My neighbor does not have an interest on the lot I occupied.
What should be done is that all of them to sue together to cover the entire property, for each one has a
lot. So, in that case, Section 6 should be applied permissive joinder of parties because there is a
common question of fact. This is more of permissive joinder of Parties rather than a class suit. Thats why
you can confuse Section 6 with Section 12. But the permissive joinder of parties kailangan, lahat kayoi
nandiyan. Hindi puwede na I will represent you. Kanya-kanya yan but they can join together. Unlike in a
class suit, the subject matter is of interest to everybody and we cannot all be joined because we are so
numerous.
BULIG-BULIG KITA KAMAGANAK ASSOCIATION, ET AL vs. SULPICIO LINES
May 19, 1989
RE: Doa Paz Tragedy iyong lumubog na barko owned by Sulpicio Lines.
FACTS: There we so many relatives who filed a case against Sulpicio Lines and there was an attempt to
file a class suit in behalf of everyone who were drowned including those who were not identified.
HELD: That cannot be. The survivors have no interest in the death of other passengers. The interest in
this case is individual. What would have been proper is permissive joinder of parties because of common
question of tact or law, but not class suit.
OPOSA vs. FACTORAN
224 SCRA 12 [1993]
FACTS: Oposa et al were all minors. Some were small boys duly represented by their parents. They filed a
case against then DENR Secretary Factoran. The prayer in the case is to order the DENR to cancel all
existing Timber License Agreements (TLAs), to cease and desist from proceeding, accepting, processing,
renewing all accruing new TLAs. So, in effect, it prays for a total log ban in the country to preserve the
remaining forest all over the Philippines.
These young boys sue with their parents. They are suing in their behalf, in behalf of the other citizens
who are of their age because they stand to suffer if the environment will be deteriorated. They say that
they are entitled to the full benefit, use and enjoyment of the natural resources of our countrys rich
tropical rainforests. They say, the case was tiled for themselves and others for the preservation of our
rainforest and we are so numerous that it is impracticable to bring all plaintiffs to court. They say that
they represent their generations and generations yet unborn.
HELD: The civil case is indeed a class suit. The case however has a special and novel element. The
personality of the minors to sue for the succeeding generations is based on the concept of inter-
generational responsibility insofar as a balanced and healthful ecology is concerned. Every generation
has a responsibility to preserve the ecology. The minors right to a sound environment constitute at the
same time the performance of the obligation to ensure the protection of the rights or the generations to
come.
Q: In case of doubt, should a class suit be allowed?
A: NO. When the issue is not so clear, a class suit should not be allowed b e cause class suit is an
exception to the general rule that all parties should be included.
CADALIN vs. POEA ADMINISTRATOR
238 SCRA 721 [1995]
HELD: While it is true that class suit is allowed, it should be allowed with caution because the fact that
you represent others is only a fiction of law. For all you know, those others may not want to be
represented. So okey lang kung manalo ang kaso. Eh kung matalo ang kaso? All others start blaming you.
That is why the court is extra-cautious in allowing class suits because they are the exceptions to the
condition sine qua non requiring joinder of all indispensable parties.
In an improperly instituted class suit, there would be no problem it the decision secured is favorable to
the plaintiffs. The problem arises where the decision is adverse to them. In which case, the parties who
are impleaded through their self-appointed representatives would surely plead denial of due process.
Q: Distinguish a representative suit from a class suit. A: In the case of
LIANAS SUPERMARKET vs. NLRC
257 SCRA 186 [May 31, 1996]
FACTS: A labor union filed a case against the employer in behalf of hundreds of employees. Is this a
representative suit or a class suit?
HELD: What makes the situation a proper case for a class suit is the circumstance that there is only one
right or cause of action pertaining or belonging in common to many persons, not separately or severally
to distinct individuals. The object of the suit is to obtain relief for or against numerous persons as a group
or as an integral entity, and not as separate, distinct individuals whose rights or liabilities are separate
from and independent of those affecting the others.
In a representative suit, there are different causes of action pertaining different persons. In the present
case, there are multiple rights or causes of action pertaining separately to several, distinct employees
who are members of respondent Union. Therefore, the applicable rule is that provided in Rule 3 on
Representative Parties. Nonetheless, as provided for in the Labor Code, a legitimate labor organization
has the right to sue and be sued in its registered name. This authorizes a union to file a representative
suit for the benefit of its members in the interest of avoiding an otherwise cumbersome procedure of
joining all union members in the complaint, even if they number by the hundreds. For convenience, the
Labor Code allows a union to file a representative suit.
It is important to note the following:
1. CLASS SUIT
2. REPRESENTATIVE SUIT
3. DERIVATIVE SUIT only peculiar to the corporation law where the minority files a suit in
behalf of the entire corporation because intra-corporate remedy is useless.
ALTERNATIVE DEFENDANTS
Sec. 13. Alternative defendants. Where the plaintiff is uncertain against who of several persons he is
entitled to relief, he may join any or all of them as defendants in the alternative, although a right to
relief against one may be inconsistent with a right of relief against the other. (13a)
Alternative defendants is also related to alternative causes of action even if your right against one is
inconsistent with your right to relief against the other party, you may file a suit against the alternative
defendant. (c.f. Rule 2, Section 5 Joinder of Causes of Action)
You filed a case against the operators of two vehicles. In effect, your cause of action is either culpa
aquiliana or culpa contractual. Is that not inconsistent? The law says, although a right to relief against
one may be inconsistent with a right against the other. In other words, even if the two causes of action
is inconsistent with each other, it is allowed.
As a matter of fact, this is the best policy because the plaintiff is a sure winner. The only question is, who
among the two will be held liable.
Although the law is silent, if there is such a thing as alternative defendants, there is no reason why the
grounds for alternative plaintiffs should not be allowed.
Q: (Taken from Remedial Law Reviewer by Nuevas) May plaintiff join in the alternative?
A: YES, plaintiffs may join in the alternative under the same principle as alternative joinder of
defendants. When several persons are uncertain as to who among them is entitled to relief from a
certain defendant, they may join as plaintiffs in the alternative. This is also sanctioned by the rule on
permissive joinder of parties (Pajota vs. Jante, L-6014, Feb. 8, 1955). Thus, the principal and his agent
may join as plaintiffs in the alternative against a defendant. If the agency is proved, the relief is awarded
to the principal. If not, award is then made to the agent.
Sec. 14. Unknown identity or name of defendant. Whenever the identity or name of a defendant is
unknown, he may be sued as the unknown owner, heir, devisee, or by such other designation as the
case may require; when his identity or true name is discovered, the pleading must be amended accord.
(14)
Q: Can you sue somebody who is unknown? A: YES, under Section 14.
BAR PROBLEM: While Leyva The Rapper was walking on the street. He was bumped by a car, say a
Toyota Altis, 2001 model, color blue. Now, so far, he could not determine who is the owner. If you are
the lawyer of the Leyva, how would you sue the defendant?
A: Under Section, I will sue the owner of that car as an unknown defendant. I can place in my complaint,
Leyva the rapper, plaintiff, vs. the registered owner of Honda motor vehicle with plate number so and
so. And later if you discover the true identity of the owner, we can amend the complaint to place the
name of the defendant.
Section 14 is similar with Rule 110 in Criminal Procedure a case may be filed against an unknown
accused.
RULE 110, SEC. 7. Name of the accused. The complaint or information must state the name and
surname of the accused or any appellation or nickname by which he has been or is known. If his name
cannot be ascertained, he must be described under a fictitious name with a statement that his true
name is unknown.
If the true name of the accused is thereafter disclosed by him or appears in some other manner to the
court, such true name shall be inserted in the complaint or information and record. (7a)
ENTITY WITHOUT JURIDICAL PERSONALITY AS DEFENDANT
Sec. 15. Entity without juridical personality as defendant. When two or more persons not organized as
an entity with juridical personality enter into a transaction, they may be sued under the name by
which they are generally or commonly known.
In the answer of such defendant, the names and addresses of the persons composing said entity must all
be revealed.
Rule 1, Section 1 provides that only natural of juridical persons may be sued.
Entity without juridical personality as defendant. Under the old law, this was known as suing two or
more persons involved in a business under a common name. When two or more persons transact in a
business under a common name, they may be sued under their common name.
Q: Who are really the defendants here? A: The persons involved.
Now, it is worded in this manner: When two or more persons not organized as an entity with juridical
personality, instead of a common name. You cannot sue the entity because it has no juridical
personality. But you do not also know the members of that entity, so the law allows you to file a case
against the entity.
Under the second paragraph of Section 15, when the defendants file an answer, they must file under
their names as they are really the real parties in interest. When the lawyer answers the complaint, he is
duty-bound to provide the names of all the defendants.
Q: How do you summon this kind of defendant? A: Rule 14, Section 8:
RULE 14, Sec. 8. Service upon entity without juridical personality. When persons associated in an entity
without juridical personality are sued under the name by which they are generally or commonly
known, service may be effected upon all the defendants by serving upon any one of them, or upon the
person in charge of the office or place of business maintained in such name. But such service shall not
bind individually any person whose connection with the entity has, upon due notice, been severed
before the action was brought. (9a)
Correlate this with Rule 36, Section 6:
Sec. 6. Judgment against entity without juridical personality. When judgment is rendered against two
or more persons sued as an entity without juridical personality, the judgment shall set out their
individual or proper names, if known. (6a)
GENERAL RULE: actions must be filed against real parties in interest.
EXCEPTIONS: (When may an action be filed without naming all the parties in involved?)
1. Class suit (Section 12, Rule 3);
2. Entity without juridical personality (Section 15, Rule 3);
3. Any co-owners may bring an action for ejectment (Article 487, New Civil Code)
EFFECT OF DEATH OF A PARTY
Sec. 16. Death of party; duty of counsel. Whenever a party to a pending action dies, and the claim is
not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30) days
after such death of the fact thereof, and to give the name and address of his legal representative or
representatives. Failure of counsel to comply with this duty shall be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the deceased, without
requiring the appointment of an executor or administrator and the court may appoint a guardian ad
litem for the minor heirs.
The court shall forthwith order said legal representative or representatives to appear and be
substituted within a period of thirty (30) days from notice.
If no legal representative is named by the counsel for the deceased party, or if the one so
named shall fail to appear within the specified period, the court may order the opposing party, within
a specified time, to procure the appointment of an executor or administrator for the estate of the
deceased and the latter shall immediately appear for and on behalf of the deceased. The court charges
in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. (16, 17a)
First of all, there are cases when a party to a pending action dies and the claim is not thereby
extinguished (this is what they called an action which survives as we will explain later) and there are
certain actions where if a party dies, the claim is automatically extinguished. Meaning, the death of a
party causes death of the action. But these are very few. Majority of cases when the party dies, the case
or the cause of action continues.
It is the duty of the lawyer of the deceased to inform the court within 30 days after the death of the
party thereof. He must inform the court and give the name and address of his legal representative/s
(e.g. administrator of executor of the estate)
Well of course, under the rule in legal ethics, the lawyer-client relationship is automatically terminated
by the death of the client because the lawyer-client relationship is personal. But procedurally, you must
tell the court and you must give the name of the legal representative. The latter may re-hire the lawyer
but under a new contract.
The purpose there is for substitution so that the legal representative will be ordered substituted. And
there is a new provision under the new rules. That is, failure of the counsel to comply with his duty shall
be a ground for disciplinary action. That is not found in the prior rule. So, the lawyer can be subjected to
disciplinary action.
So the provision continues, the heirs of the deceased may be allowed to be substituted for the
deceased without requiring the appointment of an executor or administrator. And the court may appoint
a guardian ad litem for the minor heirs.
So, other than the legal representative, before anything else, the representative refers to the executor or
administrator, and the other alternative will be the heirs, such as the surviving children, wife or spouse.
Although there was a case decided by the SC way back in 1986 in the case of
 LAWAS vs. COURT OF APPEALS
146 SCRA 173
HELD: The priority of substitution would be the executor or administrator not the heirs. The heirs would
only be allowed to be substituted if there is an (1) unreasonable delay in the appointment of
administrator or executor, or (2) when the heirs resort to extrajudicial partition. But outside of those two
reason, the law always gives priority to the administrator or executor.
Under the rule, priority is given co the legal representative of the deceased. That is, the executor or the
administrator of his estate. Many courts do not enforce it strictly. Normally, patay na, O! Ito ang heirs
o! OK! Substitute! Actually, that is wrong based on LAWAS case. The priority is given to the allowed to continue until entry of final judgement. Meaning, until it becomes final and executory.
administrator or executor. It is only when there is unreasonable delay in the appointment, or when the
heirs resort to extrajudicial partition because there is no more administrator or executor in extrajudicial
settlement.
VDA. DE SALAZAR vs. COURT OF APPEALS
250 SCRA 303 [November 23, 1995]
FACTS: This is an ejectment. case. The defendant died while the case is going on. What is the procedure?
There should be substitution. But there was no substitution in the case for ten years, until it was decided.
The court was not informed of the death of the defendant. Until finally, there was a decision.
ISSUE: When there is failure to effectuate the substitution of heirs before the rendition of judgment, is
the judgment jurisdictionally detective? Because here, the case continued eh, in which somebody is
already dead.
HELD: NO, the judgment is valid where the heirs themselves appeared before the trial court and
participated in the proceedings. Therein, they presented evidence in defense of the deceased defendant.
It is undeniably evident that the heirs themselves sought their day in court and exercised their right to
due process.
In other words, when there was a defect the heirs however cannot used that because they themselves
appeared and continued the case. So, in effect, there was estoppel.
EFFECT OF DEATH OF A PARTY ON MONEY CLAIMS
Now, one of the radical changes again introduced by the new rules is the effect of the death of the
defendant in a money claim action to collect a sum of money.
Sec. 20. Action on contractual money claims. When the action is for recovery of money arising from
contract, express or implied, and the defendant dies before entry of final judgment in the court in
which the action was pending at the time of such death, it shall not be dismissed but shall instead be
allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintiff
therein shall be enforced in the manner especially provided in these Rules for prosecuting claims
against the estate of a deceased person. (21a)
The best example here is an action to collect an unpaid loan. And while the case is pending the
defendant died. What will happen to the case? The law says: If the defendant dies before the entry of
the final judgment in the court at the time of death, it shall not be dismissed but it shall instead be
allowed to continue until entry of final judgment.
Under the OLD RULES, the case shall be dismissed. So, the civil case is not suspended but it will be
dismissed. Eh, paano 'yung utang? Now, you file a case against the estate of the deceased under the
Rules on Special Proceedings. But definitely the civil case hindi na matuloy . . . patay na iyon when the
defendant dies.
Now, under the NEW RULE, the case will not be dismissed but rather, the case will now continue until
entry of final judgment. That is a radical change of procedure! So case will not be dismissed. It shall be
Q: But of course, if the judgment is favorable to you (the plaintiff), can you move to execute? Can you
move to execute the decision against or buy the property of the defendant?
A: NO, because the law provides, xxx a favorable judgment obtained by the plaintiff therein shall be
enforced in the manner specially provided in these Rules for prosecuting claims against the estate of a
deceased person.
Q: And what is that procedure?
A: YOU FILE A CLAIM against the estate under Section 5, Rule 86 of the Rules of Court, but there will be
no execution.
[Note: SEE OUTLINE AT THE LAST PART OF THIS RULE.]
Q: We are talking of death of a party in a pending civil action. While there is a case and a party dies, what
will happen to the case?
A: I will distinguish Anong klaseng kaso iyar. Is that an ACTION WHICH DOES NOT SURVIVE or an
ACTION WHICH SURVIVES?
1.) ACTION WHICH DOES NOT SURVIVE
An action which does not survive is an action which is abated upon the death of a party. The case cannot
go on once a party dies. And normally, that refers to actions which are purely personal in character like
an action for annulment of marriages, an action for declaration of the nullity of marriage or, an action for
legal separation, or an action for support. These are the cases arising from the Family Code.
Example: The husband files a case against the wife for annulment of marriage or legal separation. One of
them dies. Wala nang substitution, TAPOS NA! When one of the parties dies, the marriage is dissolved.
There is nothing to annul because the marriage is already dissolved. So, these are the actions which are
purely personal .
Q: So, what is the effect of the death of the party in actions which does not survived? A: The case is
dismissed!
However, these cases are very few. Majority of the cases are damage suit, recovery of possession,
recovery of land, recovery of unpaid loans, etc. So, these are what you call actions which survive.
Meaning , if a party dies, you cannot say that the case is terminated upon the death of the party. So, ano
ang mga kaso na iyan?
2.) ACTIONS WHICH SURVIVE
Is it a contractual money claim or non-contractual claim? If it is a contractual claim, who died
is it the plaintiff or is it the defendant? If the defendant is the one who died, when did he
die?
2a.) Actions which survive; CONTRACTUAL MONEY CLAIMS:
2a1.) If it is the plaintiff who dies, the case will continue. The heirs or legal
representatives will proceed. So, there is substitution.
2a2.) If it is the defendant who dies, the question is: KAILAN NAMATAY? Before
entry of final judgment or after entry? This is where Section 20 will come in.
2a2a.) If the defendant died before entry of final judgment, you apply
Section 20 of Rule 3. Meaning, the case shall not be dismissed but shall be allowed
to continue until entry of final judgment. And the favorable judgment obtained by
the plaintiff therein shall be enforced in the manner especially provided in these
Rules for prosecuting claims against the estate of a deceased person, and that is
Section 5 of Rule 86.
2a2b.) If the defendant died after the entry of the final judgment but
before execution (after the judgment became final but before there could be levy
or execution) you cannot move to execute. Again, you apply Section 5 of Rule 86
which is the governing rule you file your judgment as a claim against the estate
of the deceased defendant. [Section 5, Rule 86 - Please refer to your codals.] The
purpose there is, so that the creditor will share with the other creditors pro-rata in
the distribution of the estate.
2a2c) If the defendant died after levy or execution but before the
auction sale meaning, the property was already levied by the sheriff bago pa
namatay we will now apply Section 7[c] of Rule 39:
Rule 39, Sec. 7. Execution in case of death of party. In case of the death of party,
execution may issue or be enforced in the following manner:
xxxxxx
(c) In case of the death of the judgment obligor, after execution is actually levied
upon any of his property, the same may be sold for the satisfaction of the
judgment obligation, and the officer making the sale shall account to the
corresponding executor or administrator for any surplus in his hands. (7a)
Meaning, after the levy, namatay, auction sale proceeds as scheduled. And if there
is an excess, the excess shall be delivered to the administrator of executor.
2b.) Actions which survive; NON-CONTRACTUAL MONEY CLAIMS:
EXAMPLE: an action for recovery of property, real or personal like replevin, forcible
entry, unlawful detainer, action publiciana, action reinvidicatoria, or action for
damages, (damages that is not the same for transaction of money because
damages arising from culpa aquiliana is one not arising from contract.)
If a party dies in an action which survives which is a non-contractual money claim,
obviously, there is substitution of parties. So, what are these non-contractual
money claims which survive? These are those mentioned in Section 7 of Rule 86
and Section 1 of Rule 87. That is in the study of Special Proceedings on settlement
of the estate of a deceased person.
So, that is the outline in the light of the amendments of the Rules of Court.
[PLEASE REFER TO THE OUTLINE HEREIN ATTACHED.]
Note: What Section 20 says is that: before the case can be decided and the defendant dies (in actions
involving money claims) the case shall not be dismissed but shall instead be allowed to continue until
entry of final judgment. BUT CONTINUE AGAINST WHOM? Against the deceased? Now, to my mind, you
correlate this with Section 16 --- there should still be substitution.
But assuming, there was no substitution and the heirs fought in the case; there is waiver because the
defect is procedural. Just like what happened in the case of VDA. DE SALAZAR. Actually, what Section 20
emphasized is that, the action shall not be dismissed but shall continue to emphasize that it is now
different compared with the prior RULE. But obviously, there will always be a substitution
Sec. 17. Death or separation of a party who is a public officer. When a public officer is a party in an
action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office,
the action may be continued and maintained by or against his successor if, within thirty (30) days after
the successor takes office or such time as may be granted by the court, it is satisfactorily shown to the
court by any party that there is a substantial need for continuing or maintaining it and that the
successor adopts or continues or threatens to adopt or continue the action of his predecessor. Before a
substitution is made, the party or officer to be affected, unless expressly assenting thereto, shall be
given reasonable notice of the application therefor and accorded an opportunity to be heard. (18a)
This applies only when the public officer is party to an action in his official capacity. If he (1) dies; (2)
resigns; or (3) cease to hold office, there will be a succession.
Q: What will happen to the case? A: The following:
1.) If the successor intends to continue with the policy.
EXAMPLE: Mayor Pascua threatened to demolished the building of Mr. Nuere as a hazard. If Mayor
Pascua dies, Vice-Mayor Angeles becomes the mayor. If Vice-Mayor Angeles who is now the mayor says
that he will continue with the demolition, he will be substituted and he is given 30 days to comment.
2.) If the successor does not adopt the policy, the case will be dismissed.
Sec. 18. Incompetency or incapacity. If a party becomes incompetent or incapacitated, the court, upon
motion with notice, may allow the action to be continued by or against the incompetent or
incapacitated person assisted by his legal guardian or guardian ad litem. (19a)
EXAMPLE: Francis files a case against Kenneth. While the case is pending, Kenneth becomes insane. (tsk!
tsk!) The case will continue but Kenneth has to be assisted by his guardian ad litem Thad.
This is related to Rule 3, Section 3 on representative party but in Section 3, Kenneth was already insane
before the case is filed. [inborn na yan eh!]
Sec. 19. Transfer of interest. In case of any transfer of interest, the action may be continued by or against
the original party, unless the court upon motion directs the person to whom the interest is transferred to
be substituted in the action or joined with the original party. (20)
EXAMPLE: Rudolpho files a case against Leweh to recover a piece of land. While the case is pending,
Leweh sold the land to Erec. Erec now assumes the risk and takes the property subject to the outcome of
the case.
Q: Can the case continue against Leweh? A: YES.
1.) If Leweh loses and cannot pay, Erec is subsidiary liable; 2.) Leweh can be removed and Erec will be
substituted; or 3.) Leweh can stay and Erec will be added.
In all 3 cases, Erec will be bound by the judgment.
Sec. 21. Indigent party. A party may be authorized to litigate his action, claim or defense as an indigent
if the court, upon an ex parte application and hearing, is satisfied that the party is one who has no
money or property sufficient and available for food, shelter and basic necessities for himself and his
family.
Such authority shall include an exemption from payment of docket and other lawful fees,
and of transcripts of stenographic notes which the court may order to be furnished him. The amount
of the docket and other lawful fees which the indigent was exempted from paying shall be a lien on
any judgment rendered in the case favorable to the indigent, unless the court otherwise provides.
Any adverse party may contest the grant of such authority at any time before judgment is
rendered by the trial court. If the court should determine after hearing that the party declared as an
indigent is in fact a person with sufficient income or property, the proper docket and other lawful fees
shall be assessed and collected by the clerk of court. If payment is not made within the time fixed by
the court, execution shall issue for the payment thereof, without prejudice to such other sanctions as
the court may impose. (22a)
In criminal cases, the court assigns a counsel de officio. Under the Constitution on Bill of Rights, no
person shall be denied access to courts by reason of poverty.
In civil cases, a plaintiff need not pay docket fee if he is an indigent if he files an application (ex- party
application) to allow him to litigate as an indigent litigant. But if the indigent wins, he has to pay the fees
file now, pay later) the amount shall be a lien on any favorable judgment.
The third paragraph is new. The other party may contest the claim of the indigent if he is really an
indigent or not.
Sec. 22. Notice to the Solicitor General. In any action involving the validity of any treaty, law,
ordinance, executive order, presidential decree, rules or regulations, the court, in its discretion, may
require the appearance of the Solicitor General who may be heard in person or through a
representative duly designated by him. (23a)
EXAMPLE: Inday (the love-is-blind club president) files a case against Kenneth Bruce Lim for declaration
of nullity on the ground of psychological incapacity. Kenneth alleges that Article 38 of the Family Code is
unconstitutional. So the court will rule on the validity of the law in which case, the Solicitor General has
to be involved in the case to defend the validity of the law.
REASON: The Solicitor General is the legal counsel of the Republic of the Philippines whose duty is to
defend all the official acts of the Government.
Rule 4
VENUE OF ACTIONS
Q: Define venue.
A: VENUE is the place where the action must be instituted and tried. (Ballentines Law Dict., 2nd Ed., p.
1132)
EXAMPLE: The venue of the action is in Davao, or the venue of the action is in Manila. If you file the
action in other places, that is improper or wrong venue. In criminal cases, that is called territorial
jurisdiction the place where the crime was committed. But in civil cases, venue is not the same with
jurisdiction. We do not call it territorial jurisdiction. We call it venue.
This is where it is important to determine whether the action is real or personal for the purpose of
venue. The venue of real action is stated in Section 1 and the venue for personal action is stated in
section 2.
VENUE OF REAL ACTIONS
Section 1. Venue of real actions. 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.
Forcible entry and detainer actions shall be commenced and tried in the municipal trial
court of the municipality or city wherein the real property involved, or a portion thereof, is situated.
(1[a], 2[a]a)
While it is true that the rule on venue is new however, the rule on venue even before 1997 as earlier as
August 1, 1995, Rule 4 of the 1964 Rules has already been amended by the administrative Circular No.
13-95, but now it incorporated under the Rules of 1997.
Now, when the action is real, we distinguish whether it is forcible entry and unlawful detainer or action
publiciana or action reinvidicatoria. If it is accion publiciana or reinvidicatoria, the proper venue is the
one which has jurisdiction over the area wherein the real property involved or a portion thereof is
situated. Of course, the RTC is divided into areas. every branch has its own designated area of
responsibility.
Q: Why does the law say tried in the proper court?
A: It is because proper court will now be the MTC or the RTC, depending on the assessed value of the
property. If the assessed value is P20,000 or less, MTC yan. If it is over P20,000, it should be in the RTC.
Now in the case of forcible entry and unlawful detainer, paragraph 2 will apply that is, MTC it is in the
municipality or city wherein the real property involved or a portion thereof is situated. So, kung saan
iyong real property, doon din ang venue. Now, it is possible that for a property be in the boundary of two
towns. Example: one half is part of Davao City and the other half is in the municipality of Panabo. So, if
you would like to file a case for forcible entry against somebody, you have two choices. You can file it in
the MTC of Panabo or in the MTC of Davao City.
Now, lets go to personal actions.
VENUE OF PERSONAL ACTIONS
Sec. 2. Venue of personal actions. All other actions may be commenced and tried where the plaintiff
or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants
resides, or in the case of a non-resident defendant where he may be found, at the election of the
plaintiff. (2[b]a)
Iyan ang tinatawag natin na TRANSITORY ACTION . The venue will now depend on the residence of the
parties. In the civil action, the venue is (1) the place where the plaintiff resides or (2) where the
defendant resides, at the election of the plaintiff. So, puwede kang pumili sa dalawa.
Now, suppose, there are four (4) plaintiffs and 4 defendants and the 4 plaintiffs reside in 4 different cities
or municipalities. So ang choice mo ng venue ay walo (8) becuae the law says, where the plaintiff or any
of the principal plaintiffs or where the defendant or any of the principal defendants reside
So, kung maraming defendants at iba-iba ang lugar at maraming plaintiffs, the residence of each one
could be the proper venue.
NOTE: PRINCIPAL PLAINTIFF, PRINCIPAL DEFENDANT. Because there is such a thing as nominal defendant
and nominal plaintiff iyun bang formal lang.
EXAMPLE of a nominal party: When a party wants to file a case to annul an execution sale of to annul a
levy, normally it pleads the sheriff as party. But the sheriff is not the principal party but is only a
NOMINAL PARTY. So, the residence of the sheriff is not considered the sheriff being a nominal party only.
So, just imagine if there are 4 plaintiffs and 4 defendants, iba-ibang cities. There 8 choices of venue. That
is the original concept of forum shopping. I will cite the original case which traced the history of forum-
shopping na kung saan ako convenient, doon sko mag-file. That is the original concept which is legal
and legitimate. The trouble is, the concept of forum shopping degenerated into a malpractice , where a
lawyer, mag-file ng case, sabay-sabay. Ayan! That is why there is a SC case which I will later discuss
where Justice Panganiban cited the history of forum shopping. (Dean is referring to the case of FIRST
PHILIPPINE INTERNATIONAL BANK vs. CA (252 SCRA 259), January 24, 1996)
Forum shopping is legitimate and valid but the trouble is, the practice acquired another unsavory
meaning, where a lawyer will file simultaneous cases. Kaya nga nasira from a legitimate practice to an
act of malpractice. That is the history of forum shopping.
However, there are instances when it is easy to distinguish whether the action is real or personal and
there are also instances when it is difficult.
EXAMPLE: An action for annulment of a contract of sale or rescission of contract of sale of real property.
Generally, an action for annulment or rescission is a personal action. But suppose , I will file a complaint
to annul or rescind a contract of a deed of sale over a parcel of land. Im from Davao and youre from
Davao. But I would like to annul the sale of a land which I made to you one year ago which land is
situated in Digos and the purpose of my action is to recover the ownership of that land. Then, that is a
real action because the primary object of the suit is to recover the ownership of real property, di ba? It
seems to be personal but in reality it is a real action. So the venue is governed by Section 2.
But there are also actions na King tingnan mo parang real but in reality, they are personal actions. Like
what happened in the case of
LA TONDEA DISTILLERS INC vs. PONFERRADA
264 SCRA 540 [1996]
FACTS: Judee entered into a contract where she committed herself to sell her land to Maying. And Judee
even placed a lis pendens on the property. But later Judee said, Gua bo ai! (chinese for ayoko na!)
Nag-back out ba! So Maying will file a case against Judee for specific performance to compel her to sign
the deed of sale.
Ang question diyan, ano ba ito? real or personal action? Because if it is real action, the complaint should
be filed in the place where the land is situated. If the action is personal, it can be filed in Davao City
where both of them are residents.
ISSUE: Is this real or personal action?
HELD: It is a PERSONAL ACTION because you are not questioning my ownership. Here, the plaintiff
recognizes that the defendant is still the owner. Kaya nga he is still filing the case to compel him to sell.
Thus, it should be filed in the residence of the parties. The complaint is one for specific performance
with damages. Private respondents do not claim ownership of the lot but in fact recognized title of
defendants by annotating a notice of lis pendens. In one case, a similar complaint for specific
performance with damages involving real property, was held to be a personal action, which may be filed
in the proper court where the party resides. Not being an action involving title to or ownership of real
property, venue, in this case, was not improperly laid before the RTC of Bacolod City. (Adamos vs.
Tuazon 25 SCRA 30 [1968])
So it is not really an action affecting title or ownership because you are still recognizing the title of the
owner of the property. It is different when Im no longer recognizing it, like recovery or reinvidicatoria.
These are gray areas, or sometimes very hard to distinguish whether the action is real or personal.
Q: [Taken from Remedial Law Reviewer by Nuevas] Where several or alternative reliefs are sought in an
action, and the reliefs prayed for are real and personal, how is venue determined?
A: Where several or alternative reliefs are prayed for in the complaint, the nature of the action a s real or
personal is determined by the primary object of the suit or by the nature of the principal claim. Thus,
where the purpose is to nullify the title to real property, the venue of the action is in the province where
the property lies, notwithstanding the alternative relief sought, recovery of damages, which is predicated
upon a declaration of nullity of the title. (Navarro vs. Lucero, 100 Phil. 146)
Where a lessee seeks to establish his right to the hacienda, which was subsequently sold, for the purpose
of gathering the crops thereon, it is unnecessary to decide whether the crops are real or personal
property, because the principal claim is recovery of possession of land so that he may gather the fruits
thereof. (LTC vs. Macadaeg, 57 O.G. 3317)
Now, going back to Section 2.
RESIDENCE OF THE PARTIES
We will now go the issue of residence. Where is the residence of the parties? Because residence in law
could mean DOMICILE OR LEGAL RESIDENCE, it could be ACTUAL OR PHYSICAL RESIDENCE.
Alam mo, iyong legal domicile, you may not be there but there is intention to go back there someday.
Alright, with the exception of only one case, the word residence and venue has been uniformly Because the law said where the plaintiff or any of the principal plaintiffs.. So if the corporation is suing
interpreted by the SC to mean ACTUAL or PHYSICAL RESIDENCE not legal domicile. Alright, there are so
many case already: CO vs. CA (70 SCRA 296); FULE vs. CA (14 SCRA 189); HERNANDEZ vs. RURAL BANK OF
THE PHIL (81 SCRA 75); RAYMOND vs. CA (166 SCRA 50); ESCUERTE vs. CA (193 3CRA 54).
Pareho ang ruling niyan. EXCEPT for one case decided way back in 1956 the case of
CORRE vs. CORRE
100 Phil 221
FACTS: An American who resides in San Francisco who came to the Philippines rented an apartment in
Manila to sue his wife who is a Filipina. The wife is from Mindanao. And then the American husband filed
the case in Manila because residente man daw siya in Manila because he rented daw an apartment in
Manila. Now, if you follow the rule, tama man ang husband ba.
HELD: You are not a resident of Manila. Your residence is in San Francisco that is your domicile. So that
is to compel the American to file the case in the residence of the wife rather than the wife going to
Manila.
So the case of CORRE is the only exception where the SC said, residence means domicile. All the rest,
physical! In the case of CORRE, maybe the SC there was just trying to help the Filipina. If we will interpret
the rule on venue as physical, it is the Filipina who will be inconvenienced. If we say legal residence is the
venue, it is the American husband who would be forced to go to the Mindanao to file. And we should
favor our own kababayan. Yan siguro ang nangyari because that was the only exception eh.
RESIDENCE OF A CORPORATION
Under Rule 1, a corporation can sue and be sued. But what is the residence of a corporation? Under the
corporation law, the residence of a corporation is the place where its head or main office is situated
yung head office ba which is usually stated in the articles of incorporation.
Now, lets go to some interesting cases on this issue:
CLAVECILLA RADIO SYSTEM vs. ANTILLON
19 SCRA 39 [1967]
FACTS: Clavecilla was sued in Cagayan de Oro City. Clavecilla questioned the venue because its head
office is in Manila. The plaintiff argued that it can be sued because it has a branch in Cagayan.
ISSUE: Is a corporation a resident of any city or province wherein it has an office or branch?
HELD: NO. Any person, whether natural or juridical, can only have one residence. Therefore, a
corporation cannot be allowed to file personal actions in a place other than its principal place of business
unless such a place is also the residence of a co-plaintiff or defendant.
The ruling in the case of ANTALLON was reiterated in the 1993 case of YOUNG AUTO SUPPLY CO. vs.
COURT OF APPEALS (223 SCRA 670)
with someone from Davao, even if my head office is in Manila, I can file because of the residence of my
co-plaintiff or the residence of the defendant. But outside of that, a corporation cannot sue outside of its
head office because its residence is there. That is the case of YOUNG AUTO SUPPLY.
OR IN THE CASE OF A NON-RESIDENT DEFENDANTS WHERE HE MAY BE FOUND
Suppose the defendnt is not residing here in the Philippines but is just on vacation and you want to sue
him. What is now the point of reference?
Did you notice the phrase or in the case of a non-resident defendants where he may be found. Now
what does that mean? It means to say that the defendant is not actually residing in the Philippines but he
is temporarily around because he is found in the Philippines. Example is a balikbayan who is still on
vacation.
PROBLEM: Suppose a Filipino who is already residing abroad decided to come back this Christmas for a
vacation. When he landed at the Manila Domestic Airport and you are his friend and the first thing he
requested you is, wala pa akong Philippine peso, puro pa dollars. So pahiramin mo muna ako. I will pay
you in one weeks time once I have my dollars exchanged to pesos. How much do you want? He
borrowed from you P15,000.00. One week later, still he has not paid you and obviously it seems he will
not pay you. So you decided to sue him while he is around to collect the case advance of the P15,000
that you gave him. So, where is the venue of the action?
A: The law says, generally where the plaintiff resides or where the defendant resides. The trouble is, the
defendant has no residence here because he is already residing abroad. But he is temporarily here in the
Philippines.
You can sue him where he may be found. If he decides to stay in Cebu, that is where the proper venue
rather his permanent residence. So where he may be found is the alternative venue. The phrase where
he may be found means where he may be found here in the Philippines for a non-resident defendant
but temporarily staying in the Philippines.
Q: Suppose a defendant is a non-resident and he is not even here. Like for example, your neighbor
borrowed money from you and the nest thing you heard is that he left the country. He has already
migrated to the states. Of course you know his address there. Can you sue him in the Philippine court, a
defendant who is no loner residing here and is not found in the Philippines?
A: NO, you cannot. Charge it to experience.
Q: Why can you not sue a person not residing here in the Philippines and is not found here in the first
place?
A: There is no way for Philippine courts to acquire jurisdiction over his person. Otherwise, he will not be
bound by the decision.
But in our discussion on the element of jurisdiction: subject matter, person, res and issues, I told you that
the res or the thing in dispute is important because sometimes it takes the place of jurisdiction over the
person of the defendant. So even if the Philippine court cannot acquire jurisdiction over the person of
the defendant but the subject of the controversy (res) is in the Philippines, then the non-resident
defendant can also be sued in the Philippines. The court can now acquire jurisdiction over the res,
subject and since the res is here, the judgment can be enforced. It is not a useless judgement anymore.
EXAMPLE: He is there but he is the owner of a piece of land here. I want to file a case to recover
ownership over the land here in the Philippines, yaan!
Q: Can I sue the non-resident defendant?
A: YES under Section 3. Even if the person is abroad, the res of the property in dispute is here and if
he loses the case the judgment can be enforced transfer the property to you. So it is not a useless
judgment. That is what Section 3 is all about.
Sec. 3. Venue of actions against nonresidents. - If any of the defendants does not reside and is not
found in the Philippines, and the action affects the personal status of the plaintiff, or any property of
said defendant located in the Philippines, the action may be commenced and tried in the court of the
place where the plaintiff resides, or where the property or any portion thereof is situated or found,
(2[c]a)
Q: What is the difference between the non-resident defendant in Section 2 and the non-resident
defendant in Section 3?
A: In Section 2, the non-resident defendant may be found in the Philippines. But in Section 3, he does not
reside and is not found in the Philippines. So, physically, he is not around.
Q: What actions can be filed against a non-resident defendant who is not even found here in the
Philippines?
A: There are two (2):
1.) The action that affects the personal status of the plaintiff; or
2.) The action affects the property or any portion thereof of said defendants is located here in the
Philippines.
ACTION THAT AFFECTS THE PERSONAL STATUS OF THE PLAINTIFF
EXAMPLE: A young child was abandoned by his illegitimate father. The illegitimate father left the
Philippines for good. The son wants to file a case against the father for compulsory recognition, at least
to improve his status.
Q: Can the child file a case for compulsory acknowledgment here in the Philippines against the father for
compulsory acknowledgment?
A: YES because the action involves the person status of the plaintiff. The res is the status of the plaintiff
who happens to be in the Philippines.
THE ACTION AFFECTS THE PROPERTY OR ANY PORTION THEREOF OF SAID DEFENDANTS IS LOCATED
HERE IN THE PHILIPPINES
Example: The defendant who is already abroad owns a piece of land located here in the Philippines and I
want to recover the ownership of the piece of land.
Q: What is the res?
A: The res is the land which is situated here in the Philippines. Therefore I can sue that defendant even if
he is there because the court can acquire jurisdiction over the res.
In order to validly sue in the Philippine court, a defendant who is no longer residing here and is no longer
found here, the action must be: 1.) action in rem; or 2.) at least quasi-in rem, because if the action iis for
compulsory recognition, that is actually an action in rem. If the suit in involves a property here in the
Philippines, at least that is an action quasi-in rem.
But if the action is purely in personam, then there is no way by which you can sue him. Example is an
action to collect an unpaid loan.
Q: Where is now the proper venue of the action against the non-residents?
A: The law says where the plaintiff resides action which affects the personal status of defendants,
where the property of the defendant located here in the Philippines
Sec. 4. When rule not applicable. - this rule shall not apply -
a) In those cases where a specific rule or law provides otherwise; or
b) Where the parties have validly agreed in writing before the filing of the action on the
exclusive venue thereof. (3a, 5a)
A.) IN THOSE CASES WHERE A SPECIFIC RULE OR LAW PROVIDES OTHERWISE;
So, when there is a special rule or law on venue which applies only to certain types of cases, then that
rule will apply rather than Rule 4.
Q: What cases which provides for venue of the action which may be different from what Rule 4 says?
A: The following:
1.) A civil action arising from LIBEL under Article 360 of the Revised Penal Code.
Libel could give rise to a civil action for damages. It is considered under the RPC as one of the
independent civil actions. The criminal action for libel shall be filed simultaneously or separately with the
RTC of the:
a.) province or city where the libelous article is printed and first published; or
b.) where any of the offended parties actually resides at the time of the commission of the offense.
If one of the offended party is a public officer, whose office is in the City of Manila at the time of the
commission of the offense, the action shall be filed (a) in the RTC of Manila, or (b) in the RTC of the
province where he held office at the time of the commission of the offense.
2.) Section 5 (4), Article VIII, 1987 Constitution The SC may order a change of venue or place of trial to
avoid a miscarriage of justice as what happened in the case of Mayor Sanchez.
So these are the examples on the special rules. Alright
B.) WHERE THE PARTIES HAVE VALIDLY AGREED IN WRITING BEFORE THE FILING OF THE ACTION ON THE
EXCLUSIVE VENUE THEREOF.
So, it is possible that A and B will enter into contract providing for suits involving the violation of the
contract, the venue shall be in this particular place. Take note that the stipulation must be in writing and
it is there even before the filing of the action. Alright
EXAMPLE: Contracts of banks and other financing companies. Sometimes it says there that in case of
suits arising out of these contract, the action shall be filed in the City of Makati or Manila which is neither
the residence of the parties.
Q: Now, can we agree to file a case other that were the parties reside?
A: YES because the law says, we can agree on a place where the action will be filed provided it is in
writing and it is stipulated even before the filing of the action.
POLYTRADE CORP. vs. BLANCO
30 SCRA 187
FACTS: Charles and Joshua are both residing here in Davao City. Joshua borrowed money from Charles,
and Joshua executed a promissory note in favor of Charles which says, I promise to pay Charles the sum
of P200,000 one year from today. In case of a suit arising from this promissory note, the parties agree to
sue and be sued in the City of Manila.
When the note matured, Joshua did not pay. Charles filed a case to collect the unpaid loan here in Davao
City. Charles challenged the venue. According to Charles, the venue is correct because both of us are
residing here in Davao City and under Rule 4, the venue is where I reside or you reside, at my option.
Both of us are residing here so I sued you here.
Defendant Joshua says, no since there is a stipulation we both agreed upon that in cases of litigation, the
parties agree to sue and be sued in the City of Manila. So Manila is the correct venue.
ISSUE: Who is correct in this case? A the plaintiff or B the defendant?
HELD: Plaintiff is correct notwithstanding the stipulation. Why? When the parties stipulated on the
venue of the civil action, other that those found in the Rule of Court, the stipulated venue is considered
merely as an ADDITIONAL venue in addition to where the parties reside. Unless the stipulation contains
RESTRICTIVE words which shows the intention of the parties to limit the place stipulated as the exclusive
venue.
In other words, the parties agree to sue and be sued in the City of Manila, even if so, the venue of the
action is where the plaintiff resides or where the defendant resides in accordance with Rule 4, and the
third venue is according to the stipulation of the parties. So, the case here has three (3) venues of action.
Mamili ka sa tatlong venues because there is nothing in the agreement that the parties intended that
Manila is the only exclusive venue. There is no restrictive word.
I will change the PROBLEM:
Suppose the stipulation contains this statement, in case of suit arising out of this promissory note or
contract, the parties agree to sue and be sued exclusively in the City of Manila, yaan! Or, to sue and be
sued in the City of Manila only. The addition of the words exclusively or only shows the intention of
the parties to limit venue of the action only in that place. Therefore you cannot apply Rule 4, Sections 1-
3. So, in this case, Joshua can move to dismiss the case because the venue is exclusive.
So in the second exception where there is an agreement in writing on the exclusive venue, the word
exclusive is very important as taken in the ruling in POLYTRADE vs. BLANCO. So if the venue is not
exclusive, Rule 4 still applies and the stipulated venue is just an additional one.
Of course, there are stipulations which you can see clearly the intention of the parties to limit the venue
only in that place. But sometimes, there are stipulations in which it is difficult to decipher the real
intention of the parties whether exclusive or not. Examples of clear stipulations which calls for the
application of the POLYTRADE ruling: in the City of Manila only or the suit shall be filed in the City of
Manila and in no other place.
However, there are cases in which you cannot find the word exclusive or the word only, and yet the SC
said it seems the intention of the parties to limit the venue as exclusive as what happened in the 1994
case of
GESMUNDO vs. JRB REALTY CORP
234 SCRA 153
FACTS: This involves a lease contract which contain a stipulation on venue. Here is the language of the
lease contract: venue for all suits, whether for breach hereof or damages or any cause between the
LESSOR and the LESSEE, and persons claiming under each, being the courts of appropriate jurisdiction in
Pasay City
In other words, if there is a case, they agreed to file it in the court of Pasay City. ISSUE: Is this intention of
the parties to make Pasay City an exclusive venue?
HELD: Pasay City is the exclusive venue. It is true that in Polytrade Corporation v. Blanco, a stipulation
that The parties agree to sue and be sued in the City of Manila was held to merely provide an additional
forum in the absence of any qualifying or restrictive words. But here, by laying in Pasay City the venue for
all suits, the parties made it plain that in no other place may they bring suit against each other for breach
contract or damages or any other cause between them and persons claiming under each of them. In
other words, the intention of the parties is to make Pasay City the exclusive venue.
There are some cases in the SCRA where there is no restrictive word but the SC interpreted it as
restrictive. So it is in conflict with the POLYTRADE ruling because in POLYTRADE, the stipulated place
must be exclusive. Among the cases which seems to conflict with the ruling in POLYTRADE are the
following:
BAUTISTA vs. DE BORJA (18 SCRA 476)
HOECHST vs. TORRES (83 SCRA 297)
This conflict was resolved in the case of PHIL. BANKING vs. TENSUAN (228 SCRA 385) where the SC ruled
that the ruling in BAUTISTA vs. DE BORJA and HOECHST PHILS. vs. TORRES has been rendered obsolete by
the POLYTRADE ruling and subsequent cases reiterated it. So the ruling in POLYTRADE is the correct
ruling. Forget what the SC said in the abovementioned two cases.
SWEET LINES vs. TEVES
83 SCRA 361
FACTS: This is a Cagayan de Oro case which involves Sweet Lines, a shipping company with the head
office in Cebu. The respondent Teves is the former City Fiscal of Davao City, former Mayor and became
judge of CFI of Cagayan de Oro City.
There was a group of passenger who rode on the Sweet Lines bound for Cebu City. During the trip, they
were given a crude treatment by the officers of the vessel. When they came back in Cagayan de Oro City,
they filed a suit for damages against Sweet Lines. They filed the case in the former CFI, now RTC, of
Cagayan de Oro City because the plaintiffs are residents of Cagayan de Oro City.
Sweet Lines filed a motion to dismiss questioning the venue of the action because in the ticket issued by
Sweet Lines, it is stipulated that in case of a civil action arising from the contract of carriage, the venue
of the action shall be the City of Cebu ONLY and in no other place. So there is a restrictive word.
Obviously the lawyers of Sweet Lines knew about Polytrade because they moved to dismiss the case
citing this case.
Judge Teves denied the motion to dismiss the case despite the stipulation. According to him, it is unfair.
If I will dismiss the case based on this stipulation, the aggrieved parties will be discouraged in going to
Cebu. It is very expensive and they will be inconvenienced. But, if the case will go on in Cagayan de Oro,
it will not inconvenienced Sweet Lines because they have their branch office, their manage and their own
lawyer.
ISSUE: Whether or not Cagayan de Oro is the proper venue.
HELD: YES. Judge Teves was correct in not dismissing the case.
First of all, the stipulation is placed in the ticket. These people never even bothered to read this.
Nakalagay na iyan diyan eh. So either you take it or you leave it. Therefore, the passengers did not have a
hand in preparing that stipulation. So the contract is a contract of adhesion.
Second, again for the sake of equity, to be fair that these poor people will be compelled to go to Cebu to
file a case there. They will be discouraged. It is very expensive to go back and forth to Cebu. Whereas,
Sweet Lines has the resources, the means, the lawyers here in Cagayan to litigate. Therefore, it would be
inequitable to compel them or to apply the stipulation there.
The ruling in SWEET LINES is an exception to POLYTRADE despite the exclusive stipulation. The SC said
that the refusal of the court to apply it is correct. There is no grave abuse of discretion on the part of
Judge Teves.
ARQUERO vs. FLOJO
168 SCRA 540
FACTS: Arquero here is lawyer and the municipal mayor of the municipality of Sta. Teresita, Cagayan
Valley. He sent a telegram through the RCPI branch in Cagayan addressed to Manila. Meron siyang pabor
na hihingi-in sa Congressman: I will go there to Manila, I will see you in your office on this particular date.
So pinadala niya iyong telegrama.
When he went to the office of the congressman after the few days, nagalit pa yung congressman sa
kanya, So you are here to ask for a favor for your own. Ikaw na ang nangangailangan, pati telegrama ako
pa ang pabayarin mo?! Collect pa! Arquero was stunned eh because he paid the telegram. How come
naging collect? In effect, he was embarrased.
Pagbalik niya sa Cagayan, f-in-ile-an niya ng damages ang RCPI. But in the RCPI telegraph form, there is a
stipulation that venue of any action shall be the court of Quezon City alone and in no other courts. So
the venue is restrictive. With that, Arquero filed an action for damages in the RTC of Aparri Cagayan and
RCPI moved to dismiss for improper venue, stipulation according to the POLYTRADE case eh.
The trial court moved to dismiss the case because of this restrictive stipulation. Arquero went to the SC
citing the case of SWEET LINES where despite the fact of a restrictive stipulation, SC refused to apply the
POLYTRADE ruling.
HELD. The ruling in Sweet Lines vs. Teves does not apply. You are bound by the stipulation. Why? You are
a lawyer eh. Tarantado ka, bakit ka pumirma?! You are a lawyer. You know all these things. Why did you
sign?
So nayari siya. That was taken against him ha! As a matter of fact, it is there you can read it. It is in the
front, pumirma ka pa sa ilalim. In the case of Teves, you cannot read it.
Nasa likod, very small. In other words, you agree to be bound. As a lawyer, you should know what you
are signing.
Now, he last point to remember about venue is the difference between venue and jurisdiction. In
criminal cases, there is no distinction between jurisdiction and venue. The place of the filing of the case is
where the crime is committed or where the essential elements were committed. Therefore, when the
cases is committed in Davao City, you cannot file a case in Cotabato City. Cotabato has no territorial
jurisdiction over the case.
But in civil cases, if you violate Rule 4, do not say that the court has no jurisdiction. You only say, venue
was improperly laid. Yaan! So, if I will file an ejectment case against you in Davao City before the MTC
but I am ejecting you from your apartment in Tagum, do not make the mistake. If I move to dismiss on
the ground that the MTC has no jurisdiction, you are crazy. The MTC has jurisdiction over all unlawful
detainer cases. Ang walang jurisdiction is the RTC. The correct ground is: venue is improperly laid. But if
you file the unlawful detainer case in the RTC, you question the jurisdiction of the court, not the place.
So then, what is the main distinction?
Q: Distinguish JURISDICTION from VENUE. A: The following are the distinctions:
1.) JURISDICTION refers to the authority the court to hear the case, whereas
VENUE refers only to the place where the action is brought or tried;
2.) JURISDICTION over the subject matter cannot he waived; whereas
VENUE is waivable and can be subject of agreement;
3.) JURISDICTION is governed by substantive law Judiciary Law, BP 129; whereas
VENUE is governed by procedural law Rule 4 of the Rules of Court;
4.) JURISDICTION refers to the relation of the parties to the court; whereas VENUE refers to the relation
between the parties; and
5.) JURISDICTION limits the courts authority; whereas VENUE limits plaintiffs rights.
BAR QUESTION: State in what instance the jurisdiction and venue coincide.
A: In CRIMINAL CASES because in criminal cases, venue is territorial jurisdiction. But in civil cases,
jurisdiction and venue are two different things. They do not coincide.
Rule 5
UNIFORM PROCEDURE IN TRIAL COURTS
SECTION 1. Uniform Procedure The procedure in Municipal Trial Courts shall be the same as in the
Regional Trial Courts, except (a) where a particular provision expressly or impliedly applies only to
either of said courts, or (b) in civil cases governed by the Rule on Summary Procedure. (n)
The Rules on Procedure starting with Rule 6, the title of the subject matter is procedure in Regional Trial
Courts. However, by express provisions in Section 1, the procedure in the Regional Trial Court and the
procedure in the Municipal Trial Court is the same.
The Rules on Civil Procedure which applies to RTC are also applicable to the MTC except when a
particular provision expressly applies only to either of said courts.
There are provisions where it is very clear and intended only to apply to RTC or MTC. A good example of
this is paragraph (a) is Rule 40 which governs appeals from MTC to RTC. It is only applicable to MTC. It
does not apply to appeals from RTC to Court of Appeals.
The second example would be in civil cases governed by Rules on Summary Procedure. That would be
the last law that we will take up. Rules on Summary Procedure applied only to MTC. They do not apply to
RTC.
Sec. 2 Meaning of Terms. The term Municipal Trial Courts as used in these Rules shall include
Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Court, and Municipal Circuit
Trial Courts. (1a)
In our structure, we already illustrated the hierarchy of courts. Metropolitan Trial Courts are only in
Manila. Municipal Trial Courts are in cities and municipalities. When the Rule says Municipal Trial Court,
it already includes Metropolitan Trial Courts, MTCC, MCTC. So that we will not be repetitious.
PROCEDURE IN THE REGIONAL TRIAL COURTS
Rule 6
KINDS OF PLEADINGS
SECTION 1. Pleadings Defined. Pleadings are the written statements of the respective claims and
defenses of the parties submitted to the court for appropriate judgment. (1a)
Actually, we already touched the word PLEADING before. In the Constitution when we were asking
what is the basis of the authority of the Supreme Court to enact the Rules of Court or Procedural Law.
The Constitution says, the Supreme Court shall have the authority to promulgate Rules on pleadings,
practice and procedure. Then we discussed jurisdiction over the issues. Jurisdiction over the issues is
determined by the allegations in the pleadings.
Q: Define pleadings?
A: PLEADINGS are the written statements of the respective claims and defenses of the parties submitted
to the court for appropriate judgment. (Section 1)
This is the document where a party will state his claim against the defendant; or where the defendant
will state also his defense. Pleadings merely tell a story. You tell your story there, the other party will tell
his story.
And how do you assert your claim in court? Not by calling up a judge over the telephone or writing a
letter to the judge, Dear judge. but through the appropriate pleadings. How do they look like? The
rules are laid down. It becomes clearer in the 3rd year subject known as Legal Forms. In that subject you
will study particular forms. They have patterns. In pleadings, you do it in legal manner. You do not say,
Once upon a time
The counterpart of pleadings in criminal procedure is information, or the criminal complaint where a
prosecutor will tell what crime you are being accused what you did, time, the victim, etc.
Sec. 2 Pleadings allowed The claims of a party are asserted in a complaint, counterclaim, cross-
claim, third (fourth, etc.) party complaint, or complaint-in-intervention.
The defenses of a party are alleged in the answer to the pleading asserting a claim against
him.
An answer may be responded to by a reply. (n)
Section 2 tells us what are the pleadings allowed by the Rules of Court. In a civil case, there are actually
two (2) contending parties: (1) the person suing or filing claim; and (2) the person being sued.
Q: If you are the claimant or the plaintiff, in what pleading do you assert your claim?
A: Complaint, counterclaim, cross-claim, third-party complaint or fourth-party complaint, etc.
These are the different pleadings allowed by the Rules. Of course, maybe, the only thing that you are
familiar with is the complaint. As we go over the Rules, you will understand what do you mean by those
pleadings.
On the other hand, if you are the party sued, you also have to file your pleading or your defense. It is
known as the ANSWER. The defenses of a party are alleged in the answer to the pleading asserting a
claim against him. If I file a complaint against you, in response, you will file an answer.
In last paragraph, an answer may be responded by a REPLY. I file a complaint. You file an answer invoking
your defenses. If I want to respond to your defenses, I will file a REPLY.
COMPLAINT -> ANSWER -> REPLY
That is the pattern.
Q: Summarizing all of them, what are the know pleadings recognized by the law on Civil
Procedure?
A: There are seven (7) types of pleadings: 1.) Complaint;
2.) Answer;
3.) Counterclaim;
4.) Cross-claim;
5.) Reply
6.) Third (Fourth, Fifth, etc.) Party Complaint; 7.) Complaint-in-Intervention.
Let us go over each one of them. How do they function?
A.) COMPLAINT
Sec. 3. Complaint The complaint is the pleading alleging the plaintiffs cause or causes of action. The
names and residences of the plaintiff and defendant must be stated in the complaint.
Q: Define complaint.
A: COMPLAINT is the pleading where the plaintiff will allege his cause or causes of action. A complaint is
also called the INITIATORY PLEADING. Because it is actually the first pleading filed in court. It is the
pleading that starts the ball rolling. It is the pleading that initiates the civil action.
Of course, the names and residences of the defendants must be stated in the complaint. Do you know
the pattern for a complaint?
For EXAMPLE: Mr. Pito wants to sue Mr. Peloton to collect an unpaid loan. Mr. Peloton borrowed money
from Mr. Pito and refused to pay. Normally, it starts with an introduction: Plaintiff, through counsel,
respectfully alleges that Then it is followed by paragraphs which are numbered. For instance:
Illustration:
1.) Plaintiff Mr. Pito, of legal age, is a resident of Matina, Davao City; whereas defendant Mr.
Peloton also of legal age, a resident of Bajada, Davao City;
2.) On Nov. 7, 1996, defendant secured a loan from plaintiff the sum of P30,000.00 payable within one
(1) year form said date with legal interest;
3.) The account is already due. Despite repeated demands, defendant failed to and refused to pay;
PRAYER
WHEREFORE, it is respectfully prayed that judgment be rendered against the defendant ordering him to
pay the loan of P30,000.00 and interest in favor of the plaintiff.
It is simple. The complaint is composed of 3 paragraphs only humiram siya ng pera, ayaw magbayad.
Thats all. That is the pattern of a complaint. Your allegations must contain the four (4) elements of a
Cause of Action the Right, the Obligation, the Delict or Wrong or Violation of Your Right, and the
Damage. Hindi kailangang mahaba ang complaint.
It becomes clearer in the subject of Legal Forms. That is the last subject in the Bar Exam, Legal Ethics &
Practical Exercises. The examinee will be asked, for instance, to prepare a Contract of Mortgage, or
prepare a Complaint for Unlawful Detainer. There are hundreds of forms and you must be prepared to
write down a sample.
B.) ANSWER
Sec. 4 Answer An answer is a pleading in which a defending party sets forth his defenses. (4a)
I am the plaintiff. I file the complaint. You received the complaint. You are now required to respond.
Q: What is the pleading where you respond?
A: It is called the ANSWER. That is where you will state your defenses. That is why an ANSWER is called a
Responsive Pleading.
Q: Why is it called Responsive Pleading?
A: Because it is the pleading which is filed in response to the complaint. It is where you respond to the
cause of action. That is where you state your defenses.
It is something which is not found in Criminal Procedure. A: NO, there is no such thing as Answer in
Criminal Procedure.
Q: If you are charged with a crime, how do you answer?
A: By pleading guilty or not guilty. That is the answer. When you plead guilty, tapos na! If you say
not guilty, trial will proceed. No writing of defenses. No written answer in criminal cases. It (pleadings)
only applies to civil cases where you allege your defenses.
Q: What are the defenses under the Rules? A: That is Section 5.
Sec. 5 Defenses Defenses may either be negative or affirmative.
A NEGATIVE DEFENSE is the specific denial of the material fact or facts alleged in the pleading of the
claimant essential to his cause or causes of action.
An AFFIRMATIVE DEFENSE is an allegation of a new matter which, while hypothetically admitting the
material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by
him.
Defenses may either be negative or affirmative.
a.) Answer; NEGATIVE DEFENSES;
Q: Define an NEGATIVE defense.
A: Paragraph [a]: Briefly, it is a defense of specific denial where you deny the statement in the complaint
and you state the facts and the reason/s on which your denial is based. In a negative defense, the
defendant specifically denies a material fact or facts alleged in the pleading of the claimant essential to
his cause of action.
EXAMPLE: The complaint says in paragraph 2, On November 6, 1996, defendant secured a loan from
plaintiff in the amount of P30,000.00 payable one (1) year from November 6, 1996. The defendant will
say in his answer:
Defendant specifically denies the allegation in Paragraph 2 of the complaint. The truth of the matter
being he never secured any loan from plaintiff because he does not even know the plaintiff and he did
not see his face before.
That is a negative defense. You said I borrowed money from you. No, I dont even know you. I have not
seen you before. He denies the existence of the loan. That is known as the negative defense. It is a
denial of a material fact which constitutes the plaintiffs cause of action. Thats why it is briefly called a
Defense of Specific Denial.
b.) Answer; AFFIRMATIVE DEFENSES
Q: Define an AFFIRMATIVE defense.
A: In paragraph (b), it is briefly called a defense of confession and avoidance because, while the
defendant may admit the material allegation in the complaint, however, he will plead a new matter
which will prevent a recovery by the plaintiff. I admit what you are saying in the complaint but still you
are not entitled to recover from me.
EXAMPLE: The defendant may admit what you are saying in your complaint. I borrowed money from you
admitted! The account is due admitted! I have not paid you admitted. However, you cannot collect
from me because the account has already prescribed. Meaning, I will admit what you are saying but just
the same, I am not liable. Kaya nga, you confess, eh. I confess to what you say but I still avoid liability.
Examples of affirmative defenses are: fraud, statute of limitations, release, payment, illegality, statute of
frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of confession
and avoidance.
Suppose, you sue me for damages arising from breach of contract. I admit I entered into a contract but I
have no obligation to comply because the contract is null and void. Or, the contract is illegal. Or, the
stipulation is contrary to public policy, therefore, I am not bound. I admit what you say but I am not
liable because of the illegality of the subject matter of the contract.
Or, you sue me because according to you, I entered into a contract and I refused to comply. So, you file a
case against me for specific performance or for damages. Then I say: Its true that I entered into a
contract with you. Its true I did not comply. But there is nothing you can do because the contract is oral
and the contract is covered by the statute of frauds. In order to be enforceable, we should have reduced
it into writing. Since we never reduced it into writing, I am not bound to comply.
c.) COUNTERCLAIMS
Sec. 6. Counterclaim. - A counterclaim is any claim which a defending party may have against an
opposing party. (6a)
EXAMPLE: You file a case against me for damages to your car. According to you in your complaint, while
you were driving your car along the highway carefully. I came along driving recklessly and bumped your
car causing damages amounting to P50,000.00 for repair. Your allegation is based on negligence on my
part.
My answer is denial: That is not true! I deny that! I was the one driving carefully and you were driving
carelessly and negligently. Therefore, if you are the proximate cause of the accident, Im not liable for
the damage of your car. Thats my answer Im not liable because you are negligent. Because you were
the one negligent, my car was also damaged. I am not liable for the damage on your car. As a matter of
fact, you are the one that should be held liable to pay for the damage of my car. I am now claiming for
the damage of P50,000.00. That is called COUNTERCLAIM.
According to a lawyer who is fluent in Cebuano, he called it balos. He was explaining to his client that
they have counterclaim. Thats a legal term, eh.
Therefore, there is one civil case but there are two (2) causes involved the main cause of action in the
complaint and that in the counterclaim. There are two (2) issues to be resolved by the court.
Q: If your complaint against me is to recover a sum of money, should my counterclaim also involve
recovery of sum of money?
A: NO. There is no such rule that these two (2) cases should be similar in nature. (De Borja vs. De Borja,
101 Phil. 911) It is possible for you to file case for recovery of a piece of land and my counterclaim is
recovery of damages arising from a vehicular accident.
Q: Suppose your claim against me is One (1) Million, is it possible that my counterclaim against you is
Two (2) Million?
A: YES. There is no rule which limits my counterclaim to the same amount you are claiming. A
counterclaim need not diminish or defeat the recovery sought by the opposing party, but may claim
relief exceeding in amount or different I kind from that sought by the opposing party. (De Borja vs. De
Borja, 101 Phil. 911)
Q: You file a case against me for recovery of unpaid loan. My counterclaim is, rescission of partnership
contract. Is the counterclaim proper?
A: Yes although there is no connection between what you are asking and what my answer is. But what is
important is tayong dalawa ang naglalaban. If you will not allow me to file my counterclaim against you,
that will be another case in the future. Since nandito na rin tayo, so lahat ng ating reklamo, we might as
well have to finish it. That is allowed.
Q: Why is it that law allows the defendant to counter sue by way of counterclaim the plaintiff?
A: The purpose there is apparently TO AVOID MULTIPLICITY OF SUITS. If you have a cause of action
against me, I will sue you, in the future it will also lead to another case where you will also sue me.
DEBORJA vs. DEBORJA
101 Phil 911
FACTS: A died, of course, what survives after that is the estate. X was appointed as administrator or legal
representative. W owes a sum of money to the estate of A and X filed a case against W to collect the
unpaid loan. X is called the REPRESENTATIVE PARTY under Rule 3, Section 3. W filed an answer and that
W has a claim against X. W filed a counterclaim against X in the case.
HELD: The counterclaim is improper. When X sued W, X is not suing in his own personal capacity. He is
acting as administrator of the estate of A. The real plaintiff is the estate of A. X is just the legal
representative. Therefore, you cannot file a counterclaim against X in the latters personal capacity when
X is suing W in a representative capacity.
The SC said that the plaintiff should be sued in a counterclaim in the SAME CAPACITY that he is suing the
defendant. Thats a principle to remember.
PERMISSIVE & COMPULSORY COUNTERCLAIMS
Sec. 7 Compulsory counterclaim A compulsory counterclaim is one which, being cognizable by the
regular courts of justice, arises out of or is connected with the transaction or occurrence constituting
the subject matter of the opposing partys claim and does not require for its adjudication the presence
of third parties of who the court cannot acquire jurisdiction. Such a counterclaim must be within the
jurisdiction of the court both as to the amount and the nature thereof, except that in the original
action before the Regional Trial Court, the counterclaim may be considered compulsory.
Under the Rules, there are two types of counterclaim. 1) COMPULSORY COUNTERCLAIM and,
2) PERMISSIVE COUNTERCLAIM.
Q: How do you distinguish one from the other? When is a counterclaim compulsory and when is it
permissive?
A: The ELEMENTS of a COMPULSORY COUNTERCLAIM are found in Section 7. If we will
outline Section 7, we will see that a counterclaim is compulsory if the following requisites are present:
1.) It is cognizable by the regular courts of justice;
2.) It arises out of or it is connected with a transaction or occurrence constituting a subject matter of the
opposing partys claim;
3.) It does not require for its adjudication the presence of third parties of who the court cannot acquire
jurisdiction;
4.) It must be within the jurisdiction of the court, both as to the amount and the nature thereof, except
that in an original action before the RTC, the counterclaim may be considered compulsory regardless of
the amount; and
5.) The defending party has a counterclaim at the time he files his answer. The fifth requisite is not
found in Section 7 but in Rule 11, Section 8:
Rule 11, Sec. 8. Existing counterclaim or cross-claim. - A compulsory counterclaim or a cross-claim that
a defending party has at the time he files his answer shall be contained therein. (8a, R6)
Another way of saying it is, the counterclaim has already matured at the time he files his answer. That is
the fifth requisite.
Q: What happens if one of these requisites is missing?
A: If one of the five requisites is missing, the counterclaim is permissive in nature. We will discuss the
elements of a compulsory counterclaim one by one.
First Element: A COUNTERCLAIM TO BE COMPULSORY MUST BE COGNIZABLE BY THE REGULAR COURTS.
In other words, if you file a complaint against me and I have a counterclaim against you in the Labor
Code, then it cannot be classified as a compulsory claim because how can I invoke against you a claim
which is cognizable by the NLRC before the RTC?
Second Element: IT ARISES OUT OF OR IT IS CONNECTED WITH A TRANSACTION OR OCCURRENCE
CONSTITUTING A SUBJECT MATTER OF THE OPPOSING
PARTYS CLAIM
The second requisite is the most important. A counterclaim, to be compulsory, must arise out of or
connected with the transaction or occurrence constituting a subject matter of the opposing party
concerned. It must arise out of or is connected with a transaction or occurrence constituting a subject
matter of the opposing partys claim. It must be logically related to the subject matter of the main action.
So the rule is, if the counterclaim did not arise out of or is not connected with the transaction or
occurrence constituting the subject matter of the opposing partys concern, the counterclaim must be
permissive in nature.
PROBLEM: Emily filed a case against Regina for damages arising from a vehicle collision. According to
Emily, the case of the accident is the negligence of the defendant in driving her car. Her car bumped the
car of Emily and was damaged. So, Emily is holding Regina liable for the damage on her car. Regina
denied that she was negligent. According to Regina, No, I am not negligent. As a matter of fact, you
(Emily) were the one negligent, and because of that negligence, my car was also damaged. So you should
be the one to pay damages. Parang ganyan ba.
Q: Is the counterclaim of Regina arising out of or is connected with the transaction or occurrence
constituting the subject matter of the opposing party?
A: YES because we are talking of the same bumping. You bumped my car, you say I bumped your car. So
we are talking of the same event or transaction.
PROBLEM: Thea G. (as in Gamay) files a case against me for recovery of a piece of land. According to
her, she is the owner of the land which Im occupying. Now, I file my answer, and then I said, Ms.
Guadalope, I spent a lot of money for necessary expenses to preserve the land. You are also liable to
reimburse me for the necessary improvements expenses I introduced on the land. Under the law on
Property, a defendant or possessor is entitled to reimbursement for necessary improvements and
expenses. So she is trying to recover the piece of land, I am now asking her to reimburse me for all
necessary expenses that I spent on the land.
Q: Is my counterclaim arising out of or connected with the subject matter of your claim or not? A: YES.
We are talking of the same subject matter. Thus, the counterclaim is compulsory.
PROBLEM: Thea G. files a case against me for recovery of a piece of land. My counterclaim against her is
damages arising from a vehicular collision.
Q: Is my counterclaim arising out of a subject matter of your action?
A: NO. It is completely different. Thus, that is a permissive counterclaim.
So, those are the examples. That is why, the second requisite is the most important element a
counterclaim must arise out of or is connected with the subject matter or a transaction or the event or
the main action. By the way, the second element is considered the most important element of
compulsory counterclaim because according to the SC in the 1992 case of
 MELITON vs. COURT OF APPEALS
216 SCRA 485
HELD: It has been postulated that while a number of criteria have been advanced for the determination
of whether the counterclaim is compulsory or permissive, the one compelling test of compulsoriness is
the logical relationship between the claim alleged in the complaint and that in the counterclaim, that is,
where conducting separate trials of the respective claims of the parties would entail a substantial
duplication of effort and time, as where they involve many of the same factual and/or legal issues.
Q: What is the importance of determining whether the claim is compulsory or permissive?
A: A compulsory counterclaim must be invoked in the same action. Iit cannot be the subject matter of a
separate action. Unlike in permissive where you have the choice of invoking it in the same case, or in a
separate action, compulsory counterclaim must be invoked in the same action otherwise it will be
barred. That is found in Rule 9, Section 2:
Rule 9, Sec. 2. Compulsory counterclaim, or cross-claim, not set up barred.
- A compulsory counter-claim or a cross-claim, not set up shall be barred. (4a)
So if I do not file a counterclaim against you in the same action, under Rule 9, the counterclaim is barred
forever. I cannot claim it against you in any other case in the future. But if the counterclaim is permissive
and I will not raise it as a counterclaim, it is not barred. It can still be invoked in another case against you.
It can be a subject matter of a separate action.
Let us try to apply that principle to the case cited.
PROBLEM: Vanessa files a case against me for damages arising from vehicular collision. Her car is
damaged, my car is damaged. In my answer, I denied negligence but I did not claim from her the damage
to my vehicle. After the trial, court found the plaintiff at fault. So, the complaint of Vanessa was
dismissed. So panalo ako. Balikan ko siya ngayon. This time I will file a case against her to recover
damages for the damage to my car since I was able to prove that she was negligent and not me.
Q: What will happen to my case now?
A: My case will be dismissed because I did not raise that cause of action as a counterclaim. Compulsory
yan eh. So since you did not raise, is barred forever.
PROBLEM: Aileen files a case against me for recovery of a piece of land. After trial, talo ako. The court
said that I should return the land to her. So isinauli ko na. Ngayon, kailangan bayaran niya naman ako for
the necessary expenses. So, I will file a case against her. She moved to dismiss barred, because I should
have raised that as a counterclaim. I cannot file another case involving that cause of action. That is the
effect of failure to raise the compulsory counterclaim in the case filed against you.
PROBLEM: Now, suppose the counterclaim is PERMISSIVE. Pauline files case against me for recovery of
land. My cause of action against her is damages arising against a vehicular collision. Obviously, the
counterclaim is permissive.
Q: Is the counterclaim allowed? A: Yes, allowed.
Q: Pauline will file a case against me for damages arising from vehicular collision. My decision is not to
file a counterclaim but to file another case against her. Is that allowed?
A: Yes, that is allowed. Meaning, I may or may not raise it as a counterclaim because it is permissive. I am
permitted to raise it as a counterclaim but I am not obliged. I may decided to file another action against
you. That is the importance between a compulsory counterclaim and a permissive counterclaim.
Third Requisite: IT DOES NOT REQUIRE FOR ITS ADJUDICATION PRESENCE OF THIRD PARTIES OF WHOM
THE COURT CANNOT ACQUIRE JURISDICTION.
Meaning, if my counterclaim against you will involve the presence of an indispensable party who is, lets
say, abroad, and therefore, the court cannot acquire jurisdiction over him, and since it involves an
indispensable party, I will not raise it as a counterclaim.
Q: Will it be barred?
A: NO. If I will file my counterclaim, it will involve another party who is indispensable. The trouble is, he is
not around. Therefore, the counterclaim is not barred because the third element is missing.
Fourth Element: THAT THE COUNTERCLAIM MUST BE WITHIN THE JURISDICTION OF THE COURT BOTH AS
TO THE AMOUNT AND NATURE THEREOF.
Q: I will file a case against you for forcible entry. I want to recover a piece of land. Where is the
jurisdiction of that case?
A: MTC. Squatting. I will recover a land from a squatter.
Review: In the Law on Property, even if you are a possessor in bad faith, he is entitled to reimbursement
for necessary expenses. The theory there is, even if he is a possessor in bad faith, the expenses
redounded to the benefit of the land owner. Anyway, you will spend them just the same as the land
owner will have to spend for them. So it will not be fair if he is not reimbursed. Thats our premise, noh?
PROBLEM: Now, the defendant would like to claim for reimbursement for the necessary expenses that
he spent in my lot. The case I filed against you is forcible entry in the MTC. Your necessary expenses
amount to P300,000.
Q: Should you raise it as a compulsory counterclaim in the forcible entry case? A: NO.
Q: Does it arise out of or connected with the transaction which is the subject matter of the main action?
Why not compulsory?
A: Because the MTC has no jurisdiction over the P300,000 amount for the necessary expenses. This time,
that is the missing element.
Q: How will the defendant claim reimbursement?
A: He has to file with the RTC a case for reimbursement. He cannot use that as a counterclaim for the
forcible entry case because the MTC has no jurisdiction on a counterclaim where the amount is over
P200,000.00.
I will reverse the problem:
PROBLEM: The plaintiff filed against the defendant an action for accion publiciana recovery for a piece
of land where the value of the property is P1 million. So the case should be filed in the RTC. Now, the
defendant is claiming for the reimbursement of the improvements thereon (necessary expenses)
amounting to P50,000.
Q: Should the defendant raise that as a counterclaim in the accion publiciana case? A: YES.

In the first example, the counterclaim is above the jurisdiction of the MTC. This time, the amount for the
counterclaim is below the jurisdiction of the RTC. So the RTC can claim jurisdiction.
Q: How can the RTC try a counterclaim when the claim is only P50,000?
A: It is in accordance with the exception under Section 7: except that in an original action before the
RTC, the counterclaim may be considered compulsory regardless of the amount. This means that the
main action is accion publicianaRTC. The counterclaim is reimbursement for necessary expenses with
arose out of the same land. Normally, the RTC cannot try that but the answer to this question is YES.
The RTC can award a claim for damages even though the claim is below its jurisdiction. The principle is:
Since the counterclaim is compulsory, jurisdiction over the main action automatically carries with it
jurisdiction over the compulsory counterclaim. The compulsory counterclaim is merely incidental to the
main action. Jurisdiction of the RTC over the main action necessarily carries with it jurisdiction over the
compulsory counterclaim which is merely ancillary.
But the first example is baliktad. If the main action is with the MTC, it cannot try the counterclaim with
the RTC. It is beyond its jurisdiction. It is not covered by the exception. But if it is the main action which is
within the jurisdiction of the RTC, it can try a counterclaim which is below its jurisdiction provided it
arose out or is connected with the transaction.
That exception is not written in the prior rules but it is a recognized exception laid down by the SC which
is now written down in the law. In the case of
MACEDA vs. COURT OF APPEALS
176 SCRA 440
HELD: The jurisdiction of the MTC in a civil action for sum of money is limited to a demand that does not
exceed P100,000 (now P200,000) exclusive of interest and costs. A counterclaim beyond its jurisdiction
and limit may be pleaded only by way of defense to weaken the plaintiffs claim, but not to obtain
affirmative relief.
Fifth Requisite: THE DEFENDING PARTY HAS A COUNTERCLAIM AT THE TIME HE FILES HIS ANSWER.
How can I make a claim against you which is not yet existing? Even if all the other requisites are present,
the counterclaim would still not be compulsory because how can one invoke something now which he
can acquire in the future?
So, those are the five essential elements. You remove one, the counterclaim becomes permissive.
Q: Again. What is the importance of distinguishing whether the counterclaim is compulsory or
permissive?
A: If the counterclaim is compulsory, the defendant is obliged under the law to raise it as a counterclaim
in the action where he is being sued. If he fails to invoke it, it is barred forever (Rule 9 Section 2).
If the counterclaim is permissive, the defendant has a choice of raising it as a counterclaim in the case
filed against him or he may decide to file another action against the plaintiff, raising it as his cause of
action. It is permitted but not obliged.
COUNTERCLAIMS IN CRIMINAL CASES
JAVIER vs. IAC
171 SCRA 605
FACTS: The Javier spouses filed a criminal case against Leon Gutierrez Jr, under BP 22 or the Bouncing
Check Law, for issuing a bad check. The criminal case was filed before the RTC of Makati. The
complainants did not reserve the civil action. The implication is that the claim for civil liability is deemed
instituted with the criminal case.
Gutierrez in turn filed a civil action for damages against the Javier spouses in the RTC of Catarman,
Northern Samar, where he accused spouses of having tricked him into signing the check. According to
him, because you tricked me into signing the check for which you are suing me, Im holding you liable
for damages.
What happened now is that he was being criminally sued in Makati but defending himself in Catarman,
Northern Samar. He is explaining in the Samar court what he should be doing in the Makati court.
HELD: The civil case in Samar should be dismissed. It must be in the Makati court that Gutierrez, as
accused in the criminal charge of violation of BP 22, should explain why he issued the bouncing check. He
should explain that story in Makati and not in Samar.
This should have been done in the form of a counterclaim for damages for the alleged deception by the
Javier spouses. In fact, the counterclaim was compulsory and should have been filed by Gutierrez upon
the implied institution of the civil action for damages in the criminal case.
What the SC is saying is, since the civil action for damages is impliedly instituted in the criminal case, and
he wants to hold you liable for filing this case, he should file a counterclaim against you in the criminal
case. What is unique was that for the first time in the Philippine Procedural Law, SC laid down the rule
that there is such thing as a counterclaim in a criminal case, because, normally, counterclaims are only
recognized in civil cases. But since the civil action is deemed instituted in the criminal case, the accused
can file a counterclaim against the offended party in the criminal action.
The trouble in this ruling is that, it has been subjected to a lot of criticisms by academicians professors
of Remedial Law, authors they criticized the ruling. It provokes more problems than answers. A justice
of the SC remarked, I think we made a mistake (privately ba) in the Javier ruling. Kaya it was never
repeated.
The SC, in 1997, had another chance to comment on Javier in the case of
CABAERO vs. CANTOS
271 SCRA 392, en banc
NOTE: Here, the Javier ruling was set aside.
HELD: The logic and cogency of Javier notwithstanding, some reservations and concerns were voiced
out by members of the Court during the deliberations on the present case. These were engendered by
the obvious lacuna in the Rules of Court, which contains no express provision for the adjudication of a
counterclaim in a civil action impliedly instituted in a criminal case.
By the foregoing discussion, we do not imply any fault in Javier. The real problem lies in the absence of
clear-cut rules governing the prosecution of impliedly instituted civil actions and the necessary
consequences and implications thereof. For this reason, the counter-claim of the accused cannot be tried
together with the criminal case because, as already discussed, it will unnecessarily complicate and
confuse the criminal proceedings. Thus, the trial court should confine itself to the criminal aspect and the
possible civil liability of the accused arising out of the crime. The counter-claim (and cross-claim or third
party complaint, if any) should be set aside or refused cognizance without prejudice to their filing in
separate proceedings at the proper time.
At balance, until there are definitive rules of procedure to govern the institution, prosecution and
resolution of the civil aspect and the consequences and implications thereof impliedly instituted in a
criminal case, trial courts should limit their jurisdiction to the civil liability of the accused arising from the
criminal case.
This means SC admitted that the Javier doctrine put more problems and confusions in the absence of
specific rules. The counterclaim should not be tried together in a criminal case. The trial court should
confine itself in the criminal action and that the counterclaim should be set aside without prejudice to its
right in setting up actions in the civil action.
NOTE: The ruling in the case of CABAERO is now incorporated in the last paragraph of Section 1,
paragraph [a], Rule 111 of the 2000 Revised Criminal Procedure:
No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case,
but any cause of action which could have been the subject thereof may be litigated in a separate civil
action.
D.) CROSS-CLAIMS
Sec. 8. Cross-claim. A cross-claim is any claim by one party against a co- party arising out of the
transaction or occurrence that is the subject matter either of the original action or of a counterclaim
therein. Such cross-claim may include a claim that the party against whom it is asserted is or may be
liable to the cross-claimant for all or part of a claim asserted in the action against the cross-
claimant.(7)
A cross claim is a claim by one party against a co-party. It may be a claim by defendant against his co-
defendant arising out of the subject matter of the main action.
EXAMPLE: Jet and Pao are solidary debtors for the sum of P100,000. Jet and Pao signed a promissory
note in favor of Dean to collect the sum of P100,000. However, although Jet signed the promissory note,
he did not get a single centavo. Everything went to Pao. Both of them are now sued. According to Jet,
Actually there is a possibility that I will pay the P100,000 to Dean when actually I did not even get a
single centavo out of it. Everything went to Pao [bwiset!]! Therefore, Jet will now file a case against Pao
where he will allege that if Jet will be held liable to Dean, Pao will reimburse him (Jet). So, Jet will also file
a claim in the same action against Pao.
Now, the claim filed by Jet against his co-defendant Pao is called a CROSS-CLAIM where Jet is called
defendant in the case filed by Dean and a cross-claimant against Pao. Pao is also the defendant in the
case filed by Dean and a cross-defendant with respect to the cross-claim filed by Jet. So that is another
case which a defendant is filing against another defendant.
The law says that the cross-claim arises out of the transaction or occurrence that is the subject matter
of the original action. In other words, the cross-claimant will assert that the cross-defendant is liable to
him for all or part of the claim asserted in the main action against the cross-claimant.
Take note that the cross-claim of Jet against Pao is merely an off-short of the case filed by Dean against
Jet and Pao. Meaning, it arises out of the same transaction or occurrence that is the subject matter of
the case filed by Dean against them.
PROBLEM: Suppose Dean files a case against Jet and Pao to collect a promissory note signed by Jet and
Pao. Tapos, sinabi ni Jet in his cross-claim, Well, since we are already here, I also have a claim against
Pao for damages arising from a vehicular collision.
Q: Is the cross-claim allowed in the problem?
A: NO. The cross-claim is improper. It has no connection with the complaint of Dean against Jet and Pao.
A counter-claim must always arise out of a transaction or occurrence that is the subject matter of the
main action.
BAR QUESTION: Distinguish a COUNTERCLAIM from a CROSS-CLAIM. A: The following are the
distinctions:
1.) A COUNTERCLAIM is a complaint by the defendant against the plaintiff, whereas, A CROSS-CLAIM is a
claim by a defendant against a co-defendant;
2.) The life of the CROSS-CLAIM depends on the life of the main action. A cross-claim is merely a
consequence of the case filed by the plaintiff against the defendants. No main action, no cross-claim
(RUIZ, JR. vs. CA, infra). Whereas,
In a COUNTERCLAIM, you can kill the main action, still the counterclaim survives.
3.) A COUNTERCLAIM may be asserted whether or not it arises out of the same transaction or occurrence
that is the subject matter of the action, whereas,
A CROSS-CLAIM must always arise out of the same transaction or occurrence that is the subject matter of
the action.
Example: Pao case filed against Jet to collect a loan. Jet files a COUNTERCLAIM against Pao to recover a
piece of land. That is allowed and that is a permissive counterclaim. But suppose Dean files a case to
collect a loan against Jet and Pao. Jet files a CROSS-CLAIM against Pao to recover a piece of land.
Q: Will it be allowed?
A: Not allowed! It has no connection with the subject matter of the main action.
Take note that a cross-claim is any claim by one party against a co-party arising out of the transaction of
occurrence that is the subject matter of the original action or of a counterclaim therein. So, a cross-claim
may arise our either of the original action or counter-claim therein.
EXAMPLE: Jet and Pao file a case against Dean. Dean files his answer with a counterclaim against the
plaintiffs Jet and Pao. So Jet and Pao will now become defendants with respect to the counterclaim filed
by Dean. So Jet now can file a cross-claim against Pao arising out of the counterclaim. So this is an
example of a plaintiff filing a cross-claim against his co-plaintiff because of the counterclaim.
HYPOTHETICAL EXAMPLE: CROSS-CLAIM ARISING FROM THE COUNTERCLAIM OF PAO
Plaintiff CHARLES, now cross-claimant
1.) Mortz and Charles, plaintiffs, filed a case against Jet and Pao, defendants. There are two plaintiffs -versus-
suing two different defendants on a promissory note. Both Jet and Pao signed the promissory note in Plaintiff MORTZ, now cross-defendant
favor of Mortz and Charles:
Ilan lahat ang kaso? There are six (6) cases which are to be decided in the same action. This rarely
COMPLAINT (Collection case Main Action): MORTZ and CHARLES [total: 785 lbs.], plaintiffs happens, but it is possible under the rules. The obvious PURPOSE of these is to avoid multiplicity of suits
-versus- and toward these ends. According to the SC, the rules allow in a certain cases and even compel a
JET and PAO, defendants petitioner to combine in one litigation these conflicting claims most particularly when they arise out of
the same transaction. The rule does not only allow a permissive counterclaim but the parties are even
2.) Now, according to Jet, every centavo of the loan went to Pao. So Jet files a cross-claim against Pao: compelled to raise them in a compulsory counter-claim.
CROSS-CLAIM ON THE MAIN ACTION
Defendant JET [feather weight], now cross-claimant RUIZ, JR. vs. COURT OF APPEALS
-versus- 212 SCRA 660
Defendant PAO [heavy weight], now cross-defendant
FACTS: Dean files a case against Jet and Pao. Jet files a cross-claim against Pao. After a while, the case
against Jet and Pao was dismissed.
3.) Jet also says, Actually may reklamo ako sa inyong dalawa (Mortz and Charles) because you entered
my land and gathered some of its product [mga patay gutom!!]. Nag-file siya ng counterclaim against ISSUE: What happens to the cross-claim of Jet against Pao?
both Mortz and Charles. In the counter-claim of Jet, ang defendants ay si Mortz and Charles for the
accounting of the improvements on the land: HELD: When the main action was dismissed, the cross-action must also be dismissed. The life of a cross-
claim depends on the life of the main action. If the main action is dismissed, the cross-claim will have to
COUNTERCLAIM OF JET be automatically dismissed.
Defendant JET, now plaintiff
-versus- A cross-claim could not be the subject of independent adjudication once it lost the nexus upon which its
Plaintiffs MORTZ and CHARLES, now co-defendants life depended. The cross-claimants cannot claim more rights than the plaintiffs themselves, on whose
cause of action the cross-claim depended. The dismissal of the complaint divested the cross-claimants of
4.) Mortz now will answer the counterclaim of Jet, Actually, the damages on land was not caused by me. whatever appealable interest they might have had before and also made the cross-claim itself no longer
Si Charles man ang may kasalanan ba! Yun ang patay gutom!! So Mortz files a cross- claim against co- viable
plaintiff Charles arising out to the counterclaim of Jet:
Whereas, the counterclaim can exist alone without the complaint.
CROSS-CLAIM ARISING FROM THE COUNTERCLAIM OF JET
Plaintiff MORTZ, now cross-claimant EXAMPLE: Pao filed a case against Jet for the recovery of a piece of land. Jets counterclaim is damages
-versus- arising from a vehicular accident. Na-dismiss ang kaso ni Pao wala na yung recovery of a piece of land.
Plaintiff CHARLES, now cross-defendant The counterclaim of Jet can still remain alive even if the main action is dead.

5.) Now, according to Pao, Actually last month, a car owned by both of you (Mortz and Charles) bumped But in a cross-claim, once the main action is dead, the cross-claim is also automatically dead too. What is
my car and that my car was damaged. So, nag-file naman si Pao ng counterclaim against Mortz and there to reimburse when the complainant has been dismissed? Aber?!
Charles for the damage of the car.
COUNTER COUNTERCLAIM and COUNTER CROSS-CLAIM
COUNTERCLAIM OF PAO
Defendant PAO, now plaintiff Sec. 9. Counter-counterclaims and counter-cross-claims. A counterclaim may be asserted against an
-versus- original counter-claimant.
Plaintiffs MORTZ and CHARLES, now defendants A cross-claim may also be filed against an original cross-claimant.(n)

6.) Sabi ni Charles, Im not the owner of the car. Si Mortz ang owner. Gago! So cross-claim naman siya Section 9 is a new provision. There is such a thing as counter-counterclaim and counter-cross-claim. The
(Charles) kay Mortz: concept of counter-counter-claim is not new. As a matter of fact, that was asked in the bar years ago.
EXAMPLE: Chams filed against you an action to collect a loan. You filed a counterclaim against her to
recover a piece of land. Of course, she have to answer your counterclaim. But she will say, Actually you
have been molesting me with your claim when actually you have no right over my land. So, nag- file siya
ng injunction to stop you from molesting her. In other words, based on your counter-claim against her to
recover my land, she will file a counterclaim to stop you from molesting her. In effect, there is counter-
claim to a counter-claim.
An ANSWER TO A COUNTERCLAIM is a response to a cause of action by the defendant against the
plaintiff;
2.) The filing of a REPLY is generally optional, whereas
The filing of an ANSWER TO A COUNTERCLAIM is generally mandatory under Rule 11 because if the
plaintiff fails to file an answer to the counterclaim, he will be declared in default on the counterclaim.

COUNTER-CROSS-CLAIM. Nag cross-claim ka sa akin, mag cross-claim din ako sa iyo. OUTLINE OF FLOW OF PLEADINGS

E.) REPLY

Sec. 10. Reply. A reply is a pleading, the office or function of which is to deny, or allege facts in denial or
avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to
such new matters. If a party does not file such reply, all the new matters alleged in the answer are
deemed controverted.
If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall
be set forth in an amended or supplemental complaint.(11)

ILLUSTRATION: Plaintiff files a complaint against a defendant to collect an unpaid loan. D files his answer
F. THIRD (FOURTH, ETC.) PARTY COMPLAINT
and raises a new matter, affirmative defense. According to the defendant, the obligation is already paid.
Plaintiff said that you have paid the other loan. In other words, the plaintiff would like to deny or dispute
Sec. 11. Third, (fourth, etc.) - party complaint. A third (fourth, etc.) party complaint is a claim that a
the defendants affirmative defense of payment.
defending party may, with leave of court, file against a person not a party to the action, called the
third (fourth, etc.) party defendant, for contribution, indemnity, subrogation or any other relief, in
Q: Can I file a pleading to dispute your defense? A: Yes, that pleading is called a REPLY.
respect of his opponent's claim. (12a)

Q: How do you classify a reply?

THIRD PARTY COMPLAINT is the procedure for bringing into a case a third person who is not a party to
A: It is a responsive pleading because it is the response of the plaintiff to the affirmative defense raised in
the case.
the defendants answer.

So, plaintiff files a case against the defendant. Defendant believes that a stranger or somebody else
An answer is a response to the complaint and the reply is a response to the answer.
should be brought into the case and therefore files a motion in court that he be allowed to file a third-
Q: Halimbawa, you would like to answer my reply, what pleading would you file?
party complaint against such person and therefore the defendant is called third party plaintiff and that
A: None. That is the last pleading. Otherwise, walang katapusan and pleading natin. So, reply is
third person is a third-party defendant.
considered as the last pleading.
EXAMPLE : A plaintiff files a case against a defendant to collect a loan when there are two debtors and
one of them is compelled to pay everything so the defendant will drag into the picture the co- debtor for
Q: Suppose I filed a complaint, you filed an answer invoking payment. I failed to reply. What is the effect
contribution or indemnity. Well, you already learned if there are two of them all he has to do is to file a
if the plaintiff fails to reply? Is he admitting the correctness of the defense?
cross-claim against his co-defendant. BUT since he is the only one, the remedy is to avail of Section 11.
A: No. The failure to file a reply has no effect. Section 10 says that if a party does file such reply, all the
new matters alleged in the answer are deemed controverted. Meaning, all the affirmative defenses
Take note that filing a third-party complaint is not a matter of right. THERE MUST BE LEAVE OF COURT.
raised in the answers are automatically denied.
So unlike counterclaim or cross-claim, you do not need any motion or leave of court. Just file your
So, whether you file a reply or not, the defenses are deemed automatically disputed. The filing of a reply
answer to the counterclaim of cross-claim and that will do, but not a third-party complaint.
is OPTIONAL.

The purpose of third-party complaint is for contribution, indemnity, subrogation and other relief in
A reply should not be confused with the answer to a counterclaim which is also filed by the plaintiff.
respect of his opponents claim.

Q: Give the distinctions between ANSWER TO COUNTER-CLAIM and REPLY. A: The following:
That is why there is a close relationship between a cross-claim and a third-party complaint because a
1.) A REPLY is a response to the defenses interposed by the defendant in his answer, whereas
cross-claim must also be arising out of the subject matter of the main action. A third-party complaint
must be also related to the main action. It cannot be a cause of action which has no relation to the main
action.
EXAMPLE: The plaintiff files a case against the surety and the principal debtor, so both of them are
defendants, and the surety seeks reimbursement for whatever amount he may be compelled to pay the
plaintiff. What kind of pleading would he file against his co-defendant (the principal debtor)? CROSS-
CLAIM.
BUT if the plaintiff file a case ONLY against the surety, because anyway the principal debtor is not an
indispensable party and the surety would like to seek reimbursement from the person who benefited
from the loan, he cannot file a cross-claim against anybody because he is the lone defendant. It is
possible for him to just file an answer . If he loses and pays the plaintiff, then he will file another case
against the principal debtor for reimbursement.
But if he wants everything to be resolved in the same case, what kind pleading will he file? He must
resort a THIRD-PARTY COMPLAINT and implead the principal debtor.
The PURPOSE of a third-party complaint is for the third party plaintiff to ask the third party defendant
for:
1.) Contribution;
2.) Indemnity;
3.) Subrogation; or
4.) any other relief in respect to the opponents claim.
CONTRIBUTION:
Example #1: Two debtors borrowed P100,000 from Janis (creditor) and they shared the money 50-
50. When the debt fell due, the creditor filed a case against one of them. So, one of them is being
made to pay the P100,000. Not only his share but also his co-solidary debtor. So if I am the one liable
when actually my real liability is only 50,000. What will I do? I will file a third party complaint against my
co-debtor for contribution.
Example #2: If Andrew and Carlo are guilty of a quasi-delict and the injured party files an action for
damages against Andrew only, Andrew may file a third-party complaint against Carlo for contribution,
their liability being solidary (Article 2194, New Civil Code)
INDEMNIFICATION:
Example #1: Two people signed a promissory note in favor of the creditor. But actually the entire amount
went to you and none for me. When the note fell due, I was the one sued. So I will file a third-party
complaint against you for indemnity. You have to return to me every centavo that I will pay the creditor.
Example #2: A surety sued for recovery of debt by the creditor may file a third-party complaint against
the principal debtor for indemnity. (Article 2047, New Civil Code)
SUBROGATION:
Subrogation - You step into the shoes of someone else. Your obligation is transferred to me.
EXAMPLE: Where a contract is leased by a lessee and he subleased the property to a third person who is
now occupying the property. In effect, the sub-lessee stepped into the shoes of the original lessee. If the
property is damaged and the lessor sues the lessee for damages to his leased property, the lessee or sub-
lessor can file a third-party complaint and have the sub-lessee for subrogation because actually, you
stepped into the shoes when you occupied the leased property. (Articles 1651 and 1654, New Civil Code)
For ANY OTHER RELIEF IN RESPECT TO THE OPPONENTS CLAIM, very broad:
EXAMPLE: When I buy the property of Mr. Cruz and after a while, here comes Mr. Dee filing a case
against me to claim ownership of the land. But I bought it from Mr. Cruz who warranted that he is the
real owner. So I will now file third-party complaint against Mr. Cruz to enforce his warranty warranty
against eviction. (Article 1548, New Civil Code)
Take note that there is always a connection between the main complaint and the third-party complaint
because the condition is contribution, indemnification, subrogation and any other relief in respect to
your opponents claim. There is always a relation between the third party-complaint and the main
complaint against you. Here is a bar question...
BAR QUESTION: Janis files a case against Nudj to recover an unpaid load. Now the reason is that Carlo
also owes Nudj. Nudj says, I cannot pay you because there is a person who has also utang to me. What I
will pay you depends on his payment to me. File agad si Nudj ng third-party complaint against Carlo. Is
the third-party complaint proper?
A: NO. There is no connection between the main action and the 3rd-party complaint the loan of Nudj
to Janis and the loan of Andrew to Nudj. Walang connection. Anong pakialam ni Janis sa utang ni Andrew
kay Nudj? Not in respect to his opponents claim.
BAR QUESTION: How do you determine whether a 3rd-party complaint is proper or improper? What are
the tests to determine its propriety?
A: Case of CAPAYAS vs. COURT OF FIRST INSTANCE, 77 PHIL. 181
HELD: There are four (4) possible tests to determine the propriety of a third-party complaint. In order for
it to be allowed, it must pass one of them. That is the reason when you file it, you need the permission of
the court to determine whether it is proper or not and the original plaintiff may object to the propriety
of the third-party complaint.
There are the FOUR TESTS (any one will do):
1. A third-party complaint is proper if it arises out of the same transaction on which plaintiff is
based;
EXAMPLE: A creditor sued only one solidary debtor. So you can file a third-party complaint for
contribution. Anyway, there is only one loan and our liability arises out of the same
promissory note
2. A third-party complaint is proper if the third-partys complaint, although arising out of
another transaction, is connected with the plaintiffs claim.
 EXAMPLE: The car owner is sued for culpa aquiliana for damages arising from vehicular
collision and he files a third-party complaint against the insurance company for indemnity
based on the contract of insurance. So it is connected with plaintiffs claim, and that is
precisely the purpose of my insurance coverage.
3. Third party defendant would be liable to the original plaintiff's claim. Although the third party
defendant's liability arises out of another transaction.
EXAMPLE: Sublease. Roy leased his property to Eric. Eric subleased it to Rudolph. If Roys
property is damaged, Roy will sue Eric. But Eric will also sue Rudolph. The sub- lessor has the
right to file a third-party complaint against the sub-lessee for the damaged leased property
which is now occupied by the sub-lessee. The third-party defendant Rudolph would be liable
to plaintiffs (Roys) claim. Rudolph will be liable to Roy for Roys claim against Eric although
the liability of Rudolph arises out of another transaction (Sub-lease contract)
4. The third party defendant may assert any defense which the third party plaintiff has or may
have against plaintiffs claim.
EXAMPLE: Tato is a registered owner of a car and then sold it to Philip. Philip is the actual owner.
However, Philip did not register the sale to the LTO. The registered owner is si Tato lang gihapon
although he is no longer the real owner. While Philip was driving that car it bumped the car of Lewee
Tanduay. Lewee researched the owner of the car at LTO and ang lumabas ay si Tato. So ang ginawa ni
Lewee, ang kinasuhan nya ay si Tato na walang malay...under the law, the registered owner is liable. Of
course, when Tato got the complaint, Wala akong alam sa sinasabi nyo, that car is no longer mine. I
sold that two years ago, I have no idea what happened.
So obviously, Tato arrived at the conclusion that si Philip and nakabangga. Tato filed a third-party
complaint against Philip because he is the real owner. When Philip got the third-party complaint, and
because he knows the story, in fact he was the one driving, ang ginawa niya, nilabanan niya ng diretso si
Lewee. Meaning, instead of Tato fighting Lewee, Philip fought Lewee directly. Frontal na ba. Sabi ni
Philip, I was not at fault, you (Lewee) are at fault. So here is a situation where Lewee sues Tato, Tato
sues Philip but Philip fights Lewee, as if he is the real defendant, then the third party complaint must be
proper. It must be related.
So those are the samples of third party complaint which are correct.
Take note that there is a close similarity between a third-party complaint and a cross-claim because as
we have learned, a cross-claim must also be related to the same action. So we will go to some interesting
case on third-party complaint.
SAMALA vs. VICTOR
170 SCRA 453
FACTS: This case involves a vehicular accident. Philip, while riding on a passenger jeep owned by Tato,
the jeep was bumped by the truck of Lewee, injuring Philip. Philip filed a case for damages arising from
breach of contract against Tato. Tato filed a third-party complaint against Lewee. After trial, the court
found that Tato has not at fault. The fault is entirely against Lewee . So the action against Tato was
dismissed, but the court held that Lewee be directly liable to Philip.
It was questioned by Lewee. Lewee claims that is should be Tato who is liable to Philip because Philip did
not sue me (Lewee), Bakit ako ang ma-liable hindi naman ako ang dinemanda ni Philip? So procedurally,
I am liable to Tato, Tato is liable to Philip.
ISSUE #1: Can Lewee, a third-party defendant, be held liable directly to Philip, the original plaintiff?
HELD: YES, that is possible. In a third-party complaint, normally Lewee is liable to Tato. But Lewee can be
made liable to Philip, or Lewee can be made liable to both Philip and Tato because that is covered by the
phrase OR ANY OTHER RELIEF so broad that it cover a direct liability of a third party defendant to the
original plaintiff.
ISSUE #2: How can the court award damages to Philip based on the theory of culpa aquiliana when his
complaint is based on culpa contractual? Can Lewee be held liable for culpa-contractual?
HELD: YES. That is also possible because the primary purpose of this rule is to avoid circuitry of action
and to dispose of in one litigation, the entire subject matter arising from a particular set of fact it is
immaterial that the third-party plaintiff asserts a cause of action against the third party defendant on a
theory different from that asserted by the plaintiff against the defendant. It has likewise been held that a
defendant in a contract action may join as third-party defendants those liable to him in tort for the
plaintiffs claim against him or directly to the plaintiff.
Another interesting case which is to be compared with the abovementioned case is the 1989 case of
SHAFER vs. JUDGE OF RTC OF OLONGAPO CITY
167 SCRA 386
NOTE: This case although it refers to third-party complaint is related to criminal procedure. This is similar
to the case of JAVIER where the issue is, is there such a thing as a counterclaim in a criminal case where
the offended party did not make a reservation. In SHAFER, is there such a thing as a third-party
complaint in a criminal case?
FACTS: Shafer while driving his car covered by TPL, bumped another car driven by T. T filed a criminal
case against S for physical injuries arising from reckless imprudence. T did not make any reservation to
file a separate civil action. So obviously, the claim for civil liability is deemed instituted.
Shafer was covered by the insurance, so he filed a third-party complaint against the insurance company
insofar as the civil liability is concerned. The insurance company questioned the propriety of d third-party
complaint in a criminal case, because according to the insurance company, the third-party complaint is
entirely different from the criminal liability.
ISSUE: Whether or not the filing of a third-party complaint in a criminal case is procedurally correct.
HELD: Yes, it is proper. There could be a third party complaint in a criminal case because an offense
causes two classes of injuries the SOCIAL and the PERSONAL injury. In this case, the civil aspect of the
criminal case is deemed impliedly instituted in the criminal case. Shafer may raise all defenses available
to him in so far as the criminal and civil aspects are concerned. Shafers claim of indemnity against the
insurance company are also the claim by the victim in the criminal claim. Therefore Shafers claim against
the insurance company is related to the criminal case. So similar to Javier that an accused may also file a
compulsory counterclaim in a criminal case when there is no reservation.
BUT in the light of the ruling in the case of
CABAERO vs. CANTOS, supra
The SHAFER ruling has to be set aside for the meantime because there is no such thing as third-party
complaint in criminal cases now. In other words, forget it in the meantime. Also, forget counterclaims in
criminal cases even if they arose out of the main action.
This case refers to JAVIER on whether or not there is such a thing as a compulsory counterclaim in
criminal cases. SC said, Huwag muna samok! If we will allow it in criminal cases it will only complicate
and confuse the case. The attention might be divested to counterclaims or cross-claims or third-party
complaints, etc.
HELD: The trial court should confine itself to the criminal aspect and the possible civil liability of the
accused arising out of the crime. The counter-claim (and cross-claim or third party complaint, if any)
should be set aside or refused cognizance without prejudice to their filing in separate proceedings at the
proper time.
We will go to the old case of
REPUBLIC vs. CENTRAL SURETY CO.
25 SCRA 641 [1968]
FACTS : Hannah filed a case against Rina for a liability amounting to P300,000. So it was filed in RTC. Rina
filed a third-party complaint against ConCon Insurance Company for indemnity insurance but the
maximum insurance is only P50,000. The insurance company moved to dismiss on the ground that the
court has no jurisdiction because third-party complaint is only for P50,000 which is supposed to be
within the competence of the MTC.
ISSUE: Is the insurance company correct?
HELD: NO. The insurance company is wrong. The third-party complaint is only incidental. The third-party
complaint need not be within the jurisdiction of the RTC where the principal action is pending because
the third-party complaint is really a continuation and an ancillary to the principal action. If the court
acquires jurisdiction over the main action, automatically, it acquires jurisdiction over the third-party
complain which is mainly a continuation of the principal action.
Now, the same situation happened in another case. The case of
EASTER ASSURANCE vs. CUI
105 SCRA 642
FACTS : Carol is a resident of Davao City. Cathy is a resident of Cebu City. Carol filed a case before the
RTC of Davao City against Cathy. Cathy files a third-party complaint against Joy, a resident of Manila. Is
the venue proper?
HELD: The venue is proper because the venue of the main action is proper. So automatically third-party
complaint is also proper. The third-party has to yield to the jurisdiction and venue of the main action.
Now of course, if theres such a thing as 3rd party complaint, there is also a 4th, 5th, 6th or 7th
complaint. That is possible but everything is with respect to his opponents claim.
EXAMPLE:
A -> B -> C -> D -> E
A files a complaint against B
B files a 3rd party complaint against C
C files a 4th party complaint against D
D files a 5th party complaint against E
As car was bumped by B. But B contented that the reason that he bumped As car was because he was
bumped by C and the same goes to C, D, E. B then files a 3rd party complaint against C. C files a 4th party
complaint against D. D files a 5th party complaint against E. Meaning, pasahan, ba. They will throw the
liability to the one who did it. That is a good hypothetical example of how a fourth, fifth, sixth party
complaint can come into play.
Sec. 12. Bringing new parties. - When the presence of parties other than those to the original action is
required for the granting of complete relief in the determination of a counterclaim or cross-claim, the
court shall order them to be brought in as defendants, if jurisdiction over them can be obtained.
The best example of Section 12 is the case of:
SAPUGAY vs. COURT OF APPEALS
183 SCRA 464
FACTS: Mobil Philippines filed a case against Sapugay, its gasoline dealer. Sapugay filed a answer and
interposed a counterclaim for damages against Mobil and included Cardenas (the manager of Mobil)
who is not a plaintiff.
ISSUE: Whether or not the inclusion of Cardenas in the counterclaim is proper where he is not a plaintiff
in the Mobil case.
HELD: The inclusion of Cardenas is proper. The general rule that the defendant cannot by a counterclaim
bring into the action any claim against persons other than the plaintiff, admits of an exception under this
provision (Section 12) meaning, if it is necessary to include a 3rd person in a counterclaim or cross-
claim, the court can order him to be brought in as defendants. In effect, the bringing of Cardenas in the
case is sanctioned by the Rules.
The case of SAPUGAY should not be confused with the case of:
CHAVEZ vs. SANDIGANBAYAN
198 SCRA 282
FACTS: Petitioner Francisco Chavez (former solicitor general) represented the government for PCGG. The
case arose out of PCGG cases wherein Enrile was sued for accumulation of his ill-gotten wealth. Enrile
filed an answer to the complaint. Enrile contends that the case is harassment suit whose mastermind
was the Solicitor General himself. Enrile files a counterclaim against Chavez. (Enriles lawyer maybe well
aware of the Sapugay case the one sued is the lawyer.) Chavez questioned such counterclaim contending
that he was not a plaintiff. Sandiganbayan denied such contention.
HELD: The inclusion of plaintiffs lawyer is improper.
To allow a counterclaim against a lawyer who files a complaint for his clients, who is merely their
representative in court and not a plaintiff or complainant in the case would lead to mischievous
consequences. A lawyer owes his client entire devotion to his genuine interest, warm zeal in the
maintenance and defense of his rights and the exertion of his utmost learning and ability. A lawyer
cannot properly attend to his duties towards his client if, in the same case, he is kept busy defending
himself.
Q: Is the SC suggesting that a lawyer who sued in a harassment case can get away with it? Does that
mean to say that the lawyer is immune from suit?
A: NO, the SC does not say a lawyer enjoys a special immunity from damage suits. However, when he
acts in the name of the client, he should not be sued in a counterclaim in the very same case where he
has filed only as a counsel and not as party. Only claims for alleged damages or other causes of action
should be filed in a separate case. Thus, if you feel that the lawyer is acting maliciously, you file a
complaint but in a separate case. Thats why the case of Sapugay should not be confused with Chavez.
Sec. 13. Answer to third (fourth, etc.) party complaint. - A third (fourth, etc.)-party defendant may
allege in his answer his defenses, counterclaims or cross-claims, including such defenses that the third
(fourth, etc.)-party plaintiff may have against the original plaintiff in respect of the latter's claim
against the third-party plaintiff. (n)
ILLUSTRATIONS:
A files a case against B
B files a 3rd party complaint against C C
HELD: If that is your purpose, you have to file two (2) answers you file an answer to the third party
complaint and you file a second answer to the main complaint filed by Aying.
A third-party complaint involves an action separate and distinct from, although related
to, the main complaint. A third-party defendant who feels aggrieved by some allegations in the main
complaint should, aside from answering the third-party complaint, also answer the main complaint.
Normally, Cyle answers the 3rd party complaint of Bugoy and does not answer to the complaint of Aying.
But according to SINGAPORE case, if Cyle feels aggrieved by the allegations of Aying, he should also
answer the main complaint of Aying. Practically, he shall answer the 3rd party complaint and the main
complaint.
Rule 7
PARTS OF A PLEADING
This is more on Legal Forms, a third year subject. That is a bar subject. That is the last subject given on
the fourth Sunday. The last subject in the bar is Legal Ethics and Practical Exercises where an examinee
will be asked to prepare pleadings like answer, complaint, information.
Sec. 1 Caption. The caption sets forth the name of the court. The title of the action, and docket
number if assigned.
The title of the action indicates the names of the parties. They shall all be named in the original
complaint or petition; but in subsequent pleadings it shall be sufficient if the name of the first party on
each side be started with an appropriate indication when there are other parties.
Their respective participation in the case shall be indicated.

A vs. B; B vs. C. Normally, B will defend himself against the complaint of A and C will defend himself in
the complaint of B. That is supposed to be the pattern. Normally, C does not file a direct claim against A.
But the law allows C in defending himself, to answer the claim of A. The law allows him to file a direct
counterclaim against A.

If C has the right to frontally meet the action filed by A meaning, C will fight A directly if C has the
right to assert any defense which B has against A and even for C to litigate against A, then it must be a
proper third party complaint. That has happened several times.

EXAMPLE: B owns a car which was already sold to C. The trouble is that B never registered the
transaction. On the record, B is still the registered owner. Then C, while driving the car, meets an
accident and injures A. When A looked at the record, the owner is B. So A files a case against B. So B will
file a third party complaint against the real owner (C). Now, C can frontally meet the complaint filed by A.
That is the best example where you have the right against the original plaintiff or even assert a
counterclaim against him. As a matter of fact, that last test is now incorporated as a new provision
(Section 13).

In the case of: SINGAPORE AIRLINES vs. COURT OF APPEALS

243 SCRA 143 [1995]

FACTS: Aying filed a case against Bugoy. Bugoy filed a third party complaint against and Cyle who wants So, there must be a caption, title. Take note, the title of the action indicates the names of the parties.
to frontally meet the main complaint filed by Aying They shall all be named in the original complaint or petition; but in the subsequent pleadings, it shall be
sufficient if the name of the first party of each side be stated without the others. You only write the first
name of plaintiff and defendant and followed by the word ET AL.
Q: Suppose there are 20 plaintiffs and 20 defendants in the concept of permissive joinder of parties. Now
is it necessary that they shall be named?
A: In the complaint, YES. They shall all be named. It is possible that the title alone will reach 3 or more
pages.
BUT in subsequent pleadings like the answer, reply, it is not necessary to write the name of everybody.
What the law requires is to write the name of the first plaintiff followed by the term ET AL. Example:
Ms. Quitain, et al, plaintiffs vs. Ms. Pastor, et al, defendants.
So the rule is, it is only in the complaint where the name of all the parties are required to be stated, but
in subsequent pleadings, no need. But there is an EXCEPTION to this rule. There are instances where the
law does not require the name of the parties to be stated even in the complaint.
Q: What are the instances where the law does not require the name of the parties to be stated even in
the complaint?
A: These are the following:
1.) Subsequent Pleading (e.g. answer, reply, etc.) (Section 1); 2.) Class suit (Rule 3, Section 12);
3.) When the identity or name of the defendant is unknown (Rule 3, Section 14); 4.) When you sue an
entity without judicial personality (Rule 3, Section 15);
5.) If a party is sued in his official capacity. Official designation is sufficient. [e.g. Mr. Acelar vs.
City Mayor of Davao.] (Unabia vs. City Mayor, 99 Phil. 253)
Sec. 2. The body. - The body of the pleading sets forth its designation, the allegations of the party's
claims or defenses, the relief prayed for, and the date of the pleading. (n)
a) Paragraphs - the allegations in the body of a pleading shall be divided into paragraphs so
numbered as to be readily identified, each of which shall contain a statement of a single set of
circumstances so far as that can be done with convenience. A paragraph may be referred to by its
number in all succeeding pleadings. (3a)
(b) Headings - When two or more causes of action are joined, the statement of the first shall be
prefaced by the words "First cause of action", of the second by "second cause of action," and so on for
the others.
(c) Relief - The pleading shall specify the relief sought, but it may add a general prayer for such
further or other relief as may be deemed just or equitable. (3a, R6)
(d) Date - Every pleading shall be dated. (n)
In the body, you state your allegations or defenses. Then at the end, you state the relief which we call
PRAYER what you are asking the court: Wherefore, it is respectfully prayed that judgment be rendered
ordering defendant to pay plaintiff his loan of P1 million with interest of 10% p.a. from this date until
fully paid. Then, you end up with the date of the pleading: Davao City, Philippines, December 10,
1997.
A pleading is divided into paragraphs so numbered as to be readily identified. Normally, a complaint
starts: Plaintiff, thru counsel, respectfully alleges that x x x. Then first paragraph, second paragraph and
so on. The first paragraph is normally the statement of the parties and their addresses which is required
under Rule 6 where a complaint must state the names:
1. Plaintiff Juan dela Cruz is of legal age, a resident of Davao City whereas defendant Pedro Bautista, is
also of legal age and a resident of Davao City.
2. On such and such a date, defendant secured a loan from plaintiff in the amount of so much
payable on this date.
3. The loan is now overdue but defendant still refused to pay.
So every paragraph is numbered so that it can easily be identified in the subsequent pleadings. Pag-
sagot ng Answer, he will just refer to the #, I admit the allegations in paragraph #5)
Paragraph [b] is related to Rule 2 on joinder of causes of action. Can you file one complaint embodying
two or more causes of action? YES.
EXAMPLE: Angelo wants to file a case against Ina to collect three unpaid promissory notes. So, there are
three causes of action. The lawyer of Angelo decided to file only one complaint collecting the three
promissory notes. Now, how should he prepare the complaint containing the three promissory notes?
Plaintiff respectfully alleges: 1. that he is of legal age x x x.
FIRST CAUSE OF ACTION: In 1995, there was a loan secured amounting to so much and it is not paid until
now;
SECOND CAUSE OF ACTION: In 1995, there was a second loanbecame payable and is not paid.
THIRD CAUSE OF ACTION: x x x x.
In other words, hiwa-hiwalayin mo. You indicate your different causes of action. That is how you prepare
your complaint. On the other hand, the defendant will answer:
ANSWER:
ANSWER TO THE FIRST CAUSE OF ACTION x x x,
ANSWER TO THE SECOND CAUSE OF ACTION x x x, ANSWER TO THE THIRD CAUSE OF ACTION x x x.
Do not combine them together in one paragraph. Even in trial when you present your exhibits, you might
get confused because you combined all the three causes of action in one paragraph. But with this one,
the presentation is clearer, the outline is clearer and it is more scientifically arranged than joining them
in one story.
Under paragraph [c], the pleading must state the relief sought. But it may add a general prayer for such
further other relief as may be just and equitable like yung mga pahabol na Plaintiff prays for such
further or other relief which the court may be deemed just or equitable. Meaning, aside from the relief
sought, Kung meron ka pang gustong ibigay, okay lang. That is the general prayer.
Q: Is the prayer or relief part of the main action?
A: NO, it is part of the complaint or answer but it may indicate what is the nature of the cause of action.
Cause of actions are mere allegations. Prayer is not part of the action but it is important because it might
enlighten us on the nature of the cause of action. That is the purpose of relief or prayer.
EXAMPLE : Angelo filed a case against Ina for annulment of a contract of sale. If you look at the caption, it
is a personal action which should be instituted in the place where the parties reside. But if you look at
the prayer: Wherefore, it is respectfully prayed that after trial, the deed of sale shall be annulled on the
ground of intimidation, and the ownership of the land sold to the defendant in Digos be ordered
returned. Actually, you are trying to recover the ownership of the land. So in other words, it is not a
personal action but a real action.
Sec. 3. Signature and Address.- Every pleading must be designed by the party or counsel representing
him, stating in either case his address which should not be a post office box.
xxxxx
Signature and address every pleading must be signed by the party or the counsel representing him.
Take note of the prohibition now: You must state your address which should not be a post office box
because one difficulty is that the exact date when you claim your mail cannot be determined if it is a P.O.
box. But if it is served to his office, the exact date can easily be determined.
Before, I met a situation where the lawyer filed a motion or a pleading stating only his telephone
number. My golly! that is worse! How will I send my reply? Through telephone also? (sa text kaya?)
IMPLIED CERTIFICATION IN A PLEADING
Section 3, second paragraph:
The signature of counsel constitutes a certificate by him that he has read the pleading; that to the
best to his knowledge, information, and belief there is good ground to support it; and that it is not
interposed for delay.
Q: When a lawyer signs a pleading, what is he certifying?
A: Second paragraph says, he is certifying that he has read the pleading, that to the best of his
knowledge, information and belief, there is a good ground to support it, and it is not interposed for
delay. That is called as and IMPLIED CERTIFICATION IN A PLEADING (Arambulo vs. Perez, 78 Phil. 387).
That was already asked in the bar once.
BAR QUESTION: What is the meaning of the phrase Implied Certification in a Pleading?
A: Implied Certification in a Pleading means that when a lawyer signs a pleading he is certifying that he
has read it, to the best of his knowledge, information and belief there is a good ground to support it, and
it is not interposed for delay.
Section 3, last paragraph:
An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such
deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not
intended for delay. Counsel who deliberately files an unsigned pleading, or signs a pleading in violation
of his Rule, or alleges scandalous or indecent matter therein, or fails to promptly report to the court a
change of his address, shall be subject to appropriate disciplinary action. (5a)
So, when a pleading is not signed it produces no legal effect. It is as if no pleading has been filed.
Q: Now, suppose it was just an inadvertent omission, it was not intentional maybe because he was
hurrying to file the pleading, the lawyer had it filed when actually he has not signed it yet.
A: Well, actually if that is in good faith, the court may forgive the counsel because the law says,
however, the court, may in its discretion, allow such deficiency to be remedied if it shall appear that the
same was due to mere inadvertence and not intended for delay. Maybe, alright, you sign it now in order
that it will produce a legal effect.
However, if the lawyer files a pleading which is UNSIGNED DELIBERATELY, sinadya, then, according to the
rules, he shall be subject to appropriate disciplinary action. That is practically unethical no? Not only
that, he is also subject to disciplinary action if he signs a pleading in violation of this Rule or alleges
scandalous or indecent matter therein, or fails to promptly report to the court a change of his address.
These are the grounds no.
Now, this ground fails to promptly report to the court a change of his address has been inserted in
1997 Rules, this was not found in the prior Rules. Siguro, the SC has discovered that this has been the
cause of delay in litigation.
Q: What do you mean by this?
A: A lawyer will file a pleading in court, he will say this is his address, and then he moves his office
without telling the court or the opposing counsel of his new address. So, the court will be sending notices
and orders to his old address and it is returned to sender because the lawyer already moved to another
place. So, it causes delay ba.
So, in order to penalize the lawyer, subject to disciplinary action, it is his obligation to inform the court
and even the opposing counsel about his new address so that all court orders, decisions and all pleadings
will be served on his address. I think what prompted the SC to insert this is the fact that it has been the
cause of delays in many cases.
VERIFICATION
Sec. 4. Verification.- Except when otherwise specifically required by law or rule, pleadings need not be
under oath, verified or accompanied by affidavit. (5)
A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations
therein are true and correct of his knowledge and belief.
A pleading required to be verified which contains a verification based on "information and belief," or
upon "knowledge, information and belief," or lacks a proper verification, shall be treated as an
unsigned pleading. (6a)
Q: What do you understand by verification in a pleading?
A: It means that there is an affidavit accompanying the pleading that the pleader will certify that he
prepared the pleading, that all allegations therein are true and correct. For example: In the pleading the
plaintiff will say:

That is what you call verification of a pleading. That the pleader, whether plaintiff or defendant, will
attest that the allegations in his complaint or in his answer are true and correct of his own knowledge.
And then, he will sign it, and then below that, there will be the so-called JURAT - Subscribed and sworn
to before me on this day of December 1997, in the City of Davao, Philippines. Then, signed by the
notary public. Meaning, statements, in the pleading are confirmed to be correct, under oath, by the
defendant. That is called, the verification of a pleading.
The purpose of verification is to insure good faith in the averments of a pleading. Although lack of
verification in a pleading is a formal defect, not jurisdictional defect, and can be cured by amendment.
(Phil. Bank of Commerce vs. Macadaeg, L-14174, Oct. 31, 1960)
Q: What do you think will happen if a pleading is verified by a party and it turns out that the allegations
are false? And that he deliberately made those allegations false and under oath.
A: Well, you know your Criminal Law. That will be a ground for the prosecution for the crime of perjury,
because that is a false affidavit. But if the pleading is not verified, even if they are false, there is no
perjury, because perjury requires a sworn statement by the accused.
Q: How is a pleading verified?
A: The law says, a pleading is verified by affidavit, that the affiant has read the pleading and that the
allegations therein are, true and correct of his knowledge and belief.
Q: Suppose I will say, the allegations there are true and correct based on my information and belief. requires to be verified because he will automatically verify everything.
A: According to the paragraph 3, verification is not sufficient, because you can always claim na Ganoon
pala, hindi pala totoo. Sorry ha? That is my information eh. Meron kang lusot ba. So, you must say they
are true and correct based on my own knowledge. Information will not suffice.
Under the prior rule, a proper verification must be based on knowledge the allegations therein are
true and correct of my own knowledge. Now, knowledge and belief, and yet the third paragraph says,
based on knowledge, information and belief is bawal. So, knowledge, information and belief is
improper, but knowledge and belief only is proper. So tanggalin mo lang yung information to make it
proper.
Q: What happens if a pleading is not verified when the law requires it to be verified? Is that a fatal
defect?
A: The pleading is defective but it is only a formal defect. The court still has jurisdiction over the case. If
the defect is formal, it can be cured by amending the pleading and verifying. So, it is a defective pleading
but the defect is formal, it is not substantial or jurisdictional. Therefore, the case should not be
dismissed. The pleading can be amended to include verification.
Q: Does the law require every pleading to be verified?
A: NO. The GENERAL RULE is, pleadings need not be under oath, EXCEPT when otherwise specifically
required by law or this rule. When the law or rules require a pleading to be verified, then it must be
verified, otherwise it is formally detective. If the law is silent, verification is not necessary and the
pleading is filed properly.
Now, if you ask me, what are the pleadings which the law or the Rules of Court require to be verified,
there are many. They are scattered throughout the Rules and we will meet some in the course of going
over the Rules. I think that question has already been asked 3 times in the BAR. The last time was in
1995. Meaning, the examiner was asking for the exceptions. You cannot find one rule or one section
where you will get all the answers in that section because they are scattered, sabog eh. So, practically, it
requires the Bar candidate to have a grasp of the entire Rules so that he will be able to recall as many
pleadings as there are, which require. From time to time we will go on, we will meet them.
BAR QUESTION: Name as many pleadings as you can which must be verified. A: The following: (taken
from the 4th year Remedial Law transcription)
1.) Rule 8 when you deny the due execution of an actionable document;
2.) Summary Rules all pleadings under summary rules should be verified;
3.) Special Civil Actions petitions for certiorari, prohibition and mandamus.
I remember that years ago, there was a student who asked me this question:
Q: Now, on the other hand, suppose a pleading does not require verification but the lawyer had it
verified. What is the effect?
A: There is no effect, just surplusage! A pleading in general is not required to be verified. But I will verify
it. Is there something wrong with it? Technically, none. But if it is required to be verified and you omit
the verification, it is formally defective.
So he said, In other words Sir, it is better pala that you will verify every pleading para sigurado. No harm
man kaya? At least, even if there is a verification, when it is not required, no harm. Thats true, no harm
but if a lawyer does that, that only shows he does not know the rules. He cannot identify which pleading
And the second effect, if a pleading is not verified, and the statement is false, there is no perjury. Now I
verify it, and it turns out to be deliberately false, you are courting a criminal prosecution for your client
for perjury. In other words, you create a crime of perjury when actually there should be none in the first
place. The policy may be playing it safe but it produces other effects. Ignorance of the rules!
CERTIFICATION OF NON-FORUM SHOPPING
Sec. 5. Certification against forum shopping.-- The plaintiff or the principal party shall certify under
oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification
annexed thereto and simultaneously filed therewith:
a)that he has not theretofore commence any action 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 therein;
b) if there is such other pending action or claim, a complete statement of the status thereof;
and
c) if he should thereafter learn that the same or similar action or claim has been filed or
pending, he shall report that fact within (5) days therefrom the court wherein his aforesaid complaint
or initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall not be curable by mere amendment of the
complaint or other initiatory pleading but shall be cause for the dismissal of the case without
prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false
certification or non- compliance with any of the undertakings therein, shall constitute indirect
contempt of court, without the prejudice to the corresponding administrative and criminal actions. If
the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same
shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a
cause for administrative sanctions. (n)
You know what is forum shopping? I think you have an idea about that, no? Forum Shopping is an
unethical practice when a lawyer or a party files identical cases in two or more tribunals hoping that if he
may fail in one case, he will succeed in another forum. Now, maybe this practice has become rampant
before, not so much in Davao City but maybe in Metro Manila because most of the abuses in the bar
happen in Metro Manila not in the provinces.
Maybe because of these abuses, the SC has decided to put down this provision in order to assure good
faith. So everytime you file a complaint you must certify under oath that you have not filed any other
case of this nature in any other court. More or less, you will follow the language found in the first
paragraph. And this requirement was originally found in a Circular 04-94 of the SC. It is now incorporated
in the new rules in Section 5.
Q: What is the effect if a complaint or a third-party complaint is filed in court without the certification on
non-forum shopping?
A: That is a ground by itself for an automatic dismissal of the complaint.
Now take note that the certification of non-forum Shopping is not only required in the complaint but the
law says: Complaint or other initiatory pleadings such as counterclaims, cross-claims, third- party
complaints. Therefore, all these pleadings require certification against forum shopping.
Now lets go to the second paragraph.
Again, what is the possibility if the complaint is filed without the certification against forum shopping?
That is a ground by itself for the dismissal of the complaint.
Q: Now, suppose I will amend the complaint because at first there was no certification of non- forum
shopping, therefore, automatically the defect is cured. Now, is it automatic?
A: Look at the 2nd paragraph, it says, failure to comply with the foregoing requirements shall not be
curable by mere amendment of the complaint or other initiatory pleading, but shall be cause for the
dismissal of the case without prejudice. Meaning, you can still re-file the case with the inclusion of the
certification against forum shopping. Pwede mong ulitin, you re-file the same complaint. That is the
meaning of without prejudice.
Unless otherwise provided, upon the motion after hearing meaning, it is now discretionary on the
court to determine whether to dismiss or not to dismiss. Of course, it is a ground for dismissal, but the
court may say, Okay, we will just amend it. We will not dismiss. But definitely, you cannot insist that
because I already amended, everything is cured. That is for the court to determine whether to dismiss or
not to dismiss. So, mere amendment does not cure automatically the missing certification.
I think this provision that mere amendment does not cure automatically the missing certification for non-
forum shopping was taken by the SC from its ruling in the 1995 case of
KAVINTA vs. CASTILLO, JR.
249 SCRA 604
HELD: The mere submission of a certification under Administrative Circular No. 04-94 after the filing of a
motion to dismiss on the ground of non-compliance thereof does not ipso facto operate as a substantial
compliance; otherwise the Circular would lose its value or efficacy.
As a matter of fact, if the certification is deliberately false there are many other sanctions contempt,
possible administrative actions against the lawyer or criminal case for perjury.
Now, in permissive counterclaims, there must be a certification of non-forum shopping, otherwise the
case will be dismissed. Some lawyers argue that the certification is not required in compulsory
counterclaims. It is only required in permissive counterclaims because in permissive counterclaims, the
claimant has two choices: (1.) to file a counterclaim in the same case, or (2.) to file a separate case.
Another view is that, since Section 5 does not distinguish, we should not distinguish.
However, that issue is now resolved in the 1998 case of
SANTO TOMAS UNIVERSITY HOSPITAL vs. SURLA
294 SCRA 382 [Aug. 17, 1998]
HELD: The certification of non-forum shopping applies only to permissive counterclaims because there is
no possibility of forum shopping in compulsory counterclaims.
The proviso in the second paragraph of Section 5, Rule 7, of the 1997 Rules of Civil Procedure, i.e., that
the violation of the anti-forum shopping rule shall not be curable by mere amendment . . . but shall be
cause for the dismissal of the case without prejudice, being predicated on the applicability of the need
for a certification against forum shopping, obviously does not include a claim which cannot be
independently set up.
Rule 8
MANNER OF MAKING ALLEGATIONS IN PLEADINGS
Sec. 1 In general Every pleading shall contain in a methodical and logical form, a plain, concise and
direct statement of the ultimate facts on which the party pleading relies for his claim or defense, as

the case may be, omitting the statement of mere evidentiary facts.
If a defense relied on is based on law, the pertinent provisions thereof and their applicability to him
shall be clearly and concisely stated.
In so far as pleadings are concerned, it must only state the ultimate facts where you relied your defense
or complaint. You must omit the statement of mere evidentiary facts. The basic question here is, what do
you mean by ultimate facts? What are evidentiary facts? Distinguish ultimate facts from evidentiary
facts.
ULTIMATE FACTS vs. EVIDENTIARY FACTS
Q: What are ultimate facts?
A: Ultimate facts are those which is are essential to ones cause of action or defense.
Q: How do you determine whether a fact is essential to your cause of action or defense?
A: The test to determine whether the fact is essential to your cause of action is: if the statement in the
pleading cannot be deleted. Because if you delete it, the statement of your cause of action or defense
become incomplete, a certain element of cause of action disappears then it must be a statement of
ultimate fact. Pagtinanggal mo, wala ka ng cause of action. But if you delete it and there is still a cause of
action, then it is not an ultimate fact.
Q: What are the essential elements of a cause of action? A: The following:
1.) Statement of the right;
2.) Statement of the obligation; 3.) Statement of the violation; and 4.) Statement of damage.
You analyze a complaint from the first to the last paragraph, you find out whether the four are present.
Now, for example a complaint has 20 paragraphs. Yan bang 20 paragraphs, importante ba lahat? We will
shorten it by analyzing sentence by sentence. I will remove paragraph #2. Are the elements of the cause
of action still present out of the remaining paragraph? If the answer is yes, then, paragraph #2 is not a
statement of ultimate fact. We will remove paragraph #5, the story is still complete, there is still a cause
of action, then, the paragraph or the statement that you removed is not a statement of ultimate facts.
Suppose I will remove paragraph #7, kulang na man, the allegation of the violation of the right is no
longer present, then, the paragraph #7 cannot be deleted, otherwise, if you delete it the statement or
the story or the cause of action disappear. Then, that is an ultimate fact.
So if the statement can be deleted and the cause of action is still complete, then it is not a statement of
ultimate fact. It is only a statement of evidentiary fact.
Q: What are evidentiary facts?
A: Evidentiary facts are the facts which will prove the ultimate facts. They should not be stated in the
pleading. They should be brought out during the trial. They are proper during the trial but they have no
place in your pleading.
In the law on Evidence, ultimate facts are called facturn probandum as distinguished from factum
probans (evidentiary facts).
EXAMPLE: In a land dispute, the question is: Who has been in possession of the land for a long time? I
claim Im the one. So, I will say, plaintiff has been in possession of this land continuously for the past 30
years. That is a statement of ultimate fact because that shows your right your right over the property
that you cannot be driven out. Thirty years na gud iyan.
Suppose the lawyer wants to impress the court that the statement is true, the pleading describing
continues possession for the past 30 years from 1967 to 1997. And therefore, the lawyer will now
prepare the complaint in this manner:
Plaintiff has been in possession of the said property continuously, openly for the past 30 years from 1967
to 1997 as may be born out by the following:
He entered the property in 1967. He cleared the property by cutting the grass. In 1968, he planted 20
coconut trees. In 1969, he planted 50 coconut trees. In 1970, he planted mango trees. In 1971, he
planted guava. He will recite everything from 1967 to 1997.
That will really prove that he have been there for the past 30 years because continuous eh, - every year
you are reciting your activities including the taxes that you paid, the receipt, yan o, eto and resibo ko!
Now, if a lawyer will do that, his complaint will reach 100 pages. Do you know why? Because he violated
Section 1. He did not only state the ultimate facts but he also stated the evidentiary facts. So, what
should be the correct pattern? Complaint:
Plaintiff has been in continuous possession of the property for 30 years from 1967 up to the present.
That is the ultimate fact. You do not have to recite exactly what you did because that is what I intend to
prove. Now, of course, during the trial, how can I convince the court that I have been in possession of the
property for 30 years? Kailangan you have to convince, di ba? Then, during the trial, you present the
plaintiff and you ask the plaintiff: Mr. Plaintiff, when did you occupy the property? 1967 When you
first occupied the property, describe it. Ah, bagnot! I have to clean it. So I clean it in 1967. In 1968,
were you still there? Oh yes! What did you do in 1968? I planted coconut trees.
Did you pay taxes in 1968? Yes! Wheres the receipt? Eto o!
Yaan! From 1967, isa-isahin mo yan. Doon na tayo mag-istorya sa court. The evidentiary facts should be
brought out in court not in the pleadings, otherwise your pleading become kilometric. That is what is
meant by the phrase that you only state the ultimate facts omitting the statement of evidentiary facts.
Another Example:
Collection case. Sabihin mo: The defendant borrowed money and then it fell due. I made demands for
him to pay, but despite repeated demands he refused to pay.
Tama na iyon. You do not have to state in your complaint that when the account fell due last November
5, I called him up by telephone. He promised to pay in November 7 and called him again and he
promised to pay tomorrow Hindi na kailangang sabihin mo iyan! Those are evidentiary facts. But
during the trial, you can narrate that I have been writing, eto o, andami kong sulat, I have been calling
him by telephone but he kept on promising. So, mag-istorya ka na ng detail sa husgado. Those are what
you call evidentiary facts. But in your complaint you do not have to recite all those.
Under Section 1, you state the ultimate facts on which you rely your claim or defense. How do you state
the facts? Section 1 says that statement of ultimate facts must be stated in a methodical and logical form
and you must use plain, concise and direct statements or language. The simpler the language, the better.
A pleading is not a vehicle for you to show your mastery of the English language. The judge might throw
away your complaint for not using simple language.
I was reading an article about the use of plain, concise and direct language. I remember- Do not use this
word, rather use this word. For example, do not use the word conflagration, use fire. The latter is
simpler.
How do you present the facts? Methodical and logical form. It is a matter of writing style. Every person
has his style of writing. Corollary, every person expects you to write in a methodical or logical form. We
have said earlier that a pleading actually tells a story. Plaintiff tells the court his story. Defendant tells his
story, too. How will the court understand your story? Your presentation must be methodical and logical.
Writing style is a gift, no? Some people tell their story clearly, others dont understand. Sasabihin mo,
sabog ka mag-storya. Ang labo mo! It is not methodical and logical. Courts expect lawyers to present
case in a methodical and logical form.
What is the first test whether you style is methodical or logical? The best exercise is your own answer in
examinations. In a problem, you answer and you try to argue why. You try to present your answer in a
clear manner. It must be methodical and logical.
In your examinations, you may wonder why you got a different score with your classmates where in fact
the substance of your answers is the same. Precisely because the presentation of the answer also
matters. Siya 80, ikaw 75. Tingnan mo ang kanyang presentation, mas maganda. To know the answer is
not enough, you must know HOW to answer. Especially in the Bar exams where the corrector is
correcting more than 4,000 notebooks, your notebook must project itself as if your notebook is telling
the corrector: Read me! Read me!! That is the formula to pass law school and the Bar.
PRINCIPLE: Only ultimate facts should be alleged and not the evidentiary facts.
Q: Apart from evidentiary facts, what are the other matters that should not be stated in the pleading?
A: The following:
1.) Facts which are presumed by law;
2.) Conclusions of fact or law;
3.) Matters which are in the domain of judicial notice need not be alleged.
FACTS WHICH ARE PRESUMED BY LAW
Presumptions under the law need not be alleged in a pleading. When a fact is already presumed by law,
there is no need to make that allegation because your cause of action would still be complete.
Example:
Q: In a case of breach of contract against an operator of the common carrier. Do you think it is necessary
for the plaintiff to allege that the driver acted negligently? Is an allegation that the driver of the carrier
acted with negligence required?
A: NOT required. There must be negligence, otherwise, there would be no cause of action. However
there is no need to allege it in the complaint because under the Civil Code, whenever there is a breach of
contract of carriage, there is a presumption of negligence on the part of carrier. It is not for the
passenger to prove that the common carrier is negligent. It is for the common carrier to prove that it is
not negligent.
HOWEVER, In culpa aquilana, or quasi-delict, where there is no pre-existing contract between the
parties, the liability of the defendant hinges on negligence. There must be allegation of negligence. The
defendant must be alleged to have acted negligently to hold him liable. Otherwise, there is no cause of
action. It becomes an ultimate fact which should be alleged in the pleading.
CONCLUSIONS OF FACT OR LAW
Conclusions of law or conclusions of fact must not be stated in the pleading. A statement of fact is
different from a conclusion of fact or law. For EXAMPLE, where plaintiff said that he is entitled to moral
damages or attorneys fees. That is not a statement of fact but your conclusion.
Statement of fact is to cite the basis why you are entitled you must state the reason why you are
entitled. The statement of the ultimate fact as distinguished from conclusion was the old case of
MATHAY vs. CONSOLIDATED BANK
58 SCRA 559
HELD: A bare allegation that one is entitled to something is an allegation of a conclusion. Such allegation
adds nothing to the pleading, it being necessary to plead specifically the facts upon which such
conclusion is founded.
You must plead the facts upon which your conclusion is founded. To say that you are entitled to
something is not actually a statement of fact but merely a conclusion of the pleader. It adds nothing to
the pleading.
For EXAMPLE: The complaint alleges that the defendants are holding the plaintiffs property in Trust for
the plaintiff. Trustee ba you are holding the properties in trust for me without any explanation of the
facts from which the court could conclude whether there is a trust or not. The SC in the case of MATHAY
said that that statement is merely a conclusion of the plaintiff. You must state the basis of your
statement that they are holding your property in trust.
Frankly speaking, there are numerous complaints which are convincing but upon reading them
thoroughly, you will realize that majority of the statements are not statements of facts but conclusions of
law. Tatanggalin yung conclusion. It is bad complaint when you say that you are entitled to this without
stating your basis.
So statement of law is not allowed although there is an exception under the second paragraph of Section
1 which says that if a defense relied on is based on law, the pertinent provisions thereof and their
applicability to him shall be clearly and concisely stated. At least now you can quote the law. Sometimes
a defendant when he files his answer, his answer is purely based on law. He must cite the legal provision
in his answer and explain WHY is it applicable to him.
ALLEGATION OF ALTERNATIVE CAUSES OF ACTION OR DEFENSES
Sec. 2. Alternative causes of action or defenses. - A party may set forth two or more statements of a
claim or defense alternatively or hypothetically, either in one cause of action or defense or in separate
causes of action or defenses. When two or more statements are made in the alternative and one of
them if made independently would be sufficient, the pleading is not made insufficient by the
insufficiency of one or more of the alternative statements. (2)
Q: May a plaintiff in his complaint state two or more claims alternatively or hypothetically? A: Yes.
Q: What happens if one cause of action is insufficient? Will it cause the dismissal of the complaint?
A: No, the complaint will remain insofar as the sufficient cause of action is stated. The insufficiency of
one will not affect the entire pleading if the other cause of action is insufficient.
EXAMPLE:
I read a case about passenger who was about to board a bus. Of course when you are a passenger and
you get hurt, that is culpa contractual. If you are not a passenger and you get hurt due to the negligence
of the driver, that is culpa aquiliana. So it depends whether there is a contract of carriage or none.
In that case, the passenger was about to board a bus. As a matter of fact, the left foot had already
stepped on the bus. The bus suddenly sped up. He fell. He was not able to ride because umandar man
bigla. He was injured. What is the basis against the carrier? Is there a contract or none? There is!
Nandoon na nga ang kaliwang paa, eh. Sabi ng iba, wala pang contract. Well, may mga kaso talaga na
malabo. You dont really know whether your cause of action is culpa contractual or culpa aquiliana. You
want to claim damages but you are not sure whether your case is based on culpa contractual or culpa
aquiliana. Its either one of the two. It sometimes happens.
Now, if I am the lawyer for the plaintiff and I am tortured to make my choice, I may allege 2 possible
alternative causes of action. I will draft the complaint in such a way that I will show to the court that my
cause of action is either culpa contractual or culpa aquilana. I will make sure that both allegations are
covered. You cannot be wrong because the law does not require you to make a choice.
Q: You are the defendant. You are confronted with the same problem. There is a complaint against you
and you have 3 possible defenses. Am I obliged to make a choice immediately?
A: NO. The law allows the defendant to cite the 3 possible defenses alternatively. Meaning, each is my
defense or not.
Suppose your defenses are inconsistent, takot ka. There is a lawyer I met na takot maging inconsistent. I
told him to look at Section 2, Rule 8 very well. The law allows defendant to plead his defenses
hypothetically or alternatively. He asked, what if they are inconsistent with each other? I said, you look
at SC decisions. The SC said a party may plead 2 or more causes of action or 2 or more defenses
alternatively. They may be inconsistent with each other but what is important is each defense is
consistent in itself. Meaning, each defense, when taken alone, is a good defense. You look at them
separately. Do not compare them.
For EXAMPLE:
Plaintiff files a case against a defendant to collect an unpaid loan. The basic allegation is that the
defendant obtained a sum of money by way of loan and never paid it. Here is defendants answer:
a.) That is not true. I never borrowed any money from the plaintiff. That is a defense of denial.
b.) Assuming that I received money from the plaintiff, that money was not a loan but plaintiffs birthday
gift to me. In other words, it was a donation.
c.) Assuming that the money I received from the plaintiff was really a loan. However, such amount was
completely paid. Defense of payment.
So, I have 3 defenses. How can you reconcile these 3 defenses? They are inconsistent with each other
but it should not be taken against the defendant. What is important is that each defense is consistent in
itself. Look at them separately. That is also called a SHOTGUN ANSWER. Sabog ba! In all directions.
However, during that trial, you have to choose among them which you think is true based on evidence.
The problem is that you choose one but it turned out that a different defense would be correct. Hindi mo
na magamit. There is a prejudice because during the trial, I will choose among them with the evidence I
have. Anyway, pleading man lang yon. I can abandon the others. And that is even better because you
might confuse the plaintiff of what really is your defense. Thus, a lawyer should not be afraid to
hypothetically or alternatively plead defenses which are inconsistent with each other.
That is perfectly allowed as it is alternative and during trial the pleader may show the best one rather
than not stating it in the pleading and during the trial you waive the best defense because according to
the next rule, Rule 9, defenses or objections not pleaded in the answer are deemed waived.
Take note that you have to correlate this topic on the related provisions we have already taken up: For
EXAMPLE:
1.) Rule 2, Section 5 where a party may, in one pleading state in the alternative or otherwise, as many
causes of action;
2.) Rule 3, Section 6 on permissive joinder of parties. When may 2 persons or more be joined as
plaintiffs or defendants and how are they joined? They are joined jointly, severally, or alternatively; and
3.) Rule 3, Section 13 on alternative defendants. When you are uncertain who is the real defendant,
you may join them alternatively although the relief against one may be inconsistent with the other.
Remember this provisions because they are interrelated. Thus, when you study the Rules, dont limit
yourself to a particular provision. Look for other related provisions so you may see the entire picture.
Thats called co-relation You dont only see the tree but the entire forest. This is very helpful in the
bar exam.
HOW ALLEGATIONS IN A PLEADING ARE MADE
Q: How do you make allegations or averments in a pleading? Can you do it in a general manner or do you
need to be specific? How do you allege your ultimate facts? Is it in particular or general terms?
A: It depends on what matters you are alleging in your complaint whether is a condition precedent,
capacity to sue or be sued, fraud, mistake, malice, judgment, or official document or act.
ALLEGATION OF A CONDITION PRECEDENT
Sec. 3. Conditions Precedent. - In any pleading, a general averment of the performance or occurrence
of all conditions precedent shall be sufficient. (3)
Sometimes in a pleading, you have to allege that the conditions precedent have already been complied
with. Can you still remember, one of the elements of a right of action is that before you can go to court,
you must comply with all the conditions precedent?
Q: When you allege compliance with the conditions precedent, is it necessary for you to be specific what
are those conditions precedent?
A: NO. Section 3 says that in every pleading, a general averment for the performance of all conditions
precedent shall be sufficient. A general allegation will suffice.
For EXAMPLE, in Administrative Law, you have the doctrine of exhaustion of administrative remedies.
Where a law provide for the exhaustion of administrative remedies, court should not entertain cases
without complying said remedies first. If the rule on exhaustion of administrative remedies is violated, do
you think your case will prosper? NO, it will not.
Specific EXAMPLE: You started with a quarrel over a parcel of land where you applied for homestead.
May kalaban ka. Where will you file first? Bureau of Lands. You may then appeal to the Secretary of
Agriculture. From the Secretary of Agriculture, you may go to the Office of the Presidential who can
reverse the decision of the secretary. Now, talo ka pa rin but you believe there is a good ground to
reverse the decisions in the executive department, you can now go to the court. That is called the
doctrine of judicial review of administrative decision. Yan!
Definitely, from the Bureau of Lands, you cannot directly go to the court because you have not yet
complied with conditions precedent before filing the case. And the condition precedent is that you must
comply with the rule on exhaustion of administrative remedies.
Q: Now, suppose I have already complied with all these remedies. I will then go to court. Definitely, I will
allege that I have already exhausted remedies in the executive level. Is that allegation sufficient? I have
already exhausted my remedies in the administrative level. Do I have to emphasize - I started with the
Bureau of Lands. From there, I went to Department of Agriculture. From there, I went to the Office of the
President?
A: According to Section 3, a general averment will be sufficient. You need not specifically allege
compliance of conditions precedent. Therefore, an averment of the performance or occurrence of all
conditions precedent may be made generally and it shall be sufficient.
ALLEGATION OF CAPACITY TO SUE OR BE SUED
Sec. 4. Capacity - Facts showing the capacity of a party to sue or to be sued or the authority of a party
to sue or to be sued in a representative capacity or the legal existence of an organized association of
persons that is made a party, must be averred. A party desiring to raise an issue as to the legal
existence of any party or the capacity of any party to sue or be sued in a representative capacity, shall
do so by specific denial, which shall include such supporting particulars as are peculiarly within the
pleader's knowledge. (4)
When you file a case against somebody you must have capacity to sue and defendant must have capacity
to be sued.
Q: Is it necessary for me to say that plaintiff has capacity to sue? And the defendant has capacity to be
sued?
A: YES because Section 4 says you must show capacity to sue and be sued. It means that capacity to sue
and be sued must be averred with particularity. A general statement of it is not sufficient. As a matter of
fact, that is the first paragraph of a complaint: Plaintiff, Juan dela Cruz, of legal age, single, a resident of
Davao City There is no presumption of capacity or incapacity to sue.
You may say, I am suing as guardian of the plaintiff. That is a representative party to sue and be sued
in a representative capacity. Can you say, I am suing as a guardian? NO. Neither can you say, I am
appointed as the guardian.
Q: How should it be done?
A: I am the courts appointed guardian of the plaintiff minor having been afforded guardian by the court
in this case based on an order. You have to emphasize that the court appointed you.
Section 4 says, the legal existence of an organized association of persons that is made a party... It
means that the defendant is a corporation existing by virtue of the Philippine Corporation Law. There is
no presumption that you are corporation. That is the reason why facts showing capacity to sue and be
sued, etc. must be averred with particularity.
Theres a case which you will study in Corporation Law whether a foreign corporation can sue in
Philippine court. Under the law, it can sue provided it is licensed to do business in the Philippines. The SC
emphasized that if a foreign corporation is suing somebody in Philippine courts, the complaint must
specifically allege that a foreign corporation is doing business in the Philippines with a license to do.
Otherwise, it cannot sue. Yaan!
A party desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue
or be sued in a representative capacity, shall do so by specific denial, which shall include such supporting
particulars as are peculiarly within the pleader's knowledge (section 4, 2nd sentence)
EXAMPLE: You are the plaintiff corporation with juridical capacity. I am the defendant. Suppose I will
deny your capacity to sue. I will deny that you are a corporation licensed to do business in the
Philippines. Now, the law requires me to deny your legal capacity and I must state the reason or basis of
such denial why you are not of legal age, why you are not a corporation.
This is so because the law says that when you deny or when you question the legal existence of a party
or the capacity of any party to sue and be sued, you shall do so by specific denial which shall include such
supporting particulars as are peculiarly within the defendants knowledge. You cannot plead a general
statement that you deny. Your denial must be particular. You must be more specific about what you are
denying.
ALLEGATION OF FRAUD OR MISTAKE
Sec. 5. Fraud, mistake, condition of the mind.- In all averments of fraud or mistake, the circumstances
constituting fraud or mistake must be stated with particularity. Malice, intent, knowledge or other
condition of the mind of a person may be averred generally. (5a)
EXAMPLE: In annulment of a contract, fraud is one ground. Suppose the consent was secured through
fraud and plaintiff files a case that the defendant employed fraud in obtaining his consent.
Q: Is this statement sufficient?
A: No, because the circumstances constituting fraud or mistake must be stated with particularity.
The complaint must state how the fraud was committed. It must be described in detail how the fraud
took place.
Q: In the second sentence, why is it that malice, intent, etc. may be averred generally?
A: A general averment of malice or intent suffices because one cannot describe or particularize what is in
the mind of a party. I cannot describe in detail the malice or the knowledge in your mind. I can only say it
in general terms.
Fraud, on the other hand, is employed openly, by overt acts. How you are deceived is not only in the
mind. Those are manifested by external acts. Therefore, one can describe how a fraud was committed by
the other party.
Sec. 6. Judgment. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-
judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without
setting forth matter showing jurisdiction to render it. (6)
Sometimes a party invokes a judgment of a court or cite a previous case like res adjudicata to dismiss a
case.
Q: Suppose you will ask the court to dismiss the case because there was already judgment rendered by
the court years ago and you simply says, There was a previous judgment. Is this sufficient?
A: YES because the law presumes that the judgment is valid. And the presumption is that the court had
jurisdiction. You do not have to say that the court had jurisdiction over the subject matter, issues, etc.
when it tried the case years ago. So, it can be averred generally.
Sec. 9. Official document or act. In pleading an official document or official act, it is sufficient to aver
that the document was issued or the act done in compliance with law. (9)
One can just plead the existence of a document made by the government. EXAMPLE: official letter of the
President, or official communication by a government agency. It is sufficient to aver that the document
was issued or an act done.
SUMMARY:
Q: What averment or allegations in pleadings may be done GENERALLY?
A: The following:
1.) Rule 8, Section 3 Conditions precedent;
2.) Rule 8, Section 5, 2nd sentence Conditions of the mind; 3.) Rule 8, Section 6 Judgment;
4.) Rule 8, Section 9 Official document or act
Q: What averments must be done with PARTICULARITY? A: The following:
1.) Rule 8, Section 4, first sentence Capacity to sue and be sued;
2.) Rule 8, Section 4, 2nd sentence Legal existence of any party to sue or be sued; 3.) Rule 8, Section 5,
first sentence Fraud or mistake
ACTIONABLE DOCUMENTS
Sec. 7. Action or defense based on document. Whenever an action or defense is based upon a written
instrument or document, the substance of such instrument or document shall be set forth in the
pleading, and the original or a copy thereof shall be attached to the pleading as an exhibit, which shall
be deemed to be a part of the pleading, or said copy may with like effect be set forth in the pleading.
(7)
Not every document that is needed in trial is actionable document. Q: What is an actionable document?
A: An ACTIONABLE DOCUMENT is one which is the basis or the foundation of the cause of action or
defense and not merely an evidence of the cause of action or defense. (Araneta, Inc. vs. Lyric Film
Exchange, 58 Phil. 736) It is the very heart and soul of your cause of action or defense, not merely an
evidence thereof.
So a promissory note to collect an unpaid loan is not only an evidence of you cause of action but is it is
the very cause of action or foundation of your cause of action. On the other hand, when I have a receipt,
the receipt is not only evidence of your defense but is the very foundation of your defense. If I would like
to sue you to annul a written contract, the contract to be rescinded or annulled is the very cause of your
action.
But in a collection case, if aside from promissory note I wrote you several letter of demand to pay. Such
letter while they are relevant to the collection case, that is not the foundation of your cause of action,
although they are also important.
Q: What is the purpose of the distinction between actionable and non-actionable document?
A: If the document is not actionable, there is no need to follow Section 7. If it is actionable, it must be
pleaded in the manner mentioned in Section 7. Also in Section 8, it is needed to contest the genuiness of
the document.
Q: And how do you plead an actionable document under Section 7? A: There are two (2) options:
1.) The substance of such instrument or document, shall be set forth in the pleading and the original or a
copy thereof shall be attached as an exhibit.
2.) The copy of the document may with like effect quoted in the pleading in which case, there is
no need to attach the copy.
In the first one, there is no need to copy it. Just mention the substance or features of he promissory
note. The entire document must be quoted in the pleading.
EXAMPLE:
PROMISSORY NOTE:
December 31, 1997
For value received, I promise to pay B P1 million not later than one year from date with 2 percent per
annum.
Signed: A
Q: Using the above promissory note, how should the pleading be worded?
A: Two ways of pleading of actionable document:
1.) The substance shall be set forth in the pleading and the original or a copy thereof shall be attached to
the pleading as an exhibit, which shall be deemed as part of the pleading. Party simply cites only
important parts of the document, then attached the document.
EXAMPLE:
COMPLAINT
1. Plaintiff B is xxx of legal age xxx; Defendant A is xxxgayxxxx;
2. Sometime in December 31, 1997, defendant A secured a loan from plaintiff B for a sum of P1
million payable not later than December 31, 1998 with 2% interest per annum. Copy of said
Promissory Note hereto attached as EXHIBIT A;
3. The account is now overdue and despite demands of defendant A still failed to pay B xxx.
So, the main features of the promissory note are recited in your pleading the date when the loan was
secured, the amount, the interest, etc. But still you have to attach a copy of the promissory note, either
xerox copy or the original.
2.) Said copy may with like effect be set forth in the pleading. Document is quoted verbatim.
EXAMPLE:
COMPLAINT
1. Plaintiff B is xxx of legal age xxx; Defendant A is xxxgayxxxx;
2. On Dec. 31, 1997 def. A secured a loan from plaintiff B which is covered
by a promissory note worded as follows:
PROMISSORY NOTE:
December 31, 1997
For value received, I promise to pay B P1 million not later than one year from date with 2 percent per
annum.
Signed: A
3. The account is now overdue and despite demands of defendant A still failed to pay B xxx.
So, you copy the entire promissory note verbatim. There is no need to attach a copy of the promissory
note. That is the second way.
Now, if the document is not classified as actionable, then there is no need to follow Section 7. Just
imagine if you will apply Section 7 to all documents in your possession. If you intend to present in
evidence 50 documents and only one is actionable, ang 49 hindi, so you will have 49 annexes. So, ang
pleading mo, kakapal. (parang mukha mo!)
Q: Suppose in the first way, the promissory note was not attached. What will happen?
A: The party violates Rule 8, Section 7. The adverse party may move to dismiss the complaint for
violation of the rules, if such document could not be secured.
If an actionable document is properly pleaded in your pleading in the manner mentioned in Section 7,
the adverse party is now obliged to follow Section 8 if he wants to contest such document.
Sec. 8. How to contest such documents. When an action or defense is founded upon a written
instrument, copied in or attached to the corresponding pleading as provided in the preceding section,
the genuineness and due execution of the instrument shall be deemed admitted unless the adverse
party, under oath, specifically denies them, and sets forth what he claims to be the facts; but the
requirement of an oath does not apply when the adverse party does not appear to be a party to the
instrument or when compliance with an order for an inspection of the original instrument is refused.
(8a)
Q: Does every pleading have to be under oath? A: GENERAL RULE: NO.
EXCEPTION: Except when the law requires it. Example: Section 8, Rule 8.
EXAMPLE: If the plaintiff sues you based on a promissory note which is properly pleaded under Section 7
and you would like to contest the genuineness and due execution of the note like when the figure was
altered to P20,000 instead of P1,000 only, so there is falsification, then you must deny the genuiness and
due execution in your answer specifically and most importantly your answer must VERIFIED AND UNDER
OATH.
If the denial is not verified and under oath, the genuineness and due execution of the promissory note is
deemed admitted.
Q: When you say you have admitted the genuiness and due execution of the document, what are the
specific facts that you have deemed admitted?
A: The answer is found in the landmark case of HIBBERD vs. RHODE (32 Phil. 476):
1.) The party whose signature it bears signed it;
2.) If signed by another, it was signed for him and with his authority;
Q: Pretty Maya told Papa Paul that her housemate Sexy Regina wanted to borrow money from him. Paul
agreed. Maya signed the promissory note: Regina as principal, signed by Maya. But actually, Regina
never ordered Maya to use her (Reginas) name. When the note fell due without payment, Paul sued
Regina. Regina denied agency but failed to verify her answer. What is the effect?
A: Pretty Maya becomes agent of Sexy Regina. So, the defense of unauthorized signature is automatically
out.
3.) At the time it was signed, it was in words and figures exactly as set out in the pleading of the party
relying upon it;

Q: Mr. Quiachon sued Mr. Tiamzon to collect a loan of P50,000 on a promissory note. Mr. Tiamzon
admitted liability but only to the amount of P5,000. Mr. Tiamzon used falsification as a defense but his
answer was not verified. What is the effect?
A: Mr. Tiamzon admits the genuiness of the promissory note that it was really P50,000.
4.) The document was delivered; and
5.) The formal requisites of law, such as seal, acknowledgement (notarization) or revenue stamp which it
lacks, are waived by it.
So kung may konting diperensiya like there is notarial seal, no acknowledgment, no revenue stamp, all
these defects are deemed cured.
The SC said in HIBBERD that if you admit the genuineness and due execution of the actionable document,
defenses which are inconsistent with genuineness and due execution are deemed automatically waived.
Meaning, any defense which denies the genuineness or due execution of the document is deemed
automatically waived.
Q: What are the defenses which are no longer allowed once you admit the genuineness and due
execution of the actionable document?
A: The following:
1.) The signature appearing in the document is a forgery;
2.) In case it was signed by an agent in behalf of the corporation or partnership, or a principal, the
signature was unauthorized;
3.) The corporation was not authorized under its charter to sign the instrument;
4.) The party charged signed it in some other capacity than that alleged in the pleading; and 5.) It was
never delivered. (Hibberd vs. Rhode, supra)
Q: Does it mean to say that when you admit impliedly the genuineness and due execution of the
actionable document, you have no more defense?
A: NO. What are no longer available are defenses which are inconsistent with your own admission of the
genuineness nd due execution of the actionable document like forgery, because you cannot admit that
the document is genuine and at the same time allege that it is forged. According to the SC in HIBBERD,
you may still invoke defenses provided the defenses are NOT inconsistent with your admission of the
authenticity of the document.
Q: What defenses may be interposed notwithstanding admission of genuiness and due execution of an
actionable document as aforesaid?
A: In the case of HIBBERD, the following:
1.) payment;
2.) want or illegality of consideration;
3.) fraud;
4.) mistake;
5.) compromise;
6.) statute of limitation;
7.) estoppel;
8.) duress;
9.) minority; and
10.)imbecility
Now, if you do not verify you denial, there is already an advantage in my favor. So you cannot anymore
interpose the defense of for example, forgery because that is inconsistent with your own admission of
the genuineness and due execution of the actionable document. But what if the you presented evidence
to prove forgery? Can I waive the benefit of implied admission?
Q: May the benefit of the admission of genuineness and due execution of an actionable document? If so,
in what instances?
A: YES. In the following cases, the implied admission is deemed waived:
1.) Where the pleader presented witnesses to prove genuiness and due execution and the adversary
proved, without objection, the contrary. (Yu Chuck vs. Kong Li Po, 46 Phil. 608);
2.) Where the pleader fails to object to evidence controverting the due execution. (Legarda Koh vs.
Ongsiaco, 36 Phil. 185)
In other words, the lawyer of the defendant does not remember Section 8 and therefore the denial is
improper. But the lawyer of the plaintiff did not also remember Section 8 that when there was evidence
of forgery, he failed to object. So, the incompetence of the both lawyers cancel each other. That is what
happens if the lawyer does not know. Bobo! Maayo pa ang bulalo, naay utok!
WHEN DENIAL NOT UNDER OATH STILL VALID
Q: When may a simple denial suffice? Meaning, what are the instances where the denial of the
genuineness of the document, which is not under oath, is valid?
A: Section 8 says, the requirement of an oath does not apply:
1.) When the adverse party does not appear to be a party to the instrument;
EXAMPLE: Ms. Guadalope filed a case against Ms. Castillo based on a contract entered by them. But
before Ms. Guadalope filed the case, Ms. Castillo died (simba ko! tok-tok!).
So Ms. Guadalope filed against the heirs. The heirs realized that the signature of Ms. Castillo in contract
as forged. Even if the answer of the heirs is not under oath, they can still prove forgery because they are
not party to the instrument.
2.) When compliance with an order for an inspection of the original instrument is refused;
3.) When the document to be denied is not classified as an actionable document but merely an
evidentiary matter. This is because when the document if not actionable, there is no need to follow
Section 7.
REPLY; GENERAL RULE: OPTIONAL; EXCEPTION: SECTION 8
Normally, the person who is presenting the actionable document is the plaintiff.
PROBLEM: But suppose it is the defendant who is invoking an actionable document for his defense. He
claims to have paid the loan and have attached a copy of the RECEIPT to his answer. The plaintiff looks at
the document and realizes that his signature in the receipt is forged.
Q: What should the plaintiff do?
A: Based on Section 8, the plaintiff must deny the genuineness of the receipt specifically under oath
Q: In what pleading should the plaintiff file where he will deny under oath the genuiness and due
execution of the receipt?
A: Plaintiff should file a REPLY and it must be under oath. If he will not file a reply, the receipt is impliedly
admitted to be genuine.
Q: But the plaintiff may argue that under Rule 6, Section 10 the filing of a reply is optional. How do we
reconcile it with Section 8?
A: Rule 6 is the general rule. Section 8 should prevail over Rule 6 because the former is a specific
provision that applies only to actionable document. It has been asked in the Bar:
Q: When is the filing of the reply compulsory?
A: When the defendant anchors his defense on an actionable document and plaintiff will deny the
genuineness and due execution of such document.
SPECIFIC DENIAL
We will relate Section 10 with Section 5 of Rule 6:
Sec. 5. Defenses. - Defenses may either be negative or affirmative.
a. A negative defense is the specific denial of the material fact or facts alleged in the pleading of the
claimant essential to his cause or causes of action.
xxx
In an answer, defenses may either be negative or affirmative.
Q: Define negative defense.
A: Briefly, it is a defense of SPECIFIC DENIAL where the defendant denies the statement in the complaint
by stating the facts and the reason/s on which his denial is based.
Q: How is a specific denial done? A: Rule 8, Section 10:
Sec. 10. Specific denial. A defendant must specify each material allegation of fact the truth of which he
does not admit and, whenever practicable, shall set forth the substance of the matters upon which he
relies to support his denial. Where a defendant desires to deny only a part of an averment, he shall
specify so much of it as is true and material and shall deny only the remainder. Where a defendant is
without knowledge or information sufficient to form a belief as to the truth of a material averment
made in the complaint, he shall so state, and this shall have the effect of a denial. (10a)
Q: So what are the modes of specific denial?
A: Under Section 10, there are three (3) MODES OF SPECIFIC DENIAL:
FIRST MODE: A defendant must specify each material allegation of fact the truth of which he does not
admit and, whenever practicable, shall set forth the substance of the matters upon which he relies to
support his denial
Meaning, you deny the allegation in the complaint but you must state the basis of your denial that,
that is not true because this is what is true. So you state your own side, your own version. The purpose
there is to lay your cards on the table to make it fair to the other side. Yaan!
Q: What happens if a denial violates this first mode? Meaning, the pleader did not set forth the
substance of the matters relied upon to support his denial.
A: That is know was GENERAL DENIAL and it will have the effect of automatically admitting the
allegations in the complaint.
Q: Suppose the pleader will say, Defendant specifically denies the allegations in paragraph 2,4,7
without any further support for the denial. Is the denial specific?
A: NO. A denial does not become specific simply because he used the word specific. (Cortes vs. Co Bun
Kim, 90 Phil. 167) What makes a denial specific is compliance with Section 10.
SECOND MODE: Where a defendant desires to deny only a part of an averment, he shall specify so much
of it as is true and material and shall deny only the remainder.
Sometimes an allegation may consist of 2 or more parts. Therefore the answer may admit part 1 but part
2 is denied. Or, the substance of the allegation is actually admitted by the qualification there is denied.
EXAMPLE: Plaintiff alleges that the Defendant is in possession of the property under litigation in bad
faith. Now, the defendant may admit that the property is in his possession but he denies the
qualification in bad faith possession is not in bad faith. Based on that, the defendant should say,
Defendant admits that portion of paragraph no. 2 that he is in possession of the property in question;
but denies that he is a possessor in bad faith or something to that effect.
Therefore, when you say I deny the entire paragraph when actually you are not denying the entire
paragraph but only the qualification, that is called a NEGATIVE PREGNANT. Actually, in the legal point of
view, what is only denied is the qualification to the averment. The substance of the allegation is actually
admitted.
THIRD MODE: Where a defendant is without knowledge or information sufficient to form a belief as to
the truth of a material averment made in the complaint, he shall so state, and this shall have the effect of
a denial
Meaning, I am not in a position to admit or to deny because I have no knowledge. How can I admit or
deny something which I do not know?
EXAMPLE: Plaintiff claims for moral damages because Defendant destroyed his reputation. Defendant
does not know that Plaintiff had sleepless nights, wounded feelings, serious anxiety, etc. Here,
Defendant cannot admit or deny those.
I have read pleadings where the pleader would say, Defendant has no knowledge or information
sufficient to form a belief as to the truth of the allegation in paragraphs 6, 7, 8, 9 of the complaint and
therefore he denies the same. Actually, there is something wrong there. How can you deny something
that you have no knowledge of. Just state, I have no knowledge. Then period! And is has the automatic
effect of a denial.
However, the SC warned that he third mode of denial should be done in good faith. If the fact alleged is
such that it is within your knowledge, it is impossible that it is not within your knowledge, you cannot
avail of the third mode of denial. Otherwise, if you will avail of the third mode in bad faith, your denial
will be treated as an admission. That is what happened in CAPITOL MOTORS vs. YABUT (32 SCRA 1).
In CAPITOL MOTORS, suppose I file a case against you, Defendant borrowed money from plaintiff in the
sum of P10,000 payable one year from said date. And then you say, I have no knowledge or
information There is something wrong there. What you are trying to say there is I do not know
whether I borrowed money from you or not.
How can that be? It is either you borrowed money or you did not! That is why the SC said in CAPITOL
MOTORS, if you borrowed money, you say so. And if you did not, deny it. And then I will allege there,
The defendant have made partial payments. Then you will say, I have no knowledge. My golly! You
do not even know whether you paid me? In other words, talagang evasive bah! You are trying to be
clever and evasive. And if you do that, all your denials will be treated as admissions. That is the warning
in the third mode.
Sec. 11. Allegations not specifically denied deemed admitted. Material averment in the complaint,
other than those as to the amount of unliquidated damages, shall be deemed admitted when not
specifically denied. Allegations of usury in a complaint to recover usurious interest are deemed
admitted if not denied under oath. (1a, R9)
While the law says material averment in the complaint, this rule extends to counterclaims, cross- claims
and third-party complaints. (Valdez vs. Paras, L-11474, May 13, 1959)
The reason for the rule on specific denial is that, if there is a material averment in the complaint and was
not specifically denied, it is deemed admitted. However under Section 11, there are averments in the
complaint which are not deemed admitted even when not specifically denied.
GENERAL RULE: Material averment in a complaint shall be deemed admitted when not specifically
denied.
EXCEPTION: Instances when averments in the complaint are not deemed admitted even when not
specifically denied:
1.) Amount of unliquidated damages;
2.) Immaterial averments (Worcester vs. Lorenzana, 56 O.G. 7932, Dec. 26, 1960)
3.) Evidentiary matters; because a party is only obliged to aver ultimate facts; (Agaton vs.
Perez, L-19548, Dec. 22, 1966)
4.) Conclusions of facts or law.
Lets discuss the first exception AMOUNT OF UNLIQUIDATED DAMAGES is not deemed admitted even if
not specifically denied. So if the damages are liquidated, they are deemed admitted. Examples of
unliquidated damages are moral and exemplary damages. Or expenses which I incurred in the hospital.
Those are unliquidated damages. They are always subject to evidence. You have to prove how much
amount you are entitled to. That is why they are not deemed admitted even if not specifically denied.
So if you are claiming P1 million damages for sleepless nights or besmirched reputation, and I did not
specifically denied such claim, it does not mean that you are automatically entitled to P1 million. Hindi
yan puwede. You have to present evidence that you are really entitled to P1 million. Yaan!
On the other hand, an example of liquidated damages is an obligation with a penal clause. For example
in our contract, it is stipulated that in case you cannot comply with your obligation, you will pay me P1
million. So if you failed to specifically deny it, then you are deemed to have admitted that I am entitled to
P1 million. There is no need for computation because the amount is already in the contract beforehand.
The contract itself would show how much I am entitled.
Section 11 also says, Allegations of usury in a complaint to recover usurious interest are deemed
admitted if not denied under oath. Usury means you charge interest above the legal interest provided by
the usury law. If you want to deny my charge of usury, your answer must be under oath. So, this is the
second instance where a denial should be verified.
NOW, I wonder why this provision is here when as early as 1983 in the case of LIAM LAW vs. OLYMPIC
SAW MILL (129 SCRA 439), that usury is no longer existing and the SC stated in that case that the
provision of the Rules of Court in usury are deemed erased or superseded. Obviously, the SC forgot what
it said in the 1983. (Ulyanin!!)
Sec. 12. Striking out of pleading or matter contained therein. Upon motion made by a party before
responding to a pleading or, if no responsive pleading is permitted by these Rules, upon motion made
by a party within twenty (20) days after the service of the pleading upon him, or upon the court's own
initiative at any time, the court may order any pleading to be stricken out or that any sham or false,
redundant, immaterial, impertinent, or scandalous matter be stricken out therefrom. (5, R9)
Before answering, the defendant can file a motion to strike out a pleading or a portion of a pleading.
Striking a pleading means that the pleading will be deemed erased as if it was never filed. Or if a portion
of the pleading be ordered stricken out or expunged where a pleading or a portion thereof is sham or
false, redundant, immaterial, impertinent, or a scandalous matter is inserted in the pleading, is deemed
erased. This is related to Rule 7, Section 3, third paragraph:
RULE 7, Sec. 3. Signature and address. xxxx
An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such
deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not
intended for delay. Counsel who deliberately files an unsigned pleading, or signs a pleading in violation
of this Rule, or alleges scandalous or indecent matter therein, or fails to promptly report to the court a
change of his address, shall be subject to appropriate disciplinary action.
So, if your pleading contains scandalous or indecent matters, the lawyer who files it may be subjected to
appropriate disciplinary actions.
Q: What if it is the reply is the one which contains scandalous matter?
A: A motion to strike may still be filed by the defendant within 20 days after the reply.
Rule 9
EFFECT OF FAILURE TO PLEAD
General Rule: DEFENSES AND OBJECTIONS NOT PLEADED EITHER IN A MOTION TO DISMISS OR IN THE
ANSWER ARE DEEMED WAIVED
Section 1. Defenses and objections not pleaded. Defenses and objections not pleaded either in a
motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings
or the evidence on record that the court has no jurisdiction over the subject matter, that there is
another action pending between the same parties for the same cause, or that the action is barred by a
prior judgment or by statute of limitations, the court shall dismiss the claim. (2a)
GENERAL RULE: Defenses or objections not pleaded in a motion to dismiss or on answer are deemed
waived. If you do not plead your defense, the same is deemed waived. The court has no jurisdiction over
the issues.
EXAMPLE: In a collection case against you, you did not raise the defense of payment in your answer. But
during the trial, you attempted to prove that the loan has already been paid. Now, that cannot be done
because the defense of payment is deemed waived because you did not raise it in your answer. In other
words, the court never acquired jurisdiction over the issue.
So, there is no such thing as a surprise defense because the defense must be pleaded. If you want to
surprise the plaintiff during the trial by not raising your defense in your answer, you will be the one who
will be surprised because the court will not allow you. When the parties go to court, the plaintiff already
knows what are the defenses. They are already in the answer.
EXCEPTIONS:
Q: What defenses or objections can be taken cognizance of by the court despite the fact that they are
not raised in the motion to dismiss or answer?
A: Under Section 1, Rule 9, the following:
1.) That the court has no jurisdiction over the subject matter;
2.) That there is another action pending with the same parties for the same cause (litis
pendentia;
3.) That the action is barred by prior judgment (res adjudicata); and 4.) That the action is barred by
statute of limitation (prescription).
Take note that the exceptions can be raised at any time during or after the trial, or even for the first time
on appeal.
Now, the traditional rule to remember notwithstanding the SIBUNGHANOY Doctrine, is that, when there
is a defect in the jurisdiction of the court over the subject matter, the defect can be raised at any stage of
the proceeding even for the first time on appeal (Roxas vs. Raferty, 37 Phil. 957). This is because
everything is null and void. Jurisdiction over the subject matter cannot be conferred by agreement
between the parties, by WAIVER, by silence of the defendant.
LITIS PENDENTIA. You file a another case while another action is pending between the same parties for
the same cause. That is actually splitting a cause of action because there is already an action and then
you file another action. The action can be dismissed on the ground that there is a pending action.
RES ADJUDICATA. There was already a prior final judgment then you file another case regarding the same
issue. That is also splitting a cause of action.
PRESCRIPTION is not found in the old rule but is taken from decided cases. Among which are the cases of
PNB vs. PEREZ (16 SCRA 279)
PEPSI COLA vs. GUANZON (172 SCRA 571)
HELD: The rule on waiver of defenses by failure to plead in the answer or in a motion to dismiss does
not apply when the plaintiffs own allegations in the complaint show clearly that the action has
prescribed in such a case the court may motu propio dismiss the case on the ground of prescription.
Q: Can the court dismiss the action based on any of these grounds without the filing of a motion to
dismiss?
A: YES. It would seem so because the second sentence says, When it appears from the pleadings or the
evidence on record the court shall dismiss the claim. (This is an important change)
Under the 1964 Rules, one of the grounds that you can raise at any stage of the proceeding before
judgment is failure to state a cause of action, but it disappears under the new rules. Does it mean to say
that you cannot raise it anymore? NO. It can still be raised because it can be taken care of by another
rule Rule 33 on Demurrer.
Sec. 2. Compulsory counterclaim, or cross-claim, not set up barred. A compulsory counterclaim, or a
cross-claim, not set up shall be barred. (4a)
See discussions on Rule 6, Sections 7 and 8 on counterclaim and cross-claims, respectively.
RULE ON DEFAULT
Sec. 3. Default; declaration of. If the defending party fails to answer within the time allowed therefor,
the court shall, upon motion of the claiming party with notice to the defending party, and proof of
such failure, declare the defending party in default. Thereupon, the court shall proceed to render
judgment granting the claimant such relief as his pleading may warrant, unless the court in its
discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to
the clerk of court. (1a, R18)
xxxxxx
A defending party is declared in DEFAULT if he fails to answer the complaint within the time allowed
therefor. The rule on answer is found in Rule 11. And under Rule 11 as a rule, you have 15 days to file an
answer counted from the time you are furnished a copy of the complaint together with the summons
If the period to answer lapsed and there is no answer, the plaintiff will move to declare the defendant in
default on the ground of failure to file an answer to the complaint. So, the court will issue an order of
default declaring you as a defaulted defendant.
And from the time a party is declared in default, he loses his standing in court, although he is still entitled
to notice of subsequent proceedings. He cannot participate in the trial. He cannot object to plaintiffs
evidence. He cannot present his own evidence. In effect, the case will be decided only on the basis of
plaintiffs side without anymore hearing the defendant. And of course, the plaintiff will win. It is like a
boxing bout ba where the rule is, isa lang ang mag-suntok. My golly! How can you win in that situation?
That is the effect of default.
Take note that the word defending party applies not only to the original defendant but even to the
cross-defendant or defendant in a counterclaim.
Q: May a court declare a defendant in default without any motion? A: NO, because the law says, upon
motion of the claiming party.
Now, with NOTICE to the defending party is a new one. You must furnish a copy to the defending party
of your motion to order the defendant in default which abrogates previous rulings.
Q: Suppose the defendant filed an answer but during the trial, he failed to appear. May he be declared in
default?
A: NO, because the ground for default is failure to file an answer. The correct procedure is for the trial to
proceed without him. (Go Changjo vs. Roldan Sy-Changjo, 18 Phil. 405) That is what you call EX-PARTE
reception of evidence. Only one side will be heard.
BAR QUESTION: If the defendant is declared in default for failure to file an answer is deemed to have
admitted the allegations in the complaint to be true and correct?
A: YES, because the law NOW says, the court shall proceed to render judgment granting such claimant
such relief as his pleading may warrant. The reception of plaintiffs evidence is already dispensed with.
Wala ng reception of evidence. That is the GENERAL RULE. That is the same as the summary rules and
judgment on the pleadings and the court can grant the relief without presentation of evidence.
HOWEVER under Section 3, it is discretionary upon the court to require the claimant to submit evidence.
EX-PARTE RECEPTION of evidence is OPTIONAL for the court. And such reception of evidence may be
delegated to the clerk of court. This is related to Section 9, Rule 30:
Rule 30, Sec. 9. Judge to receive evidence; delegation to clerk of court. The judge of the court where the
case is pending shall personally receive the evidence to be adduced by the parties. However, in default or
ex parte hearings, and in any case where the parties agree in writing, the court may delegate the
reception of evidence to its clerk of court who is a member of the bar. The clerk of court shall have no
power to rule on objections to any question or to the admission of exhibits, which objections shall be
resolved by the court upon submission of his report and the transcripts within ten (10) days from
termination of the hearing. (n)
The reception of evidence maybe delegated to the clerk of court but the clerk of court must be a lawyer,
that is the condition. So if he is not a member of the bar, he is not authorize to conduct or hear an ex-
parte reception of evidence.
SUMMARY: Steps when the defendant fails to file an answer within the time allowed: 1.) Motion to
declare defendant in default;
2.) Order of default;
3.) Judgment based on the complaint of the plaintiff UNLESS court requires the claimant to submit
evidence (ex-parte presentation of plaintiffs evidence)
However, when should the court dispensed with the ex-parte presentation of evidence and when should
it require the claimant to submit evidence being discretionary? May ibang judges who likes kapoy na,
judgment kaagad! May iba naman, reception muna which will take time. In my personal view, cases
which are simple, presentation of evidence ex-parte can be dispensed with like collection cases ba.
Walang laban ang defendant talaga.
But in controversial cases, like recovery of a piece of land medyo mahirap yan. The judge will not
automatically decide in your favor simply because of failure to answer by the defendant. The judge may
still want to hear plaintiffs evidence. To my mind, that should be the policy regarding this rule.
Q: If a defendant files an answer but did not furnish a copy of the answer to the plaintiff, can the plaintiff
move to declare the defendant in default?
A: YES, because the answer is deemed to have not been legally filed. It was not in accordance with the
Rules of Court. (Gonzales vs. Francisco, 49 Phil. 47) So the defendant must furnish the plaintiff a copy of
the answer because in the case of
RAMIREZ vs. COURT OF APPEALS
187 SCRA 153
HELD: The failure to furnish a copy of the answer to the adverse party in itself is sufficient or valid basis
for defendants default.
Q: May a defendant be declared in default while a motion to dismiss (Rule 16) or a motion for bill of
particulars (Rule 12) remains pending and undisposed of?
A: NO, because under the filing of a motion to dismiss or motion for bill of particulars interrupts
the running of the period to answer. It will run again from the moment he receives the order denying his
motion to dismiss or for bill of particulars. (Hernandez vs. Clapis, 87 Phil. 437)
In the case of
DEL CASTILLO vs. AGUINALDO
212 SCRA 169 [1992]
FACTS: The defendant filed a motion to dismiss under Rule 16 but his motion to dismiss did not contain
notice of time and place of hearing and the motion was denied. Can he file an answer after filing the
motion to dismiss?
HELD: NO. He can be ordered in default. The motion is a useless piece of paper with no legal effect.
Any motion that does not comply with Rule 16 should not be accepted for filing and if filed, is not
entitled to judicial cognizance and does not affect any reglementary period. Not having complied with
the rules, the motion to dismiss filed by the defendant did not stay the running of the reglementary
period to file an answer.
GOLDEN COUNTRY FARM, INC. vs. SANVAR DEVT CORP.
214 SCRA 295 [1992]
FACTS: Because of the filing of the motion to dismiss is 15 days, the defendant filed a motion to dismiss
on the 8th day. It was denied. So there is still 7 days to file an answer. On the 15th day, instead of filing
an answer, he filed a motion for reconsideration and the such motion was denied. Then he filed an
answer.
HELD: NO MORE. The filing of the motion to dismiss interrupted the period to file an answer. When you
receive an order, you still have the balance to file your answer. And you did not file an answer instead,
you file a motion for reconsideration. You took the risk. So defendants motion for reconsideration which
merely reiterated his ground in the motion to dismiss did not stay the running of the period to file an
answer.
(a) Effect of order of default. - A party in default shall be entitled to notice of subsequent
proceedings but not to take part in the trial. (2a, R18)
So if you are declared in default, you cannot take part in the trial. You lose your standing, you cannot
cross-examine the witness of the plaintiff assuming there is a reception of evidence. You cannot object to
his evidence. You cannot even present your own evidence when you are in default.
But what is NEW here is that, you are entitled to notice of subsequent proceedings which abrogates the
old rule. Under the old rules, you are not entitled to service of notice, orders, except substantially
amended pleadings, supplemental pleadings, final orders or judgments or when you file a motion to set
aside an order of default.
But NOW, wala na yan. You are now entitled to service of everything. You only lose you standing in court
but for the purpose of notice, you are entitled to service of every motion, every pleading, every order.
HOW TO LIFT ORDER OF DEFAULT
(b) Relief from order of default. - A party declared in default may at any time after notice thereof
and before judgment file a motion under oath to set aside the order of default upon proper showing that
his failure to answer was due to fraud, accident, mistake or excusable negligence and that he has a
meritorious defense. In such case, the order of default may be set aside on such terms and conditions as
the judge may impose in the interest of justice. (3a, R18)
Q: What is the remedy of a defendant who has been declared in default?
A: One remedy under Section 3 paragraph [b] is that, provided there is still no default judgment, he
can still file a motion to set aside the order of default upon a proper showing that his failure to answer
was due to F.A.M.E. (Fraud, Accident, Mistake, or Excusable negligence) and that he has a meritorious
defense. [The discussions on FAME is in Rule 37 New Trial or Reconsideration]
Meaning, even if you are a victim of FAME, if you have no meritorious defense, the court will not lift the
order of default. You are wasting my time. Kahit na pagbigyan kita, talo ka pa rin. There is no chance for
you to win anyway. But if you have a meritorious defense, there is no guarantee that you will win but at
least you have a fighting chance ba that your standing will be restored.
Upon proof, the court will set aside or lift the order of default and will give the defendant an opportunity
to answer, where he will plead his supposed meritorious defenses. In effect, he regains his standing in
court.
Q: When can the defendant avail of this remedy?
A: He may file a motion to set aside the order of default at any time after notice thereof and before
judgment.
SUMMARY: Steps the defendant should take to set aside the order of default:
1.) File a motion to lift or set aside the order of default. The motion must be verified and under oath;
2.) He must explain why he failed to file an answer due to FAME; and 3.) He must also show that he has
a meritorious defense.
PARTIAL DEFAULT
(c) Effect of partial default. - When a pleading asserting a claim states a common cause of action
against several defending parties, some of whom answer and the others fail to do so, the court shall try
the case against all upon the answers thus filed and render judgment upon the evidence presented. (4a,
R18)
This presupposes that there are two or more defendants. Say, one or some of the defendants made an
answer and the others did not. So, one or some of the defendants were declared in default, the others
were not.
EXAMPLE: Gary sued Bentong and Bayani. Bentong filed an answer. Bayani did not. Bayani was declared
in default but there can be no judgment against Bayani in the meantime because under paragraph [c],
the case will go to trial based on the answer of Bentong. The case will be tried against both Bentong and
Bayani based on the answer of Bentong.
The principle here is that, the answer filed by the answering defendant will automatically benefit the
non-answering defendant. The defense of Bentong will also be Bayanis defense. Anyway there is a
common or identical cause of action. The best example would be a promissory note signed by both
Bentong and Bayani and they bound themselves solidarily. Both of them were sued. Bentong answered
while Bayani did not, hence he is in default. Can there be a default judgment against Bayani? NO, there
will still be a trial based on the answer of Bentong. In effect, Bentong will defend not only himself but
also Bayani.
Q: Suppose during the trial, Bentong proved that the obligation has been extinguished, which is also
applicable to Bayani, and the complaint is dismissed, what is the effect?
A: Both Bentong and Bayani will win the case. So Bayani will be benefited by the answer of his co-
defendant Bentong. Hence, there is still a possibility that a defaulted defendant can win based on our
example.
On the other hand it is absurd if the answer of Bentong will not benefit the defaulting defendant.
EXAMPLE: Gary filed a case against Bentong and Bayani based on a promissory note on a loan secured by
both, and Bayani defaulted. Bentong answered alleging payment. Suppose, Bentong proved such
defense, the effect is both Bentong and Bayani are absolved. If you say that Bayani should lose because
the answer of Bentong will not benefit Bayani, there will be two conflicting decisions: Bayani is in
default and thus, should pay the loan; and there is no more loan as far as Bentong is concerned. Do you
mean a loan is paid and at the same time unpaid? Thats absurd!
But take NOTE that to apply the principle, there must be a common cause of action. If there is no cause
of action, while there may be a trial, the answer of Bentong is only for him. After the trial, Bentong might
be absolved from liability but the defaulting defendant Bayani will be held liable because Bentongs
answer does not cover Bayani. That is when there is no common cause of action. In the case of
CO vs. ACOSTA (134 SCRA 185 [1985]) reiterating the case of LIM TANHU vs. RAMOLETE (66 SCRA 425)
FACTS: Bentong and Bayani were (solidary debtors) sued by Gary for a loan evidenced by a promissory
note. Bentong filed an answer but Bayani defaulted. The case was tried based on Bentongs answer. Gary
move to drop Bentong from the case but retained Bayani, the defaulted defendant so that Gary can
secure an immediate judgement.
ISSUE: Is the motion of Gary proper?
HELD: NO. When there is a common cause against two or more defendants, if you drop the case against
one, you drop the case against all. Selection is not allowed. To drop Bentong means that the cause of
action against him is weak. Why should one drop somebody if a case against such person is meritorious?
If such is the fact, necessarily the cause of action against the other is also weak the fact there is actually a
common cause of action.
However, the ruling in ACOSTA should not be confused with the ruling in
IMSON vs. COURT OF APPEALS [1996 BAR] 239 SCRA 58 [1994]
FACTS: Imson was driving a Toyota Corolla when he was bumped by a Hino Truck causing injury to Imson
and totally wreaking his car. So he filed an action for damages against several defendants. He impleaded
all of them the driver, the bus company owner and the insurance company. The insurance company
filed an answer but the owner and the driver did not. So both the owner and the driver were declared in
default.
Subsequently, lmson and the insurance company entered into a compromise agreement wherein the
latter paid him P70,000 which was its total liability under the insurance contract. The claim was very big
so the insurance company offered to give the amount, Bahala ka sa sobra.
So when the case (between Imson and the insurance company) was eventually dismissed because of the
compromise agreement, the bus company owner also moved to dismiss the case against him and the
driver, arguing that since they are all indispensable parties under a common cause of action, the
dismissal of the case against the insurance company should likewise result to the dismissal of the case
against them citing the case of
ACOSTA and RAMOLETE.
ISSUE #1: Is there a common cause of action among the three of them?
HELD: The owner is wrong. There is NO common cause of action. The cause of action against the driver is
based on quasi-delict under Article 2178 of the Civil Code. The liability against the owner is also based on
quasi-delict but on another provision of the Civil Code Article 2180 (the liability of the employer for the
delict or wrong of the employee) So, the liability of the owner and the driver is based on quasi -delict but
under separate provisions of the Civil Code.
Now, the cause of action against the insurance company is not based on quasi-delict but based on
contract because he seeks to recover liability from the insurance company based on the third-party
liability clause of the insurance contract with the company.
So, there no common cause of action among them. Yaaann!
ISSUE #2: Is the insurance company an indispensable party? Because if it is so and he is removed from
the case, the case cannot proceed without him.
HELD: NO. The insurance company is not an indispensable party.
It is true that all of Imsons claims in civil case is premised on the wrong committed by defendant truck
driver. Concededly, the truck driver is an indispensable party to the suit. The other defendants, however,
cannot be categorized as indispensable parties. They are merely necessary parties to the case. It is easy
to see that if any of them had been impleaded as defendant (meaning, the insurance company or the
owner were impleaded), the case would still proceed without prejudicing the party not impleaded.
Thus, if petitioner did not sue the insurance company, the omission would not cause the dismissal of
the suit against the other defendants. Even without the insurer, the trial court would not lose its
competency to act completely and validly on the damage suit. The insurer, clearly, is not an
indispensable party. It is a necessary party.
(d) Extent of relief to be awarded. - A judgment rendered against a party in default shall not
exceed the amount or be different in kind from that prayed for nor award unliquidated damages. (5a,
R18)
This is what we call LIMITATIONS on a default judgment:
1.) The default judgment should not exceed the amount prayed for in the complaint;
2.) The default judgment should not be different in kind from that prayed for in the complaint; 3.) The
default judgment should not award unliquidated damages.
Q: In the complaint, the claim is P300,000. The defendant defaulted. The court required the plaintiff to
present his evidence and during the trial, the latter proved P500,000 total claim. Can the court award
P500,000 claim as proved?
A: NO. It should only be P300,000 as prayed for in the complaint.
Q: Suppose during the trial, only P200,000 was proved. What should be the amount of the default
judgment?
A: Only P200,000 as proved because it did not exceed the amount prayed for in the complaint.
Therefore, the rule is, the default judgement cannot exceed the amount prayed for in the complaint
although it may be less than it. Yaannn!
FUNDAMENTAL REASON ON THE RULE ON DEFAULT
What is the reason behind this? You have to know the philosophy on default to understand the reason
behind paragraph [d]. Default means the defendant failed to file an answer despite the fact that he was
properly summoned.
Q: If a defendant failed to file an answer, what may be the reasons behind that? Why did he not file an
answer?
A: In the case of LIM TOCO vs. GO FAY, (80 Phil 166), there are two (2) possible reasons:
1.) Defendant deliberately did not answer because he believed that he had no good defense, and that
the claim is fair. And if he will make an answer, still he will not win and would just incur expenses;
2.) He had a meritorious defense and he wanted to answer but for one reason or another beyond his
control, he failed to file his answer.
Q: In the second possibility the defendant had a defense and wanted to file an answer but failed to file
an answer, what is the remedy of such defendant?
A: It is paragraph [b] file a motion to lift the order of default and state the reasons beyond ones
control fraud, mistake, accident, or excusable negligence (FAME) and that there is a meritorious
defense.
Now suppose he did not answer because he thinks the claim is fair and so he will just pay. Then, the
contingency is paragraph [d] rest assured that the judgment will not exceed the amount or be different
in kind from that prayed for. At least, you will not be surprised.
Just imagine, if you file a case against me for P200,000 damages and then I thought its fair. So I allowed
myself to be defaulted because anyway its only P200,000 because if I file my answer, the costs could
increase. And then during the trial, you proved that the damages were in fact P2 million. So, when I
received the judgment it was already P2 million when the complaint was only for P200,000. Now, if you
knew that would be the case, then you would have fought it out. In other words, its unfair. Hence, the
reason.
Q: If the defendant filed an answer but failed to appear during trial, what will happen? A: The case will
proceed and there will be a presentation of evidence EX-PARTE.
Now if a person is declared in default, it is also possible that an Ex Parte presentation of evidence will be
ordered.
MANGELIN vs. COURT OF APPEALS
215 SCRA 230 [1992]
ISSUE: What is the difference between ex-parte presentation of evidence by virtue of default judgment
AND ex-parte presentation of evidence by failure to appear during the trial
HELD: In reception of evidence due to DEFAULT ORDER, paragraph [d] applies the judgment cannot
exceed the amount or be different in kind from that prayed for in the complaint.
BUT if theres an ex-parte reception of evidence against a defendant who filed an answer but FAILED TO
APPEAR during the trial, the limitations in paragraph [d] does not apply. Therefore in this case, a greater
amount than that prayed for in the complaint, or a different nature of relief may be awarded so long as
the same are proved.
It may be pointed out that there is a difference between a judgment against a defendant based on
evidence presented ex-parte pursuant to a default order and one based on evidence presented ex-parte
and against a defendant who had filed an answer but who failed to appear at the hearing. In the former,
Section 3 [d] of Rule 9 provides that the judgment against the defendant should not exceed the amount
or be different in kind from that prayed for. In the latter, however, the award may exceed the amount or
be different in kind from that prayed for.
This is because when there is an ex parte presentation of evidence due to failure to appear in trial, ones
standing in court is not lost. HE can still present evidence later to refute the plaintiffs evidence.
He simply waived the rights attached on particular hearing but not to all subsequent trials. In
judgement by default, he actually loses his standing in court.
They added new (third) limitation Unliquidated damages cannot be awarded in default judgment.
Obviously liquidated ones can be.
Q: What is the difference between UNLIQUIDATED damages and LIQUIDATED damages?
A: UNLIQUIDATED DAMAGES are those which are still subject to evidence before it can properly be
awarded such as the presentation of receipts in terms of actual damages, or taking of testimonies to
determine mental anguish or besmirched reputation in cases of moral damages.
LIQUIDATED DAMAGES are those which are already fixed and proof or evidence to establish the same
are not required. An example is an obligation with a penal clause like an agreement to construct a house
and upon failure to finish the same within a stipulated period, the contractor is liable for P10,000 for
every day of delay. The amount is already fixed based on the contract price and the penalty provided and
such other circumstances as stipulated.
Now, this third limitation is one of the provisions that I criticized. It should not be here. Something is
wrong here. Last September 1997 during the BAR exams, the secretary of the committee which drafted
this, the former clerk of court of the SC, Daniel Martinez asked for comments on the New (1997) Rules. I
told him about the new Rules on Default, asking him who placed the provision there. He said it was
Justice Ferias idea.
J. Feria said, Kawawa naman kasi yung tao, na-default na titirahin mo pa ng unliquidated damages. But
I said that there is something wrong here. For EXAMPLE: You filed a case against me na puro damages
compensatory , moral , etc. and I believe I will lose the case if I go to trial. So, my strategy now would to
have myself declared in default because anyway, those unliquidated damages cannot be awarded by
default.
In other words, they have placed the defaulted defendant in a better position when he will file an answer
because if he files an answer and goes to trial, he might lose. So, if he allows himself to be defaulted, the
court can never award the damages. This is the effect of the new limitation. That is why Im against this
change here.
So, in an action for damages, I will never answer para pag ma-default ako, the court can never award
those damages. Because if I will answer, eh baka ma-award pa. In other words, I will win the case simply
because there is no way for the court to award the damages. And most damages are usually those
unliquidated damages.
(e) Where no defaults allowed. - If the defending party in an action for annulment or declaration
of nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting
attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion,
to intervene for the State in order to see to it that the evidence submitted is not fabricated. (6a, R18)
This refers to marital relations referred to in the Family Code: Annulment of marriage; Declaration of
nullity of marriage; Legal Separation. And the policy of the State is to preserve the marriage and not
encourage break-ups.
Now, in the absence of this provision, husband and wife quarrels and then they decide to separate. Wife
will file a case for legal separation with the agreement that the husband will not answer. Being in default,
there will be a judgement in default and in a months time marriage will be severed for the meantime.
The provision then prohibits default in marital relations cases to preserve and uphold public policy.

Q: What if the party did not really file an answer?
A: The court is bound to find out whether there is a collusion between the parties whether the act is
deliberate without agreement. We already know that there should be presentation of evidence. And the
law requires the State to intervene. The fiscal is responsible to see to it that the evidence is not
fabricated, the same is legitimate.
Relate this provision of the rule to Articles 48 and 60 of the Family Code:
Family Code, Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the court
shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps
to prevent collusion between the parties and to take care that the evidence is not fabricated or
suppressed.
In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of
facts or confession of judgment.
Family Code, Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a
confession of judgment.
In any case, the court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent
collusion between the parties and to take care that the evidence is not fabricated or suppressed.
Rule 10
AMENDED AND SUPPLEMENTAL PLEADINGS
Part I. AMENDMENTS
Sec. 1. Amendments in general. - Pleadings may be amended by adding or striking out an allegation or
the name of any party, or by correcting a mistake in the name of a party or a mistaken or inadequate
allegation or description in any other respect, so that the actual merits of the controversy may
speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive
manner. (1)
What do you understand by amendment? The general meaning of amendment is change. Now can we
amend pleadings, change it? Yes.
Q: How do you amend a pleading?
A: Well, any type of change you can add a word or a sentence or you strike out an allegation or you add
or strike out a party; you correct a mistake in the name of a party or inadequate allegation or description
in any other respect. As a matter of fact, if you correct only one letter, that is already an amendment.
So you can amend by removing something, adding something, or changing something by substituting
another word. You can amend by removing an entire paragraph, an entire sentence, a phrase, or a word.
So that is what amendment is all about. As a matter of fact, before reaching Rule 10, there are provisions
where amendments have already been touched upon, one of which is Rule 1, Section 5:
Sec. 5. Commencement of action.- A civil action is commenced by the filing of the original complaint in
court. If an additional defendant is impleaded in a later pleading, the action is commenced with regard
to him on the date of the filing of such later pleading, irrespective of whether the motion for its
admission, if necessary, is denied by the court.
So in other words, if I file a complaint against A, then later on I will include another defendant, the
inclusion of an additional defendant party is an amendment.
Q: Suppose I will file a case against Jacques today, January 9, then one month from today I will file
another complaint to include an additional defendant, Tikla. When is the case deemed commenced?
A: According to Rule 1, Section 5, as far as Jacques is concerned, the original defendant, the case against
him is commenced today. But as far as Tikla is concerned, the additional defendant, the case is
commenced not upon the filing of the original complaint, but on the date when he is included in the
amended complaint. So, the amendment does not retroact to the date of the filing of the original action.
Q: What is the policy of the law on amendments? Should it be encouraged or discouraged? If a party
wants to amend his complaint or answer, should the court be liberal in allowing the amendment or
should it restrict, as a general rule, and not allow the amendment?
A: Section 1 says that the purpose of amendment is that the actual merits of the controversy may
speedily be determined without regard to technicalities, and in the most expeditious and inexpensive
manner. According to the SC, amendments to pleadings are favored and should be liberally allowed in
order (a) to determine every case as far as possible on its actual merits without regard to technicalities,
(b) to speed up the trial of cases, and (c) to prevent unnecessary expenses. (Verzosa vs. Verzosa, L-
25603, Nov. 27, 1968; Cese vs. GSIS, L-135814, Aug. 31, 1960)
EXAMPLE: The plaintiff files his complaint or the defendant files his answer and then later on he realizes
that his cause of action is wrong or that his defense is wrong. He would like to change his complaint or
change his answer. All he has to do is amend his complaint or answer. The court cannot stop him from
changing his complaint or changing his answer because the purpose of litigation is: the real nature of
controversy will be litigated in court. You cannot normally stop the party from ventilating his real cause
of action or his real defense so that the rule is that amendments should be liberally allowed in the
furtherance of justice and that the real merits of the case will come out in court. That is what you have to
remember about concept of amendments and the policy of the rules on amendments.
TYPES OF AMENDMENTS:
The following are the important points to remember here:
FIRST, there are two types of amendment of pleadings under the rules: 1.) An amendment as a matter of
right; or 2.) An amendment as a matter of judicial discretion
SECOND, an amendment could be 1.) a formal amendment; or 2.) a substantial amendment
These are the same classification under the Rules on Criminal Procedure under Rule 110.
Amendment as a MATTER OF RIGHT; and Amendment as a MATTER OF JUDICIAL DISCRETION
AMENDMENT AS A MATTER OF RIGHT simply means that the party has the unconditional action or right
to amend his pleading. The court has no right to prevent him from amending. The opposite party has no
right to oppose the amendment.
AMENDMENT AS A MATTER OF JUDICIAL DISCRETION simply means that the court may or may not allow
the amendment. So the other party has the right to oppose.
AMENDMENT AS A MATTER OF RIGHT
Q: When is amendment a matter of right? A: Section 2:
Sec. 2. Amendments as a matter of right. - A party may amend his pleading once as a matter of right at
any time before a responsive pleading is served or, in the case of a reply, at any time within ten (10)
days after it is served. (2a)
PROBLEM: I am the plaintiff, I file a complaint. I want to amend my complaint. When is the amendment a
matter of right?
A: At any time a responsive pleading is served to the complaint. Meaning, at any time before the
defendant has filed his answer, the plaintiff may change his complaint at any time. He may change it in
any manner, substantially or formally.
Q: How about the defendant? Suppose he wants to change his answer, when is his right absolute or as a
matter of fact right?
A: At any time before a reply by the plaintiff is filed or before the expiration of the period to file a reply
because a reply may or may be not be filed.
Q: How about if you want to amend your reply? You cannot say before a responsive pleading is served
because there is no more responsive pleading to the reply.
A: So under Section 2, the plaintiff can amend his reply at any time within ten (10) days after it is served.
Q: Is there any other instance when amendment is a matter of right even if there is already an answer or
even in the middle of the trial the party can still change his pleading and it seems that the court should
allow it?
A: Yes, there is a second instance, when the amendment is FORMAL IN NATURE as found in Section 4:
Sec. 4. Formal amendments. - A defect in the designation of the parties and other clearly clerical or
typographical errors may be summarily corrected by the court at any stage of the action, at its
initiative or on motion, provided no prejudice is caused thereby to the adverse party. (4a)
When the amendment is fairly formal, it can be done anytime. As a matter of fact it can be summarily
corrected by the court at any stage of the action, upon motion or even without motion, the court will
order the amendment. Because anyway that is a harmless correction.
NOTE: Change of amount of damages is only formal because there is no change in the cause of action.
SUMMARY: Amendment as a matter of right:
1.) Before an answer is filed (Complaint);
2.) Before a reply is filed or before the period for filing a reply expires (Answer); 3.) Any time within 10
days after it is served (Reply); and
4.) Formal amendment
AMENDMENT AS A MATTER OF JUDICIAL DISCRETION
So we will now go to substantial amendments which are a matter of judicial discretion, that is Section 3:
Sec. 3. Amendments by leave of court. - Except as provided in the next preceding section, substantial
amendments may be made only upon leave of court. But such leave may be refused if it appears to the
court that the motion was made with intent to delay. Orders of the court upon the matters provided in
this section shall be made upon motion filed in court, and after notice to the adverse party, and an
opportunity to be heard. (3a)
Q: When is an amendment a matter of judicial discretion?
A: The amendment must be substantial and the adverse party has already filed and served a copy of his
responsive pleading.
PROBLEM: I will file my complaint against you and you will file your answer. After you have filed your
answer, I want to amend my complaint and my amendments is not merely formal but something
substantial, like my cause of action will not be the same anymore.
Q: Can it still be done?
A: YES, BUT this time it is a matter of judicial discretion. It must be with leave of court. So I will have to
file a motion in court to allow or admit the proposed amended complaint. I will furnish a copy of the
motion to my opponent together with a copy of the amended complaint and the other party has the
right to oppose the amendment. So the court will hear and decide whether to allow the amendment or
not.
Q: Assuming that the amendment is a matter of judicial discretion, how should the court resolve it?
Assuming that the argument is 50-50 and the court is deliberating whether or not to allow the
amendment.
A: Based on established jurisprudence, the court should always allow the amendment because of the
liberal policy of the rules. Amendments of pleadings should be liberally allowed in order that the real
merits of the case can be ventilated in court without regard to technicalities. So the court will always
lean on allowing a pleading to be amended. That is the liberal policy.
LIMITATIONS TO THE LIBERAL POLICY IN AMENDMENTS TO PLEADINGS
Q: What are the limitations to this liberal policy in allowing amendments? Meaning, when can the court
refuse to allow the amendment and when can you validly oppose it?
A: The following:
1.) when the amendment is to delay the action (Section 3);
2.) when the amendment is for the purpose of making the complaint confer jurisdiction upon the court
(Rosario vs. Carangdang, 96 Phil. 845);
3.) when the amendment is for the purpose of curing a premature or non-existing cause of
action (Limpangco vs. Mercado, 10 Phil. 508; Wong vs. Yatco, 99 Phil. 791)
1.) WHEN THE AMENDMENT IS TO DELAY THE ACTION
The second sentence of Section 3 says that such leave may be refused if it appears that the motion was
made with intent to delay. Meaning, the motion to amend is dilatory. Example: a case is filed against the
defendant based on a cause of action then trialtrialthen the case is already about to end. Then the
plaintiff says he wants to amend his complaint and change his cause of action. I dont think the court will
allow it. Thats too much.
Or, the defendant will say that he would like to change his defense. I dont think the court will agree with
that situation because it appears that the motion to amend is already dilatory. Why did it take you one
year to realize that your cause of action or your defense is wrong? So that is a limitation where the court
may refuse to apply the principles on liberality. The liberal policy becomes weaker or is working against
you the longer you delay your amendment because it might already be interpreted to be dilatory.
Now if you will notice, there is another limitation found in the old rules that is gone here, and that is :
That the amendment will not be allowed if it will SUBSTANTIALLY alter the cause of action or defense
(Torres vs. Tomacruz, 49 Phil. 913) The implication here is that, since amendment is favored, even if you
alter you cause of action or defense, you should not prevent the other party provided that it is not
dilatory. And the definition of this limitation is a confirmation of what the SC said in some cases like the
case of
MARINI-GONZALES vs. LOOD
148 SCRA 452
HELD: While the Rules of Court authorize the courts to disallow amendment of pleadings when it
appears that the same is made to delay an action or that the cause of action or defense is substantially
altered thereby, the rule is not absolute. It is discretionary. Courts are not precluded from allowing
amendments of pleadings even if the same will substantially change the cause of action or defense
provided that such amendments do not result in a substantial injury to the adverse party. This is due to
the permissive character of said rule [which provides: may refuse]. In fact, this Court has ruled that
amendments to
pleadings are favored and should be liberally allowed in the furtherance of justice.
That is why these are enough reason to delete that limitation. But if you are going to change your cause
of action or defense when the trial is almost over, hindi na puwede because that will be dilatory. But if
you want to change it before the trial, that it still allowed, even if it is substantial in nature. Thats why
this limitation disappeared. But despite the fact that there is only one limitation now left, it is conceded
that there are still limitations not found in the law which have remained intact.
2.) WHEN THE AMENDMENT IS FOR THE PURPOSE OF MAKING THE COMPLAINT CONFER JURISDICTION
UPON THE COURT
In other words, based on the original complaint the court has no jurisdiction over the subject matter. So I
will amend the complaint so that the court will have jurisdiction. Well, that will not be allowed. So,
jurisdiction by the court cannot be conferred by amendment when the original complaint shows that the
court has no jurisdiction.
For EXAMPLE: I will file a complaint for an unpaid loan and the amount is exactly P200,000 only. Where
should I file the complaint? MTC. But by mistake I file it in the RTC and later I realized that the case
should have been filed in the MTC because the jurisdiction of the RTC should be above P200,000. So I will
amend my complaint and change the complaint and say that my claim is P100,001.00. The obvious
purpose of the amendment is to make the case fall within the jurisdiction of the RTC. According to the
SC, it cannot be done.
The rule here is when in its face, the complaint shows that the court has no jurisdiction over the subject
matter, the court has no authority to act in the case. And if you move to amend it and ask the court to
allow the amendment, you are assuming that the court has the authority to act on the case. But the
court cant allow it because the court has no authority to act. So the court even is not authorized to allow
the amendment because it has no authority to act in the first place. How can you allow something when
you do not have the authority to act? My golly!
So according to the SC, when its on very face the complaint shows that the court has no jurisdiction, the
court has only one authority and its only authority is to dismiss the case. So with that an amendment
cannot confer jurisdiction.
3.) WHEN THE AMENDMENT IS FOR THE PURPOSE OF CURING A PREMATURE OR NON-
EXISTING CAUSE OF ACTION
Meaning, on its very face, there is no cause of action, there is no case. There is no delict or there is no
wrong. Now how can you create a delict or wrong by amending your complaint? In effect, you are
creating something out of nothing.
BAR QUESTION: How do you distinguish a NON-EXISTENT cause of action from IMPERFECT cause of
action?
A: The following are the distinctions:
1.) In a NON-EXISTENT cause of action, there is yet no delict or wrong committed by the defendant
(Limpangco vs. Mercado, 10 Phil. 508) whereas
In an IMPERFECT cause of action, a delict or wrong has already been committed and alleged in the
complaint, but he cause of action is incomplete (Alto Surety vs. Aguilar, L- 5625, March 16, 1945); and
2.) a NON-EXISTENT cause of action is not curable by amendment (Limpangco vs. Mercado, 10 Phil. 508;
Surigao Mine vs. Harris, 68 Phil. 113) whereas
an IMPERFECT cause of action is curable by amendment (Alto Surety vs. Aguilar, L-5625, March 16, 1945;
Ramos vs. Gibbon, 67 Phil. 371).
BAR QUESTION: Suppose the filing of the complaint will lapse on January 20 and I will file the complaint
today so the running of the period will be interrupted. Suppose I will amend my complaint next month,
on February. Question: Is prescription properly interrupted? When an original complaint is amended
later, when is the prescriptive period for filing the action interrupted? Upon the filing of the original
complaint or upon the filing of the amended complaint?
A: It DEPENDS upon the nature of the amendment:
a.) If the amendment introduces a new and different cause of action, then the prescriptive period is
deemed interrupted upon the filing of the amended complaint; (Ruymann vs. Dir. of Lands, 34 Phil. 428)
b.) But where the amendment has not altered or changed the original cause of action, no different cause
of action is introduced in the amended complaint, then the interruption of the prescriptive period
retroacts on the date of the filing of the original complaint. (Pangasinan Trans. CO. vs. Phil. Farming Co.,
81 Phil. 273; Maniago vs. Mallari, 52 O.G. 180, October 31, 1956)
EXAMPLE: I will file today a case for damages arising for quasi-delict. And then one or two months from
now I will amend my complaint from damages arising from culpa aquiliana to damages arising from culpa
contractual. Is that a different cause of action? Yes, so the prescriptive period for culpa contractual is
deemed filed next month, not this month, because that is a different cause of action.
EXAMPLE: But suppose I file a case against you for culpa aquiliana, and my claim is one million. Next
month I amend my complaint for damages from one million pesos to two million pesos. Did I change my
cause of action? No, it is still the same cause of actionculpa aquiliana. Therefore, the prescriptive
period is deemed interrupted as of the date of the filing of the original complaint.
AMENDMENTS TO PLEADINGS IN CRIMINAL CASES
Now, the classifications of amendments under the rule on criminal procedure are the same because
there is such a thing as amendments on the criminal complaints or informations as a matter of right on
the part of the prosecution and amendments as a matter of judicial discretion. And under the rules of
criminal procedure, an amendment can either be formal or substantially received. There is some
difference in the rules.
How do you differentiate the amendment of a pleading, under the rules on civil procedure and the
amendment of a criminal complaint or information in criminal cases? Take note that there is no Answer
in criminal cases. The accused is not obliged to file answer but the counterpart of answer in criminal
cases is the plea, where he pleads either guilty or not guilty.
Under the rules on criminal procedure, at anytime before the arraignment or before he enters plea, the
amendment of information is a matter of right, either in form or in substance. EXAMPLE: The
prosecution files an information against you for homicide and then the prosecution wants to agree to
murder. Can it be done? YES, for as long as the accused has not yet entered his plea.
So it is almost the same as in civil cases. For as long as there is no responsive, pleading the amendment is
a matter of right whether in substance or in form.
Q: Now in criminal cases, AFTER the accused had already entered his plea to the original charged, is
amendment still allowed? Can the prosecution still amend?
A: YES. But what is allowed is only formal amendment. Substantial amendment is 100% prohibited in
criminal cases. But in civil cases, puwede.
OBJECTIONS AND DEFENSES NOT RAISED ARE DEEMED WAIVED; EXCEPTION
Sec. 5. Amendment to conform to or authorize presentation of evidence. - When issues not raised by
the pleadings are tried with the express or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be
necessary to cause them to conform to the evidence and to raise these issues may be made upon
motion of any party at any time, even after judgment; but failure to amend does not affect the result
of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the
issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with
liberality if the presentation of the merits of the action and the ends of substantial justice will be
subserved thereby. The court may grant a continuance to enable the amendment to be made. (5a)
Q: May issues not raised in the pleadings be tried in court during the trial?
A: As a GENERAL RULE, a defendant during the trial is not allowed to prove a defense that is not raised in
the pleadings based on Rule 9, Section 1. The court has no jurisdiction over the issue. Thats why there is
no such thing as surprise defense because a defense that is not raised is deemed waived.
Q: Is there an EXCEPTION to Rule 9, Section 1? Can the rule be relaxed?
A: YES. Section 5 is a relaxation of the rule specifically the first sentence: when issues not raised in the
pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects
as if they had been raised in the pleadings.
EXAMPLE: In a collection case, the defendant in his answer raised a defense that the money obtained
from the defendants was not a loan but a donation. During the trial, he attempted to prove that it was a
loan but it was already fully paid. So he is now proving the defense of payment. He is practically changing
his defense. If you follow Rule 9, Section 1, that is not allowed.
But suppose the parties during the trial, the plaintiff agrees that the defendant will prove that the
obligation is paid, then it can be done because issues now raised in the pleadings are tried with the
express consent of the parties. They shall be treated in all respects as if they had been raised in the
pleadings.
In the case of implied consent, the best example is when the defendant attempts to prove payment and
the plaintiff FAILED TO OBJECT. So there is now an implied consent by the parties. Therefore, the case
can now be tried in the issue as if they had been raised in the pleadings. That is what we call the principle
of estoppel. The parties are in estoppel because they expressly or impliedly agreed to try an issue which
is not raised in the pleadings. The court will now render judgment and discuss the evidence and discuss
whether the obligation has been paid or not.
So if it happens, the decision will not jibe with the pleadings. If you read the complaint and the answer,
there is no mention of payment but in the decision resolved the case on that issue. The pleadings are not
in harmony with the decision.
Q: So how will you harmonize the two pleadings and the decision?
A: The remedy according to Section 5 is to amend the pleadings. We can amend the pleadings to make
them conform with the evidence. That is why the law says: such amendment of the pleadings as may be
necessary to cause them to conform to the evidence and to raise these issues may be made upon motion
of any party at any time, even after judgment.
So even after the judgment, you can amend the pleading in order to harmonize with the evidence.
Normally, the evidence should conform to the pleading under Rule 9. In this case, baliktad! it is the
pleading which is being amended to conform to the evidence. It is the exact opposite.
Normally that is for the benefit of the appellate court in case the decision will be the case will be
appealed. The CA will read the complaint and the answer, wala mang payment dito! But when you
read the decision, the main issue was payment not found in the complaint and the answer. So there
might be confusion. So amendment is necessary at anytime, even after judgment.
Q: But suppose the parties never bothered to amend the pleadings, is there a valid judgment?
A: YES because the law says, but failure to amend does not affect the result of the trial of these issues.
So, there is a valid trial and the court acquires jurisdiction over the issues because of their implied or
express consent. The best example is FAILURE TO OBJECT.
if the evidence is objected to at the trial on the ground that it was not within the issues made by the
pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the
presentation of the merits of the action and the ends of substantial justice will be subserved thereby.
EXAMPLE: The defendant during the trial attempted to prove the obligation that it is paid. The lawyer of
the plaintiff is alert and objected thereby, You cannot prove that defense because you never raise a
defense of payment in your answer. Is the objection correct? YES because of Rule 9, Section 1. The court
affirmed the plaintiff that one cannot prove the defense of payment because you never raised it in your
answer. There is no express or implied consent.
Q: But the defendant said, If that is so your honor, may we be allowed to amend our answer so that we
will now raise the defense of payment and prove it in court? Can the court allow the defendant to
amend his answer in the middle of the trial just to prove a defense that is not raised?
A: The rule says YES, the court may allow the pleadings to be amended and shall do so with liberality if
the presentation of the merits of the action and the ends of substantial justice will be subserved thereby.
That is why you can say that the power of the court in enforcing the Rules of Court is very wide. For
example, I am the judge and the defendant never raised the issue of payment in his answer and he is
now rising such defense. The plaintiffs lawyer will now object and alleged that he cannot prove such
defense for he never raised it in his answer. The judge sustained the objection, You cannot prove a
defense that is never raised in your answer. Q: Is my ruling correct? A: YES because of Rule 9, Section 1
objections and defenses not raised in the answer are deemed waived.
The defendant will now move to be allowed to amend the pleading so that I raised that defense. The
plaintiff will object to the amendment. The judge will ask the plaintiff, is the obligation paid? NO. The
defendant never paid it, answered the plaintiff. So if the defense is false, why are you afraid? Anyway,
he cannot prove it. So I will allow the amendment.
However, if the plaintiff will answer that the defendant has already paid the obligation but that he never
raised such matter in his answer. The plaintiff now will be in bad faith. So I will allow the amendment.
So in other words, in any way my ruling is correct because I know how to apply the rule. So the court will
allow the amendment and shall do so with liberality so LIBERALITY should be the rule on amendment.
Section 5 is a rule more on equity. While, Rule 9, Section 1 is a rule of law. Section 5 is a relaxation of that
law on technicality.
The last sentence, the court may grant a continuance to enable the amendment to be made.
Continuance means postponement. It means, postponement of the case to allow the defendant to
amend his answer first.
Part II. SUPPLEMENTAL PLEADINGS
Sec. 6. Supplemental pleadings. - Upon motion of a party the court may, upon reasonable notice and
upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions,
occurrences or events which have happened since the date of the pleading sought to be
supplemented. The adverse party may plead thereto within ten (10) days from notice of the order
admitting the supplemental pleading. (6a)
The second part of Rule 10 is the supplemental pleading, for the first part is the amended pleadings. Q:
How do you distinguish an AMENDED pleading from a SUPPLEMENTAL pleading?
A: Of course, the similarity between the two is the existence of ORIGINAL PLEADING. The
following are the distinctions:
FIRST DISTINCTION: As to the allegations
An AMENDED pleading contains transactions, occurrences or events which already happened at the time
the original pleading was filed and could have been raised at the original pleading, but which the pleader
failed to raise in the original pleading because, oversight or inadvertence or inexcusable negligence. If he
wants to raise it, he must amend the pleading. Whereas,
A SUPPLEMENTAL pleading contains transactions, occurrences or events which were not in existence at
the time the original pleading was filed but which only happened after the filing of the original pleading
and therefore, could not have been raised in the original pleading.
That is the distinction emphasized in the New Rule Rule 11, Sections 9 and 10:
Rule 11, Section 9. Counterclaim or cross-claim arising after answer. A counterclaim or cross-claim
which either matured or was acquired by a party after serving his pleading may, with the permission of
the court, be presented as a counterclaim or cross-claim by supplemental pleading before Judgment.
Rule 11, Section 10. Omitted counterclaim or cross-claim. When a pleader fails to set up a
counterclaim or a cross-claim through oversight, inadvertence, or excusable neglect, or when justice
requires, he may, by leave of court, set up the counterclaim or cross-claim by amendment before
judgment.
These provisions emphasize the difference between an amended pleading and a supplemental pleading
how do you raise a counterclaim or cross-claim which was not raised earlier? Is it by amending the
pleading or by filing d supplemental pleading ? And that applies also to an answer where the defense or
the transaction or the cause of action supervened later.
SECOND DISTINCTION: As to effect
In an AMENDED pleading, the amended pleading supersedes the original pleading. The
original pleading is deemed erased. The amended substitutes the original. So from the viewpoint of the
law, the original pleading no longer exists. Whereas,
When a SUPPLEMENTAL pleading is filed, it does not supersede the original pleading. In effect, there are
now two (2) pleadings which stand side by side in the case the original and the supplemental pleadings.
EXAMPLE: Mortz borrowed from Nanding P200,000 payable in 2 yearly installments. Mortz failed to pay
the first installment. Nanding filed a case. While the case is pending, the other installment became due.
Nanding will now file a supplemental pleading and as a result, there will be two (2) complaints for
P100,000 each.
Rule in EVIDENCE: In an amended pleading, all your admissions and evidence no longer exist because
remember under the rules on Evidence, any admission that you make in your pleading binds you under
the doctrine of judicial admission where the evidence need not be given - as if it is taken judicial notice
of. The rule is, if a pleading is amended and the amended pleading does not contain the admissions
contained in the original pleading, the judicial admission is now converted into an extra-judicial
admission and therefore the court will no longer take judicial notice of that.
But if I want to bring it to the attention of the court an admission which is not found there (in the
amended pleading), I have to formally offer in evidence the original pleading. Normally, you do not offer
in evidence a pleading because the court takes judicial notice of everything stated in there. But if the
original pleading is now superseded, the original must be offered in evidence to prove an admission
found in the original but not anymore in the amended one. That principle in now found in Section 8:
Section 8. Effect of amended pleadings. - An amended pleading supersedes the pleading that it amends.
However, admissions in superseded pleadings may be received in evidence against the pleader; and
claims and defenses alleged therein not incorporated in the amended pleading shall be deemed waived.
That is related to the rule in evidence that what need not be proved: judicial notice, judicial admissions.
THIRD DISTINCTION: The filing of an AMENDED pleading could be a matter of right or of judicial
discretion under Sections 2 and 3; whereas
The filing of a SUPPLEMENTAL pleading is always a matter of judicial discretion under Section 6.
There is always leave of court.
Now, let us cite cases which are relevant to our topic on supplemental pleadings.
LEOBRERA vs. COURT OF APPEALS
170 SCRA 711
FACTS: Karen went to the bank and obtained a loan housing loan. A promissory note was issued
payable next year. After few months, Karen went back to the bank and secured a second loan
agricultural loan with another promissory note.
When the first note became due, Karen failed to pay. So the bank sued Karen on the first promissory
note. When the case was still going on, the second loan became due. So the bank sought to file a
supplemental complaint against Karen to collect the second loan. The maturity of the second loan
happened after the filing of the first pleading sought to be supplemented.
ISSUE: Is there a proper supplemental complaint?
HELD: NO. It is improper. Although the plaintiff and the defendant are the same, there are two separate
loans independent of each other as a matter of fact the stipulations are not identical. It cannot be the
subject matter of a supplemental complaint. In this case, there are many types of loans secured in
different terms and conditions.
A supplemental complaint must based on matters arising subsequent to the original complaint RELATED
to the claim presented therein and founded on the same cause of action. It cannot be used to try of
another matter or a new cause of action.
A good EXAMPLE for a supplemental complaint is when I borrow money from you for P600,000 payable
in three installments. First installment is on February for P200,000; second installment is on April; and
the last installment is on June for the last P200,000. There is no acceleration clause. When the first
installment fell due, I did not pay. So the plaintiff filed a case against me to collect the first installment. In
April, the case is still not yet decided. In fact the second installment again fell due. Plaintiff moved to file
for the supplemental pleading. While the two cases are still pending, the last installment fell due and
again there is failure to pay, so there is another supplemental complaint.
Q: Is that proper?
A: YES because these are not two separate loans but one loan and the installments are interrelated.
SUPERCLEAN SERVICES INC. vs. COURT OF APPEALS
258 SCRA 165 [1996]
FACTS: Superclean Service Corp. is a company engaged in janitorial services. A government corporation,
the Home Development and Mutual Fund (HDMF) sought a public bidding on who will be the company
who shall provide janitorial services to the offices of the HDMF for the year 1990.
Superclean won as it was the lowest bidder. It was suppose to start providing the service for the year
1990. However, the HDMF refused to honor the award. So, on November 8, 1989, Superclean filed in the
RTC of Manila a complaint for mandamus and certiorari against HDMF alleging that at public bidding for
janitorial services for the year 1990, it won as the lowest bidder but HDMF refused without just cause, to
award the contract to 'hem,
The problem was that 1990 already ended and the case was still on-going. So it was already rendered
moot and academic. What Superclean did was to file a supplemental complaint in 1991 alleging that
because the contract of service was the furnishing of janitorial services for the year 1990, the delay in the
decision of the case has rendered the case moot and academic without Superclean obtaining complete
relief to redress the wrong committed against it by HDMF which relied now consists of unrealized profits,
exemplary damages and attorneys fees.
So, money claim na lang dahil moot and academic na eh. Instead of pursuing its prayer for mandamus,
Superclean sought the payment of damages to it.
ISSUE: Is the filing of supplemental complaint proper in order to seek a different relief in view of
developments rendering the original complaint impossible of attainment?
HELD: The transaction, occurrence or event happening since the filing of the pleading, which is sought
to be supplemented, must be pleaded in aid of a party's right of defense as the case may be. [Thats the
purpose of the supplemental pleading in aid of the partys cause of action or defense] But in the case at
bar, the supervening event is not invoked for that purpose but to justify the new relief sought.
To begin with, what was alleged as a supervening event causing damage to Superclean was the fact that
the year for which the contract should have been made had passed without the resolution of the case.
The supervening event was cited not to reinforce or aid the original demand, which was for the
execution of a contract in petitioner's favor, but to say that, precisely because of it, petitioner's demand
could no longer be enforced, thus justifying petitioner in changing the relief sought to one for recovery
of damages. This being the case, petitioner's remedy was not to supplement, but rather to amend its
complaint. You are actually changing the relief so that the correct remedy is not a supplemental
complaint but an amended complaint.
Be that as it may, the so-called Supplemental Complaint filed by petitioner should simply be treated as
embodying amendments to the original complaint or petitioner may be required to file an amended
complaint. So, meaning, you call it a supplemental complaint, the court will call it as an amended
complaint or the other alternative, require him to file an amended complaint.
Sec. 7. Filing of amended pleadings. - When any pleading is amended, a new copy of the entire
pleading, incorporating the amendments, which shall be indicated by appropriate marks, shall be filed.
(7a)
When a party files an amended pleading, the amendments should be indicated by appropriated marks,
normally, the amended portion is underlined.
EXAMPLE: A party would to insert an entirely new paragraph. That paragraph would be underlined. The
purpose for such marking is for the court and the opposing party to immediately see and detect the
amendment. If no appropriated mark is provided the court and the lawyer has to compare everything,
paragraph by paragraph, sentence by sentence, line by line. Now, if there are underlines, the court will
just concentrate on the underlined portion. This is for convenience for the parties and the court.
Section 8. Effect of amended pleadings. - An amended pleading supersedes the pleading that it
amends. However, admissions in superseded pleadings may be received in evidence against the
pleader; and claims and defenses alleged therein not incorporated in the amended pleading shall be
deemed waived.
(Section 8: See discussion on Section 6 on distinctions between an amended and supplemental pleading;
second distinction)
The first sentence is one of the distinctions between an amended pleading and a supplement pleading.
From procedural viewpoint, the original pleading is already non-existent. The court will no longer
consider anything stated there.
EXAMPLE: You say something favorable to me. However, in his amended pleading, he removes such
statement, so that the court will not consider it anymore. Such statement is out of the picture. Now, if
you want to bring to the attention of the court the statement found in the original pleading, you must
offer the original pleading in evidence to consider it all over again. This rule will be considered in the
study of EVIDENCE.
Rule 11
WHEN TO FILE RESPONSIVE PLEADINGS
What are discussed in this rule are periods. The question when a defendant wants to file an answer is,
How many days does he have? There must be a deadline. Rule 11 applies to all persons natural and
juridical such as a corporation.
SECTION 1. Answer to the complaint. The defendant shall file his answer to the complaint within
fifteen (l5) days after service of summons, unless a different period is fixed by the court. (1a)
Section 1 is the GENERAL RULE the defendant has a period of 15 days after service of summons within
which to file his answer. The procedure is when a plaintiff files a complaint in court, the court will issue
summons (which is the counterpart of warrant of arrest in criminal cases). The sheriff of the court will
look for the defendant and serve him a copy of the complaint. From that day on, the defendant has 15
days to file his answer.
The rules says, unless a different period is fixed by the court. That would be the EXCEPTION to the 15-
day period to file answer. Now, when are these instances when the court may fix a different period?
They are those mentioned in Rule 14, Sections 14, 15, and 16 yung tinatawag service of summons by
publication.
Lets give example to the general rule. EXAMPLE: If the defendant is served with a copy of the complaint
and summons today (January 13,1998), the last day to file an answer will be January 28, 1998. Just add
15 days to January 13.
In computing the a period, you follow the rule known as exclude the first, include the last day rule
under Article 13 of the New Civil Code. I think you know how to apply that. When you receive the
complaint today or when you are summoned today, you start counting the period tomorrow. Such rule is
also found in Section 1 of Rule 22 on Computation of Time:
Rule 22, Sec. 1. How to compute time. - In computing any period of time prescribed or allowed by
these Rules, or by order of the court, or by any applicable statute, the day of the act or event from
which the designated period of time begins to run is to be excluded and the date of performance
included. If the last day of the period, as thus computed, falls on a Saturday, a Sunday, or a legal
holiday in the place where the court sits, the time shall not run until the next working day. (n)
(The following discussions on Rule 22 are taken from the Remedial Law Review Transcription [1997-
1998]:)
So you see, ito (Section 1, Rule 22) yung the act itself from which the designated period of time where
the case will run is to be excluded. Meaning, when you receive the summons, you count one but today is
excluded and of course the last day is included. And if the last day is the next working day. A: It is done
on the next business day. Here, there is an automatic extension.
Sec. 2. Effect of interruption. Should an act be done which effectively interrupts the running of the
period, the allowable period after such interruption shall start to run on the day after notice of the
cessation of the cause thereof.
The day of the act that caused the interruption shall be excluded in the computation of the period. (n)
Alright, a good example of this is period to file an answer which is 15 days. And then you filed a motion
to dismiss under Rule 16 somewhere in between. Now, what is the principle to be remembered here?
The filing of the motion to dismiss will now be interrupt the running of the 15-day period. And when your
motion is denied, if you receive the order of the denial now, you continue computing the balance within
the remaining period to file your answer.
Now, some people cant understand this second sentence The day of the act that caused the
interruption shall be excluded in the computation of the period. Many are wondering kung ano ba ang
ibig sabihin nito! The meaning of this is exemplified in the case of LABITAD vs. CA (July 17, 1995). For
EXAMPLE:
We will assume that on November 30 (end of the month), you were served with summons by the court.
So you have 15 days to file your answer from November 30. Let us say, on December 10, you filed a
motion to dismiss under Rule 16. So, the remaining of the period to file an answer is interrupted. And let
us say on December 15 or 5 days thereafter, your motion was denied, you receive a copy of the order of
denial.
My QUESTION is, how many days more do you have or left to file your answer? Five days?
How many days did you consume? From November 30 to December 10 = 10 days. Tapos, December 10
to December 15 = not counted. And you still have 5 days, so December 20, di ba?
Now if you ask majority of lawyers here, they will give the same answer. BUT according to
LABITAD, that computation is wrong. You actually have six (6) days.
So your deadline to file you notice to appeal is December 21. Why? Akala ko ba the filing of the motion
to dismiss interrupts? Now, when did you file your motion? December 10. Therefore, December 10 is not
counted because it is already interrupted.
So actually, you did not consume 10 days but only 9 days. That is the explanation of the SC in the case of
LABITAD the day you filed your motion to dismiss is already excluded. So you only count December 1 to
9. This is the illustration of the sentence the day the act which caused the interruption is excluded in the
computation of t tie period.
ILLUSTRATION:
Alright, lets go back to Rule 11:
Sec. 2. Answer of a defendant foreign private juridical entity. Where the defendant is a foreign private
juridical entity and service of summons is made on the government official designated by law to
receive the same, the answer shall be filed within thirty (30) days after receipt of summons by such
entity. (2a)
The defendant here is a foreign private juridical entity. Meaning, a foreign corporation doing business in
the Philippines. In the first place, one cannot sue a foreign private corporation which is not doing
business in the Philippines because there is no way that the court can acquire jurisdiction over the
person of such corporation. If the foreign private corporation is doing business in the Philippines, then
one can sue it here in the Philippines. EXAMPLES: Sun Life of Canada; China Airlines (CAL), Cathay Pacific,
etc.
Q: Now, what is the period to answer when the defendant is a foreign private corporation doing business
in the Philippines?
A: It DEPENDS:
a.) When the foreign corporation has a designated resident agent, the summons shall be served to the
resident agent, and he has 15 days to answer, just like any defendants in Section 1.
b.) On the other hand, if the foreign corporation does not have any designated resident agent in the
Philippines, then under the Corporation Code, the summons shall be served to the government official
designated by law to receive the same, who is duty bound to transmit it to the head office of the
corporation abroad. And the corporation now has 30 days from receipt of summons to file its answer.
So it is either 15 or 30 days.
Q: Now, who is this proper government official designated by law to receive summons?
A: Generally, it is the Secretary of the Department of Trade and Industry. But for some types of business,
the law may designate any other official. Like the foreign corporation to be sued is a foreign insurance
company (e.g. Sun Life of Canada), under Insurance Code, you serve it to the Insurance Commissioner. Or
if it is a foreign bank which has branch here, you serve the summons to the Superintendent of the
Bangko Sentral ng Pilipinas.
Sec. 3. Answer to amended complaint. Where the plaintiff files an amended complaint as a matter of
right, the defendant shall answer the same within fifteen (l5) days after being served with a copy
thereof.
Where its filing is not a matter of right, the defendant shall answer the amended complaint within ten
(10) days from notice of the order admitting the same. An answer earlier filed may serve as the answer
to the amended complaint if no new answer is filed.
This Rule shall apply to the answer to an amended counterclaim, amended cross-claim, amended third
(fourth, etc.) party complaint, and amended complaint-in-intervention. (3a)
Now, what is the period to file an answer to an amended complaint? Under Section 3, there are two (2)
periods first paragraph, 15 days; second paragraph, 10 days. Now what is the difference?
Suppose the complaint is amended as a matter of right because defendant has not yet filed an answer.
Meaning, the complaint is served on you and even before you answer it was amended and another
complaint is served, then you have 15 days to file your answer counted from the day of service of the
amended complaint. So forget the original period and you have 15 days all over again.
But suppose the defendant has already answered the original complaint and then the plaintiff decides to
amend his complaint which under the previous rule, is a matter of judicial discretion. Now, suppose the
court issued an order admitting the amended complaint and the defendant is furnished of the copy of
the order admitting the amended complaint. Therefore, if he wants to answer the amended complaint,
he has 10 days to do it and not 15 days. The 10-day period will be counted from service of the order
admitting the amended complaint, not from the service of the amended complaint because the same
may not be admitted. You wait for the order of the court admitting the amended complaint.
So, there are two (2) periods to file an answer to an amended complaint.
Q: Suppose I will not file an answer to the amended complaint. I filed an answer to the original complaint
but I did not file an answer to the amended complaint, can I be declared in default?
A: NO, because Section 3 provides that the answer earlier filed may serve as an answer to the amended
complaint if no answer is filed. Like when the amendment is only formal, why will I answer? In other
words, my defenses to the original complaint is still applicable.
So the principle is: if no answer is filed to the amended complaint, the answer to the original complaint
automatically serves as the answer to the amended complaint and therefore the defendant cannot be
declared in default.
Alright, the third paragraph of Section 3 is new. So, kasama na iyung amended counterclaims, amended
cross-claims.
Sec. 4. Answer to counterclaim or cross-claim. A counterclaim or cross-claim must be answered within
ten (l0) days from service. (4)
Now, if you answer a counterclaim or cross-claim, you have Section 4. The period to file an answer to a
counterclaim or cross-claim is only ten (10) days from the time it is served.
Q: What happens if the plaintiff does not answer the counterclaim of the defendant?
A: He can be declared in default on the counterclaim. He has still standing to prove his cause of action in
the main case but he loses his standing to defend himself in the counterclaim.
Q: Are there instances where an answer to a counterclaim is optional? Meaning, the plaintiff does not
answer and he cannot be declared in default.
A: YES, that is when the counterclaim is so intertwined with the main action they are so intertwined
that if the plaintiff would answer the counterclaim, it would only be a repetition of what he said in his
complaint. In this case, even if the plaintiff will not answer, he cannot be declared in default.
EXAMPLE: The plaintiff filed a case against the defendant for damages arising from a vehicular collision.
According to the plaintiff, because of the negligence of the defendant, the plaintiffs vehicle was
damaged amounting to that much. So the cause is quasi-delict. Now in his answer, defendant says no
and he denied the liability and he files a counterclaim saying, As a matter of fact, it is the plaintiff who is
negligent. And since my vehicle was damaged, I am now claiming damages against him.
So practically, the issue on negligence is being thrown back. Now, the plaintiff did not answered the
counterclaim, can he be declared in default? NO, because if you require the plaintiff to file an answer,
what will he say? The same, NO, you were the one at fault! So, uulitin na naman niya 'yung sinabi niya
in his complaint. It is already repetitions. Yan, so that is one of the exceptions.
Sec. 5. Answer to third (fourth, etc.)- party complaint. The time to answer a third (fourth, etc.)- party
complaint shall be governed by the same rule as the answer to the complaint. (5a)
Sec. 6. Reply. A reply may be filed within ten (l0) days from service of the pleading responded to. (6)
If you want to file a reply, you have ten (10) days to file. But as a general rule, the filing of a reply is
optional.
Sec. 7. Answer to supplemental complaint. A supplemental complaint may be answered within ten
(10) days from notice of the order admitting the same, unless a different period is fixed by the court.
The answer to the complaint shall serve as the answer to the supplemental complaint if no new or
supplemental answer is filed. (n)
It follows the same rule as in Section 3, second paragraph. A supplemental complaint may be answered
in ten (10) days. The computation is again from notice of the order admitting the same.
Suppose I will not answer the supplemental complaint? The same principle the answer to the original
complaint shall serve as the answer to the supplemental complaint. So it follows the same principle as
the amended complaint in the second paragraph of Section 3.
Sec. 8. Existing counterclaim or cross-claim. A compulsory counterclaim or a cross-claim that a
defending party has at the time he files his answer shall be contained therein. (8a, R6)
One of the requisites to make a counterclaim compulsory is that the defending party has the
counterclaim at the time he files his answer. This is related with Section 7, Rule 6.
Sec. 9. Counterclaim or cross-claim arising after answer. A counterclaim or a cross-claim which either
matured or was acquired by a party after serving his pleading may, with the permission of the court,
be presented as a counterclaim or a cross-claim by supplemental pleading before judgment. (9, R6)
Sec. 10. Omitted counterclaim or cross-claim. When a pleader fails to set up a counterclaim or a cross-
claim through oversight, inadvertence, or excusable neglect, or when justice requires, he may, by leave
of court, set up the counterclaim or cross-claim by amendment before judgment. (3a, R9)
Existing counterclaims or cross-claims, tapas na ito ano? We already discussed this before. As a matter of
fact, Sections 9 and 10 illustrates the distinction between an amended pleading to a supplemental
pleading.
If the counterclaim or cross-claim was acquired by a party after serving his pleading, he may raised it by
way of supplemental pleading. But if a pleader fails to set up a counterclaim or a cross-claim which is
already matured when he filed his pleading due to inadvertence or excusable neglect, then he way raise
it by way of amended pleading.
Sec. 11. Extension of time to plead. Upon motion and on such terms as may be just, the court may
extend the time to plead provided in these Rules.
The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed
by these Rules. (7)
The period to file is 15 or 10 days, but the general rule is 15 days. Q: Now, is the 15-day period
extendible?
A: YES, upon motion and on such terms as may be just, the court may extend the time to plead.
Normally, the lawyer will file a motion for extension of time to answer on the 15th, the 14th, or the 13th
day. Thats very common. The common reason of the lawyers for the extension is pressure of work
 maraming trabaho ba. Others are because of the traditional maana habit. We usually act
during the deadline.
Take note that when you file your motion for extension, do it within the original 15-day period. Do not
file your motion on the 16th day because there is nothing to extend. So the extension is usually filed
within the 15-day period.
Q: Now what happens if the lawyer fails to file such a motion? So naglampas na yung 15 days. And then
on the 18th, he will now file an answer. Practically out of time na yan because the 15-day period already
expired and he did not ask any motion for extension. Now what should the lawyer do?
A: The lawyer can use the second paragraph, The court may also, upon like terms, allow an answer or
other pleading to be filed after the time fixed by these Rules. The correct motion is MOTION TO ADMIT
LATE ANSWER.
EXAMPLE: The deadline is 3 days ago. I failed to file my answer but now it is ready. So, motion to admit
belated answer.
Normally, the courts here are liberal in allowing extensions. The general rule is that the court frowns on
default. As such as possible both sides must be heard. So in the spirit of liberality, courts are usually
liberal in allowing these extensions in time to file answers. I still have to see a judge na i-deny yan.
Standard na yan, eh.
Rule 12
BILL OF PARTICULARS
Section 1. When applied for; purpose. Before responding to a pleading, a party may move for a
definite statement or for a bill of particulars of any matter which is not averred with sufficient
definiteness or particularity to enable him properly to prepare his responsive pleading. If the pleading
is a reply, the motion must be filed within ten (10) days from service thereof. Such motion shall point
out the defects complained of, the paragraphs wherein they are contained, and the details desired.
(1a)
Q: Define Bill of Particulars.
A: A bill of particulars is a more definite statement of any matter which is not averred with sufficient
definiteness or particularity in a pleading so as to enable the opposing party to prepare his responsive
pleading. (Section 1)
Alright. So, lets go to the application of this remedy.
EXAMPLE: The plaintiff filed a complaint against you and you are now furnished with a copy by the
lawyer of the plaintiff. So, you have to file your answer. You have to understand what the cause of action
is all about. So you read the complaint you notice that the allegations are vague, ambiguous, and
uncertain. So, you cannot understand the allegations. So, you have a hard time preparing your answer.
Now, you do not want to answer something that you cannot understand.
Q: So what is your remedy?
A: The remedy is, instead of answering, you file a motion for a bill of particulars and according to Section
1, your motion will point out the defects complained of, the paragraphs where they are contained and
the details desired. Because according to you, the allegations are not averred with sufficient definiteness
or particularity to enable you properly to prepare your responsive pleading that is what it is all about.
So the defendant resorts to the Bill of Particulars if the allegations of ultimate facts in the complaint are
vague and ambiguous that the defendant will have difficulty in preparing his answer. So, he can not
understand and will ask for more details to clear the ambiguities. He will file a motion for Bill of
Particulars, citing the detects and ask for the details, because how can he prepare an answer if he does
not understand the complaint? Aber?
BAR QUESTION: Suppose a complaint is ambiguous, uncertain, indefinite or vague, can the defendant file
a motion to dismiss?
A: NO! A complaint cannot be dismissed simply because it is vague, ambiguous. (Pagan vs. Evening
News, L-13308, Oct. 29, 1960) The correct remedy is for the defendant to file a motion for bill of
particulars, which will ask for more details on these vague portions of the complaint. (Amoro vs.
Sumaguit, L-14986, July 31, 1962)
According to the SC in the case of
TAN vs. SANDIGANBAYAN
180 SCRA 34 [1989]
HELD: The proper office of a bill of particulars is to inform the opposite party and the court of the
precise nature and character of the cause of action the pleader has attempted to set forth, and thereby
to guide his adversary in his preparations for trial and reasonably protect him against surprise at the trial.
It complements the rule on pleadings in general, that is, that the complaint should consist of a concise
statement of the ultimate facts.
Its primary objective is to apprise the adverse party of what the plaintiff wants to preclude the latter
from springing a surprise attack later.
According to the SC, the primary purpose of the bill of particulars is to apprise the adverse party of what
a plaintiff wants. To preclude the latter from springing a surprise attack later. Why? Because the plaintiff
may deliberately make his allegations vague. Sinadya ba niya? To confuse you to mislead you because
you might adopt a different interpretation. If the interpretation turns out to be different, your defenses
might be wrong. So, he deliberately make his complaint ambiguous. Now, the other party should thwart
that by asking for a bill of particulars to compel the plaintiff to make the allegations of his cause of action
clearer. So, that is what the bill of particulars is all about.
Now, we will do to a specific situation and lets find out whether the defendant could file for a bill of
particulars.
PROBLEM: Now, suppose the pleader says in his complaint that he has been in the possession of the
litigated property continuously for forty (40) years. The defendant flied a motion for a bill of particulars,
The allegations is very broad, very general, very vague. Please tell by way of particulars what are the
improvements you introduced for the past 40 years. I would like to ask for these details to clarify your
allegations that you have been in continuous possession of the land for 40 years.
Q: Is that a proper motion for a Bill of Particulars?
A: NO, because it is asking for evidentiary matters. In the first place, the plaintiff has no obligation to
state the evidentiary matters in his complaint. It should only state ultimate facts. So, it is not allowed in
the pleading. You cannot ask for that by way of particulars.
So, what is sought to be remedied are vague and ambiguous statements of ultimate facts. But you
cannot used it to fish for evidentiary matters. Evidentiary facts cannot be the subject of a motion for a
bill of particulars.
Q: But is it not fair that before trial I should know your evidentiary matters?
A: I believe it is fair for the defendant to compel the plaintiff to reveal the details of his ultimate facts but
not under Rule 12. You better avail of the modes of discovery under Rule 23, depositions, request for
admission, etc. But you cannot convert Rule 12 into a modes of discovery. Each rule has its own
functions.
So, lets give a good example of an instance, where the defendant can rightfully ask for more specifics or
particulars.
EXAMPLE: The plaintiff will sue the defendant for annulment of contract on the ground that the
defendant employed FRAUD in getting the consent of the plaintiff. The plaintiff said, He got my consent
to the contract by fraud. The defendant filed a motion for a bill of particulars: That the defendant
employed fraud in getting plaintiffs consent is vague, So, Im asking the plaintiff should give more
specifics. How did I fool you? In what way did I employ fraud? In what way was the fraud exercised?
Q: Now, is the motion for a bill of particulars meritorious?
A: YES, because allegations of fraud must be stated with particularity. So, you go back in Rule 8, Section
5:
Rule 8, Sec. 5 Fraud, mistake, condition of the mind.In all averments of fraud or mistake, the
circumstances constituting fraud or mistake must be state with particularity. x x x
We already studied that provision. Therefore, if the allegation of the plaintiff is simply that the defendant
employed fraud, that allegation is not sufficient because under Rule 8, it must be stated with
particularity. Therefore, if it is not stated with particularity, the remedy of the defendant is to file a
motion for a bill of particulars under Rule 12.
Q: Suppose, it is the answer which is vague. Suppose ang answer malabo. It is the other way around. It is
the defendants answer which is vague or uncertain. Can the plaintiff file a motion for bill of particulars
to compel he defendant to clarify or to particularize his vague answer?
A: YES, because the plaintiff can say, I cannot file my reply. I mean, I want to file a reply but I cant file a
reply unless I understand what is your defense. So it works both ways.
Q: Suppose, it is the reply of the plaintiff to the answer which is vague or ambiguous. Can the defendant
file a motion for bill of particulars to clarify the vague reply?
A: YES. According to Section 1, the motion is to be filed within 10 days. So even if the reply is vague, it
can still be the subject of the bill of particulars within 10 days because there is no more responsive
pleadings there.
So, every pleading which is vague the other party can always compel you to make it clearer. Q: Is this
remedy available in criminal cases?
A: YES. If it is the information which is vague, you cannot understand the allegations in the
information, you cannot plead, Paano, I cannot enter a plea of guilty or not guilty kasi hindi ko
maintindihan eh the accused can file a motion for bill of particulars to require the prosecution to clarify
vague portions of a complaint or information.
There is an identical provision in Rule 116, Section 9 of the Rules on Criminal Procedure.
RULE 116, SEC. 9. Bill of particulars. The accused may, before arraignment, move for a bill of
particulars to enable him properly to plead and prepare for trial. The motion shall specify the alleged
defects of the complaint or information and the details desired. (10a)
The concept is the same. If the allegations in the information are also vague and ambiguous, I cannot
understand it, so I cannot intelligently enter my plea. The accused, before arraignment, can move for a
bill of particulars to enable him to prepare properly for the trial. Then he must specify the defects.
CINCO vs. SANDIGANBAYAN (criminal case)
202 SCRA 726 [1991]
FACTS: A motion for bill of particulars was filed by the lawyer of the respondent in the fiscals office
when the case was under preliminary investigation. (In preliminary investigation, you are given the
affidavit of the complainant and his witnesses. And then you are given 10 days to submit your counter-
affidavits.) Here, the affidavit is vague according to the accused, so he is filing a bill of particulars. He
wanted to compel the complainant to make his affidavit clearer.
ISSUE: Is Section 9 applicable when the case is still in the fiscals office for preliminary investigation?
HELD: NO. It is only applicable when the case is already in court for trial or arraignment.
But suppose during the preliminary investigation, I cannot understand what the complainant is saying in
his affidavit? The SC said, that is simple! If you cannot understand what the complainant is saying in his
affidavit, chances are, the fiscal also will not understand it. And consequently, he will dismiss the case. Eh
di mas maganda! Wag ka na lang mag-reklamo! [tanga!]
Sec. 2. Action by the court. Upon the filing of the motion, the clerk of court must immediately bring it
to the attention of the court which may either deny or grant it outright, or allow the parties the
opportunity to be heard. (n)
So pag-file mo ng motion for bill of particulars, the clerk has the obligation to bring it immediately to the
attention of the court and the court can deny or grant the motion immediately. But of course, it is up to
the court to call for a hearing or not.
Q: Now, what do you think is the reason behind that? Why do you think is this provision here, which is
not found in the old rules?
A: Many lawyers have abused Rule 12. In what way? A complaint is filed. The allegations are clear. Pero
sadyain niya he will file a motion for bill of particulars that he cannot understand. Then, pag file niya ng
motion, he will set the motion for hearing 2 weeks from now. Then the motion is denied because it has
no merit, then, file ka ng answer. In other words, the period to file for an answer has been denied
because it has no merit. Then, file ka ng answer. The period to file for an answer has been delayed. The
defendant has succeeded in delaying the period for filing an answer by pretending that he cannot
understand pero actually klaro man ba.
So in order to prevent that kind of dilatory tactic, when the motion is filed, the court is now authorized to
immediately act on the motion without delaying the filing of the answer. That is the reason why this
provision was inserted because the filing of the motion for bill of particulars can cause delay.
Sec. 3. Compliance with order. If the motion is granted, either in whole or in part, the compliance
therewith must be effected within ten (l0) days from notice of the order, unless a different period is
fixed by the court. The bill of particulars or a more definite statement ordered by the court may be
filed either in a separate or in an amended pleading, serving a copy thereof on the adverse party. (n)
Q: Suppose the court grants the motion and the defendant or the plaintiff will be required to submit the
bill of particulars. How will you comply with the order to file a bill of particulars?
A: There are two (2) ways:
1.) Just submit the details of the vague paragraphs; or
2.) Amend the whole complaint and clarify the vague paragraphs
Sec. 4. Effect of non-compliance. If the order is not obeyed, or in case of insufficient compliance
therewith, the court may order the striking out of the pleading or the portions thereof to which the
order was directed or make such other order as it deems just. (1[c]a)
Q: Alright, suppose the motion is granted, the court ordered the plaintiff to submit a bill of particulars.
The plaintiff refused to comply with the order. What is now the remedy?
A: The court may order the striking out of the pleading or portions thereof which is the object of the bill
of particulars. Like for example: Ayaw mong i-clarify ang complaint mo, ayaw mo. Alright, I will now issue
an order to strike out the entire complaint. It is as if the complaint was never filed. Practically, your
complaint was dismissed. In effect your complaint was dismissed because if the complaint was ordered
stricken out, then it is equivalent to dismissal of the case itself.
Sec. 5. Stay of period to file responsive pleading. After service of the bill of particulars or of a more
definite pleading, or after notice of denial of his motion, the moving party may file his responsive
pleading within the period to which he was entitled at the time of filing his motion, which shall not be
less than five (5) days in any event. (1[b]a)
Q: What is the effect for a motion for a bill of particulars when you file a motion? What is the effect on
that on the 15-day period to file the answer?
A. The 15-day period to answer is stopped or interrupted upon the filing of the motion for bill of
particulars. The period continues to run from the date that you received the bill of particulars, if your
motion is granted, or from the receipt of the order denying your motion if it was denied. From there, the
period to answer will run again so you have to file your answer within the balance of the remaining
period.
ILLUSTRATION: I have 15 days to file an answer. On the 8th day, I filed a motion for a bill of particulars.
Pag-file mo on the 8th day , the running of the period automatically stops and then after several days,
you receive the order. For example, denying your motion, you still have 7 days to go because the period
during which your motion was pending will not be counted. Na- interrupt ang takbo ng 15 days.
Q: Suppose, you file your motion for a bill of particulars on the 14th day and your motion is denied. You
received the order today. How many days more to file an answer?
A: Five (5) days. You are guaranteed a minimum of 5 days. Kahit one day to go na lang, balik ka naman sa
5. At least minimum. So, it is 5 days or more but never be less than 5 days.
Therefore, if a defendant filed the motion for bill of particulars within 15 days, he cannot be declared in
default. The plaintiff cannot declare the defendant in default for failure to file an answer because 15
days had already lapse. Pag file ng motion, itigil mo muna ang takbo ng araw. It will be interrupted by the
filing of the motion and the period commences to run again from the time he received the bill of
particulars or the order denying his motion but not less than 5 days in any event.
Sec. 6. Bill a part of pleading. A bill of particulars becomes part of the pleading for which it is intended.
(1[a]a)
Ah, yes. It is very clear no? When you file a bill of particulars clarifying the paragraphs in the complaint
which are vague, the bill of particulars becomes part of the complaint with its supplements.
Rule 03
FILING AND SERVICE OF PLEADINGS,
JUDGMENTS AND OTHER PAPERS
Section 1. Coverage. This Rule shall govern the filing of all pleadings and other papers, as well as the
service thereof, except those for which a different mode of service is prescribed. (n)
As a general rule, service of all pleadings is governed by Rule 13. So, this rule governs pleadings except
those for which a different mode of service is prescribed. An example of the exception is the service of
complaint which is governed by Rule 14. So Rule 13 applies to all pleadings except complaint.
What is the difference between filing and service of pleadings? Section 2:
Sec. 2. Filing and service, defined. Filing is the act of presenting the pleading or other paper to the clerk
of court.
Service is the act of providing a party with a copy of the pleading or paper concerned. If any party has
appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service
upon the party himself is ordered by the court. Where one counsel appears for several parties, he shall
only be entitled to one copy of any paper served upon him by the opposite side. (2a)
When you say FILING, you present the pleading in the office of the clerk of court. When you say SERVICE,
you furnish a copy of the pleading to the party concerned, or if he is represented by a lawyer, you must
furnish a copy of the pleading to the lawyer.
The GENERAL RULE, when a party is represented by a lawyer, the service should be to the lawyer and not
to the party. Service to a party is not valid. What is valid is service to the counsel. Service to the lawyer
binds the party. But service to the party does not bind the lawyer, unless the court orders direct service
to the party.
Q: What is the reason for requiring service upon the lawyer if the party is so represented?
A: The reason for the rule is to do away with the subsequent objection which the party served may raise
to the effect that he knows nothing about court procedure and also to maintain a uniform procedure
calculated to place in competent hands the orderly prosecution of a partys case. (Hernandez vs. Clapis,
87 Phil. 437; Javier Logging Corp. vs. Mardo, L-28188, Aug. 27, 1968)
So, the purpose there is to avoid any complaint later that the party did not know what to do. Since the
lawyer is presumed to know the rules, at least it is on competent hands. But if you got to the party
himself, the problem is he might start complaining later, My golly, kaya nga ako kumuha ng abogado
kasi hindi ako marunong.
There was a even a case when the client volunteered to get the copy of the decision. But he party failed
to give it to his lawyer. Is the lawyer bound, or is the party also bound? NO, because the rule is service to
lawyer binds the client and not the other way around.
So, to avoid all these problems, there must be a uniform rule UNLESS, the law says, SERVICE UPON THE
PARTY HIMSELF IS ORDERED BY THE COURT. Example is in the case of
RETONI, JR. vs. COURT OF APPEALS
218 SCRA 468 [1993]
HELD: Usually, service is ordered upon the party himself, instead of upon his attorney, [1] when it is
doubtful who the attorney for such party is, or [2] when he cannot be located or [3] when the party is
directed to do something personally, as when he is ordered to show cause.
There are rare circumstances however where service to the lawyer does not bind the client. These are
cases of negligence; where the lawyer is in bad faith for gross negligence; where he deliberately
prejudiced his client. So it is unfair that the party may be bound by the service to the lawyer because of
those circumstances. One such instance happened in the case of
BAYOG vs. NATINO
258 SCRA 378 [1996]
HELD: Notice to the lawyer who appears to have been unconscionably irresponsible cannot be
considered as notice to his client. The application to the given case of the doctrine that notice to counsel
is notice to parties should be looked into and adopted, according to the surrounding circumstances;
otherwise, in the courts desire to make a short cut of the proceedings, it might foster, wittingly or
unwittingly, dangerous collusions to the detriment of justice. It would then be easy for one lawyer to sell
ones rights down the river, by just alleging that he just forgot every process of the court affecting his
clients, because he was so busy.
So, sasabihin lang niya, Sorry ha, nakalimutan ko, and then you are bound Masyadong masakit
naman iyan.
Q: Now, if there are 5 defendants in the same case and there is only one (1) lawyer for all, is the lawyer
entitled to 5 copies also?
A: NO, the lawyer is not entitled to 5 copies but only one (1). Last sentence, Where one counsel appears
for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite
side. But if the 5 defendants are represented by different lawyers, that is another story. Every lawyer
has to be furnished a copy.
Q: Suppose you are represented by three or more lawyers. Mga collaborating lawyers, ba. Bawat
abogado ba may kopya?
A: NO, service on one is sufficient. Section 2 says, service shall be made upon his counsel or one
of them Service to one is service to all. You can do it if you want to but service on one will suffice.
A. FILING OF PLEADINGS, JUDGMENTS AND OTHER PAPERS
Now, how do you file pleadings? Section 3:
Sec. 3. Manner of filing. The filing of pleadings, appearances, motions, notices, orders, judgments and
all other papers shall be made by presenting the original copies thereof, plainly indicated as such,
personally to the clerk of court or by sending them by registered mail. In the first case, the clerk of
court shall endorse on the pleading the date and hour of filing. In the second case, the date of the
mailing of motions, pleadings, or any other papers or payments or deposits, as shown by the post
office stamp on the envelope or the registry receipt, shall be considered as the date of their filing,
payment, or deposit in court. The envelope shall be attached to the record of the case. (1a)
Under Section 3, there are two (2) modes of filing either 1.) Personally; or
2.) by registered mail
First Mode of Filing: PERSONAL FILING
This mode of filing is done personally to the clerk of court. You go to the court and the court will mark it
RECEIVED on January 15, 1998, 9:00 a.m. Then, that is deemed filed. That is personal filing.
Section 3 says, by presenting the original copies thereof, plainly indicated as such personally to the
clerk of court There was a lawyer before who referred to me. He said he filed a complaint. There are
many copies of it. The court will usually receive 2 or 3 copies 1 for itself, 1 for the defendant to be sued
in summons, then any balance, ibalik sa iyo. Sabi niya, ayaw daw tanggapin kasi wala raw nakalagay na
ORIGINAL. Sabi ng lawyer, lahat naman ito original, kasi naka-computer. So, everything is original. Sabi
na clerk of court, Eh di, dapat sulatan mo ng original! Where did the clerk of court got that rule?
Maski klaro na, sulatan pa rin ng original? Sabi ng clerk of court, Nasa 1997 Rules and requirement na
iyan.
So I started to think. And I think, itong provision (Section 3) ang ibig sabihin ng clerk of court, The filing
of pleadings shall be made by presenting the original copy thereor plainly indicated as such. Meaning,
original, duplicate, original, duplicate. To my mind, huwagn amang masyadong istrikto. the case. If it is not in the record, but is claimed to have been filed personally, the filing shall be proved
Nasubrahan ng basa ba! When you read too much, you become very technical. Why refuse to accept?
Simply because walang word na original? Eh, di ikaw ang maglagay! So the clerk of court, with that
phrase plainly indicated as such, becomes too strict.
Second Mode of Filing: FILING BY REGISTERED MAIL
The other mode is by registered mail. It is not ordinary mail. It is registered mail.
Q: What is the importance of registered mail on filing of pleadings and motions in court?
A: The importance is the rule that in registered mails, the date of filing is the date of mailing. If you send
the pleading through the Post Office by registered mail, the date of filing is not the date on which the
letter reached the court but on the day that you mailed it. So the date on the envelope is officially the
date of filing.
Q: Now, suppose I will file my pleading not by registered mail but throught messengerial service like LBC
or JRS Express delivery, or by ordinary mail? What is the rule if instead of the registered service of the
Post Office, you availed the private messengerial service or by ordinary mail?
A: The mailing in such cases is considered as personal filing and the pleading is not deemed filed until it is
received by the court itself.
When it is by registered mail, the date of mailing as shown by the Post Office stamp is considered as the
date of filing. The envelope is attached. The post office is automatically a representative of the court for
the purpose of filing. In other words, the law treats the messengerial company only as your process
helper. That is why in the 1994 case of
INDUSTRIAL TIMBER CORP. vs. NLRC
233 SCRA 597 [1994]
HELD: Where a pleading is filed by ordinary mail or by private messengerial service, it is deemed filed on
the day it is actually received by the court, not on the day it was mailed or delivered to the messengerial
service.
What about filing by FAX machine? In the case of
GARVIDA vs. SALES, JR.
April 18, 1997
HELD: Filing a pleading by facsimile transmission is NOT sanctioned by the Rules of Court. A facsimile is
not a genuine and authentic pleading. It is, at best, an exact copy preserving all the marks of an original.
Without the original, there is no way of determining on its face whether the facsimile pleading is genuine
and authentic and was originally signed by the party and his counsel. It may, in fact, be a sham pleading.
Q: Now, how do you prove that really the pleading was filed?
A: Section 12. This is a new rule on how to prove that a pleading is filed
Sec. 12. Proof of filing. The filing of a pleading or paper shall be proved by its existence in the record of
by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same; if
filed by registered mail, by the registry receipt and by the affidavit of the person who did the mailing,
containing a full statement of the date and place of depositing the mail in the post office in a sealed
envelope addressed to the court, with postage fully prepaid, and with instructions to the postmaster to
return the mail to the sender after ten (10) days if not delivered. (n)
Q: Suppose I filed it in court PERSONALLY, but it is not there, therefore, there is no showing that I filed it
in court personally. So how do I prove it?
A: Just show your copy which is duly stamped and received by the court. Definitely, the fault is not yours
but with the clerk of court.
Q: If filed by REGISTERED MAIL. Suppose the court has no copy of it, it had been lost between the post
office and the court?
A: Prove it by presenting the registry receipt and the affidavit of the server, 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. It
must be stressed that the affidavit is very important.
B. SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS
Sec. 4. Papers required to be filed and served. Every judgment, resolution, order, pleading subsequent
to the complaint, written motion, notice, appearance, demand, offer of judgment or similar papers
shall be filed with the court, and served upon the parties affected. (2a)
Let us now go to service. Under the law, before you file, there must be service to the opposing partys
counsel. And all documents, as a rule, shall be filed to the court and served to the parties affected. Or, all
pleadings SUBSEQUENT to the complaint. bakit ba subsequent? Meaning, answer, counterclaim,
cross-claim.
Q: Do you mean to tell me the complaint does not have to be served to the defendant by the plaintiff?
A: Of course not! It is the sheriff who will serve it to the defendant. So, the plaintiff does not really have
to go to the defendant to serve the complaint. The complaint is brought to the court because the
summons will be issued.
But if you are the defendants lawyer, you go directly to the plaintiffs lawyer to serve the answer
because an answer is a pleading subsequent to the complaint. Moreover, the manner of serving
complaint is not governed by 13 but by Rule 14.
Alright, every paper is required to be filed and served. Some people do not understand this Every
judgment, resolution, order shall be filed with the court and served to the parties... Well of course,
iyang mga pleadings, motions, etc., you file and serve because there must be proof of service to the
adverse party.
Now, judgments. It must be filed. Why will the court files its own judgment before itself? Actually, the
judge has to file his decision before the court. Read Rule 36, Section 1:
Rule 36, Section 1. Rendition of judgments and final orders. A judgment or final order determining the
merits of the case shall be in writing personally and directly prepared by the judge, stating clearly and
distinctly the facts and the law on which it is based, signed by him, and filed with the clerk of the
court. (1a)
So, the judge has to file his own decision to make it official.
Sec. 5. Modes of service. Service of pleadings, motions, notices, orders, judgments and other papers
shall be made either personally or by mail. (3a)
Q: How do you SERVE a pleading to the opposite party? A: Either:
1.) personally or 2.) by mail; or
3.) Substituted service under Section 8 in case of failure of the personal service or by registered mail
PERSONAL SERVICE OF PLEADINGS
Sec. 6. Personal service. Service of the papers may be made by delivering personally a copy to the
party or his counsel, or by leaving it in his office with his clerk or with a person having charge thereof.
If no person is found in his office, or his office is not known, or he has no office, then by leaving the
copy, between the hours of eight in the morning and six in the evening, at the party's or counsel's
residence, if known, with a person of sufficient age and discretion then residing therein. (4a)
How are pleadings served personally? You deliver it personally to the party if he is not represented by a
counsel. And if he is represented, then to his counsel. You dont have to look for his lawyer you way
leave it to his office with the clerk or any person charged thereof and that is already personal service.
Most lawyers have a receiving clerk authorized to receive pleadings.
Now, let us go to some cases on personal service. The case of
PLDT vs. NLRC
128 SCRA 402 [1984]
FACTS: The office of the lawyer is on the 9th floor of a building in Makati. So, siguro, sira iyong elevator,
gikapoy iyong process server, what he did was, he left the copy of the judgment to the receiving station
at the ground floor.
ISSUE: Was there a valid service?
HELD: NO. The address of the lawyer is at the 9th floor. So, you serve it on the 9th floor and not at the
ground floor with somebody who is not even connected with the law office.
Notices to counsel should properly be sent to the address of record in the absence of due notice to the
court of change of address. The service of decision at the ground floor of a partys building and not at the
address of record of the partys counsel on record at the 9th floor of the building cannot be considered a
valid service.
Service upon a lawyer must be effected at the exact given address of the lawyer and not
in the vicinity or at a general receiving section for an entire multi-storied building with many offices.
But the case of PLDT should not be confused with what happened in the case of
PCI BANK vs. ORTIZ
150 SCRA 680 [1987]
FACTS: This time, the office of the lawyer is located on the 5th floor. And again, the habit of the process
server is that instead of going to the 5th floor, he would just approach the receiving station on the
ground floor. Now, of course the receiving clerk, everytime the lawyer passes by, gave it to the lawyer.
And the lawyer here did not question the practice.
Now, when a decision against PCI Bank was served, the lawyer claimed they are not bound because
there was no proper service.
ISSUE: Was there proper service?
HELD: While is true that the service was improper, but the trouble is, it was going on for some time and
you are not complaining. So, the ground floor becomes your adopted address. Naloko na!
They cannot now disown this adopted address [iyung ground floor] to relieve them from the effects of
their negligence, complacency or inattention. Service, therefore, of the notice of judgment at the ground
floor of the building, should be deemed as effective service.
So, the judgment became final. There was no appeal. Those are examples of personal service. Q: So,
when is personal service complete?
A: It is completed upon actual delivery. Section 10:
Sec. 10. Completeness of service. Personal service is complete upon actual delivery. Service by
ordinary mail is complete upon the expiration of ten (10) days after mailing, unless the court otherwise
provides. Service by registered mail is complete upon actual receipt by the addressee, or after five (5)
days from the date he received the first notice of the postmaster, whichever date is earlier. (8a)
SERVICE OF PLEADINGS BY MAIL
Sec. 7. Service by mail. Service by registered mail shall be made by depositing the copy in the office, in
a sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his
residence, if known, with postage fully pre-paid, and with instructions to the postmaster to return the
mail to the sender after ten (l0) days if undelivered. If no registry service is available in the locality of
either the sender or the addressee, service may be done by ordinary mail. (5a; as amended by En Banc
Resolution, Feb. 17, 1998)
Now, SERVICE BY MAIL. You can also serve your pleadings by mail. You will notice this time although the
law prefers service by registered mail, however, the last sentence of Section 7 says, If no registry service
is available in the locality of either the sender or the addressee, service may be done by ordinary mail.
Take note, comparing Section 7 with Section 3, service by ordinary mail may be allowed for purposes of
service (Section 7), but for purposes of filing (Section 3), wala! For purposes of filing, the law does not
recognize the ordinary mail. If you do it, it will be treated as personal filing. In registered mail, the date of
receipt is considered the date of filing not the date of mailing.
Q: Now, when is service by mail deemed complete? A: Section 10:
Sec. 10. Completeness of service. Personal service is complete upon actual delivery. Service by
ordinary mail is complete upon the expiration of ten (10) days after mailing, unless the court otherwise
provides. Service by registered mail is complete upon actual receipt by the addressee, or after five (5)
days from the date he received the first notice of the postmaster, whichever date is earlier. (8a)
So that is for the people who refuse to claim their mail even if they are already notified. He knows it is an
order he expects to be adverse so he will try to defeat the service by not claiming it. NO, you are at a
disadvantage because after the expiration of so many days, service is deemed completed. That is what
you call CONSTRUCTIVE SERVICE. So, a party or a lawyer cannot defeat the process of the law by simply
not claiming his mail. You can be bound by a decision which you never read. That is constructive service.
SUBSTITUTED SERVICE OF PLEADINGS
Sec. 8. Substituted service. If service of pleadings, motions, notices, resolutions, orders and other
papers cannot be made under the two preceding sections, the office and place of residence of the
party or his counsel being unknown, service may be made by delivering the copy to the clerk of court,
with proof of failure of both personal service and service by mail. The service is complete at the time
of such delivery. (6a)
Kung somehow there was an attempt of personal service or registered service at walang nangyari, you
can resort to by serving a copy to the clerk of court with proof of failure of personal
and mailing service. And by fiction of law, the adverse party has already been served.
SERVICE OF DECISIONS, ORDERS, ETC.
Sec. 9. Service of judgments, final orders or resolutions. Judgments, final orders or resolutions shall be
served either personally or by registered mail. When a party summoned by publication has failed to
appear in the action, judgments, final orders or resolutions against him shall be served upon him also
by publication at the expense of the prevailing party. (7a)
There are three (3) modes again of serving court orders or judgments to parties: 1.) personally;
2.) registered mail; or
3.) service by publication
So court orders or judgments orders have to be served also, either personally or by registered mail.
Thats why if you go to the court, there are employees there who are called process servers. Everyday,
they go around from law office to law office to serve court orders, notices and judgments. And that is
personal service. But if the lawyer is a Manila lawyer, or is out of town, chances are the clerk of court will
apply registered mail.
Under Section 9, there is a third mode of service of court orders and judgments and that is service by
publication. That is if the parties were summoned by publication under Rule 14 and they did not appear.
The judgment is also served to them by publication at the expense of the prevailing party.
Sec. 11. Priorities in modes of service and filing. Whenever practicable, the service and filing of
pleadings and other papers shall be done personally. Except with respect to papers emanating from
the court, a resort to other modes must be accompanied by a written explanation why the service or
filing was not done personally. A violation of this Rule may be cause to consider the paper as not filed.
(n)
That is a radical provision. In other words, there are two (2) ways of service: personal or by mail. And the
law says, personal service is preferred to mail. Meaning, personal service is prioritized.
Q: Suppose you served the opposing counsel by mail.
A: The law requires that you must give an explanation why you resorted to mail and not to personal
service.
Q: Suppose I will file it without any explanation.
A: The law says, A violation of this rule may be cause to consider the paper as not filed. And that is a
very radical rule..
For EXAMPLE: the opposing counsel is in Manila, and the case is in Davao. He will mail to you the
pleading or motion and then, nakalagay doon sa pleading : Explanation: I have to resort to registered
mail because it is expensive for me to resort to personal service. It is expensive if I will send my
messenger to Davao just to serve whereas if I send by registered mail, it will only cost me P5.00. They
have to state that. Takot sila eh because without it, the pleading is not considered as filed. Of course this
rule should be interpreted based on common sense.
To my mind, the rule should be construed reasonably. If I am the judge, even if there is no explanation, I
will allow it. Common sense eh! Alangan papuntahin pa dito ang messenger at pa-eroplanuhin mo pa!
Now, I think the purpose of this new provision has been provoked by some malpractices of the lawyers.
There were some instances before which have been confirmed especially in Metro Manila. The opposing
counsel is just across the street ang opisina. He will send a motion to be received today. Instead of
serving you, he will mail it. Mas malayo pa ang Post Office para hindi mo matangap. They will
deliberately do it because it could not reach you on time. I think if you do that, I will not consider your
motion. Or, kunwari may motion ka. You will send me a copy by mail and you are along C.M. Recto St.
Bakit ka nag-mail eh mas malayo pa ang Post Office kaysa office ko? Unless you explain, I will deny your
motion.
Pero kung klaro naman or obvious, I do not think they should be construed strictly. Pero para maniguro,
you explaint na lang: Explanation: Because of time constraint and distance, I had to resort to registered
mail. That is now the standard explanation which appears in many pleadings or motions. It is a radical
provision.
Take note that courts are not covered by Section 11. It only applies to lawyers and parties. The court
does not have to explain why it resorted to registered mail because Section 11 says, Whenever
practicable, the service and filing of pleadings and other papers shall be done personally EXCEPT WITH
RESPECT TO PAPERSE EMANATING FROM THE COURT.
So the court is not obliged to give any explanation, only the parties and their lawyers.
SOLAR TEAM ENTERTAINMENT vs. RICAFORTE
293 SCRA 661 [August 5, 1998] J. Davide
FACTS: Solar Team filed before the RTC a complaint against Felix Co. Summons and copies of the
complaint were forthwith served on Co. Co then filed his answer. A copy thereof was furnished counsel
for Solar Team by registered mail; however, the pleading did not contain any written explanation as to
why service was not made personally upon Solar Team, as required by Section 11 of Rule 13.
Solar Team filed a motion to expunge the answer and to declare Co in default, alleging therein that Co
did not observe the mandate of Section 11. RTC issued an order stating that under Section 11 of Rule 13,
it is within the discretion of the RTC whether to consider the pleading as filed or not, and denying, for
lack of merit, Solar Teams motion to expunge.
HELD: Pursuant to Section 11 of Rule 13, service and filing of pleadings and other papers MUST,
whenever practicable, be done personally; and if made through other modes, the party concerned must
provide a written explanation as to why the service or filing was not done personally. Note that Section
11 refers to BOTH service of pleadings and other papers on the adverse party or his counsel as provided
for in Sections 6, 7 and 8; and to the filing of pleadings and other papers in court.
Personal service will do away with the practice of some lawyers who, wanting to appear clever, resort
to the following less than ethical practices: serving or filing pleadings by mail to catch opposing counsel
off-guard, thus leaving the latter with little or no time to prepare, for instance, responsive pleadings or
an opposition; or, upon receiving notice from the post office that the registered parcel containing the
pleading of or other paper from the adverse party may be claimed, unduly procrastinating before
claiming the parcel, or, worse, not claiming it at all, thereby causing undue delay in the disposition of
such pleading or other papers.
If only to underscore the mandatory nature of this innovation to our set of adjective rules requiring
personal service whenever practicable, Section 11 then gives the court the discretion to consider a
pleading or paper as not filed if the other modes of service or filing were resorted to and no written
explanation was made as to why personal service was not done in the first place. The exercise of
discretion must, necessarily, consider the practicability of personal service, for Section 11 itself begins
with the clause whenever practicable.
We thus take this opportunity to clarify that under Section 11: Personal service and filing is the
GENERAL RULE, and resort to other modes of service and filing, the EXCEPTION. Henceforth, whenever
personal service or filing is practicable, in light of the circumstances of time, place and person, personal
service or filing is mandatory. Only when personal service or filing is not practicable may resort to other
modes be had, which must then be accompanied by a written explanation as to why personal service or
filing was not practicable to begin with.
Of course, proximity would seem to make personal service most practicable, but exceptions may
nonetheless apply such as when: the adverse party or opposing counsel to be served with a pleading
seldom reports to office and no employee is regularly present to receive pleadings, or service is done on
the last day of the reglementary period and the office of the adverse party or opposing counsel to be
served is closed, for whatever reason.
However in view of the proximity between the offices of opposing counsel and the absence of any
attendant explanation as to why personal service of the answer was not effected, indubitably, Cos
counsel violated Section 11 and the motion to expunge was prima facie meritorious. However, the grant
or denial of said motion nevertheless remained within the sound exercise of the RTC's discretion.
To Our mind, if motions to expunge or strike out pleadings for violation of Section 11 were to be
indiscriminately resolved under Section 6 of Rule 1, then Section 11 would become meaningless and its
sound purpose negated. Nevertheless, We sustain the challenged ruling of the RTC, but for reasons other
than those provided for in the challenged order.
The 1997 Rules of Civil Procedure took effect only on 1 Jul 1997, while the answer was filed only on 8
Aug 1997, or on the 39th day following the effectivity of the 1997 Rules. Hence, Cos counsel may not
have been fully aware of the requirements and ramifications of Section 11. It has been several months
since the 1997 Rules of Civil Procedure took effect. In the interim, this Court has generally
accommodated parties and counsel who failed to comply with the requirement of a written explanation
whenever personal service or filing was not practicable, guided, in the exercise of our discretion, by the
primary objective of Section 11, the importance of the subject matter of the case, the issues involved
and the prima facie merit of the challenged pleading.
However, as we have in the past, for the guidance of the Bench and Bar, strictest compliance with
Section 11 of Rule 13 is mandated one month from promulgation of this Decision.
WHEREFORE, the instant petition is DISMISSED considering that while the justification for the denial of
the motion to expunge the answer (with counterclaims) may not necessarily be correct, yet, for the
reasons above stated, the violation of Section 11 of Rule 13 may be condoned.
Sec. 13. Proof of service. Proof of personal service shall consist of a written admission of the party
served, or the official return of the server, or the affidavit of the party serving, containing a full
statement of the date, place and manner of service. If the service is by ordinary mail, proof thereof
shall consist of an affidavit of the person mailing of facts showing compliance with section 7 of this
Rule. If service is made by registered mail, proof shall be made by such affidavit and the registry
receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt
by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn copy of the
notice given by the postmaster to the addressee. (10a)
Q: How do you prove that you furnished the opposing lawyer a copy by PERSONAL SERVICE?
A: It is through the written admission of the party served as admitted that he had been furnished with a
copy. The other alternative is that you file the affidavit of your employee, or messenger, that he served
the copy in the office of so and so. (containing full statement of facts). Or, the official return of the
server.
The procedure is that there is a pleading and in the last portion there is that part which states:

Copy received: January 16, 1998
By: (Signed) Atty. X
Counsel of Plaintiff
Q: If it is by ORDINARY MAIL, how do you prove in court that you served a copy?
A: If it is ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing
compliance with Section 7.
Q: If it is by REGISTERED MAIL, how do you prove in court that you served a copy?
A: If service is made by registered mail, proof shall consist of the affidavit of the mailer and the registry
receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by
the sender. Or, in lieu thereof, of the unclaimed letter together with the certified or sworn copy of the
notice given by the postmaster that is a constructive service no?
Now in practice among lawyers when we serve by registered mail, we only attach the original in the
registry receipt and there is a quotation there in the original pleading, Copy sent by registered mail, this
17th day of January, 1998 to Atty. Juan dela Cruz, counsel for the plaintiff per registry receipt no. 123
hereto attached, and nobody complains.
But in reality, the law does not allow that. There must be an affidavit of the person who mailed it. The
surrender of a registry receipt alone is not sufficient because if you send the registry receipt, it is not
reflected to whom that letter is addressed so how will the court know that the registry receipt really
corresponded to the pleading that you mailed? It might be another letter like a love letter for your
girlfriend or a letter to your creditor. The registry receipt will not indicate kung ano ang na-mailed to his
address. But we just allow it because it is too tedious everytime you file, affidavit?!!
But take note, the CA and the SC enforce this strictly. Even if you mail a petition at may nakalagay na
Copy sent by registered mail without the affidavit, outright dismissal yan for lack of proof of service.
The SC and the CA are very strict about this requirement.
Lets go to this topic of CONSTRUCTIVE SERVICE that if the registered mail was not received and
therefore you want to avail of the rules on constructive service it is deemed served upon the expiration
of so many days. What you will file in court is the unclaimed letter together with a certified or sworn
copy of the notice given by the postmaster to the addressee.
Let us see what happened in the case of
JOHNSON AND JOHNSON PHILS. vs. COURT OF APPEALS
201 SCRA 768 [1991]
FACTS: The CA Johnson and Johnson Philippines a decision in an envelope by registered mail. After a
while, the same envelope was returned to the CA. On the face of the envelope, it as written, Return to
Sender, Unclaimed. On the back of the envelope, there is an annotation Return to CA. Here, Santos failed to present such proof before CA but only did so in the present proceedings. Clearly
With that, the CA applied the rule on constructive service considered the decision as already served.
Johnson and Johnson Philippines questioned it. It never received any notice from the post office. But
according to the CA, it is very obvious. It is there in the envelope still sealed.
ISSUE: Is there proper application of the rules on constructive service?
HELD: There is NO constructive service because there is no certification by the postmaster that is
claimed. This is what the law requires not just a one sentence statement. One cannot even ascertain who
wrote the statement. Certification should include the details of delivery and not just state that notice
was issued.
A certification from the postmaster would be the best evidence to prove that the notice has been
validly sent. The mailman may also testify that the notice was actually delivered. The postmaster should
certify not only that the notice was issued or sent but also as to how, when and to whom the delivery
thereof was made.
There is nothing in the records of the present case showing how, when and to whom the delivery of the
registry notices of the subject registered mail of petitioner was made and whether said notices were
received by the petitioner. The envelope containing the unclaimed mail merely bore the notation
RETURN TO SENDER: UNCLAIMED on the face thereof and Return to: Court of Appeals at the back.
The respondent court should not have relied on these notations to support the presumption of
constructive service.
The case of JOHNSON was reiterated in
SANTOS vs. COURT OF APPEALS
293 SCRA 147 [Sept. 3, 1998]
FACTS: Jesus Santos, was sued for damages on by Omar Yapchiongco before the CFI. CFI dismissed the
complaint for lack of merit. CA reversed and declared Santos liable for damages.
On 15 June 1995, the decision of the CA was sent by registered mail to Santos counsel, Atty. Magno. On
the same day, the corresponding notice of registered mail was sent to him. The mail remained unclaimed
and consequently returned to the sender. After 3 notices, the decision was returned to the sender for
the same reason.
On 27 September 1995, a notice of change of name and address of law firm was sent by Atty. Magno to
CA. On 28 March 1996, the same decision of CA was sent anew by registered mail to Atty. Magno at his
present address which he finally received on 3 April 1996. On 17 April 1996, Magno withdrew his
appearance as counsel for Santos.
On 18 April 1996, Santos new counsel, Atty. Lemuel Santos, entered his appearance and moved for
reconsideration of CA's decision of 6 June 1995. Yapchiongco opposed the motion on the ground that
the period for its filing had already expired.
HELD: The rule on service by registered mail contemplates 2 situations: (1.) Actual service - the
completeness of which is determined upon receipt by the addressee of the registered mail; (2.)
Constructive service - the completeness of which is determined upon the expiration of 5 days from the
date of first notice of the postmaster without the addressee having claimed the registered mail.
For completeness of constructive service, there must be conclusive proof that Santoss former counsel
or somebody acting on his behalf was duly notified or had actually received the notice, referring to the
postmaster's certification to that effect.
then, proof should always be available to the post office not only of whether or not the notices of
registered mail have been reported delivered by the letter carrier but also of how or to whom and when
such delivery has been made.
Consequently, it cannot be too much to expect that when the post office makes a certification regarding
delivery of registered mail, such certification should include the data not only as to whether or not the
corresponding notices were issued or sent but also as to how, when and to whom the delivery thereof
was made. Accordingly, the certification in the case at bar that the first and second notices addressed to
Atty. Magno had been "issued" can hardly suffice the requirements of equity and justice. It was
incumbent upon the post office to further certify that said notices were reportedly received.
This last section, Section 14, has something to do with real actions, land titles notice of lis pendens.
Sec. 14. Notice of lis pendens. In an action affecting the title or the right of possession of real property,
the plaintiff and the defendant, when affirmative relief is claimed in his answer, may record in the
office of the registry of deeds of the province in which the property is situated a notice of the
pendency of the action. Said notice shall contain the names of the parties and the object of the action
or defense, and a description of the property in that province affected thereby. Only from the time of
filing such notice for record shall a purchaser, or encumbrancer of the property affected thereby, be
deemed to have constructive notice of the pendency of the action, and only of its pendency against
the parties designated by their real names. The notice of lis pendens hereinabove mentioned may be
cancelled only upon order of the court, after proper showing that the notice is for the purpose of
molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it
to be recorded. (24a, R14)
This used to be in Rule 14 of the 1964 Rules of Court where it was misplaced. I do riot know why notice
of lis pendens which refers to lands, titles and deeds appears under the rules on Summons. It was
misplaced so they place it under Rule 13 which is also misplaced.
NOTICE OF LIS PENDENS notice of pending action or litigation.
This is part of the Property Registration Law. The essence of notice of lis pendens is a notice against the
whole world against sale or mortgage of the property under litigation. And whoever deals with it is
accepting the risk. Anybody who buys it is gambling an the outcome of the case. He cannot claim he is
the mortgagee or buyer in good faith because there is a notice.
I will file a case for recovery of a piece of land and the title is in your name. There is a danger that you
will sell the land to others who know nothing about the case. So if I win the case and try to recover it to
the buyer, the buyer will say he bought the land in good faith, I did not know that there is a pending
action concerning this land. And under the law, he is protected because he is a buyer in good faith and
for value. This is if there is no notice of lis pendens. The other risk is that the owner of the land will
mortgage his property.
A person buying a property with a notice of lis pendens is buying it subject to the outcome of the case.
So you are gambling.
Now, as GENERAL RULE, the one who registers a notice of lis pendens is the plaintiff. Exception: Q: Under
Section 14, can the defendant register a notice of lis pendens?
A: YES. The law states that The plaintiff and the defendant may register when affirmative relief is
claimed in this answer. In such case, a defendant may register and normally it is done when there is a
counterclaim. The defendant is also interposing a defense with the same property.
Take note that the action in this case affects the right of possession over real property.
Q: How is a notice of lis pendens cancelled?
A: GENERAL RULE: The notice of lis pendens under the rules cannot be removed without the order from
the court and generally the court cannot issue the order until the case is finished or until the final issue
of the case is determined.
EXCEPTION: But in some rare instances, the SC has authorized the cancellation of the notice of lis
pendens even when the case is not yet terminated. One of which is contemplated under Section 14:
After proper showing that the notice is: [a] For the purpose of molesting the adverse party; or [b] It is
not necessary to protect the rights of the party who caused it to be recorded. In the case of
ROXAS vs. DY
233 SCRA 643 [1993]
FACTS : Plaintiff filed a case against the defendant to recover a piece of land registered in the name and
possessed by the defendant. The case has been going on for more than 1 year, the plaintiff has been
presenting evidence he plaintiff has not yet shown that he has right over the land.
HELD: So there is no more basis of notice of lis pendens because your purpose is to harass the defendant
for over a year litigation without showing right over the land.
While a notice of lis pendens cannot ordinarily be cancelled for as long as the action is pending and
unresolved, the proper court has the authority to determine whether to cancel it under peculiar
circumstances, e.g., where the evidence so far presented by the plaintiff does not bear out the main
allegations in the complaint.
Rule 14
SUMMONS
Section 1. Clerk to issue summons. Upon the filing of the complaint and the payment of the requisite
legal fees, the clerk of court shall forthwith issue the corresponding summons to the defendants. (1a)
Ano ang plural ng summons? Meron bang plural yan? Summonses? I think it is still summons,
whether singular or plural. The verb is, of course, to summon tawagin mo. Summons is a noun, a legal
term. But actually, there is a similarity in meaning because you are being called to answer in a case.
Summons in civil cases is the counterpart of warrant of arrest in criminal cases. Under the Rules on
Criminal Procedure, when an information is filed in court, the judge will issue a warrant of arrest. In civil
cases, when a complaint is filed in court, the court will issue what is known as a summons under Section
1.
Section 2 states the contents of a summons:
Sec. 2. Contents. The summons shall be directed to the defendant, signed by the clerk of court under
seal, and contain: (a) the name of the court and the names of the parties to the action; (b) a direction
that the defendant answer within the time fixed by these Rules; (c) a notice that unless the defendant
so answers, plaintiff will take judgment by default and may be granted the relief applied for.
A copy of the complaint and order for appointment of guardian ad litem, if any, shall be attached to
the original and each copy of the summons. (3a)
Q: Define Summons.
A: SUMMONS it is a writ or process issued and served upon a defendant in a civil action for the purpose
of securing his appearance therein. (Ballentines Law Dict., 2nd Ed., p. 1250)
Q: What is the purpose of summons?
A: The service of summons enables the court to acquire jurisdiction over the person of the defendant.
(Echevarria vs. Parsons Hardware, 51 Phil. 980)
Q: How does the court acquire jurisdiction over the person of the plaintiff?
A: Jurisdiction over the person of the plaintiff is acquired from the moment he files his complaint. Upon
filing his complaint in court, he is automatically within the jurisdiction of the court. (MRR Co. vs Atty.
Gen. 20 Phil. 523)
Q: What is the effect if a defendant is not served with summons?
A: The judgment is void. The court never acquired jurisdiction over his person. (Pagalaran vs. Bal- latan,
13 Phil. 135; De Castro vs. Cebu Portland Cement Co., 71 Phil. 479)
Q: If a complaint is amended and an additional defendant is included, is there a necessity of issuing new
summons on the additional defendant?
A: YES. When an additional defendant is included in the action, summons must be served upon him for
the purpose of enabling the court to acquire jurisdiction over his person. The case is commenced against
the additional defendant upon the amendment in the complaint (Fetalino vs. Sanz, 44 Phil. 691)
Q: Suppose a defendant, who has already been summoned, died, and there was substitution of party
(under Rule 3), his legal representative was substituted in his place, is there a necessity of issuing new
summons on the substituted defendant?
A: NO. The order of the court ordering him to be substituted is already sufficient. Anyway he is
only a continuation of the personality of the original defendant. Just serve the copy of the order, where
he is ordered to be substituted. (Fetalino vs. Sanz, 44 Phil. 691)
BAR QUESTION: If a defendant is served with summons and later on the complaint is amended by the
plaintiff, is there a necessity that another summons be issued and served based on the amended
complaint? Or is the summons of the original complaint sufficient?
ANS: It depends on whether the amendment was made before or after defendants appearance in the
action:
Q: What do you mean by the phrase appearance in the action?
A: The best example is, whether the defendant files an answer to the complaint. Appearance in civil
cases does not mean that you are there and show your face to the judge. That is not the meaning of the
word appearance. Appearance means filing something in court which would show that the court has
jurisdiction over your person, like the filing of an answer. When the defendant filed an answer through
his lawyer, there is now appearance of the defendant.
a.) If the defendant has not filed answer to the original complaint there must be another summons
issued on the amended complaint. A new summons must be served all over again based on the amended
complaint. (Atkins, Kroll & Co. vs. Domingo, 44 Phil. 680)
b.) If the defendant has already filed an answer to the original complaint or he has already appeared in
the action, and after that the complaint is amended, there is no need of issuing new summons on the
amended complaint. (Ibid; Ong Peng vs. Custodio, L-14911, March 1961)
Q: Connecting the question with Rule 11 (on periods to file pleadings), suppose the defendant was
served with summons on the original complaint and before he could answer, there is now an amended
complaint, so there will be new summons on the amended complaint, what is the period to file an
answer?
A: The period to file an answer is 15 days all over again. there will be another period of 15 days to file an
answer to the amended complaint upon receipt of the amended complaint and the summons.
Q: Suppose the defendant has already filed an answer to the original complaint and after that there is an
amended complaint, what must the plaintiff do?
A: This time, there no need of summons. All that the plaintiff has to do is to furnish the defendant a copy
of the amended complaint together with the motion to admit it. Just serve the defendant a copy of the
amended complaint with a copy of the order admitting the filing of the amended complaint.
Q: Suppose that the court allowed the admission of the amended complaint, what is the period for the
defendant to file an answer to the amended complaint?
A: Going back to Rule 11, ten (10) days only. Ten (10) days, not from the receipt of the amended
complaint, but from receipt of the order allowing the amended complaint.
Appearance in an action is best manifested by the filing of an answer by the defendant. However,
according to the SC in the case of:
PAN ASIATIC TRAVEL CORP. vs. COURT OF APPEALS
164 SCRA 623
HELD: Appearance in the action is not only limited to the filing of an answer. When defendant files a
motion for extension of time to file his answer, that is already an appearance in the action. If a defendant
files a motion for Bill Of Particulars under Rule 12, that is already considered as an appearance in the
action.
SEC. 3 By whom served the summons may be served by the sheriff, his deputy, or other proper court
officers, or for justifiable reasons by any suitable person authorized by the court issuing the summons
(5a)
Q: Who can serve summons? Who are authorized by law to serve summons? A: Under Section 3, the
following:
1.) Sheriff;
2.) Deputy sheriff;
3.) Other proper court officer (court employees);
4.) For justifiable reasons, by any suitable person authorized by the court
NOTE: Policemen cannot validly serve summons unless authorized by court. (Sequito vs. Letrondo, L-
11580, July 20, 1959)
EXAMPLE: I will sue somebody who is living on top of Mt. Apo. I dont think the sheriff would like to go
there. But there are people who go there, like the natives. So Barangay Captain Acelar will be asked to be
deputized by the court to serve and he will be taught how to do it. So, he will become a sort of special
court officer for that purpose. But there must be a court order.
Before, there was a complaint which had to be served in Brgy. Tapak, Paquibato. Have you heard of that
place? It is still part of Davao City but I dont think you have been there. To go there you have to pass to
Panabo first. You have to get out of Davao City and then re-enter Davao City and then up to certain point
land, maglakad na ng isang araw before you can reach that place. Mag-horse back ka. Makita mo doon
mga natives. I dont think a sheriff would bother to go there. Baka mawala pa siya. He has not even
heard of the place. So, he can recommend a barangay captain or a policeman. These are allowed during
abnormal situations.
SEQUITO vs. LETRONDO
L-11580, July 20, 1959
FACTS: The summons was served by a policeman in a remote area and the question that was asked is
whether he is authorized.
HELD: NO, he is not authorized. The policeman is not a sheriff, he is not a deputy sheriff, and he is not a
proper court officer. He belongs to the PNP. And PNP is under the executive branch and not a part of the
judiciary.
However, there is no problem if he is the only one in that area whom we can depend on. All you have to
do is get a court order deputizing the police officer. So he will fall under no. 3. But without such court
order, he is not among those mentioned in Section 3.
Q: When summons is served, lets say, by the sheriff, must it be on a weekday and not on Saturday,
Sunday, or holiday, and must be within office hours? Can you challenge the validity of the service of
summons on the ground that it was not effected on a working day or during office hours?
A: In the case of
LAUS vs. COURT OF APPEALS
214 SCRA 688
HELD: The service of summon is valid because the service of summons is MINISTERIAL. Service of
summons may be made at night as well as during the day, or even on a Sunday or holiday because of its
ministerial character.
SEC. 4 Return When the service has been completed, the server shall, within five (5) days therefrom,
serve a copy of the return, personally or by registered mail, to the plaintiffs counsel and shall return
the summons to the clerk who issued it, accompanied by proof of service (6a)
The person who served the summons is the sheriff or his deputy. After that, it is the duty of the sheriff to
inform the court what has happened was he able to serve the copy of the complaint, together with the
summons to the defendant? If so, on what day? The duty of the sheriff after service of summons is that
he should make a report to the court as to what happened. That is what is called a sheriff's return.
EXAMPLE: Respectfully returned to the court with the information that defendant was personally
served with summons on this date and on this time as shown by his signature on the face of this original
copy. Or, Respectfully returned to the court with the information that defendant cannot be served
with summons because the defendant had already moved from the address indicated in the complaint
and therefore he cannot be located.
There must be a report because that will determine when the period to file an answer will start to run.
Or, if he failed to serve it for one reason or another, like for example, the defendant is no longer residing
in that place and you cannot find him, at least you must also return the summons to the court and make
a report that you cannot serve the summon. That is what you call the Sheriffs Return under Section 4,
Rule 14.
He must also furnish a copy of his report to the plaintiffs lawyer so that the plaintiffs lawyer can
determine what is the deadline for the defendant to file his answer.
SEC. 5 Issuance of Alias Summons if a summons is returned without being served on any or all of the
defendants, the server shall also serve a copy of the return on the plaintiffs counsel, stating the
reasons for the failure of service, within five (5) days therefrom, in such case, or if the summons has
been lost, the clerk, on demand of the plaintiff, may issue an alias summons (4a)
Now Section 5 contains this new requirement that the serving officer shall also serve a copy of the return
on the plaintiff's counsel stating the reasons for the failure of service within 5 days therefrom. Because
most sheriff, they did not tell the lawyer what happened eh! They should tell the lawyer what happened
so that if the summons was not served, the lawyer can file a motion for issuance of an alias summons,
like he cannot serve the summons because the defendant is not already in the address given, lumipat na.
That becomes the problem of the plaintiff and his lawyer. So that is now the requirement.
Q: What happens if the summons is returned unserved on any or all of the defendants?
A: The server shall serve also a copy of the return on the plaintiffs counsel, stating the reasons for the
failure of service
Q: For what purpose?
A: So that the plaintiffs lawyer will have to look now for the defendant and once he finds the correct
address, he has to inform the court of the new address so that a new summons can be issued on the new
address. The second summons is what lawyers call an ALIAS SUMMONS if the first summons was lost,
upon being informed, the clerk of court will issue another summons known as an ALIAS SUMMONS.
MODES OF SERVICE OF SUMMONS TO INDIVIDUAL DEFENDANTS:
Now lets go to the general modes on service of summons. This is a very important portion of Rule
14.
Q: How is summons served?
A: There are three (3) modes of service of summons (on individual defendant):
1.) Section 6 Service in person on defendant; 2.) Section 7 Substituted service (Section 7); and
3.) Sections 14, 15, 16 Service by publication;
First Mode: SERVICE IN PERSON (Section 6)
SEC. 6. Service in person on defendant Whenever practicable, the summons shall be served by
handing a copy thereof to the defendant in person, or if he refuses to receive and sign for it, by
tendering it to him (7a)
Q: How is service in person done?
A: It is effected by (a) handing a copy thereof to the defendant in person, or (b) if he refuses to receive
and sign for it, by tendering it to him. The summons must be served in person. This is literal, ha? No
substitute to the defendant mismo. Hindi puwedeng ibigay sa asawa, sa anak or sa kasambahay.
Q: Do you have to serve it to the defendant in his office or in his house?
A: NO. You can serve it wherever he may be found. And the law does not care where to do it.
EXAMPLE: I am the sheriff. Im looking for you to serve summons in a case and while walking along New
York Street, I saw you inside a restaurant. I entered the restaurant and served the summons there. Then
you say, Not here. Give it to me at home. Under the law, service is in person. There is no need for me
to go to your house. I can serve the summons wherever I find you.
Q: Now suppose, normally, you give the copy and you ask him to sign the original summons but he
refuses, what will I do?
A: I will write here in my return that I saw you, I offered but you refused. That is enough. Under the law,
you are served. The court has already acquired jurisdiction over your person.
The common impression kasi of laymen na pag hindi tanggapin, walang sabit. No, that is of course false.
You cannot defeat a court process by refusing to accept it. May mga sheriff pa nga na bastos: Dili ka
magtanggap? Basta ilagay ko ito sa tabi mo, i-report ko sa court na binigyan kita, ayaw mong tanggapin,
ayaw mong mag-pirma. And under the law, from that moment, you are bound. So, matakot man yang
defendant ba. Kunin niya yun tapos mag-consult siya ng lawyer. Then his lawyer will tell him na he is
bound despite his refusal to accept it.
Now, under the 1964 rules, this mode of service of summons was called PERSONAL SERVICE. Under the
1997 Rules, the personal service was changed to SERVICE IN PERSON. They just changed the words so Q: Suppose, the sheriff goes to the defendants house and says, Is this the residence of Mr. Juan dela
that it cannot be confused with Rule 13 because in Rule 13, there is also personal service. But that is not
service of summons but service of pleadings, motions, etc. Para huwag magkagulo, the personal service
was changed to service in person. Because service under Rule 13 is also personal service to the secretary
but here in Rule 14, it is literal. That is to avoid confusion. Dapat pinalitan din iyong Section 7
substituted service because in Rule 13, there is also substituted service. Why did they not change to
avoid confusion? Maybe they overlooked it.
Second Mode: SUBSTITUTED SERVICE (Section 7) What is substituted service?
SEC. 7 Substituted Service If, for justifiable causes, the defendant cannot be served within reasonable
time as provided in the preceding section, service may be effected (a) by leaving copies of the
summons at the defendants residence with some person of suitable age and discretion then residing
therein, or (b) by leaving the copies at defendants office or regular place of business with some
competent person in charge thereof (8a)
If the defendant cannot be served personally or in person under Section 6, the sheriff may resort to what
is known as SUBSTITUTED SERVICE OF SUMMONS under Section 7. This time, you can course it to
somebody else. The place is important and the person to whom you will serve it.
On service in person under Section 6, it is immaterial where you find the defendant. Basta ang
importante, kung saan mo siya nahuli. For example, you want to catch him on a Sunday because he is in
the cockpit, eh di i-serve sa cockpit. Basta importante, in person! Hindi ibig sabihin pupunta ka sa bahay
lang. No, dahil mahirap mahuli minsan eh.
But if you want resort to substituted service under Section 7), you better have to do it:
1.) at the defendants residence with some person of suitable age and discretion there residing therein.
This time, the place is important; or
2.) in his office or regular place of business with some competent person in charge thereof, like the
manager or the foreman.
So, if I cannot serve you the summons personally, I cannot find you, balik-balik ako hindi kita maabutan.
Palagi kang wala sa bahay niyo. But everytime I go there, your wife or husband is around, I can leave the
summons with your wife or husband, or the housemaid or houseboy, provided they are of suitable age
and discretion. Puwede sa anak? Yes, again basta of suitable age and discretion. Ang sheriff kailangang
tantiyahin din niya. Ito bang anak may buot na ni or wala pa?
SEQUIOTO vs. LETRONDO
L-11580, July 20, 1959
FACTS: Summons was served by the sheriff on the defendants daughter, a 12-year old and a grade four
pupil. The child threw the summons away. The father did not receive the summons, and he was declared
in default.
HELD: The service of summons is void because defendants daughter, under the circumstances, is not a
person of suitable discretion.
Cruz? Yes. Is he around? No, he left for work, but he will be back 5 hours from now. The sheriff
left the summons to the wife, sufficient of age and discretion. In other words, the sheriff resorted to
substituted service of summons under Section 7. Is there a valid substituted service of summons? Can a
sheriff resort to Section 7 (substituted service) immediately?
A: NO. Section 7 cannot be applied unless you attempt Section 6 (Service in person). The sheriff has to try
several times to reach the defendant in person. Sheriff is not allowed to resort to substituted service
without attempting service in person several times.
The law is very clear if for the justifiable causes, the defendant cannot be served within a reasonable
time So, that is the condition.
Q: So what is the condition?
A: Substituted service of summons can only be applied by the sheriff if there is failure of personal service
within reasonable time for justifiable causes [under Rule 14, Section 7]. So is the wife says, come back
tomorrow, so you have to come back tomorrow and you cannot yet serve substituted service of
summons.
Q: But suppose, the sheriff has gone to your house 5 times, everytime he goes there you are not around,
is substituted service of summons allowed?
A: YES. I will now serve it on you (through your wife) and that is valid. The law prefers service in person
than substituted. Substituted service according to SC, should only be resorted to if there is failure of
personal service within reasonable time for justifiable causes. (Mapa vs. CA, 214 SCRA 417)
MAPA vs. COURT OF APPEALS
214 SCRA 417
HELD: If a sheriff resorts to substituted service under Section 7 and when he makes his return, his return
must specify that I have tried many times to resort to personal service, but he cannot do it. He must
outline his efforts to apply Section 6, otherwise the return is defective.
Impossibility of prompt service should be shown by stating the efforts failed. This statement should be
made in the proof of service. This is necessary because substituted service is in derogation of the usual
method of service.
Now, of course, if I tried several times to serve you personally but I failed, and then I make a return but I
did not explain, there is still a valid service but you must explain in court. There is a presumption that
you did not exert efforts. To make it a complete return, you must outline several attempts to make
personal service.
[Substituted service of summons may still be considered as VALID even if the sheriff failed to state in his
return of the facts of the impossibility of prompt service if the server subsequently explains in court, by
giving testimony, the facts why he resorted to a substituted service. The plaintiff should not be made to
suffer for the lapses committed by an officer of the court]
TOYOTA CUBAO INC. vs. COURT OF APPEALS
October 23, 1997
HELD: A law prescribing the manner in which the service of summons should be effected is jurisdictional
in character and its proper observance is what dictates the courts ability to take cognizance of the
litigation before it. Compliance therewith must appear affirmatively in the return. It must so be as
substitute service is a mode that departs or deviates from the standard rule. Substitute service must be
used only in the way prescribed, and under circumstances authorized by law.
DISTINCTIONS BETWEEN SERVICE OF PLEADINGS [RULE 13] AND SERVICE OF SUMMONS [RULE 14]
Now, do not confuse substituted service of summons under Rule 14 with substituted service of
pleadings, orders and other papers under Rule 13.
Let us read Section 6, Rule 13:
Rule 13, SEC. 6. Personal service. - Service of the papers may be made by delivering personally a copy
to the party or his counsel, or by leaving it in his office with his clerk or with a person having charge
thereof. If no person is found in his office, or his office is not known, or he has no office, then by
leaving the copy, between the hours of eight in the morning and six in the evening, at the party's or
counsel's residence, if known, with a person of sufficient age and discretion then residing therein. (4a)
FIRST DISTINCTION: In Rule 13, that is known as personal service. In Rule 14, that is known as substituted
service. Service of summons is governed by a different rule (Rule 14) from service of pleadings,
judgments and other papers (Rule 13).
Now, what is substituted service in Rule 13? Let us go back to Section 8, Rule 13.
Rule 13, SEC. 8. Substituted service. - If service of pleadings, motions, notices, resolutions, orders and
other papers cannot be made under the two preceding sections, the office and place of residence of
the party or his counsel being unknown, service may be made by delivering the copy to the clerk of
court, with proof of failure of both personal service and service by mail. The service is complete at the
time of such delivery. (6a)
SECOND DISTINCTION: In Rule 14, substituted service means if you cannot serve the defendant in person,
then you serve the summons at the residence of the defendant with some person of suitable age and
discretion residing therein or by leaving copies at the defendants office or regular place of business with
some competent person in charge thereof. That is substituted service of summons under Rule 14.
But in Rule 13, substituted service of other pleadings, judgments, orders, etc., if personal service or
service by registered mail have failed, then serve it on the clerk of court. And that is known as
substituted service.
In Rule 14, there is NO such thing as service of summons through registered mail. So how can a summons
be served to a defendant in Manila? The Davao sheriff will mail the summons to the Manila sheriff who
will serve the summons to the defendant in Manila.
So, iba ang meaning. That is why I am emphasizing this to avoid confusion. Nakakalito, eh because of the
similarity of terms. Substituted service of summons in Rule 14 is different from substituted service of
pleadings, judgments and other papers in Rule 13.
Third Mode: SERVICE OF SUMMONS BY PUBLICATION : (Sections 14, 15, and 16)
SERVICE BY PUBLICATION UNDER SECTION 14
(Suing an Unknown Defendant)
Going back to Section 9, Rule 13:
Rule 13, SEC. 9. Service of judgments, final orders or resolutions. - Judgments, final orders or
resolutions shall be served either personally or by registered mail. When a party summoned by
publication has failed to appear in the action, judgments, final orders or resolutions against him shall
be served upon him also by publication at the expense of the prevailing party. (7a)
Under Rule 13, when a party summoned by publication has failed to appear in the action, meaning the
defendant failed to file an answer, the decision can also be served upon him by publication.
Q: What are the instances where a defendant may be served with summons by publication? A: Sections
14, 15 & 16 of Rule 14.
And the first one is service upon defendant whose identity or whereabouts are unknown. That is what
you call suing an unknown defendant. Or, the defendant is known pero hindi na makita. He may be in
Davao, Cebu or in Manila. Bali-balita lang. But definitely, he is in the Philippines. That is the important
condition. So, let us read Section 14:
Sec. 14. Service upon defendant whose identity or whereabouts are unknown. In any action where the
defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown
and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by
publication in a newspaper of general circulation and in such places and for such time as the court may
order. (16a)
Under this provision, service of summons is allowed:
1.) where the defendant is designated as unknown owner. Well, we have discussed that in Rule 3 when
you file a case against an unknown defendant is allowed. But of course, he is unknown, you have no idea
where he is staying; and
2.) where the defendant is known but his whereabouts are unknown and cannot be ascertained by
diligent inquiry.
EXAMPLE: If you want to file a case against somebody, and you can no longer find him. You do not know
where he moved. Maybe you have been receiving reports that he is in Manila or Cebu but the exact
address is unknown and you want to sue him.
Q: In the above case, is the plaintiff authorized to have the summons effected by publication?
A: Take note that to avail of summons by publication, there must be leave of court. You must file a
motion, under Rule 14, for permission to have defendant summoned by publication and the court will
issue an order allowing the defendant be served with summons by publication where the complaint and
the summons be ordered published. The service may be effected upon him by publication in a
newspaper of general circulation and in such places and for such time as the court may order.
Of general circulation and in such places and for such time as the court may order. Hindi naman
kailangan sa Daily Inquirer. Puwede man sa local paper, ba. For example, sabihin mo: We learned
that he is in Cebu pero saan sa Cebu, we do not know. The court may order the publication to be
published in a local newspaper of general circulation in Cebu. Of course, kasama diyan ang complaint.
How many times? Bahala na ang court. Say, tatlong issues. So, every Monday for three weeks. Basta the
presumption is mabasa yan ng defendant or at least somebody who must have read it will inform the
defendant. So, the law requires that you must file a motion and ask the court to allow service of
summons by publication.
Now, one thing that you have to remember is, the whereabouts of the defendant is unknown, but he is
in the Philippines. That is the condition. If he is in the United States, this will not apply. What is
contemplated by Section 14 is that the address of the defendant is unknown but it is positive that he is in
the Philippines.
ILLUSTRATION: Suppose your friend borrowed money from you. Never paid you and just disappeared
and the last time you heard, he is residing somewhere in General Santos City. So you wanted to sue by
having the summons under Section 14 because his exact whereabouts is unknown. So you file a motion
for leave to serve summons by publication under this rule. The question is, should the court allow it? Of
course the tendency is to say yes because his whereabouts is unknown and cannot be ascertained by
diligent inquiry.
Q: Now what kind of an action is an action to collect an unpaid loan where the defendant cannot be
located anymore?
A: That is an action in personam.
Q: If the defendant is in the Philippines and his whereabouts is unknown and the action is in
personam, can the plaintiff resort to service summons by publication?
A: In the cases of
FONTANILLA vs. DOMINGUEZ
73 Phil. 579
HELD: In this case, SC said service of summons is possible even if the action is in personam because
service by publication when the whereabouts of the defendant is unknown is allowed whether the case
is in personam or in rem. It is proper in all actions without distinction provided, the defendant is residing
in the Philippines but his identity is unknown or his address cannot be ascertained.
So if we will follow this case what will be our answer? YES, because it is allowed in any action without
distinction.
PANTALEON vs. ASUNCION
105 Phil 755
HELD: NO, because service of summons by publication under this section is allowed only where the
action is in rem or quasi in rem, not in personam. In order to bind the defendant there must be service of
summons on him. Personal, he must know. But in actions in rem quasi in rem, pwede.
It is a well settled rule in constitutional law that an action in personam, personal service of summons
within the Philippines (forum) is essential in the acquisition of jurisdiction over the person of the
defendant who does not voluntarily submit himself to the authority of the court.
In other words, summons by publication is not consistent with the due process clause of the bill of rights
because it confers court jurisdiction over said defendant who is not in the Philippines. So service of
summons by publication of the defendant who cannot be found in the Philippines will be violative of the
due process clause that he must be informed personally. He must be given a chance under due process
to be deprived of his property with due process of law. So if we will follow the ruling in this case, the
answer would be NO because the action is in personam (collection case). So nag-conflict na.
CITIZENS INSURANCE SURETY vs. MELENCIO-HERRERA
38 SCRA 369
ISSUE: What is the remedy if you are a creditor and you want to sue your debtor and serve summons by
publication but you cannot do it because your case is in personam?
HELD: (Reiterates Pantaleon vs. Asuncion) You convert your case from in personam to in rem or quasi in
rem. How? If you cannot find the defendant but he has properties left, you can have that properties
attached under Rule 57, Section 1 so that you can acquire a lien over said properties. Now that it is
attached, civil action is converted from in personam to quasi in rem because you already acquire a lien
over the property so it is quasi in rem. You can now ask the court to effect summons by publication..
The proper recourse for a creditor in the same situation as petitioner is to locate properties, real or
personal, of the resident defendant debtor with unknown address and cause them to be attached under
Rule 57, Sec. l(f), in which case, the enactment converts the action into a proceeding in rem or quasi in
rem and the summons by publication may then accordingly be deemed valid and effective. So kahit
isang bisekleta para lang ma-convert ang action.
MAGDALENA ESTATE INC. vs. NIETO
125 SCRA 758
SC traced the history of this questionwe reiterate CITIZEN and PANTALEON, the action must be in rem
or quasi in rem. [That is why just read this case because it is a complete summary of what the SC said
earlier. And of course after it, from time to time, this issue re-surfaces.]
CONSOLIDATED PLYWOOD vs. BREVA
166 SCRA 589 (Davao case)
HELD: Judge Breva fell into the error of allowing service of summons by publication by allowing it in an
ordinary collection case. SC said you cannot do that, the action must be in rem or quasi in rem. Therefore
the default judgment was rendered null and void because of lack of proper service of summons to the
defendant.
Q: What is the important doctrine based from the foregoing cases?
A: The SC said that Section 14 can only be availed of when the action is in rem or quasi in rem. If the
action is in personam, like of collection of a sum of money, service of summons by publication to the
defendant is improper. The action should be action in rem or quasi in rem.
defendant is designated as an unknown You look at the old rules. Can you find the phrase in any
action? You look and compare it. Let us look the 1964 Rules:
1964 Rules, Rule 14, SEC. 16 Whenever the defendant is designated as an unknown owner, or the like,
or whenever the address of a defendant is unknown and cannot be ascertained by diligent inquiry,
service may, by leave of court be effected upon him by publication in a newspaper of general circulation
and in such places and for such time as the court may order.
In other words, there is a case and the defendant is unknown, but what kind of cases? It is not stated
there (Section 16, old rules). Kaya nga, it was clarified in the cases of MAGDALENA ESTATE, PANTALEON,
etc. that the action must be in rem or quasi in rem.
But look at the new rule on Section 14 in any action. What does that mean na puwede na ang
action in personam? Is the intention of this clause to abrogate the previous ruling in PANTALEON,
MAGDALENA ESTATE, CONSOLIDATE PLYWOOD? If that is the intention, we are going back to the original
ruling laid down in the earlier case of FONTANILLA vs. DOMINGUEZ which preceded all the other cases.
In the FONTANILLA case, the SC said that service of summons by publication is proper in all actions
without distinctions provided the defendant is residing in the Philippines but he is unknown or his
address cannot be ascertained. But the FONTANILLA ruling was abrogated by PANTALEON vs. ASUNCION,
CITIZENS SURETY, MAGDALENA ESTATE cases. That is why to me, this is a very controversial issue
whether Section 14 of Rule 14 applies only to cases in rem or quasi in rem in these decisions or it is now
obsolete, or it is now applicable whether in personam or in rem or quasi in rem.
Actually, I asked that question in remedial law review. I dont care how they answered it. I just want to
find out if they can detect the amendment ba. Pagsabi nila it is only applicable in rem, OK, tama ka.
Pagsinabi nila in any action, OK, tama ka rin. Some even said, based on decided cases but there is an
amendment in the law, in other words nakita niya. But 70% did not say the issue. Kung ano-anu ang
sinagot! 30% saw the point. Some answered based on MAGDALENA, some on FONTANILLA by saying
with the amendment, the ruling in MAGDALENA is wala na yan. To my mind, either way, I will take it as a
completely correct answer because it is not pointed out what is the really correct answer.

Q: Therefore if your action is in personam, like collection of an unpaid obligation, and you cannot find
the defendant and you want to avail of Section 14, what is you remedy?
A: As explained by the SC, you convert the action to in rem or quasi in rem. How? By looking for any
property of the said defendant and have it attached under Rule 57 [i], the last ground for attachment.
Now, your action is converted to quasi in rem. You can now file a motion for service of summons by
publication. (Pantaleon vs. Asuncion, 105 Phil. 765; Citizens Surety & Insurance Co., vs. Melencio-
Herrera, 38 SCRA 369; Magdalena Estate, Inc. vs. Nieto, 125 SCRA 758; Plywood Industries vs Breva, 166
SCRA 589)
In all these cases, the SC ruled that to validly serve summons by publication on a defendant who is in the
Philippines but whose name is not known or whereabouts is not known, the action must be in rem or
quasi in rem.
But a minor insignificant amendment to Section 14 has cast doubt on the validity of those doctrine.
Why? You read the opening of Section 14: In any action you notice, in any action where the
So I was wondering what is the meaning of this in any action whether there is an intent to return to
the old rule and cancel the rulings in MAGDALENA. To me, this is a question mark. Even Justice Jose
Feria, in his note, cannot answer it. Sabi niya, in any action but there is a case, decided in
MAGDALENA... He is the author, one of the authors, but he cannot explain the intention. Sabi niya: the
SC earlier ruled I asked, but why did you insert that? Kaya to my mind, it is still a question mark.
Maybe it is just an inadvertent amendment without any intention to abrogate the ruling in MAGDALENA,
PANTALEON, etc. But maybe that is the intention.
So, let us wait for the proper case at the right time to find what is the intention of the phrase in any
action.
BALTAZAR vs. COURT OF APPEALS
December 8, 1988
FACTS: Good Earth Enterprises, a domestic corporation was sued. Sheriff went to the address of the
corporation but the corporation was no longer there. It moved to another place. Subsequently, the
sheriff returned the summons to the court. Plaintiff Baltazar filed a motion for leave to serve the
summons and a copy of the complaint upon defendant Good Earth by publication
ISSUE: Can there be a proper service by publication in this case?
HELD: NO. Service by Publication (Section 14) will not apply because there was no diligent inquiry made
by the sheriff.
Under Section 14, therefore, petitioner must show that the address of Good Earth was unknown and
that such address could not be ascertained by diligent inquiry. More importantly, We do not believe that
the acts of the sheriff satisfied the standard of diligent inquiry established by Section 14 of Rule 14. The
sheriff should have known what every law school student knows, that Good Earth being a domestic
corporation must have been registered with the Securities and Exchange Commission and that the SEC
records would, therefore, reveal not just the correct address of the corporate headquarters of Good
Earth but also the addresses of its directors and other officers.
SERVICE BY PUBLICATION UNDER SECTION 15
(Extraterritorial Service)
When the defendant is not residing in the Philippines and he is not physically around he must be served
with summons even if he is abroad and that is what is called extraterritorial service. We go back to the
basic question:
Q: Can you sue in the Philippines a defendant who is not residing in the Philippines and who is not
around physically?
A: NO, you cannot because there is no way for the court to acquire jurisdiction over his person EXCEPT
when action is in rem or quasi in rem, like when the action is the personal status of the plaintiff who is in
the Philippines or the properties of the defendant are in the Philippines. And the venue is where the
plaintiff resides or where the property is situated. That is found in Section 3, Rule 4:
Rule 4, SEC. 3. Venue of actions against nonresidents If any of the defendants do not reside and is
not found in the Philippines, and the action affects the personal status of the plaintiff or any property
of said defendant located in the Philippines, the action may be commenced and tried in the court of
the place where the plaintiff resides, or where the property or any portion thereof is situated or found.
Q: If the defendant who is not around and is not residing in the Philippines can be sued under Rule 4,
how will you serve summons?
A: This is answered by Section 15:
Sec. 15. Extraterritorial service. When the defendant does not reside and is not found in the
Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of
which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual
or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant
from any interest therein, or the property of the defendant has been attached within the Philippines,
service may, by leave of court, be effected out of the Philippines by personal service as under section
6; or by publication in a newspaper of general circulation in such places and for such time as the court
may order, in which case a copy of the summons and order of the court shall be sent by registered mail
to the last known address of the defendant, or in any other manner the court may deem sufficient.
Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60)
days after notice, within which the defendant must answer. (17a)
Q: In what instances can you sue in the Philippine courts a defendant who does not reside and is not
found in the Philippines? The other way of asking is, when may a defendant be sued and served with
summons by extraterritorial service?
A: Let us break up Section 15. There are four (4) instances when a defendant who does not reside and is
not found in the Philippines may be sued and summons served by extraterritorial service, provided the
case is in rem or quasi in rem:
1.) the action affects the personal status of the plaintiff;
EXAMPLE: A child left behind files a case against his father for compulsory recognition or
acknowledgement at least to improve his status because the res is the status of the plaintiff.
2.) when the action relates to or the subject of which is, property within the Philippines, in which the
defendant has or claims a lien or interest, actual or contingent;
3.) when the action relates to or the subject of which is, property within the Philippines in which the
relief demanded consists, wholly or in part, in excluding the defendant from any interest therein; or
4.) When the property of the defendant has been attached within the Philippines that is the
MAGDALENA case.
NOTE: The action must be either action in rem or quasi in rem. So an action in personam can never be
filed against a non-resident defendant. That is the similarity between Section 14 and 15 on the
assumption of the ruling in the MAGDALENA is still intact. Even if the defendant is not in the Philippines,
the action must be in rem or quasi in rem. That is their similarity the action must be classified as in rem
or quasi in rem. That is if we follow the MAGDALENA ESTATE ruling.
Q: What is the difference between Section 14 and Section 15?
A: The difference between Section 14 and 15 is that in Section 14, the defendant is in the country but his
exact whereabouts is unknown, whereas in Section 15, he is really out of the country and is no longer
residing here.
MODES OF EXTRATERRITORIAL SERVICE
Q: How do you serve summons for such a defendant in Sect. 15? A: Service may, with leave of court, be
effected in the Philippines:
a.) By personal service under Section 6;
b.) by publication in a newspaper of general circulation in such places and for such time as the court may
order, in which case a copy of the summons and order of the court shall be sent by registered mail to the
last known address of the defendant; or
c.) In any other manner the court may deem sufficient. (Carriaga vs. Malaya, 143 SCRA 441)
a.) modes of extraterritorial service; PERSONAL SERVICE
c.f. Section 6 Rule 14 Sheriff, deputy sheriff, officer of the court, other persons authorized by
court with valid order. The court will order that he will be served with summons just like in Section 6.
Paano? We will ask the court to allow summons to be served outside the Philippines by personal service
by sending the sheriff to America. Bigyan siya ng visa, round trip ticket with pocket money. That is
personal service. But that is very expensive. That could be done pero impractical.
Or, I would like to sue a defendant who is there. I have a friend who is a balikbayan and he knows where
that defendant is residing. So I will ask the court that the defendant who is residing in California be
served with summons personally through this person. As if he is deputized or he can send the summons
to the Philippine embassy with a request for an employee of the embassy to serve the summons
personally.
b.) modes of extraterritorial service; BY PUBLICATION IN A NEWSPAPER OF GENERAL CIRCULATION IN
SUCH PLACES AND FOR SUCH TIME AS THE COURT MAY ORDER, IN WHICH CASE A COPY OF THE
SUMMONS AND ORDER OF THE COURT SHALL BE SENT BY REGISTERED MAIL TO THE LAST KNOWN
ADDRESS OF THE DEFENDANT
The second manner is by publication which is similar to Section 14. The court will order the summons
and complaint to be published in a newspaper of general circulation in such places and for such time as
the court may order. In which case a copy of the summons and order of the court shall be sent by
registered mail to the last known address of the defendant.
So, aside from publication, another copy will be sent by registered mail to his last known address. So,
meron ng publication, meron pang registered mailing of copy of the summons.
SAHAGUN vs. COURT OF APPEALS
198 SCRA 44
FACTS: Defendant is residing permanently in LA, this is an action in rem. By leave of court, summons was
served through publication by ordering to be published for 3 weeks in the Philippine Daily Inquirer.
Another copy will be sent to his last address. Here defendant questioned the publication. According to
him, publication should be in a newspaper in LA, not the Philippines. How can I be expected to read it
when it is published in the Philippines, nobody will bring it to my attention. But if it is published here, the
probability that I read it is stronger or my neighbor will bring it to my attention.
ISSUE #1: Is the contention of the defendant correct?
HELD: NO, he is wrong because nothing in the law requires the publication to be in a foreign newspaper.
What is says is a newspaper of general circulation in such places and for such time as the court may
order. Well, if the court will order that it should be published in a newspaper in LA, puwede rin. If it
orders that it should be in a local newspaper, puwede rin because the law does not say only such
places.
ISSUE #2: What would happen if we will follow the argument of the defendant which is wrong?
HELD: Another reason why the defendant is wrong is, if we will require courts to order the publication in
a foreign newspaper, then we will require the court to have a list of all the newspaper in LA and our
courts will be required to know the rules and rates of publication in LA and suppose the same thing
happens to a defendant in San Francisco, the courts are required to have a list, rules and rates of
publication in said place. And you can imagine if we have to do that in every city in every country in the
world. Naloko na. Imagine the trouble? It is requiring the court too much.
In fine, while there is no prohibition against availing of a foreign newspaper in extraterritorial service of
summons, neither should such publication in a local newspaper of general circulation be altogether
interdicted since, after all, the rule specifically authorizes the same to be made in such places and for
such time as the court concerned may order. If the trial court should be required to resort to publication
in a foreign newspaper it must have at hand not only the name and availability of such newspaper or
periodical. we can very well anticipate the plethora of problems that would arise if the same question on
nonresident defendants is replicated in the other countries of the world.
ISSUE #3: Is extraterritorial service of summons under Section 15 a mode of acquiring jurisdiction over
the person of the defendant?
HELD: NO, even if you will publish the summons a hundred times in a newspaper, still the Philippine
court will not acquire jurisdiction over the person of the defendant because it is simply out of the
country. Even if he is served with summons, our processes have no effect outside Philippine territory.
Actually, there is no need to acquire jurisdiction over the person of the defendant. What is important is
that res is in the country so we can enforce the judgment so that ownership may be transferred to
plaintiff. So, hindi kailangan ang jurisdiction over his person.
ISSUE #4: What is then the purpose of the requirement of publication? Why will I be required to publish
but just the same the court will not acquire jurisdiction over his person?
HELD: The purpose of publication is to comply with the requirement of due process. He should be
informed before he loses his property. Remember that he has properties in the Philippines which you
can want to take away form him. Remember the principle that if there is no way for the court to acquire
jurisdiction over the person of the defendant, the substitute is jurisdiction over the res, and the res is
property here. So, the judgment will not be useless and it can be enforced. But at least, the owner who is
abroad should be informed about it.
Service of summons on a nonresident defendant who is not found in the country is required, not for
purposes of physically acquiring jurisdiction over his person but simply in pursuance of the requirements
of fair play, so that he may be informed of the pendency of the action against him and the possibility that
property in the Philippines belonging to him or in which he has an interest may be subjected to a
judgment in favor of a resident, and that he may thereby be accorded an opportunity to defend in the
action, if he be so minded. The only relief that may be granted in such an action against such a
nonresident defendant, who does not choose to submit himself to the jurisdiction of the Philippine
court, is limited to the res.
That is why also in the case of SAHAGUN, the SC emphasized that if the summons is served by
publication, any judgment that the court can render is only good for the res. But if he submits now to the
jurisdiction of the court by filing an answer or by hiring a lawyer in the country, the court can now render
also a judgment in personam against him. But if he will not submit, ok lang because anyway, the res is
here. [bahala siya kung san siya masaya, ti suportahan ta!]
EXAMPLE: I will file a case against a non-resident defendant for recovery of a piece of land and damages.
Well, the claim for recovery of land is in rem. The claim for damages is in personam. He is sum- moned by
publication and based on the SAHAGUN ruling, the court can only render judgment insofar as the land is
concerned. It cannot render judgment on the damages because that is in personam. But if he files an
answer, he is now submitting his person to the jurisdiction of the court. There could now be a valid
judgment not only on the res but also on the damages. That was the explanation in the case of
SAHAGUN.
The relief is limited to the res so there could be no relief for damages unless he voluntarily submits
himself to the jurisdiction of the court.
c.) modes of extraterritorial service; IN ANY OTHER MANNER WHICH THE COURT MAY
DEEM SUFFICIENT
That is a very general term. A good example of that was what happened in the case of
CARRIAGA, JR. vs. MALAYA
143 SCRA 441
FACTS: Plaintiff files a case against his father in the US who has no intention of coming back in the
Philippines, for compulsory acknowledgement or recognition as an illegitimate child. And he is suing as
an indigent litigant. My golly! How can you ask him to resort to publication? He cannot even pay the
filing fee!
Suppose the court will say, Do you know the address of your father in the U.S.? Plaintiff, Yes, and I
even know the zip code. Judge, If we will mail the complaint and the summons by registered mail in
the post office, that will cost you P15 to P30. Kaya mo ba? Plaintiff, Siguro. I will raise that amount.
That is what happened in the case of MALAYA. They mailed the summons abroad and
the defendant received it. The defendant questioned.
ISSUE: Is there a valid service of summons under Section 15 through registered mail? HELD: YES. It would
fall under In any other manner the court may deem sufficient.
And that is what exactly happened in this case at bar where the court allowed the service of summons
abroad by a registered mail. Of course, the defendant received the letter but still challenged the
jurisdiction of the court, the manner of service of summons on the ground that it is not by personal
service or publication but by registered mail.
And since the defendant has received the summons, due process has been served and the case can now
proceed.
So in other words, it is very queer. The SC said extraterritorial service of summons by registered mail may
fall under the third mode of service under Section 17 (now, Section 15) In any other manner the court
may deem sufficient. There is no denial of due process to be informed because you were informed so
you cannot resort to technicality.
Q: Is there such a thing as service of summons by registered mail under Rule 14?
A: NONE. Only personal service or by publication. Unlike in Rule 13, when you serve and file a pleading
there is such a thing as service by registered mail.
Q: But how come in MALAYA case it is allowed?
A: Because it was considered as falling under the general phrase, In any other manner the court may
deem sufficient not because it is allowed but the court considered it as deemed covered under the
phrase.
Q: If the court allows service of summons abroad, then what is the period to file an answer?
A: The non-resident is given not less than 60 days to file an answer. It is given a longer period in
order to give him more time. This is related with Section 1 rule 11: The defendant shall file his answer to
the complaint within 15 days after service of summons, UNLESS a different period is fixed by the court.
And take note that under Section 17, there must be a motion to effect service of summons by
publication.
Sec. 17. Leave of court. Any application to the court under this Rule for leave to effect
service in any manner for which leave of court is necessary shall be made by motion in writing,
supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the
application. (19)
He must file a motion under Section 17 to effect service of summons by publication. The court will then
issue an order.
Now in 1996, there was a case decided by the SC on the extraterritorial service of summons. The case of
VALMONTE vs. COURT OF APPEALS
252 SCRA 92 [1996] J. Mendoza
FACTS: Here, the defendant is Lourdes Valmonte who is a foreign resident. She is residing abroad. Her
husband, Alfredo Valmonte, who is also her attorney, has a law office in the Philippines. He is Atty.
Valmonte yung mga Valmonte sa checkpoint cases in Constitutional law. He is an activist-lawyer. So, his
wife is residing abroad but he is here, because he is practicing in the Philippines.
Now, the sister of Mrs. Valmonte filed a case against her for partition of real property. You know that
you have to implead all the co-owners. The summons intended for Lourdes was served on her husband in
the latters law office because anyway, the husband is here.
ISSUE : Was there a valid service of summons on Lourdes Valmonte? HELD: There is NONE. There was no
valid service of summons.
REASON #1: First of all, the case at bar is an action for partition and accounting under Rule 69. So, it is an
action quasi in rem. Since this is an action quasi in rem and Lourdes Valmonte is a non-resident who is
not found in the Philippines, summons on her must be in accordance with Rule 14, Section 15. So you
must follow the modes of service under Section 15 because the action is quasi in rem.
In this case, the service of summons was not effected personally because it was served on the husband.
There was also no publication. The only possibility is the third one, in any other manner the court may
deem sufficient.
But the third mode applies only when you are serving the summons abroad. You cannot apply this when
you are serving the summons in the Philippines. So it does not also fall under the third mode. This mode
of service, like the first two, must be made outside of the Philippines such as through the Philippine
Embassy in the foreign country where the defendant resides.
REASON #2: Under Section 17, leave of court is required when serving summons by publication. There
must be a motion where the court will direct that the summons be served in that manner.
In this case, was there any motion filed here? Wala man ba. Was there any order of the court authorizing
it? Wala rin. So it does not comply with Sections 15 and 17.
REASON #3: The third most important reason is that, when the defendant is a non-resident and being
served abroad under Section 15, the law guarantees a minimum of sixty (60) days to answer the
complaint pursuant to Section 15.
And here, she was only given fifteen (15) days to file the answer. Therefore, there was an
erroneous computation of the period to answer.
Finally, and most importantly, because there was no order granting such leave, Lourdes Valmonte was
not given ample time to file her Answer which, according to the rules, shall be not less than sixty (60)
days after notice. It must be noted that the period to file an Answer in an action against a resident
defendant differs from the period given in an action filed against a nonresident defendant who is not
found in the Philippines. In the former, the period is fifteen (15) days from service of summons, while in
the latter, it is at least sixty (60) days from notice.
So those are the three main reasons cited by the SC on why there was improper service of
summons on Lourdes Valmonte under the rules.
SERVICE OF SUMMONS BY PUBLICATION UNDER SECTION 16
Sec. 16. Residents temporarily out of the Philippines. When any action is commenced against a
defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may,
by leave of court, be also effected out of the Philippines, as under the preceding section. (18a)
Q: What is the main difference between defendant in Section 15 and in Section 16?
A: In section 15, defendant is residing abroad and not even found in the Philippines, while in Section 16
defendant is residing in the Philippines but temporarily out of the Philippines.
EXAMPLE: Suppose Ms. Torres is in a world tour. She is considered a resident defendant temporarily out
of the Philippines. I can sue her but it will take months before she come back. The problem is, your action
will already prescribe.
Q: How will you serve summons to him?
A: According to Section 16, you can serve summons just like in Section 15 through personal service, by
publication, and in any other manner the court may deem sufficient. So one option is to wait for him to
come back and then serve the summons personally.
One of the leading case on this type of defendant was in the old case of:
MONTALBAN vs. MAXIMO
22 SCRA 1070
FACTS: In this case, the defendant is residing in the Philippines but on a world tour and he will be out for
so many months. Naga-tour ba! It was at that time when the summons was served in his residence. Well
of course, he is not there. But there was somebody left in the house. So, the sheriff said, Who are you?
And the person said that he is the one in charge here. When is your boss coming back? Mga four or
five months pa.
So, the sheriff served upon the person in charge the summons. So, the sheriff resorted to
substituted service under Section 7. And there was a default judgment. Pagbalik ng tao, defaulted na
siya, meron ng execution. So he questioned the service of summons because under Section 16, in
relation to Section 15, summons must be served with leave of court by personal, publication or in any
other manner.
ISSUE #1: Can substituted service of summons be applied to a defendant who is residing in the
Philippines but temporarily out?
HELD: YES. Substituted service is also applicable. Unlike Section 15 where the defendant has no
residence here, you have a residence man. The sheriff resorted to substituted service by leaving it to the
person in charge, a person of sufficient age and discretion because for justifiable reasons, substituted
service is also applicable even if the defendant is outside of the Philippines.
It is true that personal service of summons is preferred. But if the personal service cannot be effected
within a reasonable time, the sheriff can resort to substituted service. And in your case, the sheriff
cannot serve personally because you will be out of the country for the next four or five months. So the
sheriff has to resort to substituted service.
ISSUE #2: Second, sabi niya, Equity na lang. That is unfair, eh, because I really had no knowledge about
the case. I failed to answer because you see, during the five months when I was abroad, I never had the
opportunity to call up the one I left behind. So there was no opportunity for me to ask him what has
been happening there. He has also no opportunity to tell me about what happened because he does not
know where I was. So I only learned about it after five months. So in the name of equity please set aside
the judgment.
HELD: In the name of equity, we will not set aside the judgment. You did not even bother to call and tell
the person left where you were. When you called up perhaps the person left could notify you about the
summons. You are very irresponsible! What kind of a person are you? You will leave for abroad and you
will not even bother to call up to find out what is going on. So, wala!
So the case of MONTALBAN provides that the service of summons under Section 16 on the defendant
doesnt prevent the application of Section 7 in addition to Section 15. Summons can be served abroad
just like in Section 15 but it does not mean to say that you cannot apply Section 7 because anyway it
does not say MUST, it uses MAY.
And one thing that you will notice in Section 16 is that the action is IN PERSONAM. It is purely an action
for damages. So in Section 16, when residents are temporarily outside of the Philippines, there could be
also substituted service of summons in addition to Section 15 and the action could be in personam as
distinguished from Sections 14 and 15 where the action must be in rem or quasi in rem.
So the action in Section 16 need not be an action in rem or quasi in rem because he is actually residing in
the Philippines and only temporarily out.
SERVICE OF SUMMONS IN EXCEPTIONAL CASES
1.) SERVICE OF SUMMONS UPON AN ENTITY WITHOUT JURIDICAL PERSONALITY
Sec. 8. Service upon entity without juridical personality. When persons associated in an entity without
juridical personality are sued under the name by which they are generally or commonly known, service
may be effected upon all the defendants by serving upon any one of them, or upon the person in
charge of the office or place of business maintained in such name. But such service shall not bind
individually any person whose connection with the entity has, upon due notice, been severed before
the action was brought. (9a)
Section 8 is related to Rule 3, Section 15:
Rule 3, Sec. 15. Entity without juridical personality as defendant. When two or more persons not
organized as an entity with juridical personality enter into a transaction, they may be sued under the
name by which they are generally or commonly known.
In the answer of such defendant, the names and addresses of the persons composing said entity must
all be revealed. (15a)
Q: Since you can sue someone without juridical personality, how do serve summons upon him?
A: Under Section 8, by serving summons upon anyone of them, that is sufficient. Service upon any of
those defendants is service for the entire entity already. You may also serve summons upon the person
in charge of the office of the place of business. He may not necessarily be the owner but in- charge of the
office, he can be served with summons.
2.) SERVICE OF SUMMONS UPON SOMEBODY WHO IS A PRISONER
Sec. 9. Service upon prisoners. When the defendant is a prisoner confined in a jail or institution,
service shall be effected upon him by the officer having the management of such jail or institution who
is deemed deputized as a special sheriff for said purpose. (12a)
Q: How do you serve summons to somebody who is a prisoner?
A: Under Section 9, summons shall be served through the person in-charge of the jail like the jail warden.
The jail warden is automatically considered as deputized to serve it to the prisoner. It is not necessary for
the court officer to go into the jail and look for the prisoner.
3.) SERVICE OF SUMMONS UPON MINORS AND INCOMPETENTS
Sec. 10. Service upon minors and incompetents. When the defendant is a minor, insane or otherwise
an incompetent, service shall be made upon him personally and on his legal guardian if he has one, or
if none, upon his guardian ad litem whose appointment shall be applied for by the plaintiff. In the case
of a minor, service may also be made on his father or mother. (10a, 11a)
Relate this to Rule 3, Section 3 on Representatives as Parties trustee of a trust, guardian,
administrator, etc.
Q: When you sue a minor or an insane, how is summons served?
A: You serve the summons to the father or mother in the case of minor. For a legal guardian, in the case
of incompetent people or to the minor himself.
Q: The law says that service shall be made upon him (the minor) personally when he may not
understand what it is all about? Baka itatapon lang niya iyon.
A: Because under Rule 3, he is the real party in interest.
4.) WHEN SERVICE OF SUMMONS ON DOMESTIC PRIVATE JURIDICAL ENTITY.
Sec. 11. Service upon domestic private juridical entity. When the defendant is a corporation,
partnership or association organized under the laws of the Philippines with a juridical personality,
service may be made on the president, managing partner, general manager, corporate secretary,
treasurer, or in-house counsel. (13a)
What do you mean by domestic? A corporation or association organized under Philippine laws.
Majority of our corporations in the Philippines, almost 95%, are domestic private corporation. Like banks
BPI, Security Bank - they can be sued because they are persons in the eyes of the law.
Now, how do you serve summons to a corporation? Actually, they have no physical existence, they only
exist by legal friction. Ordinarily summons must be served to a human being, to somebody who is
supposed to be the representatives. Therefore, common sense will tell that in case of a corporation, you
have to serve the summons through people who run the corporation.
Q: To whom do you serve summons if it is a corporation?
A: In the case of a corporation, summons is served upon its officers.
Q: Who are these officers?
A: President, managing partner, general manager, corporate secretary, treasurer, in-house counsel.
PRESIDENT. Sometimes, the president of a corporation is called the Chief Executive Officer or CEO.
MANAGING PARTNER. This is in case of a partnership.
GENERAL MANAGER. Under the prior law, the word there is simply manager. Now they added the
word general. But even in the old law, the word manager is interpreted as general manager. In a
corporation, there are so many managers like branch managers. General manager is the over-all
manager of the corporation throughout the Philippines. He is usually based in the head office.
CORPORATE SECRETARY. The prior law only used the word secretary but it has been interpreted as
corporate secretary, not the typist secretary. The corporate secretary is the custodian of the records of
the corporation. He is also a stockholder, because you cannot be a corporate secretary unless you are a
stockholder. The new law has already emphasized corporate secretary. Before illiterate sheriffs used to
serve summons on secretary-typist.
TREASURER. The prior law says cashier now they have changed the word to treasurer. It is because
treasurer is actually an officer also. He is just like a budget secretary of the government. Cashiers are
ordinary employees which is more on clerical works.
IN-HOUSE COUNSEL. He is the lawyer of the company. He is actually employed by the corporation. He
takes care of the legal problems. In Manila, for instance, most of the corporations there have in-house
counsels. Not so much here in Davao. Like Ayala Corporation in Manila, they have internal legal counsel
more or less 10 while Bank of Philippine Island has around 15. But these corporations hire lawyers from
the outside when it comes to sensitive cases. They are referred as external legal counsel.
The rule that summons may be served on internal legal counsel, although appearing for the first time in
the 1997 rules, is actually an old rule. It has been ruled already in some cases that service of summons
upon an in-house counsel of a corporation is valid. It binds the corporation under the ruling in the case of
PHILIPPINE OIL MKTG. CORP. vs. MARINE DEVT CORP. (117 SCRA 879) and FAR
CORPORATION vs. FRANCISCO(145 SCRA 197) that the in-house counsel if served with summons, there is
a valid service, because anyway, if you serve it to the general manager or the President, chances are it
will also be referred to him kay siya man ang abogado. So the in-house counsel is new and it confirms
what the SC said.
Two (2) Persons in the OLD RULE not mentioned in the new rules:
But here is the change. In the previous law, you can serve the summons on any of the directors of the
corporation MEMBERS of the BOARD ba. Now, wala na yan ngayon. I think the only member of the
Board here is the Corporate Secretary. So, the directors, hindi na puwede.
But here is the most radical change. The word AGENT, nawala na! Did you notice under the old law,
there is agent. The word agent was so broad and so general that the SC has actually included there so
many people.
Like in the case of R TRANSPORT CORPORATION vs. CA, (241 SCRA 77 [1995]), the summons was served
to the Operations Manager of the corporation and the SC said the service was valid because he is
considered as an agent.
In the 1993 case of GESULGON vs. NLRC (219 SCRA 561), the summons was served on the Assistant
General Manager of the corporation and the SC said that the service was valid because he is an agent.
In the case of FAR CORPORATION vs. FRANCISCO (146 SCRA 197), the summons was served on the Chief
of Finance and Administrative Section of the corporation and the SC said that he will fall under the word
agent.
In the cases of DELTA MOTORS vs. MASAGUN (70 SCRA 598) and ATM TRUCKING vs. BUENCAMINO
(124 SCRA 434) the service of summon an employee employed in a corporation does not bind the
corporation because an ordinary employee who is not an officer is not considered as agent.
However, there are cases were the service of summons to an ordinary employee who is not an officer
was valid. Among which are:
The case of SUMMIT TRADING vs. ABENDANO (135 SCRA 397 [1985]), the summons was served on the
confidential secretary of the President and the SC said the service is valid. She is qualified as agent.
And in the cases of J AND J CORPORATION vs. CA (158 SCRA 466), reiterated in the case of GOLDEN
FARMS vs. SUN BAR DEVELOPMENT CORPORATION (214 SCRA 295), the summons was served on a mere
clerk of the corporation. So, he is not even an officer. But the clerk gave it to the President. The SC said
that the defect is cured. The clerk could be considered as an agent. The need for speedy justice must
prevail over technicality. So, the word agent has become very broad and it practically covers all
corporate officers who are presumed to be responsible.
Now, in the 1997 rules, the word agent disappeared. And the law is very clear: President, managing
partner, general manager, corporate secretary, treasurer, in-house counsel.
Now, suppose you will serve it to the Branch manager? Of course the corporation will say that there is no
valid service of summons. OK, it is void. But look at the case of GESULGON, etc. But that is under the
1964 rules when you are deemed to be an agent. But now, it is very specific. The intention of the new
rules is to limit the service to anyone of these. That is why they removed the word agent.
And if that interpretation prevails that the intention of the rules is to limit to these people, it is now very
difficult to sue a corporation based in Makati if you are here in Davao because your summons has to be
coursed through them. And these people are not here! The President is not here; The General Manager,
etc. They are all based in the head office. Corporate Secretary, treasure, in-house counsel Doon man
ang opisina nila ba. The ones based here are branch managers and they are now disqualified. If that is
the intention of the law, my golly! That is another headache!
It can be argued both sides eh. Despite this, we should stick to the principle that technicalities should not
give way.
Suppose I will serve it on the Branch Manager. He forwarded it to their President in Manila. Eh ano pa
ngayon ang reklano ninyo? Anyway you already acquired it, you learned about it. Can you insist that the
court has no jurisdiction when actually you are well aware already of the suit? You can say, let us go to
reality. But it can also be argued under the old law. Precisely, if the intention is to make everybody a
responsible officer, then the word agent should have been retained. The intention of the law is to limit
only to these people. So, both sides can be defended.
Section 11 thus becomes another controversial provision. Whether this change has abrogated
GESULGON, FAR EAST CORP., SUMMIT TRADING na pwede. All those doctrines have now been rendered
obsolete because of this change. All those cases were decided based on the word agent are they
agents? At least there is basis, eh. Now, the word agent is no longer there. That is why this is a
controversial provision.
E.B. VILLAROSA LTD vs. BENITO
312 SCRA 65 [Aug. 6, 1999]
FACTS: E.B. Villarosa & Partners is a limited partnership with principal office address at 102 Juan Luna St.,
Davao City and with branch offices at Paraaque and Cagayan de Oro City (CDO). Villarosa and Imperial
Development (ID) executed an Agreement wherein Villarosa agreed to develop certain parcels of land in
CDO belonging to ID into a housing subdivision. ID, filed a Complaint for Breach of Contract and Damages
against Villarosa before the RTC allegedly for failure of the latter to comply with its contractual
obligation.
Summons, together with the complaint, were served upon Villarosa, through its Branch Manager
Wendell Sabulbero at the address at CDO but the Sheriffs Return of Service stated that the summons
was duly served "E.B. Villarosa & Partner thru its Branch Manager at their new office Villa Gonzalo, CDO,
and evidenced by the signature on the face of the original copy of the summons."
Villarosa prayed for the dismissal of the complaint on the ground of improper service of summons and
for lack of jurisdiction over the person of the defendant. Villarosa contends that the RTC did not acquire
jurisdiction over its person since the summons was improperly served upon its employee in its branch
office at CDO who is not one of those persons named in Sec. 11, Rule 14 upon whom service of summons
may be made. ID filed a Motion to Declare Villarosa in Default alleging that Villarosa has failed to file an
Answer despite its receipt allegedly on May 5, 1998 of the summons and the complaint, as shown in the
Sheriff's Return.
HELD: We agree with Villarosa. Earlier cases have uphold service of summons upon a construction
project manager; a corporation's assistant manager; ordinary clerk of a corporation; private secretary of
corporate executives; retained counsel; officials who had charge or control of the operations of the
corporation, like the assistant general manager; or the corporation's Chief Finance and Administrative
Office. In these cases, these persons were considered as "agent" within the contemplation of the old
rule.
Notably, under the new Rules, service of summons upon an AGENT of the corporation
is NO LONGER authorized.
The designation of persons or officers who are authorized to accept summons for a domestic
corporation or partnership is now limited and more clearly specified in Section 11, Rule 14. The rule now
states "general manager" instead of only "manager"; "corporate secretary" instead of "secretary"; and
"treasurer" instead of "cashier." The phrase "agent, or any of its directors" is conspicuously deleted in
the new rule.
A strict compliance with the mode of service is necessary to confer jurisdiction of the court over a
corporation. The officer upon whom service is made must be one who is named in the statute; otherwise
the service is insufficient. . . The liberal construction rule cannot be invoked and utilized as a substitute
for the plain legal requirements as to the manner in which summons should be served on a domestic
corporation. .
Service of summons upon persons other than those mentioned in Section 13 of Rule 14 (old rule) has
been held as improper. Accordingly, we rule that the service of summons upon the branch manager of
Villarosa at its branch office at CDO, instead of upon the GM at its principal office at Davao City is
improper. Consequently, the RTC did not acquire jurisdiction over the person of Villarosa. The fact that
Villarosa filed a belated motion to dismiss did not operate to confer jurisdiction upon its person. There is
no question that the Villarosas voluntary appearance in the action is equivalent to service of summons.
Before, the rule was that a party may challenge the jurisdiction of the court over his person by making a
special appearance through a motion to dismiss and if in the same motion, the movant raised other
grounds or invoked affirmative relief which necessarily involves the exercise of the jurisdiction of the
court, the party is deemed to have submitted himself to the jurisdiction of the court. This doctrine has
been abandoned in the case of La Naval Drug Corporation vs. CA which became the basis of the adoption
of a new provision in Section 20 of Rule 14.
Section 20 now provides that the inclusion in a motion to dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. The
emplacement of this rule clearly underscores the purpose to enforce strict enforcement of the rules on
summons. Accordingly, the filing of a motion to dismiss, whether or not belatedly filed by the defendant,
his authorized agent or attorney, precisely objecting to the jurisdiction of the court over the person of
the defendant can by no means be deemed a submission to the jurisdiction of the court.
There being no proper service of summons, the trial court cannot take cognizance of a case for lack of
jurisdiction over the person of the defendant. Any proceeding undertaken by the trial court will
consequently be null and void.\\
WHEREFORE, the petition is hereby GRANTED. The assailed Orders of the public respondent trial court
are ANNULLED and SET ASIDE.
5.) SERVICE OF SUMMONS UPON FOREIGN PRIVATE JURIDICAL ENTITY
Sec. 12. Service upon foreign private juridical entity. When the defendant is a foreign private juridical
entity which has transacted business in the Philippines, service may be made on its resident agent
designated in accordance with law for that purpose, or, if there be no such agent, on the government
official designated by law to that effect, or on any of its officers or agents within the Philippines. (14a)
Q: What is the difference between corporation or entity in Section 11 and Section 12?
A: The entity or corporation under Section 11 is domestic while under Section 12, the corporation is a
foreign corporation but doing business in the Philippines because the law says, when the defendant is a
foreign private juridical entity which transacted business in the Philippines
When a foreign corporation is not doing business in the Philippines, it cannot be sued, just like a non-
resident defendant. The best example of a foreign corporation doing business in the Philippines are air
line companies, foreign banks.
Q: To whom do you serve summons in this case?
A: Well, that is already touched in Rule 11, Section 2. If it has a designated resident agent, you must
serve it to him. If it has none, then to the appropriate Philippine government officer who will transmit it
to the head office.
Q: What is the period to file answer?
A: Under Rule 11, Section 2, the period to file an answer is longer if summons is served on a government
official designated by law for that purpose, the period is 30 days. But if the foreign corporation has a
designated resident agent in the Philippines and summons is served on him, the period to answer is only
15 days just like any other defendant.
NORTHWEST ORIENT AIRLINES vs. COURT OF APPEALS
241 SCRA 192 [1995]
HELD: When there is a designated resident agent to receive summons, service of summons to that
person is exclusive. He is the only one to be served with summons in behalf of the corporation sued.
So, if there is a designated agent, siya lang. He is the only person authorized to receive the summons.
If a foreign corporation has designated an agent to receive summons the designation is exclusive.
Service of summons is without force and gives to a court no jurisdiction unless made upon him.
BALTAZAR vs. COURT OF APPEALS
168 SCRA 354 [1988]
FACTS: The summons was to be served on the corporation at an address. But when the sheriff went to
that address, he was told by the security guard that the corporation was no longer holding office there.
Lumipat na sa ibang lugar. Therefore, we do not know already.
So, ni-report niya, Hindi ko makita. Therefore, the plaintiff filed a motion in court to be allowed to
serve summons by publication under Section 14 when the whereabouts of the defendant is unknown. So
there was service of summons by publication.
ISSUE: Was there a valid service of summons by publication?
HELD: There was NONE. The deputy sheriff should have known what every law school student knows!
that defendant, being a domestic corporation must have been registered with the SEC and that the SEC
records would therefore reveal, not just the correct address of the corporate headquarters of the
defendant, but also the address of its officers. A litigant or process server who has not gone through the
records of the SEC cannot claim to have carried out the diligent inquiry required under the law for valid
service of summons by publication upon a domestic corporation.
So there was no diligent inquiry. You should have gone to the SEC and look at the records kung saan
lumipat. Also with the address of the officers like the President, you can go to his place and serve the
summons to him. So there was improper service of summons by publication. Another case was
REBULIDO vs. COURT OF APPEALS
170 SCRA 800
FACTS: A corporation committed a wrong and then pagdemanda, dissolved na. When the action was
filed, the corporation was already dissolved wala ng juridical personality.
ISSUE #1: Can you still sue a dissolved corporation?
HELD: YES. Otherwise, if we will say that a corporation which is already dissolved can no longer be sued,
it is very easy for a corporation to avoid liability by simply dissolving itself after it commits a wrong.
And secondly, under the Corporation Law, even if you are already dissolved, there is
still a period for winding up where you can collect. So, it is still functioning. And to say that it is already
dissolved or that it is no longer functioning is not also true.
ISSUE #2: If that is so, to whom will you now serve the summons?
HELD: You serve it on the last set of officers. The same people mentioned there must be a last
President or a last Corporate Secretary, etc. They are the people who whom summons should be served.
When a corporation was placed under a Voting Trust Agreement (VTA), the summons should be served
on the trustee. The President has no more personality that is an exception to Section 11. So, when a
corporation is placed under VTA, the summons should be served on the person in whose favor the VTA
was executed because the officers of the corporation have no more personality to manage the affairs of
the corporation.
FOREIGN ENTITY TRANSACTING BUSINESS IN THE PHILIPPINES
Finally, going back to foreign private juridical entity, take note that under the law, the foreign private
juridical entity is one doing business in the Philippines. So, if a foreign corporation is not doing business
in the Philippines, it cannot be sued, just like a non-resident defendant because the court can never
acquire jurisdiction over that person or foreign corporation. We know that no?
And the perennial debate is, when is a foreign private corporation doing or not doing any business in the
Philippines? I think the Corporation Law has so many cases along that line.
EXAMPLE: A Filipino businessman wanted to buy machines where there is only one manufacturer and
supplier which is a corporation in Europe. This corporation has no office in the Philippines. The Filipino
businessman contracted with the foreign corporation. He ordered machineries. The foreign corporation
sent its people to deliver the machineries. They stayed in the Philippines gor a while to check the
machines and to teach the Filipinos how to run it.
Q: Now, can that corporation be used in the Philippine courts?
A: NO, because that foreign corporation is not doing business in the Philippines. Section 12 does not
refer to a foreign corporation with a single isolated, casual transaction. In the cases of
PACIFIC MICRONISIAN LINE, INC. vs. DEL ROSARIO
G.R. No. L-7154. October 23, 1954
HELD: Doing business is construed to mean such continuity of conduct and intention to establish a
continuous business. An isolated transaction, or transactions which are occasional, incidental or casual
and which do not evince intent to conduct continuous business do not constitute doing business in the
Philippines.
In order that a foreign corporation may be regarded as doing business in the Philippines, there must be
continuity of conduct and intention to establish a continuous business, such as the appointment of a
local agent, and not one of a temporary character.
FAR EAST INTERNATIONAL vs. NANKAI KOGYO CO., LTD.
November 30, 1962
HELD: Where a single act or transaction of a foreign corporation is not merely incidental or casual, but is
of such character as distinctly to indicate a purpose on the part of the corporation to do other business
in the Philippines, and to make the Philippines a base of operations for the conduct of a part of the
corporations ordinary business, the corporation may be said to be doing business in the Philippines.
So, under the rules, a foreign corporation not doing business in the Philippines cannot be sued. If it
enters into a contract with a Filipino business man, it is not actually doing business. Isa lang eh! So,
technically, that foreign corporation cannot be sued in the Philippines. Your remedy is to go to Europe
and sue that corporation there. In the case of
LINGER AND FISCHER vs. IAC
125 SCRA 522
FACTS: A Philippine corporation entered into a contract with a foreign corporation and then their
agreement says the foreign corporation agrees to be sued in the Philippines. So practically, puwede. And
the problem now is, to whom will you serve the summons?
When a foreign corporation not doing business in he Philippines agrees to be sued in the Philippines,
how do you serve summons? Is Section 12 applicable?
HELD: NO, Section 12 is not applicable because in Section 12, the premise is, the foreign private
corporation is doing business in the Philippines. So Section 12 does not apply. So, how shall we serve the
summons?
In the first place, the foreign corporation, which cannot be sued, agrees to be sued. Their agreement is
similar to venue where we can agree on the venue of the case. Now, since it is not doing business, it is
more accurate to apply the rules on Section 15 on extraterritorial service of summons on a non-resident
defendant who is not physically here.
So, summons should be served not in accordance with Section 12 but in accordance with Section 15 on
extraterritorial service.
6.) SERVICE OF SUMMONS UPON PUBLIC CORPORATION
Sec. 13. Service upon public corporations. When the defendant is the Republic of the Philippines,
service may be effected on the Solicitor General; in case of a province, city or municipality, or like
public corporations, service may be effected on its executive head, or on such other officer or officers
as the law or the court may direct. (10a)
An example of a public corporation is the Republic of the Philippines. As a rule, they cannot be sued. But
in cases where it can be sued, summons may be effected on the Solicitor General being the
representative of the Republic.
Kung provinces, cities or municipalities, like the City of Davao, service may be effected on the executive
heads such as the provincial governor, municipal or city mayor.
Summons may also be effected on such other officer or officers as the law or the court may direct. So
the court may order that the summons be served on the city legal officer. Here, there is still a valid
service of summons.
Sec. 18. Proof of service. The proof of service of a summons shall be made in writing by the server and
shall set forth the manner, place, and date of service; shall specify any papers which have been served
with the process and the name of the person who received the same; and shall be sworn to when
made by a person other than a sheriff or his deputy. (20)
This is called a SHERIFFS RETURN where the sheriff will state the manner (personal or substituted,
publication); place and date; to whom served. Then you specify that you serve also the complaint. Name
of person who received the same.
Q: Must the return be sworn to?
A: NO NEED, except when made by a person other than a sheriff or his deputy. Remember that summons
can be served by other person authorized by the court to do so.
Sec. 19. Proof of service by publication. If the service has been made by publication, service may be
proved by the affidavit of the printer, his foreman or principal clerk, or of the editor, business or
advertising manager, to which affidavit a copy of the publication shall be attached, and by an affidavit
showing the deposit of a copy of the summons and order for publication in the post office, postage
prepaid, directed to the defendant by registered mail to his last known address. (21)
VOLUNTARY AND SPECIAL APPEARANCE
Sec. 20. Voluntary appearance. The defendant's voluntary appearance in the action shall be equivalent
to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. (23a)
The first mode of acquiring jurisdiction over the person of the defendant is service of summons.
However, even when there is no service of summons, or if there is improper service of summons, if the
defendant files an answer, then in effect, he is submitting himself to the jurisdiction of the court and the
court acquires jurisdiction over his person by voluntary appearance.
Voluntary appearance is not necessary an answer. Like a motion for an extension of time to file an
answer, or a motion for bill of particulars that is indicative of his submission to the jurisdiction of the
court.
That is why we said, lack of jurisdiction over the person of the defendant because of absence of service
of summons or improper service of summons, can be waived by voluntary appearance. That is the
second mode.
Now, of course, when a defendant files a motion to dismiss on the ground that the court has not
acquired any jurisdiction over his person, that is not a voluntary appearance. That is a SPECIAL
APPEARANCE precisely to question the jurisdiction of the court over his person.
A special appearance is not indicative of the intention to submit to the jurisdiction of the court.
Otherwise, it becomes absurd if I will file a motion to dismiss questioning the jurisdiction of the court
over my person and then the court will say, Well, by filing the motion to dismiss, you are also voluntarily
submitting to the jurisdiction of the court. Definitely, that is not the appearance contemplated by
Section 20.
Now, the second sentence, The inclusion in a motion to dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. What is the
meaning of that? Well, that principle is taken from the ruling of the SC in the leading case of LADAVAL
DRUG CORPORATION vs. CA, 236 SCRA 28, which we will discuss more in detail when we reach Rule 16
on Motion to Dismiss.
Rule 15
MOTIONS
What is a motion? Define a motion.
SECTION 1. Motion defined. A motion is an application for relief other than by a pleading. (1a)
In a motion, the party is asking the court for a favor other than what is contained in the pleading.
Usually, the main relief is prayed for in the pleading, like Judgment be rendered in favor of the plaintiff,
or, Judgment be dismissed. That is what you pray in your complaint or in your answer.
A pleading however is directly related to the cause of action or the defense. But a motion prays for
something else. In a motion, you are asking for another relief other than the main cause of action or the
main defense. Example is a motion to postpone trial or a motion for extension of time to file answer. You
do not do that by a complaint but by way of a motion because you are praying for a relief other than by a
pleading.
Pleadings are limited to those enumerated in Rule 6 such as complaint, answer, cross-claim,
counterclaim, etc. But if you look at a motion, it looks like a pleading. In form, it looks exactly like a
pleading but under the law, it is not a pleading.
However, there are three (3) well known EXCEPTIONS to this. Meaning you are praying, by way of a
motion, for a relief which normally should be prayed for in a pleading such as a motion is praying for a
judgment already. The exceptions are:
1.) Motion for Judgment to the Demurrer to Evidence (Rule 33); 2.) Motion for Judgment on the
Pleadings (Rule 34); and
3.) Motion for Summary Judgment (Rule 35).
Those are the 3 exceptions to Section 1.
Q: What are the requisites of a valid motion.
A: They are found from Section 2 to Section 6:
Sec. 2. Motions must be in writing. All motions shall be in writing except those made in open court or
in the course of a hearing or trial. (2a)
As a rule, all motions must be in writing, except those made in open court or in the course of a hearing
or trial because for example, during the trial, pagtingin mo sa relo, quarter to twelve na. So you can
move orally for continuance. And the judge will not require you to have that typed pa. There is no more
time to do that. Anyway, it is officially recorded.
Sec. 3. Contents. A motion shall state the relief sought to be obtained and the grounds upon which it is
based, and if required by these Rules or necessary to prove facts alleged therein, shall be accompanied
by supporting affidavits and other papers. (3a)
So a motion shall state the relief sought to be obtained and the grounds upon which it is based. For
example, you move to postpone the trial next week because you client is still abroad. So you cite the
ground/s upon which it is based.
Q: Is it necessary that a motion be accompanied supporting affidavits and other papers?
A: No, unless required by the Rules or necessary to prove facts alleged therein.
Q: Give an example of a motion where supporting affidavits are required by the Rules.
A: A motion for new trial on the ground of fraud, accident, mistake of excusable negligence. Under Rule
37, Section 2, in order for a motion for new trial on that ground to be valid, there must Be Affidavit Of
Merits. If there is no affidavit of merits, the motion will be denied.
And if necessary to prove facts alleged therein, then, the motion must be accompanied by affidavit and
other supporting papers. Example is when you are moving for the postponement of the trial because
your client is sick, the best supporting paper would be a medical certificate for that matter.
However, if it is not required by the Rules, or the facts are already stated on record, there is no need of
supporting affidavits or documents. Example is when you move to declare the adverse party in default.
There is no need to support your motion with affidavits because anyway the court can look at the
records, particularly the sheriffs return, to check when was the defendant was served with summons.
Sec. 4. Hearing of motion. Except for motions which the court may act upon without prejudicing the
rights of the adverse party, every written motion shall be set for hearing by the applicant.
Every written motion required to be heard and the notice of the hearing thereof shall be served in
such a manner as to ensure its receipt by the other party at least three (3) days before the date of
hearing, unless the court for good cause sets the hearing on shorter notice. (4a)
Now, under Section 4, it says there that you must furnish the adverse party a copy of your motion at
least three (3) days before date of hearing. So, you do not furnish him one day before the date of the
hearing. The reason there is to prevent surprise upon the adverse party and to enable the latter to study
the motion and file his opposition (Remante vs. Bonto, L-19900, Feb. 28, 1966). So a motion cannot be
filed ex-parte. Meaning, without notice of hearing and without furnishing a copy to the opponent.
However, a motion need not be set for hearing if it is not a controversial motion. Meaning, these are
motions which the court may act upon without prejudicing the rights of the adverse party such as a
motion for extension of time to file answer. So with this kind of motion, the court can immediately grant
your motion.
And the law says, you serve the motion in such a manner as to ensure its receipt by the other party at
least three (3) days before the date of hearing. In other words, you have to calculate that he will receive
it at least 3 days.
One good example of this requirement is one which is mentioned in Rule 13, Section 11, that personal
service is preferred to service by registered mail because if it is personal service, it is assured that the
adverse party received the motion 3 days before. But if it is service by mail, we do not know eh, unless
you mail it very much earlier because let us say, hearing on the motion will be on Friday, and then you
will mail the motion on Monday, or 5 days before, it is possible that the motion will reach the opponent
on Sunday or two days later.
That is the reason why personal service is preferred because if there is no explanation why you resorted
to by mail rather than personal service, the motion is deemed not filed.
Q: What is the effect if a party files a motion serving upon the adverse party the motion in less than
three days?
A: The court may refuse to take action on a motion which does not comply with the rule requiring a
three-day notice to the adverse party, unless the court for good cause sets the hearing on shorter
notice. Usually these are urgent motions such as moving for postponement because your witness got
sick one day or hours before the trial.
Sec. 5. Notice of hearing. The notice of hearing shall be addressed to all parties concerned, and shall
specify the time and date of the hearing which must not be later than ten (10) days after the filing of
the motion. (5a)
Q: Now, what happens if a motion does not contain a notice of hearing?
A: A motion that does not contain a notice of hearing is but a mere scrap of paper; it presents no
question which merits the attention and consideration of the Court. It is not even a motion for it does
not comply with the rules. A motion without notice of hearing is nothing but a piece of paper filed in
court, which should be disregarded and ignored. (Prado vs. Veridiano II, (204 SCRA 651 [1991])
Q: To whom should the notice of hearing be addressed?
A: It is addressed to all parties concerned. So, normally ganito iyan:
Atty. Johnny Bravo Counsel for plaintiff
Greetings! Please take notice that the undersigned is submitting the foregoing motion for the
reconsideration of the Honorable Court on Friday, November 28, 1997 at 8:30 in the morning.
(Signed) Atty. Hong Hunks
Counsel for the defendant
Now, some lawyers, when they prepare a notice of hearing will state: TO THE CLERK OF COURT, Please
set the foregoing for the consideration of the court Now, the law says, the notice of hearing should be
addressed to the parties and not to the clerk of court. So, the common practice of addressing the notice
of hearing to the clerk of court is technically wrong.
The SC has already commented on that several times. One of them was the case of
PRADO vs. VERIDIANO II
204 SCRA 654 [1991]
HELD: Sections 5, Rule 15 of the Rules of Court which explicitly provide that the notice shall be served
by the applicant to all parties concerned and shall state the time and place for the hearing of the motion.
A notice of hearing addressed to the Clerk of Court and not to the parties is no notice at all. So it is very
technical.
Sometimes, lawyers just ignore that. What is important is I know when you are going to set it. But some
lawyers are very technical. He will look for loopholes in the motion on the ground that you did not
address the notice of hearing to him but to the clerk of court. Is he correct? Tama man iyan ba! Even the
SC said that do not address it to the clerk of court. You address it to the party. The law is very clear.
Now, take note that the new rule added the phrase that you must specify the time and the date of the
hearing which must not be later than ten (10) days after the filing of the motion. That is not found in the
prior rule.
Before, some lawyers are mischievous. When they received the complaint, instead of filing an answer,
they will file a motion to dismiss just to delay. And the motion to dismiss is denied. But at least the
period to answer is stretch. And too make it worse, they will file it in November and they will set it for
hearing in December. One month from now.
Now, you cannot do that. Pag-file mo ng motion, maximum ten (10) days only. You cannot say, I will set
if for hearing 2 months from now. It is now very clear that it must not be later than 10 days after the
filing of the motion. And see to it that the party receives it 3 days before the hearing because of Section
4. The minimum is 3 days. So that is a new requirement found in 1997 Rules.
Sec. 6. Proof of service necessary. No written motion set for hearing shall be acted upon by the court
without proof of service thereof. (6a)
Proof of service of the motion is required No written motion et for hearing shall be acted upon by the
court without proof of service hereof. This is related to Rule 13. As a general rule, you cannot file
anything in court without furnishing a copy to your opponent. A motion cannot be filed ex-parte.
The only exception here are motions which can be filed ex-parte because they are not controversial.
Normally, there are motions which can be filed without proof of service, which generally the court will
grant anyway. Another example is Rule 23, Section 21 on indigent or pauper litigants a party may be
authorized to litigate his action, claim or defense as a indigent upon ex-party motion together with the
complaint and a hearing. Therefore, there is no need to furnish copy of the motion to the other party.
But those are the only exceptions. So, as a rule, every motion must be served to the opposite party. So,
we will outline Sections 2 to 6
Q: What are the requisites of a valid motion?
A: The REQUISITES OF A VALID MOTION are the following:
1.) It must be in writing except those made in open court or in the course of hearing or trial;
2.) It shall state the relief sought to be obtained and the ground upon which it is based; 3.) It must be
accompanied by supporting affidavits and other papers, if required by
these Rules or necessary to prove facts alleged therein. However, if the facts are already stated on
record, the court can check the records;
4.) There must be a notice of the hearing attached to the motion and the adverse party must receive the
motion at least three (3) days before the date of hearing, unless the court for good cause sets the
hearing on shorter notice;
5.) There must be notice of hearing addressed to all parties concerned, and shall specify the time and
date of the hearing which must not be later than ten (10) days after the filing of the motion; and
6.) There must be proof of service of the motion on the adverse party.
Sec. 7. Motion day. Except for motions requiring immediate action, all motions shall be scheduled for
hearing on Friday afternoons, or if Friday is a non-working day, in the afternoon of the next working
day. (7a)
Motion hearings are scheduled on Friday afternoons except those motion which require urgent action.
So if today is Friday and its a holiday, sa Monday pa ang hearing. But again, some judges do not follow
this. Ang iba pa nga, everyday eh.
OMNIBUS MOTION RULE
Sec. 8. Omnibus motion. Subject to the provisions of section 1 of Rule 9, a motion attacking a pleading,
order, judgment, or proceeding shall include all objections then available, and all objections not so
included shall be deemed waived. (8a)
The word omnibus means all embracing or all encompassing.
Q: Define omnibus motion.
A: An OMNIBUS MOTION is one attacking a pleading, order, judgment, or a proceeding which shall
include all objections then available and objections not so included shall not deemed waived. (Section 8;
Ins. Co. of North America vs. Delgado Brokerage, L-22974, Oct. 28, 1966)
EXAMPLE #1: Motion to Dismiss. In effect, it attacks a proceeding. Where a party is not allowed to file a
motion to based on one ground, if denied, second motion to dismiss based on the second ground,
denied, third motion to dismiss. Meaning, ini-installment mo. That is not allowed. If you have two or
more grounds, you file only one motion to dismiss invoking those grounds because the rule is, any
ground not so invoked is deemed waived.
EXAMPLE #2: Rule 37 on New Trial. A second motion for new trial under Section 5 of Rule 37 prohibits
the filing of a second motion for new trial based on grounds available to the movant when he filed his
first motion. Well, if the grounds came later, that is different.
So, the principle there is, if you have two or more grounds you should only file one motion where you
invoke all your grounds.
Now, obviously there is an EXCEPTION because the opening clause of section 8 is Subject to the
provision of Section 1 of Rule 9.
Rule 9, Section 1. Defenses and objections not pleaded. Defenses and objections not pleaded either in
a motion to dismiss or in the answer are deemed waived. However, when it appears from the
pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that
there is another action pending between the same parties for the same cause, or that the action is
barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. (2a)
Under Rule 9, There are four (4) exceptions. Meaning, they are not deemed waive even if you do not
raise them in a motion to dismiss, which can be even motu propio proceeded by the court.
Q: What are the grounds not deemed waived even if not raised in a motion to dismiss or answer.
(Exceptions to the omnibus motion rule)?
A: The following:
1.) Lack of jurisdiction over the subject matter; 2.) Litis pendentia;
3.) Res adjudicata; and
4.) Prescription.
Sec. 9. Motion for leave. A motion for leave to file a pleading or motion shall be accompanied by the
pleading or motion sought to be admitted. (n)
EXAMPLE: Under the OLD rules, if you want to file an amended compliant, there are two (2) Options
under the old rules. The first option is to file a motion for leave to file amended complaint. And when it is
granted, that is the time for to you file your amended complaint. The second option is you file your
amended complaint together with the motion to admitted it.
The same thing iyong sa intervention under the OLD rules. In a motion to intervene, Motion to
intervene. Granted, I will file my pleading in intervention. The same thing for certain types of motion
like motion for leave to file third-party complaint: Motion for leave. Granted, I will file my third-party
complaint. That is under the previous rule.
NOW, hindi na puwede yan. Under the PRESENT RULE, when you file a motion, the pleading to be
admitted must already be included in your motion. Pag-file mo nng motion, kasama na iyong pleading.
The pleading sought to be amended must already be included in the motion. One-time filing ba!!
Sec. 10. Form. The Rules applicable to pleadings shall apply to written motions so far as concerns
caption, designation, signature, and other matters of form. (9a)
The rule on pleadings also applies to written motion as far as caption, designation, signature and other
matters of court. So in appearance there is difference between the appearance of a pleading and the
appearance of a motion. But definitely, a motion is not a pleading although it looks like a pleading.
Rule 16
MOTION TO DISMISS
Motion to dismiss is the counterpart of motion to quash (Rule 117) in criminal procedure. In criminal
procedure, before the arraignment or before entering a plea the accused may instead file what is known
as motion to quash. The proceedings are quashed on the ground that: (1) the court has no jurisdiction
over the subject matter of quashed on the ground that: (1) the court has no jurisdiction over the subject
matter of the case or over the person of the accused; (2) the person who field it has no authority to do
so; (3) the complaint or information charges more than one offense; (4) because of double jeopardy; or
(5) the criminal liability has already been extinguished.
Section 1. Grounds. Within the time for but before filing the answer to the complaint or pleading
asserting a claim, a motion to dismiss may be made on any of the following grounds:
xxxxx
Q: When do you file a motion to dismiss?
A: Within the time for but before filing the answer. So, within 15 days instead of filing an answer the law
allows the defendant to file instead a motion to dismiss. The principle is within 15 days from receipt of
the summons and the complaint, the defendant should file an answer or in lieu of an answer he may
instead file a motion to dismiss based on the grounds enumerated in section 1.
Now, a motion to dismiss is available not only for the purpose of dismissing the complaint but also for
dismissing a counterclaim, a cross-claim, a third party complaint because the laws says before filing the
answer to the complaint or pleading asserting a claim. A claim can be ascertained not only in a
compliant but also in other pleading such as counterclaims, etc.
First Ground: [a] THAT THE COURT HAS NO JURISDICTION OVER THE PERSON OF THE DEFENDING PARTY
Q: When will that happen?
A: When there is absence of summons or improper service of summons.
Now based on decided cases, it would seem that this is one of the weakest grounds for a motion to
dismiss the court has not acquired jurisdiction over the person for there are many exceptions.
There are many waivers. Because of the rule of waiver the court many acquire jurisdiction over your
person in some other capacity.
EXAMPLE: You are improperly served with summons but you file a motion for bill of particulars or you file
a motion for extension of time to file for an answer and then after that you file a motion to dismiss. Wala
na iyon. The principle is that the moment you file a motion for bill of particulars or you file a motion for
extension of time, in effect you have already submitted to the jurisdiction of the court. If there was any
defect in the service of summons, it was already cured. Waived na yon. Wala na yong ground mo. Thats
why there are so many question here.
EXAMPLE: Now, suppose the summon was served on a nine-year old boy who is presumed to be
responsible. When his father arrived, the boy told his father that somebody came in and left this. So in
other words the father actually got the summons. Now, suppose the father will file a motion to dismiss
on the ground that the court never acquired jurisdiction over the person because the summons was
improperly serve. Do you think it will prosper?
There are cases in the SC which says even if the summons was not properly served, if actually it came to
the attention of the defendant, the defect is cured. Because if you say I will not answer for the summons
is improper that is more of a technicality. You are being technical. Actually natanggap mo naman kahit na
magreklamo ka pa. In other words, there are cases along that line. That is why this ground may no longer
be available to you because of those instances.
Kaya nga I still have my doubt on the corporations ba that you must serve the complaint to the
following people only. So, if you will serve it to the branch manager, who is not among those mentioned
now in the law, because the word agent disappears, but the branch manager transmit it to the
president, can the corporation ignore the complaint by the summons by relying on the technicality that it
was served on the wrong person? To my mind, that is still a question mark. That is relying too much on
technicality. What is important is you were properly served.
LINGER AND FISHER vs. IAC
125 SCRA 522
FACTS: The sheriff served the summons improperly on the defendant. And the defendant filed a motion
to dismiss on the ground that the court has no jurisdiction over his person.
HELD: Defendant assumed that the sheriff made a mistake. Why should we dismiss the complaint? It is
not the fault of the plaintiff. If the sheriff does not know how to do it, the fault lies on the sheriff and the
sheriff is an employee of the court, not an agent of the plaintiff. Why should the court blame the
plaintiff? If that is what happens we will not dismiss the case. We will instead issue an alias summons and
direct the sheriff to solve it properly.
With all this decided cases, it would seem that he objection of no jurisdiction over the person of the
defending party is getting weaker and weaker because of so many exceptions such as: (1) waiver; (2)
voluntary appearance; (3) improper service but the defendant came to know about it so you cannot rely
on the technicality and (4) then you have the case of Linger.
FAR CORPORATION vs. FRANCISCO
146 SCRA 197
HELD: This case reiterated the ruling in LINGER where the SC said again, if the sheriff did not know how
to serve the summons, why should the plaintiffs complaint be dismissed when it is not his fault. The
correct procedure is for the court to issue another summons and direct that the sheriff should serve it
properly.
On the other hand, there was a conflict before in jurisprudence on this question:
Q: Suppose I will file a motion to dismiss. Assuming that there is a ground of lack of jurisdiction over my
person and venue is improper. Meaning, I will cite 2, 3 or 4 grounds. Is that possible?
There are some cases where the SC said no more. When you file a motion to dismiss questioning the
jurisdiction of the court over your person and at the same time you are citing other grounds, then you
are already waiving the defect of lack of jurisdiction. Why? When you cite other grounds like
prescription, you are now submitting to the jurisdiction of the court. In effect you have waived the
ground of lack of jurisdiction.
But there are also other cases where the same issue came up and the question is: Can a defendant file a
motion to dismiss based on the lack of jurisdiction over the person together with other grounds? Are you
deemed to have waived the issue of lack of jurisdiction? NO, you can not file a motion to dismiss because
of the omnibus motion rule. When you file a motion to dismiss, you have to invoke all the grounds. So,
you are not waiving that ground.
So there was confusion. What is really the correct rule? Because there are decided cases on both sides.
NOW, the controversy has been settled starting with the ruling of the SC in the 1994 case of:
LA NAVAL DRUG CORPORATION vs. COURT OF APPEALS
236 SCRA 78 [en banc]
HELD: When you file a motion to dismiss citing lack of Jurisdiction over your person together with other
grounds, there is no waiver on the defect of lack of jurisdiction. So, you can file a motion to dismiss on
that ground together with other grounds. There is no more waiver in effect that is the recent decision.
The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of
the defendant shall not be deemed a voluntary appearance.
Obviously the ruling in NAVAL is incorporated in the Rules of Court. Lets go back to Rule 14 Section 20:
Sec. 20. Voluntary appearance. - The defendant's voluntary appearance in the action shall be equivalent
to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. (23a)
Second Ground: [b] THAT THE COURT HAS NO JURISDICTION OVER THE SUBJECT MATTER OF THE CLAIM.
That is one of the most important grounds for a motion to dismiss.
EXAMPLE: An action for unlawful detainer is field in the RTC and your ground is, the court has no
jurisdiction over the subject matter. Or, an action for annulment of marriage is filed in the MTC. Now, I
will file a motion to dismiss because the court has no jurisdiction over the subject matter.
So, we are familiar already with this. Now, let go to important principles on this ground.
FIRST PRINCIPLE: Jurisdiction over the subject matter is determined by the allegation in the compliant .
Q: How do we determine whether a court has a jurisdiction or not over a particular case?
A: By reading the compliant, we will know whether the subject matter is within the jurisdiction of the
court or not. So the principle to remember is, jurisdiction over the subject matter of the case is
determined by the allegations in the complaint. They are determined in the allegations of the complaint
itself, not by the allegation of the defendant in his motion to dismiss.
EXAMPLE: A filed a complaint against B before the RTC of Davao City to recover an unpaid loan of
P250,000. By going over the complaint, does the RTC have jurisdiction? YES ( P250,000). Now, here
comes the defendant filing a motion to dismiss under Rule 16 alleging that it is not P250,000 but only
P50,000. Therefore, the court has no jurisdiction over the subject matter. So the court is confronted
with this situation.
Q: What will the court do? Should the court deny the motion to dismiss?
A: YES because jurisdiction over the subject matter is determined by the allegations in the complaint.
They are not determined by the allegations of the defendant in his motion to dismiss.
SECOND PRINCIPLE: When a defendant files a motion to dismiss on the ground that the court has no
jurisdiction over the subject matter, the defendant hypothetically admits all the allegations in the
complaint to be true. The defendant in the meantime, is not allowed to present evidence that the court
has no jurisdiction. Everything must be decided on the face of the complaint only.
So, this is the corollary principle when a defendant files a motion to dismiss on this ground, he
hypothetically admits all the allegations in the complaint. Hypothetical ba! Assuming, for the sake of
argument, that everything in your complaint is true, does the court have the jurisdiction?
EXAMPLE: Vannie Kolotski will file a case against you for P300,000 in the RTC on the ground that you owe
her P300,000. But the defendant will file a motion to dismiss, The RTC has no jurisdiction because the
loan is not P300,000 but only P50,000. The defendant will present evidence that it is not P300,000 but
P150,000. Can you do that? NO, you cannot do that because you have to hypothetically admit eh! If you
will file a motion to dismiss on that ground, it will be denied.
But suppose it is really P50,000 only and in the course of the trial, even plaintiffs own evidence shows
that the loan is only P50,000. If that is so, if that becomes apparent in the middle of the trial, Vannie
Kolotski will now move to dismiss on the ground that the lack of jurisdiction has now become apparent.
Anyway, you have not waived that defect. You can raise that anytime. But at the start of the case,
whatever the complaint says, that is assumed to be true for the moment, if the ground is lack of
jurisdiction. So, what is the principle there? Jurisdiction over the subject matter is determined purely by
the allegations in the complaint.
THIRD PRINCIPLE: Jurisdiction over the subject matter, once acquired by the court upon the filing of the
complaint, the court retains the jurisdiction over that case until that case is terminated. Any subsequent
development or any subsequent amendment of the law will no longer deprive the court of its
jurisdiction.
A perfect EXAMPLE is what happened with the effectivity of the law expanding the jurisdiction of the
MTC under RA 7691. The jurisdiction of the MTC under the old law is P20,000 lang eh. So, if your claim is
above P20,000, RTC na. And there were several cases pending in court already being tried P 30,000, P
40,000 in the RTC. Then in April 1994, the jurisdiction of the MTC was increased to P100,000. What
happens now to all those cases which were only P21,000 or P20,000? Shall the RTC dismiss all of them or
the RTC will finish it? Jurisdiction over the subject matter once acquired continues until the case is
finished or terminated. That is the principle to remember.
The ONLY POSSIBLE EXCEPTION there is what the Supreme Court says, if the new statute is intended to
be curative in character to cure the defect under the old law then the rule on adherence of
jurisdiction does not apply.
That was best exemplified by a situation years ago when there was a controversy as to whether a claim
for moral and exemplary damages filed by an employee against the employer for oppressive act of
terminating him can be granted by the Labor Arbiter.
Definitely, reinstatement and backwages can be granted by the Labor Arbiter. The jurisprudence at that
time when it was still unsettled was, the claim for moral should be settled in the RTC, not by the Labor
Arbiter. However, where these cases were still pending in the RTC, mga damages, in the meantime the
law naman was changed. The Labor Arbiter now was given jurisdiction to award damages.
So. what happen to the cases for damages now pending in the RTC? Should they be transferred to the
Labor Arbiter? It we follow the rule that jurisdiction once acquired continuous, the answer is, the RTC
should continue trying the case for damages and the Labor Arbiter continue to try the backwages and
reinstatement. But that is practically splitting the case into two parts.
So obviously, the intention of the law granting the Labor Arbiter the jurisdiction is to cure the error. So,
what happened? All those cases filed in the RTC were ordered transferred to the Labor Arbiter as an
exception to the rule on adherence to jurisdiction.
FOURTH PRINCIPLE: Lack of jurisdiction over the subject matter may be raised: 1) In the answer;
2) In the course of the trial; 3) After the trial; 4) After the judgment; or even 5) For the first time on
appeal.
All right, lets go to the basics:
Q: Can the issue of lack of jurisdiction over the subject matter be raised in the middle of the trial?
A: YES, there is no waiver.
Q: Suppose there is already a decision by the trial court, can you still raise the issue of lack of
jurisdiction? Why?
A: YES. The decision is deemed void because the court pala all along have no authority to try. So the trial
is void. The judgment is void. As a matter of fact it can be raised at any stage of the proceeding even for
the first time on appeal. That is the rule.
Now, that rule has somehow weakened or diluted by the ruling in
TIJAM vs. SIBONGHANOY
23 SCRA 29 [1968]
FACTS: The case of TIJAM was something really cohere and unique. From the start, the City Court of Cebu
has no jurisdiction. The defendant never filed a motion to dismiss. And what is so surprising is that the
court never noticed it.. So the parties will go on trial. After trial, the court rendered judgment in favor of
the plaintiff. The defendant was not satisfied. He appealed to the former CFI (now RTC) and on appeal
that issue on lack of jurisdiction was never raised. Talo na naman iyong defendant.
So all this process took about 10 years. Talo. So much water has already passed under the bridge.
Nagpalit ng abogado iyong defendant and he traced the proceeding. Actually all along, the inferior court
has no jurisdiction and everything is void from the very beginning. But take note, it took the defendant
through his lawyer 10 years or more to raise the issue. Now, of course, if we will follow the rule, it can be
raised at any stage at any time even for the first time on appeal on this ground that everything is void.
HELD: NO, you cannot raise it anymore. Under the equitable doctrine of estoppel by laches, you are
already under estoppel to raise that ground because the if you will follow the general rule and we will
declare null and void everything from the City Court to the CA, everything a judicial work which lasted
for 10 years will all be thrown in the waste basket. That is practically compelling the plaintiff to
undergo a second calvary. Ulit na naman siya just to prove his case.
But the ruling in SIBONGHANOY is not intended to be the rule. It is not intended to overrule the rule that
lack of jurisdiction over the subject matter can be raised at any stage of the proceeding. The ruling in the
SIBONGHANOY is only to be applied in exceptional situations
Even the SC noted that courts were applying the SIBONGHANOY ruling indiscriminately that it will take
you one or two months to raise lack of jurisdiction wala pa nag-unpisa ang trial then one or two
months after the case was filed, ah estoppel na! Practically, that is saying that lack of jurisdiction cannot
be raised anymore. But the SC said NO, that is wrong. In the case of
SEAFDEC AGRICULTURE DEPARTMENT vs. NRLC
206 SCRA 283 [1992]
HELD: A rule, that had been settled by unquestioned acceptance and upheld in decisions so numerous
to cite is that the jurisdiction of a court over the subject matter of the action is a matter of law and may
not be conferred by consent or agreement of the parties. The lack of jurisdiction of a court may be raised
at any stage of the proceedings, even on appeal.
This doctrine has been qualified by recent pronouncements which stemmed principally
from the ruling in the cited case of SIBONGHANOY. It is to be regretted, however, that the holding in said
case had been applied to situations which were obviously not contemplated therein. The exceptional
circumstances involved in SIBONGHANOY which justified the departure from the accepted concept of
non-waivability of objection to jurisdiction has been ignored and, instead a blanket doctrine had been
repeatedly upheld that rendered the supposed ruling in SIBONGHANOY not as the exception, but rather
the general rule, virtually overthrowing altogether the time-honored principle that the issue of
jurisdiction is not lost by waiver or by estoppel. (Calimlim vs. Ramirez, G.R. No. L-34362, 118 SCRA 399
[1982]).
So, this has already been clarified. The latest case was the 1995 case of
DE LEON vs. COURT OF APPEALS
245 SCRA 166
HELD: In the past, the principle of estoppel has been used by the courts to avoid a clear case of
injustice. Its use as a defense to a jurisdictional error is more of an exception rather than the rule. The
circumstances outlining estoppel must be unequivocal and intentional, for it is an exception to standard
legal norms and is generally applied only in highly exceptional and justifiable cases.
In other words, do not abuse the SIBONGHANOY ruling. That is very exceptional case.
Third Ground: [c] THAT VENUE IS IMPROPERLY LAID
Here, there is no compliance with Rule 4 the action is filed in the place other than the proper venue
under Rule 4.
Q: Suppose you file a motion to dismiss on the ground of improper venue, but your motion to dismiss is
denied. What is your remedy?
A: Your remedy is to resort to the special civil action of prohibition under Rule 65. And you should resort
to it immediately because if you will file your answer and go to trial, in effect, you will be waiving the
objection. The objection must be pursued diligently. That was the pronouncement in the case of
Pangasinan Transportation Co. v. Yatco (21 SCRA 658).
Fourth Ground: [d] THAT THE PLAINTIFF HAS NO LEGAL CAPACITY TO SUE;
Q: Give an example when the plaintiff has no legal capacity to sue.
A: A minor will file a case without being assisted by his parents or guardian. Or, a person will file a case in
behalf of a minor claiming that he is a guardian when in fact he is not. He is not the parent of the child.
He is not also appointed by the court.
According to the SC, when you say that the plaintiff lacks legal capacity to sue, there are two (2) possible
meanings. It means any of the following:
1.) when the plaintiff does not possess the necessary qualifications to appear at the trial such as when
the plaintiff is not in the full exercise of his civil right like when he is a minor, or insane; and
2.) when the plaintiff does not have the character or representation which he claims like he claims to be
a guardian when in reality he is not. (Lunsod vs. Ortega, 46 Phil. 664)
EXAMPLE: I will sue you as the guardian of a minor guardian ad litem. But actually, you will challenge
my being a guardian. There is no court order according to you. So, I might be of age but I have no legal
capacity to sue because I do not have the representation which I claim I have.
Q: (Bar question) Distinguish lack of legal capacity to sue from lack of legal personality to sue.
A: The former refers to disability of the plaintiff while the latter to the fact that the plaintiff is not a real
party in interest, in which case, the ground for dismissal would be that the complaint states no cause of
action (Gonzales vs. Alegarbes, 99 Phil 213; Casimiro vs. Roque, 98 Phil. 880)
ILLUSTRATION:
In lack of legal capacity to sue, you are referring to a disability of the plaintiff, like he is a minor; or he is
insane or incapacitated.
In lack of legal personality to sue going back to Rule 3, when you are appointed as agent or attorney-in-
fact of somebody to manage his property an to file suit in his behalf while you have the authority to file
cases, it does not mean to say that you should sue in you own name because the real party in interest is
the principal, not the agent.
So if the agent files an action in his own name, rather than that of the principal, what you are going to
say is, you are not the real party in interest. You are not challenging his age or disability but you are
challenging his being placed as plaintiff when actually he is only the attorney-in-fact or agent. In effect,
when you raise this ground, actually that would fall more under paragraph [g] that the pleading
asserting the claim states no cause of action because there is no cause of action in favor of the agent.
The cause of action is in the principal.
Fifth Ground: [e] THAT THERE IS ANOTHER ACTION PENDING BETWEEN THE SAME PARTIES FOR THE
SAME CAUSE;
Now, this is one of the most important grounds for a motion to dismiss. This is popularly known as the
ground of lis pendens. Now, do not confuse this with the notice of lis pendens that we discussed in Rule
13. That is the notice that you annotate on the title of the property when you are filing a case for its
recovery. Although the meaning is the same because lis pendens is Latin for pending litigation.
So the essence is that there is a case filed against you and then while it is pending, another case is filed
against you based on the same cause of action. So what will you do? I have to move to dismiss one case. I
will allege that there is already another action pending between the same parties for the same cause. So
in effect, what you are saying is the plaintiff is guilty of splitting his cause of action and this ground has
also been mentioned in Rule 2, Section 4:
Rule 2, Sec. 4. Splitting a single cause of action; effect of. - If two or more suits are instituted on the
basis of the same cause of action, the filing of one or a judgment upon the merits in any one is
available as a ground for the dismissal of the others. (4a)
So the filing of one case is available as a ground for the dismissal of the other. Now, such ground is stated
under Rule 16 that there is another action pending between the same parties for the same cause. The
other legal term for it aside from the ground of lis pendens is the ground of litis pendencia. Pareho din
iyan. It means the same thing. Thats why when you read some SC cases, the SC cites either one of the
two terms. There is another foreign term although it is less used, the ground of action pendant.
LITIS PENDENTIA viz a viz FORUM-SHOPPING
(taken from the 4th year Remedial Law Review transcription, 1997-98)
Now, you come analyze that when the other party files two cases against you, sabay-sabay what is the
correct ground for dismissal? Litis pendentia or forum-shopping? Is there a relationship between forum-
shopping and litis pendentia? When I file two identical cases in two courts, am I not also forum-
shopping?
Yaan! Iyan ang magandang tanong! Iyan ang malalalim na tanong sa procedure.
One of the most intelligent discussion on this topic was the case of FIRST PHILIPPINE INTERNATIONAL
BANK vs. CA (252 SCRA 259), January 24, 1996, penned for the Third Division by Justice Artemio
Panganiban.
Do you know what he said? Itong forum-shopping, how it started? Actually, it is a concept in Private
International Law where you shop for a forum where you look for a country where you will file a case
and then the court of that country will now reject it on the ground for forus non convenlens. That is
where it originates eh. You are shopping for a forum.
FIRST PHILIPPINE INTERNATIONAL BANK vs. COURT OF APPEALS
252 SCRA 259, January 24, 1996
Third Division, J. Artemio Panganiban.
HELD: Forum-shopping originated as a concept in private international law, where non-resident litigants
are given the option to choose the forum or place wherein to bring their suit for various reasons or
excuses, including to secure procedural advantages, to annoy and harass the defendant, to avoid
overcrowded dockets, or to select a more friendly venue. To combat these less than honorable excuses,
the principle of forum non conveniens was developed whereby a court, in conflicts of law cases, may
refuse impositions on its jurisdiction where it is not the most convenient or available forum and the
parties are not precluded from seeking remedies elsewhere.
In the Philippines, forum shopping has acquired a connotation encompassing not only a choice of
venues, as it was originally understood in conflicts of laws, but also to a choice of remedies.
As to the first (CHOICE OF VENUES), the Rules of Court, for example, allow a plaintiff to commence
personal actions "where the defendant or any of the defendants resides or may be found, or where the
plaintiff or any of the plaintiffs resides, at the election of the plaintiff" (Rule 4, Sec. 2 [b]).
That is forum-shopping. lba ang rule ng venue. Where will you file personal action? where the plaintiff
or any of the principal plaintiff resides, or, where the defendant or any of the defendants resides. So,
mamili ka! If I am the lawyer kung saan pabor, doon ako mag-file, and that is forum-shopping. But that is
legitimate forum-shopping because that is allowed by law.
As to remedies, aggrieved parties, for example, are given a choice of pursuing civil liabilities
independently of the criminal, arising from the same set of facts. A passenger of a public utility vehicle
involved in a vehicular accident may sue on culpa contractual, culpa aquiliana or culpa criminal each
remedy being available independently of the others although he cannot recover more than once.
(First Philippine International Bank vs. CA, supra.)
That is in effect forum-shopping. If I am the offended party, shall I prosecute the civil aspect in the
criminal action or shall I file an independent civil action or reserve the right? Nasa iyo man iyan ba! In
effect, you shop for a forum. That is also forum-shopping. But that is legitimate forum-shopping.
In either of these situations (choice of venue or choice of remedy), the litigant actually shops for a
forum of his action. This was the original concept of the term forum shopping which is perfectly a valid
act.
Eventually, however, instead of actually making a choice of the forum of their actions, litigants, through
the encouragement of their lawyers, file their actions in all available courts, or invoke all relevant
remedies simultaneously. This practice had not only resulted in conflicting, adjudications among
different courts and consequent confusion inimical to an orderly administration of justice. It had created
extreme inconvenience to some of the parties to the action.
Thus, forum shopping had acquired a different concept which is unethical professional legal practice.
And this necessitated or had given rise to the formulation of rules and canons discouraging or altogether
prohibiting the practice.
What therefore originally started both in conflicts of laws and in our domestic law as a
legitimate device for solving problems has been abused and mis-used to assure scheming litigants of
dubious reliefs.
Consequently, where a litigant or one representing the same interest or person sues the same party
against whom another action or actions for the alleged violation of the same right and the enforcement
of the same relief is/are still pending, the defense of litis pendencia in one case is a bar to the others;
and, a final judgment in one would constitute res judicata and thus would cause the dismissal of the rest.
In either case, forum shopping could be cited by the other party as a ground to ask for summary
dismissal of the two or more complaints or petitions, and for the imposition of the other sanctions,
which are direct contempt of court, criminal prosecution, and disciplinary action against the erring
lawyer. (First Philippine International Bank vs. CA, supra.)
So, what is the difference between forum shopping and litis pendentia? Actually, there is no difference.
Mas maganda pa nga i-dalawa mo litis pendentia and forum shopping. Ano ang effect? Sabihin mo, litis
pendentia one will be dismissed, the other will remain alive. In forum shopping naman, parehong patay
iyan. The court will dismiss both. I-disciplinary action pa ang abogado. There is no contempt of court in
litis pendentia.
That is now the relationship of forum shopping and litis pendentia.
Another case, also penned by Justice Panganiban in the same year, 1996, where he also made a
statement that forum shopping and litis pendentia are almost identical is the case of
EMPLOYEES COMPENSATION COMMISSION vs. COURT OF APPEALS
257 SCRA 717, June 28, 1996.
HELD: Forum-shopping exists where the elements of litis pendencia. The test therefore in determining
the presence of forum-shopping is whether in the two (or more case) pending, there is identity of (a)
parties, (b) rights or causes of action and (c) reliefs sought. Forum- shopping does not require a literal
identity of parties. It is sufficient that there is identity of interests represented.
When there is already adjudication on the merits in one case to be more accurate, RES ADJUDICATA
should be alleged, and not forum shopping as a defense because the decision in the previous case had
already become final and executory. So, when there is already a judgment in the previous case to be
exact that should be res judicata. But when there is no decision yet, that is litis pendentia and forum
shopping.
ELEMENTS OF LITIS PENDENTIA
Now, this is one of the grounds of a motion to dismiss which is the subject matter already of so many
cases and so many questions in the bar. One of the fundamental questions which is asked here is: What
are the requisites for litis pendencia as a ground for a motion to dismiss. Actually, there is no wrong if
will file as many cases as I want against you provided the causes of action are different. Sometimes, it is
difficult to determine where there is litis pendencia or none. It is possible for 2 cases to arise between
the same parties or the 2 cases are interrelated. But actually they arose from different causes of action.
So you will get confused.
Sometimes when you read cases decided by the SC on litis pendencia, you will have a hard time
determining whether the 2 cases are only related or they are really identical. IIf they are only related,
there is no basis for dismissal.
Q: What are the requisites of litis pendentia as a ground for a motion to dismiss?
A: There are four (4) requisites:
1.) Identity of parties between the two actions, or at least such as represent the same interest;
In the 2 actions, the parties are the same the same plaintiff, same defendant. Literally, they may not be
the same but the persons who are filing the second persons are actually doing it on you behalf. So they
also represent the same interest.
2.) Identity of rights asserted and relief prayed for;
The rights asserted are the same. The relief prayed for in both actions are the same.
3.) The relief must be founded on the same facts; So same basis; same evidence.
4.) The identity in these particulars should be such that any judgment which may be rendered on the
other action will, regardless of which parity is successful, amount to res adjudicata in the action under
consideration. (Olayvar vs. Olayvar, 98 Phil. 52; Sapul vs. Siva, 57 O.G. 1040, Feb. 6, 1961; Pampanga Bus
Co. vs. Ocefemia, L-21793, Oct. 20, 1966) In other words, the principle of res adjudicata will apply.
CASE: The husband filed an action for legal separation on the ground of adultery of his wife. In the same
action, the wife demanded, in a counterclaim, maintenance and support for her and here children.
Subsequently, the wife filed an independent action for support against her husband. Will the second
action prosper?
A: NO, the issue of support having been raised in the first action as a counterclaim, it cannot be made an
issue in a subsequent independent action. Hence, the independent action for support should be
dismissed on the ground of lis pendens, all the other requisites being present. (Olayvar vs. Olayvar,
supra) Klaro iyan. Nag-counterclaim ka ng support dito (first action). File ka na naman ng action for
support. So, there are now 2 actions for support. Di pwede yan.
Litis Pendentia; Fourth Element: THE IDENTITY IN THESE PARTICULARS SHOULD BE SUCH THAT ANY
JUDGMENT WHICH MAY BE RENDERED ON THE OTHER ACTION WILL, REGARDLESS OF WHICH PARITY IS
SUCCESSFUL, AMOUNT TO RES ADJUDICATA IN THE ACTION UNDER CONSIDERATION.
Now, out of these requisites the last one is the most important the identity of parties, rights, relief and
facts should be such that any judgment which the court will render in the other action will automatically
be res adjudicata in the present action. Any judgment which the court will render in the first case
regardless of who wins will amount to res adjudicata in the second action. That is a very important
requisite. Let us see how that was applied by the SC.
TAMBUNTING vs. ONG
L-2284, August 11, 1950
FACTS: It involves a case between a mortgagor and a mortgagee. Mortgagor filed a case against the
mortgagee. The nature of the action is annulment of mortgage contract annulment of real estate
mortgage. While their action was pending, the mortgagee filed another action against the mortgagor and
the action is foreclosure of the same mortgage. So dalawa na.
Now, the mortgagor, the plaintiff in the first case filed a motion to dismiss the second case on the ground
of litis pendentia on his argument that suppose I win in this case of annulment of mortgage and the
mortgage contract is annulled, what are you foreclosing? There is nothing to foreclose. So the second
action for foreclosure will have as basis if the mortgage contract is annulled in the first case. So there
being litis pendencia, the second case should be dismissed.
HELD: It is true that the second case will have no more leg to stand on if the mortgagor will win the first
case, that is if you win. Eh paano kung talo ka? Suppose the first case of annulment of mortgage contract
is dismissed? So the mortgage contract is valid, with more reason the mortgagee has the right to
foreclose.
Therefore, the fourth requisite is missing because the fourth requisite is regardless of who wins in the
first case, it will bar the second case. But here, the second case would be barred if the mortgagor wins
but if the mortgagee wins, the second case will not be barred. So the fourth element is not present.
There is no litis pendencia in this case.
FRANCISCO vs. VDA. DE BLAS
93 Phil. 1
FACTS: Jayhan filed a case against Jessa for recovery of a piece of land accion publiciana. According to
Jayhan, she is the owner of the land occupied by Jessa, so Jessa should surrender the land to him. Of
course, Jessa will deny that.
While the action was pending, Jessa naman filed another case against Jayhan for quieting of title (that
your title be in effect confirmed as valid so that you will not be molested anymore by the plaintiff). So in
effect, Jessa is asking the court to declare him as the real owner and is therefore entitled to possess the
property.
ISSUE: Is there litis pendencia? Can both cases prosper?
HELD: Alright, lets analyze. Suppose Jayhan wins the case for recovery, the court in effect is saying that
Jayhan is the real owner, that practically render moot and academic because practically if Jayhan wins
the first case, the action of Jessa for quieting of title will fail because the owner pala is Jayhan. In other
words, if Jayhan wins the first case, it will bar the second.
Now, suppose Jessa will in the first case, the court in effect is saying that Jayhan is not entitled to
possess, she is not the owner, Jessa is the owner. In effect, the title of Jessa is automatically granted,
rendering unnecessary the second case. So, that is a perfect example of litis pendentia whoever wins
in the first case will bar the second. This is an illustration of the fourth requisite.
So in this case, there is litis pendentia.
TEODORO vs. MIRASOL
99 Phil. 150
FACTS: There was a lease contract between the lessor and the lessee and they were already quarreling.
According to the lessor, Mr. Lessee, I would like to remind you that our contract is only good up to April.
So 3 months from now, expired na. you better look for a place to transfer because Im not going to
renew the lease contract.
Sabi ng lessee, No, no, no. That contract will be valid until next year pa! The lessor asserted tha the
contract is only good up to April. Nag-aaway na talaga sila. They already have a quarrel as to whether
that contract is only good up to April or until next year.
Now, what happens, inunahan ni lessee ang lessor. He filed immediately an action for declaratory relief
under Rule 63 on the issue on whether the contract will expire by April or next year pa. The case dragged
on and dumating na ang April and of course the contention of the lessor is that the contract has expired.
So file na si lessor ng unlawful detainer on the ground that the lease contract has expired.
So dalawa na ang kaso. May litis pendencia na. One of them must be dismissed. The lessor filed a motion
to dismiss on the ground of litis pendencia. The lessee complained, Why will you dismiss my case eh
mas nauna ako sa yo?! If there is an action which should be dismissed, it must be yours. Nauna akong
nag-file. Dapat sa iyo ang i-dismiss, last ka man nag-file.
ISSUE: When there is litis pendentia, which action should be dismissed?
HELD: The dismissal of the first action would be proper. Why? What is the ground for dismissal? that
there is another action pending between the same parties for the same cause. The law does not say that
there is another prior action pending. Wala mang word na prior ba, basta another action. So, in litis
pendencia, either one can be dismissed. It does not necessarily follow that the first one will be dismissed
or the second one. Either one will be dismissed.
Now, the most exhaustive discussion on this issue on which case should be dismissed when there is
litis pendentia was the 1993 case of:
VICTRONICS COMPUTERS INC. vs. RTC BRANCH 63 OF MAKATI
217 SCRA 517
HELD: As a general rule, it should be the second case that should be dismissed by applying the principle
of priority in time and the Latin maxim of qui prior estempore ochor estiore (he who is before in time is
the better law). Priority in time gives preference in law. And that is common sense. Just like in Labor Law
last in, first out kung huli kang dumating, you are the last to be employed. Kung termination, unahin
ka rin, last ka eh. So thats the general rule.
But the general rule is not true all the time just like what happened in the case of TEODORO VS. MIRASOL
where the first case was ordered dismissed. Also in the case of RAMOS VS. PERALTA (98 Phil)
Q: What was the principle used in the case of TEODORO and RAMOS in sustaining the dismissal of the
first case instead of the second?
A: The criterion which was applied by the SC was: What is the more appropriate action to remain. So
hind iyung nauna but that which is more appropriate. In the case of TEODORO, since we are talking
about ejectment here, the unlawful detainer case is the more appropriate action to remain rather than
the first (declaratory relief). So it is not a question of sino ang nauna but which action should stay for the
good of the parties. The same thing happened in the case of
ROA MAGSAYSAY vs. MAGSAYSAY
98 SCRA 592
HELD: In this case there was also a conflict on which case should be dismissed and which case should
remain. The trial court ordered the dismissal of the first case by applying another criterion the criterion
of interest of justice. In applying this standard, the court should ask which case is in a better position to
serve the interest of justice or which case should remain to serve the interest of justice taking into
account the nature of the controversy, the comparative accessibility of the court to the parties and other
similar factors.
So, the general rule is: dismiss the second case, let the first case remain based on the rule on priority in
time. But sometimes, sabi ng SC, it is better that the first case is dismissed by using the standard of
(1) more appropriate action or (2) interest of justice.
And the SC said, it will boil down to this was the first action filed in good faith or bad faith? Now, sabi
ng SC in the case of TEODORO, it was obvious that the first action was filed by the lessee in bad faith
because the lessee knows that by April, pa-file-an na siya ng kaso ng lessor to eject. Of course, meron
man siyang depensa. His defense will be the contract will expire next year pa but siguro he believes in
the principle of priority in time, the best defense is an offense. So, inunahan ko siya. So, may defense in
the unlawful detainer case was converted into a cause of action. Instead of using his argument as a
defense in his answer to the unlawful detainer, he converted it into a cause of action. So, We will dismiss
you. That was what happened in TEODORO. So, more or less, that is the explanation given by the SC in
VICTRONICS case.
Now, in a case the SC again touched on this criteria about litis pendentia. Practically, it is a reiteration of
VICTRONICS COMPUTERS case. I am referring to the case of
ALLIED BANKING CORP. vs. CA
259 SCRA 371, July 26, 1996
HELD: Justice Mendoza summarized the principle in this manner: Given, therefore, the pendency of two
actions, the following are the relevant considerations in determining which action should be dismissed:
(1) the date of filing, with preference generally given to the first action filed to be retained that
is the priority in time rule;
(2) whether the action sought to be dismissed was filed merely to preempt the later
action or to anticipate its filing and lay the basis for its dismissal iyan ang tinatawag na the best defense
is offense that is the TEODORO vs. MIRASOL case the action is filed merely as an anticipating action;
and
(3) whether the action is the appropriate vehicle for litigating the issues between the parties.
So that is practically again the summary of VICTRONICS COMPUTERS case.
PAMPANGA BUS CO. (PAMBUSCO) vs. OCEFEMIA
18 SCRA 407
NOTE: This problem was already asked in the Bar.
FACTS: Cholo is a resident of Manila; Lew is a resident of Davao. There was contract between them.
Cholo filed a case against Lew on lets say, January 5 in Manila where he resides, based on that contract.
The venue is proper because the plaintiff is a resident of Manila.
Now, lets say on January 10, Lew not knowing about the Manila case filed an identical action against
Cholo in Davao City. So hindi alam ni Lew na mayroon na palang kaso. So dalawa na. And then on January
15, Lew received summons in Manila case. By January 20, Cholo filed a motion to dismiss the Davao case
on the ground of litis pendentia.
According to Lew, there is no litis pendentia because when I filed may case against Cholo, there is no
pending action to talk about because hindi ko alam. I received the summons very much later.
ISSUE: Was there litis pendentia? Is Lew correct?
HELD: There was litis pendentia. Lew is wrong. Why? When does an action, become pending? An actions
becomes pending upon the filing of a case in court and the payment of docket fee. The actions does not
become pending only from the time you receive the summons. It is pending form the moment it was
filed. Therefore when it was filed on January 5, t is already pending although you did not know about it.
That is the reasoning in this case.
ANDRESONS GROUP vs. COURT OF APPEALS
G.R. No. 114928; January 21, 1997
FACTS: Willy Denate entered into an agency agreement with AG as its commission agent for the sale of
wines and liquors in Davao City, Davao provinces and North Cotabato. On November 18, 1991, Denate
filed a civil action for collection of sum of money against AG before the RTC Davao.
Denate alleged that he was entitled to the amount of P882,107.95, representing commissions from AG
but that AG had maliciously failed and refused to pay the same. On December 19, 1991, AG likewise filed
a complaint for collection of sum of money with damages against Denate with the RTC Kalookan City. AG
alleged that Denate still owed it the sum of P1,618,467.98 after deducting commissions and remittances.
Denate filed a Motion to dismiss the case with the Kalookan RTC on the ground that there was another
action pending between the same parties for the same cause of action, citing the case earlier filed with
the RTC of Davao City.
AG filed its opposition to the Motion to Dismiss on the ground that the RTC of Davao had not acquired
jurisdiction over it.
RTC of Kalookan City ruled that: the Davao case involves the same parties, and involves substantial
identity in the case of action and reliefs sought, as in the instant case however, jurisdiction over the
parties has already been acquired by the RTC Kaloocan, as Denate received the summons as early as Jan
8, 1992, and AG. On the other hand, the summons in the Davao case has not yet been served as of Apr
21, 1992, the date of the hearing of the instant motion, so much so that the said Davao Court has not yet
acquired jurisdiction over the parties. The CA reversed.
ISSUE: Should the action in the Kalookan RTC be dismissed on the ground of lis pendens?
HELD: YES. Lis pendens as a ground for the dismissal of a civil action refers to that situation wherein
another action is pending between the same parties for the same cause of action. To constitute the
defense of lis pendens, it must appear that not only are the parties in the two actions the same but there
is substantial identity in the cause of action and relief sought.
Further, it is required that the identity be such that any judgment which may be rendered in the other
would, regardless of which party is successful, amount to res judicata on the case on hand. All these
requisites are present in the instant case: 1.)The parties in the Davao and Caloocan cases are the same;
2.) They are suing each other for sums of money which arose from their contract of agency; 3.) The relief
prayed for is based on the same facts and there is identity of rights asserted; 4.) Any judgment rendered
in one case would amount to res judicata in the other.
In conceptualizing lis pendens, we have said that like res judicata as a doctrine, litis pendentia is a
sanction of public policy against multiplicity of suits. The principle upon which a plea of another action
pending is sustained is that the latter action is deemed unnecessary and vexatious.
AG asserts that the Davao Court had not yet acquired jurisdiction over the parties as the summons had
not been served as of April 21, 1992 and it claims that pendency of a case, as contemplated by the law
on lis pendens, presupposes a valid service of summons.
This argument is untenable. A civil action is commenced by filing a complaint with the court. The
phraseology adopted in the Rules of Court merely states that another action pending between the same
parties for the same cause is a ground for motion to dismiss. As worded, the rule does not contemplate
that there be a prior pending action, since it is enough that there is a pending action. Neither is it
required that the party be served with summons before lis pendens should apply. The rule of lis pendens
refers to another action. An action starts only upon the filing of a complaint in court.
It must be emphasized that the rule on litis pendentia does not require that the later case should yield
to the earlier. The criterion used in determining which case should be abated is which is the more
appropriate action or which court would be in a better position to serve the interests of justice. Applying
these criteria, and considering that both cases involve a sum of money collected in and around Davao,
the Davao Court would be in a better position to hear and try the case, as the witnesses and evidence
would be coming from said area.
WHEREFORE, the decision of the CA is hereby AFFIRMED.
Sixth Ground: [f] THAT THE CAUSE OF ACTION IS BARRED BY A PRIOR JUDGMENT OR BY THE STATUTE OF
LIMITATIONS;
Actually there are two grounds here:
1.) Barred by prior judgment (RES ADJUDICATA) and 2.) Barred by statute of limitations.
BARRED BY PRIOR JUDGMENT OR RES JUDICATA. This is also related to splitting of cause of action. The
only difference is: there is already a judgment in the first action which has become final and executory.
That is why, you have to go back to Rule 2, Section 4 what is the effect of splitting a cause of action?
The pendency of one case or judgment in one case is a ground f or the dismissal of the other.
So, if there is a case on appeal, the proper ground for dismissal would be litis pendentia rather than res
adjudicata because the case is still pending before the CA the judgment is not yet final.
BARRED BY STATUE OF LIMITATIONS. Prescription. Filed out of time.
The grounds on motion to dismiss are waivable based on Rule 9, Section 1 defenses and objections not
pleaded whether in a motion to dismiss or in the answer are deemed waived. HOWEVER when it appears
from the pleadings or the evidence on record:
1.) that the court has no jurisdiction over the subject matter (Rule 16, Section 1 [b]);
2.) that there is another action pending between the same parties for the same cause (Rule 16, Section 1
[e]); or
3.) that the action is barred by a prior judgment (Rule 16, Section 1 [f]); or 4.) that the action is barred
statute of limitations (Rule 16, Section 1 [f]), the court shall dismiss the claim.
Seventh Ground: [g] THAT THE PLEADING ASSERTING THE CLAIM STATES NO CAUSE OF ACTION;
That is also an important one the pleading asserting the claim does not state a cause of action. In most
cases, it is the defendant who files a motion to dismiss citing this ground.
Remember that under Rule 2, Section 1, every civil action must be based on a cause of action. Therefore,
the four (4) elements of cause of action must be alleged. If one element is missing, there is no cause of
action and it is now a ground for dismissal. So, that is a condition. Kung walang cause of action, patay!
I think the language of the previous rule is: The complaint states no cause of action. That is the 64 Rules.
Ito namang 1997 Rules: The pleading asserting the claim states no cause of action. This is broader
because the pleading which does not state a cause of action could be a complaint, counter-claim, cross-
clam or third-party complaint. So, it is broader.
Q: How will you know that the pleading (e.g. complaint) states or does not state a cause of action?
A: The principle to remember is: Whether the pleading states a cause of action or not is determined only
by allegations in the pleading. The rule is similar to on the ground of lack of jurisdiction under paragraph
[b].
The defendant is not allowed to say that the plaintiff has no cause of action because what he is saying in
his complaint is not true and this is what is true. No, that will not lie. You have to hypothetically admit
again.
What is the rule? When a defendant files a motion to dismiss under this ground, he hypothetically admits
the truth of all the allegation raised in the complaint. And he is posing this question: Assuming for the
sake of argument that everything contained in your complaint or pleading is really correct, are you
entitled to the relief prayed for?
If the answer is YES, then it states a cause of action. If the answer is NO, even if lahat niyan eh totoo, you
still cant win, then there is something wrong in the complaint. It still states no cause of action.
Therefore, when the defendant disputes the truth of the allegations of the complaint, the correct move
is to file an answer and not a motion to dismiss. He cannot dispute the allegation in the pleading because
he hypothetically admits them.
That is why the SC said in the case of
MUNICIPALITY OF BIAN vs. GARCIA
180 SCRA 576 [1989]
HELD: The lack of cause of action is not a ground for the dismissal of an action under Rule 16. The ground
is the failure of the complaint to state a cause of action which is obviously not the same as the plaintiff
not having a cause of action. The lack of cause of action becomes evident during the course of the trial
but whether the complaint states a cause of action is only limited to what the complaint says.
So, my complaint may state a cause of action when in reality it does not. At that moment, you cannot
dismiss it.
Now, of course the rule that a defendant who files a motion to dismiss hypothetically admits all the
allegations in the complaint, as explained by the SC, refer only to material allegations of ultimate facts. If
those are evidentiary facts or conclusions of fact or law, they are not admitted, for in the first place, they
have no place in the pleading.
Di ba? You are not supposed to allege conclusion there or arguments. So these are not admitted even if I
filed a motion because what are admitted are those material allegation of the ultimate facts. That is the
ruling in the 1990 case of
RAVA DEV'T CORP. vs. COURT OF APPEALS
211 SCRA 144 [1992]
HELD: The hypothetical admission is however limited to the relevant and material facts well pleaded in
the complaint and inferences fairly deductible therefrom. The admission does not extend to conclusions
or interpretations of law; nor does it cover allegations of fact the falsity of which is subject to judicial
notice.
Meaning, you allege there something which is 100% false and the court knows it, but you filed a motion
to dismiss, are you deemed to hypothetically admit something which everybody knows is false? NO.
When you file a motion to dismiss, you are deemed to admit everything there is true except matters
which are 100% false and which the court itself knows to be false, or the conclusions of the pleader
because in the first place, conclusions have no place in the pleading.
ROSITA TAN vs. COURT OF APPEALS
295 SCRA 247 [Sept. 9, 1998]
FACTS: The controversy centers on 2 parcels of land, Manila previously owned by one Alejandro Tan Keh
and which were then covered by TCT 35656.Fernando Tan Kiat claimed that he bought the land from Tan
Keh in 1954, but was unable to effect immediate transfer of title in his favor in view of his foreign
nationality at the time of the sale. Nonetheless, as an assurance in good faith of the sales agreement, Tan
Keh turned over to Kiat the owner's duplicate copy of TCT 35656 and, in addition, executed a lease
contract in favor of Kiat for 40 years.
However, in 1958, Tan Keh sold the subject properties to Remigio Tan, his brother and father of Rosita
Tan, with the understanding that the land are to be held in trust by Remigio for the benefit of Kiat and
that Remigio would execute the proper documents of transfer in favor of Kiat should Kiat at anytime
demand recovery of land.
TCT 35656 was thus cancelled and in lieu thereof TCT 53284 was issued in the name of Remigio. Another
contract of lease was executed by Tan Keh and Remigio in favor of Kiat to further safeguard Kiat's
interest on the land, but Kiat never paid any rental and no demand whatsoever for the payment thereof
had been made on him.
Remigio was killed in 1968. At his wake, Rosita was reminded of Kiat's ownership of the land and she
promised to transfer the land to Kiat who by then had already acquired Filipino citizenship by
naturalization.
Rosita, however, never made good their promise to convey the land despite repeated demands by Kiat.
In fact, Rosita had the land fraudulently transferred to her name under TCT 117898. Thus, the filing of
the complaint for recovery of property.
On Nov 10, 1993, Rosita filed a Motion To Dismiss the complaint, claiming that: the complaint stated no
cause of action; the cause of action has long prescribed; the cause of action has long been barred by a
prior judgment; and, the claim has been waived, abandoned and/or extinguished by laches and estoppel.
The RTC issued an order dismissing Kiat's complaint, acceding to all the grounds set forth by Rosita in her
motion to dismiss. CA set aside the dismissal and ordered the remand of the case for further
proceedings.
HELD: There is merit in the petition. There being no trust, express or implied, established in favor of
Kiat, the only transaction that can be gleaned from the allegations in the complaint is a double sale, the
controlling provision for which is Art. 1544 of the Civil Code. Kiat alleged that he bought the subject
properties from Tan Keh in 1954 but nonetheless failed to present any document evidencing the same,
while Remigio, as the other buyer, had in his name TCT 53284 duly registered on Oct 13, 1958.
Remigio, beyond doubt, was the buyer entitled to the subject properties since the
prevailing rule is that in the double sale of real property, the buyer who is in possession of a Torrens title
and had the deed of sale registered must prevail. Rosita is in possession of TCT 117898 which evidences
her ownership of land. Kiat relies simply on the allegation that he is entitled to the properties by virtue of
a sale between him and Tan Keh who is now dead. Obviously, Kiat will rely on parol evidence which,
under the circumstances obtaining, cannot be allowed without violating the "Dead Man's Statute" found
in Sec. 23, Rule 130. Clearly then, from a reading of the complaint itself, the complaint indeed does not
spell out any cause of action.
We also agree with Rosita's submission that Kiat's cause of action has prescribed. TCT 53284 in the
name of Remigio was registered on Oct 13, 1958, while TCT 117898 in the name of Rosita, was issued on
Apr 21, 1975. Kiat filed his complaint on Oct 18, 1993. CA held that the 10-year prescriptive period for
the reconveyance of property based on an implied trust cannot apply in this case since Kiat was in actual
possession of the subject properties.
However, Kiat's occupation of the land was never in the concept of an owner since he was a mere
lessee who is estopped from denying the title of Remigio as owner-lessor. It thus becomes evident that
the filing of Kiat's complaint in 1993 35 years after TCT 53284 in the name of Remigio was registered
and 18 years after the issuance of TCT 117898 in the name of Rosita was way beyond the 10-year time
limit within which reconveyance of property based on an implied trust should be instituted. Kiat's cause
of action, assuming that it exists, has clearly prescribed.
Finally, Kiat is guilty of laches. Kiat's possession of the land cannot be made the basis to deflect the
effects of laches because he is a mere lessee who, to repeat, cannot assert any adverse claim of
ownership over the subject properties against the lessor-owner. What ought to be in focus is that, Kiat
was not able to effect the transfer of title over the subject properties in his favor upon his purchase
thereof from Tan Keh in 1954 because he was still a foreigner at that time. But Kiat later on claimed that
he was already a Filipino national when he reminded Rosita of his ownership of the subject properties
during Remigio s wake sometime in 1968.
It may be reasonably deduced from these allegations that Kiat acquired Filipino citizenship by
naturalization, thus entitling him to own properties in the 1960's, more or less. His mistake, if it is one, is
that he tarried for 30 years before formally laying claim to the subject properties before the court.
Considerable delay in asserting one's right before a court of justice is strongly persuasive of the lack of
merit of his claim, since it is human nature for a person to enforce his right when the same is threatened
or invaded. Thus, Kiat is estopped by laches from questioning the ownership of the land.
WHEREFORE, the assailed decision of CA is SET ASIDE, and a new one is rendered DISMISSING Fernando
Tan Kiat's complaint.
Q: Now, is there an exception to the rule that when the court determines whether there is a cause of
action or not, the court cannot look at the evidence all must be based on the complaint and there
should be no appreciation of any evidence?
A: Based on the EXCEPTION in the case of
SANTIAGO vs. PIONEER SAVINGS & LOAN BANK
157 SCRA 100 [1987]
FACTS: The plaintiff filed a complaint against defendant with a prayer for a preliminary injunction. So, it is
not only a complaint but plaintiff applied for a provisional remedy. And under the law in provisional
remedy, that must be heard immediately because that is urgent, eh! And in a preliminary injunction,
there must be a hearing because preliminary injunction cannot be granted ex parte.
So even before the answer could be filed, nagkaroon na ng hearing and the plaintiff already presented
evidence on his cause of action during the hearing for the issuance of the writ of preliminary injunction.
Then after the hearing, here comes now the defendant moving to dismiss the entire case because there
is no cause of action based on the evidence you presented.
Plaintiff: No, the cause of action is determined only based on the allegations in the complaint and you do
not look at the evidence.
HELD: That is the general rule. If nag-present ka na ng ebidensiya in the preliminary injunction, the court
can now determine whether there is a cause of action also based on the evidence. So that is the
exception because there has been a reception of evidence ahead of a motion to dismiss.
It is true that the determination of the sufficiency of a cause of action must be limited to the facts
alleged in the Complaint and no other should be considered. However, where a hearing was held and
documentary evidence was presented, not on the Motion to Dismiss but on the question of granting or
denying an application for a Writ of Preliminary Injunction, a motion to dismiss for insufficiency of cause
of action will be granted if documentary evidence admitted by stipulation disclosing facts sufficient to
defeat the claim which authorizes the court to go beyond disclosure in the complaint.
So that would be the exception: where evidence has already been presented in the main cause of action
because of the application for preliminary injunction.
Eight Ground: [h]THAT THE CLAIM OR DEMAND SET FORTH IN THE PLAINTIFF'S PLEADING HAS BEEN
PAID, WAIVED, ABANDONED, OR OTHERWISE EXTINGUISHED;
Under Obligations and Contracts, the modes of extinguishing obligation are Payment, Performance,
Condonation, Compensation, Remission, etc. So if I have already paid a sum of money and you are filing a
case to collect such amount, I can file a motion to dismiss on the ground that the claim or demand set
forth in the complaint has already been paid or otherwise extinguished.
Ninth Ground: [i] THAT THE CLAIM ON WHICH THE ACTION IS FOUNDED IS UNENFORCEABLE UNDER THE
PROVISIONS OF THE STATUTE OF FRAUDS
Statute of Frauds are contracts under Article 1403 of the Civil Code which are unenforceable if not made
in writing. However there is still a valid contract, only they are unenforceable because they were not
reduced into writing.
EXAMPLES of Statute of Frauds under Article 1403:
1.) a contract that by its terms is not to be performed within one year from the making of such contract;
2.) a special promise to answer for the debt, default, or miscarriage of another;
3.) an agreement made in consideration of marriage, other than a mutual promise to marry;
4.) an agreement for the sale of goods, chattels or things in action, at a price not less than five hundred
pesos;
5.) an agreement for the leasing for a longer period than one year, or for the sale of real
property or an interest therein;
6.) a representation as to the credit of a third person.
Tenth Ground: [j] THAT A CONDITION PRECEDENT FOR FILING THE CLAIM HAS NOT BEEN COMPLIED
WITH.
Meaning, the law requires something to be done before going to court and if you file the case in court
immediately without complying with that condition precedent, then the defendant can move for
dismissal of the complaint.
EXAMPLES:
1.) Failure to exhaust administrative remedies;
2.) Failure to undergo Barangay Conciliation;
For parties residing in the same city, one must first settle or compromise the suit at the barangay level
before raising the action in court. If nothing will happen then proceed the case to court.
3.) Article 151 of the Family Code contemplates suit between family members.
It must be alleged in the complaint that earnest efforts towards a compromise is made between:
husband and wife, parents and children, ascendants and descendants, brothers and sisters, whether full
or half blood. So you are not allowed to file a case directly between family members in order to preserve
the family as a basic social institution being the foundation of the nation.
So it should appear form a verified complaint or petition that earnest efforts toward a compromise have
been made, but the same have failed. If it is shown that no such efforts were in fact made, the case must
be dismissed.
Q: What about a suit to a nephew?
A: Article 151 will not apply. One can file directly to the court because even though he is your relative
he is not a member of your family.
Q: How about a suit against a brother and a stranger?
A: There is no need for the requirement of earnest efforts. It is a mixed case, there is already a stranger
included. Pag-nahaluan na, Article 151 will not apply anymore.
Now, under the last sentence of Article 151, This rule shall not apply to cases which may not be the
subject of compromise under the Civil Code. This refer to Article 2035 of the New Civil Code:
Art. 2035. No compromise upon the following questions shall be valid:
1. The civil status of persons;
2. The validity of a marriage or a legal separation;
3. Any ground for legal separation;
4. Future support;
5. The jurisdiction of courts;
6. Future legitime.
So hindi nyo pwedeng pag-usapan na lang ang mga bagay na iyan. If a person claiming to be the son of
your father and you wish to avoid delay, you will seek to compromise, this cannot be done. As well as
saying you are single even if you are married in order to facilitate things, this cannot be done.
Under the 1964 Rules, this last ground (non-compliance with a condition precedent requirement) is not
found therein. However, there is a ground that is no longer found in the present Rules of Court, that the
suit between members of the family and that no earnest efforts towards a compromise has been made,
this was stated as the last ground. It does not mean, however, that it can no longer be applied. This has
been incorporated under paragraph [j] of the new rules. It is already a broader ground.
Sec. 2. Hearing of motion. At the hearing of the motion, the parties shall submit their arguments on
the questions of law and their evidence on the questions of fact involved except those not available at
that time. Should the case go to trial, the evidence presented during the hearing shall automatically be
part of the evidence of the party presenting the same. (n)
During the hearing of a motion to dismiss, the movant is allowed to present evidence to prove his claim.
Like for example: the venue is not properly laid or the action is already extinguished by payment or the
action is already barred by a prior judgment.
GENERAL RULE: On hearing on a motion to dismiss, the defendant is allowed to present evidence to
prove the ground for his dismissal.
EXCEPTION: He is not allowed when the grounds are:
1.) Lack of jurisdiction over the subject matter (paragraph [b]); or
2.) The pleading asserting the claim states no cause of action (paragraph [g])
When these are the grounds invoked, the defendant is not allowed to present evidence because you are
hypothetically admitting all the allegations in the complaint as true and correct. You are not allowed to
dispute or deny those allegations. It shall be based purely on the allegations of the complaint so you are
not allowed to prove that those allegations are not true.
And should the case go to trial, the evidence presented shall automatically form part of the evidence of
the party presenting the same. There is no need to present those evidence again during the trial because
the evidence during the hearing is automatically part of the evidence during the trial. This is similar to
the rule on Bail in Criminal Procedure.
Sec. 3. Resolution of motion. After the hearing, the court may dismiss the action or claim, deny the
motion, or order the amendment of the pleading.
The court shall not defer the resolution of the motion for the reason that the ground relied upon is not
indubitable.
In every case, the resolution shall state clearly and distinctly the reasons therefor. (3a)
Q: How will the court rule on the motion to dismiss?
A: The following:
1.) The court will dismiss the action. (motion is granted);
2.) The court will deny the motion (proceed to trial); or
3.) The court will order the amendment of the pleading
When the court orders the amendment of the pleading, in effect the motion to dismiss is also denied. So,
the rule is when the ground for the dismissal can be cured by amending the complaint, do not dismiss
but require the party to amend the complaint. That is a polite way of denying your motion to dismiss.
Like for example, the cause of action is imperfectly stated, kulang ng allegation ba. So the plaintiff would
say: Your Honor, we will add one sentence para makumpleto. Sabi ng judge: No! no! no! We will
dismiss. No, the judge cannot do that. Curable yon eh! And amendment of the pleading is favored.
Q: Suppose the plaintiff filed a complaint and the defendant files a motion to dismiss, can the plaintiff
still amend his complaint? Otherwise stated, can the plaintiff still amend his complaint when there is
already a motion to dismiss?
A: Ah YES! Because it is the right of the plaintiff to amend his complaint before a responsive pleading is
served upon him. And a motion to dismiss is not a responsive pleading. It is not even a pleading (Guirao
vs. Ver, April 29, 1966) The responsive pleading to the complaint is the Answer.
Q: Now, suppose there is already an order of dismissal in which the court has already ordered the
dismissal of the case, because it does not state the cause of action of the complaint. Plaintiff: Alright!
Motion to amend the complaint to state the cause of action and set aside the order of dismissal. Can
that still be done at that stage where there is already an order of dismissal?
A: YES! Provided the order of dismissal has not yet become final and executory because the rule is
absolute: for as long as there is still no responsive pleading, the right of the plaintiff to amend his
complaint is a matter of right.
The second paragraph of the section The court shall not defer the resolution is an amendment of the
previous rule. Under the previous rule, the court had four options: 1) grant the motion; 2) deny; 3)order
amendment; and 4) defer the resolution for the reason that the ground relied upon is not indubitable.
What does it mean?
Indubitable means without a doubt, thus the ground was not without a doubt, it is doubtful, it is not
indubitable. EXAMPLE: Defendant filed a motion to dismiss the case and the court analyzed the ground.
After analyzing, the court is not sure. The ground seems to be valid but the court also doubts. Parang 50-
50 ba.
Now the previous rule allows the court not to actit will not act, it will not deny. The court will just
postpone the resolution of the motion to dismiss, until the trial, because the ground is doubtful. In the
course of the trial, the court may realize whether the ground is correct or not. When the ground
becomes clearer, the court may say, All right, I will grant the motion. That was allowed under the
previous rule.
NOW, that is not allowed anymore. The court really has to act on the motion: either grant it, deny it, or
order the amendment.
Even under the previous rule, there were already instances where the SC said that the courts should not
postpone the resolution, especially when the ground of dismissal is lack of jurisdiction over the subject
matter, or that the complaint states no cause of action. Why? The court only has to read the complaint
and there is no need of presentation of evidence to rule on the motion. There were decided cases along
that line, and obviously that reasoning predominated the committee.
The last paragraph is self-explanatory, whether the Court denies or grants the Motion, it must support its
Order.
Sec. 4. Time to plead. If the motion is denied, the movant shall file his answer within the balance of the
period prescribed by Rule 11 to which he was entitled at the time of serving his motion, but not less
than five (5) days in any event, computed from his receipt of the notice of the denial. If the pleading is
ordered to be amended, he shall file his answer within the period prescribed by Rule 11 counted from
service of the amended pleading, unless the court provides a longer period. (4a)
Q: Suppose defendant files a motion to dismiss and the court granted the motion. The case is dismissed.
What happens to the case?
A: No more case. The defendant has no more problem because the case has been ordered dismissed.
Q: Suppose the court denies the motion to dismiss?
A: Defendant is now obliged to file his answer. Under Rule 11, he has 15 days to file his answer.
Q: But instead of filing his answer, he files a motion to dismiss. Like for example, after consuming 8 days,
he files a motion to dismiss, the running of the period stops. After a while, he receives an order denying
his motion. How many more days does he have?
A: Seven (7) days only. He must file his answer within the remaining balance of the period.
This is a radical departure from the previous Rule. Under the 1964 Rules, when you file a motion to
dismiss on the eight day, and the motion is denied, you have 15 days all over again to file an answer.
NOW, no more you only have the remaining balance of the 15-day period.
Q: Now, suppose you file your motion to dismiss on the 13th day, so, two days to go. If your motion is
denied, do you only have two days to file your Answer?
A: NO. You are entitled to not less than five (5) days. This is identical with Rule 12, Section 5 on Bills of
Particular:
Rule 12, Sec. 5. Stay of period to file responsive pleading. - After service of the bill of particulars or of a
more definite pleading, or after notice of denial of his motion, the moving party may file his responsive
pleading with the period to which he was entitled at the time of filing his motion, which shall not be less
than five (5) days in any event. (1[b]a)
Sec. 5. Effect of dismissal. Subject to the right of appeal, an order granting a motion to dismiss based
on paragraphs (f), (h) and (i) of section 1 hereof shall bar the refiling of the same action or claim. (n)
Normally, when the motion to dismiss is granted, it does not prevent the plaintiff from re-filing the case.
Like for example, the case is dismissed for lack of jurisdiction over the subject matter. I can re-file that in
the proper court. Or, suppose the case is dismissed for improper venue, so I will file it in the proper
venue.
But there is a new provision, that is, if the ground for a motion to dismiss are the following you cannot
re-file it anymore. That is: paragraphs [f], [h] and [i]. Ano iyon? Prior judgment, res judicata, statute of
limitations, prescription of the claim or statute of frauds.
Tama man ba! common sense lang yan eh! Kaya nga na-dismiss eh kasi res judicata na, tapos magpa-file
ka na naman ng panibago? Hindi na puwede yan. Or, it is already dismissed because the obligation has
already been paid, then you will file? That cannot be done anymore. So, in other words, it is res judicata
already. So to summarize:
GENERAL RULE: A case that has been dismissed can be re-filed. EXCEPTIONS: When the case was
dismissed on the following grounds:
1.) That the cause of action is barred by a prior judgment or by the statute of limitations;
2.) That the claim or demand set forth in the plaintiffs pleading has been paid, waived,
abandoned or otherwise extinguished; or
3.) That the claim on which the action is founded is unenforceable under the provisions of the Statute of
Frauds.
Q: For example, the court says: Your action is barred by res judicata. But actually, the court is wrong,
what is your REMEDY?
A: Your remedy is to appeal from the order of dismissal, but not to re-file the case because that would
already be res adjudicata. That is common sense.
Sec. 6. Pleading grounds as affirmative defenses. If no motion to dismiss has been filed, any of the
grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer
and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss
had been filed. (5a)
The dismissal of the complaint under this section shall be without prejudice to the prosecution in the
same or separate action of a counterclaim pleaded in the answer. (n)
Q: For example, Im a defendant, I receive a complaint and I believe I have a ground for a Motion to
Dismiss under Section 1 from [a] to [j]. I will not file a motion to dismiss, instead, I will file an answer, is
that allowed?
A: Yes, because it is OPTIONAL for a defendant to file a motion to dismiss. And I can file my answer and a
grounds for dismissal can be raised as an affirmative defense.
So the grounds for a motion to dismiss are convertible. Instead of filing a motion to dismiss, I will allege
the grounds as affirmative defenses, likeno cause of action, litis pendentia, res adjudicata, payment,
statute of frauds, prescription
Now, if you will file an answer raising the ground for a motion to dismiss as an affirmative defense, then
you are prolonging the agony because if the court has no jurisdiction, or there is improper venue or
whatever it is, if you file a motion to dismiss in the first place and you are sustained, then tapos na sana!
Bakit patagaling mo pa by filing an answer eh pwede naman pala i-raise yung mga yun in a motion to
dismiss? Because of this, trial will proceed. And after the plaintiff has rested the case, that is the only
time you will prove your defense. So, why do you prolong the agony?
Under Section 6, after filing of such answer, the defendant can ask for a preliminary hearing on his
affirmative defenses as if a motion to dismiss has been filed. Meaning, this should be heard ahead. And if
the court grants the preliminary hearing, you can move your affirmative defenses ahead and if you
correct, the court will dismiss the case. So, it has the same effect as if you file a motion to dismiss. That is
why a preliminary hearing may be had as a motion to dismiss.
Now, you ask me why should the defendant do this? Di, mabuti pa na mag-file na lang siya ng motion to
dismiss doon din pala and babaksakan eh. Why file an answer and then preliminary hearing? Because
this is a matter of strategy on trial technique. If I will file a motion to dismiss which is not a responsive
pleading, the plaintiff may amend the complaint, and I cannot prevent him from amending because the
amendment is still a matter of right at that moment.
So if I will file an answer instead, sabihin ng plaintiff, Tama no? Ok, I will amend the complaint.
Defendant: No! No! No! No! Hindi na puwede because may responsive pleading na! Amendment is not
anymore a matter of right. That would be the purpose of the defendant in not filing a motion to dismiss.
That follows the general principle in trial technique. Do not expose your adversarys mistake when he is
in a position to correct them. When the point is reached when he cannot anymore correct the error,
then, dyan mo na ilabas. Huwag kang magmadali, maghintay ka. That is the advice in trial technique.
The second paragraph of Section 6 is new:
The dismissal of the complaint under this section shall be without prejudice to the prosecution in the
same or separate action of a counterclaim pleaded in the answer. (n)
Q: Suppose I will file an answer with affirmative defenses and with a counterclaim. If the court dismisses
the complaint, what happens to my counterclaim?
A: Under the NEW RULES, there are two possibilities:
1.) The defendant can still prosecute his counterclaim in a separate action; or
2.) The defendant can dismiss the complaint but the counterclaim remains alive.
In the OLD RULES, when the main case is dismissed, the counterclaim is automatically dismissed, lalo na
yong compulsory. If the defendant moved to dismiss the case, in effect he was also moving to dismiss his
counterclaim. That is what the SC said in the case of
INTL CONTAINER TERMINAL SERVICES vs. COURT OF APPEALS
214 SCRA 456 [OBSOLETE!]
HELD: A compulsory counterclaim is so intertwined with the complaint that it would not remain pending
for independent adjudication by the court after the dismissal of the complaint which had provoked the
counterclaim in the first place. As a consequence, the dismissal of the complaint operated also to dismiss
the counterclaim questioning the complaint. When defendant moved to dismiss the main action, he also
moved, in effect, for the dismissal of the counterclaim.
That is the prior rule. That ruling is already OBSOLETE because of this new paragraph, The dismissal of
the complaint under this section shall be without prejudice to the prosecution in the same or separate
action of a counterclaim pleaded in the answer.
NOW, you can move to dismiss the complaint. Ang counterclaim mo buhay pa rin. And you can continue
to insist that on a trial.
Rule 17
DISMISSAL OF ACTIONS
Section 1. Dismissal upon notice by plaintiff. A complaint may be dismissed by the plaintiff by filing a
notice of dismissal at any time before service of the answer or of a motion for summary judgment.
Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise
stated in the notice, the dismissal is without prejudice, except that a notice operates as an
adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an
action based on or including the same claim. (1a)
Q: Can a plaintiff file a complaint and later change his mind and withdraw? Meaning, can he dismiss his
own complaint?
A: YES. And it is a matter of right.
Q: How?
A: By filing a NOTICE OF DISMISSAL at ANY TIME BEFORE service of the answer or a motion for Summary
Judgment. Meaning, for as long as the defendant has not yet filed his answer, the plaintiff has the right
to dismiss his own complaint by simply sending the court what is known as a notice of dismissal.
This is similar to Rule 10 on amendments. When is amendment a matter of right? For as long as there is
no answer yet.
Take note that upon filing of the notice of dismissal, the court shall issue an order confirming the
dismissal. The reason is that, the withdrawal is not automatic. Withdrawal does not take effect until
confirmed by the court. This is keeping with the respect due to the court.
Under the rules on civil procedure, there are two types of dismissal:
1. Dismissal with prejudice the case can no longer be re-filed;
2. Dismissal without prejudice the case can be re-filed.
Q: Is the dismissal under Section 1 with or without prejudice?
A: GENERAL RULE: The dismissal is WITHOUT PREJUDICE. The case can be re-filed.
EXCEPTIONS:
1.) When in the notice of dismissal itself, the plaintiff himself stated that he is dismissing his own
complaint with prejudice; OR
2.) When a notice operates as an adjudication upon the merits when filed by a plaintiff who has once
dismissed in a competent court an action based on or including the same claim.. This is the TWO-
DISMISSAL RULE.
ILLUSTRATION (Two-Dismissal Rule): I borrowed money from Mr. Castaos and I did not pay him. So he
filed a case against me to collect the unpaid loan. Upon receipt of the summons, I approach Mr.
Castaos, Huwag mo nalang ituloy ang kaso mo, babayaran kita. I will not file an Answer, hindi nalang
ako kukuha ng lawyer. I-dismiss mo na lang iyan, babayaran kita next month, wala lang akong kuwarta
ngayon. I will refund you for the filing fee. Ngayon, payag siya. He will send a notice to the court
dismissing his complaint. The case is dismissed, without prejudice.
After one month, I did not pay again. So nagalit si Mr. Castaos, he re-filed the same complaint,
pangalawa na. I now receive another summons. So, lapit ako sa kanya, Bakit mo fi-nile kaagad? Eh,
sabi mo, after one month magbabayad ka. Wala lang akong kuwarta, next month pa dadating ang
kuwarta ko. I-dismiss mo na ULI yan. Basta, promise, next month, bayad na talaga ako. Isauli ko ang
ginasta mo sa filing fee. Tapos, naatik na naman siya. So he files a notice of dismissal again, doble. The
same case was dismissed twice. He availed of the dismissal in Section 1 twice.
After next month, hindi na naman ako nagbayad. So nagalit na naman siya. So he filed the same case for
the third time. I receive the summons. You know what I will do? I will file a motion to dismiss the case
because the second dismissal is automatically with prejudice.
This is known as the 2-dismissal rule. You cannot file it for the third time.
Briefly, the two-dismissal rule simply means that when the same complaint had twice been dismissed by
the plaintiff under Section 1 by simply filing a notice of dismissal, the second dismissal shall be with
prejudice. Yaann!
Q: Suppose you file a complaint against Mr. Cruz and you immediately changed your mind and had it
dismissed under Section 1. And then after having dismissed, you changed again your mind and you want
to re-file the action. Now, How do you re-file it the action? Do you file another complaint again?
A: That was answered in the case of
ORTIGAS AND CO. LTD PARTNERSHIP vs. VELASCO
234 SCRA 455 [1994]
HELD: It DEPENDS on whether the order of dismissal has already become final.
a.) If within 15 days from the time it is ordered dismissed, all that you have to do is to ask the court to set
aside the order of dismissal and re-vive the case because the order of dismissal have not yet become
final.
b.) However, if the order of the court dismissing the complaint based on your own notice has become
final after 15 days, then the only way you can revive it is to file an entirely new action.
Sec. 2. Dismissal upon motion of plaintiff. Except as provided in the preceding section, a complaint
shall not be dismissed at the plaintiff's instance save upon approval of the court and upon such terms
and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to
the service upon him of the plaintiff's motion for dismissal, the dismissal shall be limited to the
complaint. The dismissal shall be without prejudice to the right of the defendant to prosecute his
counterclaim in a separate action unless within fifteen (15) days from notice of the motion he
manifests his preference to have his counterclaim resolved in the same action. Unless otherwise
specified in the order, a dismissal under this paragraph shall be without prejudice. A class suit shall not
be dismissed or compromised without the approval of the court. (2a)
Q: If the defendant has already filed an answer or a motion for summary judgment, may the complaint
still be dismissed by the plaintiff?
A: YES, but it is already upon the approval of the court and upon such terms and conditions as the court
deems proper. Meaning, the dismissal under Section 2 by the plaintiff is no longer a matter of right
because the defendant has already filed an answer or a motion for summary judgment.
Q: Suppose I file a case against you and you file an answer with counterclaim, and I filed a notice
dismissing my own complaint. Can it be done? What happens to the counterclaim?
A: The dismissal of the complaint DOES NOT necessarily mean the dismissal of the counterclaim. So a
compulsory counterclaim remains despite the dismissal of the complaint. The dismissal shall be limited
to the complaint.
Of course, generally, if we follow the language of the law, when you dismiss the complaint, the
counterclaim is also dismissed unless within 15 days, the defendant manifest his preference to have his
counterclaim resolve in the same action.
GENERAL PULE: If you dismiss the complaint, the compulsory counterclaim is also dismissed.
EXCEPTION: The defendant can revive the compulsory counterclaim within 15 days. That is the radical
change. The cases that we cited before are now bahaw.
Q: Now, suppose the complaint is dismissed under Section 2 upon initiative of the plaintiff, can he re-file
the case?
A: The rule is the same as Section 1 the dismissal of the complaint under Section 2 shall be without
prejudice unless otherwise specified in the order of dismissal. So, the dismissal under Sections 1 and 2 is
generally without prejudice.
The last sentence, A class suit shall not be dismissed or compromised without the approval of the
court. When you file a class suit, you are not only fighting for yourself you are fighting for the others.
So, you cannot just withdraw it on your own or else, you will cause prejudice to everybody. So, in order
to prevent the person who filed it from prejudicing the right of the members of the class suit, it cannot
be dismissed or compromised without the approval of the court.
Sec. 3. Dismissal due to fault of plaintiff. If, for no justifiable cause, the plaintiff fails to appear on the
date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an
unreasonable length of time, or to comply with these Rules or any order of the court, the complaint
may be dismissed upon motion of the defendant or upon the court's own motion, without prejudice to
the right of the defendant to prosecute his counterclaim in the same or in a separate action. This
dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the
court. (3a)
Q: What are the grounds for the dismissal of the case under Section 3?
A: The following are the grounds for the dismissal of a case under Section 3:
1.) The plaintiff fails to appear on the date of the presentation of his evidence-in-chief on the complaint;
2.) The plaintiff fails to prosecute his action for an unreasonable length of time;
3.) The plaintiff fails to comply with the Rules of Court or any order of the court for no
justifiable reason or cause.
First Ground: THE PLAINTIFF FAILS TO APPEAR ON THE DATE OF THE PRESENTATION OF HIS EVIDENCE-
IN-CHIEF ON THE COMPLAINT
Evidence-in-chief is the main evidence of the plaintiff to prove his cause of action.
So if the plaintiff fails to appear on the date of the presentation of his evidence-in-chief on the
complaint, the case can be dismissed. This has been taken from the ruling of the SC in the case of:
JALOVER vs. YTORIAGA
80 SCRA 100 [1977]
FACTS: Plaintiff appeared during the trial and presented his evidence and then he rested. And then
during the hearing of the presentation of the defendants evidence, plaintiff failed to appear. And since
he failed to appear during trial, the court dismissed the case.
HELD: The dismissal is WRONG. Why dismiss the case when he has already presented his evidence? It is
tantamount to deciding the case against the plaintiff without considering the evidence that he has
presented. What is the remedy then?
What the court should do is to proceed with the presentation of the defendants evidence without the
plaintiff. Do not dismiss the case the plaintiff has already presented his evidence.
That is why the language in the old rule is failure to prosecute or another term is non-suited. But the (motu propio).
rules of court now wants to avoid the word non-suited because it carries a different meaning.
If plaintiff fails to appear on the date of the presentation of his evidence-in-chief, but he arrived a little
bit late, or he failed to appear because he failed to receive the notice setting it, that is different because
the law says, for no justifiable cause. If I am late but a few minutes only, that is not a good basis to
dismiss the case forever. There is no intentional failure not to appear. In which case, if there is an order
of dismissal, it should be set aside because the condition is for no justifiable cause.
If it was the defendant who failed to appear without justifiable cause, the plaintiff should move that the
trial shall proceed ex-parte. But definitely, the defendant cannot be declared in default because he
already filed an answer.
Second Ground: FAILURE OF PLAINTIFF TO PROSECUTE HIS ACTION FOR UNREASONABLE LENGTH OF
TIME.
EXAMPLE: Maybe every time his case is called to trial, he appears but he is not ready and so he
postpones. The next hearing, he postpones again. Thats one interpretation.
Another interpretation of failure to prosecute the complaint is filed, answer if filed, the case has not
been set for pre-trial, the plaintiff did not take the initiative to have the case set for pre-trial. For more
than one year, the case has not been set for pre-trial and the plaintiff is not moving. Ikaw ang plaintiff,
ikaw ang kumilos!
Or, the case cannot be tried because the defendant cannot be summoned. The court keeps asking the
plaintiff for the correct address of the defendant. And for more than one year, the plaintiff cannot supply
the court of the correct address of the defendant. The judge cannot have the case docketed in court
forever.
Third Ground: FAILURE TO COMPLY WITH THE RULES OF COURT OR ANY ORDER OF THE COURT.
EXAMPLE: The court says, Plaintiff, you are hereby directed to amend the complaint. Plaintiff refuse to
amend. The court will dismiss the case.
Remember that case I cited where the complaint was filed in the name of for example, PANINGKAMOT
STORE vs. SO and SO. The SC said that PANINGKAMOT STORE cannot be the plaintiff; it is not a person.
It is only the name of the business establishment. Only natural person or juridical persons may be subject
of the suit.
Sabi naman ng SC, but do not dismiss. Give the plaintiff a chance to amend in order to reflect the owner
of the store. So the court directs the plaintiff to amend. Ayaw mo i-amend ha? This time i-dismiss ko for
failure to comply with the courts order.
Other Examples: Amend the pleading, submit a bill of particulars or certification of non-forum shopping.
Now, Section 3 says, may be dismissed upon motion of the defendant or upon the courts own motion
Q: As a general rule, can a court dismiss a complaint without any motion made by the defendant?
A: GENERAL RULE: The court should not dismiss the case upon its own initiative, because the grounds for
dismissal are waivable. If the defendant fails to move for dismissal, he is waiving the defect.
Q: Give the EXCEPTIONS (When may the court dismiss the complaint motu propio?). A: The following
1. Section 3, Rule 17 (Plaintiffs fault);
2. When on its face, the complaint shows that the court has no jurisdiction over the subject
matter;
3. When there is litis pendentia; or res adjudicata; or when the action has prescribed;
4. Under the Summary Rules, the court is empowered to dismiss immediately without any
motion.
Take note of what the law says, if the complaint is dismissed under Section 3, it is without prejudice to
the right of the defendant to prosecute his counterclaim in the same or separate action. Again, the
dismissal of the main action or compliant does not mean the dismissal of the counterclaim. This is the
same with Section 2.
Q: If the complaint is dismissed under Section 3, can it still be re-filed?
A: NO, the dismissal this time shall have the effect of adjudication upon the merits. Meaning, res
adjudicata applies, as if the case has already been decided. Therefore the elements of res adjudicata
should also be present. The dismissal is with prejudice unless otherwise declared by the court.
GENERAL RULE: Dismissal due to the fault of the plaintiff is with prejudice. EXCEPTION: Unless the court
provides otherwise.
EXAMPLE: When the case was called for trial, plaintiff did not appear. Defendant moved to dismiss under
Section 3. The court dismissed the case. Can the case be re-filed? NO, the dismissal is with prejudice.
(General Rule)
Suppose the court will say, For non-appearance of the plaintiff, the complaint is dismissed without
prejudice. Can the case be re-filed? YES. (Exception)
On the other hand, one of the interesting cases on this (the effect of res adjudicata because when we
say res adjudicata, it had to be correlated with the elements of res adjudicata in Rule 39) is the case of
REPUBLIC PLANTERS BANK (RBP) vs. MOLINA
166 SCRA 39 [1988]
FACTS: The RPB filed a case against the defendant for a sum of money. Defendant cannot be summoned
because his whereabouts is now unknown. Several attempts made by the plaintiff to look for him failed.
After a while the court dismissed the complaint for RBPs failure to prosecute. And the order of dismissal
was silent. So, following Section 3, the dismissal is with prejudice.
Then later on, the plaintiff (RPB) discovered the whereabouts of the defendant. The RPB re-filed the
compliant. Defendant moved to dismiss because when the first complaint was dismissed and the order
of dismissal was silent then the dismissal has the effect of an adjudication on the merits.
HELD: Since We are talking of res adjudicata, let us correlate it with the elements of res adjudicata under
Rule 39.
One of the elements of res adjudicata is: When the case is terminated, the court has jurisdiction over the
case both as to the person and the subject matter;
In the case of RPB, the court never acquired jurisdiction over the person of the defendant because he
was never served with summons. Therefore, such dismissal did not have the effect of res adjudicata.
Meaning, Section 3 presupposes that the court acquired jurisdiction over the subject matter of the case,
and the parties in the previous case in order that the dismissal be with prejudice.
Sec. 4. Dismissal of counterclaim, cross-claim, or third-party complaint. The provisions of this Rule shall
apply to the dismissal of any counterclaim, cross-claim, or third-party complaint. A voluntary dismissal
by the claimant by notice as in section 1 of this Rule, shall be made before a responsive pleading or a
motion for summary judgment is served or, if there is none, before the introduction of evidence at the
trial or hearing. (4a)
It means that the rules apply to dismissal of cross-claim, counterclaim, or third-party complaint at any
time before an answer is filed against a counterclaim, cross-claim or third-party complaint, plaintiff may
dismiss his claim under Section 1, Rule 17.
Rule 18
PRE-TRIAL
Pre-trial in criminal cases is Rule 118. In civil cases, is Rule 18. It used to be Rule 20. Now, take note that
no case can reach the trial stage without undergoing Pre-Trial after the issues have been joined.
Section 1. When conducted. After the last pleading has been served and filed, it shall be the duty of
the plaintiff to promptly move ex parte that the case be set for pre-trial. (5a, R20)
In civil actions, after the last pleading has been filed (Reply or Answer) the plaintiff is duty bound to
move ex parte that the case be set for pre-trial. No civil action can reach the trial stage without passing
the pre-trial period.
Pre-trial in criminal cases is only optionalthe accused and his lawyer have to agree. In civil cases, the
pre-trial is MANDATORY no case can reach the trial stage without undergoing Pre-Trial. And it is the
duty of the plaintiff and not of the clerk of court to move to set the pre-trial. A motion for pre- trial can
be filed ex parte, an exception to the rule that no motion can be filed ex parte.
Sec. 2. Nature and purpose. The pre-trial is mandatory. The court shall consider:
(a) The possibility of an amicable settlement or of a submission to alternative modes of dispute
resolution;
(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 therefor 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. (1a, R20)
(a) THE POSSIBILITY OF AN AMICABLE SETTLEMENT OR OF A SUBMISSION TO ALTERNATIVE
MODES OF DISPUTE RESOLUTION
Remember that the policy of the law in civil cases is settlement to save time and expense. Here, you get
something from me and I get something from you. Then we will submit out agreement to the court. In an
amicable settlement, walang panalo and wala ring talo. So everybody goes home happy.
There was an article where it says that one of the best gauge of a good lawyer is not that he has many
cases, but that he knows how to settle a case because he saves his client from a lot of trouble. While a
bad lawyer is one whose cases always end up in trial he has many cases and he does not have the time
anymore to study each cases. So, he ends up inefficient.
As a matter of fact, even Abraham Lincoln who was a lawyer and became one of the best presidents of
the United State, gave an advice to lawyers: Discourage litigation. Persuade your neighbors to
compromise whenever you can. Point out to them how the nominal winner is often a real loser in fees,
expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good
man there will still be business enough. Meaning, if you are a lawyer, you have a strong influence to
convince your client to settle the problem with his opponent. You do not have to worry about losing fees
for there are still cases to come. Even if you will come out the winner in the case, you are still the loser in
terms of waste of time, money and effort.
of a submission to alternative modes of dispute resolution. how to dispose of the case without
passing to court, ba. This is similar to voluntary arbitration in the Labor Code mas mabilis!. Kung sa
court yan, matatagalan pa yan. Example is a controversy in the construction industry. Pagawa ka ng
building. You quarrel with your contractor whether the building is properly constructed or not. That kind
of dispute has to pass through arbitration like contractors. They will be the one to judge because they
are experts in construction. So it is faster. Anong malay ng judges sa engineering? So, yan ang tinatawag
na alternative modes of dispute resolution.
Now, assuming that the parties cannot settle at the pre-trial stage, does it mean to say that the pre- trial
was a failure? NO, go to [b] to [i] on other ways to hasten the trial.
(b) THE SIMPLIFICATION OF THE ISSUES
Based on the answers filed, issue will be simplified or lessened/reduced to the most important and
relevant ones.
(c) THE NECESSITY OR DESIRABILITY OF AMENDING THE PLEADINGS;
Take note that there is already a complaint and answer and yet during the pre-trial, the parties can still
amend their complaint or answer. That means that amendments of pleadings are favored even at this
stage. Amendment is necessary which is favored by the liberality principle, to adjudicate the case upon
proper merits.
INSURANCE CO. OF NORTH AMERICA vs. REPUBLIC
21 SCRA 887
BAR PROBLEM: Suppose A sued B. After pre-trial, it was determined that there was a necessity for
amending the complaint. It was amended. Is there a need for a new pre-trial for the amended
complaint?
ANS: Where a pre-trial has already been had, the fact that an amended complaint is filed, does not mean
the need for a new pre-trial. Pre-trial is not mandatory. Exception to this is when the parties agree to
conduct another pre-trial.
(d) STIPULATION OF FACTS
Stipulation of facts means we can agree on some facts and there is no need of proving them in court
because we already agreed. Such will hasten the trial because matters validly agreed upon can be
dispensed with (e.g., size of the land, improvements thereon, stipulations, due execution of documents,
etc.)
Now, while the law encourages stipulation of facts, courts cannot compel the parties to do stipulate facts
under the threat of dismissal. In the 1988 case of:
FILOIL MARKETING CORP. vs. DY PAC & CO.
160 SCRA 333
HELD: There is no law which compulsorily requires litigants to stipulate at pre-trial on the facts and issues
that may possibly crop up in a particular case, upon pain of dismissal of such case. The process of
securing admissions whether of facts or evidence is essentially voluntary, since stipulations of facts, like
contracts, bind the parties thereto who are not allowed to controvert statements made therein.
(e) THE LIMITATION OF THE NUMBER OF WITNESSES;
During the pre-trial if there is no settlement, the court will ask, Mr. Plaintiff, how many witnesses will
you present? The plaintiff will say that he will present one hundred witnesses. So the court will start
asking, Why so many? Will it be possible to limit the number of witnesses from 100 to 15 or 10?
Anyway, what one witness will say will just be the same as what the other witness will say.
That is allowed and that is part of the pre-trial because it will be shortened if the number of witnesses
will be reduced in number.
(f) THE ADVISABILITY OF A PRELIMINARY REFERENCE OF ISSUES TO A COMMISSIONER;
This refer to Rule 32 the title of which is Trial by Commissioners. A commissioner is a person who may
be appointed by a judge to assist the court in determining certain issues.
EXAMPLE: Two people dealing with each other ended up suing each other because according to plaintiff,
You secured these amounts from me and ito lang ang binayad mo. So, may utang ka pa. But defendant
said, No, no, no! Based on my record, overpaid pa ako. That can happen where there has be confusion
already on the invoices and receipts. Now, if we will try this case in court it will take time because you
have to present to the judge every receipt, every invoice. And these invoices may number by hundreds.
And what is worse is that the judge is not an accountant so he will have a hard time reconciling these
receipts and invoices.
Suppose the judge will say, Alright, since this is a matter of accounting, I will appoint a CPA to assist me.
You can choose whoever this accountant or he may be appointed by this court. Then you go to him and
present all your documents. And then he will now analyze and then submit to me his findings. Based on
his findings we will find out whether the defendant still owes the plaintiff or there is no more utang.
That is what you call, reference of issues to a commissioner. That will shorten the proceedings because if
the judge will go over the documents one by one it will take time.
EXAMPLE: A boundary dispute between two neighboring landowners. Plaintiff says, Your fence has
already encroached on my property. Defendant answers, No, no, no. This is the boundary. So
bakbakan na naman kayo. The court will ask, Is it true you encroached on his property? How will the
court know that? I think that is very technical. It is a geodetic engineer surveyor to resolve the issue. He
will plot the measurement and then he will submit a sketch. Then we will find out if there is an
encroachment or not.
As far as the judge is concerned, he does not know anything about description of the land, he is not a
surveyor, not a geodetic engineer. So it will be faster if a geodetic engineer surveyor will be appointed.
What do you call this surveyor? He is a commissioner.
(g) THE PROPRIETY OF RENDERING JUDGMENT ON THE PLEADINGS, OR SUMMARY JUDGMENT,
OR OF DISMISSING THE ACTION SHOULD A VALID GROUND THEREFORE BE FOUND TO EXIST;
Q: What do you mean by judgment on the pleadings? What do you mean by summary judgment?
A: That was already mentioned under Rule 17, Section 1. But we will not take them up because they will
be taken up when we reach Rule 34 and 35. Judgment on the pleadings or summary judgment are
remedies or procedure devised under the Rules of court for the speedy determination of a civil case. It is
one way of speedily terminating a civil case. Once it is rendered, tapos na ang kaso.
The court, during a pre-trial, is authorized to render a judgment on the pleadings or a summary judgment
if there is a ground. In the same manner, the court may order the dismissal of the action should a valid
ground therefor be found to exist because it is possible that based on the complaint, there is no ground
to dismiss but in the course of pre-trial, the plaintiff may admit something which turns out to be a
ground for dismissal.
EXAMPLE: According to the plaintiff, the defendant borrowed money from him three years ago and did
not pay. But during the pre-trial, defendant said, Actually, judge, hindi man yan three years ago. That
was thirty years ago! Plaintiff answered, Actually, judge, totoo yan. So judge said, My golly, the
action has prescribed so I will order the dismissal. These things can come out in the pre-trial.
(h) THE ADVISABILITY OR NECESSITY OF SUSPENDING THE PROCEEDINGS;
This means that the case will be suspended, nothing will happen in the meantime. Hindi naman
dismissed. The case will just be held in abeyance.
EXAMPLE: Suppose the parties will say, Judge, so far we cannot settle. But maybe if you will give us one
or two months we will be able to come up with a solution. We will meet once every three days para mag-
istorya. I think that is a good ground. In other words, pwede pa silang mag-areglo, o sige! Because the
law encourages amicable settlement.
Q: Is there a provision in the Rules on the suspension of proceedings in relation to what we are talking
about now? What are the possible grounds for suspending the proceedings in a civil case?
A: Rule 20, Section 8 on suspension of actions.
Sec. 8. Suspension of actions. - The suspension of actions shall be governed by the provisions of the
Civil Code. (n)
Actually, Section 8 points to Article 2030 of the New Civil Code:
Art. 2030. Every civil action or proceeding shall be suspended:
1. If willingness to discuss a possible compromise is expressed by one or both parties; or
2. If it appears that one of the parties, before the commencement of the action or proceeding,
offered to discuss a possible compromise but the other party refused the offer.
The duration and terms of the suspension of the civil action or proceeding and similar matters shall be
governed by such provisions of the rules of court as the Supreme Court shall promulgate. Said rules of
court shall likewise provide for the appointment and duties of amicable compounders.
So a civil action may be suspended if at any time one of the parties offered to discuss a possible
compromise because the policy of the law is to have civil cases settled between the parties amicably. Let
the parties talk among themselves to come up with the possibility of amicable settlement even if one of
the parties refuse to accept such an offer.
(i) SUCH OTHER MATTERS AS ANY AID IN THE PROMPT DISPOSITION OF THE ACTION.
That is very broad any other matter which will hasten the case. Anything under the sun can fall under
this.
PURPOSE OF A PRE-TRIAL
A review of Section 2 will show that the primary purpose of a pre-trial is how to end the case
immediately because of amicable settlement. If the parties can settle, then there is no need to proceed
to trial. But if for valid or serious reason they cannot settle, because the court can only encourage and
not force a settlement, then they shall proceed with the pre-trial to find out if we can have the case tried
speedily and decided immediately by talking about other things like amending the pleadings, stipulation
of facts, admission of documents to avoid unnecessary proofs, limitation in the number of witnesses. So
if we cannot settle, we can talk of other things to speedily terminate the case. Instead of trying the case
for two years, we can probably finish in six months.
DEVELOPMENT BANK vs. COURT OF APPEALS
169 SCRA 409
NOTE: This case penned by Justice Narvasa, is practically all about pre-trial. It is actually the
bible on pre-trial. And this is what exactly Justice Narvasa said:
HELD: Everyone knows that a pre-trial in civil actions is mandatory, and has been so since January 1,
1964 (effectivity of the Revised Rules of Court). Yet to this day its place in the scheme of things is not
fully appreciated, and it receives but perfunctory treatment in many courts [Meaning, it is only complied
with for the sake of compliance.] Some courts consider it a mere technicality, serving no useful purpose
save perhaps, occasionally to furnish ground for non-suiting the plaintiff, or declaring a defendant in
default, or, wistfully, to bring about a compromise. The pre-trial device is not thus put to full use. Hence
it has failed in the main to accomplish the chief objective for it: the simplification, abbreviation and
expedition of the trial, if not indeed its dispensation. This is a great pity, because the objective is
attainable, and with not much difficulty, if the device were more intelligently and extensively handled.
The Supreme Court noted the inability of trial judges to properly apply and appreciate the value of Rule
18.
Sec. 3. Notice of pre-trial. The notice of pre-trial shall be served on counsel, or on the party who has no
counsel. The counsel served with such notice is charged with the duty of notifying the party
represented by him. (n)
This is in compliance with Rule 13. Notice should be given to counsel or to the parties in order to comply
with due process. Under Section 1, it is the duty of the plaintiff to promptly move ex-parte that the case
be set for trial and you will be given a notice of pre-trial from the clerk of court. The notice of pre-trial
shall be served on counsel or on the party who has no counsel.
Under the PRIOR RULE, the procedure was, there must be notice to lawyer and notice to the party
dalawang notice notice to the lawyer is not notice to the party, as an exception to the Rule
13. But NOW, to simplify the job of the court processor, the rule is, notice to the counsel is now notice to
the party.
ARCILLA vs. ARCILLA
138 SCRA 560
FACTS: There was a pre-trial conference on July 29, where all the parties are notified through their
lawyers pursuant to Section 3. They appeared but somehow the pre-trial was terminated on July 29. The
court decided to reset the pre-trial on Oct. 2. The parties agreed. Normally, the procedure is, when that
happens, there will be another written notice. There should be another written notice sent to the
lawyers and parties.
In this case, no such written notice was issued. On Oct. 2, the defendant did not appear. With that, he
was declared to have lost his rights to present his side. He was considered in default. He questioned the
order on the ground that he did not receive any notice on the Oct. 2 pre-trial conference. Therefore, all
subsequent proceedings, including the judgment rendered against the defendant were void. Is he
correct?
HELD: At first blush, petitioners aforesaid contention appears very tenable, for indeed it is settled that
a declaration of default, in the absence of a notice of pre-trial constitutes denial of due process. But a
deeper examination of the pleadings and the record of the case would show that petitioner was present
during the pre trial conference on July 29, 1975 when the lower court re-set the pre-trial to October 2,
1975. On the said date, however, although notified, both petitioner and his counsel did not appear,
hence, the declaration of default.
So when the lower court reset the pre-trial on Oct. 2, the defendant although ratified VERBALLY earlier,
he failed to appear that is why he was penalized under Section 5. When the court reset the pre- trial, he
agreed. He already knew. Notification need not be too technical. Despite the lack of a written notice, the
defendant was penalized in the ARCILLA case.
Sec. 4. Appearance of parties. It shall be the duty of the parties and their counsel to appear at the pre-
trial. The non-appearance of a party may be excused only if a valid cause is shown therefor or if a
representative shall appear in his behalf fully authorized in writing to enter into an amicable
settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or
admissions of facts and of documents. (n)
There must be notice of pre-trial which will be issued after you comply with Section 1. Then there will be
a schedule. The notice will be served upon the counsel or upon a party, assuming that he is not
represented by a lawyer. The counsel served with such notice is charged with the duty of notifying the
party represented by him.
And under Section 4, it shall be the duty of the parties and their counsel to appear at the trial. Meaning,
the lawyer alone who is there will not suffice. Kailangan dalawa kayo.
Q: Suppose the lawyer will say, Well, your honor, I am here. Anyway, appearance by counsel is
appearance by party. Puwede ba yan?
A: Ah hindi yan puwede because in a pre-trial, the law requires the presence of the party and his counsel
because the purpose of a pre-trial is to consider the possibility of an amicable settlement.
Q: Can the lawyer enter into an amicable settlement with the adverse party?
A: No, you cannot. The lawyer has no power or authority because amicable settlement is a matter of
bargaining.
EXAMPLE: Defendant says, Yung interest na na-due, hatiin na lang natin. You condone half of it, and
bayaran ko is fifty percent na lang. And give me 24 months to pay. The lawyer says okay. Then pag sabi
mo sa client, baka magalit yon, he might fire you! Pera gud niya yon. That is why the parties and their
should both be present. And that is also the reason why a notice of pre-trial should be given to the party.
Section 3 says a counsel served with such notice is charged with the duty of notifying the party
represented by him. That is new provision. The OLD LAW is, based on decided cases, aside from notice
to the lawyer, there must be another notice to the party. So if you notify the lawyer but you did not send
a separate notice to the party and therefore the party did not appear, you cannot take it against him.
Under Rule 13, notice to lawyer is notice to party, except in pre-trial, sabi ng SC. That is the old
jurisprudence OBSOLETE!
But the PRESENT RULE is: Notice to lawyer is notice to party.
Q: Is it possible for a party who will not appear a pre-trial but his appearance is not necessary?
A: YES, Section 4, if a valid cause is shown like, he got sick. Or, if a representative shall appear in his
behalf duly authorized in writing to enter into an amicable settlement, to submit to alternative modes of
dispute resolution, etc.
EXAMPLE: You tell your client, We will have a pre-trial next week and your presence is necessary.
Client: But I am leaving for America tomorrow. I cannot be there. Lawyer: Is there anybody whom you
can authorize, take your place? Client: Yes, my brother or my manager. Lawyer: Okay, you write a
written authority that you are authorizing your brother to appear in your behalf with full power to
settle. Yan and tinatawag na Power of Attorney. Intiendes?
Meaning, you can delegate somebody who has a written authority. Sometimes it is the lawyer who is
given the Power of Attorney authorizing him to enter into an amicable settlement. Walang problema
yan. Otherwise, you will see in the next section what is the effect if you fail to appear in a pre-trial
automatic, talo ka sa kaso.
Q: Suppose one of the parties in the case is a CORPORATION. A corporation cannot appear because it has
no physical existence. Who is authorized to appear in a pre-trial in order to enter into an amicable
settlement? Are the managers or vice-president, authorized to appear in a pre-trial in behalf of the bank
which is a party to the case?
A: NO! Even the president or the chairman of the board has no power.
Q: Who can bind a Corporation?
A: Only the Board of Directors has the authority to bind a corporation.
Q: If there will be a pre-trial of a case involving one of the banks in Manila but the case is in Davao, am I
saying that everytime there is a pre-trial all the members of the Board will fly to Davao to attend the pre-
trial and pass a resolution inside the courtroom?
A: No. The Board can pass a resolution naming the person who will represent the corporation. So, the
manager for example, can appear in the pre-trial provided he is authorized through a board resolution.
Again, the RULE is: Both the lawyer and the party should appear in the pre-trial because the first purpose
of pre-trial is the possibility of an amicable settlement and the lawyer alone has no authority to enter
into an amicable settlement.
Non-appearance may be EXCUSED only if:
1. A representative shall appear in his behalf fully authorized in writing (e.g. SPA)
2. For a valid cause example, if you are sick.
Q: If it is a corporation, what is that authority?
A: It is a board resolution because only the board of directors has the authority to bind the corporation.
EFFECTS OF FAILURE TO APPEAR IN PRE-TRIAL
Sec. 5. Effect of failure to appear. The failure of the plaintiff to appear when so required pursuant to
the next preceding section shall be cause for dismissal of the action. The dismissal shall be with
prejudice, unless otherwise ordered by the court. A similar failure on the part of the defendant shall be
cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the
basis thereof. (2a, R20)
Q: What happens if it is the plaintiff who failed to appear in the pre-trial?
If the PLAINTIFF fails to appear, his case will be dismissed for not appearing. And as a rule, the dismissal
is with prejudice. Pag dismiss, that is the end of the case. It has the same effect as Rule 17, Section 3:
Failure to appear during the trial for the presentation of his evidence-in-chief. So, if the plaintiff fails to
appear during the trial when it is his turn to present his evidence, under Rule 17, his case shall be
dismissed and generally the dismissal is with prejudice, an adjudication upon the merits. (Res Adjudicata
applies).
The old rule was that the plaintiff will be declared non-suited. NOW, it shall be a cause for dismissal of
the action.
Q: Is there any difference between non-suited and dismissal of action?
A: There is suppose to be a difference based on the case of
BA FINANCE CORP. vs. COURT OF APPEALS
224 SCRA 163 [OBSOLETE!]
HELD: When the defendant moves to dismiss the case, then you are also killing your counterclaim. If you
are, the defendant you should not move for the dismissal. You only move to declare the as non-suited
because when the plaintiff is non-suited, he is bared from proving his cause of action but the case is not
dismissed. Since the case is not dismissed, it is like the plaintiff who is in default.
Ngayon wala na yan because now, you can have the case dismissed but your counterclaim is still alive.
So, the ruling in BA FINANCE CORP. is now OBSOLETE.
Q: What happens if it is the plaintiff who failed to appear in the pre-trial?
A: If it is the DEFENDANT who failed to appear, the law says, it shall be a cause to allow the plaintiff to
present his evidence ex-parte and the court to render judgment on the basis thereof.
You will notice that if it is the defendant who failed to appear under the old law, he will be considered as
in default. NOW, the word default is avoided it shall be a cause to allow the plaintiff to present his
evidence ex parte and the court to render judgment on the basis thereof. That is the same effect as the
old rule.
Q: Why is the new rules avoiding the word default?
A: Because, strictly you cannot really have the defendant declared in default when he has filed an
answer. Kaya nga the Rules of Court was very clear in the 64 Rules by saying considered as in default
to distinguish it . But the confusion is still there eh. In other words, to avoid confusion, the plaintiff will
be allowed to present evidence ex parte. Para na ring in default without using the word default.
Q: Defendant failed to appear in the pre-trial. Plaintiff was allowed to present his evidence ex party. So
parang in default ang defendant. Now, what is the REMEDY of the defendant? Because if you look at Rule
9 on default, the proper motion for the defendant in default is to file a motion to lift the order of default
on the ground of F.A.M.E. and that he has a meritorious defense. Is that also the remendy for the
defendant who failed to appear in the pre-trial?
A: NO, that is the case of
JUNGCO vs. COURT OF APPEALS
179 SCRA 213 [1989]
HELD: Under Rule 9 on default, if you are declared in default, you only file a motion to lift the order of
default and you have to allege that you have a meritorious defense. But in Rule 18, when you file a
motion, it is a simply a motion for reconsideration where you will state the reason why you failed to
appear and ask that the order be reconsidered and that the judgment be set aside.
Under Rule 18, there is no use to say that you have a meritorious because you have already filed an
answer. The defense is already there. Unlike in defaulted defendant, the court has no idea what is your
answer kaya nga you must convince the court that you have a meritorious defense.
So a simple MOTION FOR RECONSIDERATION is sufficient.
Q: Assuming that the plaintiff is already presenting evidence, and the defendant filed a motion for
reconsideration. The court reconsidered and recalled the plaintiffs ex-party presentation of evidence. Do
we they have to go back to pre-trial.
A: GENERAL RULE: NO. (DBP vs. CA, 169 SCRA 409) EXCEPTION: YOUNG vs. CA, 204 SCRA 584
General Rule: DEVELOPMENT BANK vs. COURT OF APPEALS
169 SCRA 409 [1989]
HELD: When a pre-trial is terminated, you do not go back to it. The court shall let the plaintiff continue
and just let the defendant cross-examine the plaintiffs witnesses. As a general rule a second pre-trial
cannot be granted, the remedy instead is to go to trial.
Exception: YOUNG vs. COURT OF APPEALS
204 SCRA 584 [1991]
HELD: The pre-trial stage is completed after a party had been ordered non-suited and the complaint is
dismissed or after the court allows the plaintiff to present his evidence ex- party. The order lifting it does
not revert the action to its pre-trial stage, or authorize, much less, a second pre-trial UNLESS the parties
themselves had voluntarily agreed that the case be set anew for pre-trial. Neither the Rules nor the
doctrine bars the parties from agreeing, after such lifting, to hold a pre-trial and to effectively accomplish
its objectives.
PRE-TRIAL BRIEF
Sec. 6. Pre-trial brief. The parties shall file with the court and serve on the adverse party, in such
manner as shall ensure their receipt thereof at least three (3) days before the date of the pre-trial,
their respective pre- trial briefs which shall contain, among others:
(a) A statement of their willingness to enter into amicable settlement or alternative modes of
dispute resolution, indicating the desired terms thereof;
(b) A summary of admitted facts and proposed stipulation of facts;
(c) The issues to be tried or resolved;
(d) The documents or exhibits to be presented, stating the purpose thereof;
(e) A manifestation of their having availed or their intention to avail themselves of discovery
procedures or referral to commissioners; and
(f) The number and names of the witnesses, and the substance of their respective testimonies.
Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. (n)
This is a new provision not found in the 1964 Rules. However, the requirement of a pre-trial brief is not
new because this was a requirement in SC Circular No. 1-89 which was issued on January 19, 1989. The
submission of pre-trial briefs by lawyers has been required by that Circular. This circular is now
incorporated.
Take note that at least three(3) days before the date of pre-trial the parties lawyers should file pre- trial
briefs to be furnished with each other. In that brief, you summarize everything covered by your
pleadings. It contains cause of action, defenses, etc. The court, instead of reading the pleadings and
answer, only the document where you condensed everything will be read. It contains: Cause of action;
defenses; issued to be tried; admitted facts; facts you believe should be stipulated; the documents or
exhibits you would like the present; or who are the witnesses and what are they going to testify, etc.
Thats a summary of everything that is going to happen from the beginning of the trial up to the end.
Q: What happens if a party fails to file a pre-trial brief?
A: Last paragraph, Failure to file the pre-trial brief shall have the same effect as failure to appear a the
pre-trial conference. So, if it is the PLAINTIFF who failed to file a pre-trial brief, his complaint may be
ordered dismissed. If it is the DEFENDANT who failed to file a pre-trial brief, that would be a cause for
the court to allow the plaintiff to present his evidence ex-parte.
Q: Up to this point, let us try to summarize. What are the instances where the PLAINTIFF may be
penalized by the court with a dismissal of his complaint?
A: In the following instances:
1.) Where plaintiff fails to appear during the presentation of his evidence-in-chief to prove his cause of
action (Rule 17, Section 3);
2.) Failure to appear in the pre-trial conference (Rule 18, Section 5); 3.) Failure to file a pre-trial brief
(Rule 18, Section 6)
Q: On the other hand, when would the DEFENDANT be penalized by the penalty that plaintiff be allowed
to present his evidence ex parte and judgment be rendered based purely on such evidence?
A: In the following instances:
1.) Failure to file an answer under Rule 9 on Default;
2.) Failure to appear in a pre-trial conference (Rule 18, Section 5); 3.) Failure to file a pre-trial brief (Rule
18, Section 6)
Sec. 7. Record of pre-trial. The proceedings in the pre-trial shall be recorded. Upon the termination
thereof, the court shall issue an order which shall recite in detail the matters taken up in the
conference, the action taken thereon, the amendments allowed to the pleadings, and the agreements
or admissions made by the parties as to any of the matters considered. Should the action proceed to
trial, the order shall explicitly define and limit the issues to be tried. The contents of the order shall
control the subsequent course of the action, unless modified before trial to prevent manifest injustice.
(5a, R20)
A pre-trial conference although it is less formal than a trial, thats why in most cases, pre-trial is not done
in open court but inside the chamber of the judge where the atmosphere is more relaxed because you
are going to talk about settlement, eh. However, do not believe that that is just a decoration. That is an
official proceeding. Everything there is recorded. According to section 7, after a pre-trial conference is
terminated, the court will issue what is known as pre-trial order. That is now expressly required by the
rules.
A pre-trial order should state or should summarize everything what was taken up in a pre-trial
conference, the issues to be resolved, the facts to be admitted, etc. what is important there is the third
sentence: Should the action proceed to trial, the order shall explicitly define and limit the issues to be
tried. The contents of the order shall control the subsequent course of the action, unless modified before
trial to prevent manifest injustice. It may be an ordinary sentence but the effect of that is terrible.
Suppose here is the complaint and it is answered. Based on the complaint and the answer, you can
determine the issues based on the admissions and denials in the answer. For instance, there are five
issues, they are to be stated in a pre-trial brief. During the pre-trial conference, the court may reject
other issues which are not important with the agreement of the parties. Thus, there may be only one
real issue like whether or not the loan has been paid. The court may then issue a pre-trial order
containing such issue. The defendant may have also several defenses in his answer. After the pre-trial
order is issued, such order should be followed. Forget the complaint and the answer.
In effect, the complaint and the answer has already been superseded by the pre-trial order. This section
in effect says that the pre-trial order supersedes the pleadings.
That is why the case of DBP vs. CA, supra, where the Court through Justice Narvasa, emphasized the
importance of a pre-trial. The Court noted that if there is a pre-trial order because the judge followed
Rule 18 religiously, during the trial the judge will not have a hard time in determining what is the issue to
be resolved. And babasahin lang niya ay ang pre-trial order. Everything is to be based there. Without the
pre-trial order, you will still have to look at the pleadings of both parties. The pre-trial order is a very
important piece of document.
There was a case years ago, Plaintiff vs. Defendant. Banggaan ba. In a vehicular collision, the plaintiff is
claiming damages from the defendant. His allegations naturally would point out that all fault and
negligence is caused by the defendant. As usual, when the defendant files his answer, he is denying that.
As a matter of fact, he will claim that the one negligent is the plaintiff. Chances are, since his vehicle was
also damaged, the defendant will file a counterclaim. So, pasahan yan!
What happened in the pre-trial conference is that, the lawyers were asked to define the issues. The
plaintiffs lawyer asked the defendants lawyer to define the issues: (1.) Is the plaintiff liable for actual
damages on defendants counterclaim? (2.) Is the plaintiff liable to the defendant on his counterclaim for
exemplary damages? (3.) Is plaintiff liable to the defendant on his counterclaim for attorneys fees and
expenses for the litigation?
So, those were the issues. The plaintiffs lawyer, siguro hindi nakikinig ba. Judge asked, O, do you agree
panyeros? Yes, Okay. When the pre-trial order was issued, those issues were contained. Wheres the
defendants liability to the plaintiff? Wala na! The issue is whether or not the plaintiff is liable to the
defendant. During the trial, the plaintiff presented his evidence to prove the defendants liability. The
defendants lawyer objected on the ground that there was no issue contained in the order on the
liability of the defendant. The only issue is whether plaintiff is liable to the defendant.
Naisahan ang plaintiff akala kasi niya ang pre-trial order is not important.
(Dean did not know how the case ended, but commented: The plaintiff asked for the amendment of the
pre-trial order because this is a manifest injustice. Plaintiff is the one suing and how he is to be held
liable. Now, if I were the judge, I will really modify because its unfair no! You are the one suing and now
you end up as a defendant. But I will stress to the plaintiff na huwag kang tatanga-tanga sa pre-trial!
[gago!])
Now, an example of the last sentence of Section 7 UNLESS modified before trial to prevent manifest
injustice is the case of SESE vs. IAC (152 SCRA 585 [1987]) where even if the pre-trial order does not
recite the issue, it can still be proven. Under Section 5 of Rule 10, even if an issue was not raised I n a
pre-trial order and no one objected to the issue raised, it can be tried and later the pre-trial order can be
amended to conform with issue/s raised.
KATARUNGANG PAMBARANGAY
For now, we will leave the rules on civil procedure. We will go to another law which is also connected
with the study on civil procedure. This is the Barangay Conciliation Law. It is appropriate to discuss what
the law is all about because under Rule 18 on pre-trial, you will notice it has emphasized that the primary
purpose of a pre-trial is the possibility of amicable settlement. That is usually encouraged. No case may
reach the trial stage without passing through the Pre-trial Rule. We have to exhaust all avenues and
settlement.
There is a law known as the BARANGAY CONCILIATION LAW which mandate that before an action can be
filed by an individual complainant against another individual defendant, both of them are residing in the
same city or municipality, there should be a prior attempt to conciliate in the barangay level under the
rules, the barangay of the defendant. And if the action if filed without observing that procedure, the
action is dismissible.
Suppose a case will be filed in court, according to the SC, the plaintiff must allege in a complaint that
before filing the case he exerted or complied with the Baranagay Law. It is a condition precedent.
Normally, after you exhaust in the barangay level but is not successful, the Barangay Chairman will issue
a certification t file an action. That should be stated in the complaint.
According to the SC in the case of VDA. DE BORROMEO vs. PUGOY (126 SCRA 217), the failure of a
complaint to allege compliance with the requirement of the barangay law is fatal. He must make an
allegation that before filing his complaint, he complied with the barangay law. Otherwise, his complaint
will be ordered dismissed.
If the action is filed without observing that procedure, the action is dismissible. But as clarified by the SC
in many cases, among them are EBOL vs. AMIN (125 SCRA 438)and GONZALES vs. CA (151 SCRA 289) the
defect is NOT JURISDICTIONAL. You do not say the court has no jurisdiction.
The ground for dismissal is more on PREMATURITY OF THE ACTION. You can cite the new ground now as
the condition precedent required by law has not been observed. Actually, it will also affect the cause of
action- Based on decided cases, there must be an allegation in the complaint that before filing a case,
there has been an attempt to undergo a conciliation in the barangay level.
Now, this law used to be the Katarungang Pambarangay Law, PD 1508. However, it was superseded on
January 1, 1992 by RA 7160, otherwise known as the Local Government Code Of 1991 (LGC). The
Barangay Conciliation requirement is now embodied in RA 7160. The barangay requirement is found in
Sections 399-422 and also Section 515. It is around 25 sections of the law.
To help you, the SC in 1993 issued Administrative Circular No. 14-93 where the SC tried to condense the
important requirements of the law who are covered and who are not. It is addressed to all RTC and
MTC judges. Subject: Guidelines on the Katarungang Pambarangay conciliation Procedure to prevent
circumvention on the Revised Katarungang Pambarangay Law.
We will summarize the law and discuss some important features. Under the law, you cannot file a case
against somebody without attempting to settle matters before the barangay level.
SOME IMPORTANT FEATURES OF THE BARANGAY CONCILIATION LAW:
The law applies only when you are suing somebody who resides in the same city or municipality where
you reside. Or in the event of different municipalities, they are adjacent. So when two towns are near
each other, you are suing somebody there, the law will apply. Generally, when you (from Davao City) sue
somebody from General Santos City, the law is inapplicable because it is a different city.
The law will not apply if one of the parties in the dispute is a juridical person i.e. corporation. It only
applies to suits between natural persons.
Under the law, it is where the barangay where the barangay where the defendant resides. Unless, the
dispute arose in a workplace or in school, the venue is the barangay where the workplace or the school is
located.
Q: If Im from Sasa and you are from Toril, but we are residing in the same city, which barangay is the
proper venue?
A: Under the law, it is the barangay where the defendant resides, unless the dispute arose in a
workplace or in school.
If the dispute refers to REAL property, it is where the property is situated. If the dispute refers to Real
Property (e.g. land), and Im from Matina, and you are from Sasa, but the case involves a land in Toril,
then the correct venue is the place where the land is situated i.e. the barangay in Toril.
When you say, both the parties reside in the same city or municipality, what do you mean by
RESIDENCE? The same interpretation as laid down by the SC in
GARCES vs. COURT OF APPEALS
162 SCRA 504
FACTS: Garces lives in Cavite but works in Malate. He rented an apartment in Malate and stays there on
weekends.
HELD: For purposes of the Barangay Law, Garces is a resident of Malate. The word RESIDES refers to
actual or physical residence, not domicile.
In the case of
BEJER vs. COURT OF APPEALS
169 SCRA 566
FACTS: Andre lives in Laguna but has a house in Manila where his children live. ISSUE: Is Andre a
residence of Manila?
HELD: NO, because Andre is not a registered in the barangay as a voter. Physical presence alone is not
sufficient. So, the SC added another qualification, that residence is determined by membership in the
barangay. Therefore, even if you are in that area but you are not a member of the barangay, you are not
a resident thereof.
This is because the primary purpose of the law is to provide the conciliation mechanism, as an
alternative to litigations in dispute settlement, to member of the corresponding barangays who are
actually residing therein. Residence alone, without membership, in said barangays would not be an
accurate and reliable criterion, considering that such residence may be actual but be merely temporary,
transient or categorized into other permutations as in the case of a house guest or a sojourner on a visit
of a day or two.
On the other hand, mere membership in a barangay, without actual residence therein, should not
suffice since absentee membership would not subserve the avowed purpose of the law for lack of the
common bond and sense of belonging generally fostered in members of an identified aggroupment.
Q: Suppose the defendant will not show up everytime he is called.
A: That is now a ground for the barangay captain to issue a certificate to file an action. The defendant
cannot complain later that there is non-compliance of the barangay law. The defendant cannot use his
own default to profit it. That was the ruling in SAN MIGUEL VILLAGE SCHOOL vs. PUNDOGAR (173 SCRA
704).
Take note that the barangay cannot decide. It can only convince the party to settle. A barangay court has
no power to make decisions. But if you agree to something and in case you failed to comply with your
agreement, that can be enforced by the barangay. But actually, the decision came from you, and not
from the barangay court.
There other interesting cases under the Barangay Law. In the 1989 case of
RAMOS vs . COURT OF APPEALS
174 SCRA 690
FACTS: This case originate in barangay Lanang, Davao City. The parties failed to agree before the
barangay captain. He tried to convince them to settle, but they refused to settle. With that, the barangay
captain issued a certificate to file an action. So the case was filed in the RTC. The defendant questioned
the procedure.
HELD: The procedure wrong. The case cannot be filed. Under the Barangay Law which is now
incorporated in 410-d of the Local Government Code, the correct procedure for this is, if the barangay
captain cannot effect settlement, he should throw the case to the Pangkat, the Lupon. If the barangay
captain cannot settle, the next step is the Lupong Tagapamayapa. So, you cannot immediately issue a
certification to file action
BUT the ruling if RAMOS seems to have been CHANGED already in the light of the new Local Government
Code. In the 1995 case of
DIU vs. COURT OF APPEALS
251 SCRA 472 [1995]
FACTS: What happened here is exactly similar to what happened to the case of RAMOS. When the
barangay captain could not effect a settlement, he issued certificate to file action. That was questioned.
It was not referred to the Lupon. Therefore, it was premature, citing Section 410-d of the LGC.
HELD: The SC cited a new section in the LGC which is Section 412 which seems to give the barangay
captain the authority to issue a certificate without necessarily referring anymore to the Lupon.
While no pangkat was constituted, it is not denied that the parties met at the office of the barangay
chairman for possible settlement. The efforts of the barangay chairman, however, proved futile as no
agreement was reached. Although no pangkat was formed, we believe that there was substantial
compliance with the law. It is noteworthy that under Section 412 of the Local Government Code, the
confrontation before the lupon chairman OR the pangkat is sufficient compliance with the pre-condition
for filing the case in court.
This is true notwithstanding the mandate of Section 410(b) of the same law that the
barangay chairman shall constitute a pangkat if he fails in his mediation efforts. Section 410(b) should be
construed together with Section 412. On this score, it is significant that the barangay chairman or
punong barangay is himself the chairman of the lupon under the Local Government Code.
Anyway, if be look to the pangkat under the LGC, the chairman of the lupon is also the barangay captain.
So, either one or the other will do. So, the case of DIU has effectively set aside the ruling in RAMOS.
CANDIDO vs. MACAPAGAL
221 SCRA 328 [1993]
FACTS: Here, plaintiff Eltor files a case against defendants Jenny, Gemma, and Jayce. Eltor and Jenny
reside in Davao City. So they (Eltor and Jenny) are covered by the law. But Gemma and Jayce reside in
General City. So there is no problem with Gemma and Jayce because there is no need to effect
conciliation. But how about Jenny? Should the case be dismissed against Jenny if there was no prior
barangay conciliation between Jenny and Eltor?
HELD: NO. The fact that Eltor and Jenny reside in the same municipality does not justify compulsory
conciliation WHERE the other defendants reside in different municipalities or cities.
So, it would seem na pag nahuluan na ng iba, you are not also covered anymore. That seems to be the
implication. That seems to jive with another ruling of the SC on the issue of members of the same
family because under the law, if the plaintiff and defendant are members of the same family, they
cannot also file a case against each other without conciliation. But if there is a stranger included, the
requirement will not apply.
July 15, 1993 ADMINISTRATIVE CIRCULAR NO. 14-93
Subject : Guidelines on the Katarungang Pambarangay conciliation procedure to prevent circumvention
of the Revised Katarungang Pambarangay Law (Sections 399-422, chapter VII, Title I, Book III, R.A. 7160,
otherwise known as the Local Government Code of 1991).
To : All Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial
Courts
The Revised Katarungang Pambarangay Law under R.A. 7160, otherwise known as the Local Government
Code of 1991, effective on January 1, 1992, and which repealed P.D. 1508, introduced substantial
changes not only in the authority granted to the Lupon Tagapamayapa but also in the procedure to be
observed in the settlement of disputes within the authority of the Lupon. cd i
In order that the laudable purpose of the law may not subverted and its effectiveness undermined by
indiscriminate, improper and/or premature issuance of certifications to file actions in court by the Lupon
or Pangkat Secretaries, attested by the Lupon/Pangkat Chairmen, respectively, the following guidelines
are hereby issued for the information of trial court judges in cases brought before them coming from the
Barangays:
I. All disputes are subject to Barangay conciliation pursuant to the Revised Katarungang
Pambarangay Law (formerly P.D. 1508, repealed and now replaced by Secs. 399-422, Chapter
VII, Title I, Book III, and Sec. 515, Title I, Book IV, R.A. 7160, otherwise known as the Local
Government Code of 1991), and prior recourse thereto is a pre-condition before filing a
complaint in court or any government offices, EXCEPT in the following disputes:
1. Where one party is the government, or any subdivision or instrumentality thereof;
2. Where one party is a public officer or employee, and the dispute relates to the
performance of his official functions;
3. Where the dispute involves real properties located in different cities and
municipalities, unless the parties thereto agree to submit their difference to
amicable settlement by an appropriate Lupon;
4. Any complaint by or against corporations, partnerships or juridical entities, since
only individuals shall be parties to Barangay conciliation proceedings either as
complainants or respondents (Sec. 1, Rule VI, Katarungang Pambarangay Rules);
NOTE: Only natural persons can undergo barangay conciliation.
5. Disputes involving parties who actually reside in barangays of different cities or
municipalities, except where such barangay units adjoin each other and the parties
thereto agree to submit their differences to amicable settlement by an appropriate
Lupon;
6. Offenses for which the law prescribes a maximum penalty of imprisonment
exceeding one (1) year or a fine over five thousand pesos (P5,000.00);
7. Offenses where there is no private offended party;
8. Disputes where urgent legal action is necessary to prevent injustice from being
committed or further continued, specifically the following:
NOTE: Urgently. A good example in civil action is where the action is coupled with a
provisional remedy such as preliminary injunction, attachment, replevin or support. Or,
actions which may be barred by the statute of limitations.
a.) Criminal cases where accused is under police custody or detention (See
Sec. 412 (b)(1), Revised Katarungang Pambarangay Law);
b.) Petitions for habeas corpus by a person illegally deprived of hisrightful
custody over another or a person illegally deprived of his liberty or one
acting in his behalf;
c.) Actions coupled with provisional remedies such as preliminary
injunction, attachment, delivery of personal property and support
during the pendency of the action; and
d.) Actions which may be barred by the Statute of Limitations.
9. Any class of disputes which the President may determine in the interest of justice
or upon the recommendation of the Secretary of Justice;
10. Where the dispute arises from the Comprehensive Agrarian Reform Law (CARL)
(Secs. 46 & 47, R.A. 6657);
11. Labor disputes or controversies arising from employer-employee relations
(Montoya vs. Escayo, et al., 171 SCRA 442; Art. 226, Labor Code, as amended,
 which grants original and exclusive jurisdiction over conciliation and mediation of
disputes, grievances or problems to certain offices of the Department of Labor and
Employment);
NOTE: In the case of Montoya vs. Escayo (171 SCRA 442), the conciliation there is in the
Department of Labor.
12. Actions to annul judgment upon a compromise, which may be filed directly in
court (See Sanchez vs. Tupaz, 158 SCRA 459).
II. Under the provisions of R.A. 7160 on Katarungang Pambarangay conciliation, as implemented
by the Katarungang Pambarangay Rules and Regulations promulgated by the Secretary of
Justice, the certification for filing a complaint in court or any government office shall be issued
by Barangay authorities only upon compliance with the following requirements: aisa dc
1.) Issued by the Lupon Secretary and attested by the Lupon Chairman (Punong
Barangay), certifying that a confrontation of the parties has taken place and that a conciliation
or settlement has been reached, but the same has been subsequently repudiated (Sec. 412,
Revised Katarungang Pambarangay Law; Sec. 2[h], Rule III, Katarungang Pambarangay Rules);
2.) Issued by the Pangkat Secretary and attested by the Pangkat Chairman, certifying
that:
a. a confrontation of the parties took place but no conciliation/settlement has been
reached (Sec. 4[f], Rule III, Katarungang Pambarangay Rules; or
b. that no personal confrontation took place before the Pangkat through no fault of
the complainant (Sec. 4[f], Rule III, Katarungang Pambarangay Rules).
3.) Issued by the Punong Barangay, as requested by the proper party on the ground of
failure of settlement where the dispute involves members of the same indigenous cultural
community, which shall be settled in accordance with the customs and traditions of that
particular cultural community, or where one or more of the parties to the aforesaid dispute
belong to the minority and the parties mutually agreed to submit their dispute to the
indigenous system of amicable settlement, and there has been no settlement as certified by
the datu or tribal leader or elder to the Punong Barangay of the place of settlement (Secs. 1,
4, & 5, Rule IX, Katarungang Pambarangay Rules); and
4.) If mediation or conciliation efforts before the Punong Barangay proved unsuccessful, there
having been no agreement to arbitrate (Sec. 410 [b], Revised Rule Katarungang Pambarangay
Lay; Sec. 1, c, (1), Rule III, Katarungang Pambarangay Rules), or where the respondent
fails to appear at the mediation proceeding before the Punong Barangay (3rd par. Sec. 8, a,
Rule VI, Katarungang Pambarangay Rules), the Punong Barangay shall not cause the issuance
of this stage of a certification to file action, because it is now mandatory for him to constitute
the Pangkat before whom mediation, conciliation, or arbitration proceedings shall be held.
III. All complaints and/or informations filed or raffled to your sala/branch of the Regional Trial
Court, Metropolitan Trial Court or Municipal Trial Court shall be carefully read and scrutinized to
determine if there has been compliance with prior Barangay conciliation procedure under the Revised
Katarungang Pambarangay Law and its Implementing Rules and Regulations, as a pre-condition to judicial
action, particularly whether the certification to file action attached to the records of the case comply
with the requirements hereinabove enumerated in par. II;
IV. A case filed in court without compliance with prior Barangay conciliation which is a pre-
condition for formal adjudication (Sec. 412[a] of the Revised Katarungang Pambarangay Law)
1.) may be dismissed upon motion of defendant/s, not for lack of jurisdiction of the
court but for failure to state a cause of action or prematurity (Royales vs. IAC, 127 SCRA 470;
Gonzales vs. CA, 151 SCRA 289), or
2.) the court may suspend proceedings upon petition of any party under Sec.
1, Rule 21 of the Rules of Court; and refer the case motu propio to the appropriate Barangay
authority, applying by analogy Sec. 408[g], 2nd par., of the Revised Katarungang Pambarangay
Law which reads as follows:
"The Court in which non-criminal cases not falling within the authority of the Lupon under this
Code are filed may at any time before trial, motu proprio refer the case to the Lupon
concerned for amicable settlement.
Strict observance of these guidelines is enjoined. This Administrative Circular shall be effective
immediately.
Manila, Philippines. July 15, 1993.
(Sgd.) ANDRES R. NARVASA
Chief Justice
Rule 19
INTERVENTION
This used to be under Rule 12. Now, they are divorced. What is left behind in Rule 12 is Bill of particulars.
And Intervention has been moved to Rule 19. What happened to the original Rule 19? The original Rule
19 on Judgment on the Pleadings was moved closer to Summary Judgment, to Rule 34.
Q: Define intervention.
A: An INTERVENTION is proceeding in a suit or action in which a third person, not a party to the case, is
permitted by the court to make himself a party to the case. (33 C.J.S. 447)
EXAMPLE: Leo creditor; Rucel debtor; Rayda surety. Rucel and Rayda signed a promissory note in
favor of Leo.
Q: Leo sues Rucel and Rayda. What pleading should Rucel file to protect herself?
A: Rucel should file a CROSS-CLAIM against her co-party Rayda.
Q: Leo sues only Rucel. What is the remedy of Rucel to protect herself? A: Rucel should file a THIRD-
PARTY COMPLAINT against Rayda.
Q: What if Rucel does not file a third party complaint against Rayda? What can Rayda do to be able to
join the case?
A: Rayda can, with leave of court, INTERVENE under Rule 19. The initiative should come from her.
So an intervention is related to a third-party complaint. It is a process by which a stranger or a third party
is included in a case, but with the difference that in a third-party complaint, it is the party who brought
you in. While in intervention, the initiative comes from the third person and he is known as the
intervenor. And the process of entering is called intervention. And take note that a person cannot simply
intervene for the sake of intervening. There must be a legal ground for intervention which can be found
in Section 1:
Section 1. Who may intervene. A person who has a legal interest in the matter in litigation, or in the
success of either of the parties, or an interest against both, or is so situated as to be adversely affected
by a distribution or other disposition of property in the custody of the court or of an officer thereof may,
with leave of court, be allowed to intervene in the action. The court shall consider whether or not the
intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and
whether or not the intervenor's rights may be fully protected in a separate proceeding. (2[a], [b]a, R12)
Q: What are the grounds for intervention?
A: The following are the GROUNDS for intervention:
1.) The intervenor has a legal interest on the matter under litigation;
2.) The intervenor has a legal interest in the success of either of the parties;
3.) The intervenor has a legal interest against both; or
4.) The Intervenor is so situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an officer thereof.
First Ground: THE INTERVENOR HAS A LEGAL INTEREST ON THE MATTER UNDER
LITIGATION;
EXAMPLE #1: Tarzan died survived by his children. Chita is appointed as administrator of his estate. Chita
filed a case to recover a piece of land which he believes belongs to the deceased. The children would like
to intervene.
Q: Do children have the legal personality or the right to intervene involving the estate of Tarzan?
A: YES, because they have a legal interest in the matter in litigation. If the case will succeed they will be
richer. The property will go to them. (Dais vs. CFI of Capiz, 51 Phil. 396)
EXAMPLE #2: Suppose Victor filed a case against Ping to recover a piece of land. Victors children (Mary,
Rose and Ador) would like to intervene contending that when their father (Victor) would die in the
future, their inheritance is affected.
Q: Can the children of Victor intervene?
A: NO. They cannot intervene the legal interest they are claiming is contingent, expectant there is no
assurance that your father will die ahead of you. The interest referred to by the law is an interest that is
direct immediate, actual existing interest as distinguished from expectant, inchoate or contingent
interest. (Garcia vs. David, 67 Phil. 279)
How do you distinguish the second example from the first case? In the first case, the father is dead and
you inherit the property. Technically, the property belongs to you. So the right of the heirs over the
property litigated by the administrator is not expectant or inchoate.
Second Ground: THE INTERVENOR HAS A LEGAL INTEREST IN THE SUCCESS OF EITHER OF THE PARTIES;
So you are interested in the plaintiff winning or the defendant winning.
EXAMPLE : In an action filed by the creditor against the surety only to recover the debt of the principal
debtor without impleading the principal debtor. The principal debtor may intervene if he would like to
join forces with the surety.
Third Ground: THE INTERVENOR HAS AN INTEREST AGAINST BOTH PARTIES;
I am not interested in the victory of either the plaintiff or the defendant. I am interested with my victory
against both. So it becomes a three-cornered fight.
EXAMPLE: Steven Spielberg filed a case against Ridley Scott who has the right to possess the property
and then here I come I will intervene. I am the one, not both of you, who has the right over the
property. Wala kayong lahat!!! Mga ungas!! So bakbakan na iyon. I have a better right against both of
you.
Fourth Ground: THE INTERVENOR IS SO SITUATED AS TO BE ADVERSELY AFFECTED BY A DISTRIBUTION
OR OTHER DISPOSITION OF PROPERTY IN THE CUSTODY OF THE COURT OR
OF AN OFFICER THEREOF.
EXAMPLE: Sonny secures a writ of preliminary attachment against Gemma but the property attached
preliminarily happens to be my property. So I can move to intervene because I am adversely affected by
the distribution.
Can you not file a third-party claim if your property is wrongfully attached? YES you can, but that is not
the only remedy. The law allows the third person to file an intervention in the main action.
INTERVENTION, NOT A RIGHT
Q: Is the intervention a right or a privilege?
A: NO. It is discretionary. A motion for intervention must be filed by the intervenor. And under Section 1,
the court may or may not grant the motion - the court shall consider whether or not the intervention will
unduly delay or prejudice the adjudication of the rights of the original parties and whether or not, the
intervenors rights maybe fully protected in a separate proceeding.
For example, the case between the original parties is about to end, the trial of the case is about to end
and at that point, you will have to intervene. If you intervene, we will start all over again. So, it will be
dilatory. But even if you will not be allowed to intervene, the court may say that you can file your case in
the future. You can file a separate action later against the parties.
BAR QUESTION: Now, there are some instances by way of exception when intervention maybe a matter
of right. What are these exceptions?
A: The following:
1.) When the intervenor turns out to be an indispensable party; and
2.) Class suit (Section 12, Rule 3)
Rule 3, Sec. 12. Class suit. - When the subject matter of the controversy is one of common or general
interest to many persons so numerous that it is impracticable to join all as parties, a number of them
which the court finds to be sufficiently numerous and representative as to fully protect the interests of
all concerned may sue or defend for the benefit of all. Any party in interest shall have the right to
intervene to protect his individual interest. (12a)
Did you notice that last sentence? Any party in interest shall have the right to intervene. So, in other
words, in a class suit and you are already included, law says, you have the right to intervene in so far as
your individual interest is concerned. So, that would be another instance where intervention seems to be
a matter of right rather than a matter of discretion.
WHEN AND HOW TO FILE
Sec. 2. Time to intervene. The motion to intervene may be filed at any time before rendition of
judgment by the trial court. A copy of the pleading-in- intervention shall be attached to the motion
and served on the original parties.
Sec. 3. Pleadings-in-intervention. The intervenor shall file a complaint-in- intervention if he asserts a
claim against either or all of the original parties, or an answer-in-intervention if he unites with the
defending party in resisting a claim against the latter. (2[c]a, R12)
Q: When do you move to intervene?
A: Under Section 2, at any time before rendition of judgment by the trial court. So, you cannot
intervene when there is already a decision. Tapos na ang kaso. The trial is already terminated. So the
earlier, the better.
And when you file a motion to intervene, the pleading-in-intervention that you want to file should
already be included. Now, under the old procedure, first, you file a motion to intervene. After filing your
motion and your motion is granted, then you file your pleading in intervention. So, motion first before
pleading. That was the old rule.
NOW, sabay na. The copy of the pleading and intervention shall be attached to the motion and served on
the original parties. That is also in consonance with Rule 15 Section 9 on motions in general.
Rule 15, Sec. 9. Motion for leave. - A motion for leave to file a pleading or motion shall be
accompanied by the pleading or motion sought to be admitted. (n)
So, in other words, when you file a motion for leave, the pleading must already be included in your
motion. An example is a motion to intervene where it must already be accompanied by the pleading-in-
intervention.
Now, what are these PLEADINGS-IN-INTERVENTION? Its there in Section 3. Its either a complaint-in-
intervention or an answer-in-intervention. So it DEPENDS:
If you are joining forces with the plaintiff, or you are asserting a claim against both, then you file a
COMPLAINT-IN-INTERVENTION. If you are uniting with the defendant to resist the plaintiff, you file an
ANSWER-IN-INTERVENTION.
So, these are among the pleadings recognized by the rules. Lets try to go back to the basic. What are the
types of pleadings allowed by the rules of court? Rule 6, Section 2:
Sec. 2. Pleadings allowed. The claims of a party are asserted in a complaint, counterclaim, cross-claim,
third (fourth, etc.) party complaint, or complaint-in-intervention.
xxxxx
Did you notice that complaint-in-intervention? So, we are wondering, ano ba itong complaint-in-
intervention? Actually, that is the pleading referred to now in Rule 19.
Sec. 4. Answer to complaint-in-intervention. The answer to the complaint-in
-intervention shall be filed within fifteen (15) days from notice of the order admitting the same, unless
a different period is fixed by the court. (2[d]a, R12)
In other words, just like any other complaint, it should be answered within 15 days. A complaint- in-
intervention must be answered within fifteen (15) days from notice of the order admitting the same,
unless a different period is fixed by the court. So you have 15 days.
Q: Now, suppose there is an amendment of a complaint-in-intervention. What is the period to answer?
A: Let us go back to Rule 11, Section 3:
Sec. 3. Answer to amended complaint. Where the plaintiff files an amended complaint as a matter of
right, the defendant shall answer the same within fifteen (l5) days after being served with a copy
thereof.
Where its filing is not a matter of right, the defendant shall answer the amended complaint within ten
(10) days from notice of the order admitting the same. An answer earlier filed may serve as the answer
to the amended complaint if no new answer is filed.
This Rule shall apply to the answer to an amended counterclaim, amended cross-claim, amended third
(fourth, etc.) party complaint, and amended complaint-in-intervention. (3a)
Q: What is the period to answer an amended complaint-in-intervention?
A: It is either 10 or 15 days just like answering an ordinary amended complaint.
DISMISSAL OF THE MAIN ACTION; EFFECT ON INTERVENTION
There is a case between Pches and John. Tommy intervened while the case is going on. Suppose the case
was dismissed either by the court or the plaintiff withdrew it. Can the intervention proceed
independently? Can it proceed when there is no more main action? In the case of
BIG COUNTRY RANCH CORP. vs. COURT OF APPEALS
227 SCRA 161 [1993]
HELD: An intervention is merely collateral or accessory or ancillary to the principal action and not an
independent proceeding. It is an interlocutory proceeding dependent on or subsidiary to the case
between the original parties. Where the main action ceases to exist, there is no pending proceeding
wherein the intervention maybe based. If the main action dies, the intervention dies also.
BUT there is another answer given by the SC in the case of:
METROPOLITAN BANK AND TRUST CO. vs. PRESIDING JUDGE, RTC OF MANILA
189 SCRA 820 [1990]
HELD: When the intervention is granted and the main action is withdrawn or dismissed, it would be
unfair to dismiss the intervention. So the intervention proceeds notwithstanding the withdrawal of the
main action.
The simple fact that the trial court properly dismissed plaintiffs action does not require
dismissal of the action of the intervenor. An intervenor has the right to claim the benefit of the original
suit and to prosecute it to judgment. The right cannot be defeated by dismissal of the suit by the
plaintiff. Where a complaint in intervention was filed before plaintiffs action had been expressly
dismissed, the intervenors complaint was not subject to dismissal on the ground that no action was
pending.
So iba na naman ang sinabi. Even if the main action is dismissed, the intervenor can still claim the benefit
of the intervention. So how do you reconcile these conflicting decisions now? Well, I think it DEPENDS on
the ground for intervention. To illustrate:
EXAMPLE #1: The creditor files a case against the surety. The debtor intervened. So, he is joining the
surety. Then creditor withdrew the complaint. What will happen to the intervention? The intervention
cannot go on because the intervention is actually to assist the surety. So, if the complaint against the
surety is dismissed, wala ng utang. There is no more basis to assist the surety. (BIG COUNTRY ruling)
EXAMPLE #2: But suppose Pches filed a case against John claiming that she has a superior right to posses
a piece of land. And then Tommy will intervene also claiming that he has the superior right to possess. So
the three of them will fight. And then later, Pches will withdraw the case. What will happen to Tommys
intervention? The dismissal of the main action does not mean that Tommy cannot prove his right against
John. The intervention should continue. Bahala ka kung nag-withdraw ka, basta ako I will continue. I will
claim that the land is mine. (METROBANK ruling)
Iyaaaan! It depends on what kind of intervention you are talking about.
Now, there an instance when intervention may be confused with another procedure under Rule 3,
Section 19 on Transfer of Interest. For example: When a property under litigation is sold and there is a
notice of lis pendens, the person who buys is called the TRANSFEREE PENDENTE LITE. In the case of
SANTIAGO LAND CORP. vs. COURT OF APPEALS
January 28, 1997
FACTS: Rose brought an action against a bank to enforce an alleged right to redeem certain real
properties foreclosed by the bank. With notice of the pending civil action, Leo purchased from the bank
one of the properties subject of the litigation. So Leo is now called the TRANSFEREE PENDENTE LITE. And
later, Leo filed a motion to intervene. Rose opposed Leos motion for intervention.
ISSUE: Is a transferee pendente lite of the property in litigation has a right to intervene?
HELD: The SC here made a distinction between the rights of a transferee pendente lite (Rule 3, Section
19) and an intervenor (Rule 19).
The purpose of Rule 19 on intervention is to enable a stranger to an action to become a party to protect
his interest and the court incidentally to settle all conflicting claims. On the other hand, the purpose of
Rule 3, Section 19 is to provide for the substitution of the transferee pendente lite precisely because he
is not a stranger but a successor-in-interest of the transferor, who is a party to the action. As such, a
transferees title to the property is subject to the incidents and results of the pending litigation and is in
no better position than the vendor in whose shoes he now stands.
As such, he stands exactly in the shoes of his predecessor in interest, the original defendant, and is
bound by the proceedings had in the case before the property was transferred to him. He is a proper, but
not an indispensable, party as he would, in any event, have been bound by the judgment against his
predecessor.
How then can it legally be possible for a transferee pendente lite to still intervene when, for all intents
and purposes, the law already considers him joined or substituted in the pending action, commencing at
the exact moment when the transfer of interest is perfected between the original party-transferor and
the transferee pendente lite? And this even if the transferee is not formally joined as a party in the
action. Because the transferee pendente lite simply takes the place of the transferor, he is barred from
presenting a new or different claim.
On the other hand, one who intervenes has a choice not to intervene and thus not to be concluded by
any judgment that may be rendered between the original parties to the action.
Meaning, if you are a TRANSFEREE PENDENTE LITE, there is no need for you to intervene because you are
already a (necessary) party. On the other hand, an INTERVENOR can decide whether or not he wants to
join to be bound by the judgment of the main case. So that is the ruling in SANTIAGO LAND.
There is another case on the issue again of intervention. The case of
FIRST PHILIPPINE HOLDINGS CORP. vs. SANDIGANBAYAN
253 SCRA 30 [February 1, 1996]
FACTS: There was a motion to intervene and the trial court denied it.
ISSUE: Is a writ of MANDAMUS available to compel a trial court to grant a motion for intervention?
HELD: As provided under Rule 19, Section 1, intervention shall be allowed in the exercise of discretion
by a court. Ordinarily, mandamus will not prosper to compel a discretionary act. But where there is gross
abuse of discretion, manifest injustice or palpable excess of authority equivalent to denial of a settled
right to which petitioner is entitled, and there is no other plain, speedy and adequate remedy, the writ
shall issue.
Rule 21
SUBPOENA
Section 1. Subpoena and subpoena duces tecum. Subpoena is a process directed to a person requiring
him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted
by competent authority, or for the taking of his deposition. It may also require him to bring with him
any books, documents, or other things under his control, in which case it is called a subpoena duces
tecum. (1a, R23)
Rule 21 applies to both civil and criminal cases. Q: What are the types of subpoena under the law?
A: The following are the types of subpoena: 1.) Subpoena Ad Testificandum; and 2.) Subpoena Duces
Tecum
Now, the first one is commonly known as subpoena for short. So, when you say that refers to the first
one.
Q: Define Subpoena Ad Testificandum.
A: SUBPOENA AD TESTIFICANDUM is a process directed to a person requiring him to attend and to testify
at the hearing or trial of an action, or at any investigation conducted by competent authority, or for the
taking of his deposition. So you are required to appear there and testify in court.
Q: Define Subpoena Duces Tecum.
A: SUBPOENA DUCES TECUM is a process directed to a person where it requires him to bring with him
any books, documents or other things under his control. So, in other words we are more interested in his
documents, which are in his custody. Whereas in ad testificandum, we are more interested in his oral
testimony.
Now, take note that a subpoena is a process which requires a witness to testify not only during the
hearing or the trial of his case but also any investigation conducted by competent authority like quasi-
judicial bodies such as the Labor Arbiter or the Senate Blue Ribbon Committee. Now, under Section 1,
you may wonder what do you mean by subpoena for the taking of his deposition? That because that
will clearer when we reach Rule 23. So we will just reserve talking deposition when we reach Rule 23.
Sec. 2. By whom issued. The subpoena may be issued by:
a) the court before whom the witness is required to attend;
b) the court of the place where the deposition is to be taken;
c) the officer or body authorized by law to do so in connection with investigations conducted
by said officer or body; or
d) any Justice of the Supreme Court or of the Court of Appeals in any case or investigation
pending within the Philippines.
When application for a subpoena to a prisoner is made, the judge or officer shall examine and study
carefully such application to determine whether the same is made for a valid purpose.
No prisoner sentenced to death, reclusion perpetua or life imprisonment and who is confined in any
penal institution shall be brought outside the said penal institution for appearance or attendance in
any court unless authorized by the Supreme Court. (2a, R23)
Q: Who are authorized to issue subpoena? A: The following:
1. The court before whom the witness is required to attend the most common is the court
where the court is pending;
2. The place where the deposition is to be taken we will discuss that when we reach Rule 23;
3. The officer or body authorized by law to do so in connection with investigations conducted by
said officer or body Now, even administrative bodies or quasi-judicial officers are authorized to issue
subpoena like the Labor Arbiter in connection with investigation conducted by said officer or body;
4. Any Justice of the Supreme Court or of the Court of Appeals in any case or investigation
pending within the Philippines So, practically any justice can issue a subpoena to attend a particular
case although it is not before the SC. They are empowered to issue a subpoena.
Q: Can you subpoena a PRISONER to appear in court?
A: YES, but the law says that the judge should be very careful to find out whether it is issued for a valid
purpose because there is a risk. If a prisoner is going to be brought out in jail because he has to testify in
a case, that might be an occasion for him to escape. So, the court should be very careful about that. The
court should have to find out whether it is necessary.
And take note, No person sentenced to death, reclusion perpetua, or life imprisonment and who is
confined in a penal institution shall be brought outside the said penal institution for appearance or
attendance in any court unless authorized by the Supreme Court. This is something new.
I think this last paragraph is from the case of former Congressman Nicanor de Guzman of Nueva Ecija
who was convicted of gun running. He was sentenced in Muntinlupa then one day, because of subpoena
to testify in his hometown, he was escorted in his hometown to attend the fiesta and then I think he just
used that as an excuse to attend the fiesta. And that was attacked by the media why was he allowed to
leave the national penitentiary when he is sentenced to reclusion perpetua? So, this paragraph now
appears. You cannot remove him from any National Penal institution without authority of the SC.
Sec. 3. Form and contents. A subpoena shall state the name of the court and the title of the action or
investigation, shall be directed to the person whose attendance is required, and in the case of a
subpoena duces tecum, it shall also contain a reasonable description of the books, documents or
things demanded which must appear to the court prima facie relevant. (3a, R23)
Now, actually that is simple. You are required to testify on this date or time or you are required to bring
with you the following documents, which was described in the subpoena duces tecum.
Now, can a subpoena be quashed? To quash means to have it dissolved. What are the grounds to quash
a subpoena? Section 4:
Sec. 4. Quashing a subpoena. The court may quash a subpoena duces tecum upon motion promptly
made and, in any event, at or before the time specified therein if it is unreasonable and oppressive, or
the relevancy of the books, documents or things does not appear, or if the person in whose behalf the
subpoena is issued fails to advance the reasonable cost of the production thereof.
The court may quash a subpoena ad testificandum on the ground that the witness is not bound
thereby. In either case, the subpoena may be quashed on the ground that the witness fees and
kilometrage allowed by these Rules were not tendered when the subpoena was served. (4a, R23)
GROUNDS TO QUASH SUBPOENA DUCES TECUM
Q: What are the grounds for quashing a subpoena duces tecum? A: The following are the grounds:
1.) If the subpoena duces tecum is unreasonable and oppressive;
2.) The relevancy of the books, things or documents does not appear;
3.) the person in whose behalf the subpoena is issued fails to advance the reasonable cost for the
production thereof.
First Ground: IF THE SUBPOENA DUCES TECUM IS UNREASONABLE AND OPPRESSIVE
Well, the best example is if it violates Section 3 it does not contain a reasonable description of the
book, documents or things demanded.
EXAMPLE: I will subpoena a business man to a business company, Mr. Manager you are required to
bring to court all your ledgers, all your receipts, and all your documents from 1990 to the present. My
golly! That would involve how many truck loads. Meaning, it would involve bringing to court thousand of
documents. So, it becomes unreasonable and oppressive. The subpoena duces tecum should be more
specific.
Second Ground: THE RELEVANCY OF THE BOOKS OR DOCUMENTS DOES NOT APPEAR
Meaning, there appears to be no connection between the documents which are being sought, and the
issues in the case. Example, in a collection case, you were required to bring your birth certificate,
marriage contract, etc. My golly! Anong pakialam ng mga niyan sa collection case?
Third Ground: THE PERSON IN WHOSE BEHALF THE SUBPOENA IS ISSUED FAILS TO ADVANCE THE
REASONABLE PRODUCTION THEREOF
This is a very common situation:
A bank received his subpoena duces tecum, Present to court the ledger of the return check of
somebody. And this check was issued and send to you four years ago. Do you know the inconvenience
when a company is asked to bring to court documents especially yung matagal na? Practically, the
company has to assign the employee out of his usual job. He is pulled out from his usual job to look for
these in the archives. Isa-isahin niya iyan. Maybe it will take him two or three days to locate and then he
will be required to go to court where you will miss your work because you will be in court and yet the
person who demand the subpoena duces tecum has never been bothered to pay service fee for that.
Meaning, dapat magbayad siya reasonable cost.
Of course, the law does not say how much. Sa gobyerno nga papirma ka lang diyan ng isang pirma bayad
ka na ng service fee. How much more in the private sector, where you are requiring a company to look
for a document? He is the one to look and then somebody will go to court. He will not be reporting for
job and yet you have not even offered anything to the company. We experienced this many times
subpoena duces tecum, and then the manager of the bank will say, do we have to comply with these?
Well, you do not want to comply. Puwede man.
When you received the subpoena duces tecum, may bayad ba? Did the person offer any amount for the
trouble in looking for these documents and in going to court? Wala. Okay, we will move to quash. In
other words, sometimes companies and banks just waived this. Sige lang, bayaan mo na. Maliit na bagay
lang iyan. But it is a ground for quashing a subpoena.
GROUND TO QUASH SUBPOENA AD TESTIFICANDUM
Q: How do you quash a subpoena ad testificandum?
A: The court may quash a subpoena ad testificandum on the ground that the witness is not bound
thereby.
Q: When is a witness not bound by a subpoena?
A: The best answer is Section 10 of this rule if your residence is more than 100 kilometers from the
place of trial. So, you cannot subpoena someone from Cebu to come to Davao because that is more than
100 kms. But suppose you are willing to pay for his transportation? Never mind, even if he is willing to
pay the transportation. Pag ayaw niya, wala kang magagawa because it is more than 100 kms.
In either case, whether subpoena duces tecum or ad testificandum, the last sentence says, You must
also tender the witness fees and kilometrage allowed by this rules. Ano ba yang witness fees? I think
thats Rule 141, yun bang pamasahe. There is a computation there. How much you have to pay the
witness for his transportation and witness fees. That is different from the reasonable cost and
reproduction in the first paragraph. So, these are the grounds for questioning a subpoena.
Sec. 5. Subpoena for depositions. Proof of service of a notice to take a deposition, as provided in
sections 15 and 25 of Rule 23, shall constitute sufficient authorization for the issuance of subpoenas
for the persons named in said notice by the clerk of the court of the place in which the deposition is to
be taken. The clerk shall not, however, issue a subpoena duces tecum to any such person without an
order of the court. (5a, R23)
Now, lets us skip Section 5 for the meantime because that is deposition.
Sec. 6. Service. Service of a subpoena shall be made in the same manner as personal or substituted
service of summons. The original shall be exhibited and a copy thereof delivered to the person on
whom it is served, tendering to him the fees for one days attendance and the kilometrage allowed by
these Rules, except that, when a subpoena is issued by or on behalf of the Republic of the Philippines
or an officer or agency thereof, the tender need not be made. The service must be made so as to allow
the witness a reasonable time for preparation and travel to the place of attendance. If the subpoena is
duces tecum, the reasonable cost of producing the books, documents or things demanded shall also be
tendered. (6a, R23)
The first sentence says, Service of the subpoena shall be made in the same manner as personal or
substituted service of summons. That is a new provision. So, the mode of service of summons, personal
or substituted is also the manner of serving subpoena. So there is now a substituted service of summons.
You can leave it to the wife.
Under the old rule, it says there, the subpoena shall be served personally to the witness. There is no such
thing as substituted service of subpoena because in most cases, when you subpoena somebody, you go
to the house, the witness is not there but the wife is there. So sabihin mo, Ibigay mo na lang sa husband
mo ito. That is substituted service of subpoena. You must serve it personally to the witness. There is no
such thing as substituted service of subpoena Under the prior rule.
But NOW, the rule has changed because Section 6 is very clear: It shall be made in the same manner as
personal or substituted service of summons. Alright.
And take note that You exhibit it to the witness. Then bayaran mo yong kanyang pamasahe. You must
serve the subpoena with a reasonable time to me to allow him to travel. Its very unbecoming that the
witness be serve a subpoena today and he is suppose to testify tomorrow. Suppose he has other
commitments, bigyan mo siya ng time. And of course, as we discussed earlier, the reasonable cost of
producing the books, documents or things demanded shall also be rendered.
Sec. 7. Personal appearance in court. A person present in court before a judicial officer may be
required to testify as if he were in attendance upon a subpoena issued by such court or officer. (10,
R23)
GENERAL RULE: You can be compelled to testify if you have not been serve with a subpoena.
EXCEPTION: Section 7 a person present in court before a judicial officer maybe required to testify as if
he is under subpoena.
EXAMPLE: During the trial, Mr. Pogi is there. Gusto niyang makinig eh. Audience lang siya. And then the
lawyer will say, Our first witness is Mr. Pogi. Sabi niya Uy, uy, wala koy labot diri. I was not under
subpoena. NO, You can be compelled because you are present in court. Any person present inside the
courtroom can be compelled to testify as if he is under subpoena.
So, if Mr. Pogi believes he will be called and ayaw niya, huwag siyang sumipot sa court. Huwag kang
magtingin-tingin doon. It happened several times. There was an instance I wanted to call a witness
several times to surprise him. If I will have him subpoena, baka makabantay. Alam din niya. And then Ill
talk to him. O punta ka bukas ha? Sigurado ha. In other words, Ill have to trick him into going into
courtroom and then once inside, my first witness is that guy. Wala kang magawa. Because any person
present in court can be compelled to testify because if I will have him subpoena, he will be forewarn. So
I do not want to forewarn him.
FAILURE TO APPEAR; CONSEQUENCES
Q: How do you compel a witness to attend? Meaning, a witness was subpoena and he did not show up.
What are the consequences of defying a subpoena?
A: The consequences are found in Sections 8 and 9.
Sec. 8. Compelling attendance. In case of failure of a witness to attend, the court or judge issuing the
subpoena, upon proof of the service thereof and of the failure of the witness, may issue a warrant to
the sheriff of the province, or his deputy, to arrest the witness and bring him before the court or
officer where his attendance is required, and the cost of such warrant and seizure of such witness shall
be paid by the witness if the court issuing it shall determine that his failure to answer the subpoena
was willful and without just excuse. (11, R23)
Sec. 9. Contempt. Failure by any person without adequate cause to obey a subpoena served upon him
shall be deemed a contempt of the court from which the subpoena is issued. If the subpoena was not
issued by a court, the disobedience thereto shall be punished in accordance with the applicable law or
Rule. (12a, R23)
Q: What are the consequences if the witness refuses to appear after he was subpoenaed> A: The
following:
1.) You can ask the court to issue a warrant for his arrest. (Section 8) Parang criminal ba. Thats what you
call a warrant to arrest a recalcitrant witness. You move to arrest the witness para puwersahin mo ba;
2.) Declare him in contempt of court for failure to obey the subpoena (Section 9)
ENFORCEABILITY OF SUBPOENA
Sec. 10. Exceptions. The provisions of sections 8 and 9 of this Rule shall not apply to a witness who
resides more than one hundred (100) kilometers from his residence to the place where he is to testify
by the ordinary course of travel, or to a detention prisoner if no permission of the court in which his
case is pending was obtained. (9a, R23)
Q: When is a witness not bound by a subpoena?
A: When his place of residence is more than 100 kms. to the place of trial. Actually, the old rule is
50 kms. lang. Now, the new rule is double na more than 100kms. So pag sobra ng 100 kms, you cannot
compel the witness anymore to appear. Alright, clear so far?
Although, this 100-km distance does not apply if it is a criminal case where the accused would like to
seek the compulsory process issued to secure the attendance of witnesses in his behalf because that is a
superior right.
That is how the SC interpreted it in the case of PEOPLE vs. MONTEJO (21 SCRA 722 [1965]), reiterated in
GENORGA vs. QUITAIN (78 SCRA 94) that the 50-km (now 100-km) limitation applies only to civil cases,
but not to criminal cases, especially if the person to be subpoenaed is a defense witness because of the
constitutional right of the accused which is a right which cannot be curtailed by the Rules of Court.
SUMMONS vs. SUBPOENA
Now, Ive noticed among laymen that there is a confusion between a summons and a subpoena. Ive
tried noticing that for years. The client will say, Nakatanggap ako ng subpoena. Pagtingin mo summon
man under Rule 14. Sometimes, he will say, Gi-summon ako ng court. Iyon pala, subpoena. In other
words among laymen, they think summon and subpoena are the same but actually we know that they
are not.
Summons is in Rule 14 and one good question is, distinguish summon from subpoena. I notice that there
is no author has ever bothered to explain at least to outline an answer in his book. Ive gone to many
books in remedial law, I still have to see an author who says in his commentaries, summons and
subpoena are two different things and these are the distinctions?
Now, suppose that will be asked in the bar, do not be afraid simply because you have not read it in the
book. If you know an idea, a legal concept summons, alam naman ninyo yan; subpoena actually you
can answer. You do not have to rely to any author in answering the question.
As a matter of fact, I remember when I was taking the BAR, I never bother to read the distinction of any
author. Why? Because how can I memorized all of these distinctions in all subject? Impossible no? Its
impossible for me to memorize everything that the author said about distinctions and I dont have to rely
on any book. Thats the best. Now, yong mga author, they only try to make your job easier by outlining
the distinctions between this and that. But suppose there will be a question where you are asked to
differentiate this from that and you have not read that in any book, mag-panic ka? Huwag kang mag-
panic. In other words, once you know the concept, you can easily give an answer.
Alright, there should be no confusion between a subpoena and a summons. There are 2 different
processes, although laymen would tend to equate one with the other.
Q: Distinguish SUBPOENA from SUMMONS. A: The following are the distinctions:
1.) SUBPOENA is directed to a witness; whereas
SUMMONS is directed to a defendant in a civil case;
2.) In SUBPOENA, the witness is directed to appear in court or to bring documents; whereas
In SUMMONS, the defendant is informed that a complaint is filed against him and he must file a
responsive pleading within the period otherwise, judgment can be rendered;
3.) In SUBPOENA, the witness will be declared in contempt or his attendance can be compelled by the
issuance of a warrant for his arrest; whereas
In SUMMONS, a judgment in default will be rendered against the defendant who fails to comply.
4.) SUBPOENA applicable to both criminal and civil case; whereas
SUMMONS applies only to civil cases.
5.) In SUBPOENA, there is a 100-km limitation of its enforceability; whereas
In SUMMONS, there is no distance limitation.
Rule 22
COMPUTATION OF TIME
Section 1. How to compute time. In computing any period of time prescribed or allowed by these
Rules, or by order of the court, or by any applicable statute, the day of the act or event from which the
designated period of time begins to run is to be excluded and the date of performance included. If the
last day of the period, as thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place
where the court sits, the time shall not run until the next working day. (n)
This is what is known as EXCLUDE THE FIRST AND INCLUDE THE LAST DAY rule. That is how it has
always been done even before this new rule. However, it was not expressed, there is nothing in the
previous rules mentioning that rule but that was really the rule followed.
So, if you received the summons today, for example and you have 15 days to answer, you start counting
1(one) tomorrow, not today because the day of the act or event from which the designated period of
time begins to run is to be excluded.
Q: Now what happens if the last day to answer falls on a Saturday, Sunday or a legal holiday?
A: Then, the time shall not run until the next working day. So there will be an automatic extension to
Monday or the next working day.
So at least, the new rules now embody the rule of computation of time.
Sec. 2. Effect of interruption. Should an act be done which effectively interrupts the running of the
period, the allowable period after such interruption shall start to run on the day after notice of the
cessation of the cause thereof.
The day of the act that caused the interruption shall be excluded in the computation of the period. (n)
EXAMPLE: The defendant received the summons and the complaint on a certain day. He has 15 days to
file his answer. An example of an act in between which effectively interrupts the running of the 15-day
period is when the defendant files a motion to dismiss instead of filing an answer, or a motion for a bill of
particulars. In which case, the running of the 15-day period stops. And since it is stopped, you cannot
declare the defendant in default.
Q: Now, when will it start to run again?
A: It will start to run again when the defendant receives a court order denying his motion to dismiss.
For example: A motion to dismiss is filed on the 7th day (instead of filing an answer). Then after several
weeks, the court denied the motion to dismiss and he received the order of denial.
Q: So how many days more to go?
A: Meron pa siyang eight (8) days to go. But the minimum guaranteed is five(5) days under Rule 12 and
16.
Now, what is the meaning of the last sentence The day of the act that cause the interruption shall be
excluded in the computation of the period. Lets try to illustrate that:
FACTS:
January 31 defendant is served with summons February 8 defendant files a motion to dismiss
February 15 defendant receives order denying motion to dismiss
Q: What is the deadline for defendant to file his answer?
A: The 15-day period started to run on January 31. From January 31 to February 8, he consumed 8 days.
From February 8 to 15, not counted because interrupted man by motion to dismiss. Then, on February
15, he received the order denying his motion to dismiss.
So the remaining balance of the 15-day period starts to run again. And 15 minus 8 is equal to 7.
Therefore, February 15 + 7 = February 22. That is how you arrive at your (WRONG) answer.
Now, Im sure if you ask majority of lawyers and judges with that kind of problem, they will give the same
answer. But the answer is WRONG. Why?
Q: How many days did he consume from January 31 to February 8?
A: Hindi naman 8 days eh. 7 days lang because the filing of the motion to dismiss has interrupted.
So when you file the motion to dismiss on February 8, interrupted na. So February 8 is not counted. So
you consumed 7 days only. Yaaaannnn.
Therefore, if he consumed 7 days, he has 8 days pa from February 15 to file. So the deadline is February
23. Yaaaannnn! Because the law says: The day of the act that caused the interruption shall be excluded
in the computation of the period. The act that caused the interruption is the filing of the motion to
dismiss and it was filed on February 8. So, February 8 is already excluded in the computation of the
period.
Take note of that, that is a very important point because it may mean the answer is filed on time or out
of time. Kahit sa appeal, applicable din ito. Thats why that provision may sound very innocent but it is a
very important provision.
Rule 23
DEPOSITIONS PENDING ACTION
We are now in Modes of Discovery. This is one of the hardest portions of Civil Procedure. I have to admit
even some lawyers and judges have a difficult time in comprehending Modes of Discovery.
A civil case is not a case of technicalities. The rules do not want surprises in civil cases. You lay your cards
on the table. You do not keep your opponent searching in the dark and that principle is manifested in so
many rules.
Example, when a defendant resorts to a specific denial, he is obliged not only to deny the allegations in
the complaint but also the facts that is denied. It is not fair to state that my version is false, without
stating your version. And if you do not make specific denial, there is a general denial, an implied
admission.
You cannot also deliberately confuse the defendant by making ambiguous ultimate facts in the complaint
to confuse him. He has the right to clarify the allegation by motion for bill of particulars.
There is also the rule that objections or defenses not pleaded in the motion to dismiss or in an answer
are generally waived. So, if you do not invoke the defense because you want to surprise the plaintiff, you
will be the one who will be surprised because the courts will not allow you. There is no such thing as
surprise defense because under Rule 9, defenses not raised are deemed waived. These provisions of the
rules indicate the principle: LAY YOUR CARDS ON THE TABLE.
BUT there is still an element of surprise whether you like it or not because Im obliged to state my cause
of action or defense but Im not obliged to state the facts supporting that defense because the rules even
say, evidentiary matters should not be alleged in the pleading but is only proved in the trial.
So, if I say I am in possession of a particular property for 30 years, you know very well what I intend to
prove but you do not know how I will prove it the kind of evidence I will present you know the factum
probandum but you do but you do not know the factum probans. You do not know what documents I
will present in court because I am not obliged to plead document which is not actionable one. You do not
know who are my witnesses, you do not know they will testify.
A motion for bill of particulars is not a vehicle to fish for evidentiary facts. So, in that sense there is still
an element of surprise you do not know my evidence until the trial or pre-trial.
Q: But if you want to avoid any surprise, is there a way of knowing then?
A: YES. The correct remedy is to apply the modes of discovery. While the modes of discovery is not so
popular among the Filipino lawyers, in America these modes of discovery are popular among lawyers
because if
they see that the evidence is strong, they settle the case even before trial. Modes of discovery are not
only allowed
but their use is encouraged.
BAR QUESTION: How do you distinguished Bill of Particulars from Modes of Discovery?
A: Bill of Particulars is Rule 12, when you compel the party to clarify vague statements of ultimate facts,
but it is not an instrument to compel the other party to reveal evidentiary facts. The Modes of Discovery
are intended to compel the other party to reveal his evidence and evidentiary facts.
There are actually five (5) Modes of Discovery:
1. DEPOSITIONS (a) pending action (Rule 23) and (b) before action or pending appeal (Rule 24);
2. WRITTEN INTERROGATORIES TO PARTIES (Rule 25);
3. REQUEST FOR ADMISSION OF ADVERSE PARTIES (Rule 26);
4. PRODUCTION OR INSPECTION OF DOCUMENTS AND THINGS (Rule 27); and
5. PHYSICAL AND MENTAL EXAMINATION OF PERSONS (Rule 28)
These are devises in the Rules of Court which are intended to compel the other party to reveal his
evidences before the trial. You cannot compel a party to reveal his evidence by a Bill of Particulars
because Bill of Particulars is only intended to clarify vague statements of ultimate facts but evidentiary
facts cannot be compelled so the remedy are Modes of Discovery.
This is another neglected area of the Rules of Civil Procedure where lawyers do not seem to know how to
use the Modes of Discovery, just like the pre-trial, ba. So, long before the trial, I can compel your
witnesses to reveal their testimony under oath through Modes of Discovery. So that during the trial, I
would not be surprised anymore because meron na akong copy of your testimony which is also under
oath. And if you have some documents to present which you are hiding because they are not actionable,
puwede man kitang pilitin ba, by applying Rule 27. So with this, there are no more surprises.
First Mode: Rule 23: DEPOSITION PENDING ACTION
This mode is the most popular among the five. Deposition has two (2) types deposition pending action
(Rule 23) and depositions before action or pending appeal (Rule 24). But actually Rule 24 is not new
because that is Rule 134 (Perpetuation of Testimony).
But before we discuss Rule 23, I will give you a general idea about what Rule 23 is all about.
EXAMPLE: You are my opponent and I know you have 2 witnesses, A and B. Now, of course, if A and B
will testify, how will they testify, that I do not know. But I want to know exactly what they will say during
the trial, including you.
Q: How do I apply Rule 23?
A: I will take your deposition. Meaning, I will take your testimony in advance by compelling you to appear
before someone whom we call a Deposition Officer the judge, or any judge, or even a notary public -
who can
administer oath. And then before him, I will be asking now questions and you have to answer under
oath. Your answers will then be recorded including that of your witnesses.
Therefore, during the trial, when you or your witnesses will testify, there is no more surprise testimony
that you can give me because I already heard you in advance. You cannot contradict your answer. This is
what you call deposition taking.
Now, if I can do that to you, you can also do that to me. The defendant can also use that against the
plaintiff. Q: How do you define deposition?
A: DEPOSITION is the written testimony of a witness given in the course of a judicial proceeding, in
advance of the trial or hearing, upon oral examination or in response to written interrogatories, and
where an opportunity is given for cross-examination. (16 Am. Jur. 699)
When I take the deposition of somebody, my opponent has the right to cross-examine the same witness.
So practically, its a dress rehearsal for the trial when I ask questions, my opponent can ask questions
also. The questioning of the witnesses is done the way it is done during the trial. The witness of the
opponent has to undergo the same procedure in the rules of evidence. That is Section 3:
Sec. 3. Examination and cross-examination. Examination and cross-examination of deponents may
proceed as permitted at the trial under sections 3 to 18 of Rule 132. (3a, R24)
Q: Distinguish a deposition from an affidavit.
A: Affidavit is also a sworn statement of a witness but the statement is taken ex-parte (no cross-
examination). But in deposition there is cross-examination, there is a confrontation as if he is already
testifying in court.
Section 1. Depositions pending action, when may be taken. By leave of court after jurisdiction has
been obtained over any defendant or over property which is the subject of the action, or without such
leave after an answer has been served, the testimony of any person, whether a party or not, may be
taken, at the instance of any party, by deposition upon oral examination or written interrogatories.
The attendance of witnesses may be compelled by the use of a subpoena as provided in Rule 21.
Depositions shall be taken only in accordance with these Rules. The deposition of a person confined in
prison may be taken only by leave of court on such terms as the court prescribes. (1a, R24)
Deposition-taking under Section 1 presupposes that there is a pending civil case kaya nga, the title is
depositions pending action. There is an existing civil case and I would like to take the deposition of
certain people.
Q: When there is a pending action, is it necessary that leave of court or permission should be sought for
deposition to be allowed?
A: The rule is, it DEPENDS if there is already an answer or no answer:
1.) If the defendant has already filed an answer and therefore jurisdiction over the person of the
defendant has been obtained, leave of court is not required. All you have to do is send the questions to
the other party;
2.) But if there is no answer, where the court has not yet acquired jurisdiction over the person of the
defendant, it requires a motion.
Another instance where leave of court is required under Section 1 is when what is to be taken is a
deposition of a person confined in prison.
Q: Whose deposition can you take?
A: The law says, you can take the testimony of any person whether a party or not at the instance of any
party.
EXAMPLE: I will file a case against Mr. A. Can I take the depositions of his witnesses? Yes, including Mr.
As deposition. I can also take the deposition of my own witnesses, even my own deposition. At least,
before I die, nakuha na yung testimony ko. So I can take the deposition of anybody in the world. Thats
why the law says, the testimony of any person whether a party or not may be taken at the instance of
any party. And of course, Mr. A can also do what I was allowed to do.
Q: When you take deposition of this person, what do you call him?
A: The accurate term is that, he is called DEPONENT. Some people call him witness.
Q: What are the modes of deposition taking?
A: Under the law, there are two (2) recognized modes: 1.) Deposition upon oral examination; and
2.) Deposition upon written interrogatories
The deposition upon oral examination is more popular because it is just like how you question a witness
in court: Questions and answers, then it is recorded. And then later on, the other counsel would ask his
questions and answer. Deposition upon written interrogatories should not be confused with Rule 25
because the former is governed by Rule 23. Although they use the same words.
Now, as we shall see, there must be a deposition officer and under the law, even a notary public is
qualified to act as deposition officer because he can administer oaths.
Deposition taking has a counterpart in criminal procedure. c.f. Rule 119, Sections 12,13 and 15.
Q: Suppose I would like to take the deposition of Ms. A before a notary public whose office is located
along San Pedro Street. How can I force Ms. A to go to the office of that notary public? Can I force her?
A: If Ms. A is in court, the court can force you by subpoena. But I can also compel Ms. A to attend this
questioning for the purpose of deposition. Section 1 says, the attendance of witnesses may be
compelled by the use of a subpoena as provided in Rule 21.
Rule 21, Section 1. Subpoena and subpoena duces tecum. Subpoena is a process directed to a person
requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation
conducted by competent authority, or for the taking of his deposition. It may also require him to bring
with him any books, documents, or other things under his control, in which case it is called a subpoena
duces tecum. (1a, R23)
PROBLEM: Your case is in Davao but your witness is in Cebu. You asked your witness to come here in
Davao to help you and you are even willing to shoulder her transportation, but she refuses.
Q: Can you ask the court in Davao to issue a subpoena compelling such witness to come here and testify
even if the distance is more than 100 kilometers?
A: NO, because of Section 10 of Rule 21. The remedy is you go to Cebu and get a deposition officer and
take her deposition.
Q: How can I compel her to go to the office of the notary public in Cebu for the purpose of the
deposition?
A: You can get a subpoena from the Cebu court and that is allowed under Rule 21, Section 2 [b] and
under Rule 21, Section 5:
Rule 21, Sec. 2. By whom issued. The subpoena may be issued by:
xxxxx
b) the court of the place where the deposition is to be taken;
xxxxx
Sec. 5. Subpoena for depositions. Proof of service of a notice to take a deposition, as provided in
sections 15 and 25 of Rule 23, shall constitute sufficient authorization for the issuance of subpoenas
for the persons named in said notice by the clerk of the court of the place in which the deposition is to
be taken. The clerk shall not, however, issue a subpoena duces tecum to any such person without an
order of the court. (5a, R23)
In other words, I will send the notice to my opponent, I am going to take the deposition of my witness in
Cebu. And based on that notice, I will go to Cebu and ask the clerk of court of the RTC of Cebu to issue a
subpoena based on the notice to take deposition on the Davao case. And under the Rules, the Cebu RTC
has to issue a subpoena even if the case is not pending in that (Cebu) court because this is only
deposition. Kaya nga under Rule 21, Section 2 [b], a subpoena may be issued by the court of the place
where the deposition is to be taken.
There was an instance before, a Manila lawyer who wanted to take the deposition of somebody in
Davao. Then he applied for a subpoena to require the deponent to appear before a notary public here.
At least, tama siya doon. Ang mistake niya, he applied for a subpoena in the Manila court where the case
is pending and the judge there, maybe he did not read Rule 21, issued a subpoena addressed to the
person in Davao to appear before the notary public in Davao and the witness did not appear. So the
lawyer realized na mali siya. So he had to do it all over again in Davao, not in Manila. The subpoena has
no more effect beyond 100 kilometers. It should be filed not where the case is pending but at the court
of the place where the deposition is to be taken. In other words, the error was corrected, but can you
imagine the waste of time and effort.
Generally, depositions are taken at the start of the case before the trial. But in the case of
DASMARIAS GARMENTS, INC. vs. REYES 225 SCRA 622 [1993]
ISSUE: Whether or not deposition taking is only allowed before the action comes to trial. Can you still
resort to deposition under Rule 23 when the trial is already ongoing or it is only at the pre-trial?
HELD: Depositions may be taken at any time after the institution of any action, whenever necessary or
convenient. There is no rule that limits deposition-taking only to the period of pre-trial or before it; no
prohibition against the taking of depositions after pre-trial. Indeed, the law authorizes the taking of
depositions of witnesses before or after an appeal is taken from the judgment of a Regional Trial Court to
perpetuate their testimony for use in the event of further proceedings in the said court and EVEN during
the process of execution of a final and executory judgment.
Meaning, deposition taking is even allowed as part of the execution where the trial is already
terminated. This is called with another name in Rule 39 on execution, satisfaction or effects of
judgments. (c.f. Rule 39, Sections 36, 37 and 38)
What can be the subject matter of deposition taking? Section 2:
Sec. 2. Scope of examination. Unless otherwise ordered by the court as provided by section 16 or 18 of
this Rule, the deponent may be examined regarding any matter, not privileged, which is relevant to
the subject of the pending action, whether relating to the claim or defense of any other party,
including the existence, description, nature, custody, condition, and location of any books, documents,
or other tangible things and the identity and location of persons having knowledge of relevant facts.
(2, R24)
Q: When you take the deposition of a deponent what can you ask? What matters may be inquired into?
A: The law says, the deponent may be examined regarding any matter whether related to the claim or
defense of any other party.
Example: Suppose if there is a case between me and somebody and I suspect Pedro knows
something about the facts but I am not sure, so I will take his deposition. I will start asking questions to
Pedro wherein practically Im groping in the dark. I just start asking questions left and right hoping that, I
may stumble into something about the case.
Q: Is that allowed? Pataka lang ba ang style of asking questions.
A: YES, it is allowed. Precisely, the mode of discovery is a fishing expedition in the hope that you will
discover something in the course of a questioning. If I already know a fact, there is nothing to discover. It
is very broad that I may discover something in the course of questioning. You can ask the deponent any
matter related to the claim or defense but there are limitations.
LIMITATIONS IN DEPOSITION TAKING
Q: What are the limitations or prohibitions in deposition taking? A: The following are the limitations in
Deposition Taking:
1.) The matter inquired into is not privileged either under the rules on evidence or special law;
2.) The matter inquired into is relevant to the subject of the pending action;
3.) The court may issue orders to protect the parties and its deponents under Sections 16 or 18.
FIRST LIMITATION: That the matter inquired into is not privileged.
There are things which you cannot compel a person to reveal in court. EXAMPLE: You cannot compel the
wife to reveal in court what her husband told her in confidence during their marriage. That is known as
the marital privileged communication rule (Rule 130, Section 24 [a]).
Other privileged communications: Lawyer-Client communication rule (Rule 130, Section 24 [b]);
Physician- Patient communication rule (Rule 130, Section 24 [c]); Priest-Penitent communication rule
(Rule 130, Section 24 [d]). Or, business trade secrets such as the formula of your product.
So, if you cannot ask that in a trial, you cannot also ask that in a deposition taking.
SECOND LIMITATION: The matter inquired into is relevant to the pending action.
While deposition taking authorizes a fishing expedition, you are not allowed however, to go beyond the
topic. EXAMPLE: You will ask the witness about an incident which happened and she was supposed to be
there. Where were you on this date? I was there. Who was with you? I was with my boyfriend. show up.
When did he become your boyfriend? or How often do you date each other? or Whats his favorite
color? Malaki ba ang tiyan niya? My golly! Those questions are irrelevant. Anong pakialam niyan sa
topic? Walang connection ba!
THIRD LIMITATION: The court may issue orders to protect the parties and its deponents under Sections
14 or 18 of this Rule.
While it is true that leave of court is not necessary anymore, you have to remember that it is related to a
pending case and the court has control over the case. That is why, while leave of court is not necessary,
any party who is aggrieved can go to court and complain. And the court is authorized to issue orders to
protect the parties and its deponents under Sections 16 or 18 of this Rule.
Q: In what proceedings can a deposition be used?
A: It can be used later during the trial of the case, or in supporting or opposing the motion. A good
example is the remedy of summary judgment under Rule 35. Under this Rule, a party can file a motion
for summary judgment to demonstrate that the party has no cause of action. In that sense, I will support
my motions with affidavit, depositions or documents.
USE OF DEPOSITIONS
Sec. 4. Use of depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding,
any part or all of a deposition, so far as admissible under the rules of evidence, may be used against
any party who was present or represented at the taking of the deposition or who had due notice
thereof, in accordance with any one of the following provisions:
xxxxx
Q: In what proceedings may a deposition be used? A: The following:
1.) At the trial;
2.) Upon a hearing of a motion; or
3.) Upon a hearing of interlocutory proceeding (e.g. issuance of a writ of preliminary injunction or
attachment)
Q: Against whom may a deposition be used? A: Against the following:
1.) against any party who was present; or
2.) against a party who was represented at the taking of the deposition; or
3.) against a party who did not appear or represented but was duly notified of the scheduled deposition
taking.
So, the procedure for deposition taking is first, to notify the other party of the date, place and time of the
deposition taking of a person. The other party is free to go there and participate. So if person appeared
and participated, he is bound by the deposition. If he fails to appear but sent a representative, the same
effect the person is bound. Suppose a person received the notice and never bothered to go or
participate, he is still bound because the law says, for as long as you are notified, you are bound.
So whether you will come or not, you are bound by the deposition taking. In this case, you might as well
This is one area of procedure in which clients do not understand. Sometimes you will received a notice
from the opposing counsel that he is going to take the deposition of your client and witnesses. The client
usually will oppose because they thought that the only time you are going to tell the story is in court and
not in the office of Atty. Hong Hunk. The lawyer has a hard time explaining deposition taking to the client
because the laymen usually does not know this. They do not know that the other party could compel you
under the law.
The process of deposition is so hard to explain to the laymen. He does not understand why the witnesses
can be compelled to testify long before the trial, not inside the courtroom but in somebodys place and
everything is recorded and under oath. The tendency is, samok kaayo ang imong client. Tell him, Do not
ask questions anymore, just believe me.
(a) Any deposition may be used by any party for the purpose of contradicting or impeaching the
testimony of deponent as a witness;
EXAMPLE: I will take the deposition of Mr. Malaki as a possible witness. After listening to his testimony,
his testimony is in my favor. I tell the court during trial that my next witness is Mr. Malaki but since he is
busy and his deposition is taken beforehand, I will no longer present him but instead I will present as
evidence his deposition to take the place of his oral testimony in court.
Q: Is that allowed? Can a deposition substitute for his oral testimony?
A: NO, a deposition can only be used for the purpose of contradicting or impeaching the testimony of
deponent as a witness. It does not exempt the witness from testifying in court. It is only a means of
knowing what the witness will testify.
When you take the deposition of a witness, you are already assured that this will be his story. If I asked
you the same question in court, naturally he will have the same answer. So there are no more surprises.
If I am asking a question identical to my deposition, I expect the answer to be identical during the trial.
Q: Suppose the witness during the trial will reverse his testimony. His testimony in the deposition is
favorable to me but during the trial, pabor naman sa kalaban.
A: I can now use his deposition to destroy him. I will impeach him by showing that the witness is not
reliable. To IMPEACH the testimony of a witness is to destroy his credibility. I will offer in evidence the
deposition for impeachment purposes. This is known as PRIOR INCONSISTENT STATEMENT under the
rules on evidence. They cannot change story during the trial because I can impeach them.
Therefore, a deposition is not a substitute for the testimony of the witness in court. You still have to
present him in court. He has to testify all over again but at least you already have a guideline. So, if he
deviates from the deposition, you can impeach him using the deposition taken under oath earlier.
(b) The deposition of a party or of any one who at the time of taking the deposition was an officer,
director, or managing agent of a public or private corporation, partnership, or association which is a
party may be used by an adverse party for any purpose;
Q: What is the difference between paragraphs [a] and [b]?
A: The following:
1.) In paragraph [a], it is the deposition of a WITNESS and not a party, while in paragraph [b], it is the
deposition of the PARTY himself.
2.) In paragraph [a], the deposition of witness can be used only for contradicting or impeaching the
testimony of deponent as a witness, while in paragraph [b], the deposition of a party can be used for any
purpose. So it is broader than the first.
ILLUSTRATION: Suppose I will take the deposition of my opponent (adverse party) and I have already a
record of his testimony. During the trial if he testifies contrary to the deposition, I could use it to impeach
him. But suppose the deposition is in my favor, I could present the deposition as an admission in my
favor. I could use it as evidence against my opponent. Therefore, I can use it as evidence or I can use it as
a tool to impeach or contradict the other party.
In other words, the deposition of a mere WITNESS is for strict purpose (for impeachment only) and the
deposition of an ADVERSE PARTY is for any purposes because I can use it to impeach or I can use it as
evidence. And if a witness say something in my favor, I cannot use it as evidence. I have to ask the
witness to repeat his statement in court. But if it is a party, I can use it as evidence already under the rule
on admission of evidence that the act or declaration of a PARTY maybe used as evidence against him
(Rule 130, Section 26). So, that is the difference between deposition of a party and a witness.
Q: Suppose the adverse party is a corporation
A: Under paragraph [b], you can take the deposition of any of its officers, directors, or managing agent of
the corporation.
(c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the
court finds:
(1) that the witness is dead; or
(2) that the witness resides at a distance more than one hundred (100) kilometers from the
place of trial or hearing, or is out of the Philippines, unless it appears that his absence was
procured by the party offering the deposition; or
(3) that the witness is unable to attend or testify because of age, sickness, infirmity, or
imprisonm ent; or
(4) that the party offering the deposition has been unable to procure the attendance of the
witness by subpoena; or
(5) upon application and notice, that such exceptional circumstances exist as to make it
desirable, in the interest of justice and with due regard to the importance of presenting the
testimony of witnesses orally in open court, to allow the deposition to be used; and
Paragraph [c] is an exception to paragraph [a]. Paragraph [a] applies only to a deposition of a
witness for contradicting or impeaching his testimony. It is only in paragraph [b] which applies
the use of deposition for any purpose but it refers to the deposition of the adverse party.
Now, paragraph [c] allows the use of the deposition of a WITNESS for any purpose.
DEATH
Q: I will take the deposition of Juan who is my witness. During the trial, my next witness is Juan. Do I
have to present Juan or only his testimony in the deposition as evidence?
A: I have to present my witness Juan because under paragraph [a], the deposition is only good
for impeachment purposes but not a replacement for his oral testimony.
Q: Suppose, when Im about to present Juan during the trial, a day before that he died. So, I have no
more witness. Can I now present his testimony in the deposition as evidence?
A: YES. Under the law, his deposition will take the place of his oral testimony because he is dead.
However, if he is alive, apply paragraph [a] you cannot substitute his deposition to his oral testimony.
Now, it is true that when you take the deposition of your own witness, you are supplying the other party
a means to impeach the testimony of your witness. But if you look at paragraph [c], it is also important to
take the deposition of your witnesses. The purpose is just in case your witness will die before he can
testify in court. At least, kung nakuha mo na ang deposition niya earlier, masuwerte ka.
THE WITNESS RESIDES AT A DISTANCE MORE THAN ONE HUNDRED (100) KILOMETERS FROM THE PLACE
OF TRIAL OR HEARING, OR IS OUT OF THE PHILIPPINES
EXAMPLE: My witness is from Cebu. Under the rule on subpoena, I cannot compel him to come to Davao
and testify in a case because of the 100-kilometer rule. The remedy is to go to Cebu and take his
deposition there. When the case in Davao is called, I will tell the court that my next witness is from Cebu
and the distance from Davao is more than 100 kilometers. So I have no choice but to take his deposition
there. In this case, I can offer as evidence his deposition to take the place of his oral testimony. And that
is allowed as exception to paragraph [a].
And if your witness is leaving for abroad, you might as well take the deposition before it is too late, or
you might end up without any witness. That is the advantage of paragraph [c].
WITNESS NOT FOUND
So, if I am unable to procure the attendance of my witness by subpoena means that the witness can no
longer be found. His whereabouts is already unknown but I was able to take his deposition earlier.
(d) If only part of a deposition is offered in evidence by a party, the adverse party may require him to
introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.
ILLUSTRATION: Suppose I will take the deposition of Juan dela Cruz. The first part is in my favor but when
he was cross-examined by the other party, he clarified his answers and turned out that his original
answers were not really in my favor.
So there are two parts of the deposition: PART ONE, in the general questions, the answers seem to be in
my favor; PART TWO, when the questions are specific, it turned out that it was not in my favor. So if I am
the lawyer what I will offer is the part one as my evidence because it is in favor of my client. The other
party will present the other part.
In evidence, the party is not obliged to offer in evidence documents which are against his cause. It is now
the job of the other lawyer to offer the other part thereof (c.f. Section 17, Rule 132). So if this is so, the
picture created will only be half of the whole picture.
Q: Is this unethical as it is suppressing the truth?
A: No, I am not suppressing the truth. Lawyers are not allowed to lie. Nowhere in the Legal Ethics is it
being espoused that lawyers are told to lie. In fact, a lawyer must be honest and true for the
administration of justice. It is the lawyer of the other side who has the absolute right to complete the
picture by offering the other half. I am not under obligation to help the other side. A lawyer is no
obligation to present everything. He is only under the obligation to support the interest of my client.
What is unethical is when you present something against the interest of your client. Yaaann!
Q: Is it not twisting the truth?
A: NO. Twisting the truth is changing the facts. I am not changing the facts of the story. I am only
presenting one side of the story. But definitely the other party is not precluded from testifying to present
the other half of the story. If the other party fails to present the other half of the story, that is their
problem. Do not blame me. [hmp!]
Sec. 5. Effect of substitution of parties. Substitution of parties does not affect the right to use
depositions previously taken; and, when an action has been dismissed and another action involving
the same subject is afterward brought between the same parties or their representatives or successors
in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter
as if originally taken therefor. (5, R24)
Q: Plaintiff filed a case against defendant. Depositions were taken. Later, one of the parties died and
there was substitution. Is there a need of taking depositions again? Will the deposition already taken be
also applicable to the same case although the parties are now different?
A: YES. The substitution of parties does not affect the right to use depositions previously taken.
Q: Jolina files a case against Maya and depositions were taken. Later, the case is dismissed without
prejudice. Jolina re-filed the case. Is it necessary for depositions to be taken all over again?
A: NO NEED. The depositions taken in the dismissed case will still apply to the new case. There is no
need of repeating the whole process.
Sec. 6. Objections to admissibility. Subject to the provisions of section 29 of this Rule, objection may
be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason
which would require the exclusion of the evidence if the witness were then present and testifying. (6,
R24)
Q: Can you object to the evidence which is being offered during the deposition taking?
A: YES, however the deposition officer cannot rule but the objection is recorded. It is the judge who will
rule on the objection later during the trial.
Sec. 7. Effect of taking depositions. A party shall not be deemed to make a person his own witness for
any purpose by taking his deposition. (7, R24)
We know that deposition taking is a fishing expedition. If after taking a witness deposition, he knows
nothing, then he is useless as a witness to me. [Inutil! Weakest link! Walang silbi! Wala kang pinag-iba sa
appendix ng tao!] You are not my witness.
If after taking your deposition, it turns out that everything you say is against me, am I bound by your
testimony? NO. In fact, it is the other party who will use you as his witness. But definitely, you are not my
witness.
Sec. 8. Effect of using depositions. The introduction in evidence of the deposition or any part thereof
for any purpose other than that of contradicting or impeaching the deponent makes the deponent the
witness of the party introducing the deposition, but this shall not apply to the use by an adverse party
of a deposition as described in paragraph (b) of section 4 of this Rule. (8, R24)
GENERAL RULE: By simply taking your deposition, it will not make you as my witness. But once I offer
your deposition in court, you are now my witness, especially if your are dead or when you are residing
more than 100 kilometers.
EXCEPTIONS: Meaning, even when I offer it in court, still it does not make you as my witness.
1.) When I am offering your deposition to contradict or impeach you. So, when I am offering your
deposition to show the court that you are a liar, I am not making you as my witness;
2.) When you offer the deposition of your opponent (adverse party), you are not making him your
witness. That is obvious. Napaka-istupido mo naman! Take note that anything that your opponent says in
the deposition in favor of you will bind you. But if it is not in your favor, it will not bind you precisely
because he is not your witness he is not expected to say something in your favor.
Sec. 9. Rebutting deposition. At the trial or hearing, any party may rebut any relevant evidence
contained in a deposition whether introduced by him or by any other party. (9, R24)
It is just like a witness in court. If a witness says something in court, you can always prove that that is not
true. If it is a deposition, the same thing you can always rebut the truth of what he said in his
deposition.
BEFORE WHOM DEPOSITIONS ARE TAKEN
If the deposition is to be taken WITHIN THE PHILIPPINES, who are authorized to act as deposition officer?
Section 10:
Sec. 10. Persons before whom depositions may be taken within the Philippines. Within the Philippines,
depositions may be taken before any judge, notary public, or the person referred to in section 14
hereof. (10a, R24)
Q: If the deposition taking is in the Philippines, who are these persons before whom depositions are
taken? A: The following:
1.) ANY JUDGE. So, it is not necessary the judge acting on the case. In fact, you can request a judge in
Manila to be the deposition officer and he will not be the one to decide. He is only the deposition officer;
2.) NOTARY PUBLIC. A notary public is authorized by law to administer oath. Take note that not all
lawyers are notary public. To be a notary public, you have to apply for commission in the court of the
place where you are practicing. If you are a notary public for Davao City, you cannot be a notary public in
any other place. And usually, a commission for notary public is only good for 2 years. After 2 years, you
have to re-apply.
3.) PERSON REFERRED TO IN SECTION 14:
Sec. 14. Stipulations regarding taking of depositions. If the parties so stipulate in writing, depositions
may be taken before any person authorized to administer oaths, at any time or place, in accordance
with these Rules, and when so taken may be used like other depositions. (24a, R24)
So, the parties may stipulate in writing that the deposition officer may not be a judge or a notary public.
It can be other person who is authorized to administer oath such as prosecutors, clerk of court who is a
lawyer, labor arbiters, etc. Anyway, they are also authorized to administer oaths.
If the deposition is to be taken ABROAD, who are authorized to act as deposition officer? Section 11:
Sec. 11. Persons before whom depositions may be taken in foreign countries. In a foreign state or
country, depositions may be taken (a) on notice before a secretary of embassy or legation, consul
general, consul, vice-consul, or consular agent of the Republic of the Philippines; (b) before such
person or officer as may be appointed by commission or under letters rogatory; or (c) the person
referred to in section 14 hereof. (11a, R24)
The amendment here again is the persons referred to under Section 14.
So, a secretary of the Philippine embassy or consulate abroad is authorized to act as deposition officer,
as well as the consul general, vice-consul, although on a SC circular, if the judge will authorize the taking
of deposition abroad, because this time leave of court is required, you course it to the Department of
Foreign Affairs. The parties are not supposed to communicate directly to the Philippine Embassy.
Q: How about in places where we do not have embassy?
A: Those with country where we do not have diplomatic relations, you have to avail of [b]. So in this case,
the person who is authorize to take the deposition may be the one who is authorized by commission, or
if not by commission, by letters rogatory.
What do you mean by commission or a letters rogatory? Section 12:
Sec. 12. Commission or letters rogatory. A commission or letters rogatory shall be issued only when
necessary or convenient, on application and notice, and on such terms and with such direction as are
just and appropriate. Officers may be designated in notices or commissions either by name or
descriptive title and letters rogatory may be addressed to the appropriate judicial authority in the
foreign country. (12a, R24)
By COMMISSION, somebody other than Philippine consul like in Taiwan, we have Philippine Trade
Department in Taiwan because of our trade relations. The court will issue a commission to the head of
the trade mission there to act as deposition officer. Or any other person appointed by the judge by court
order.
So, suppose I would like to take the deposition of somebody who is staying in Afghanistan where we
have no consulate but I know of a Filipino lawyer who resides there. I will request the court that this
Filipino lawyer abroad be authorized to take the deposition of a person there. If the court agrees, it will
issue what is known as a commission.
But suppose none at all, the court will send letters rogatory addressed to the court of a foreign country.
Q: Define letters rogatory.
A: LETTERS ROGATORY is an instrument whereby the foreign court is informed of the pendency of the
case and the name of the foreign witnesses, and is requested to cause their depositions to be taken in
due course of law, for the furtherance of justice, with an offer on the party of the court making the
request, to do the like for the other, in a similar case. (Ballentines Law Dict., 2nd Ed., p. 744)
EXAMPLE: The case is in Davao. W lives in North Korea. P should file a motion in court for the court to
issue a letters rogatory. The judge will make a formal communication to the court in Pyongyang to please
take Ws deposition with the following request: to mail back the answer and offer to return the favor. If
the request is ignored, there is nothing that we can do. But normally, they comply.
So, letters rogatory is a request to the appropriate foreign judicial authority to take the deposition of a
witness who is in their jurisdiction and please send us a copy and we assure you in the future, if you have
the same problem, we will reciprocate.
That is international law. Deposition can be understand by the officer in other country because it is
internationally known. If the officer in the foreign country will not do it, we have no choice because it is
only a request. (kung ayaw mo, huwag mo!)
The SC defined again commission and letters rogatory and distinguished one from the other in the case
of
DASMARIAS GARMENTS, INC. vs. REYES 225 SCRA 622 [1993]
ISSUE #1: Distinguish a commission from letters rogatory.
HELD: A COMMISSION may be defined as an instrument issued by a court of justice, or other competent
tribunal, to authorize a person to take depositions, or do any other act by authority of such
court or tribunal.
LETTERS ROGATORY, on the other hand, may be defined as an instrument sent in the name and by the
authority of a judge or court to another, requesting the latter to cause to be examined, upon
interrogatories filed in a cause pending before the former, a witness who is within the jurisdiction of the
judge or court to whom such letters are addressed.
A COMMISSION is addressed to officers designated either by name or descriptive title, while LETTERS
ROGATORY are addressed to some appropriate judicial authority in the foreign state.
Noteworthy in this connection is the indication in the Rules that letters rogatory may be applied
for and issued only after a commission has been returned unexecuted as is apparent from Form 21 of
the Judicial Standard Forms appended to the (1964) Rules of Court. So as a matter of practice,
the court should first resort to commission. You must allege that the commission has been returned
unexecuted before resorting to letters rogatory.
ISSUE #2: Petitioner however prevent the carrying out of the commission on the ground that the
deposition-taking will take place in a foreign jurisdiction not recognized by the Philippines in view of its
one-China policy. Can a deposition be taken in Taiwan where the Philippines has no diplomatic relations
because of the one-Chine policy?
HELD: YES. What matters is that the deposition is taken before a Philippine official acting by authority of
the Philippine Department of Foreign Affairs and in virtue of a commission duly issued
by the Philippine Court.
Sec. 13. Disqualification by interest. No deposition shall be taken before a person who is a relative
within the sixth degree of consanguinity or affinity, or employee or counsel of any of the parties; or
who is a relative within the same degree, or employee of such counsel; or who is financially interested
in the action. (13a, R24)
You are disqualified to act as deposition officer if you are related to any of the parties or the lawyer. You
get somebody who is not related.
Sec. 15. Deposition upon oral examination; notice; time and place. A party desiring to take the
deposition of any person upon oral examination shall give reasonable notice in writing to every other
party to the action. The notice shall state the time and place for taking the deposition and the name
and address of each person to be examined, if known, and if the name is not known, a general
description sufficient to identify him or the particular class or group to which he belongs. On motion of
any party upon whom the notice is served, the court may for cause shown enlarge or shorten the time.
(15, R24)
There are 2 types of deposition taking: (1) deposition upon oral examination and (2) deposition upon
written interrogatories. The latter is governed by Section 15 which is the most popular: Question-answer
and everything is recorded.
Take note that before deposition is take, there should be notice to the adverse party. The notice shall
state the time and place for taking the deposition and the name and address of each person to be
examined.
The last sentence, On motion of any party upon whom the noticed is served, the court may for cause
shown enlarge or shorten the time. Suppose you will send me a notice that you are going to take the
deposition of a witness from February 1 to 20 morning and afternoon. Twenty days is too much. I can go
to court and complain. That should be reduced. The court may come in and enlarge or shorten the time.
The court may also do this even if leave of court is not required.
Sec. 16. Orders for the protection of parties and deponents. After notice is served for taking a
deposition by oral examination, upon motion seasonably made by any party or by the person to be
examined and for good cause shown, the court in which the action is pending may make an order that
the deposition shall not be taken, or that it may be taken only at some designated place other than
that stated in the notice, or that it may be taken only on written interrogatories, or that certain
matters shall not be inquired into, or that the scope of the examination shall be held with no one
present except the parties to the action and their officers or counsel, or that after being sealed the
deposition shall be opened only by order of the court, or that secret processes, developments, or
research need not be disclosed, or that the parties shall simultaneously file specified documents or
information enclosed in sealed envelopes to be opened as directed by the court; or the court may
make any other order which justice requires to protect the party or witness from annoyance,
embarrassment, or oppression. (16a, R24)
While it is true that leave of court is not necessary anymore, you have to remember that it is related to a
pending case and the court has control over the case. That is why, while leave of court is not necessary,
any party who is aggrieved can go to court and complain. Deposition is purely your concern provided
nobody would come here and complain. That is one of the limitations of deposition taking.
Q: What orders may court issue for the protection of parties and deponents; when may orders be issued;
what court has power to issue the orders?
A: After notice is served for taking a deposition by oral examination, upon motion seasonably made by
any party or by the person to be examined and for good cause shown, the court in which the action is
pending may issue the following orders:
1.) That the deposition shall not be taken;
2.) That it may be taken only at some designated place other than that stated in the notice;
3.) That it may be taken only on written interrogatories;
4.) That certain matters shall not be inquired into;
5.) That the scope of the examination shall be held with no one present except the parties to the action
and their officers or counsel;
6.) That after being sealed the deposition shall be opened only by order of the court;
7.) That secret processes, developments, or research need not be disclosed;
8.) That the parties shall simultaneously file specified documents or information enclosed in sealed
envelopes to be opened as directed by the court;
9.) The court may make any other order which justice requires to protect the party or witness from
annoyance, embarrassment, or oppression. (Section 16)
Sec. 18. Motion to terminate or limit examination. At any time during the taking of the deposition, on
motion or petition of any party or of the deponent and upon a showing that the examination is being
conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the
deponent or party, the court in which the action is pending or the Regional Trial Court of the place
where the deposition is being taken may order the officer conducting the examination to cease
forthwith from taking the deposition, or may limit the scope and manner of the taking of the
deposition, as provided in section 16 of this Rule. If the order made terminates the examination, it
shall be resumed thereafter only upon the order of the court in which the action is pending. Upon
demand of the objecting party or deponent, the taking of the deposition shall be suspended for the
time necessary to make a notice for an order. In granting or refusing such order, the court may impose
upon either party or upon the witness the requirement to pay such costs or expenses as the court may
deem reasonable. (18a, R24)
Section 16 and 18 are similar. They both talk about the power of the court to control the deposition
taking. Section 16 is about protective orders BEFORE deposition taking. Section 18 talks about protective
orders DURING the deposition taking where the court may stop or limit the deposition taking.
Sec. 17. Record of examination; oath; objections. The officer before whom the deposition is to be
taken shall put the witness on oath and shall personally, or by some one acting under his direction and
in his presence, record the testimony of the witness. The testimony shall be taken stenographically
unless the parties agree otherwise. All objections made at the time of the examination to the
qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence
presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted
by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In
lieu of participating in the oral examination, parties served with notice of taking a deposition may
transmit written interrogatories to the officers, who shall propound them to the witness and record
the answers verbatim. (17, R24)
Q: How is deposition in oral examination taken?
A: It must be under oath. The testimony will be taken by the stenographer. And objections must be
recorded. Evidence objected to shall be taken subject to the objections.
Q: Can the deposition officer make a ruling on the objection/s?
A: NO. He cannot. But the objection will be noted and the deponent must answer. Later on, if that
deposition is offered as evidence in court, the court will now rule on the objection. If the objection is
overruled, the answer
as recorded remains. If the objection is sustained, the answer as recorded is erased as if it was never
answered.
That is the meaning of evidence objected to shall be taken subject to the objections.
So, the deposition officer cannot make a ruling on the objection. It is only the judge of the court where
the case is pending who will make the ruling on it.
Take note that answers to depositions not objected to cannot be objected to in court during the trial,
UNLESS the objection is based on a new ground which only come up after the deposition.
Sec. 19. Submission to witness; changes; signing. When the testimony is fully transcribed, the
deposition shall be submitted to the witness for examination and shall be read to or by him, unless
such examination and reading are waived by the witness and by the parties. Any changes in form or
substance which the witness desires to make shall be entered upon the deposition by the officer with
a statement of the reasons given by the witness for making them. The deposition shall then be signed
by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be
found or refuses to sign. If the deposition is not signed by the witness, the officer shall sign it and state
on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal
to sign together with the reason given therefor, if any, and the deposition may then be used as fully as
though signed, unless on a motion to suppress under section 29 (f) of this Rule, the court holds that
the reasons given for the refusal to sign require rejection of the deposition in whole or in part. (19a,
R24)
So after the deposition of the deponent is taken, the deposition officer shall submit the deposition to the
deponent for examination. He may change his answers but he must state the reason for the change. And
he signs it, unless the parties by stipulation waive the signing, or the witness is ill, or cannot be found or
refuses to sign. In the latter cases, the deposition will be signed by the deposition officer.
Sec. 20. Certification and filing by officer. The officer shall certify on the deposition that the witness
was duly sworn to by him and that the deposition is a true record of the testimony given by the
witness. He shall then securely seal the deposition in an envelope indorsed with the title of the action
and marked "Deposition of (here insert the name of witness)" and shall promptly file it with the court
in which the action is pending or send it by registered mail to the clerk thereof for filing. (20, R24)
Sec. 21. Notice of filing. The officer taking the deposition shall give prompt notice of its filing to all the
parties. (21, R24)
Sec. 22. Furnishing copies. Upon payment of reasonable charges therefor, the officer shall furnish a
copy of the deposition to any party or to the deponent. (22, R24)
Any party can ask for a copy of the deposition upon payment of reasonable charges therefor.
Sec. 23. Failure to attend of party giving notice. If the party giving the notice of the taking of a
deposition fails to attend and proceed therewith and another attends in person or by counsel pursuant
to the notice, the court may order the party giving the notice to pay such other party the amount of
the reasonable expenses incurred by him and his counsel in so attending, including reasonable
attorneys fees. (23a, R24)
Suppose the opposing counsel is from Manila was notified of the schedule of the taking of a deposition
of a witness in Davao. And he came over. But the deposition did not proceed because the party sending
the notice did not show up. So he caused the other party a lot of inconvenience. The Manila lawyer can
file a motion in court to ask for reimbursement of all his expenses in this case.
Sec. 24. Failure of party giving notice to serve subpoena. If the party giving the notice of the taking of a
deposition of a witness fails to serve a subpoena upon him and the witness because of such failure
does not attend, and if another party attends in person or by counsel because he expects the
deposition of that witness to be taken, the court may order the party giving the notice to pay to such
other party the amount of the reasonable expenses incurred by him and his counsel in so
attending, including reasonable attorneys fees. (24a, R24)
Suppose the opposing counsel is from Manila was notified of the schedule of the taking of a deposition
of a witness in Davao. And he came over. The party sending the notice is also present. But this time it is
the witness who is absent because the party sending the notice forgot to have the witness subpoenaed.
Again, the Manila lawyer can file a motion in court to ask for reimbursement of all his expenses.
Sec. 25. Deposition upon written interrogatories; service of notice and of interrogatories. A party
desiring to take the deposition of any person upon written interrogatories shall serve them upon every
other party with a notice stating the name and address of the person who is to answer them and the
name or descriptive title and address of the officer before whom the deposition is to be taken. Within
ten (10) days thereafter, a party so served may serve cross-interrogatories upon the party proposing to
take the deposition. Within five (5) days thereafter, the latter may serve re-direct interrogatories upon
a party who has served cross- interrogatories. Within three (3) days after being served with re-direct
interrogatories, a party may serve recross- interrogatories upon the party proposing to take the
deposition. (25, R24)
The difference between a deposition upon oral examination and written interrogatories is that in oral
examination, the questions and the answers are oral.
In deposition upon written interrogatories, the questions are prepared already in advance and that is
direct interrogatories. And then they furnish you a copy and after receiving it, you may also, within 10
days, prepare your questions or cross-interrogatories and you also furnish them copies of it. And based
on that, they can ask further questions. If they are now sufficient, the deposition officer shall compound
the question one by one but every question requires an answer.
Practically, there is no personal confrontation of the witness. If your witness is abroad, it is very
expensive for you to go there and conduct an oral examination. So, the practical means is only deposition
upon written interrogatories.
Sec. 26. Officers to take responses and prepare record. A copy of the notice and copies of all
interrogatories served shall be delivered by the party taking the deposition to the officer designated in
the notice, who shall proceed promptly, in the manner provided by sections 17, 19 and 20 of this Rule,
to take the testimony of the witness in response to the interrogatories and to prepare, certify, and file
or mail the deposition, attaching thereto the copy of the notice and the interrogatories received by
him. (26, R24)
Sec. 27. Notice of filing and furnishing copies. When a deposition upon interrogatories is filed, the
officer taking it shall promptly give notice thereof to all the parties, and may furnish copies to them or
to the deponent upon payment of reasonable charges therefor. (27, R24)
Sec. 28. Orders for the protection of parties and deponents. After the service of the interrogatories
and prior to the taking of the testimony of the deponent, the court in which the action is pending, on
motion promptly made by a party or a deponent, and for good cause shown, may make any order
specified in sections 15, 16 and 18 of this Rule which is appropriate and just or an order that the
deposition shall not be taken before the officer designated in the notice or that it shall not be taken
except upon oral examination. (28, R24)
So the protections provided under Sections 15, 16 and 18 are also applicable in oral examinations. Are
the mistakes in deposition taking fatal?
Sec. 29. Effects of errors and irregularities in depositions.
(a) As to notice.- All errors and irregularities in the notice for taking a deposition are
waived unless written objection is promptly served upon the party giving the
notice.
(b) As to disqualification of officer.- Objection to taking a deposition because of
disqualification of the officer before whom it is to be taken is waived unless
made before the taking of the deposition begins or as soon thereafter as the
disqualification becomes known or could be discovered with reasonable
diligence.
(c) As to competency or relevancy of evidence.- Objections to the competency of a
witness or the competency, relevancy, or materiality of testimony are not
waived by failure to make them before or during the taking of the deposition,
unless the ground of the objection is one which might have been obviated or
removed if presented at that time.
(d) As to oral examination and other particulars.- Errors and irregularities occurring
at the oral examination in the manner of taking the deposition, in the form of
the questions or answers, in the oath or affirmation, or in the conduct of the
parties and errors of any kind which might be obviated, removed, or cured if
promptly prosecuted, are waived unless reasonable objection thereto is made at
the taking of the deposition.
(e) As to form of written interrogatories.- Objections to the form of written
interrogatories submitted under sections 25 and 26 of this Rule are waived
unless served in writing upon the party propounding them within the time
allowed for serving succeeding cross or other interrogatories and within three (3)
days after service of the last interrogatories authorized.
(f) As to manner of preparation.- Errors and irregularities in the manner in which
the testimony is transcribed or the deposition is prepared, signed, certified,
sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under
sections 17, 19, 20 and 26 of this Rule are waived unless a motion to suppress
the deposition or some part thereof is made with reasonable promptness after
such defect is, or with due diligence might have been, ascertained. (29a, R24)
So, if you will notice, majority of all the errors are waived if objection thereto is not promptly made.
Rule 24
DEPOSITIONS BEFORE ACTION
OR PENDING APPEAL
TWO TYPES OF DEPOSITION TAKING:
1.) Deposition Pending Action (Rule 23) and
2.) Deposition Before Action or Pending Appeal (Rule 24)
In Rule 23, you take a testimony or deposition of people in relation to a pending case. There is already a
pending case in court, so everything is based on a pending action.
The next rule (Rule 24) is deposition before a case is filed. That is why it is called Depositions Before
Action. Actually, the concept of depositions before action is not really new. This is also found in the Rules
prior to 1997 but was found in another rule. It was called Perpetuation of Testimony (Rule 134 of the old
Rules of Court). What the new rules did was simply to transfer Rule 134 to Rule 24.
But how can I apply deposition taking, wala mang kaso? That is why it was known as Perpetuation of
Testimony under Rule 134.
EXAMPLE: Suppose there is a case which I would like to file against B. But for the moment I cannot file it
yet. I intend to file a case against him. So there is an expected case between us in the future only there
are certain things that I still have to do. But if I file a case against B, I have some witnesses who are all
ready like A and C. But the trouble is, I learned lately that A will die soon. He has cancer and C will have
to leave for abroad, never to come back. Definitely, if I will file the case, there are no more witnesses
available.
Q: Is there a way of taking testimony or deposition in advance even before wala pang kaso?
A: YES, by applying Rule 24. I will file a petition before the court known as Petition to Perpetuate the
Testimony of A and C. Well, even if there is as yet no case, I will just file a petition under Rule 24. If I can
prove really that the testimony would be relevant or important the court will issue an order allowing me
to take deposition in advance.
Section 1. Depositions before action; petition. A person who desires to perpetuate his own testimony
or that of another person regarding any matter that may be cognizable in any court of the Philippines,
may file a verified petition in the court of the place of the residence of any expected adverse party.
(1a, R134)
Q: Where will you file it?
A: In the court of the place of the residence of any expected adverse party because there is still no case.
So you have to file an independent petition under Rule 24
Sec. 2. Contents of petition. The petition shall be entitled in the name of the petitioner and shall show:
(a) that the petitioner expects to be a party to an action in a court of the Philippines but is presently
unable to bring it or cause it to be brought; (b) the subject matter of the expected action and his
interest therein; (c) the facts which he desires to establish by the proposed testimony and his reasons
for desiring to perpetuate it; (d) the names or a description of the persons he expects will be adverse
parties and their addresses so far as known; and (e) the names and addresses of the persons to be
examined and the substance of the testimony which he expects to elicit from each, and shall ask for an
order authorizing the petitioner to take the depositions of the persons to be examined named in the
petition for the purpose of perpetuating their testimony. (2, R134)
Sec. 3. Notice and service. The petitioner shall serve a notice upon each person named in the petition
as an expected adverse party, together with a copy of the petition, stating that the petitioner will
apply to the court, at a time and place named therein, for the order described in the petition. At least
twenty (20) days before the date of the hearing, the court shall cause notice thereof to be served on
the parties and prospective deponents in the manner provided for service of summons. (3a, R134)
Sec. 4. Order and examination. If the court is satisfied that the perpetuation of the testimony may
prevent a failure or delay of justice, it shall make an order designating or describing the persons whose
deposition may be taken and specifying the subject matter of the examination and whether the
depositions shall be taken upon oral examination or written interrogatories. The depositions may then
be taken in accordance with Rule 23 before the hearing. (4a, R134)
If the petition is granted, the court will now allow the deposition of these people to be taken and they
are taken simply by following Rule 23.
Sec. 5. Reference to court. For the purpose of applying Rule 23 to depositions for perpetuating
testimony, each reference therein to the court in which the action is pending shall be deemed to refer
to the court in which the petition for such deposition was filed. (5a, R134)
Rule 23 says, the court in which the action is pending. But there is still no pending action here. So it
automatically refers to the court in which the petition for the perpetuation was filed.
Sec. 6. Use of deposition. If a deposition to perpetuate testimony is taken under this Rule, or if,
although not so taken, it would be admissible in evidence, it may be used in any action involving the
same subject matter subsequently brought in accordance with the provisions of sections 4 and 5 of
Rule 23. (6a, R134)
Q: How do you use the perpetuation of testimony?
A: The same uses of an ordinary deposition for impeachment, for any other purpose like the witness is
already dead the same under Rule 23. So the rule under Rule 23 is also applicable to Rule 24.
Sec. 7. Depositions pending appeal. If an appeal has been taken from a judgment of a court, including
the Court of Appeals in proper cases, or before the taking of an appeal if the time therefor has not
expired, the court in which the judgment was rendered may allow the taking of depositions of
witnesses to perpetuate their testimony for use in the event of further proceedings in the said court.
In such case the party who desires to perpetuate the testimony may make a motion in the said court
for leave to take the depositions, upon the same notice and service thereof as if the action was
pending therein. The motion shall state (a) the names and addresses of the persons to be examined
and the substance of the testimony which he expects to elicit from each; and (b) the reason for
perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to
avoid a failure or delay of justice, it may make an order allowing the depositions to be taken, and
thereupon the depositions may be taken and used in the same manner and under the same conditions
as are prescribed in these Rules for depositions taken in pending actions. (7a, R134)
Q: What is deposition PENDING APPEAL?
A: Obviously, there is a case already on appeal. So how do you apply Rule 24 under this kind of
situation?
EXAMPLE: There is a case between K and B. K lost. After he received a copy of the decision, he
discovered a material witness whom he failed to present. So this is a newly discovered evidence (NDE).
Had K known of his existence, he would have won the case. So, K will file a motion for new trial based on
NDE. If his motion is granted, there will be new trial.
But, if his motion is denied, K will appeal. While waiting for the decision of the court, the witness tells
him that he will be leaving for Afghanistan and will come back no more. So, K will use Section 7. He will
file a motion asking to take the deposition of a witness pending appeal in the event that his motion for
new trial is granted, because the witness has to go and cannot wait for the new trial.
So in the event that if I win the appeal, the case will go back. I can present the testimony because by that
time he may already be dead. In effect, para na ring deposition before appeal. So it is also perpetuating
the testimony of a possible witness, in the event the appeal is decided in your favor. Thats why it is
called deposition pending appeal. [oo nga ano?]
Rule 25
INTERROGATORIES TO PARTIES
Q: Going back to Rule 23, what are the modes of deposition taking? A: The following:
(1) Deposition upon oral examination; and
(2) Deposition upon written interrogatories.
Rule 25 should not be confused with Rule 23, Section 25 yung tinatawag na Deposition Upon Written
Interrogatories.
In written interrogatories under Rule 23, questions are already prepared beforehand and they are going
to be submitted to a deposition officer who will propound the questions to the deponent and record the
answers under oath. EXAMPLE is, if you want to take the deposition of somebody abroad through a
deposition officer abroad. Of course, it would be very expensive to go there and conduct an oral
examination. So, the best thing is to resort to deposition upon written interrogatories under Rule 23.
That is not the same as interrogatories to parties under this rule. We are going to distinguish one from
the other later. Interrogatories mean written questions.
EXAMPLE: I file a case against Frudo. Frudo filed an answer and of course, he has his affirmative defenses
which are statements of ultimate facts. alang details, no evidentiary facts. But I am interested to find out
what are these evidentiary facts I will write a letter addressed to Frudo under Rule 25 and direct him to
answer the following interrogatories:
According to your answer, you already paid, please answer the following questions:
Q1: When did you pay? Q2: Place?
Q3: Who was present when you paid?
Or
Q1: Mr. Frudo, you have been in continuous possession of this piece of land for 30 years, would you
kindly narrate the improvements that you introduced in the property?
Q2: What year did you introduce them?
Q3: Who are your witnesses? etc
Now, under Rule 25, you are obliged to answer me also in writing. Then you sign your answer and you
swear to the truth of it. So I will ask you directing a question How will you prove this? Who are your
witnesses? I will compel you to reveal the evidentiary facts. And that process is called written
interrogatories to parties. Di para na ring deposition?
I can also ask the same questions through deposition taking under Rule 23. Why do I have to resort to
Rule 25? The trouble is under Rule 23, kukuha pa ako ng deposition officer and I will have to course
everything to him. In Rule 25, walang deposition officer. Diretsahan na ito. I will ask you a question and
you will answer me. So, less expensive.
But take note, under Rule 25, you can only ask questions to your opponent. You cannot ask questions to
a stranger. Unlike in Rule 23, you can take the deposition of any person whether a party or not. In Rule
25, the questioning is direct. Plaintiff questions the defendant, defendant questions the plaintiff. So,
these are the differences between deposition upon written interrogatories and interrogatories to
parties.
Q: Distinguish INTERROGATORIES TO PARTIES (Rule 25) from DEPOSITION UPON WRITTEN
INTERROGATORIES (Rule 23).
A: The following are the distinctions:
1.) Under Rule 23 on Depositions upon written interrogatories, the deposition is taken before a
deposition officer; whereas
Under Rule 25 on Interrogatories to Parties, there is no deposition officer;
2.) Under Rule 23 on Depositions upon written interrogatories, questions are prepared beforehand. They
are submitted to the deposition officer who will ask the deponent the questions and he will record the
answers.; whereas
Under Rule 25 on Interrogatories to Parties, the questioning is direct. Plaintiff questions defendant,
defendant questions the plaintiff. There is no third person who will intervene; and
3.) Under Rule 23 on Depositions upon written interrogatories, the deposition of any person may be
taken, whether he is a party or not, may be taken; whereas
Rule 25 on Interrogatories to Parties applies to parties only. You can send interrogatories only to parties.
You cannot ask question to a stranger.
SEC. 1. Interrogatories to parties; service, thereof Under the same conditions specified in section 1 of
Rule 23, any party desiring to elicit material and relevant facts from any adverse parties shall file and
serve upon the latter written interrogatories have been served shall file and serve a copy of the
answers on the party submitting the interrogatories within fifteen (15) days after service thereof
unless the court, on motion and for good cause shown, extends or shortens the time. (1a)
Q: Is leave of court necessary to apply Rule 25? Do I have to apply for a court permission before I can
send interrogatories to parties?
A: IT DEPENDS. The Rule says under the same conditions specified in Section 1 of Rule 23. So the
manner of resorting to interrogatories are done under the same conditions for taking of depositions.
So if an answer has already been served, leave of court is not necessary. If no answer has been served,
although the court has already acquired jurisdiction over the defendant, leave of court is necessary. That
is the same under the rule on deposition.
SEC. 2. Answer to Interrogatories - The interrogatories shall be answered fully in writing and shall be
signed and sworn to by the person making them. The party upon whom the interrogatories have been
served shall file and serve a copy of the answers on the party submitting the interrogatories within
fifteen (15) days after service thereof, unless the courts, on motion and for good cause shown, extends
or shortens the time. (2a)
As I have mentioned, you are mandated by law to answer fully in writing my questions and signed and
sworn by you. As a general rule, you are given 15 days to answer my interrogatories.
SEC. 3. Objections to Interrogatories Objections to any interrogatories may be presented to the court
within ten (10) days after service thereof, with notice as in case of a motion; and answers shall be
deferred until the objections are resolved, which shall be at as early a time as is practicable. (3a)
Q: Suppose you do not want to answer my questions because you believe my questions are improper,
you want to object to my questions, what is your remedy?
A: You go to the court where the case is pending and object. Let the court decide whether you will have
to answer or not.
SEC. 4. Number of Interrogatories - No party may, without leave of court, serve more than one set of
interrogatories to be answered by the same party. (4)
It means, I send to you interrogatories and I thought tapos na. Then I remembered kulang pa pala iyon,
so another set ahh hindi na pwede! Dapat once lang unless the court allows me to send to you another
set.
So, as a general rule, when you send questions to your opponent, you better compile. Lahat ng gusto
mong itanong, itanong mo na because no party is given, as a rule, the privilege of securing more than
one set of interrogatories.
SEC. 5. Scope and Use of Interrogatories - Interrogatories may relate to any matters that can be
inquired into under section 2 of Rule 23, and the answers may be used for the same purposes provided
in section 4 of the same Rule (5a)
Q: What kind of questions can you ask under Rule 25 to your opponent? A: The same questions that you
can ask in Rule 23 section 2:
1.) anything that is related to the claim or defense provided it is relevant; and
2.) it is not privileged.
Q: Suppose there are already answers to the interrogatories given by your opponent, how do you use
those answers?
A: They have the same uses under Rule 23 Section 4 you can use it for impeachment, or any other
purpose like to prove an admission already made by the adverse party.
SEC. 6. Effect of Failure to serve written interrogatories Unless thereafter allowed by the court for
good cause shown and to prevent a failure of justice, a party not served with written interrogatories
may not be compelled by the adverse party to give the testimony in open court, or to give a deposition
pending appeal (n)
This is entirely a new question. It has no counterpart in the old rules. Now, this is a very controversial
section. Actually, you will not understand this until you study Evidence where you can compel the
adverse party to testify. This is actually related to Rule 132, Sec. 10 (e) of the Rules of Evidence.
[The following discussions are taken from the Remedial Law Review Transcription 1997-98]
This is related to the rule on Evidence particularly Rule 132, Section 10 [e]:
Rule 132, Sec. 10. Leading and misleading questions. A question which suggests to the witness the
answer which the examining party desires is a leading question. It is not allowed except:
xxxxxxxxxxxx
(e) of a witness who is an adverse party or an officer, director, or managing agent of a public or private
corporation or of a partnership or association which is an adverse party.
xxxxxx
Rule 132, Section 10 [e] is the provision in the Rules which authorizes a party to call the adverse party to
the witness stand. A party may call the adverse party to the witness stand and interrogate him by leading
questions as an element of surprise. I can call my opponent to the witness stand and he cannot refuse.
I can conduct direct examination on the adverse party and I am entitled under the Rules to ask leading
questions as if he in under cross-examination because he is the adverse party. He is not actually my
witness. The purpose here is to actually secure admissions from him while he is in the witness stand
because anything that he says against me does not bind me even if I were the one who called him to the
witness stand. But anything he might say that is against himself binds him.
Under Section 6, if I intend during the trial to call him to the witness stand, I am obliged to send him
ahead written interrogatories. I have to follow Rule 25. Now, if I do not send written interrogatories to
him, then I have no right to call him to the witness stand. That is why Section 6 is a very radical provision.
So, if I am the lawyer of a party, then binigla mo ako dahil there is really that element of surprise as it has
happened several times before. The lawyer is caught by surprise when the opposing party says that it
would present the adverse party to the witness stand. The lawyer is then caught off-guard as he has not
talked to his client yet.
Ngayon, may panlaban ka na. Pag-binigla ka, you can counter it by arguing that written interrogatories
were not sent under Rule 25. Hence, you can object to the opposing counsels motion to call your client
to the witness stand.
This practically compels the lawyers to avail of the modes of discovery because if you will not compel
him, chances are Filipino lawyers do not make much use of the modes of discovery. So now, if the
opposing counsel suddenly sends interrogatories to you, the he must be planning to call you in the
witness stand later.
Rule 26
ADMISSION BY ADVERSE PARTY
Rule 26 is also known as REQUEST FOR ADMISSION. Admission by adverse party or request for admission
is similar to interrogatories. You send questions to your opponent and hes bound to answer in writing
within 15 days under oath but the framing of the questions are different.
In a request for admission, you are requiring the opposing party to admit the truth or authenticity of
certain documents. For example: Do you admit the genuineness of the documents marked as Annex A?
We are talking here of DOCUMENTS which are NOT ACTIONABLE because if the document is actionable
then it has to be pleaded properly.
In other words, if I have 20 documents, to find out whether you will admit them or not, I will send you a
copy and ask, Do you admit the genuineness of this? Do you admit the truth? [secreeet!]
So, the main difference between Rule 26 and Rule 25 is in the framing of the question. If the question is
framed in such a way that the premise is laid down and I ask you whether or not you admit, then the
question is proper under Rule 26. BUT if the question if framed in such a way that it is not answerable by
yes or no, then apply Rule 25.
Example: Suppose my question is like this who was with you? That is proper under Rule 25. Pero sabi
ko, A and B were with you, admitted? That is Rule 26. Kaya nga the way the questions were framed
determines what kind of mode of discover are you going to apply.
Section 1. Request for admission. At any time after issues have been joined, a party may file and serve
upon any other party a written request for the admission by the latter of the genuineness of any
material and relevant document described in and exhibited with the request or of the truth of any
material and relevant matter of fact set forth in the request. Copies of the documents shall be
delivered with the request unless copies have already been furnished. (1a)
Q: So, what will you request the other party to admit?
A: The genuineness of any material and relevant document described in and exhibited with the request
or of the truth in the request.
Q: When do you apply this mode of discovery?
A: At anytime after issues have been joined. Meaning, there is already an answer.
Q: Is LEAVE OF COURT required under Rule 26?
A: It is totally UNNECESSARY but a request for admission under Rule 26 can only be started according to
Section 1, At any time after issues have been joined. So it presupposes that there is already an answer.
Unlike in interrogatories, you can do it even before an answer is served provided there is leave of court.
This is the second difference between Rule 25 and Rule 26.
Sec. 2. Implied admission. Each of the matters of which an admission is requested shall be deemed
admitted unless, within a period designated in the request, which shall not be less than fifteen (15)
days after service thereof, or within such further time as the court may allow on motion, the party to
whom the request is directed files and serves upon the party requesting the admission a sworn
statement either denying specifically the matters of which an admission is requested or setting forth in
detail the reasons why he cannot truthfully either admit or deny those matters.
Objections to any request for admission shall be submitted to the court by the party requested within
the period for and prior to the filing of his sworn statement as contemplated in the preceding
paragraph and his compliance therewith shall be deferred until such objections are resolved, which
resolution shall be made as early as practicable.(2a)
Q: So, if I send to you a request for admission, what is your duty?
A: Within 15 days, you must answer my request under oath, whether admitting or denying my request.
Take note, under oath also, parang interrogatories.
Q: Suppose you ignore my request within 15 days. You did not do anything. You did not bother to file any
answer to my request for admission. What is the effect of failure to answer the request?
A: You are deemed to have admitted. There is an implied admission of all the things that I asked
you to admit. Section 2 says, each of the matters of which an admission is requested shall be deemed
unless you file your answer to the request. Meaning, if you will not answer my request, under the law, all
the matters which I request you to admit are deemed impliedly admitted. That is the penalty for not
bothering to file your reply under Rule 26.
BAR QUESTION : A sends a request for admission to B and B made an admission. However, during the
trial, A did not offer in evidence the answers to the request. Can the court take judicial notice of the
answers?
A: Based on THE OLD RULES, it would seem NO because a request for admission is purely an extrajudicial
matter between the parties. But if the same question is asked,
NOW, the answer would be YES, because under the NEW RULES, you are already required to file and
serve. Therefore the court may now take judicial notice because it already forms part of the record.
BAR QUESTION: Suppose, I will file a case against you and I will attach to my complaint a Promissory
Note actionable document. In your answer, you deny the genuineness and due execution of the
Promissory Note. Meaning, as a defense you allege that your signature is forged. There was a proper
denial because it was under oath.
After a week, I will now send to you a request for admission under rule 26, where I attach the same
promissory note, and I will ask you, Do you admit the genuineness and due execution of this promissory
note? Now, when you receive the request, you ignore it because you already denied the promissory
note under oath in your answer. So you argue, Why do I have to deny it again under Rule 26 when I
already denied it under Rule 8? There is no need for me to deny it all over again. I can also argue, Even
if you denied it under Rule 8, under Rule 26 you are obliged to deny it all over again. Otherwise, you are
deemed to have admitted the genuineness and due execution of the document. Who is right between
the two of us?
ANSWER: There was an old decided case where the SC seemed to imply that even if the matter is already
denied in your pleading, if it is reiterated under Rule 26 (request for admission) it has to be denied all
over again otherwise youre impliedly admitting it. To my mind, that is already answered in the 1988
case of:
PO vs. COURT OF APPEALS 164 SCRA 668
FACTS: There was an allegation made by the plaintiff in his complaint which allegation was specifically
denied in the answer. Plaintiff asked the same question in a request for admission. Inulit niya ang tanong
and this time the defendant did not answer the request for admission.
Now, under Section 2, if the party as requested to make an admission does not make so within 15 days,
the matter requested is deemed admitted - impliedly admitted - that is the penalty.
If you do not want to respond to my request, everything that I requested will be impliedly admitted.
Now, you already denied the allegation in my complaint specifically in your answer, I repeated it in a
request for admission and this time, you failed to respond.
Now, under Rule 26, the plaintiff can claim, Well, since you did not respond, then it is already deemed
admitted. Suppose the other party would say, No, I already denied that in my answer. There is no
obligation for me to the deny the same all over again under Rule 26.
ISSUE: Is there a need for another denial in the request for admission?
HELD: NO NEED. When a matter is already effectively denied in the pleading, then there is no need to ask
it all over again. In other words, what has already been denied is denied and therefore you cannot say
that for failure to deny it is already deemed admitted.
A request for admission is not intended to merely reproduce or reiterate the allegations of the
requesting partys pleading but should set forth relevant evidentiary matters of fact, or documents
described in and exhibited with the request, whose purpose is to establish said partys cause of action or
defense. Unless it serves that purpose, it is pointless, useless, and a mere redundancy.
If we have to answer the same question under the ruling in PO, it would seem that the defendant is
correct. Why do I have to deny, if I have already denied it? So, there is no implied admission.
Sec. 3. Effect of admission. Any admission made by a party pursuant to such request is for the purpose
of the pending action only and shall not constitute an admission by him for any other purpose nor may
the same be used against him in any other proceeding.(3)
Section 3 is for the purpose of evidence. An admission made by a party pursuant to a request for
admission in only good for that case. It cannot be used in any other case or proceeding. It limits
therefore the effectivity of an admission. It is only valid for the pending case.
Sec. 4. Withdrawal. The court may allow the party making an admission under this Rule, whether
express or implied, to withdraw or amend it upon such terms as may be just. (4)
Admissions made, expressly or impliedly (failure or refusal to respond) are nevertheless binding.
Q: Is the party admitting allowed to withdraw, change or amend his previous admissions?
A: YES, but with leave of court.
Sec. 5. Effect of failure to file and serve request for admission. Unless otherwise allowed by the court
for good cause shown and to prevent a failure of justice, a party who fails to file and serve a request
for admission on the adverse party of material and relevant facts at issue which are, or ought to be,
within the personal knowledge of the latter, shall not be permitted to present evidence on such facts.
(n)
This is one of the more controversial sections in the new Rules. This is a mandatory mode of discovery.
A party who FAILS to FILE and SERVE a request for admission on the adverse party of material and
relevant facts in issue which are or ought to be within the personal knowledge of the latter shall not be
permitted to present evidence on such facts. This is A VERY HARSH RULE a new rule which again
shows the intention of the law to compel the lawyers to avail of the modes of discovery.
An example of the section: Lets assume that there is a fact which I want to prove and I know that you
know but I do not know whether youll admit it or not. Under the rules, I have to send you a request for
admission to confirm it.
Suppose I do not send you a request because anyway there are very few lawyers who do that. So, I did
not send a request and then during the trial, I will just try to prove it. Then the adverse party says, Teka
muna, what are you trying to prove? You should have sent me a request for admission. And then you
say that you forgot to send one.
So, the adverse party here objects because he argues that I cannot present evidence to prove something
which he could have admitted in a request for admission. This is something which the party could have
admitted had I resorted to a request for admission under Rule 26, and since I did not, then he can now
prevent me from proving it.
Hence, this is a very dangerous provision. Though, we still have to see a judge applying this rule because
it is practically placing the other party in estoppel. Basically the argument will go like this:
NASTY MACK: Why did you not send me a request for admission? Had you sent me, I would have easily
admitted that but since you did not, then I will bar you form proving it. (practically every fact aimed to
be proved can be objected to
BEN-DEATHA: How could I have known what facts you will admit and not admit?
NASTY MACK: Precisely, that is why you should have sent me a copy, STUPID!
See how dangerous this provision is? I can bar you from proving anything simply because you failed to
avail of the modes of discovery. This was not found in the Old Rules.
Generally, matters which are objectionable should be pushed by the party concerned or affected. That is
because it is for his benefit. I do not think it involves public policy thats why even if you invoke it, the
court may still refuse to apply it. Look at the opening of the first paragraph: Unless otherwise allowed
by the court for good cause and to prevent a failure of justice. So thats an exception.
So, even if you are correct, the judge may say that its too much. Even if you invoke it, the judge may still
say that there will be failure of justice if he will apply it. With more reason, no judge will use it if you will
not invoke it. It is practically barring the party from proving his case. That is why even if you invoke this,
judges are very careful not to apply this. So, you have to invoke this at least, to call the attention of the
judge though the judge may still refuse because there might be a failure of justice.
The only purpose I see for these is to compel the parties and lawyers to avail of the Modes of Discovery.
Lets go to some interesting cases on request for admission.
REBONERIA vs. COURT OF APPEALS 216 SCRA 627 [1992]
FACTS: A request for admission was sent by a party (Plaintiff) to the lawyer of the defendant (because
anyway, under Rule 13, the general rule is that everything should be coursed through the lawyer) So, the
request was sent to the lawyer. Since there was no response, can there be an implied admission?
HELD: NONE. In a request for admission, since we are questioning the party, we should address it to him,
and not to the lawyer. A request for admission should be served upon the party, not his counsel. The
general rule under Rule 13 cannot apply where the law expressly provides that notice must be served
upon a definite person.
In such cases, service must be made directly upon the person mentioned in the law and upon no other in
order for the notice to be valid.
But the case of REBONIA should not be confused with the case of
PSCFC FINANCING CORP. vs. COURT OF APPEALS 216 SCRA 838 [1992]
FACTS : A request for admission was sent to a party. The party told his lawyer to answer the request. So,
it was the lawyer who answered the request for admission under oath.
ISSUE: Was there an effective answer or reply to the request for admission as it was the lawyer who
made the reply ?
HELD : YES, because under the Rules, a client can always act through the lawyer and he is bound by the
actuations of his lawyer. This is practically the rule on Agency. If we will say that the lawyer has no
authority even if ordered by the client , then we are altering the Rules on Agency and also the rule that
the lawyer can always act in behalf of his client.
And assuming that a lawyer is not authorized to make the complaint, then why is the adverse party the
one complaining? It is the client who has the authority to impugn the acts of his lawyer and not the
adverse party. Timang!!
Principles to remember in the case of REBONERIA and PSCFC:
1. A request must be directed to the party whose admission is sought. Service of request to any
other person is not a valid request at all.
2. A request must always be directed to the party whose admission is sought, but the latter may
delegate to his lawyer the right to answer the request. Such is valid so long as there is a valid
authorization.
Rule 27
PRODUCTION OR INSPECTION OF
DOCUMENTS OR THINGS
SEC. 1. Motion for Production or inspection; order Upon motion of any party showing good cause
therefore, the court in which an action is pending may
(a) Order any party to produce and permit the inspection and copying or photographing by or
on behalf of the moving party, of any designated documents, papers, books, accounts,
letters, photographs, objects or intangible things, not privileged which constitute or contain
evidence material to any matter involved in the action and which are in his possession,
custody or control; or
(b) Order any party to permit entry upon designated land or other property in his possession
for control for the purpose of inspecting, measuring, surveying or photographing the
property of any designated relevant object or operation thereon. The order shall specify the
time, place and manner of making the inspection and taking copies and photographs, and
may prescribe such terms and conditions as are just (1a)
EXAMPLE: Harry Potter sued Voldemortz. The case involves accounting. Voldemortz is in possession of
several invoices and receipts which he would present in trial. Harry wants to get hold of and inspect all
these documents. Since these are not actionable documents, Voldemortz is not required to show or
include them in the pleadings. No need to plead. So, Harry want to see these books, photographs,
accounts, objects which Harry know Voldemortz will present during the trial. If Harry will ask Voldemortz
to show these things, I don't think Voldemortz will accommodate Harry.
Q: In the above example, what is the remedy of Harry?
A: Harry will apply Rule 27 by filing a motion in court stating that Voldemortz is in the possession of such
documents and Harry would like to see, inspect or have them copied, provided they are relevant and not
privileged. And the court will issue an order directing Voldemortz on a specified time on place to bring
them for purposes of inspection, survey, copying, photocopying, etc. Voldemortz have no choice but to
show Harry all these objects.
EXAMPLE: Harry sued Voldemortz for recovery of ownership of land. Voldemortz in possession and such
is in a position to enable to properly describe the land and all its improvements. Harry would like to see
the property to inspect and survey the same.
Q: What is Harrys remedy?
A: File a motion in court to permit him (Harry) to enter the land for purposes of inspecting, measuring,
surveying or photographing the property. And the court will issue an order specifying the time, place and
the manner of inspection. Now, Harry will have an access to the documents, things, land, etc. which are
under Voldemortzs control or possession.
Q: Give the requisites of production or inspection of documents or things (Rule 27)?
A: The following are the requisites:
1.) A motion (leave of court) must be filed by a party showing good cause therefor;
2.) Notice of the motion must be given to all other parties;
3.) The motion must sufficiently describe the document or thing sought to be produced or inspected;
4.) The document or thing sought to be produced or inspected must constitute or contain evidence
material to the pending action;
5.) The document or thing sought to be produced or inspected must not be privileged; and
6.) The document or thing sought to be produced or inspected must be in the possession of the adverse
party or, at least, under his control. (Section 1, Rule 27; Lime Corp. vs. Moran, 59 Phil. 175; Alvero vs.
Dizon, 76 Phil. 637)
NOTE: Rule 27 is not the same as Rule 21 on subpoena duces tecum. Therefore, the next question is:
Q: Distinguish Production or Inspection of Documents or Things under Rule 27 from Subpoena
duces tecum under Rule 21.
A: The following are the distinctions:
1.) Rule 27 is essentially a mode of discovery (simply to discover), whereas
Rule 21 on subpoena duces tecum is a means of compelling production of evidence which
must be brought to court;
2.) Rule 27 is limited to parties in the action, whereas
Rule 21 on subpoena duces tecum may be directed to any person, whether a party or not;
3.) The order under Rule 27 is issued only upon motion with notice to the adverse party,
whereas
A subpoena duces tecum under Rule 21 may be issued upon an ex-parte application.
Rule 28
PHYSICAL AND MENTAL EXAMINATION OF PERSONS
This is the fifth and last mode of discovery.
So in order to even things, I will have to request you to submit to a neutral doctor or psychiatrist for a
physical or mental examination. So the court will issue an order. Konti man lang ang kasong ganito. For
example, damage suit in damage cases, the plaintiff may be exaggerating his injuries.
The only way to confirm it is to have another doctor examine him to find out whether his injury is really
genuine or sinadya may be for the purpose of securing a bigger mount of damages. Remember the joke
which we mentioned in Evidence about the plaintiff who met an accident na na-dislocate yung shoulder,
so permanent ang injury. So when he testified in court, he was asked to raise his arm higher, higher
please! No more the injury is permanent.
Sabi ng court, So that was after the accident. What about before the injury? How high can you raise you
arm? A, ganito o! So there is no more need for a physical examination because he has already
demonstrated it (he was just exaggerating his injury).
SEC. 1. When Examination may be ordered In an action in which the mental or physical condition of a
party is in controversy, the court in which the action is pending may in its discretion order him to
submit a physical or mental examination by a physician (1)
SEC. 2. Order for examination The order for examination may be made only upon motion for good
cause shown and upon notice to the party to be examined and to all other parties, and shall specify
the time, place, manner, conditions, and scope of the examination and the person or persons by
whom it is to be made. (2)
Rule 28 applies in all actions where the mental or physical condition of a party is in question or
controversy. EXAMPLES:
a.) annulment of marriage on the ground psychological incapacity. Under the Family Code, however, the
state of psychological incapacity must not have been existing only now for the first time. It must have
existed at the time of the marriage;
b.) annulment of marriage on the ground of impotency. The court can issue an order to subject the party
to undergo physical or medical examination by a doctor to test whether the allegation is true or not;
c.) annulment of contract on the ground of insanity at the time of execution (lack of consent);
d.) Physical disability due to quasi-delicts (e.g. vehicular accident). If I am the defendant and I
believe that you are merely exaggerating the extent of your injury so that your claim for damages will be
higher, and diskumpiyado ako sa doctor mo, I will ask the court to issue an order for you to undergo
physical examination by another doctor, so that we will know whether your claim is really valid or not.
Q: Give the requisites of physical and mental examination of persons under Rule 28:
A: The following are the requisites:
1.) The physical or mental condition must be a subject of controversy of the action;
2.) A motion showing good cause must be filed; and
3.) Notice of the motion must be given to the party to be examined and to all other parties.
Sec. 3. Report of findings. - If requested by the party examined, the party causing the examination to
be made shall deliver to him a copy of a detailed written report of the examining physician setting out
his findings and conclusions. After such request and delivery, the party causing the examination to be
made shall be entitled upon request to receive from the party examined a like report of any
examination, previously or thereafter made, of the same mental or physical condition. If the party
examined refuses to deliver such report, the court on motion and notice may make an order requiring
delivery on such terms as are just, and if a physician fails or refuses to make such a report the court
may exclude his testimony if offered at the trial. (3a)
Sec. 4. Waiver of privilege. - By requesting and obtaining a report of the examination so ordered or by
taking the deposition of the examiner, the party examined waives any privilege he may have in that
action or any other involving the same controversy, regarding the testimony of every other person
who has examined or may thereafter examine him in respect of the same mental or physical
examination. (4)
Example: Maya is subjected to examination by a doctor upon motion by Dino under Rule 28. So Maya
asks for a copy of the finding after examination. When Maya asks for the finding, Dino can also ask for
Mayas examination by the personal doctor of Maya, previously made or thereafter.
The doctor cannot be compelled to relay what the patient told her. So if the doctor refuses to deliver
such report, then under Section 3, he cannot testify. He cannot give evidence.
Also, once a party asks for a report of the examination, he automatically waives the privilege of
physician-patient relationship. So if Dino does not want to waive the privilege, he should not ask a copy
of the report of the physician.
Q: Going back to the different modes of discovery, when is leave of court required? Not required? A: In
the following cases:
Rule 29
REFUSAL TO COMPLY WITH MODES OF DISCOVERY
Rule 29 forms part of the study of the modes of discovery. The policy on modes of discovery is that it is
allowed and encouraged to determine, at earlier time, essential issues and to promote settlement or
expeditious trial. Lawyers should avail of the modes of discovery because they are very helpful in
determining the issues and will even provoke a settlement if you believe na wala kang laban.
And there were circulars issued by the SC on this matter. Example Circular No. 13-87 (July 13, 1987)
where the SC said that lawyers and parties should encourage to avail the modes of discovery procedures
provided for in the rules. This is a neglected area in judicial process. Its use will expedite the
determination of cases.
Mode of discovery are popular in the US. 99 percent of lawyers in the US avail of these procedures.
Practically, all parties avail the same even before the trial. At pre-trial stage, all evidence are already
prepared for the case. In the Philippines, it is the exact opposite. Filipino lawyers rarely resort to modes
of discovery despite the admonition by the SC. Siguro, it is our culture. As much as possible we want to
keep things to ourselves. [pinapalabas na lang sa pwet! he! he!]
Remember DBP vs. CA on the issue of pre-trial where Justice Narvasa complained of the courts and the
parties to avail 100% of the process of pre-trial? There is another case naman involving the modes of
discovery where the same Justice lamented the inability of lawyers and even judges to effectively apply
the modes of discovery. Im referring to the case of
REPUBLIC vs. SANDIGANBAYAN 204 SCRA 212
HELD: It appears to the Court that among far too many lawyers (and not a few judges), there is, if not a
regrettable unfamiliarity and even outright ignorance about the nature, purposes and operation of the
modes of discovery, at least a strong yet unreasoned and unreasonable disinclination to resort to them
which is a great pity for the intelligent and adequate use of the deposition-discovery mechanism,
coupled with pre-trial procedure, could, as the experience of other jurisdictions convincingly
demonstrates, effectively shorten the period of litigation and speed up adjudication.
Evidentiary matters may be inquired into and learned by the parties before the trial. The desideratum is
that civil trials should not be carried on in the dark. The Rules of Court make this ideal possible through
the deposition-discovery mechanism set forth. The experience in other jurisdictions has been that ample
discovery before trial, under proper regulation, accomplished one of the most necessary ends of modern
procedure: it not only eliminates unessential issues from trials thereby shortening them considerably,
but also requires parties to play the game with the cards on the table so that the possibility of fair
settlement before trial is measurably increased.
The various modes or instruments of discovery are meant to serve (1) as a device, along with the pre-
trial hearing under Rule 18, to narrow and clarify the basic issues between the parties, and (2) as a device
for ascertaining the facts relative to those issues.
Hence, the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can
the time-honored cry of fishing expedition serve to preclude a party from inquiring into the facts
underlying his opponents case. Mutual knowledge of all the relevant facts gathered by both parties is
essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts
he has ill his possession. The deposition-discovery procedure simply advances the stage at which the
disclosure can be compelled from the time of trial to the period preceding it, thus reducing the
possibility, of surprise.
SEC. 1. Refusal to answer. - If a party or other deponent refuses to answer any question upon oral
examination, the examination may be completed on other matters or adjourned as the proponent of
the question may prefer. The proponent may thereafter apply to the proper court of the place where
the deposition is being taken, for an order to compel an answer. The same procedure may be availed
of when a party or a witness refuses to answer any interrogatory submitted under Rules 23 or 25.
If the application is granted, the court shall require the refusing party or deponent to answer the
question or interrogatory and if it also finds that the refusal to answer was without substantial
justification, it may require the refusing party or deponent or the counsel advising the refusal, or both
of them, to pay the proponent the amount of the reasonable expenses incurred in obtaining the order,
including attorney's fees.
If the application is denied and the court finds that it was filed without substantial justification, the
court may require the proponent or the counsel advising the filing of the application, or both of them,
to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing
the application, including attorney's fees. (1a)
Q: If a party or deponent refuses to answer a question on oral examination or written interrogatories
under Rule 25, what is your remedy?
A: You go to court and get an order to compel him to answer. And he can be held liable for the
reasonable expenses incurred in obtaining the order including attorneys fees.
SEC. 2. Contempt of court. - If a party or other witness refuses to be sworn or refuses to answer any
question after being directed to do so by the court of the place in which the deposition is being taken,
the refusal may be considered a contempt of that court. (2a)
SEC. 3. Other consequences. - If any party or an officer or managing agent of a party refuses to obey an
order made under section 1 of this Rule requiring him to answer designated questions, or an order
under Rule 27 to produce any document or other thing for inspection, copying, or photographing or to
permit it to be done, or to permit entry upon land or other property, or an order made under Rule 28
requiring him to submit to a physical or mental examination, the court may make such orders in regard
to the refusal as are just, and among others the following:
(a) An order that the matters regarding which the questions were asked, or the
character or description of the thing or land, or the contents of the paper, or the
physical or mental condition of the party, or any other designated facts shall be
taken to be established for the purposes of the action in accordance with the
claim of the party obtaining the order;
(b) An order refusing to allow the disobedient party to support or oppose
designated claims or defenses or prohibiting him from introducing in evidence
designated documents or things or items of testimony, or from introducing
evidence of physical or mental condition;
(c) An order striking out pleadings or parts thereof, or staying further proceedings
until the order is obeyed, or dismissing the action or proceeding or any part
thereof, or rendering a judgment by default against the disobedient party; and
(d) In lieu of any of the foregoing orders or in addition thereto, an order directing
the arrest of any party or agent of a party for disobeying any of such orders
except an order to submit to a physical or mental examination. (3a)
These are other consequences in addition to Section 1. These refer to the refusal to obey an order under
Rule 27 and Rule 28 which can even cost your case. The court will make an order that would make the
disobedient party suffer. If he is the plaintiff, his complaint will be stricken out.
Or if he is the defendant, judgment of default can be rendered against him although the judgment of
default can only be done if he failed to file an answer. But his refusal to comply with a mode of discovery
is the exception to the case. This is one instance when a judgment by default can be rendered against a
defendant who filed an answer. And that is the worst penalty for refusing to cooperate.
SEC. 4. Expenses on refusal to admit. - If a party after being served with a request under Rule 26 to
admit the genuineness of any document or the truth of any matter of fact, serves as sworn denial
thereof and if the party requesting the admissions thereafter proves the genuineness of such
document or the truth of any such matter of fact, he may apply to the court for an order requiring the
other party to pay him the reasonable expenses incurred in making such proof, including attorney's
fees. Unless the court finds that there were good reasons for the denial or that admissions sought
were of no substantial importance, such order shall be issued. (4a)
Section 4 pertains to Rule 26 on request for admission. If X was able to prove something that Y refused to
admit, Y can be held liable for expenses and attorney's fees for refusing to admit something which
turned out to be true. If it is something true, you might as well admit it. Do not put the other party into
trouble for you might be held liable for the expenses later on.
SEC. 5. Failure of party to attend or serve answers. - If a party or an officer or managing agent of a
party willfully fails to appear before the officer who is to take his deposition, after being served with a
proper notice, or fails to serve answers to interrogatories submitted under Rule 25 after proper service
of such interrogatories, the court on motion and notice, may strike out all or any part of any pleading
of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default
against that party, and in its discretion, order him to pay reasonable expenses incurred by the other,
including attorney's fees. (5)
Section 5 is identical to previous consequences. If a party is served with interrogatories and he refuses to
answer under Rule 25, he can be penalized with the ultimate penalty of dismissal of the case or
judgment by default. Thus, the ultimate effect is that, a party who refuses to cooperate may lose the
case ultimately.
Normally, default judgment applies only to a defendant who failed to file an answer. But Rule 29 allows a
default judgment even if you filed an answer for failure to comply with the modes of discovery. So, this is
one instance when a judgment by default can be rendered against a defendant who filed an answer.
INSULAR LIFE ASSURANCE CO., LTD. vs. COURT OF APPEALS 238 SCRA 88 [1994]
FACTS: There was a refusal here of one party to answer an interrogatory. So the other party asked the
court to issue an order. The court then ordered the other party to answer, but he still refused.
So, the plaintiff filed a motion for judgment of default against the defendant (or dismissal of the case)
citing Section 5 where if one refuses to cooperate, the case will be dismissed or a judgment of default
can be rendered against the party.
But the judge ruled that the case shall continue. The party now went to the SC contending that the judge
committed a grave abuse of his discretion in refusing to apply the sanctions allowed by law.
HELD: While it is true that there are sanctions allowed by law in cases of refusal to comply with the
modes of discovery, the same is DISCRETIONARY. Meaning, let the court decide whether justice will be
served by going to trial or not. So there was no grave abuse of discretion on the part of the judge.
The matter of how, and when, the above sanctions should be applied is one that primarily rests on the
sound discretion of the court where the case is pending, having always in mind the paramount and
overriding interest of justice. For while the modes of discovery are intended to attain the resolution of
litigations with great expediency, they are not contemplated, however, to be ultimate causes of injustice.
It behooves trial courts to examine well the circumstances of each case and to make their considered
determination thereafter. It is only in clear cases of grave abuse of that discretion when appellate courts
will interfere in their judgment.
In other words, courts are still given the leeway of whether or not to apply the ultimate sanctions.
NOTE: The ruling in this case was reiterated in the 1996 case of SANTIAGO LAND DEVELOPMENT CO. vs.
CA, July 9, 1996 (258 SCRA 535) and the 1998 case of DELA TORRE vs. PEPSI-COLA PRODUCTS, October
30, 1998 (298 SCRA 363)
FORTUNE CORPORATION vs. COURT OF APPEALS 229 SCRA 355
ISSUE: Are the 5 modes of discovery cumulative or exclusive? Can a party resort to any modes of
discovery or are they intended to be an exclusion of the other?
HELD: The various methods of discovery as provided for in the Rules are clearly INTENDED TO BE
CUMULATIVE, as opposed to alternative or mutually exclusive.
Under the present Rules the fact that a party has resorted to a particular method of discovery will not
bar subsequent use of other discovery devices, as long as the party is not attempting to circumvent a
ruling of the court, or to harass or oppress the other party.
There was a time when I did this. I used a variety or combination of the different modes. I was interested
in knowing some evidence from the other party. So, interrogatories, then sagot. I asked them on how
they were going to prove it and whether they going to present witnesses and documents. Yes daw. So, I
used production and inspection na naman. So may order na naman. If they have witnesses to be
presented, then deposition na naman. In other words, we can avail all of this.
There was this veteran practitioner who was one of my idols. Hes already retired but his style was that
he handled only about four cases a year para total effort and attention ang maibigay niya. But he charges
big. In the millions for his fees, aaraw-arawin ka niyan ng modes of discovery. So the other counsel will
have no time. Thats why pag-sinabi ng cliente na si Atty. so and so ang kalaban, dino-double nila ang
charge because they know na maraming trabaho kapag siya ang kalaban. After a while, the lone case will
become 10 cases already para sa iyo sa dami ng trabaho if he is the counsel of your opponent.
So the modes of discovery can be used to really squeeze everything out of your opponent.
Q: To summarize, what are the instances when a defendant shall be considered in default even if such
defendant has already filed an answer?
A: The following are the instances:
1.) Failure to appear at the pre-trial conference (Rule 18); and
2.) Failure to cooperate in the mode of discovery (Section 5, Rule 29).
Rule 30
TRIAL
Section 1. Notice of trial. Upon entry of a case in the trial calendar, the clerk shall notify the parties of
the date of its trial in such manner as shall ensure his receipt of that notice at least five (5) days before
such date. (2a, R22)
Of course, after the Pre-trial, the next step now is trial. And it is the duty of the clerk of court to send
notices to the parties about the date of the trial in such manner as shall insure his receipt of that notice
at least five (5) days before such date. But actually in real practice, it will even take more than a month to
give you ample time to prepare for it.
Now, it is mandatory that the notice should reach the party or its lawyer at least five (5) days before such
date. So, you should mail it earlier. Do not mail it on the day of or one day before the trial because he
may already have other engagement. Well, that is only a very minor provision but it is now emphasized
by the Rules.
Q: Define trial.
A: TRIAL is an examination before a competent tribunal of the facts or law put in issue in a case, for the
purpose of determining such issue. (Ballentines Law Dict., 2nd Ed., p. 1299) In a trial, there is always an
issue where we cannot agree. Therefore, the purpose of a trial is for the court to resolve that issue.
Sec. 2. Adjournments and postponements. A court may adjourn a trial from day to day, and to any
stated time, as the expeditious and convenient transaction of business may require, but shall have no
power to adjourn a trial for a longer period than one month for each adjournment, nor more than
three months in all, except when authorized in writing by the Court Administrator, Supreme Court. (3a,
R22)
A court may adjourn a trial from day to day means that if the trial is not finished on the scheduled
date, that will be postponed on another day. That is how trials are being conducted. It is by staggered
basis. That is what you call adjournment. But everything is recorded anyway. If you look at the transcript
stenographic notes, it would seem that the trial is continuous because everything unfolds there. But
actually, these occurred on different dates.
Now, Section 2 also provides that no party shall be allowed a postponement of more than one (1) month
per postponement and not more than three (3) postponements in all. As a GENERAL RULE: Not more
than one (1) month for its adjournment BUT a maximum of three (3) postponements. In effect, it will be
exactly 90 days.
And that jives with the SC Circular 3-90 which contains a mandatory continuous trial for 90 days. In other
words, the case must terminate in 90 days.
The ONLY EXCEPTION is when authorized in writing by the court administrator. Meaning, the judge can
go to the court administrator to allow the court to go beyond the period allowed by law. And I do not
know if this provision is being followed strictly. There are cases which have been here for more than a
year. But you can do it provided you are authorized in writing by the court administrator. Yan!
Sec. 3. Requisites of motion to postpone trial for absence of evidence. A motion to postpone a trial on
the ground of absence of evidence can be granted only upon affidavit showing the materiality or
relevancy of such evidence, and that due diligence has been used to procure it. But if the adverse party
admits the facts to be given in evidence, even if he objects or reserves the right to their admissibility,
the trial shall not be postponed. (4a, R22; Cir. No. 39- 98)
Generally, there are two main reasons why parties ask for postponement. One is, (1) absence of
evidence like when the witness is not available or the document is not available, or (2) somebody is sick
either the party or counsel is sick.
Now, of course the requirements of the Rules are really strict although courts and lawyers are very
liberal on this. First of all, if you want to postpone a trial on the ground of absence of evidence, there
must be a verified affidavit. The affidavit must show the materiality or relevancy of the evidence which is
not available and that due diligence was used to procure it. In other words, you tried your best to secure
it earlier.
Now, what is the meaning of the second sentence: If the adverse party admits the facts to be given in
evidence, even if he objects or reserves the right to their admissibility, the trial shall not be postponed?
EXAMPLE:
LAWYER: We are asking for postponement because our witness is not present. He is not available and
his testimony will be very material.
ADVERSE PARTY: Alright, what is going to be his testimony? What will he testify about in court?
LAWYER: Well, this is his testimony . he will prove this or he will prove that.
ADVERSE PARTY: OK. Admitted. I admit that if he is here, this is what he will say. Although I may object
to the admissibility of such testimony.
Meaning, the other party may admit the evidence but object to its admissibility. That is two different
things admitting the evidence but objecting to its admissibility in court. Meaning, objecting to the
admissibility of the witness in court. Just like under the Constitution, if a confession is made by a suspect
without being afforded with the Miranda warnings, such confession is not admissible. But such
confession is evidence. Only, it is inadmissible.
So, I admit that, although I reserve my right to its admissibility. Then in such case, you have no more
reason for postponement because in the first place, there is no need to present your witness because
the other party already admitted what will be the substance of his testimony. Yaannn!
Sec. 4. Requisites of motion to postpone trial for illness of party or counsel. A motion to postpone a
trial on the ground of illness of a party or counsel may be granted if it appears upon affidavit or sworn
certification that the presence of such party or counsel at the trial is indispensable and that the
character of his illness is such as to render his non-attendance excusable. (5a, R22)
The same thing for illness (2nd ground). Kung may sakit, there must be affidavit or sworn statement. So
you must have a sworn medical certificate and that the presence of such party or counsel is
indispensable and the character of his witness is such as to render his non-attendance excusable.
Now, of course the SC has already stated in some cases that when the sickness is sudden and unexpected
such as accident, you cannot require on the spot a medical certificate. Meaning, how can I produce
something if he got sick only an hour ago? So, the court should take that into consideration. They cannot
object to the requirement of medical certificate.
So, a motion for postponement which is not verified upon the ground of illness of a party or counsel
without a medical certificate should be granted if it appears that the claim of the movant is meritorious.
Normally, we just say that if the other party insists on a medical certificate, we will submit it this
afternoon or tomorrow because there are things in which we cannot get a medical certification on time
unless he has been sick for so long.
In the ultimate analysis, what is the policy of the SC on postponements? Motions for postponements is
always addressed to the sound discretion of the court (Casilan vs. Gancayco, 56 O.G. 2799, March 28,
1960; People vs. Martinez, 57 O.G. 7923, Oct. 30, 1961).
So if the motion for postponement is denied or granted or either way, it is so hard to have it overturn
because the SC will always give way to the discretion and rarely will it happen in court where it will
interfere without discretion unless there is grave abuse of discretion.
ORDER OF THE TRIAL
The order of trial in civil cases is a little bit more complicated compared to criminal cases.
Sec. 5. Order of trial. Subject to the provisions of section 2 of Rule 31, and unless the court for special
reasons otherwise directs, the trial shall be limited to the issues stated in the pre-trial order and shall
proceed as follows:
(a) The plaintiff shall adduce evidence in support of his complaint;
(b) The defendant shall then adduce evidence in support of his defense, counterclaim, cross-
claim and third-party complaint;
(c) The third-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-
claim and fourth-party complaint;
(d) The fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by
them;
(e) The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce
evidence in support of their defense, in the order to be prescribed by the court;
(f) The parties may then respectively adduce rebutting evidence only, unless the court, for
 good reasons and in the furtherance of justice, permits them to adduce evidence upon their
original case; and
(g) Upon admission of the evidence, the case shall be deemed submitted for decision, unless
the court directs the parties to argue or to submit their respective memoranda or any
further pleadings.
If several defendants or third-party defendants, and so forth, having separate defenses appear by
different counsel, the court shall determine the relative order of presentation of their evidence. (1a,
R30)
Take note that the law says the trial shall be limited to the issues stated in the pre-trial order. That is
now emphasized under the Rule 30. That jives with Rule 18, Section 7 on what is the importance of a pre-
trial order:
Sec. 7. Record of pre-trial. - The proceedings in the pre-trial shall be recorded. Upon the termination
thereof, the court shall issue an order which shall recite in detail the matters taken up in the
conference, the action taken thereon, the amendments allowed to the pleadings, and the agreements
or admissions made by the parties as to any of the matters considered. Should the action proceed to
trial, the order shall explicitly define and limit the issues to be tried. The contents of the order shall
control the subsequent course of the action, unless modified before trial to prevent manifest injustice.
(5a, R20)
The pre-trial order shall limit the issues and shall control the subsequent course of the action. We
already emphasized that the pre-trial order prevails over the pleadings. The pre-trial order has the effect
of superseding the complaint and the answer. Whatever issues are stated in the pre-trial order shall be
the issues to be tried during the hearing on the case.
Now going back to Rule 30, that is now emphasized. The trial shall be limited to the issues stated in the
pre-trial order. So, the pre-trial order will be a very important document to determine what are the
issues to be tried.
Q: How will the trial proceed? In what order?
A: Section 5, paragraphs [a] to [g], including the last paragraph of Section 5.
Q: What is the reason for the rule prescribing an order of trial?
A: The reason is for orderly procedure, which must be followed if injurious surprises and annoying delays
in the administration of justice are to be avoided. Evidence cannot be given piece-meal. (Dir. of Lands vs.
Archbishop of Manila, 41 Phil. 120)
You will notice the order of trial in civil cases follows more or less the same pattern with the trial in
criminal case. The pattern is the same although there may be cross-claims, third (fourth, etc.) party
complaints, especially when there are more than one defendant.
BASIC PATTERN (No cross-claim, counterclaim or 3rd-party complaint, etc.):
1.) Plaintiff presents evidence to prove his claim or cause of action. That is what you call EVIDENCE IN
CHIEF, also called as the MAIN EVIDENCE; (paragraph [a])
2.) Defendant presents evidence in chief or main evidence to prove his defense negative or affirmative
defense; (paragraph [b])
3.) Plaintiff will present what we call REBUTTAL EVIDENCE to rebut defendants main evidence.
(paragraph [f])
4.) Defendant is given the chance to present rebuttal evidence to rebut the rebuttal of evidence of the
plaintiff. In legal parlance, we call that SUR-REBUTTAL evidence; (paragraph [f])
5.) ARGUMENTS. Normally, it is what we call the filing of MEMORANDUM (written arguments) the
parties will submit their respective memoranda, unless the case will be submitted for decision without
arguments or memorandum. (paragraph [g])
So, normally, that is the basic pattern of the order of trial. Now, plaintiff presents evidence ahead, after
him defendant presents evidence to prove his defense.
Now, in the case of
YU vs. MAPAYO 44 SCRA 163
FACTS: The plaintiff filed a complaint against the defendant to collect a loan which, according to the
plaintiff, the defendant has not paid. The defendant filed an answer admitting the loan but ang kanyang
affirmative defense is, the obligation is paid.
During the trial, the plaintiff said that he is no longer going to present any evidence to
prove his cause of action because anyway, the defendant has admitted the obligation; and since the
defendant is the one invoking payment, it is, therefore, his burden to prove payment.
The trial court agreed with the plaintiff, Yes. Alright defendant, you present evidence that the obligation
is paid. Anyway, you are admitting that you borrowed money.
Now, according to the defendant, the procedure is improper the order of the trial being altered, Why
will the defendant prove his defenses ahead. The plaintiff is supposed to present evidence bago ako.
Bakit uunahin ako? That is the objection of the defendant.
ISSUE: Can the defendant present his evidence first?
HELD: AH YES! Anyway, by admitting the obligation, you are invoking the affirmative defense of
payment. So, it is incumbent upon you to prove that it is paid.
Under Rule 16, the defendant is not obliged to file a motion to dismiss. That is optional. In fact, the
defendant is allowed, instead of filing a motion to dismiss, to file an answer invoking the ground for a
motion to dismiss as an affirmative defense. And then the defendant could even ask for a preliminary
hearing for his affirmative defenses as if a motion to dismiss has been filed.
Therefore, in the hearing for a motion to dismiss, the defendant is now converting his defense into a
ground for a motion to dismiss. In which case, the affirmative defense will be heard ahead of the main
action. So, that is allowed under Rule 16.
So, there is nothing basically wrong with an affirmative defense being heard ahead of the plaintiff,
especially when the plaintiff has nothing to prove anymore.
Well, of course that is more apparent in criminal procedure. In the order of trial in criminal procedure,
the court may even direct the accused to present evidence ahead of the prosecution when the accused is
already admitting the facts constituting the crime but only invokes a defense such as self-defense when
you are accused of homicide and your defense is that you acted in self-defense. So, wala ng i-prove ang
prosecution. Automatically, you are admitting that you killed the victim. The burden now is shifted to
you to justify the killing. Thats what they call TRIAL IN REVERSE.
So, in criminal cases where the law authorizes a reversed trial where the accused is directed to present
evidence ahead of the prosecution, there is no reason why the same procedure cannot also apply in civil
cases. That is the essence of the MAPAYO ruling. So, more or less, that is the deviation from the normal
order of trial.
Section 5 [f]: The parties may then respectively adduce rebutting evidence only, unless the court, for
good reasons and in the furtherance of justice, permits them to adduce evidence upon their original
case;
Paragraph is actually presentation of rebuttal evidence.
Q: What is the difference between the evidence mentioned in paragraph [f] and the evidence mentioned
in paragraphs [a] and [b]?
A: Paragraphs [a] and [b] refer to what we call EVIDENCE IN CHIEF to prove your main cause of action or
your defense. In paragraph [f], the evidence is not evidence in chief but REBUTTAL EVIDENCE to
dispute the side of the other party.
Q: Is a party allowed to present evidence in chief in the rebuttal stage?
A: GENERAL RULE: NO, because paragraph [f] provides that the parties may then respectively adduce
rebutting evidence only. In other words, you do not go back to paragraphs [a] and [b]. If you have
evidence to prove your cause of action or defense, you should have done it earlier.
So generally, evidence in chief is not allowed during the rebuttal stage. But there is an exception:
EXCEPTION: Unless the court, for good reasons and in the furtherance of justice permits them to adduce
evidence upon their original case. Meaning, it permits them to adduce evidence in chief. But you need
the permission of the court because normally, you should have done that under paragraphs [a] and [b]
and not in paragraph [f].
Q: Give instances when the court may allow the party to present additional evidence in chief during
rebuttal to prove his cause of action.
A: In the following instances:
1.) When it is newly discovered;
2.) When the evidence was omitted through inadvertence or mistake;
3.) When the purpose is to correct evidence previously offered; (Lopez v s. Liboro, 81 Phil. 429)
4.) When the additional evidence offered is material and not merely cumulative or impeaching
(64 C.J. 160-163)
Those are the possible instances when the court in the interest of justice may allow the parties to
present evidence in chief during the rebuttal stage which is normally not allowed.
And that is what I saw exactly years ago how this paragraph [f] operates. There was case here we were
watching before. There was a veteran trial lawyer from Manila who tried a case here. I think it was a
damage suit against KLM Royal Airlines for breach of contract of carriage because some of the
passengers were from Davao City. Alright when they are already in the rebuttal stage, the lawyer for the
Airlines was presenting evidence and the counsel for the plaintiff argued, Objection Your Honor, it is not
rebuttal evidence. It is evidence in chief which he is presenting. So it is not proper during this stage.
And the trial court agreed, Yes, it is improper. The evidence in chief should have been presented earlier.
Therefore, objection is sustained. Lawyer for the Airlines, So, you honor, may we move for a
reconsideration because we believe it is rebuttal evidence and it is very important. So, balik na naman
sila sa argument. And then the court said, The motion for reconsideration is denied, you are not
allowed.
So, patay siya. And its really true that what was presented was evidence in chief and not rebuttal
evidence. So, hindi siya ba makalusot or hindi siya makapasok. So, for a while, he closed his eyes and
said, Your Honor, in the interest of justice may we be allowed to present evidence in chief for the
rebuttal stage. And the court said granted, Sure pare basta ikaw! [Mas OK pa sa ALRIGHT]! So pasok
na naman!
In other words, saan niya kinuha ito? When I looked at the Rules, iyon pala! He knows how to invoke it.
In other words, you can see the skill of a veteran lawyer. The rules are at his fingertips. So, that is how I
saw this provision operates.
Section 5 [g]: Upon admission of the evidence, the case shall be deemed submitted for decision, unless
the court directs the parties to argue or to submit their respective memoranda or any further
pleadings.
Now, of course, pag tapos na kayo, main evidence and rebuttal, tapos na ang kaso. Meaning, the case is
ready for decision. But normally, the lawyer of the parties would say, We would like to argue. And the
argument is normally not oral but in writing where you will be asked to file what you call
MEMORANDUM.
A MEMORANDUM is practically a thesis where you will summarize your position and you argue why you
should win. That is where you cite evidence. You convince the court that you have proven your cause of
action or defense. Then you cite the testimonies, the exhibits, the transcripts and of course, the
argument, the jurisprudence, the law. That is where you argue. You do not argue in your pleading.
Pleadings, complaint, answer is not the time to argue. There, you only state the facts. You argue after the
trial where you interpret now the evidence and convince the court.
Sec. 6. Agreed statement of facts. The parties to any action may agree, in writing, upon the facts involved
in the litigation, and submit the case for judgment on the facts agreed upon, without the introduction of
evidence.
If the parties agree only on some of the facts in issue, the trial shall be
held as to the disputed facts in such order as the court shall prescribe. (2a, R30)
Alright, why do the parties present evidence 1, 2, 3, 4. What is the purpose there? To prove facts.
Normally, we cannot agree on the facts. I say something and you will say that is not true and this is what
happened. So, normally, cases arise because of the issue of what happened.
Q: Now, is there a possibility that the court will decide whether there is trial or no more evidence?
A: YES! If the parties agree in writing upon the facts involved in the litigation and they will submit the
agreed facts or the case for decision. That is what we call JUDGEMENT ON AGREED STATEMENT OF
FACTS or the more popular term: JUDGEMENT BASED ON STIPULATION OF FACTS.
EXAMPLE: The plaintiff and the defendant agree on all the facts. These are the facts, sabi ng plaintiff.
Then sabi ng defendant, Yes, I agree those are the facts. Now if we agree on the facts, there is nothing
more to prove. And what we are now quarreling is who should win based on the facts agreed upon. So,
ano ngayon ang kaso? That is purely a legal question. There is nothing to prove because everything is
admitted. They disagree only on the conclusion.
So, with that, par. 1, 2, 3, 4 all these steps are useless. There is nothing to prove. In which case, we will
go immediately to step no. 5. So, if the parties agree in writing upon the facts involved in the litigation
and they will submit the agreed facts for decision, that is JUDGEMENT BASED ON STIPULATION OF FACTS
which is encouraged by the law. This is one of the purposes of Pre-Trial (Rule 18, Section 2 [d]) where the
parties are encouraged to stipulate on facts, because really, it would save a lot of time.
The best example of agreed facts would be examination problems. The facts are already given this is
what happened. You cannot change that anymore. And you will be asked, DECIDE: Is A correct or is B
correct. So in other words, you simply apply the law. You do not apply anymore the issue of what
happened because it is already agreed. Your answer would be similar to a JUDGMENT BASED ON
STIPULATION OF FACTS.
Q: Why is an agreed statement of facts sufficient basis for a judgment?
A: The reason is that an agreed statement of facts is conclusive on the parties, as well as on the court.
Neither of the parties may withdraw from the agreement, nor may the court ignore the same. (McGuire
vs. Manufactures Life Ins. Co., 87 Phil. 370)
Q: Now suppose they can agree on some facts but they cannot agree on others.
A: There is no problem. You can have a partial stipulation of facts and then we can try the rest with
respect to the other disputed facts.
That is why the second paragraph says, If the parties agree only on some of the facts in issue, the trial
shall be held as to the disputed facts in such order as the court shall prescribe. At least, it would still be
faster because the disputed facts are now limited. Rather than proving ten (10) issues of facts, it will be
reduced to 3 or 4. So, the trial would still be faster.
The court is not bound to find out what happened when the parties already agreed on what happened.
EXAMPLE: The parties will stipulate, This case involves a piece of land with an area of 50 hectares,
planted with coconut trees of about 5,000. So, parties agreed and then the court says, No, I do not
believe you. It might be more than 59 hectares. NO. When the parties agree, sundin mo yan because
they themselves agree on the facts. You only determine the facts if they cannot agree. That is why the
court is bound by the stipulations made by the parties.
Sec. 7. Statement of judge. During the hearing or trial of a case any statement made by the judge with
reference to the case, or to any of the parties, witnesses or counsel, shall be made of record in the
stenographic notes. (3a, R30)
Take note that the trial is a formal court proceeding. Everything is recorded there the statement of
parties, their lawyers, including the statement of the judge. Any statement made by the judge with
reference to the case or to any of the parties, witnesses, or counsel shall be made of record in the
stenographic notes.
Sec. 8. Suspension of actions. The suspension of actions shall be governed by the provisions of the Civil
Code. (n)
This is mentioned in Rule 18, Section 2 [h] which discusses the possibility of suspension of the
proceedings. Meaning, huwag munang gumalaw ang kaso in suspended animation baah!
Q: And what is the possible good legal ground for the parties to ask for suspension of the hearing?
Meaning, held in abeyance ba. What would be the best possible ground?
A: The best possible ground is the one mentioned in Article 2030 of the New Civil Code:
Art. 2030. Every civil action or proceeding shall be suspended:
1. If willingness to discuss a possible compromise is expressed by one or both parties; or
2. If it appears that one of the parties, before the commencement of the action or proceeding,
offered to discuss a possible compromise but the other party refused the offer.
The duration and terms of the suspension of the civil action or proceeding and similar matters shall be
governed by such provisions of the rules of court as the Supreme Court shall promulgate. Said rules of
court shall likewise provide for the appointment and duties of amicable compounders. (n)
According to Article 2030 of the civil code, if at anytime while the case is going on, one of the parties
would like to discuss a POSSIBLE AMICABLE SETTLEMENT OR COMPROMISE, they can ask for the
suspension of proceedings. Why? The court of the law favors compromises or amicable settlements in
civil cases.
So at anytime that one party expresses its desire to settle, even in the middle of the case, the court is
authorized to suspend the action to give the parties opportunity to settle because of the policy of the
law to encourage the parties to settle amicably.
That is why even former U.S. President Lincoln, who is more remembered as president rather than as a
lawyer, was quoted, Discourage litigation. Persuade your neighbor to compromise whenever you can.
Point out to them how the nominal winner is often the real loser in fees, expenses and waste of time. As
a peace-maker [Long Live the PeaceMakers!], the lawyer has the superior opportunity of being a good
man. There would still be business enough.
Meaning, aregluhin ba hanggang maari, you better settle. When you settle, nobody is loser and nobody
is winner. Both of you win. Walang masakit ang loob ba. And marami pang negosyo, marami pang kaso.
Do not make such money out of one case. If you can settle, i-settle muna. Huwag mong sabihing sayang
iyong income dahil marami pang kaso na darating. That was what he said.
Now, of course, what happens if the party cannot agree to settle? Well, the procedure is, let the trial go
on. That is why in the 1992 case of
GOLDLOOP PROPERTIES, INC. vs. COURT OF APPEALS 212 SCRA 498 [1992]
FACTS: The parties in a civil action manifested the possibility of submitting amicable settlement. The
court gave them 15 days to submit their compromise agreement. 15 days passed, no amicable
settlement was submitted by the parties. With that, the court dismissed the case.
ISSUE: Was the court correct in dismissing the case when the parties cannot settle?
HELD: The dismissal is WRONG. Since there is nothing in the Rules that imposes the sanction of
dismissal for failing to submit a compromise agreement, then it is obvious that the dismissal of the
complaint on the basis thereof amounts no less to a gross procedural infirmity. While a compromise is
encouraged, very strongly in fact, failure to consummate one does not warrant any procedural sanction,
much less an authority to jettison a civil complaint. What the court should have done was to continue
the action.
In other words, why should you dismiss the complaint when the parties cannot settle? By that,
technically, natalo ang plaintiff. Kung hindi magkaareglo, then go on with the trial. You have no authority
to dismiss the case simply because the parties cannot settle.
However, there are certain matters which cannot be the subject of compromise. Practically, compromise
is allowed on anything under the sun, except certain matters such as those mentioned in Article 2035.
Q: What are the matters that cannot be the subject of compromise? A: Under the Article 2035, New Civil
Code, the following:
(1) The civil status of persons; (whether legitimate or illegitimate)
(2) The validity of a marriage or a legal separation; (w/n a marriage settlement exists)
(3) Any ground for legal separation;
(4) Future support; (always depends on the means of the party giving support)
(5) The jurisdiction of courts;
(6) Future legitime.
So you cannot agree on these. You cannot compromise as a legitimate when in fact you are illegitimate.
Where is the basis of that? You cannot compromise that the marriage is valid when in fact it is not, or it is
null and void. These things cannot be the subject of agreement.
Sec. 9. Judge to receive evidence; delegation to clerk of court. The judge of the court where the case is
pending shall personally receive the evidence to be adduced by the parties. However, in default or ex
parte hearings, and in any case where the parties agree in writing, the court may delegate the
reception of evidence to its clerk of court who is a member of the bar. The clerk of court shall have no
power to rule on objections to any question or to the admission of exhibits, which objections shall be
resolved by the court upon submission of his report and the transcripts within ten (10) days from
termination of the hearing. (n)
The Rules now expressly allows the court to delegate the reception of evidence to the clerk of court who
must be a member of the bar. Thereby confirming the doctrine in GOTINGCO vs. CFI OF NEGROS
OCCIDENTAL and junking forever the ruling in LIM TANHU vs. REMOLETE because in the case of
REMOLETE, it was ruled that the judge cannot delegate the reception of evidence to the clerk of court.
Now, puwede na.
A good example is DEFAULT. But actually, it could also be a case where the parties agreed in writing or
other cases where it can be heard ex-parte other than default. Because there are many cases na to my
mind that the judge does not really need to be there listening.
Like for example, a petition for the issuance of lost or transfer of certificate yung titulo mo nawala
your title is lost or you misplaced it and you will prove na nawala. That should be heard in
court but to my mind that is not a controversy, eh because there is only one party there. So it is possible
for the court to delegate that to the clerk of court in order that they (judges) can attend to other
controversial cases.
Now, please connect this provision with Section 3 of Rule 9 on Default:
Sec. 3. Default; declaration of. - If the defending party fails to answer within the time allowed therefor,
the court shall, upon motion of the claiming party with notice to the defending party, and proof of
such failure, declare the defending party in default. Thereupon, the court shall proceed to render
judgment granting the claimant such relief as his pleading may warrant, unless the court, in its
discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to
the clerk of court. (1a, R18)
So in default hearing, it is now the discretion of the court either to conduct an ex-parte reception of
evidence which can be delegated to the clerk of court, or the court may render judgment based on the
pleadings. So, it is optional.
Now, to my mind, kung ang case is a collection case or any other cases which are simple, pag na- default
ang defendant, puwede na decision dayon. Pero kung controversial cases, do not render judgment based
on the pleadings. You better conduct an ex-parte reception of evidence and you may delegate the
reception of evidence to the clerk of court.
Yun iyong mga out of ordinary cases which are really controversial where the court should require the
presentation of evidence. Pero yong mga kaso na not so complicated, no need of reception of evidence
in order to expedite the process of adjudication.
Rule 31
CONSOLIDATION OR SEVERANCE
SECTION 1. Consolidation. - When actions involving a common question of law or fact are pending
before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it
may order all the actions consolidated; and it may make such orders concerning proceedings therein as
may tend to avoid unnecessary costs or delay. (1)
To consolidate cases is to join 2 or more cases together as distinguished from separate trial where the
different claims are tried separately. So, separate trials pag-hiwa-hiwalayin. Consolidation
pagsasama-samahin.
Q: When is consolidation of actions proper? A: Consolidation is proper:
1.) when two or more actions involve the same or a common question of law or fact; and
2.) the said actions are pending before the same court. (Section 1, Rule 31; PAL vs. Teodoro, 97 Phil. 461)
First requisite: TWO OR MORE ACTIONS INVOLVE THE SAME OR A COMMON QUESTION OF LAW OR
FACT
Did you notice that phrase two or more actions involve the same or a common question of law or
fact? That phrase seemed to be familiar. Common question of law or fact, where did we meet that question of law or fact. This is to economize the procedure if the evidence will be presented only once.
requirement before? That is in joinder of causes of action two or more causes of action can be joined in
one pleading if they involve a common question of fact or law. Rule 3, Section 6:
SEC. 6 Permissive joinder of parties All persons in whom or against whom any right to relief in
respect to or arising out of the same transaction or series of transactions is alleged to exist, whether
jointly, severally, or in the alternative, may, except as otherwise provided in these rules, join as
plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to
all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders
as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in
connection with any proceedings in which he may have no interest.
The phrase answers the questions:
Q: When may 2 or more parties be joined together in one complaint, either as co-plaintiffs or co-
defendants?
A: There must be a common question of fact or law involved in their causes of action.
Q: When may actions be consolidated?
A: One of the requisites is: when the actions involve a common question of law or fact.
In other words, there must be a connection somewhere between the rule on Consolidation of actions in
Rule 31, with the rule on Permissive Joinder of Parties in Rule 3.
When we were in Rule 3, an EXAMPLE was given: Suppose 30 people were riding on a bus which met an
accident and all the plaintiffs were injured. After the incident, the 30 of them decided to file claims for
damages against the bus company. They hired the same lawyer.
Q: Can the lawyer file 30 complaints for each plaintiffs? A: YES.
Q: Can the lawyer file only one complaint naming as co-plaintiffs the 30 injured passengers?
A: YES, that is permissive joinder of parties which is encouraged to expedite litigation, to avoid
multiplicity of suits, to economize the procedure or avoid repetition of evidence. There are the
justification for permissive joinder of parties in Rule 3 Section 6 but they can only join one complaint if
they have the same lawyer.
Q: But suppose the 30 passengers were injured and after their discharge from the hospital the 30 of
them hired separate lawyers.?
A: There can be no joinder of parties. You cannot join the parties in one complaint because each
plaintiff is represented by a different lawyer.
In this case, there should be 30 complaints filed lets say, in the RTC of Davao City, and they are raffled to
different branches or judges. The defendant might feel that he would rather have the 30 cases tried
together. Defendant says, This is difficult. Imagine 30 cases sa 30 salas? Iba-ibang courts. My witnesses
would have to testify 30 times because there are 30 separate complaints.
Q: Can the 30 cases be joined together para isang judge na lang?
A: YES. The lawyer for the bus company can file a motion under Rule 31, Section 1 to consolidate the
actions. Meaning, the 30 cases should be raffled and assigned to only one judge, there being a common
Thus, every time when the case is called, the 30 cases would be tried together. Para ka na ring nag-
permissive joinder of parties.
The purpose of consolidation is to achieve the same effect of permissive joinder of parties under Rule 3,
Section 6. You end in having only one case, kaya lang 30 complaints are to be tried together. That is why
there is a connection between consolidation and permissive joinder of parties.
Second Requisite: THE SAID ACTIONS ARE PENDING BEFORE THE SAME COURT
Q: In the example above, suppose one passenger filed his case in Davao City, another passenger filed his
case in Tagum because he resides there, and another files his case in Mati, can there be consolidation of
their cases?
A: NONE. You cannot consolidate because they are pending in different courts in different
provinces. The law says it must be in the same court.
Take note that cases are consolidated because it will expedite their termination, thereby economizing on
the procedure. Cases are consolidated not only when the cases are before the trial court. There are many
times when cases are consolidated or joined together even when they are already on appeal, provided,
there is a common question of law or fact.
If we look at the SCRA, sometimes the decision involves 2 or 3 cases. The caption sometimes has 3 or
more cases, but theres only 1 decision. And these cases are coming from different parts of the country.
Why are these cases joined before the SC? Because there is a common question of fact or law or legal
issue. So, even in the SC, cases are consolidated and decided together for the first time. Ang tawag dyan
is COMPANION CASES because the same issues are being raised in the petitions.
CONSOLIDATION under RULE 31 vs. CONSOLIDATION OF CRIMINAL ACTIONS under RULE 119
Now, there is also a provision in the rules on Criminal Procedure on consolidation of criminal actions
under Rule 119, Section 14:
SEC. 14. Consolidation of trials of related offenses. - Charges for offenses founded on the same facts, or
forming part of a series of offenses of similar character may be tried jointly at the court's discretion.
(Rule 119)
Q: Distinguish Consolidation of civil actions from Consolidation of criminal actions.
A: The following are the distinctions:
1.) In civil cases, one or more causes of action may be embodied in one complaint because when there is
permissive joinder, there is automatic consolidation also; whereas
In criminal cases, only one offense can be the subject of one complaint or information. consolidation of
criminal actions is exclusively for joint trial;
Q: Can you file one complaint or information embodying two or more crimes?
A: NO. You cannot. That is what you call duplicitous complaint or information.
There is no such thing as joinder of crimes. Therefore, the so-called consolidation of criminal actions is
not actually filing one information but it is only for the purpose of joint trial.
2.) In civil cases, the opposite of consolidation is severance under Section 2; whereas
In criminal cases, the opposite of consolidation is separate trial. In reality, there is actually no
consolidation of criminal cases. There is only joint trial of criminal cases.
Under the rules on Criminal Procedure the accused may reserve the right to file the civil action
separately when the criminal action is filed, the civil action is deemed instituted unless the offended
party will make a reservation to file it separately. Or, when the civil action was instituted ahead, the
subsequent filing of the criminal case will mean there is no more civil action there. And Section 2 of Rule
111, suppose the offended party made a reservation to institute a civil action and a criminal case is filed,
he cannot file the civil action thats the rule. He must wait for the outcome of the criminal case. The
criminal case enjoys priority.
Q: What happens if na-una na-file yung civil action?
A: According to Section 2, Rule 111 from the moment the criminal case is filed, the trial of the civil case is
suspended to wait for the outcome of the criminal case.
Q: Is this prejudicial to the offended party? What is the remedy of the offended party?
A: There is a way out according to Section 2, Rule 111. The first thing for him to do is to file a petition to
consolidate the trial of the criminal and civil case for them to be tried together and the evidence already
presented in the civil case is deemed automatically reproduced in the criminal case. This is what you call
the consolidation of the civil and criminal action under Section 2, Rule 111:
Nevertheless, before judgment on the merits rendered in the civil action, the same may, upon motion
of the offended party, be consolidated with the criminal action in the court trying the criminal action
(Section 2, Rule 111)
Q: Is this consolidation mandatory?
A: NO. It is permissive. Actually, the offended party is the one to initiate this because if not, then he has
to wait for the criminal case to be terminated before he can file the civil case.
Q: Can you move to consolidate in one court the criminal and the civil case when actually the degree of
proof required in one case is different from the degree of proof required in another case?
A: That was answered in the affirmative in the case of
CAOS vs. PERALTA 115 SCRA 843
FACTS: This case originated in Digos, Davao del Sur, involving the late Dr. Rodolfo Caos, who owned the
Caos Hospital there. The respondent here was former CFI Judge Elvino Peralta. There was an incident
which led to the filing of a criminal case by A against
B. A reserved the right to file a separate civil action under the rules on criminal procedure. A filed a
separate civil case, but arising out of the same incident. Both of the cases were assigned to Judge Peralta.
When Judge Peralta noticed that the 2 actions arose out of the same incident and the accused in the
criminal case is also the defendant in the civil case, and the offended party in the criminal case is the
plaintiff in the civil case, he ordered the consolidation of the 2 cases under Rule 31, Section 1, to be tried
together.
Dr. Caos objected to the consolidation because according to his lawyer, consolidation of cases under
Rule 31, Section 1 applies only when there are 2 or more civil cases to be considered.
ISSUE #1: Was the consolidation proper?
HELD: The order of consolidation is correct. Rule 31, Section 1 allows the consolidation of a criminal and
civil case because of the fact that there is a common question of fact or law between them and that they
are pending before the same court. As a matter of fact, before the same judge.
ISSUE #2: How do you reconcile these cases because the degree of proof in the criminal case is not the
same in the civil case?
HELD: The consolidation was proper under Rule 31 because there is a common question of fact and law.
They can be consolidated but for purposes of decision, the court will now apply two (2) different criteria:
Proof beyond reasonable doubt in the criminal case and preponderance of evidence in the civil case. So
there is no incompatibility.
SEC. 2. Separate trials. - The court, in furtherance of convenience or to avoid prejudice, may order a
separate trial of any claim, cross-claim, counterclaim, or third-party complaint, or of any separate
issue or of any number of claims, cross-claims, counterclaims, third-party complaints or issues. (2a)
Section 2 is the exact opposite of Section 1. In Section 1, there are 2 or more cases which shall be joined
together for joint trial. In section 2, there is one case with several claims, i.e. counterclaims, cross-claims
and third-party complaints. The rule states that they should be tried together, one after the other, and
then one decision.
So for example, you ask the judge for a separate schedule for your 3rd-party claim. Then there will be a
separate schedule for the 3rdparty complaint rather than following the order of trial under Rule
30. Under the order of trial, I have to wait for my turn to prove my 3rd-party claim. If we follow Rule 30
(order of trial) before it reaches the 3rd-party complaint, matagal masyado.
But under Section 2, the court may grant a separate trial for your 3rd-party claim or permissive
counterclaim especially when there is no connection between my permissive counterclaim with the main
action.
Rule 32
TRIAL BY COMMISSIONER
Trial by commissioner applies when there is something to be tried which requires some technical
expertise, like accounting ba, which the court feels it does not possess, and it will be a waste of time if
everything will be tried in court. So, the court will refer it to a commissioner, You hear that and then you
submit a report. Submit you report, you finding and your recommendation. And that person is known as
a commissioner.
SEC. 1. Reference by consent By written consent of both parties, the court may order any or all of the
issues in a case to be referred to a commissioner to be agreed upon by the parties or to be appointed
by the court. As used in these Rules, the word commissioner includes a referee, an auditor and an
examiner.
This was mentioned when we were talking about pre-trial. This is one of the purpose of a pre- trial. That
is Rule 18, Section 2 [f]: (f) The advisability of a preliminary reference of issues to a commissioner; This
provision is actually referring to Rule 32.
Example #1:
Prof. X and Magneto had continuous transactions. After a long while, their records do not anymore
reconcile. Prof. X filed a case against Magneto on the ground that Magneto has not yet paid an obligation
which is already due. Based on Magnetos records, bayad na lahat. Wala na syang utang. This is a
question of accounting.
The court will have to determine whose records are correct and accurate invoices, receipts, etc must
be presented, which might be hundreds or thousands in volume. This will consume a lot of time of the
court.
The fact that the case involves accounting and the judge is not an accountant (it is different if the judge is
a CPA/lawyer, hindi mahirap), the judge then should appoint an accountant to assist him. That
accountant is known as the commissioner. That will certainly shorten the time and expedite the
resolution of the case.
The judge can then attend to other cases while the parties are presenting all their invoices and receipts
before the accountant/commissioner.
Example #2:
Prof. X and Magneto are owners of adjoining properties. Magneto put up a fence. Prof. X sued Magneto
for forcible entry on the ground that Magneto encroached on Prof. Xs ground, and praying for the
recovery of, say, 200 meters. Magneto contends that he built the fence on the boundary line.
The judge will look at the title of the land: point degree 9, etc.. only surveyor or a
geodetic engineer understands that! In this case, the court may appoint a geodetic engineer, order the
submission of the titles of the lands to him, he will go to the area, sukat-sukatin niya, and he will draw a
sketch and then based on the sketch, he will determine whether or not there is an encroachment. The
appointed surveyor or geodetic engineer is called a commissioner.
This is what you call trial by commissioner. And take note that under Section 1, trial by commissioner is
possible by mutual agreement of the parties. The parties must agree. Either you can agree on who is the
CPA, who is the engineer, or you can ask the court to appoint somebody
Q: Suppose the parties cannot agree, or one party files a motion asking for the appointment of a
commissioner. Is the court still empowered to apply Rule 32?
A. YES, under section 2:
SEC. 2. Reference ordered on motion When the parties do not consent, the court may, upon the
application of either or of its own motion, direct a reference to a commissioner in the following cases:
a.) When the trial of an issue of fact requires the examination of a long account on either side, in which
case the commissioner may be directed to hear and report upon the whole issue or any specific
question involved therein;
b.) When the taking of an account is necessary for the information of the court before judgment, or for
carrying a judgment or order into effect;
c.) When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any
stage of a case, or for carrying a judgment or order into effect.
Section 1 is reference by consent and Section 2 is reference ordered on motion. Paragraphs (a), (b) and
(c) are the good grounds for a motion to appoint a commissioner.
In (a), it requires an examination of a long account. The best example here is example #1 accounting.
In (b) and (c), notice that a commissioner may be appointed for carrying a judgment or order into effect.
Thus, a commissioner, can be appointed not only to help the court render a decision, but also help the
court enforce a decision even if tapos na ang case. Because sometimes, problems arise on how to
implement a decision of the court. Example:
There was a case of boundary dispute. Prof. X built his house near the boundary of his property.
According to his neighbor, Magneto, a portion of the house of Prof. X encroached on his land. About 25
sq. m. lang. Prof. X lost. The court says to Prof. X: You are directed to return the 25 sq. m. which you
occupied. The sheriff will go there to return the 25 sq. m. Which part of the house will the sheriff
demolish? The sheriff returns to the court because he cannot understand and he does not know how to
implement the decision. So, the court solves that by appointing a surveyor as a commissioner to find out
where that 25 sq. m. will be taken from the portion of the house.
Q: Give other examples of trial by commissioner. A: The following:
1.) Special Civil Action of Expropriation under Rule 67 when the court has to determine just
compensation. Under Rule 67, it is mandatory for the court to appoint a commissioner in order to
determine as to how much the value of the property;
2.) Special Civil Action of Partition under Rule 69. When the heirs cannot agree on how to partition a
property under co-ownership, the court may appoint a commissioner to study and submit its report.
So take note that trial by commissioner is allowed not only for the purpose of the court rendering the
judgment but also for the purpose of carrying a judgement or order into effect.
SEC. 3. Order of reference; powers of the commissioner. - When a reference is made, the clerk shall
forthwith furnish the commissioner with a copy of the order of reference. The order may specify or
limit the powers of the commissioner, and may direct him to report only upon particular issues, or to
do or perform particular acts, or to receive and report evidence only, and may fix the date for
beginning and closing the hearings and for the filing of his report. Subject to the specifications and
limitations stated in the order,the commissioner has and shall exercise the power to regulate the
proceedings in every hearing before him and to do all acts and take all measures necessary or proper
for the efficient performance of his duties under the order. He may issue subpoenas and subpoenas
duces tecum, swear witnesses, and unless otherwise provided in the order of reference, he may rule
upon the admissibility of evidence. The trial or hearing before him shall proceed in all respects as it
would if held before the court. (3a, R33)
So a commissioner is parang judge rin. In effect he is an assistant judge. Biro mo, he can issue subpoenas,
swear witnesses, and unless otherwise provided in the order of reference, may rule upon the
admissibility of evidence, of course, subject to the final approval of the court.
Compare that with Rule 30 when there is an ex-parte reception of evidence where the clerk of court is
delegated to receive evidence. But the clerk of court cannot rule on the admissibility of evidence.
To my mind, for example, in cases involving accounting, the best commissioner would be a CPA- lawyer
because he knows about the law on evidence and accounting. Kung boundary conflicts naman, the best
commissioner would be a geodetic engineer-lawyer. However, you rarely find that combination.
SEC. 4. Oath of commissioner. - Before entering upon his duties the commissioner shall be sworn to a
faithful and honest performance thereof. (14, R33)
SEC. 5. Proceedings before commissioner. - Upon receipt of the order of reference and unless
otherwise provided therein, the commissioner shall forthwith set a time and place for the first meeting
of the parties or their counsel to be held within ten (10) days after the date of the order of reference
and shall notify the parties or their counsel. (5a, R33)
SEC. 6. Failure of parties to appear before commissioner. - If a party fails to appear at the time and
place appointed, the commissioner may proceed ex parte or, in his discretion, adjourn the proceedings
to a future day, giving notice to the absent party or his counsel of the adjournment. (6a, R33)
SEC. 7. Refusal of witness. - The refusal of a witness to obey a subpoena issued by the commissioner or
to give evidence before him, shall be deemed a contempt of the court which appointed the
commissioner. (7a, R33)
EXAMPLE: I, as a commissioner, subpoenaed you and you will not show up. I will report you to the court
which appointed me and the court which appointed me will declare you in contempt of court.
Remember, the commissioner is acting by authority of the judge. Thats why he has powers under the
law.
SEC. 8. Commissioner shall avoid delays. - It is the duty of the commissioner to proceed with all
reasonable diligence. Either party, on notice to the parties and commissioner, may apply to the court
for an order requiring the commissioner to expedite the proceedings and to make his report. (8a, R33)
The commissioner shall expedite the proceedings. He should hurry up the report.
Sec. 9. Report of commissioner. - Upon the completion of the trial or hearing or proceeding before the
commissioner, he shall file with the court his report in writing upon the matters submitted to him by
the order of reference. When his powers are not specified or limited, he shall set forth his findings of
fact and conclusions of law in his report. He shall attach thereto all exhibits, affidavits, depositions,
papers and the transcript, if any, of the testimonial evidence presented before him. (9a, R33)
SEC. 10. Notice to parties of the filing of report. - Upon the filing of the report, the parties shall be
notified by the clerk, and they shall be allowed ten (10) days within which to signify grounds of
objections to the findings of the report, if they so desire. Objections to the report based upon grounds
which were available to the parties during the proceedings before the commissioner, other than
objections to the findings and conclusions therein set forth, shall not be considered by the court unless
they were made before the commissioner. (10, R33)
Of course, the parties are given a copy of the report. And if it is against you, you can question the
findings of that commissioner. Sometimes, it is very difficult because there is already a court appointed
commissioner but you have to get another CPA to check on his report.
SEC. 11. Hearing upon report. - Upon the expiration of the period of ten (10) days referred to in the
preceding section, the report shall be set for hearing, after which the court shall issue an order
adopting, modifying, or rejecting the report in whole or in part, or recommitting it with instructions, or
requiring the parties to present further evidence before the commissioner or the court. (11a, R33)
When the commissioner files his report with the court, the court will now schedule it for hearing. The
parties will be furnished copies and during the hearing, if you do not agree with the report, you can
present objections thereto or criticize the report. You can defend or attack it. The court will then
determine whether to accept the report or not.
Thats why under Section 11, the court shall issue an order adopting, modifying, rejecting the report, in
whole or in part, or recommitting (ibalik) it to the commissioner with instruction, or requiring the parties
to present further evidence. The court is not bound 100% to swallow everything in the report. But the
court rarely rejects the report of the commissioner, unless talagang there is no basis for it. Chances are,
when the report has support, talo ka na. Although it is not conclusive.
Now take note that when the court approves a report, the findings of the commissioner becomes the
findings of the court.
Q: So, can the findings of the commissioner on question of fact be questioned by the parties?
A: YES, under Section 11.
Q: Is there an exception that the finding of the commissioner on factual issues become final and no
longer be questioned?
A: YES, under Section 12:
SEC. 12. Stipulations as to findings. - When the parties stipulate that a commissioner's findings of fact
shall be final, only questions of law shall thereafter be considered. (12a, R33)
This is the only instance where you cannot question the commissioners report when there is already
an agreement beforehand that the findings of fact by the commissioner are final, we accept. So the
principle of estoppel applies in this case and only questions of law will then be considered. Meaning,
factual issues are binding upon the parties.
SEC. 13. Compensation of commissioner. - The court shall allow the commissioner such reasonable
compensation as the circumstances of the case warrant, to be taxed as costs against the defeated
party, or apportioned, as justice requires. (13, R33)
Q: Is the commissioner entitled to compensation?
A: YES, of course. Mahirap na trabaho ito. Imagine you will hire a reputable CPA tapos walang bayad?
Sinong papayag niyan?
Q: How is the commissioner paid?
A: To be taxed as costs against the defeated party, or apportioned. In most cases it is apportioned 50-
50 [isa gatos tanan!]
Rule 33
DEMURRER TO EVIDENCE
Q: Define demurrer to evidence.
A: Demurrer to evidence is a motion to dismiss filed by the defendant after the plaintiff had rested his
case, on the ground of insufficiency of evidence. (Ballentines Law Dict., 2nd Ed., p. 358)
SEC. 1. Demurrer to evidence. - After the plaintiff has completed the presentation of his evidence, the
defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has
shown no right to relief. If his motion is denied, he shall have the right to present evidence. If the
motion is granted but on appeal the order of dismissal is reversed he shall be deemed to have waived
the right to present evidence. (1a, R35)
Now, there is a similar rule in criminal procedure under Rule 119, Section 23 demurrer to evidence in
criminal cases. Rule 33 is demurrer to evidence in civil cases.
DEMURRER TO EVIDENCE IN CRIMINAL CASES (Review)
Q: By way of review what is the rule on demurrer to evidence in criminal cases all about? What is the
procedure on demurrer in criminal cases?
A: In the rules on criminal procedure: Trial. The prosecution presents evidence to prove the crime and
that the accused committed the crime. After that, tapos na the prosecution has rested. It is now the
turn of the accused to present evidence to prove his defense. Alright, thats the procedure.
But under the rules on demurrer to evidence in criminal cases, the accused, instead of presenting
evidence, may opt to file instead a demurrer. It is a motion by the accused to dismiss the criminal case on
the ground that the prosecution failed to prove his guilt. Remember that under the Constitution, the
accused is presumed innocent until his guilt is proven. It is the burden of the prosecution to prove his
guilt, to destroy the presumption of innocence.
Now, suppose the prosecution fails to prove the crime or the guilt of the accused. There is no evidence.
The evidence is insufficient to prove that the accused is guilty. So, the prosecution failed to meet its
burden. It failed to rebut the presumption of innocence. The accused may ask, why will I present
evidence? Why will I prove my innocence when Im still presumed innocent? Because my guilt has not
been established. Therefore, the accused will file a demurrer. Actually, it is a motion to dismiss
challenging the sufficiency of the evidence for the prosecution.
SEC. 23. Demurrer to evidence. After the prosecution rests its case, the court may dismiss the action
on the ground of insufficiency of evidence
(1) on its own initiative after giving the prosecution the opportunity to be heard or
(2) upon demurrer to evidence filed by the accused with or without leave of court.
If the court denies the demurrer to evidence filed with leave of court, the accused may adduce
evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused
waives the right to present evidence and submits the case for judgment on the basis of the evidence
for the prosecution. (15a)
The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be
filed within a non-extendible period of five (5) days after the prosecution rests its case. The prosecution
may oppose the motion within a non-extendible period of five (5) days from its receipt.
If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible
period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within a
similar period from its receipt.
The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall
not be reviewable by appeal or by certiorari before judgment. (n)
It is now emphasized in Section 23, Rule 119 that a demurrer may be filed with or without leave of court.
If you file demurrer with or without leave and it is granted, then you have no problem because the
accused will be acquitted.
The problem is, if your demurrer is denied. Meaning, the court says that there is sufficient evidence to
prove at least the guilt of the accused. If the demurrer was filed with prior leave of court and it is
subsequently denied, the accused is allowed to present evidence to prove his defense.
But if he filed the demurrer without prior leave of court and the demurrer is denied, then you are already
convicted because the accused has forfeited his right to present evidence. It is practically equivalent to a
waiver of his right to present evidence. So conviction automatically follows.
NOTE: Under the new rules on Criminal Procedure, when the accused will file a leave of court to file a
demurrer, he must specifically state the grounds. (c.f. Rule 119, Section 23, third paragraph)
Alright, that is in criminal cases. There is a similar rule in civil cases, Rule 33.
DEMURRER TO EVIDENCE IN CIVIL CASES
Q: Under the Rule on Trial, who presents evidence first?
A: It is the plaintiff. The plaintiff presents evidence to prove his cause of action. He must prove his case
or his claim by preponderance of evidence.
Q: Suppose after the plaintiff has rested, the plaintiff has not proven his cause of action?
A: Im the defendant, why will I prove my defense when you have not proven your claim? So, instead of
presenting evidence, the defendant may move to dismiss the complaint on the ground of insufficiency of
evidence and that is known as the demurrer.
To borrow the language of the law, after the plaintiff has completed the presentation of his claim, the
defendant may move for dismissal on the ground that upon the facts and the law, the plaintiff has shown
no right to relief. Meaning, you have not proven your cause of action by preponderance of evidence.
Q: Now, suppose the defendant filed that motion to dismiss (demurrer) but the court disagrees with the
defendant. In the opinion of the court, plaintiff had presented sufficient evidence to prove his cause of
action. Meaning, the motion is denied. What will happen now?
A: Defendant will now present evidence to prove his defense. That is why under Section 1, If his motion
is denied, he shall have the right to present evidence.
So, no harm done no? Because if I will file my motion to dismiss and it is denied, I will be given my right
to present my side. So, there is no prejudice on the part of the defendant by filing a motion to dismiss
and his motion to dismiss is denied. What is risky is when your motion is granted.
If the motion is granted but on appeal the order of dismissal is reversed he shall be deemed to have
waived the right to present evidence.
Q: Suppose the court agrees with the defendant and his motion is granted. In other words, the
defendant has succeeded in dismissing the complaint without even presenting his own side I won a
boxing bout without even throwing a single punch. What will happen now?
A: The court will dismiss the case. BUT if plaintiff appeals to the CA and insists that his evidence is
sufficient to prove his cause of action, therefore the order of the dismissal by the RTC is wrong, and CA
agrees with the plaintiff that the plaintiffs evidence is sufficient to prove his claim the CA will reverse
the order of dismissal. The CA will immediately now decide the case in favor of the plaintiff and the
plaintiff will automatically win.
Q: The defendant may argue: Well, the order was reversed. Eh di ibalik ang kaso. Lets go back to the
RTC and let me present my side. Is the defendant correct?
A: NO. Under Section 1, if your demurrer is granted by the trial court and is reversed on appeal, the
defendant loses forever his right to present his evidence. Therefore defendant has no more right to
present his side. That is tantamount to saying the defendant automatically loses the case.
So, that is what a demurrer in civil cases is all about. Very risky no? If you file a demurrer and your
motion is denied, Okay lang no prejudice I will present my evidence. You do not waive your right to
present evidence. BUT if the court agrees with you and grants your motion, that is the start of your
headache. In other words, if the plaintiff appeals, you better pray that the appellate court will sustain or
affirm the order of dismissal. Otherwise if it is reversed, talo ka na automatically and you cannot say,
Alright, ibalik natin ang kaso. Lets return the case to the RTC because I will now present my side. No,
you have already waived it.
Favorite BAR QUESTION: How do you distinguish the rule on demurrer of evidence in civil cases with the
rule of demurrer in criminal cases?
A: The following are the distinctions:
1. In CIVIL cases when the demurrer is denied, the defendant will now present his evidence to
prove his defense because the defendant does not waive his right to present in the event the demurrer is
denied; whereas
In CRIMINAL cases, if the demurrer of the accused is denied the accused is no longer allowed to present
evidence if he had no prior leave of court;
2. In CIVIL cases, if the defendants demurrer is granted and the case is dismissed and the
plaintiff appeals to the appellate court and on appeal the court reverses the order of dismissal, the
appellate court renders judgment immediately in favor of the plaintiff. Goodbye! talo na ang
defendant. There is no more remanding. The defendant loses his right to present evidence; whereas
In CRIMINAL cases, if the demurrer is granted, there is no more appeal by the prosecution because the
accused has already been acquitted. Otherwise, there will be a case of double jeopardy;
3. In CIVIL cases, the court cannot on its own initiative, dismiss the case after the plaintiff rests
without any demurrer by the defendant. There is no such thing as motu propio demurrer; whereas
In CRIMINAL cases, the court may dismiss the action on its own initiative after giving the prosecution the
chance to present its evidence.
In both cases, the motion is raised only after the prosecution or the plaintiff has presented his case and
the ground is based on insufficiency of evidence.
Take note that under Rule 9 of the Old Rules of Court, defenses and objections not pleaded either in a
motion to dismiss or in the answer are deemed waived. Among the exceptions (lack of jurisdiction, res
adjudicata, etc.) is when there is no cause of action. Meaning, the ground of no cause of action cannot
be waived. The same can be raised at any stage during the trial or even on appeal.
Now, such ground is not anymore found under the New Rules. What does it mean? Do you mean to tell
me that such ground is waivable now? NO. The ground of no cause of action is now incorporated under
Rule 33, such that during the trial when there is really no cause of action, your remedy is to file a
demurrer to evidence under Rule 33. So there is no need to refer to Rule 9 anymore.
Q: One thing, what is the difference between the no cause of action under Rule 16 and the no cause
of action under Rule 33?
A: Under Rule 16, the ground of no cause of action is based on the complaint, while under Rule 33, the
ground of no cause of action is based on the plaintiffs evidence.
NOTE: If the complaint states cause of action, the defendant cannot file a motion to dismiss under
Section 1[g], Rule 16 because he hypothetically admits the allegations in the complaint. So they have to
go to trial. Now, if during the trial, the plaintiff failed to prove his cause of action (meaning, there is really
no cause of action), it is now proper for the defendant to file a motion to dismiss on the ground of
insufficiency of evidence under Rule 33, and not under Rule 16 because in the first place, the plaintiffs
complaint states cause of action.
 ENOJAS vs. COMELEC
283 SCRA 229 [1997]
HELD: The motion to dismiss on the ground of jurisdiction can be easily be differentiated from a motion
to dismiss on demurrer to evidence in that, in the latter case, the movant admits the truth or factual
allegations in the complaint and moves for the dismissal of the case on the ground of insufficiency of
evidence. The legal effect and consequence of a demurrer to evidence is that in the event that the
motion to dismiss on demurrer to evidence is granted and the order of dismissal is reversed on appeal,
the movant loses his right to present evidence in his behalf.
However, in a motion to dismiss on the ground of lack of jurisdiction, the movant does not lose his right
to present evidence.
It likewise bears stressing that a demurrer to evidence under Rule 33 is in the nature of a motion to
dismiss on the ground of insufficiency of evidence and is presented after the plaintiff rests its case. It
thus differs from a motion to dismiss under Rule 16 which is grounded on preliminary objections and is
presented at the outset of the case, that is before a responsive pleading is filed by the movant and within
the period for the filing thereof.
Rule 34
JUDGMENT ON THE PLEADINGS
SEC. 1. Judgment on the pleadings.- Where an answer fails to tender an issue, or otherwise admits the
material allegations of the adverse party's pleading, the court may, on motion of that party, direct
judgment on such pleading. However, in actions for declaration of nullity or annulment of marriage or
for legal separation, the material facts alleged in the complaint shall always be proved. (1a, R19)
Judgment on the pleadings is an expeditious way of terminating a civil action. There is no more trial and
judgment will be rendered based on what the plaintiff says in his pleadings.
Illustration:
PROBLEM: Plaintiff files a complaint. Defendant files an answer. The answer contains what you call
defenses negative, affirmative defenses. Now, after the defendant files the answer, his issues are
joined. Next step is pre-trial. If the case is not terminated in pre-trial, next step is trial. Thats the
procedure.
But suppose I will file a complaint against you and you file your answer where you admitted everything
that I said in my complaint. All the allegations in the complaint are admitted and no defense was
interposed by the defendant. So, meaning, the defendant filed an answer which contains no defense at
all. Everything is admitted. Should the case go to trial? Should the plaintiff prove his cause of action?
What is there to prove when you admitted everything? So, there is no more trial because everything is
admitted by the defendant.
Q: In the above case, what should the plaintiff do?
A: The plaintiff will now apply Rule 34. He will file a motion in court which is known as
Judgment on the Pleadings. He will ask the court to render judgment based on what the complaint says
and what the answer says. No more evidence. Eto ang sabi ng complaint, Oh! You borrowed money,
and you did not pay. Sabi ng answer, admit! admit! admit! Oh, ano pa? What is there to be tried? You
admitted everything, so the court will now decide! You can render a decision based on what the
complaint says and what the answer says and the court will immediately render judgment for the
plaintiff. So wala ng trial.
Rule 34 is one of the procedures or remedies under the Rules of Court for the prompt expeditious
resolutions of civil actions one of the fastest ways of resolving a civil dispute because plaintiff files the
complaint, defendant files his answer, plaintiff asks for judgment and the case is decided. No more pre-
trial, no more trial. Why? There is nothing to try kasi wala ka mang depensa. Everything that I say in my
complaint you admit.
Q: Under Rule 34, what are the grounds for Judgment on the Pleadings?
A: The following are the grounds:
1.) When an answer fails to tender an issue; or
2.) When an answer otherwise admits all the material allegations of the adverse partys pleading.
Q: When does an answer fails to tender an issue?
A: An answer fails to tender an issue:
1.) when it neither admits nor denies the allegations in the complaint;
It neither admits nor denies. So, you cannot do that. Either you admit or you deny the allegations in the
complaint. You cannot say, Defendant does not admit, he does not also deny the allegation. Meaning
you are trying to be evasive. That is not allowed.
2.) when all the denials in the answer are general denials and not specific.
A denial is general if the pleader does not state the facts relied upon in support of his denial
Defendant denies the allegations in paragraphs 1, 2, 3, 4, 5, 6, 7 and 8. That is an answer which does
not tender an issue because all the denials are general, or no knowledge or information sufficient to
form a belief. Just like what happened in the case of CAPITOL MOTORS vs. YABUT.
So if an answer contains evasive allegations, denials which are general, it does not also tender any issue
aside from the fact that it also admits the law. Consider it as an admission of the material allegations of
the complaint. Therefore plaintiff will now move for an immediate judgment in his favor. That is why it is
called judgment on the pleadings.
Now, judgment on the pleadings has already been mentioned in the previous rule that we took up. Lets
go back to pre-trial in Rule 18 because there is a mention there on judgment on the pleadings. Section 2,
Rule 18:
SEC. 2. Nature and purpose. - The pre-trial is mandatory. The court shall consider:
xxx
g) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the
action should a valid ground therefor be found to exist.
xxx
In other words, during the pre-trial, the defendant there and based on his pleadings, meron siyang
defense. But during the pre-trial, he makes now an admission, Actually, your honor, wala akong
depensa ba. I have no defense. Court: Ah, wala ka ba? Okay. Judgment on the pleadings! tapos!
Or, another example: Collection case. According to the defendant in his answer the obligation is paid.
And then during the trial, the court asks the defendant, Are you serious that the obligation is paid?
Defendant: Actually your honor, wala pa. Hindi pa bayad. Court: Ganoon ba? O plaintiff, what do you
say? Plaintiff: I move for judgment on the pleadings. Tapos! The case is finished because the
admission is made in the course of the pre-trial that he has no valid defense.
EXCEPTIONS TO THE RULE ON JUDGMENT ON THE PLEADINGS
Q: Give the exceptions to the rule on judgment on the pleadings. A: Judgment on the pleadings does not
apply:
1.) in actions for declaration of nullity or annulment of marriage; or
2.) in actions for legal separation;
3.) when the issue is the amount of unliquidated damages because there must always be evidence
to prove such amount (Rule 8, Section 11);
4.) when only conclusions of law are being alleged.
So, judgment on the pleading is not allowed on actions for nullity of marriage or for legal separation. It
cannot be resolved based only on what the complaint and what the answer says. Otherwise, if we will
allow Rule 34 in that kind of action, then it is very easy for husbands and wives to have their marriages
annulled or in obtaining a legal separation. So, the husband and the wife, they quarrel and they decide:
O, sige. I-admit mo lahat para judgment on the pleadings na! Eh, di tapos!
My golly! The court will never allow that to succeed simply because the other party admitted everything.
That would be a license for collusion. Its not as easy as that. Walang judgment on the pleading sa
marriage. In other words, no allegation is deemed admitted even if the other party admits. You still have
to prove or disprove.
So, the premise is similar to Rule 9 on Defaults. There is no default judgment in actions for legal
separation based on the same principle eh! It is a one-sided story and collusion or connivance between
the parties is possible.
-oOo-
Rule 35
SUMMARY JUDGMENTS
Rule 35 is another important rule Summary judgments. The rule on summary judgments and judgment
on the pleadings are similar no? They are related to each other. I would say they are brothers. Rule 34
and Rule 35, magkapatid yan silang dalawa because they have a common denominator. Rule 35 is also a
speedy procedure for the early resolution or decision in a civil case. The same concept but with a
difference. In Rule 34 on judgment on the pleadings, the answer filed by defendant has put up no
defense at all. No defense has been raised or the answer admits all the material allegations in adverse
partys pleadings. In Rule 35, the answer filed by defendant puts up a defense but the defense is not a
genuine defense. Meaning, it is invoked only for the purpose of delay and the defense is not actually
seriously being interposed.
Q: Define summary judgment procedure.
A: Summary judgment procedure is a method for promptly disposing of actions in which there is no
genuine issue as to any material fact. (De Leon vs. Faustino, L-15804, Nov. 29, 1960)
How do we apply summary judgment?
EXAMPLE: I will file a complaint and your answer invokes defenses, many defenses. But the trouble is
these defenses are not genuine. They are dilatory. They are invoked only for the sake of invoking and
they are not seriously raised. They are just to delay the case.
So, if we go to trial, I will prove my complaint. And when it is your turn, you still lose because you have
no genuine defenses, still you have succeeded in delaying the case. So I would like to get a judgment
immediately in my favor and curb your dilatory tactics by showing that your defenses are fake and
dilatory.
Q: How am I going to do that?
A: I will file a motion for summary judgment under Rule 35 on the ground that there is no genuine issue
to be tried. And under Section 1 and 2, I will attach to my motion for summary judgment affidavits,
admissions, and depositions.
Sec. 1. Summary judgment for claimant. - A party seeking to recover upon a claim, counterclaim, or
cross-claim or to obtain a declamatory relief may, at any time after the pleading in answer thereto has
been served, move with supporting affidavits, depositions or admissions for a summary judgment in
his favor upon all or any part thereof. (1a, R34)
For EXAMPLE: I will file a collection case against you and then you claim that you have paid already. But
in reality, it is not paid. So I know that you are lying. Ikaw naman na defendant, you know also that you
are lying, what you are after is to prolong the case.
Q: As the plaintiff, what should I do?
A: I should execute affidavit stating under oath and under pain of perjury that you have not paid me. I
will attach that to my motion. Well, of course, you know very well that if I file an affidavit by stating that
what you are saying is false, and if I tell a lie, you can file a case of perjury against me. But since I know
that I am correct, I will dare to execute an affidavit under oath. Therefore, since his defense is false, Im
asking for an immediate decision.
Now, if you are the defendant and you received a copy of my motion, you can oppose my motion for
summary judgment where you will say, No! I paid and my defense is genuine! The defendant must also
execute an affidavit to support his position. So you will say under oath that you paid me.
So it will become a battle of affidavits versus affidavits under oath. It is possible that one of us will go to
jail for telling a lie. So tingnan natin kung sinong matapang dito. Kung baga, if your defense is not very
serious and not genuine, chances are, you will not dare to execute an affidavit claiming that you have
paid the obligation. Takot ka man diyan ba. So if you will not execute an affidavit but you still claim that
you have paid me, it is now very obvious that the defense of payment is false and the court will say,
Tama na ang pagsisinungaling! Taob ka na!
That is summary judgment where the court will say, No more trial. The affidavit will take the place of
evidence in court. That is what the rule is all about.
Rule 35 is similar to judgment on pleadings under Rule 34 but the main difference is: In judgment on the
pleadings, the answer does not put up a defense while in summary judgment, here it puts up a defense
but the defense is not genuine it is a false defense which should easily be exposed by way of affidavits
for summary judgment.
Now take note, there is no genuine issue because if you look at the complaint and the answer there is an
issue because the answer alleges payment. That is an issue. But in reality that is a false issue. That is why
it is not a genuine issue.
Some text writers call the law on summary judgment another name it is known as the law on
Accelerated Judgment. Meaning, the process will accelerate, you can easily go to trial. Instead of going to
trial, there is no more trial. The motion for summary judgment will determine who is telling the truth and
who is not telling the truthimmediately. So at least, the delay has been avoided.
What is the example I gave you, no? A party seeking to recover a claim Ako, I will file against you a
case of recovery of an unpaid debt. or cross-claim etc. at any time after the pleading if answer thereto
has been served meaning , after your answer has been served, I will move with supporting affidavits,
depositions or admissions for a summary judgment in my favor.
So my motion for summary judgment must be supported with affidavits, or depositions, or admissions.
These will be the basis unlike in the previous rule (Rule 34), there are no affidavits to support a judgment
on the pleadings. All you have to do is ask the court , Look at the complaints and look at the answer
But here, you will prove that the defense is false and you demolish it by way of affidavits.
Q: Is summary judgment applicable to all kinds of civil actions?
A: YES, because in most cases, defendants will file an answer with defenses but they are all false. In other
words, these defenses are only interposed to delay the case. So, summary judgment is applicable to
accelerate the decision. Thats why it is similar to Judgment on the Pleadings.
Just like in the previous rule (Judgment on the Pleadings) in certain types of cases like declaration of
nullity of marriage, annulment of marriage, legal separation, based on the same principle that there must
always be a trial in these cases, where a ground was established based on the same principle of analogy.
Q: Is Summary Judgment available only to the plaintiff? Can a defendant move for Summary Judgment
against the plaintiff?
A: YES, that is also allowed under Section 2:
Sec. 2. Summary judgment for defending party. - A party against whom a claim, counterclaim, or cross-
claim is asserted or a declaratory relief is sought may, at any time, move with supporting affidavits,
depositions or admissions for a summary judgment in his favor as to all or any part thereof. (2a, R34)
Normally, the party who avails of summary judgment is the plaintiff. But this remedy is not limited to the
plaintiff. The defendant can also file a motion for Summary Judgment against the plaintiff because the
cause of action is sham. SO, if the remedy of Summary Judgment is available to the plaintiff, it can also
be availed by the defendant. How?
EXAMPLE: You file a complaint against me. Of course, your complaint puts up a cause of action, but I
know very well that your cause of action is false, although its very rare, usually it is the defendant who is
delaying the case. Well, I could always file an answer and there would be pre-trial but sabi ko, Matagal
pa iyon! So under Section 2, instead of filing an answer, I can file a motion for Summary Judgment and I
will attach to my motion affidavits to show that the cause of action is not genuine. And if the plaintiff
believes that his cause of action is genuine, he might as well oppose my motion with counter-affidavits.
Now, if you will not, then the court will rule in my favor, dismissing your complaint.
So you notice, Summary Judgment may be availed of by either party either the defense is not genuine
or the cause of action is not genuine.
SEC. 3. Motion and proceedings thereon. - The motion shall be served at least ten (10) days before the
time specified for the hearing. The adverse party may serve opposing affidavits, depositions, or
admissions at least three (3) days before the hearing. After the hearing, the judgment sought shall be
rendered forthwith if the pleadings, supporting affidavits, depositions, and admissions on file, show
that, except as to the amount of damages, there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law. (3a, R34)
If I will file a motion for Summary Judgment, I must set it for a hearing just like any other motion. Now,
generally, if I will file a motion for Summary Judgment, you must be served a copy at least 10 days before
the hearing. Thats an exception to the general rule in Rule 15 (general rule: you are only required to give
the other party 3 days).
The reason is the other party should also be given time to oppose it with affidavits. Thats why you have
to give him a longer period to oppose and if he decides to oppose, he must also file his opposition
together with affidavits but he must furnish me with his copy of opposition at least 3 days before the
hearing.
Under the rule on deposition, I can take the deposition of my own opponent and based on your
deposition, I can prove that your defense is false. So depositions can be used not only during the trial but
to support or oppose a motion for Summary Judgment.
Rule 23, SEC. 4. Use of depositions At the trial or upon the hearing of a motion or an interlocutory
proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be
used against any party who was present or represented at the taking of the deposition, or who had
due notice thereof, in accordance with any one of the following provisions:
xxx
So, depositions can be used at the trial or upon the hearing of a motion.
Q: Give examples of a motion where you can use a deposition to support your motion.
A: The following:
1.) a motion for Summary Judgment. Under Rule 35, the motion should be supported by
affidavits, depositions, etc based on what the other party will admit. And based on Rule 23
Section 4, the deposition of the adverse party may be used for any purpose. So I can use it to
prove that your cause of action or defense is false, or another way of supporting a motion for
Summary Judgment under Rule 35, affidavits, depositions and admissions.
 2.) Rule 26 Request for Admission I can avail of the Mode of the Request for Admission based
on your admissions.
According to Section 3, all the issues which are not genuine can be resolved immediately EXCEPT as to
amount of damages. Meaning the amount of damages to be recovered by the plaintiff cannot be
adjudicated through a motion for Summary Judgment because you still have to present evidence as to
how much really is the damages.
Practically every issue can be resolved summarily except the exact amount of damages. Some people
find this hard to imagine, Paano ba yon? I will file a motion for Summary Judgment and then there will
be a judgment except as to the amount of damages? Ano ba yan?
EXAMPLE: An action for damages based on quasi-delict where I will accuse you of negligence and then
you deny that you are negligent. Now, the issue is: who is negligent and who is not. Suppose I will file
motion for Summary Judgment and the court will decide in my favor. Therefore the I am telling the truth,
the defendant is telling a lie. And then the court will say, Let the case be heard to determine exactly
how much damages the plaintiff is supposed to recover. So there will be a trial but during the trial, I will
just prove how much I am entitled. But the issue of negligence, tapos na, talo ka na, terminated na yung
issue. Damages generally cannot be granted without evidence. You have to support really the exact
amount you are entitled to receive.
If you will notice, the issue as to the fact that damages, especially unliquidated damages,which is also
subject to proof, is also mentioned in Rule 8, Section 11:
Rule 8, SEC. 11. Allegations not specifically denied deemed admitted Material averment in the
complaint, other than those as to the amount of unliquidated damages, shall be deemed admitted
when not specifically denied.
Meaning, how much are you entitled cannot be just given to you even if your opponent will not deny an
allegation. You must still prove it and that is very clear even in Rule 35 summary judgment can be
granted except as to the amount of damages.
SEC. 4. Case not fully adjudicated on motion. - If on motion under this Rule, judgment is not rendered
upon the whole case or for all the reliefs sought and a trial is necessary, the court at the hearing of the
motion, by examining the pleadings and the evidence before it and by interrogating counsel shall
ascertain what material facts exist without substantial controversy and what are actually and in good
faith controverted. It shall thereupon make an order specifying the facts that appear without
substantial controversy, including the extent to which the amount of damages or other relief is not in
controversy, and directing such further proceeding in the action as are just. The facts so specified shall
be deemed established, and the trial shall be conducted on the controverted facts accordingly. (4a,
R34)
Q: Is there such a thing as a motion for partial Summary Judgment?
A: YES. Well, if you say Motion for Partial Summary Judgment, some issues are genuine, some are not. So
the court can decide immediately on the issues which are not genuine but with respect to issues which
are genuine, the law says, trial shall be conducted on the controverted facts summarily under Rule 35 on
the issues which are not genuine.
SEC. 5. Form of affidavits and supporting papers. - Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein. Certified true copies
of all papers of parts thereof referred to in the affidavit shall be attached thereto or served therewith.
(5a, R34)
Q: What are the forms of affidavits under Rule 35? A: The following:
1.) Supporting affidavits to support the motion for Summary Judgment;
2.) Opposing (counter-) affidavits to oppose the motion for Summary Judgment.
Q: Give the requisites of supporting or opposing affidavits to a motion for Summary Judgment. A: The
following:
1.) The affidavit shall be made based on personal knowledge;
2.) It shall set forth such facts as would be admissible in evidence;
3.) The affiant is competent to testify to the matters stated therein; and
4.) Certified true copies of all papers of parts thereof referred to in the affidavit shall be attached
thereto or served therewith.
The affidavits of your witnesses, or your affidavit must be made on personal knowledge and shall set
forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is
competent and the matters stated therein.
What does that mean? Suppose the case will go to trial, so the witness will take the witness stand. He
will testify. When a witness testifies under the Rules on Evidence, there must be a showing that what he
is talking about is known by him. Otherwise, it will be hearsay. And based on the law of evidence, the
testimony is inadmissible. What I will say should be admissible under the law on evidence otherwise my
testimony will not be allowed and I must show that Im in a position to know what Im talking about.
Thats what the witness will have to demonstrate in court. Since in a motion for Summary Judgment,
there is no more trial, there is no more witnesses who will testify in court, what will take the place of a
witness is his affidavit which must also show that the witness has personal knowledge, etc. Meaning,
what you should show during the trial, if you are, they must also be shown in your affidavit.
If your testimony in court is not admissible, because you are telling only what you heard from other
people, then an affidavit which contains the same thing would also be inadmissible. So, in other words,
the affidavit merely takes the place of oral testimony in court.
Q: What procedure is similar where the one who will decide, who will only read the affidavits of both
sides and render a decision?
A: Criminal Procedure: Rule 112 on Preliminary Investigation the fiscal conducts a preliminary
investigation on the affidavits lang. The complainant will submit his affidavit. The respondent will file his
counter-affidavit. Then the fiscal will go over the affidavits and will resolve the issues and determine
whether there is probable cause to file the information or none. So, the resolution is practically based on
affidavits. So walang hearing.
SEC. 6. Affidavits in bad faith. - Should it appear to its satisfaction at any time that any of the affidavits
presented pursuant to this Rule are presented in bad faith, or solely for the purpose of delay, the court
shall forthwith order the offending party or counsel to pay to the other party the amount of the
reasonable expenses which the filing of the affidavits caused him to incur, including attorney's fees. It
may, after hearing, further adjudge the offending party or counsel guilty of contempt. (6a, R34)
Well, of course, the affidavits required by law must be filed in good faith.
EXAMPLE OF AFFIDAVIT IN BAD FAITH: I will file a motion for Summary Judgment against you alleging
that your defense is false and I will support it with affidavit. Ang defendant, malakas ang loob, he
opposed my motion claiming that his defense is true and genuine and he also supported it with
affidavits. Once the opposing party does that, the court will automatically deny my motion. The court is
not in the position now to know who is telling the truth. Both maintaining under oath that he is telling
the truth. So if you oppose my motion with supporting affidavits, the court will deny my motion for
Summary Judgment and the courts says lets go to trial and during the trial, mabisto na naman and it
turned out really that you have no defense, talo ka pa rin.
Q: What is the penalty for you for filing earlier an opposition to my motion supported by affidavits in bad
faith?
A: The court may order you or counsel to pay to me (plaintiff) the amount of reasonable expense which
the filing of affidavits caused me to incur, including attorneys fees. The court may also, after hearing,
adjudge you or your lawyer guilty and I will add what is not found in the law, I will file a case of perjury
against you for executing a false statement.
That is a criminal sanction under the RPC. I can also file a case of disbarment against the lawyer for
assisting in the filing of an affidavit in bad faith.
So in other words, if you execute an affidavit in bad faith, you must be ready to face all these later
damages, contempt, perjury under the RPC and the lawyer to face disciplinary proceedings.
SUMMARY JUDGMENT (Rule 35) vs. JUDGMENT ON THE PLEADINGS (Rule 34)
Their similarity is that, both of them are methods for promptly disposing civil actions, wherein a civil case
can be adjudicated without undergoing any trial.
Q: Distinguish Summary Judgment (Rule 35) from Judgment on the Pleadings (Rule 34). A: The following
are the distinctions:
1.) as to the ground
Summary Judgment is proper if there is no genuine issue of fact to be tried; whereas
Judgment on the Pleadings is proper where there is no issue of fact at all to be tried;
Case: VERGARA, SR. vs. SUELTO, ET AL (156 SCRA 753)
2.) as to how the judgment rendered
Summary Judgment is rendered on the basis of facts appearing in the pleadings, affidavits,
depositions and admissions on file, whereas
Judgment on the Pleadings is rendered on the basis only of the pleadings; (Nagrampa vs. Mulwaney, Etc.,
97 Phil. 724)
3.) as to who can ask for the judgment
Summary Judgment is a remedy available for both claimant and defendant; whereas
Judgment of Pleadings is available only on the claimant because the answer fails to tender an issue.
VERGARA, SR. vs. SUELTO, ET AL 156 SCRA 753
ISSUE: When does an answer fail to tender an issue? When is there no genuine issue?
HELD: Section 1, Rule 19 (now Rule 34) of the Rules of Court provides that where an answer fails to
tender an issue, or otherwise admits the material allegation of the adverse party's pleading, the court
may, on motion of that party, direct judgment on such pleading. The answer would fail to tender an
issue, of course, if it does not comply with the requirements for a specific denial set out in Section 10 (or
Section 8) of Rule 8; and it would admit the material allegations of the adverse party's pleadings not only
where it expressly confesses the truthfulness thereof but also if it omits to deal with them at all.
Now, if an answer does in fact specifically deny the material averments of the complaint in the manner
indicated by said Section 10 of Rule 8, and/or asserts affirmative defenses (allegations of new matter
which, while admitting the material allegations of the complaint expressly or impliedly, would
nevertheless prevent or bar recovery by the plaintiff) in accordance with Sections 4 and 5 of Rule 6, a
judgment on the pleadings would naturally not be proper.
But even if the answer does tender issues and therefore a judgment on the pleadings is not proper
a summary judgment may still be rendered on the plaintiff's motion if he can show to the court's
satisfaction that except as to the amount of damages, there is no genuine issue as to any material fact,
that is to say, the issues thus tendered are not genuine, are in other words sham, fictitious, contrived, set
up in bad faith, patently unsubstantial. The determination may be made by the court on the basis of the
pleadings, and the depositions, admissions and affidavits that the movant may submit, as well as those
which the defendant may present in his turn.
Now, Summary Judgment is related to Rule 17 Section 1 in which summary judgment is first mentioned:
Rule 17, Section 1. Dismissal upon notice by plaintiff. - A complaint may be dismissed by a plaintiff by
filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment.
xxx
Q: Can the plaintiff dismiss his complaint as a matter of right?
A: YES, at any time before the defendant has filed his answer or of a motion for summary
judgment. (Rule 17, Section 1)
The second time that it was mentioned was in Rule 18 Section 2:
Rule 18, Sec. 2. Nature and purpose. - The pre-trial is mandatory. The court shall consider:
xxx
(g) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the
action should a valid ground therefor be found to exist;
xxx
During the pre-trial conference, it is possible for the court to render a judgment on the pleadings under
Rule 34 or a summary judgment under Rule 35. Judgment can be rendered summarily during the pre-
trial.
 DIMAN vs. ALUMBRES 299 SCRA 459 [Nov. 27, 1998]
FACTS: The plaintiff files a motion for summary judgment where he said under oath that the defense is
false. The trial court denied it, A summary judgment is not proper where the defendant presented
defenses tendering factual issues which call for the presentation of evidence. Is the trial court correct.
HELD: Such a ratiocination is grossly erroneous. Clearly, the grounds relied on by the judge are proper
for the denial of a motion for judgment on the pleadings as to which the essential question, as already
remarked, is: are these issues arising from or generated by the pleadings? but not as regards a motion
for summary judgment as to which the crucial question is: issues having been raised by the pleadings,
are those issues genuine, or sham or fictitious, as shown by affidavits, depositions or admissions
accompanying the application therefor? So those are the questions to be answer in a summary
judgment, not whether or not there is an answer.
Errors on principles so clear and fundamental as those herein involved cannot but be deemed so
egregious as to constitute grave abuse of discretion, being tantamount to whimsical or capricious
exercise of judicial prerogative.
Last point to remember: as a General Rule, you cannot secure judgment by motion alone. This is because
a MOTION is defined as any petition for relief other than the relief prayed for in the pleadings. (Rule 15,
Section 1)
A motion prays for relief other than through a pleading. The other way of stating it is, a motion prays for
relief other than through a judgment because a judgment is prayed in a pleading and not in a motion. So
a motion as a rule, cannot pray for immediate judgment.
But there are three (3) known exceptions where a motion can already pray for immediate relief. They
are:
1.) Rule 33 Demurrer to evidence;
2.) Rule 34 Judgment on the Pleadings; and
3.) Rule 35 Summary Judgment.
In those exceptions, the movant is already asking for a judgment which normally is not stated in a
motion.
oOo-
Rule 36
JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF
There are three (3) important stages in a civil action. Q: What are these three (3) stages?
A: The following:
1.) First stage: Issue Formulation Stage
It is the stage in which we are trying to find out what are the issues we are quarreling about. This is done
by filing a complaint, answer to know the defenses, counterclaim, answer to counterclaim, third party
complaint. This is the stage of formulation of issues.
After the last pleading is filed, we go to pre-trial where we will discuss the simplification of issues,
advisability of amending the pleadings, etc. Therefore, during pre-trial we are still formulating issues to
be tackled. When the pre-trial is terminated and there is no settlement, we proceed to stage 2:
2.) Second stage: Stage of Proof (Rule 30 on Trial)
We are now on trial where the parties will now offer their evidence. It is called the stage of proof.
Plaintiff presents evidence to prove his claim. Defendant presents evidence to prove his defense. Parties
present rebutting evidence. So this is the stage where the parties will prove their respective contentions.
After the case has been tried and everything has been argued under Rule 30, the last stage is. [sound
plis tadadadan!tadan!]
3.) Third stage: Judgment Stage (Rule 36)
This is the stage where the court will now decide and render judgment.
Q: Define Judgment.
A: Judgment is the final consideration and determination by a court of the rights of the parties as those
rights presently exists, upon matters submitted to it in an action or proceeding. (Gotamco vs. Chan Seng,
46 Phil. 542)
Q: What are the requisites of a valid judgment?
A: There are five (5) requisites for a valid judgment:
1.) the court rendering judgment must have jurisdiction over the subject matter;
2.) the court rendering judgment must have jurisdiction over the person of the defendant, and in case
the defendant is a non-resident, the court rendering judgment must have jurisdiction over the res;
3.) the court rendering judgment must have jurisdiction over the issues, that is, the judgment shall
decide only the issues raised by the parties in their pleadings;
4.) the court rendering judgment must be validly constituted court and the judge thereof, a judge de jure
or de facto; Thus, the court has not been abolished; the judge has been appointed and has not retired
nor separated from service. That is why there is a rule even in criminal cases that if the judgment is
promulgated after the judge has already retired, the judgment is void. There must be another
promulgation.
EXAMPLE: Judge tries a case, prepares the decision and signs it. Before the decision is promulgated, the
judge died or retired. In this case, any promulgation to be made cannot be valid. The next judge must be
the one to promulgate it write the decision again and sign it. What is important is the judge who
rendered.
ABC DAVAO AUTO SUPPLY vs. COURT OF APPEALS 284 SCRA 218 [January 16, 1998]
FACTS: The case was tried by a judge (Agton) who was temporarily assigned to Mati. He wrote the
decision and had it released but by that time, he was already back in Mati. The losing party contended
that the judgment was not valid.
HELD: The judgment is VALID because when the new judge denied the motion for reconsideration, he
effectively adopted in toto the decision of the Mati judge. And besides, the Mati judge was still a judge
when he rendered his decision.
The subsequent motion for reconsideration of Judge Agton's decision was acted upon by Judge
Marasigan himself and his denial of the said motion indicates that he subscribed with and adopted in
toto Judge Agton's decision. Any incipient defect was cured. Branches of the trial court are not distinct
and separate tribunals from each other. Jurisdiction does not attach to the judge but to the court.
5.) the judgment must be rendered after lawful hearing, meaning that due process must be observed.
(Busacay vs. Buenaventura, 50 O.G. 111, Jan. 1954; Rueda vs. Juan, L-13764, Jan. 30, 1960; Rojas vs.
Villanueva, 57 O.G. 7339, Oct. 9, n1961; Rayray vs. Chae Kyung Lee, L-18176, Oct. 26, 1966)
There must be a trial where both sides are given the chance to be heard. In case of a defaulted
defendant, due process was observed because he was given the opportunity to defend himself. But he
did not file an answer. The essence of due process is the fact that you are given the opportunity to be
heard.
Sec. 1. Rendition of judgments and final orders. - A judgment or final order determining the merits of
the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly
the facts and the law on which it is based, signed by him, and filed with the clerk of the court. (1a)
Q: What are the FORMAL requisites of a valid judgment? A: There are four (4) formal requisites:
1.) The judgment shall be in writing;
2.) It shall be personally and directly prepared by the judge;
3.) It shall state clearly and distinctly the facts and the law on which it is based; and
4.) It shall be signed by the judge and filed with the clerk of court.
First formal requisite: THE JUDGMENT SHALL BE IN WRITING
There is no such thing as an oral judgment.
BAR QUESTION: After the parties presented their evidence, the judge asked the lawyers, Are you going
to argue? The parties said, No more, Your honor. We are waiving our right to argue. So the judge
dictated the decision to the clerk of court. The judgment was against the defendant. The defendant
appealed next day. Do you count the period of appeal from that date when he heard the decision?
ANSWER: NO. You still have to wait for the written decision. Presumably, what is dictated by the judge
will be transcribed. From the time you receive it is the reckoning period for appeal, notwithstanding the
hearing of such decision in open court. That is not yet the formal decision because under the law, there
is no such thing as oral decision. The judgment must be in writing.
Officially the decision is known to you on the date you received the written judgment. Not the date when
he dictated it in your presence. There are judges before who could do that. Even now those judges in
Manila who became justices today do practice such type of judgment. At present, judges no longer
possess such skill. They are given 90 days to decide the issue and yet at times, they could not do so
within the period mandated by law. How much more on the spot decision?
Second formal requisite: IT SHALL BE PERSONALLY AND DIRECTLY PREPARED BY THE JUDGE
It is presumed that the judgment will be made by the judge himself. Although sometimes it happens
otherwise. The judge should not delegate the writing to other people. There must be no ghost writer.
Third formal requisite: IT SHALL STATE CLEARLY AND DISTINCTLY THE FACTS AND THE LAW ON WHICH IT
IS BASED
The most important the decision should state clearly and distinctly, the facts and the law on which it is
based. Meaning, there must be a justification for the dispositive portion. The judge must argue why the
party won or lost.
Normally in the facts, either the facts presented by plaintiff are right and the facts presented by the
defendant are wrong or vice-versa. If you think the facts as presented by the plaintiff are correct or not,
you have to state why do you believe that it is correct or not, and also with the evidence of the
defendant. The same thing with legal questions because the plaintiff or the defendant relies on the
provisions of the laws or decided cases.
You have to state why the position of the defendant is wrong, why is the law that he cited not applicable.
You have to state your facts and conclusions of law.
In the SCRA, the Supreme Court will discuss both sides, According to the plaintiff like thisAccording to
the defendant like this..and so forth. Then the decision will start by saying, While the petitioner is
correct or, While the defendant is correct
It is called the discussion of the facts and the law on which the decision is based. It is a requirement in
the Constitution, Article VIII, Section 14:
Sec. 14. No decision shall be rendered by any court without expressing therein clearly and distinctly the
facts and the law on which it is based. xxx (Article. VIII, 1987 Constitution)
If a judge will render a decision like this: This is a civil action to collect an unpaid loan. According to the
plaintiff: He borrowed money for the sum of P80,000.00 payable on this date and despite demands, he
did not pay. According to the defendant in his answer: the obligation is fully paid. ISSUE: Whether the
loan has been paid or not yet paid. Plaintiff, to prove his cause of action presented the following
witnesses and evidence. On the other hand, the defendant, to prove his defense presented the following
evidence. WHEREFORE, the court renders judgment dismissing the complaint.
Such decision has no discussion on the findings of facts and the law. There is no basis of the dismissal of
the complaint. MY GOLLY! What kind of decision is that? There is no discussion on why is the evidence
of the plaintiff believable and why is the position of the defendant is like that. So there is no discussion of
the facts and the law on which it is based. That is a decision which violates the Constitution and Rule 36.
Another Illustration:
In an action for sum of money, plaintiff is unpaid. Defendant claims the loan has been paid. The
following is the evidence of the plaintiff and the following is the evidence of the defendant. Then the
court now says: After the meticulous study and analysis of the evidence offered by both sides, the court
is of the opinion that plaintiffs evidence is more logical, acceptable, probable and worthy of credit.
THEREFORE, judgment is hereby rendered ordering the defendant to pay the loan.
Q: Is this decision correct?
A: NO. It still violates the law. There are no findings of facts or conclusions of the law. Therefore, when
the court said, plaintiffs evidence is more logical, acceptable, probable and worthy of credit those are
conclusions. They are not findings of facts. Meaning you have to argue why is it logical, why is it
acceptable, why is it probable, why is it worthy of credit. You must state it and rebut the other side.
If that is how decisions are prepared, you just recite what the plaintiff said or what the defendant said,
and you will conclude, Therefore, find the plaintiff is logical, then every nincompoop person is
qualified to be a judge everybody can write a decision.
It is just like asking questions in the examinations. You will not answer that A is correct because his
argument is correct (period!). You have to state why he is correct. That is also the case in the decision.
You must support your answer with details.
Now, every decision of every court must state the facts and the law on which it is based. It must be in
every court, no exceptions, whether SC or an MTC. The Constitutional provision on this requirement
applies to all courts from the highest to the lowest.
However, the Judiciary Law allows the appellate court to make a Memorandum Decision. If you are the
appellate court (CA), you either affirm or reverse the decision of the lower court. If the CA will reverse
the findings of the RTC, definitely the CA has to justify why the findings of the RTC is wrong.
But suppose the CA will affirm, so there is nothing wrong with the judgment of the RTC. Now, in order to
shorten the period for waiting for the decision and in order to hasten it, Section 40 of BP 129 allows the
appellate court to simply quote verbatim the findings and conclusion of the trial court and adopt it as its
own.
This is what is called the Memorandum Decision. The concept of memorandum decision which is found
in Section 40, BP 129 is now in Rule 51, Section 5 of the 1997 Rules, to wit:
Sec. 5. Form of decision.- Every decision or final resolution of the court in appealed cases shall clearly
and distinctly state the findings of fact and the conclusions of law on which it is based, which may be
contained in the decision or final resolution itself, or adopted from those set forth in the decision,
order, or resolution appealed from. (Sec. 40, BP Blg. 129) (n)
So the appellate court is now authorized to simply copy or refer the true findings of fact and conclusions
at the trial court if it is affirming the latters decision. This is what we call memorandum decision. The SC
said that it is only allowed in simple cases, not in complicated ones. Otherwise the CA will be very lazy
they will just affirm and affirm. Affirm para walang trabaho. Reverse, madami. To reverse means to argue
for the opposite, rebut everything that the trial court said, it takes time to study, etc. Hence the
limitation, which we will discuss later.
Q: Does the law require a particular style of writing a decision?
A: NO, style is based on every individual, so long as the facts and the law are distinctively stated. That is
the minimum requirement. The law does not care how you do it because the manner of presenting the
facts and the law and the discussion is a matter of style. Every person has his own style, and whether it is
good or bad does not matter as long as you comply with the law.
As a matter of fact, there are many instances where the SC commented on the writing styles of judges.
The most vehement critics on sloppy style of decision writing is retired Justice Isagani Cruz, because he is
a very effective writer. He is intolerant of poorly written decisions. Kaya from time to time although not
necessary, he will criticize poorly written decisions. He makes sub-comments. Like in the cases of
NICOS INDUSTRIAL CORP. vs. COURT OF APPEALS 206 SCRA 127 [1992]
HELD: Kilometric decisions without much substance must be avoided, to be sure, but the other
extreme, where substance is also lost in the wish to be brief, is no less unacceptable either. Too long is
bad, too short is bad either. The ideal decision is that which, with welcome economy of words, arrives
at the factual findings, reaches the legal conclusions, renders its ruling and, having done so, ends. This
means, brief but comprehensive.
PEOPLE vs. GONZALES 215 SCRA 592
HELD: Every judge has his own writing style, some tedious, some terse, some pedestrian, some elegant,
depending upon his training and outlook. Each is acceptable as long as the factual and legal bases are
clearly and distinctly stated therein.
PEOPLE vs. AMONDINA 220 SCRA 6
HELD: The decision of the trial court is exceedingly long, without any effort to trim the fat and keep it
lean. Judges are not stenographers transcribing the testimony of the witnesses word for word. Judges
must know how to synthesize, to summarize, to simplify. Their failure to do so is one of the main reasons
for the delay in the administration of justice. It also explains the despair of the public over the foot-
dragging of many courts and their inability to get to the point and to get there fast.
There is one MTC judge here, who is very fond of quoting the allegations of the parties: An action for
collection of money. Plaintiff filed a complaint quoted as follows. Every paragraph is quoted.
Defendant filed an answer quoted as follows Evidence of plaintiff, quoted as follows Then his
decision is only one paragraph. My golly! How long will it take your stenographer to type it. Can it not be
reduced to 3 pages? This is what we call writing with style.
One of the best writers in the SC right now is Justice Panganiban. As a matter of fact, in one of the latest
volumes of the Lawyers Review, he has an article entitled, My Style of Decision Writing. Very nice.
Every judge must read that. He is giving tips on how to write elegant decisions.
But of course what applies to decision writing also applies to answering questions in the Bar. Some
elegant, some tedious. The same answer but different styles of presentation. Other get high scores, low
scores because of style. So you must also know how to answer. Especially in the Bar exams where the
corrector is correcting more than 4,000 notebooks and he has a deadline, your notebook must project
itself as if your notebook is telling the corrector: Read me! Read me!!
Q: How do you distinguish a judgment from a decision?
A: Actually, the decision is the entire written effort from the first sentence, This is an action for a sum of
money until the end. It contains everything from the findings of facts, discussion of evidence.
The judgment is usually the last paragraph yung WHEREFORE the dispositive portion or the
decretal portion. Sometimes it is called the fallo of the case.
The fallo is yung WHEREFORE Iyung discussions, findings of facts, conclusion of law to justify the fallo
is called the ratio decidendi the reasoning. (Contreras vs. Felix, 78 Phil. 570)
Q: In case of conflict between judgment and decision, which shall prevail?
A: The judgment shall prevail in case of such conflict, for it is an elementary rule of procedure that
the resolution of the court in a given issue, as embodied in the dispositive part of the decision, is the
controlling factor that determines and settles the rights of the parties and the issues presented therein.
(Manalang vs. Rickards, 55 O.G. 5780, July 27, 1959)
ASIAN CENTER vs. NLRC 297 SCRA 727 [October 12, 1998]
FACTS: A vs. B. In the ratio decidendi, A is correct. Pero pagdating sa WHEREFOR (judgment), As action is
dismissed! And there was no statement in favor of B. A appeals. B contended that the judgment prevails.
Is B correct?
HELD: The general rule is that where there is a conflict between the dispositive portion or the fallo 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. However, where the inevitable
conclusion from the body of the decision is so clear as to show that there was a mistake in the dispositive
portion, the body of the decision will prevail.
TYPES OF JUDGMENTS:
A.) Sin Perjuicio judgment
B.) Conditional judgment
C.) Incomplete judgement
D.) Nunc pro tunc judgment
E.) Judgment upon a compromise or Judgment upon an amicable settlement
F.) Judgment upon a confession
A.) SIN PERJUICIO JUDGMENT
Q: What is an SIN PERJUICIO judgment?
A: A sin perjuicio is one which contains only the dispositive portion of the decision and reserves the
making of findings of fact and conclusions of law in a subsequent judgment. (Dir. of Lands vs. Sanz, 45
Phil. 117) So, there is a WHEREFORE without a ratio decidendi. It does not state how the court arrived
at a certain decision.
Q: Is a SIN PERJUICIO judgment valid?
A: A sin perjuicio judgment is a VOID judgment for it violates the constitutional provision that no
decision shall be rendered by any court of record without expressing therein clearly and distinctly the
facts and the law on which it is based (Sec. 14, Art. VIIII), and the provision of the Rules of Court that the
judgment shall state clearly and distinctly the facts and the law on which it is based. (Rule 36, Section 1)
B.) CONDITIONAL JUDGMENT
Q: What is a CONDITIONAL judgment?
A: A conditional judgment is one which is subject to the performance of a condition precedent and is not
final until the condition is performed. (Jaucian vs. Querol, 38 Phil. 707)
EXAMPLE: A sued B. Then the court said: The A is correct because so and so. However, there is
another case now pending before the SC where the same issue is being raised. In the meantime, A is
correct. But in the event that SC decision comes out and is not favorable to A, then this decision should
also be automatically changed in favor of B. So, this is a conditional judgment. Is it a valid judgment?
Q: Is a conditional judgment valid?
A: It is NOT valid. In truth, such judgment contains no disposition at all and is a mere anticipated
statement of what the court shall do in the future when a particular event should happen. For this
reason, as a general rule, judgments of such kind, conditioned upon a contingency, are held to be NULL
and VOID. (Cu Unjieng y Hijos vs. Mabalacat Sugar Co., 70 Phil. 380)
C.) INCOMPLETE JUDGMENT
Q: What is an INCOMPLETE judgment? What is its effect?
A: An incomplete judgment is one which leaves certain matters to be settled in a subsequent
proceeding. (Ignacio vs. Hilario, 76 Phil. 605) There is a decision but there is still other matters to be
incorporated later in such decision. Parang interlocutory judgment.
EXAMPLE: There is judgment against B for a damage suit, Wherefore, judgment is hereby rendered
ordering defendant to indemnify the plaintiff, moral and exemplary damages (period!). It does not state
how much. Mamaya na natin malaman kung magkano. So kulang pa ang decision.
My golly! What is there to execute? You do not even know how much is the award. It does not settle any
question that may be the subject of execution. (Araneta, Inc. vs. Tuason, 49 O.G. 45) The judgment can
never become final, it having left certain matters to be settled for its completion in a subsequent
proceeding. (Ignacio vs. Hilario, 76 Phil. 605) So, the judgment is again defective.
D.) NUNC PRO TUNC JUDGMENT
Q: (Bar Question) What is a judgment NUNC PRO TUNC and what is its function?
A: A judgment nunc pro tunc literally means a judgment now for then. Its function is to record some act
of the court done at a former time which was then carried into the record. And the power to make such
entries is restricted to placing upon the record evidence of judicial action which has actually been taken.
It may be used to make the record speak the truth, but not to make it speak what it did not speak but
ought to have spoken. (Lichauco vs. Tan Pho, 51 Phil. 862)
Example: When a judge renders a decision, he must base his findings on what happened on the trial or
on the evidence presented. Normally, the judge cites facts as bases for his findings. Suppose, the judge,
in his hurry, made some findings but forgot to incorporate all those other important matters which can
support his findings. Na-overlook ba! He rendered his decision which was lacking in something
inadvertently omitted. The judge may now amend his judgment by including the matters missed such
matters that have been admitted on record. Then, the judge now has an improved decision the
judgment now is NUNC PRO TUNC. What are to be added are things which really happened. The judge
has no power to include something which did not actually happen. That would be irregular. How could
you quote something which never transpired during the trial.
So it is an amended judgment where certain matters which are contained in the records and transpired
in court were not incorporated. So when you made the decision, parang kulang. So in order to make it
clearer, we will incorporate those matters which should have been incorporated in the amended
decision. That is known as judgment nunc pro tunc. But you can only place there matters which
transpired, not matters which did not transpire.
Q: In what cases is a judgment nunc pro tunc NOT proper?
A: A judgment nunc pro tunc is not proper in the following instances:
1. It cannot remedy errors or omission in an imperfect or improper judgment. (Lichauco vs.
Tan Pho, 51 Phil. 862)
2. It cannot change the judgment in any material respect. (Henderson vs. Tan, 87 Phil. 466) and
3. It cannot correct judicial errors, however flagrant and glaring they may be. (Henderson vs.
Tan, 87 Phil. 466)
E.) JUDGMENT UPON A COMPROMISE or JUDGMENT UPON AN AMICABLE SETTLEMENT
Q: What is a JUDGMENT UPON A COMPROMISE?
A: A judgment upon a compromise is a judgment rendered with the consent of the parties for the
purpose of effecting a compromise or settlement of an action. (31 Am. Jur. 105-108)
This is the type of judgment which the law encourages because it is a judgment with the consent of the
parties for the purpose of effecting a compromise or settlement. Usually mga collection cases ito
tawaran like i-condone ang interests, or half of the amount na lang, etc. The court will render judgment
copying word for word what the parties say. So the compromise agreement becomes the judgment and
for a as long as the agreement is not contrary to law, the court will approve it.
Q: In a compromise judgment, is the court required to make findings of fact and conclusions of law?
Why?
A: In a compromise judgment, the court is not required to make findings of fact and conclusions of law.
In contemplation of law, the court is deemed to have adopted the statement of facts and conclusions of
law made and resolved by the parties themselves in their compromise agreement; and their consent has
made it both unnecessary and improper for the court to make a preliminary adjudication of the matters
thereunder covered. (Palarca vs. Anzon, L-14780, Nov. 29, 1960)
Q: How do you define a compromise?
A: Under Article 2028 of the New Civil Code:
Art. 2028. A compromise is a contract whereby the parties, by making reciprocal concessions, avoid a
litigation or put an end to one already commenced. (Civil Code)
So the essence of compromise is reciprocal concessions give and take. It is a mutual concession to
avoid litigation or, if there is already, that which will put an end. There are other definitions given by the
SC although the essence or substance is the same. In the case of
SMITH BELL AND CO. vs. COURT OF APPEALS 197 SCRA 201
HELD: A compromise is an agreement between two (2) or more persons who, in order to forestall or put
an end to a law suit, adjust their differences by mutual consent, an adjustment which every one of them
prefers to the hope of gaining more, balanced by the danger of losing more.
If we go to trial, well, winner take all either the plaintiff wins or the defendant wins. If you are not sure
of your position, then you might as well get something out of it rather than risk losing everything.
EXAMPLE: You sue me for P1 million. Then I say, I would like to offer a settlement. You would say,
How much do you offer? Well, my complaint is 1 million, so you pay me P1 million. That is not
compromise, that is surrender. Kaya nga umaareglo ako para makatawad. And if you will not receive
anything less than a million, you are not asking for a compromise, you are demanding total surrender. If
that is so then, let us go to court and find out if you will get your P1 million and let us find out how many
years from now you can get your money.
Kaya in a compromise agreement, there are no winners and there are no losers.
REPUBLIC OF THE PHILIPPINES vs. SANDIGANBAYAN 226 SCRA 314
FACTS: This is a case involving a compromise between the government and Benedicto, a crony of
President Marcos. He entered into a compromise with the PCGG and the Supreme Court approved it.
HELD: Any compromise has its very essence reciprocal concessions, one must give and one must take. If
only one takes all, then one must first win. But in a compromise, all win by taking some and giving
some.
Lets go back to the law on Obligations and Contracts. There are four (4) types of defective contracts: (a)
void; (b) voidable; (3) rescissible; and (4) unenforceable. Under the Civil Code, if one party enters into a
contract where he lacks the requisite authority, the contract is unenforceable but it is a valid agreement.
Q: What is the effect of a compromise agreement entered into by a lawyer, without any special authority
from his client? Is it a null and void agreement?
A: A lawyer cannot, without special authority, compromise his clients litigation. A judgment upon a
compromise entered by the court, not subscribed by the party sought to be bound by the compromise
agreement, and in the absence of a special authority to the lawyer to bind his client in the said
agreement, is UNENFORCEABLE. (Dungo vs. Lopena, L-18377, Dec. 29, 1962)
Q: Suppose in the above case, the client learned about what his lawyer did and he did not reject the
agreement, as a matter of fact he complied with it, what is now the effect on such agreement?
A: The agreement is now perfectly VALID and ENFORCEABLE because the party himself did not question
his lawyers authority. When it appears that the client, on becoming aware of the compromise and the
judgment, failed to repudiate promptly the action of his lawyer, he will not afterwards be heard to
contest it. (Banco Espaol-Filipino vs. Palanca, 37 Phil. 921)
Q: What are the legal effects of a judgment based upon a compromise agreement?
A: A judgment upon a compromise agreement produces the following legal effects:
1.) The compromise judgment is not appealable and it is immediately executory. (Reyes vs.
Ugarte, 75 Phil. 505; Serrano vs. Miave, L-14687, March 31, 1965)
2.) It cannot be annulled unless it is vitiated with error, deceit, violence or forgery of documents.
(Morales vs. Fontanos, 64 Phil. 19; Article 2038, Civil Code)
3.) It constitutes res adjudicata. (Art. 2037, Civil Code; Sabino vs. Cuba, L-18328, Dec. 17, 1966) Meaning,
the same subject matter or cause of action can no longer be reopened in the future in another litigation.
Q: Suppose you enter into a compromise agreement and there is a judgment. You want to escape from
the compromise judgment on the ground that your consent was vitiated by mistake, error, deceit,
violence. How do you question it? What is your remedy?
A: There are so many conflicting answers here. Some say you file a motion to set aside the compromise
judgment because your consent was vitiated. And if the motion is denied, you appeal from the order
denying your motion to set aside. But definitely, you cannot appeal from the compromise judgment
because it is not appealable. You appeal from the order denying your motion to set aside the
compromise judgment. However, under the new rules, you cannot anymore appeal an order denying a
motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake,
or duress or any other ground vitiating consent (Section 1, Rule 41)
So an order denying a motion to set aside a judgment by compromise on the ground of fraud, mistake, or
duress or any other ground vitiating consent is not appealable. Therefore, whatever the answers before
are not anymore true now. So what is the REMEDY now?
It would seem that the correct remedy based on the new rules in relation to some new cases, among
which was the case of:
DOMINGO vs. COURT OF APPEALS 255 SCRA 189 [1996]
HELD: The correct remedy is for the party to file an action for annulment of judgment before the Court of
Appeals pursuant to Section 9, par. 2, of the Judiciary Law. (now incorporated in Rule 47)
A compromise may however be disturbed and set aside for vices of consent or forgery. Hence, where an
aggrieved party alleges mistake, fraud, violence, intimidation, undue influence, or falsity in the execution
of the compromise embodied in a judgment, an action to annul it should be brought before the Court of
Appeals, in accordance with Section 9(2) of Batas Pambansa Bilang 129, which gives that court (CA)
exclusive original jurisdiction over actions for annulment of judgments of regional trial courts.
F.) JUDGMENT UPON A CONFESSION (COGNOVIT JUDGMENT)
Q: What is a judgment upon a confession?
A: A judgment upon a confession is a one entered against a person upon his admission or
confession of liability without the formality, time and expense involved in an ordinary proceeding.
(Natividad vs. Natividad, 51 Phil. 613)
A judgment upon a confession is also known as cognovit judgment. (Pronounced as konyuvit)
EXAMPLE: You file a case against me. Without filing an answer, I simply appeared in court and tell the
court that I am not contesting the claim. I am admitting the complaint to be true and I am willing to have
judgment rendered against me. Or, I can also file my answer kunwari lang ba, and then in court I will
admit my liability. That would be the basis of the judgment upon a confession.
As distinguished from judgment on the pleadings (Rule 34), in judgment on the pleadings you have to go
through the process of filing an answer but actually your answer puts up no defense. In judgment upon a
confession, I may not even file an answer. Hindi talaga ako maglaban. Upon receiving the complaint, I
just say that I am admitting liability. So there is no need of a default order. In American Law, they call it
no lo contendere, meaning no contest. Sa criminal case pa, I am pleading guilty.
Judgment upon a confession, Judgment upon the pleadings, Default judgment Magkahawig sila. Only
they vary a little bit. In default judgment, the defendant failed to file an answer. So, he is declared in
default. In judgment upon the pleadings, defendant filed an answer but the answer contains no defense.
In judgment upon a confession, he will not file an answer but will tell the court that he is admitting
liability. So, lahat will end up on the same thing: There will be a judgment rendered against the
defendant.
Now, during the commonwealth era, there were many American lawyers who practiced law in the
Philippines. Many judges were Americans, even Justices of the Supreme Court many of them were
Americans. American lawyers brought to the Philippines types of agreements in American contracts.
There was one particular agreement known as Warrant of Attorney to Confess Judgment. That is a
standard clause in American contracts.
EXAMPLE: I am a bank. You borrow money from me and you sign a promissory note which contains
stipulations normally to the advantage and in favor of the bank. They usually insert the American clause
Warrant of Attorney to Confess Judgment that in the event that the bank will sue you on this
promissory note, you are entering into a confession judgment immediately. Meaning, I am not going to
defend myself and I am immediately confessing judgment to the court. And who will confess judgment to
the court? The debtor will say I hereby appoint the bank as my representative to confess judgment to
the court in my behalf. Parang Special Power of Attorney ba. The bank will go to the court
and say, Under this paragraph, I represent the defendant-debtor because he appointed me as his
attorney-in- fact. And in behalf of the defendant, I am confessing.
The Supreme Court ruled that such stipulation is null and void in the old case of:
NATIONAL BANK vs. MANILA OIL
43 Phil 444
HELD: Such type of clause is null and void for being contrary to public policy because the defendant
waives his right in advance to defend himself. That is unfair because even before you are sued, you have
already waived your right to defend yourself.
But the judgment of confession is still allowed but one has to do it himself, and must not be done in
advance. Meaning, it must not be done like the above acts of American lawyers as such is against public
policy. One must be first be given a chance for defense which right be later on waived through voluntary
confession.
Q: Distinguish a judgment upon a COMPROMISE from a judgment upon a CONFESSION. A: The following
are the distinctions:
1.) In a judgment upon a COMPROMISE, the liability of the defendant is to be determined in accordance
with the terms of the agreement of the parties; whereas
In a judgment upon a CONFESSION, the defendant confesses the action and consents to the judgment
that the court may render in accordance with the compromise and the prayer therein (31 Am. Jur. 108);
and
2.) In a judgment upon a COMPROMISE, there is give and take; the parties haggle, bargain and agree on
the terms of the judgment; there is mutual or reciprocal concessions; whereas
A judgment upon a CONFESSION is unilateral. It comes from the defendant who admits his liability and
accepts that judgment be rendered against him.
Sec. 2. Entry of judgments and final orders. - If no appeal or motion for new trial or reconsideration is
filed within the time provided in these Rules, the judgment or final order shall forthwith be entered by
the clerk in the book of entries of judgments. The date of finality of the judgment or final order shall
be deemed to be the date of its entry. The record shall contain the dispositive part of the judgment or
final order and shall be signed by the clerk, with a certificate that such judgment or final order has
become final and executory. (2a, 10, R51)
If you lose a case, what are your options? I can either appeal within the time provided by the Rules. Or,
within the same period, I will file a motion for a new trial or a motion for reconsideration. In any case,
the finality of the judgment will be stopped.
Q: Suppose the prescribed period has lapsed, there is no appeal, no motion for new trial or
reconsideration, what happens to the judgment?
A: The judgment now becomes final and executory.
According to Section 2, once the judgment has become final, it shall be entered by the clerk of court in
the Book of Entries of Judgments. If you go to the office of the RTC, you will find an official book which
contains a chronological arrangement of cases, based on the date of filing. Malaking libro yan.
Now, the second sentence is new and its effects are also significant, the date of the finality of
judgment or final order shall be deemed to be the date of its entry. The rule is, when does a judgment
become final? After the lapse of the period to appeal and no appeal is filed.
EXAMPLE: Today, March 4, the lawyer for the defendant received a copy of the judgment. The last day to
appeal is March 19. Suppose there is no appeal, then March 20 is the date of finality. On March 20 or
immediately thereafter, the clerk of court should know the judgment became final on March 20.
Suppose the clerk of court placed it in the book on March 30. So, the date of finality is March 20 but the
date of entry is March 30.
Sometimes the clerk of court forgets to make the date of entry. That is why under the old rules, the date
of finality of judgment does not coincide with the date of entry of judgment because the clerk of court
may do that thing months later. This creates a lot of trouble. So to cure the discrepancy, the second
sentence is now inserted by the new law: the date of finality of judgment shall be deemed to be the
date of its entry.
Meaning, the judgment became final on March 20 although the clerk of court noted it on March 30.
Under the new rules, the date of entry (March 30) retroacts to March 20. That is the significance of the
second sentence, they will automatically coincide. Kahit i-enter pa yan next month, everything will
retroact to the date of finality. It is simplier now.
Q: When the judgment becomes final and executory, what are the effects? A: The finality of a judgment
produces three (3) effects, to wit:
1.) The prevailing party is entitled to have the judgment executed as a matter of right and the issuance of
the corresponding writ of execution becomes a ministerial duty of the court (Rule 39);
2.) The court rendering the judgment loses jurisdiction over the case so that it can no longer correct the
judgment in substance, except to make corrections of clerical errors and omissions plainly due to
inadvertence or negligence. (Locsin vs. Paredes, 63 Phil. 87; Manaois vs. Natividad, L- 13927, Feb. 28,
1960; Maramba vs. Lozano, L-21533, June 29, 1967)
If after the judgment is rendered, you file a motion for reconsideration or new trial, there is a possibility
for the court to change its mind and its judgment. But once the judgment has become final, the court has
no more power to change its judgment substantially. The error will also become final, you can no longer
change anything substantial.
EXCEPTION: There is one type of judgment which can be changed substantially even long after it became
final as an exception to this rule. In the study of Persons, Judgment for Support. The judgment for
support, which can be modified at any time because the obligation to give support depends not only on
the resources of the obligor, but also on the ever-changing needs of the obligee. (Malabana vs. Abeto, 74
Phil. 13)
EXAMPLE: The father refuses to support his minor child. After trial, the court orders the father to support
the child at P1,000 per month. Four years later, the father is already well-off and the child is already in
nursery or kindergarten. So the child tells his lawyer that the amount for support must be increased from
P1,000 to P5,000. The father says, the court said P1,000 and if you change that to P5,000, that would be
substantial. The father is wrong. The amount for support can be changed anytime. In the same manner.
The amount can also be lowered, as when the father loses his job.
3.) Res Adjudicata supervenes. (NLU vs. CIR, L-14975, May 15, 1962)
The same cause of action between the same parties can never be the subject matter of another litigation
in the future. Any subsequent case is barred by prior judgment.
Sec. 3. Judgment for or against one or more of several parties. - Judgment may be given for or against
one or more of several plaintiffs, and for or against one or more of several defendants. When justice
so demands, the court may require the parties on each side to file adversary pleadings as between
themselves and determine their ultimate rights and obligations. (3)
Q: Suppose there are 2 plaintiffs A and B, can the court render judgment in favor of plaintiff A and
against plaintiff B? Or, is it possible that in one case, one defendant will win and the other defendant will
lose?
A: YES, especially when the causes of action or defenses are not the same. One may invoke a defense
that is only applicable to him but not applicable to others.
Sec. 4. Several judgments. - In an action against several defendants, the court may, when a several
judgment is proper, render judgment against one or more of them, leaving the action to proceed
against the others. (4)
Same concept. When there are 2 or more defendants, normally the court renders judgment sabay-
sabay. That is possible.
Q. Is it possible that more than one judgment will arise in a civil action?
A. YES. Theres a judgment in favor of the plaintiff against the defendant and the trial still continues with
respect to other defendants. That would involve more than one decision. Judgment in favor of one
defendant is rendered already but the trial will continue with respect to other defendants is possible
under Section 4.
EXAMPLE: There was a case where the government filed a case for expropriation against several
landowners. The lands are adjoining each other and the government would like to expropriate all these
properties. The government had to file on complaint against several landowners. One landowner asked
that his case be tried ahead of the others. He was allowed under Rule 31 on Separate Trial. His case was
tried ahead. After trial, the court rendered judgment against him. His land was ordered expropriated.
Now, what happened to the other defendants? The Supreme Court said let the case continue against the
other landowners. But there would be a judgment in so far as one defendant is concerned. (Municipality
of Bian vs. Garcia, 108 SCRA 576)
Sec. 5. Separate judgments. - When more than one claim for relief is presented in an action, the court,
at any stage, upon a determination of the issues material to a particular claim and all counterclaims
arising out of the transaction or occurrence which is the subject matter of the claim, may render a
separate judgment disposing of such claim. The judgment shall terminate the action with respect to
the claim so disposed of and the action shall proceed as to the remaining claims. In case a separate
judgment is rendered, the court by order may stay its enforcement until the rendition of a subsequent
judgment or judgments and may prescribe such conditions as may be necessary to secure the benefit
thereof to the party in whose favor the judgment is rendered. (5a)
Section 5 is also similar to Section 4.
Q: Can there be judgments at periods or stages of proceedings?
A: YES. There can be judgment insofar as one cause of action and the proceedings will continue as to
other causes of action.
Let us go back to Rule 30 on Order of Trial. You will notice that there is order of trial when there are
several claims in one action.
EXAMPLE: Plaintiff files a complaint against several defendants. One defendant files a cross-claim against
another defendant. Two defendants file permissive counterclaims against the plaintiff. One defendant
will file a third-party complaint against a third-party defendant. The court renders judgment. It may
render judgment as far as complaint is concerned, then the decision for the cross- claim, then for the
counterclaim.
The normal procedure is you try the case, tapusin mo lahat, then you render one judgment disposing of
the complaint, counterclaim, cross-claim and third-party complaint. Yet, separate judgments is also
permissive under Section 5. If there are separate trials for all these (counterclaim, cross-claim, etc), it is
also possible that there would be separate trials.
Distinctions:
Section 3 refers to an action by several parties
Section 4 refers to an action against several defendants Section 5 refers to several claims for relief in
an action
Sec. 6. Judgment against entity without juridical personality. - When judgment is rendered against two
or more persons sued as an entity without juridical personality, the judgment shall set out their
individual or proper names, if known. (6a)
Does that sound familiar? Two or more persons sued as an entity without juridical personality. Lets go
back to Rule 3 Section 15 and Rule 14 Section 8.
PROBLEM: Three people are members of an entity without juridical personality. They transact business
with Mr. Alama. Mr. Alama has no idea who are really the members of the said entity. He wanted to sue
the members of an entity.
Q1: How will he do it?
A: Rule 3, Section 15 Mr. Alama will file a case against the defendants by using the name of the entity
they are using.
Q2: How should summons served to these defendants?
A: Rule 14, Section 8 Summons may be served on anyone of them or to the person in charge of the
place of business.
Q3: How should judgment be rendered against them?
A: Rule 36, Section 6 when judgment is rendered, the judgment shall set out their individual and proper
names.
Rule 37
NEW TRIAL OR RECONSIDERATION
The counterpart of Rule 37 in criminal procedure is Rule 121. In criminal procedure, there is also the
remedy of new trial and reconsideration.
Section 1. Grounds of and period for filing motion for new trial or reconsideration. Within the period
for taking an appeal, the aggrieved party may move the trial court to set aside the judgment or final
order and grant a new trial for one or more of the following causes materially affecting the substantial
rights of said party:
(a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have
guarded against and by reason of which such aggrieved party has probably been impaired in his rights;
or
(b) Newly discovered evidence, which he could not, with reasonable diligence, have discovered
and produced at the trial, and which if presented would probably alter the result.
Within the same period, the aggrieved party may also move for reconsideration upon the grounds that
the damages awarded are excessive, that the evidence is insufficient to justify the decision or final
order, or that the decision or final order is contrary to law.(1a)
Q: When may an aggrieved party file a motion for new trial or a motion for reconsideration?
A: Within the period for taking an appeal. Meaning, before the judgment becomes final and
executory.
We have not yet discussed the law on appeal but the general rule is just like in criminal cases. If you lose,
you have 15 days to file an appeal. If there is no appeal within 15 days, the judgment will become final
and executory.
Q: If I lose in a civil case, is there other remedy aside from appeal?
A: YES. You can file a motion for new trial but such motion must also be filed within 15 days. After 15
days, you can no longer file a motion for new trial because the judgment becomes final and executory.
Q: What is the effect when judgment becomes final and executory?
A: Under Rule 36, the court loses jurisdiction over the case. The decision cannot be changed anymore.
But as long as judgment is not yet final, the court can change the decision.
Q: What is the effect of filing a motion for new trial or reconsideration on the period to appeal?
A: The period to appeal is suspended. When your motion is denied, you still have the remaining balance
of the period to appeal. Period to appeal is suspended except if your motion for new trial or
reconsideration is pro-forma under Sections 2 and 5.
NEW TRIAL
Q: What are the grounds for a motion for new trial in civil cases? A: Under Section 1, there are two (2)
GROUNDS:
1.) Fraud, Accident, Mistake, Excusable negligence (FAME);
2.) Newly Discovered Evidence (NDE)
FIRST GROUND: Fraud, Accident, Mistake, Excusable negligence (FAME)
Let us relate this to Rule 9, Section 3 [b] on Default. The ground to lift or set aside the order of default is
also FAME that he failed to answer because of FAME. So, there is a connection between Rule 9 and the
first ground of a motion for new trial.
Q: How do you determine when to use Rule 9 or Rule 37 when one is declared in default? A: Use Rule 9,
Section 3 [b] after notice of the order of default but before judgment;
Use Rule 37 if there is already a judgment but not yet final and executory. Rule 37 is the remedy in case
the defendant who is declared in default failed to avail of Rule 9, Section 3 [b].
But Rule 37 on motion for new trial on the ground of FAME is broader. It applies to plaintiff or defendant
whether in default or not because a defendant can still lose the case through FAME although he is not in
default. Or, for example: The plaintiff, because of his failure to appear in the case, the court dismissed
the case. But the reason why the plaintiff failed to appear is because of FAME. So the remedy for plaintiff
is to move to set aside the dismissal and have the case continued by filing a motion for new trial on the
ground of FAME.
But definitely, Rule 37 also applies to a defendant declared in default and that is the connection between
Rule 37 and Rule 9.
FRAUD (Extrinsic)
What is FRAUD? In tagalog, naisahan ka or naloko ka. (Ilonggo: na-utis) Under the law, there are two (2)
TYPES of Fraud: EXTRINSIC FRAUD and INTRINSIC FRAUD
GARCIA vs. COURT OF APPEALS 202 SCRA 228 [1991]
HELD: EXTRINSIC FRAUD is that type of fraud which has prevented a party from having a trial or from
presenting his case in court. INTRINSIC FRAUD is based on the acts of a party in a litigation during the
trial, such as the use of forged instruments or perjured testimony, which did not affect the presentation
of the case, but did prevent the fair and just determination of the case.
Q: When is fraud a sufficient ground for new trial?
A: FRAUD, to be a ground for new trial, must be EXTRINSIC where the aggrieved party was
misled by the adverse party, and by reason thereof, he was prevented from presenting his case properly.
(Gisburne Supply Co. vs. Quiogue, 34 Phil. 913; Almeda vs. Cruz, 84 Phil. 636; Sterling Investment Corp.
vs. Ruiz, L-30694, Oct. 31, 1969)
So, intrinsic fraud is not a ground for a new trial.
EXAMPLE: Suppose I am the lawyer of the plaintiff and you are the lawyer of the defendant. The case will
be tried tomorrow. I called you up and asked you to postpone the trial, I will tell the court that I talked
to you and you agreed that the trial will be postponed. The following day, I appeared in court. When the
case is called, I said that Im ready. Court: Saan ang defendant? I said, Wala! Awan! I then moved to
continue the trial.
So, naisahan kita. I maneuvered a scheme in such a way that you will not appear in court. You lost your
opportunity to present your side. That is EXTRINSIC FRAUD. Your remedy now is to file a motion for new
trial on the ground that you have been a victim of EXTRINSIC FRAUD by the plaintiffs lawyer.
EXAMPLE: There is a case between you and me. During the trial, I presented witnesses to prove my cause
of action. All my witnesses were lying they testified falsely. I presented falsified documents to prove my
case. And I won the case because of those perjured testimonies and falsified documents. You file a
motion for new trial alleging FRAUD that the testimonies and documents were falsified.
Q: Should your motion for new trial be granted?
A: NO. Your motion will be denied because the FRAUD is INTRINSIC because you were not prevented you
from going to court. So, your remedy is to expose my perjured and falsified evidence. You can present
rebuttal evidence. It is your obligation to prove that my witnesses are lying and my documents are false.
Definitely, you cannot ask a motion for a new trial.
ACCIDENT
What is ACCIDENT? It is something unforeseen, something unexpected or unanticipated. When is
accident a sufficient ground for new trial?
EXAMPLE: A party failed to appear in court because he got sick at the last minute. Or, in the middle of
the trial, the lawyer of the party becomes sick. With that, the complaint was dismissed or there was a
judgment against you. You can move for new trial on the ground of accident. (Phil. Engineering Co. vs.
Argosino, 49 Phil. 983)
EXAMPLE: The defendant was declared in default because he did not file an answer but actually he filed
an answer through mail, but somehow the post office did not deliver it to the court (baka may anthrax).
That is an accident. With that, I can move for new trial or lift the order of default. (Ong Guan Can vs.
Century Ins. Co., 45 Phil. 667)
EXAMPLE: The trial was this morning. But I received only the notice of trial on March 9, 1998 stating that
the trial is on March 5. So the notice of hearing was received days after the scheduled date. That is an
accident which is a ground for new trial. (Soloria vs. Dela Cruz, L-20738, Jan. 31, 1966)
MISTAKE
What is MISTAKE? Mistake(n) is nagkamali I was wrong. Sa bisaya pa, nasayop.
EXAMPLE: Defendant received summons and complaint. The defendant, instead of seeking assistance of
a lawyer, went to the plaintiff and asked for settlement. They kept on talking with the settlement but in
the meantime, the period to file answer is also running. Fifteen days had passed by they did not settle
yet. Plaintiff moved to declare defendant in default. The court issued judgment on default. Defendant
said, Layman man ako. Anong malay ko diyan sa default-default na yan. The lawyer said, Sana lawyer was, I forgot about the deadline. Nalimutan ko. I did not keep tract of the deadline to file an
answer muna before you settle with the plaintiff. So the lawyer filed a motion for new trial on the
ground of MISTAKE. The court granted it. (Salazar vs. Salazar, 8 Phil. 183)
GENERAL RULE: A client is bound by the mistakes of his lawyer and he cannot file a motion for new trial
on the ground of mistake of his lawyer. In the case of
BELLO vs. LABONG
L-10788, April 30, 1959
HELD: The mistake of an attorney is not generally a ground for new trial. The mistake or lack of foresight
or preparation on the part of the attorney cannot be admitted as reason for new trial in civil cases,
otherwise there would never be an end to a suit so long as a new counsel could be employed who could
allege and show that the prior counsel had not been sufficiently diligent, or experienced, or learned.
What the SC is trying to say is this: Suppose we will grant a new trial for the party on the ground of
mistake of his first lawyer, and after the new trial, the party still lost. So such party will now hire a third
lawyer who will say, Do you know why you lost? That is because of the mistake of your second lawyer
so we will file a motion for new trial. So the third lawyer will allege mistake of the second lawyer and
then we will grant again a new trial and then he loses again. Then he gets a fourth lawyer and the fourth
lawyer will allege the ground of mistake of the third lawyer.
So, there will never be an end to a case. So the general rule to remember is, a client is bound by the
mistakes of his lawyer and he cannot file a motion for new trial on the ground of mistake of his lawyer.
So that is not the type of mistake contemplated by Rule 37.
The only EXCEPTION is based on equity decision like the case of
PEOPLE vs. MANZANILLA 43 Phil. 167
HELD: A new trial is sometimes granted where the INCOMPETENCY or NEGLIGENCE of the partys
counsel in the conduct of the case IS SO GREAT that partys rights are prejudiced and he is prevented
from presenting his cause of action or defense.
EXCUSABLE NEGLIGENCE
EXCUSABLE NEGLIGENCE. Obviously, inexcusable negligence is not a ground for new trial. But sometimes,
it is difficult to determine whether the negligence is excusable or inexcusable. That is also very difficult
because there is negligence whether you like it or not.
When is negligence excusable and when is it inexcusable? Our only guide here is decided cases because
there are many cases where the SC said that, it is excusable so we will grant a new trial. Or sometimes
naman, wala, that is not excusable so no new trial. So, we can go on the pattern and find out what type
of negligence warranted a new trial and what type does not warrant a new trial.
INEXCUSABLE NEGLIGENCE; Examples:
EXAMPLE #1: If a defendant lost a case because his lawyer failed to file an answer. And the excuse of the
answer. And the SC said, No dice. That is not excusable on the part of the lawyer.
EXAMPLE #2: Your case was dismissed because you failed to appear in court. Here comes now your
lawyer asking for new trial on the ground of excusable negligence, I failed to appear in court because I
again forgot about that schedule or because I failed to wake-up because the night before, I and my
friends went to a (Wigmore) party and I went home drunk. Do you think the SC will honor that? Is that
excusable? Of course not!
EXAMPLE #3: In many cases, the reason is, I failed to appear in court because my secretary in my law
office failed to inform me about that notice. Hindi niya nalagay yung notice that I have to appear in
court today. SC said, You are bound by the mistake of your secretary and the client is also bound by
that mistake of the lawyer. In the first place, why did you hire that kind of secretary?
EXAMPLE #4: In some cases, Well, you see your honor, I failed to appear in court because my secretary
did not calendar it. O, bakit niya hindi inilagay? Well, shes just a newly hired secretary, she does not
know yet the importance of these things. First time niya. The SC said, Hung hang! Pasensiya ka! Why
did you not orient her before hiring her.
So all these things hindi lumusot. All these things failed to convince the SC that the negligence of the
party of the lawyer if excusable.
EXCUSABLE NEGLIGENCE; Examples:
EXAMPLE #1: The answer has to be filed the following day. The lawyer told the secretary, Im leaving
tonight. Ill come back one week later. You better file tomorrow the answer because tomorrow is the
deadline. Then he left but the secretary failed to file it because she also got sick. Ayan. Nagkapatong-
patong na ang malas. Excusable iyan.
EXAMPLE #2: I failed to appear in court because I had to come from Manila and the plane was delayed
or the flight was cancelled. But if the flight proceeded on time I would have been in Davao City by 7:00
A.M. and I would have been in court at 8:30 A.M. Sometimes that happens eh where the flight is
cancelled or delayed. Ano ngayon yan? Sabihin, you should have taken the flight the night before para
sigurado. Eh, the night before fully booked na! Anong magagawa ko? Ayan.
So in other words, these things, you could also consider it as what? Parang accident din no? Magkahawig
eh! In other words you should use your common sense. Whether the negligence is forgivable or not.
And to borrow the language of the SC, The standard of care required of a party is that which an
ordinarily prudent man bestows on his important business. (Fernandez vs. Tan Tiong Tick, L-15877, April
28, 1961)
So, for EXAMPLE: You are a businessman and you have an appointment with somebody who will give you
a deal of P50 million. And you are scheduled to see him on this date and on this time. Can you afford to
forget that transaction? I think there is something wrong with you if you forgot it. You do not know what
is important and what is not important. (Ang importante is yung mahalaga! Di ba?)
There are things which you forget and somehow in forgetting it you cannot be blamed because its not
really important. But there are things which you cannot afford to forget.
EXAMPLE: Your classmate tells you, This coming Saturday you go to the house. Why? Is there a
(Wigmore) party there? Wala man. Im just inviting you to come ha? And by Monday, I was waiting
for you, you did not show up! Tama no? Sorry nalimutan ko. Now, is forgetting your appointment
with your classmate two days before forgivable or not? I think forgivable iyan. Anyway, istorya- istorya
man lang. Para bang, O, sige, di sa susunod na Sabado na lang. Meaning, madaling ma-erase sa mind
mo yang mga ganyang klaseng appointment ba!
EXAMPLE: But suppose on Saturday morning you are supposed to go to church for your wedding, hindi
ka nakasipot. And then you tell your bride or the groom, Pasensiya ka na ha? Kasal pala natin,
nakalimutan ko eh. (Sana t-in-ext mo ako. Wala kang load no? hahaha!) I think he or she will kill you for
that kind of reasoning.
EXAMPLE: If a lawyer says, I forgot that this is the day I should file an answer for my client. Or, I forgot
to appear in court on the day of his trial. Is the courts schedule or the schedule of a lawyer something
important for him or not? I think you know the answer no?
Ayan! Kaya iyan ang guide. That is the meaning of excusable negligence.
NEWLY DISCOVERED EVIDENCE
Section 1(b). Newly discovered evidence, which he could not, with reasonable diligence, have discovered
and produced at the trial, and which if presented would probably alter the result.
Q: What is Newly Discovered Evidence (NDE)?
A: NDE is evidence which was discovered after trial, or cannot be discovered during trial given the
exercise of reasonable diligence, and if admitted, such evidence would probably alter the result of the
case. There is a fighting chance ba! So, you could not have discovered the evidence even with exercise of
due diligence.
This is also one of the grounds for new trial in criminal cases. You lost a case maybe because you do not
have enough evidence to prove your cause of action. Kulang ba! Kulang ka ng ebidensiya kaya natalo ka.
Then after you lost the case, you came across an important evidence, maybe a witness or a document
and you learned about it for the first time. Ang sayang no? If I was able to present this evidence baka
panalo ako.
EXAMPLE: You are a defendant being sued because of non-payment of an account. Ang depensa mo,
bayad na. Pero saan ang resibo? Basta binayaran ko siya, ok naman. Sabi nga niya wala na raw akong
utang. Now, so its your word against his word and the court did not believe you. Then eto naman ang
sabi ni X, Natalo ka? Bayad naman yan ba. Kung ganun, bakit alam mo? X: Nandoon man ako ba. I was
there watching when you paid him. Meaning, kung nagtestify ka (X) noon, baka daug ako because my
defense would have been corroborated by you. Yaaann!
Q: What are the REQUISITES for NDE? A: The following:
1.) That the evidence was discovered after trial;
2.) That it could not have been discovered during trial even with exercise of reasonable diligence;
and
3.) That if admitted, such evidence would probably alter the result.
THAT THE EVIDENCE WAS DISCOVERED AFTER TRIAL;
Q: What happens if evidence is there all along and you failed to present it?
A: That is not NDE. That is forgotten evidence and not a ground for new trial.
EXAMPLE: There was a case where a party, through his lawyer filed a motion for new trial based on this
document. Bakit hindi mo pre-ni-sent sa trial? I misplaced it in my drawer. Nalimutan ko na meron pala
akong resibo. So, lets have a new trial because I will now introduce a ground for new trial. Obviously, it
was discovered after trial. It was in your possession for so long. And according to the SC, that is not a
newly discovered evidence. (That is katangahan!) That is forgotten evidence which is not a ground for
new trial.
THAT IT COULD NOT HAVE BEEN DISCOVERED DURING TRIAL EVEN WITH EXERCISE OF REASONABLE
DILIGENCE
motion can do it. The only ground for reopening of trial is interest of justice. And that is very broad. So
there are no rules.
The SC said: New trial should be distinguished from the exercise of the discretionary power of the court
to REOPEN a trial for the introduction of additional evidence, to clarify its doubts on material points. This
discretionary power is subject to no rule other than the paramount interest of justice and will not be
reviewed on appeal unless the exercise thereof is abused. (Arce vs. Arce, L-13035, Nov. 28, 1959) So it is
one of the inherent powers of the court.

Meaning, even if you try your best to look for it, you would not have found it. Now na natalo ka, you
suddenly found it.
Now, because there are clients who are lazy eh. So, meron ka bang dokumento? Wala eh. You see,
marami akong file diyan pero tingin ko wala eh. Wala gyud? Wala. So, talo. Walang ebidensiya eh!
After a while pag-halungkat, Atty., naa man diay. My golly! Nganong karon man lang. I gave you
several months to look for that. Youre so lazy. Now, that you lost, you only find it for an hour. In this
case, you did not comply with the second requisites that it could not have been discovered before trial
even with the exercise of reasonable diligence.
THAT IF ADMITTED, SUCH EVIDENCE WOULD PROBABLY ALTER THE RESULT
MOTION FOR RECONSIDERATION
Q: What is the ground for a motion for reconsideration? A: Third paragraph of Section 1:
Within the same period, the aggrieved party may also move for reconsideration upon the grounds that
the damages awarded are excessive, that the evidence is insufficient to justify the decision or final order,
or that the decision or final order is contrary to law.(1a)
Q: When do you file a motion for reconsideration?
A: Within the same period for filing a motion for new trial. Meaning, within the period for taking
an appeal.

Meaning, if there is a new trial and the newly discovered evidence will be admitted, it would probably
alter the result. Probably lang. May fighting chance, pero chance lang. You are not saying that if the
new evidence will be admitted, you will automatically win. There is a probability that you will win. And
the court will say, I think probable. Ok, new trial granted. Then defendant, PASOK! (cguro, d jdge hir is
myk enriquez?) Then, the evidence will be presented and we will find out if you can win.
NEW TRIAL vs. REOPENING OF TRIAL
The SC has already made pronouncements on what the reopening of trial meant. Reopening of trial is not
found in the law. There is no express rule, but it is admittedly allowed. Now give an example of
reopening of trial.
Q: What are the grounds for a motion for reconsideration?
A: The following are the GROUNDS for a motion for reconsideration:
1.) The damages awarded are excessive;
2.) The evidence is insufficient to justify the decision or final order;
3.) The decision or order is contrary to law. (in effect, the decision is wrong) Motion for reconsideration
is more common. Motions for new trial are very rare.
In a motion for reconsideration, you convince the court that the decision is wrong, Dapat panalo
ako, hindi siya. You convince the court, that its decision is wrong, that the decision is contrary to law. If
you can convince the court, the court will issue another decision reversing itself where from a loser
[loooosseer!], you are now the winner and the original winner is now the loser [loooosseer!]. Ganyan
man yan ba, very common.

EXAMPLE: Tapos na ang trial. What will come next is decision and then the party said, Your honor, could
we reopen the trial? Meron kaming nakalimutan eh. I forgot an important piece of evidence. Now, that
cannot be new trial because wala pa man ang judgment. Rule 37 applies only when there is already a
judgment. In the example, is that a motion for new trial? No. It should be called a motion for reopening
of trial.
So if the motion is filed after the judgment is rendered, it is called motion for new trial. When the motion
is filed before a judgement is rendered, it should be called a motion for reopening of trial.
EXAMPLE: A judge after trying the case, Alright, I will not decide yet. I want to go to the area and look at
the property. Meaning, the court, on its own, would like to conduct an ocular inspection. That is a
reopening of the trial. Now, was there any motion by anybody? Wala man ba. The court itself initiated it.
And that is allowed said by the SC. Reopening of trial is bound by no rules. The judge with or without a
MOTION FOR NEW TRIAL; FORMAL REQUIREMENTS
Sec. 2. Contents of motion for new trial or reconsideration and notice thereof. The motion shall be
made in writing stating the ground or grounds therefor, a written notice of which shall be served by
the movant on the adverse party.
A motion for new trial shall be proved in the manner provided for proof of motions. A motion for the
cause mentioned in paragraph (a) of the preceding section shall be supported by affidavits of merits
which may be rebutted by affidavits. A motion for the cause mentioned in paragraph (b) shall be
supported by affidavits of the witnesses by whom such evidence is expected to be given, or by duly
authenticated documents which are proposed to be introduced in evidence.
A motion for reconsideration shall point out specifically the findings or
conclusions of the judgment or final order which are not supported by the evidence or which are
contrary to law, making express reference to the testimonial or documentary evidence or to the
provisions of law alleged to be contrary to such findings or conclusions.
A pro forma motion for new trial or reconsideration shall not toll the reglementary period of appeal.
(2a)
Q: What should be the form of a motion for new trial?
A: It must be in writing. You must state the ground or grounds for the motion, whether it is FAME or
newly discovered evidence. Then, of course, you must serve a copy of the motion to the adverse party.
Meaning, you comply with all the requisites of a valid motion.
PEOPLE vs. COURT OF APPEALS 296 SCRA 418 [Sept. 25, 1998]
FACTS: Inday filed a motion for new trial without a notice of hearing (this is a violation of paragraph of
Section 2). But she filed the motion within 15 days. Inday filed a supplemental motion with notice of
hearing but filed beyond the 15-day period. Should the court deny the motion?
HELD: The motion should be denied. A supplemental pleading subsequently filed to remedy the
previous absence of notice will not cure the defect nor interrupt the tolling of the prescribed period
within which to appeal.
We are not impressed by the argument that the supplement filed by the appellants on May 30 should
be deemed retroactive as of the date the motion for reconsideration was filed and, therefore, cured the
defect therein. To so consider it would be to put a premium on negligence and subject the finality of
judgments to the forgetfulness or whims of parties- litigants and their lawyers. This of course would be
intolerable in a well-ordered judicial system.
The second paragraph says, A motion for new trial shall be proved in the manner provided for proof of
motions What does that mean? What is the proof of motions? The manner or proving motions is also
found in Rule 15, Section 3:
Rule 15, Sec. 3. Contents. - A motion shall state the relief sought to be obtained and the grounds upon
which it is based, and if required by these Rules or necessary to prove facts alleged therein, shall be
accompanied by supporting affidavits and other papers. (3a)
Q: Everytime you file a motion, is it necessary that the ground for your motion is supported by affidavits
or other papers?
A: If it is necessary YES. If it is not necessary NO NEED. If necessary, you must attach documents or
supporting affidavits like a medical certificate for a motion to postpone due to illness.
Q: Is it necessary that when you file motion for new trial, you must attach affidavits?
REQUIREMENTS WHEN THE GROUND IS F.A.M.E.
Section 2, second paragraph says, A motion for the cause mentioned in paragraph [a] of the preceding
section shall be supported by affidavits of merits Paragraph [a] is FAME. So, a motion for new trial on
the ground of FAME must be accompanied by affidavits of merits.
Q: What is an affidavit of merits?
A: An AFFIDAVIT OF MERITS is one which recites the nature and character of FAME on which the motion
is based and stating the movants good and substantial cause of action or defense and the evidence he
intends to present if the motion is granted, which evidence should be such as to warrant reasonable
belief that the result of the case would probably be otherwise. (Paz vs. Inandan, 75 Phil. 608; Manila
Surety vs. Del Rosario, 101 Phil. 412)
Meaning, you must state the facts surrounding FAME and your meritorious cause of action or defense
whether you are the plaintiff or the defendant. You explain why you are a victim of fraud, etc. and that
you have a good cause of action or defense which if there will be a new trial, you might win. It is not
enough that you are a victim of FAME, you must also have a meritorious cause of action or defense.
Q: What happens if you file a motion without affidavit of merits?
A: Then, your motion for new trial will be immediately denied. It is a fatal mistake. Your motion for
new trial is classified as a PRO-FORMA motion for new trial.
Q: Briefly, how do you classify a pro-forma motion for new trial?
A: It is a motion for new trial which does not comply in substance or in form with Sections 1 and 2 of Rule
37.
Q: What is the EFFECT of a pro-forma motion for new trial?
A: The period to appeal is NOT interrupted by the filing of such motion for new trial. Even the right to
appeal may be forfeited because of this defect. The effect is now stated in the last paragraph of Section
2:
A pro forma motion for new trial or reconsideration shall not toll the reglementary period of appeal. (2a)
When you lose a case you have exactly 15 days to appeal. Lets say on the tenth day, I file a motion for
new trial under Rule 37. And the motion was acted after one month. Shempre lampas na yung 15 days.
Meaning, pag-tanggap ko ng decision, ten days na ang nakaraan, and then another one month so 40 days
na. But no problem because when you filed your motion on the 10th day, the running of the period to
appeal is interrupted. If denied, meron ka pang limang araw to appeal.
But, if the court says, Your motion is denied because it is pro forma, there is no affidavit of merits.
Then, you cannot appeal anymore because when you filed your motion, the period to appeal keeps on
running. So by the time your motion is denied, even the right to appeal is also lost. Iyan ang epekto ng
pro-forma motion for new trial. It never interrupts the period to appeal. [Trivia: PRO-FORMA means,
PuRO pORMA lang, wala namang sinabi]
Q: Suppose a movant will file a motion for new trial in the ground of FAME with the affidavits of merits
and says I am a victim of fraud and if such motion is granted, I have a good and meritorious cause of
action or good and meritorious defense. Is the affidavit sufficient?
A: SC No, those are generalities, you must recite the facts constituting the FAME. You must
describe exactly what happened to you. To say that you have good cause of action or defense is
INSUFFICIENT.
You must state what is the nature of that cause of action or defense and evidence you intend to present.
So, there is an affidavit of merit but it is fatally defective. Again what will happen to the motion. It will be
treated as pro-forma. The affidavit of merit is defective.
MANIPOL vs. LIM TAN 55 SCRA 202
FACTS : A defendant in an action for damages based on quasi-delict filed a motion for new trial citing
FAME. He says, I have a good and meritorious cause of action or defense. I intend to prove that I
exercised due diligence in the selection or supervision of my drivers and which if proven relieves the
employer from liability.
HELD: Affidavit of merits is defective. It is pro-forma motion. It does not state the meritorious defense.
There is only a general statement or conclusion of the defendant. The defendant should state the details
of how he supervised his employees. You go to specifics.
The law is very strict about affidavits of merits. It is not enough that you state your defense. You must
demonstrate that you have a meritorious claim of defense so that the motion for new trial will be
granted. What is the used of granting a new trial if after the new trial you will still end up losing the case?
It would be a waste of time. According to SC, It would be pointless to reopen a case if a party does not
have a meritorious cause of action of defense for like a mirage it would merely raise false hopes and at
the end avail the movant nothing. (Arcilla vs. Arcilla, L-46674, Sept. 16, 1985) It would raise false hope if
you will grant a new trial when in fact the movant has no meritorious cause of action. Its like a mirage or
illusion seeing things which are not there. [malayo ang tingin, hindi naman duling]
It seems that there are really two affidavits. Normally when a lawyer files motion for new trial, there is
one affidavit reciting FAME and reciting the meritorious cause of action or defense. If you follow the SC
there are two (2) affidavits: FIRST affidavit regarding the FAME; and SECOND affidavit regarding the
meritorious cause of action of defense.
But in the case of PCIB vs. ORTIZ (150 SCRA 382), the SC implied that the real Affidavit Of Merits should
be the second one that I have a good and meritorious defense. In reality, there should be two
(2) affidavits one reciting the FAME and one reciting the substantial cause of action. That is why a
motion for new trial on FAME should ordinarily be accompanied by two affidavits. One setting forth the
facts and circumstances alleged to constitute FAME and the other an Affidavit of Merits setting forth the
particular claims to constitute the movants meritorious defense or cause of action. The real Affidavit of
Merits is the second one.
REQUIREMENTS WHEN THE GROUND IS NEWLY DISCOVERED EVIDENCE
Q: Suppose your ground for new trial is newly discovered evidence (NDE). What is the requirement?
A: Section 2, 2nd paragraph, 3rd sentence provides, A motion for the cause mentioned in (Section
1) paragraph [b] (NDE) shall be supported by affidavits of the witnesses by whom such evidence is
expected to be given, or by duly authenticated documents which are proposed to be introduced in
evidence.
Meaning, when the ground is newly discovered evidence, the motion shall be supported by affidavits
also affidavits of the newly discovered witness or a copy of the newly discovered document. You have
to state what is the newly discovered evidence, what the witness will say.
Q: What happen when such requirement is not complied with?
A: The motion for new trial on the ground of NDE is treated as PRO-FORMA and it never tolled the
reglementary period to appeal.
MOTION FOR RECONSIDERATION; FORMAL REQUIREMENTS
Q: Again, what are the grounds for a motion for reconsideration?
A: The following are the GROUNDS for a motion for reconsideration:
1.) The damages awarded are excessive;
2.) The evidence is insufficient to justify the decision or final order;
3.) The decision or order is contrary to law. (in effect, the decision is wrong)
Q: Can you file a motion for reconsideration by just simply stating that the decision is wrong or contrary
to law, or the findings of the judge are not supported by evidence?
A: NO. Under Section 2, 3rd paragraph, you must point out specifically the findings or conclusions of the
judgment or final order which are not supported by the evidence or which are contrary to law, making
express reference to the testimonial or documentary evidence or to the provisions of law alleged to be
contrary to such findings or conclusions.
So, you must point out what findings is not supported by evidence what conclusion is contrary to law.
Do not let the judge look for it. The judge will never bother to look for it. You tell him what portion of the
decision is wrong. You have to cite the evidence too and the law which is violated or what provisions
ituro mo yan! Point it out clearly.
Q: What happen when you file a motion for reconsideration without making any reference, exhibit etc?
Meaning, you did not comply with the 3rd paragraph.
A: You motion will be denied because it is PRO-FORMA. Thus, it will never interrupt the reckoning of the
prescriptive period.
The SC once defined a pro forma motion as one filed for the sake of form. (Dapin vs. Dionaldo, G.R. No.
55488, May 15, 1992)
Another POINT: when you file an motion for reconsideration on the ground that the judgment is contrary
to law, it is not enough for you to say that. You must always point out clearly why it is contrary to law,
otherwise your motion will be denied or treated as pro-forma.
Q: When you file an motion for reconsideration and it is denied, does it mean to say that your motion is
pro-forma?
A: NO, because maybe the judge was not convinced but you tried your best. The denial of motion for
reconsideration on the ground that the decision or judgment is wrong does not automatically make the
motion a pro-forma. What makes it pro-forma is, if your motion for reconsideration does not specifically
point out why judgment is wrong. But if you comply with Section 2, that is already sufficient.
In the case of
MARIKINA VALLEY DEVT. CORP. vs. FLOJO 251 SCRA 87 [1995]
HELD: A motion for reconsideration merely reiterates or repleads the same arguments which had been
previously considered and resolved in the decision sought to be reconsidered, the motion is a pro forma
one.
The circumstance that a motion for reconsideration deals with the same issues and
arguments posed and resolved by the trial court in its decisions does not necessarily mean that the
motion must be characterized as merely pro forma. A pleader preparing a motion for reconsideration
must of necessity address the arguments made or accepted by the trial court in its decision. The movant
is very often confined to the amplification or further discussion of the same issues already passed upon
by the trial court. Precisely, when I filed a motion for reconsideration, we will go over the same points
which the court has already discussed.
Where the circumstances of a case do not show an intent on the part of the movant merely to delay the
proceedings, our Court has refused to characterize the motion as simply pro forma. The doctrine relating
to pro forma motions for reconsideration impacts upon the reality and substance of the statutory right of
appeal, that doctrine should be applied reasonably, rather than literally. The right to appeal, where it
exists, is an important and valuable right.
A motion for reconsideration which is not as starkly bare but which, as it were, has some flesh on its
bones, may nevertheless be rendered pro forma where the movant fails to make reference to the
testimonial and documentary evidence on record or the provisions of law said to be contrary to the trial
courts conclusions. In other words, the movant is also required to point out succinctly why
reconsideration is warranted.
It is not enough that a motion for reconsideration should state what part of the decision is contrary to
law or the evidence; it should also point out why it is so. Failure to explain why will render the motion for
reconsideration pro forma. Meaning, when I point out part of the decision that is contrary to the law, it
is not pro forma. But still it is pro forma if I will not state that it is contrary to law.
Where a substantial bonafide effort is made to explain where and why the trial court should be
regarded as having erred in its main decision, the fact that the trial court thereafter found such argument
unmeritorious or as inadequate to warrant modification or reversal of the main decision, does not, of
course, mean that the motion for reconsideration should have been regarded, or was properly regarded,
as merely pro forma.
So, I point the decision but the court does not agree with me. That does not mean that my motion is
automatically pro forma because there was attempt to convince the court why it is wrong.
EFFECTS WHEN MOTION IS GRANTED
Sec. 3. Action upon motion for new trial or reconsideration. The trial court may set aside the judgment
or final order and grant a new trial, upon such terms as may be just, or may deny the motion. If the
court finds that excessive damages have been awarded or that the judgment or final order is contrary
to the evidence or law, it may amend such judgment or final order accordingly. (3a, R37)
Sec. 6. Effect of granting of motion for new trial. If a new trial is granted in accordance with the
provisions of this Rule, the original judgment or final order shall be vacated, and the action shall stand
for trial de novo; but the recorded evidence taken upon the former trial, in so far as the same is
material and competent to establish the issues, shall be used at the new trial without retaking the
same. (5a)
Q: In Section 3, how will the court resolved your motion for new trial?
A: The court may either deny or may set aside the judgment or final order and grant a new trial. Literally,
if the judgment is set aside, there will be a trial de novo, a Latin word for new trial.
BAR QUESTION: If Cholo files a Motion For New Trial and it is granted, will there always be a trial de
novo?
A: It DEPENDS on the ground for the motion:
a.) If the ground is FAME, there will be a trial de novo because the proceeding will be set aside;
b.) If the ground is NDE, there is no trial de novo. The evidence admitted which is based on the same
decision will remain. The case will be opened only for the purpose of admitting the new evidence.
Q: If Cholo files a Motion For Reconsideration and it is granted, will there be a trial de novo?
A: There is NO trial de novo. The court will simply amend its judgment. It is only a re-study of provision.
The court will study its decision and go over the evidence and find out whether it made a mistake or not.
Sec. 4. Resolution of motion. A motion for new trial or reconsideration shall be resolved within thirty
(30) days from the time it is submitted for resolution. (n)
There is now a deadline for the court to act on the motion within 30 days from the time it is submitted
for resolution.
SECOND MOTION FOR NEW TRIAL OR RECONSIDERATION
Sec. 5. Second motion for new trial. A motion for new trial shall include all grounds then available and
those not so included shall be deemed waived. A second motion for new trial, based on a ground not
existing nor available when the first motion was made, may be filed within the time herein provided
excluding the time during which the first motion had been pending.
No party shall be allowed a second motion for reconsideration of a judgment or final order. (4a, R37; 4,
IRG)
As a rule, the motion for new trial shall include all grounds then available and those not included are
deemed waived. So, if the motion for new trial is based on two (2) grounds FAME and NDE either or
both grounds should be included in the motion.
Q: Suppose a motion for new trial, which is based only on FAME, was denied, can there be a second
motion for new trial on the ground of NDE?
A: It DEPENDS:
a.) If the NDE is already existing when the first motion was filed, then the second motion for new trial will
be denied because of failure to raise it earlier the second ground is deemed waived for failure to raise
the same;
b.) However, if the ground for the second motion for new trial is something not known or not existing or
not available when the party filed the first motion, then the second motion is allowed. The second
motion is not a pro forma motion.
So, what the law prohibits is you file a motion for new trial and you do not include all the grounds then
available. If the ground surfaced only later, then it is allowed. Therefore, the motion for new trial is an
example of omnibus motion as defined in Rule 15, Section 8:
Sec. 8. Omnibus motion. - Subject to the provisions of section 1 of Rule 9, a motion attacking a
pleading, order, judgment, or proceeding shall include all objections then available, and all objections
not so included shall be deemed waived. (8a)
Q: What happens if you file a second motion for new trial on a ground which is then available when the
first motion was filed?
A: The second motion is a pro forma motion and will not interrupt the remaining balance of the period to
appeal after the first motion was denied. There was a clear violation of omnibus motion rule.
Q: So, there are two (2) types of pro forma motion for new trial under Rule 37. What are they? A: The
following:
1.) A motion for new trial which is not supported by affidavits of merits one which does not
comply in substance or in form with Section 2; and
2.) A second motion for new trial on a ground available to the party when the first motion was filed
(Section 5).
Take note that the 2nd paragraph of Section 5 provides that No party shall be allowed a second motion
for reconsideration of a judgment or final order. Therefore, a second motion for reconsideration is
always treated as a pro forma motion because it is totally prohibited by Section 5.
NEW TRIAL vs. MOTION FOR RECONSIDERATION
Take note that in New Trial, there could possibly be trial de novo. If granted, everything is set aside and
the party will now present their evidence. But in trial de novo, we will not erase everything. Proceedings
or evidence admitted will remain. Only, we will open it for the purpose of introducing the new evidence
and then the court will study it all over again.
In Motion for Reconsideration, there is no reopening of the case because all the court has to do is to go
over the evidence again and go over the decision to find out whether its decision is wrong and should
change it. So, there is actually no trial de novo in a motion for reconsideration.
Q: Distinguish a Motion for New Trial from a Motion for Reconsideration. A: The following are the
distinctions:
1.) As to grounds:
In a MOTION FOR NEW TRIAL, the grounds are FAME and NDE, whereas
In a MOTION FOR RECONSIDERATION, the grounds are excessive damages, decision is not supported
with evidence, or decision is contrary to law;
2.) As to trial:
If a MOTION FOR NEW TRIAL is granted, there could be a trial de novo; whereas
If as MOTION FOR RECONSIDERATION is granted, there is no trial de novo. The court will only amend its
decision
3.) As to a second motion:
A second MOTION FOR NEW TRIAL is allowed if the ground was not existing when the
first motion for new trial was filed; whereas
A second MOTION FOR RECONSIDERATION is always prohibited under the rules.
Sec. 7. Partial new trial or reconsideration. If the grounds for a motion under this Rule appear to the
court to affect the issues as to only a part, or less than all of the matter in controversy, or only one, or
less than all, of the parties to it, the court may order a new trial or grant reconsideration as to such
issues if severable without interfering with the judgment or final order upon the rest. (6a)
Q: Is there such a thing as motion for partial new trial or a motion for partial reconsideration?
A: YES, if the party is questioning only one aspect or portion of the case. Therefore, the rest can become
final while the disputed portion does not become final.
So, there could be a new trial or reconsideration only on such issues and there will be a final judgment
with respect to the other issues of the case. How could this happen? The best example is Rule 31, Section
2:
Rule 31, Sec. 2. Separate trials. The court, in furtherance of convenience or to avoid prejudice, may order
a separate trial of any claim, cross-claim, counterclaim, or third-party complaint, or of any separate issue
or of any number of claims, cross-claims, counterclaims, third-party complaints or issues. (2a)
If the cross-claim or third-party complaint are tried separately, there will be different judgments. And in
effect, you can file a partial motion for new trial or reconsideration to the facts contemplated by the
case.
Sec. 8. Effect of order for partial new trial. When less than all of the issues are ordered retried, the
court may either enter a judgment or final order as to the rest, or stay the enforcement of such
judgment or final order until after the new trial. (7a)
This is a continuation of Section 7.
Q: When there is a partial new trial, what will happen to the judgment on the undisputed facts? A:
Either:
a.) the court will enter judgment on it; or
b.) the court may stay the enforcement until after the new trial. The following rules will describe the
situation in Section 8:
Rule 36, Sec. 5. Separate judgments. When more than one claim for relief is presented in an action, the
court, at any stage, upon a determination of the issues material to a particular claim and all
counterclaims arising out of the transaction or occurrence which is the subject matter of the claim, may
render a separate judgment disposing of such claim. The judgment shall terminate the action with
respect to the claim so disposed of and the action shall proceed as to the remaining claims. In case a
separate judgment is rendered, the court by order may stay its enforcement until the rendition of a
subsequent judgment or judgments and may prescribe such conditions as may be necessary to secure the
benefit thereof to the party in whose favor the judgment is rendered. (5a)
Finality of judgment with respect to one portion of the case and the trial continues with the other
portion. There are several judgments involving one action and technically, if one is finished, it can be
enforced unless the court provided otherwise. Another provision is Rule 39, Section 2 [b]:
Rule 39, Sec. 2. Discretionary execution.
xxxxx
(b) Execution of several, separate or partial judgments. A several separate or partial judgment may be
executed under the same terms and conditions as execution of a judgment or final order pending appeal.
(2a)
Discretionary execution or execution pending appeal. In case of an appeal, Section 1, Rule 41 [g]:
Rule 41, Section 1. Subject of appeal. An appeal may be taken from a judgment or final order that
completely disposes of the case, or of a particular matter therein when declared by these Rules to be
appealable.
No appeal may be taken from:
xxxxx
(g) A judgment or final order for or against one or more of several parties or in separate claims,
counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court
allows an appeal therefrom; and
Lets go back to Rule 37.
xxxxx
Sec. 9. Remedy against order denying a motion for new trial or reconsideration. An order denying a
motion for new trial or reconsideration is not appealable, the remedy being an appeal from the
judgment or final order. (n)
An order denying a motion for new trial or reconsideration is not appealable (c.f. Rule 41, Section 1 [a].
The remedy being an appeal from the judgment or final order.
ILLUSTRATION: The judgment is against you. So you filed a motion for new trial or reconsideration. The
court denied your motion. So there is an order denying your motion for new trial or reconsideration.
Now, you want to appeal.
Q: Appeal from what? From the main judgment or from the order denying your motion?
A: You appeal from the judgment. You cannot appeal from the order denying your new motion for new
trial. That is related to Rule 41, Section 1 [a]:
Rule 41, Section 1. Subject of appeal. An appeal may be taken from a judgment or final order that
completely disposes of the case, or of a particular matter therein when declared by these Rules to be
appealable.
NO APPEAL may be taken from:
(a) An order denying a motion for new trial or reconsideration;
xxxxxx
Well, of course, the filing of this motion will stop the running of the 15-day period, unless your motion
for new trial is pro-forma. Generally, the law does not allow an appeal from the order denying your
motion for new trial. You appeal from the decision, not from the order denying your motion. This
provision will come out again when we reach the rule on appeal.
-oOo-
OUTLINE of the process: (after trial)
1.) Decision/Judgment;
2.) Motion for New Trial or Reconsideration (Rule 37);
3.) If denied, court makes a order denying your motion for new trial or reconsideration;
4.) Appeal based on the decision/judgment and not based on the order denying your motion.
Rule 38
RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS
Section 1. Petition for relief from judgment, order, or other proceedings. When a judgment or final
order is entered, or any other proceeding is thereafter taken against a party in any court through
fraud, accident, mistake, or excusable negligence, he may file a petition in such court and in the same
case praying that the judgment, order or proceeding be set aside. (2a)
Rule 38 is known as the remedy of petition for relief from judgment or final order. The grounds cited here
are actually the same as the grounds for new trial FAME. We are meeting FAME for the third time. It
seems to be a ground that keeps on going back. First in Default, then New Trial, and now a ground for
petition for Relief from Judgment.
Q: What are the different remedies available to a defaulted defendant granted by the rules?
A: The following:
Upon service of the order of default but before judgment upon default is rendered under Rule
9 you can file a motion to set aside the order of default on the ground that his failure to file
answer was because of FAME;
If there is already a default judgment, the correct procedure is to file a motion for new trial
under Rule 37 on the ground of FAME within the period to appeal, meaning, before judgment
becomes final and executory;
 If the judgment is already final and executory, the remedy is to file a petition for relief from
judgment under Rule 38 on the ground of FAME.
So if you are a passenger and you want to ride on the bus, Rule 9 is first trip, Rule 37 is second trip, Rule
38 is last trip.
Are those the only remedy? For bar purposes pwede na! But if gusto mo ng mas maganda, marami pa.
[abangan! See discussions under Rule 47]
Q: Distinguish between relief from judgment under Rule 38 and new trial under Rule 37.
A: Rule 37 is substantially similar to Rule 38, the only difference being that the remedy is called Motion
for New Trial if filed before the judgment or final order has become final and executory, and Petition for
Relief if filed thereafter but within the period prescribed in Section 3, Rule 38.
And take note that only FAME could be the ground for Rule 38. There is no newly discovered evidence
under Rule 38. Newly discovered evidence is not a ground for petition for relief from judgment. Newly
discovered evidence is available in Rule 37 but not in Rule 38.
Q: In what court can you file a petition for relief from judgment?
A: In such court and in the same case. Meaning, in the very court where you lost and in the same case
number. So, para ka na ring nag-file ng motion for new trial because motion for new trial is filed before
the same court and in the same case.
Under the OLD RULES, when you want to file a petition for relief from the judgment of the RTC, you file
your petition for relief in the same RTC and in the same case. And if you want to file a petition for relief
from judgement of the MTC, you file it in the RTC like an appeal. The RTC will be the one to grant the
relief from the judgment of the MTC. The MTC has no power to set aside its own judgment. It can only be
done by the RTC. But the RTC has the power to set aside its own judgment just like a motion for new
trial.
But NOW, under Section 1, you can file a petition for relief from judgment in ANY COURT on the ground
of FAME, IN SUCH COURT and in the same case. So, if you want to file a petition for relief from judgment
of the MTC, you should file it in the same MTC court. Now, MTC has authority to entertain petition for
relief from judgment unlike the previous rule. That is a major change.
Q: Can a petition for relief from judgment be filed in the CA?
A: YES because of in any court.
Can you file a petition for relief not from a judgment but from an order? Section 2:
Sec. 2. Petition for relief from denial of appeal. When a judgment or final order is rendered by any court in
a case, and a party thereto, by fraud, accident, mistake, or excusable negligence, has been prevented
from taking an appeal, he may file a petition in such court and in the same case praying that the appeal
be given due course. (1a)
In most cases, or 95% of petition for relief, a party files a petition for relief from the judgment rendered
against him. Actually that is not true. The remedy of petition for relief is not only limited to judgments
but the law says orders, or other proceedings. That is very broad.
EXAMPLE: I lost the case and I filed an appeal and the appeal was beyond 15 days. So, there will be an
order denying my appeal because my appeal should be within 15 days.
Q: And suppose such order prevented me from taking an appeal because of FAME, can I file a petition for
relief?
A: Yes, not from the judgment but from the order denying my appeal on the ground of FAME. And the
court will grant me relief by allowing me to appeal. So there, I am not questioning the judgment but I am
only questioning the order not allowing me to appeal.
But as I said, in most cases, petition for relief are based on Section 1 rather than Section 2. Bihira yung
petition for relief from the order denying the appeal.
Is there a deadline in filing a petition for relief from judgment? YES. Section 3:
Sec. 3. Time for filing petition; contents and verification. A petition provided for in either of the
preceding sections of this Rule must be verified, filed within sixty (60) days after the petitioner learns
of the judgment, final order, or other proceeding to be set aside, and not more than six (6) months
after such judgment or final order was entered, or such proceeding was taken; and must be
accompanied with affidavits showing the fraud, accident, mistake, or excusable negligence relied
upon, and the facts constituting the petitioner's good and substantial cause of action or defense, as
the case may be. (3)
Q: When you file a petition for relief from judgment, or final order, what are the formal requirements?
A: The formal requirements are:
The petition must be verified;
The petition for relief must be accompanied with affidavits showing the FAME relied upon and the facts
constituting the petitioners good and substantial case of action or defense as the case may be.
Q: Now, does that requirement sound familiar again, that there must be an affidavit showing the fame
and the petitioners substantial cause of action or defense?
A: Yes, that is the requirement under the motion for new trial, affidavit of merits. Therefore, AFFIDAVIT
OF MERITS which is a requirement in Rule 37 is also a requirement in Rule 38. That is the identical
feature of new trial of fame and petition for relief.
Q: What will happen if a party files a petition for relief without any affidavit of merits, or with a defective
affidavit?
A: The defect is FATAL and the petition will be denied outright because of lack of affidavit merits. It is
the affidavit of merits which serves as the jurisdictional basis for the court to entertain a petition for
relief. (Fernandez vs. Tan Tiong Tick, L-15877, April 28, 1961)
Q: When do you file a petition for relief?
A: Once the judgment complained of has become final and executory because the remedy of new trial is
lost. But it does not mean that you can file your petition for relief anytime. There is also a deadline.
Q: What is the DEADLINE?
A: Under Section 3, the petition must be filed within:
SIXTY (60) DAYS from the time the petitioner learns of the judgment, order, or other proceedings to be
set aside, AND
Not more than SIX (6) MONTHS after such judgment or final order was entered, or such proceeding was
taken.
Q: What is the date of entry of judgment or final order?
A: It is the date of finality of judgment or final order (Rule 36, Section 2). So, the date of entry is deemed
to be the date of finality.
So there are two (2) periods: 60 days and 6 months; and BOTH periods must be complied with (Dirige vs.
Biranya, L-22033, July 30, 1966). Otherwise, if you fail to comply with the two periods the petition for
relief will be denied for being filed out of time.
PROBLEM: There was a judgment rendered against me in June 1997 and it became final and there was
entry of final judgment in June 1997, meaning talo na ako last year pa. But I learned about it only last
week or seven days ago. Today is February 1998. So I asked my lawyer to file a petition for relief this
week.
Q: Is the petition filed on time?
A: NO. It is filed out of time. It is true that I only learned about it a week ago. But definitely, the filing is
beyond 6 months from the date of its entry which is June 1997. You complied with the first period but
you did not comply with second period. Both periods must be complied.
PROBLEM: The judgment was entered against me last December 1997, and there was entry of final
judgment in December 1997. I learned about it last December also; and now March, 1998, I will file a
petition for relief from judgment.
Q: Can I still file the petition for relief?
A: No more. Although it is within 6 months (December to March is only 3 months) from date of entry BUT
definitely, between December to March is more than 60 days. So the petition can no longer be filed.
That is how you apply the two periods. Both periods must be complied.
Q: Is the period for filing a petition for relief extendible?
A: The remedy allowed by Rule 38 is merely an act of grace or benevolence intended to afford a litigant a
penultimate opportunity to protect his interest. Considering the nature of such relief and of the purpose
behind it, the periods fixed by said rule are NON-EXTENDIBLE and is never interrupted; nor can it be
subject to any condition or contingency because it is itself devised to meet a condition or contingency.
(Smith, Bell & Co. vs. Phil. Milling Co., 57 O.G. 2701, April 10, 1961; Quijano vs. Tameta, L-16473, April 20,
1961)
Well, of course, petition for relief according to SC, is penultimate remedy given by the law to a victim of
FAME. Because, if you are a victim of FAME, you lose the case because of that reason. Somehow the law
would like to help you lalo na pagna-default ka. O.K., you have Rule 9, file ka nang motion to lift order of
default. Hindi ako nakahabol eh, may-judgment na. O sige, Rule 38 petition for relief. But
paglumampas ka dyan, sorry na lang.
Meaning, the law cannot help you forever. The law can only help you up to a certain period. If you still do
not do anything about it, pasensiya ka na.
Sec. 4. Order to file an answer. If the petition is sufficient in form and substance to justify relief, the
court in which it is filed, shall issue an order requiring the adverse parties to answer the same within
fifteen (15) days from the receipt thereof. The order shall be served in such manner as the court may
direct, together with copies of the petition and the accompanying affidavits. (4a)
You file a petition for relief, the court will issue an order requiring the other party to answer. It is like a
complaint all over again where you are given 15 days to answer. Meaning sagutin mo Would you agree
that your opponent is a victim of FAME? In other words, do you agree or disagree? yan ang sagutin
mo. Do you agree that he has meritorious cause of action (or defense)? Meaning, you are given the
right to oppose the petition for relief.
Sec. 5. Preliminary injunction pending proceedings. The court in which the petition is filed, may grant
such preliminary injunction as may be necessary for the preservation of the rights of the parties, upon
the filing by the petitioner of a bond in favor of the adverse party all damages and costs that may be
awarded to him by reason of issuance of such injunction or the other proceedings following the
petition; but such injunction shall not operate to discharge or extinguish any lien which the adverse
party may have acquired upon the property of the petitioner. (5a)
Preliminary injunction actually is a type of provisional remedy which is governed by Rule 58. Injunction is
to stop ba, to enjoin somebody or stop the court from doing an act. That is the essence of injunction.
EXAMPLE: I lost in a case. The judgment became final and executory because I did not make an appeal.
However, I filed a petition for relief. In the meantime, my opponent is asking the court to execute the
decision which is his right because the judgment is already final and executory. In other words, I am
questioning the judgment of the court while siya naman, he is asking the court to enforce the judgment.
Q: Now, what is my remedy to stop the enforcement of the judgment?
A: Under Section 5, I can ask the court to issue a writ of preliminary injunction to stop the enforcement
of the judgment. But I have to put up a BOND conditioned that in the event that my petition for relief is
not meritorious, I will pay for all the damages that the other party will incur because of the delay in the
execution.
Sec. 6. Proceedings after answer is filed. After the filing of the answer or the expiration of the period
therefor, the court shall hear the petition and if after such hearing, it finds that the allegations thereof
are not true, the petition shall be dismissed; but if it finds said allegations to be true, it shall set aside
the judgment or final order or other proceedings complained of upon such terms as may be just.
Thereafter the case shall stand as if such judgment, final order or other proceeding had never been
rendered, issued or taken. The court shall then proceed to hear and determine the case as if a timely
motion for a new trial or reconsideration had been granted by it. (6a)
BAR QUESTION: When a petition for relief from judgment is filed, what are the hearings that will be
conducted by the court?
A: In proceedings for relief from judgment, there may be two (2) hearings, to wit:
a hearing to determine whether the judgment or order complained of should be set aside, and
if the decision thereon is in the affirmative, a hearing on the merits of the principal case.
 So, the FIRST HEARING is to determine whether the petition should be granted or not is the petition
meritorious or not? Was there FAME? Is there affidavit of merit? Is the affidavit proper? Is the petition
filed within the period allowed by the law or not? Now, if the petition is denied that is the end of the
story. Wala na.
Now, if the petition for relief is granted, the judgment will be set aside as if it never existed. Then we will
now try the case all over again as if a motion for new trial has been filed. That is the second hearing. The
SECOND HEARING is the trial on the merits or a trial de novo.
Now, somebody was commenting, Ito bang petition for relief parang appeal din? Is this similar to
appeal? The answer is NO. In the first place, there is no appeal here. Kaya nga the judgment has
become final and executory because there was no appeal. Now, in an appeal, for example: Natalo ka sa
kaso. When you appeal and you win, the decision will be overturned. From losing, you become the
winner. That is the effect of appeal.
But in petition for relief, you are not asking the court to change its decision. When a petition for relief
from judgment is granted, the decision against you will be set aside as if it was never rendered and we
will try the case all over again. In a petition for relief, the court has no power to change its decision
because it has already become final and executory. But its power under Rule 38 is to set it aside as if it
was never rendered and conduct a new trial as if a motion for new trial has been filed. So please do not
confuse Rule 38 with the remedy of appeal.
Sec. 7. Procedure where the denial of an appeal is set aside. Where the denial of an appeal is set aside,
the lower court shall be required to give due course to the appeal and to elevate the record of the
appealed case as if a timely and proper appeal had been made. (7a)
This is a continuation of Section 2 what can be questioned in Rule 38 is not only a judgment but also an
order, such as an order denying an appeal.
Q: Can I file a petition for relief from the denial of an appeal? A: YES.
Q: And if my petition for relief from the order denying the appeal is granted, what will happen?
A: According to Section 7, the court will now grant the appeal and allow the appeal to proceed as if it was
filed on time. Meaning, the judgment will not be set aside but I will be given the right to appeal if the
failure to file an appeal as due to FAME.
-oOo-
Rule 39
EXECUTION, SATISFACTION AND
EFFECT OF JUDGMENTS
Rule 39 is on the subject of Execution, Satisfaction and Effect of Judgments. This is the longest rule in the
study of Civil Procedure. Take note that there are 48 Sections. Let us first review the fundamentals.
Q: Define execution.
A: EXECUTION is the remedy provided by law for the enforcement of a judgment. (21 Am. Jur. 18) It is
the fruit and the end of the suit and is very aptly called the life of the law (PAL vs. Court of Appeals, 181
SCRA 557).
It would be useless if there is judgment but you cannot enforce the same. When you receive the decision
of court in your favor, what will you do with that? If there is no way to enforce that decision, i-laminate
mo na lang yan. Useless eh!
Q: Who will enforce the judgment?
A: The very same court which rendered the judgment.
Q: How is execution generally done?
A: It is generally done by filing a motion for execution by the prevailing party and the court will then issue
an order of execution, which will be followed with a writ of execution, and the sheriff will enforce the
judgment.
So, we file a motion in court after the judgment has become final and executory.
Q: How can the court issue the order when it has already lost jurisdiction over the case? because from
what we have learned here is that, one of the effects of the finality of judgment is that the court loses
jurisdiction over the case. And when the court loses jurisdiction, it can no longer act on the case. So, how
can it still issue orders in that case when actually, once the judgment becomes final and executory, the
trial court loses jurisdiction over the case and it can no longer act in that case?
A: What is meant by that statement is that, the court can no longer change the judgment. That is why
new trial and reconsideration is not anymore available in this stage. The judgment is beyond the power
of the court to change or alter.
BUT definitely the court can act on that case for the purpose of enforcing its judgment because it is
absurd to claim that a trial court has the power to try and hear a case but once the judgment has already
become final, it has no more power to enforce it. If you will really describe jurisdiction in its complete
aspect, we can say jurisdiction is the power of the court to act on the case, to try, to decide and to
enforce its judgment. That would be more complete. Because enforcement is part of the court's
jurisdiction.
Q: Against whom shall the execution issue?
A: Generally, execution can issue only against a (losing) party to the case and not against one who is a
complete stranger because majority of judgments are in personam. They are only enforceable against
the parties themselves or their successors-in-interest people who derive their rights from him. And a
judgement can never be enforced against a complete stranger who never had his day in court. (Cruzcosa
vs. Concepcion, 101 Phil. 146; Castaeda vs. De Leon, 55 O.G. 625, Jan. 26, 1959; Bacolod vs.
Enriquez, 55 O.G. 10545, Dec. 21, 1959)
Q: What portion in the decision is normally the subject of execution ?
A: It is the dispositive portion the WHEREFORE that is going to be enforced. (Robles vs. Timario,
58 O.G. 1507, Feb. 19, 1962)
CLASSES OF EXECUTION
Q: What are the classes of execution under the law?
A: The following:

I. As to their nature:
1.) COMPULSORY execution known as Execution as a Matter of Right (Section 1)
2.) DISCRETIONARY execution known as Execution Pending Appeal (Section 2)
II. As to how it is enforced (Section 6):
1.) EXECUTION BY MOTION
2.) EXECUTION BY INDEPENDENT ACTION
COMPULSORY EXECUTION
(Execution as a matter of right)
EXECUTION AS A MATTER OF RIGHT;
FIRST INSTANCE: NO APPEAL, JUDGMENT BECOMES FINAL
Section 1. Execution upon judgments or final orders. Execution shall issue as a matter of right, on
motion, upon a judgment or order that disposes of the action or proceeding upon the expiration of the
period to appeal therefrom if no appeal has been duly perfected.
If the appeal has been duly perfected and finally resolved, the execution may forthwith be applied for
in the court of origin, on motion of the judgment obligee, submitting therewith certified true copies of
the judgment or judgments or final order or orders sought to be enforced and of the entry thereof,
with notice to the adverse party.
The appellate court may, on motion in the same case, when the interest of justice so requires, direct
the court of origin to issue the writ of examination.
Q: What are the conditions for compulsory execution? A: The following are the conditions:
1.) FIRST CONDITION: If a judgment has disposed already of the action or proceeding then it can be
executed ;
2.) SECOND CONDITION: The period to appeal has expired and no appeal has been filed/taken
from the judgment.
Under the first condition, if a judgment has disposed already of the action or proceeding then it can be
executed because if the judgment or order has not yet disposed of the action or proceeding, that is
called an interlocutory judgment or order.
One of the effects of finality of a judgment under Rule 36 is that the prevailing party is entitled to have
the judgment executed as a matter of right. And it is the ministerial duty of the court to execute its own
judgment. So once the judgment has become final, all that the winner or prevailing party has to do is to
file an action in court for execution, the court has to issue.
When the law says it is a matter of right upon a judgment or order that disposes the action or
proceeding, it means that after the judgment was rendered, there is nothing more for the court to do
because its job is over. Therefore, if there is something more that the court can do, as a rule, you cannot
execute. That is why conditional judgments, incomplete judgments cannot be executed.
Under the second condition, we must wait for the period to appeal to expire before we can move for
execution. So, if the period to appeal has not yet expired, then we cannot execute the judgment. As
corollary to that rule we have this question:
Q: May the court refuse to execute a judgment on the ground that the judgement was wrong or
erroneous?
A: NO, because it is a matter of and the issuance of the corresponding writ of execution upon a final and
executory judgment is a ministerial duty of the court to execute which is compellable by mandamus.
(Ebero vs. Caizares, 79 Phil. 152) The principle is: No matter how erroneous a judgment may be, so long
as the lower court had jurisdiction over the parties and the subject matter in litigation, (in short the
judgment is valid), the said judgment is enforceable by execution once it becomes final and executory.
The error also becomes final. If it is erroneous, the remedy is to appeal, otherwise the error becomes
final as well.
In execution, if you are not careful, there are lawyers who are very good in thwarting an execution where
a series of maneuvers are utilized - we can still be delayed by questioning this and that and sometimes
courts are unwitting accomplices. That is why in the 1994 of
PELAYO vs. COURT OF APPEALS 230 SCRA 606
HELD: We have time and again ruled that courts should never allow themselves to be a party to
maneuvers intended to delay the execution of final decisions. They must nip in the bud any dilatory
maneuver calculated to defeat or frustrate the ends of justice, fair play and prompt implementation of
final and executory judgment. Litigation must end and terminate sometime and somewhere, and it is
essential to an effective administration of justice that once a judgment has become final, the winning
party be not, through a mere subterfuge, deprived of the fruits of the verdict. Courts must therefore
guard against any scheme calculated to bring about that result. Constituted as they are to put an end to
controversies, courts should frown upon any attempt to prolong them.
GENERAL RULE: Judgment is enforceable by execution once it becomes final and executory. EXCEPTIONS:
(WOLFSON vs. DEL ROSARIO, 46 Phil. 41)
1. When there has been a change in the situation of the parties, which makes the execution
inequitable;
2. When it appears that the controversy has never been submitted to the judgment of the court;
3. When the judgment was novated by subsequent agreement of the parties;
4. When it appears that the writ of execution has been improvidently issued;
5. When the writ of execution is defective in substance;
6. When the writ of execution is issued against the wrong party; and
7. When the judgment debt has been paid or otherwise satisfied.
[1] WHEN THERE HAS BEEN A CHANGE IN THE SITUATION OF THE PARTIES WHICH MAKE THE EXECUTION
INEQUITABLE. (Supervening Fact Doctrine)
One of the most important exceptions is the first one: When there has been a change in the situation of
the parties which make the execution inequitable. Meaning, from the time na nagkaroon ng final
judgment up to the present, there has been a change in the situation of the parties so that if we will
execute, the judgment becomes inequitable already. So, this is just another way of saying that there has
been a SUPERVENING EVENT that happened which makes execution inequitable.
EXAMPLE: There was a case where A filed a case to eject B from his property and B lost the case and
there was a judgment ordering him to vacate the property of A. But while the case was going on, A
mortgaged his property to the bank. In the meantime, he failed to pay his loan and the bank foreclosed
the mortgage. So the property was sold at public auction. And at the auction sale, B, the one occupying
it, bought the property. The owner now is B. But there is a final judgment ejecting him. Now, shall we
insist on the judgment ejecting B? No because B is now the owner. The fact that B became the owner is a
supervening event.
PHIL. VETERANS BANK (PVB) vs. IAC 178 SCRA 645
NOTE: There was a time before that the PVB was closed for 5 to 6 years because I think they have some
problems. So the Central Bank has to take over. The Central Bank has ordered to stop the operation
placed under receivership, the Central Bank will control. Now under the Central Bank Law, once the
Central Bank takes over the control of a private bank, all its assets has to be preserved. No assets will be
sold or disposed of.
FACTS: There was somebody who sued PVB, and PVB lost. So there was a judgment which became final.
And the winner asked the court to execute. Practically, you have to levy on the property of the bank. In
the meantime, the PVB was placed under receivership, where under the law, it cannot be disposed of
because it is under the control of the Central Bank.
ISSUE: Can the prevailing party insist on the enforcement of the judgment and get and levy the property
of the PVB?
HELD: NO. The placement of the bank under receivership is a SUPERVENING EVENT. Once a decision has
become final and executory, it is the ministerial duty of the court to order its execution, admits certain
exceptions. The fact that petitioner is placed under receivership is a supervening event that renders a
judgment notwithstanding its finality unenforceable by attachment or execution.
SAMPAGUITA GARMENTS CORP. vs. NLRC 233 SCRA 260
FACT: An employee was terminated by his employer on the ground of theft. He stole company property.
The management filed also a case of theft against the employee. But in the meantime the employee also
filed a labor case against the employer for illegal dismissal and prayed for reinstatement with back
wages. After hearing, the NLRC ruled that there was illegal termination and ordered the reinstatement of
the employee and payment of backwages. The NLRC decision became final. In the meantime, the
accused was convicted in the criminal case for theft and ordered to go to prison.
ISSUE: What happens now to the final judgment of the NLRC reinstating the employee?
HELD: An employees conviction for theft, which was affirmed by the RTC and the CA, is a SUPERVENING
CAUSE that renders unjust and inequitable the NLRC decision mandating the employees reinstatement
with backwages.
Take note however that for the supervening event to apply, the supervening event must happen after
the judgment has become final and executory. Not that the supervening event happened while the case
was going on. If the case is going on and something happened which you believe would make the
decision against you unfair, your duty is to bring it to the attention of the court so that the court deciding
the case would take that into consideration. In the case of
VALENSONA vs. COURT OF APPEALS 226 SCRA 36
HELD: While the rule is that a stay of execution of a final judgment may be authorized if necessary to
accomplish the ends of justice, as for instance, where there has been a change in the situation of the
parties which makes such execution inequitable, nevertheless the said rule cannot be invoked when the
supposed change in the circumstances of the parties took place while the case was pending, for the
reason that there was then no excuse for not bringing to the attention of the court the fact or
circumstance that affects the outcome of the case.
The ruling in VALENZOLA was reiterated in
ABOITIZ vs. TRAJANO 278 SCRA 387 [1997]
HELD: We are of course well aware of the rule authorizing the court to modify or alter a judgment even
after the same has become executory, whenever circumstances transpire rendering its execution unjust
and inequitable. However, this rule, we must emphasize, applies only to cases where the facts or
circumstances authorizing such modification or alteration transpired after the judgment has become
final executory.
[3] WHEN THE JUDGMENT WAS NOVATED BY SUBSEQUENT AGREEMENT.
QUESTION: Can the parties enter into a compromise agreement when there is already a decision?
ANSWER: YES. Compromise agreement is welcome anytime before the case is filed, while the case is
going on, while the case is on appeal.
Q: Now suppose there is a decision in my favor against you and then you approach me and say, Pwede
ba pag-usapan na lang natin ito? Sige okay. Then we arrive at another agreement which we signed,
where the agreement is different from the decision in my favor. Can it be done?
A: Yes, I can waive my rights under the judgment. There is now a new agreement between us.
Q: Can I execute on the original judgment?
A: No more, because the new agreement novated the judgment. Take note that in case of novation, the
new obligation must be totally incompatible with the first obligation.
A related question:
Q: Can one court by injunction or restraining order stop the execution of a judgment of another court?
A: GENERAL RULE: NO, because that will amount to interference.
EXCEPTIONS:(when the enforcement of a final judgment may be stopped by way of injunction) 1.) Rule
38, Section 5:
Rule 38, Section 5: Preliminary injunction pending proceedings. The court
in which the petition is filed, may grant such preliminary injunction as may be necessary for the
preservation of the rights of the parties, upon the filing by the petitioner of a bond in favor of the
adverse party, conditioned that if the petition is dismissed or the petitioner fails on the trial of the case
upon the merits, he will pay the adverse party all damages and costs that may be awarded to him by
reason of the issuance of such injunction or the other proceedings following the petition; but such
injunction shall not operate to discharge or extinguish any lien which the adverse party may have
acquired upon the property of the petitioner.
In effect, there is a final and executory judgment but the court will issue an injunction to stop this
enforcement because of the pendency of a petition for relief from judgment.
[2] WHEN THERE IS AN ACTION FOR ANNULMENT OF JUDGMENT OF THE RTC FILED IN THE CA.
The CA may issue a writ of preliminary injunction annulment of judgment, certiorari, or prohibition
cases where the CA will issue a preliminary injunction to stop the RTC from enforcing its judgment
pending the resolution of whether its judgment was rendered in excess or without jurisdiction-
annulment of judgement, certiorari, or prohibition cases where the CA will issue a preliminary injunction
to stop the RTC from enforcing its judgement pending the resolution of whether its judgement was
rendered in excess or without jurisdiction.
So, those are the exceptions.
EXECUTION AS A MATTER OF RIGHT; SECOND INSTANCE: CA AFFIRMS THE RTC JUDGMENT
Q: Is there any other instances where a judgement maybe executed as a matter of right?
A: YES, when the losing party appealed the RTC decision to the CA and the CA affirmed the decision of
the RTC. Kung may appeal, the judgment is not final, you cannot execute. The case is now in the CA, the
CA decided in your favor, the RTC judgment was affirmed and the CA decision has also become final and
executory. So you can now execute.
Q: How do you execute in that situation?
A: That is now covered by the second and third paragraphs of Section 1:
If the appeal has been duly perfected and finally resolved, the execution may forthwith be applied for in
the court of origin, on motion of the judgment obligee, submitting therewith certified true copies of the
judgment or judgments or final order or orders sought to be enforced and of the entry thereof, with
notice to the adverse party.
The appellate court may, on motion in the same case, when the interest of
justice so requires, direct the court of origin to issue the writ of execution.
Now the usual procedure no, when you win in the RTC and the losing party appeals, the records of the
case will be brought to the CA. Later, there will be a CA decision: The judgment of the RTC of Davao City
is affirmed in toto. Now you have to wait for the CA judgment to become final because that may be
appealed further to the SC. If the judgment becomes final, the clerk of court will make an entry of final
judgment of the CA decision. Normally after that, the records from the CA will be returned to Davao. It
will be sent back to the court of origin. Once the record is back, the RTC is supposed to tell you, the
records are here. That is the time you file a motion for execution. You will file it in the RTC.
But sometimes, it takes months for the CA to return the records. That is the trouble with the CA. It takes
them several months, when the case is appealed, before they tell you that the record is here.
In the PRESENT rules, this is taken from the SC Circular 24-94 which took effect in 1994, hindi na
kailangan hintayin ang records na bumalik dito. Just get a certified copy of the CA decision, get a copy of
the entry of final judgment of the CA. You just attach a copy of the CA judgment and a certificate from
the CA clerk of court that it is already final and executory - meaning, that there is already entry of final
judgment. This is much faster than waiting for the records to be returned.
The first paragraph in Section 1 normally deals with judgment usually becoming final and executory in
the RTC. The rest of the paragraph deals with appeal which affirmed the decision of the RTC. So that is
the procedure for execution both cases, execution is a matter of right because judgment is final and
executory.
The alternative which is the last paragraph, in the interest of justice, you can file also your motion for
execution in the CA and the CA will direct the RTC to issue the writ of execution.
EXECUTION AS A MATTER OF RIGHT; THIRD INSTANCE: CASES UNDER SECTION 4
Q: Is there another instance when execution becomes a matter of right? A: This is the third instance
found in Section 4:
Sec. 4. Judgments not stayed by appeal. - Judgments in action for injunction, receivership, accounting
and support, and such other judgments as are now or may hereafter be declared to be immediately
executory, shall be enforceable after their rendition and shall not be stayed by an appeal taken
therefrom, unless otherwise ordered by the trial court. On appeal therefrom, the appellate court in its
discretion may make an order suspending, modifying, restoring or granting the injunction,
receivership, accounting, or award of support.
The stay of execution shall be upon such terms as to bond or otherwise as may be considered proper
for the security or protection of the rights of the adverse party. (4a)
GENERAL RULE: If there is an appeal, the judgment will be stayed.
EXCEPTIONS (Under Section 4): Judgments in actions for injunction, receivership, accounting, support,
judgment declared to be immediately executory.
So, actions for injunction, receivership, accounting, support. So for example: theres an injunction from
the court: The defendant is enjoined from trespassing on plaintiffs land. Then you appealed. So, the
decision is not final. Now, if the judgment is not yet final, what will you do in the meantime. So, youll
say; Ill just continue to trespass because anyway the judgment is not yet final. Ah hindi yan pwede.
Even if the judgment is not yet final, even if it is on appeal, you have to honor the injunction. So, in
effect, it is a matter of right.
Another Example: An order directing you to render an accounting. Take the case of recovery of
possession of land with accounting of the income that you received. After trial, Okey, Defendant, you
turn over the possession of the property to the plaintiff and you render an accounting. Appeal ka. Pag
appeal mo, there must be an accounting in the meantime.
So, if there is a judgment for an action for support, you must comply with the judgment even before it
becomes final. So, the amendment now includes support and this phrase, such other judgments as are
now or may hereafter be declared to be immediately executory. Any judgment which is declared by law
to be immediately executory has to be enforced even before it becomes final and executory even if there
is an appeal.
Q: Give an example of a law which declares a judgement to be immediately executory?
A: The best example would be the Summary Procedure where a decision of the MTC in a civil case is
appealed to the RTC, the decision of the RTC is immediately executory even if we go to the CA. It has to
be executed unless the appellate court will stop the execution in the meantime.

EXECUTION AS A MATTER OF RIGHT;
FOURTH INSTANCE: FORCIBLE ENTRY AND UNLAWFUL DETAINER CASES
Q: Is there another instance when execution becomes a matter of right?
A: YES, under Rule 70 a judgment of the MTC in a forcible entry or unlawful detainer case is
immediately executory (i.e. subject to immediate execution) even if it is not yet final and executory.
TO SUMMARIZE:
Q: When is execution a matter of right? A: In the following:
1.) Section 1, paragraph 1 no appeal; judgment becomes final;
2.) Section 1, paragraph 2 there is an appeal; once the CA judgment becomes final;
3.) Section 4 Judgment in an action for injunction, receivership, accounting, support, judgment
declared to be immediately executory; and
4.) Rule 70 Judgments in Forcible Entry and Unlawful Detainer cases.
DISCRETIONARY EXECUTION
(Execution pending appeal)
Section 2. Discretionary execution.
(a) Execution of a judgment or final order pending appeal. On motion of the prevailing party
with notice to the adverse party filed in the trial court while it has jurisdiction over the case
and is in the possession of either the original record or the record on appeal, as the case may
be, at the time of the filing of such motion, said court may, in its discretion, order the
execution of a judgment or final order even before the expiration of the period to appeal.
After the trial court has lost jurisdiction, the motion for execution pending appeal may be
filed in the appellate court.
Discretionary execution may only issue upon good reasons to be stated in a special order after
due hearing.
(b) Execution of several, separate or partial judgments. - A several, separate or partial judgment
may be executed under the same terms and conditions as execution of a judgment or final
order pending appeal.
Well now go to the second type of execution - discretionary or execution pending appeal. Discretionary,
meaning, the court may or may not order the execution.
Here, the prevailing party files a motion for execution within the 15 days period. So in other words, the
judgment is not yet final and executory, normally, within the period to appeal.
Q: Normally, can you file a motion for execution within the period to appeal?
A: As a rule, you cannot because it is not yet final. But by EXCEPTION, Section 2 allows you, provided,
according to the last paragraph, discretionary execution may only issue upon good reason to be stated
in the special order after due hearing.
Q: Therefore, what are the requisites for discretionary execution?
A: The following are the requisites for discretionary execution:
1.) There must be a motion filed by the prevailing party;
2.) There must be a notice of the motion given to the adverse party; and
3.) There must be good reasons to execute to be stated in a special order after due hearing.
Why discretionary? Because the court may or may not grant the execution depending on whether there
is a good reason or no good reason. Unlike in Section 1, when the judgment has become final and
executory, you do not have to cite any good reason. The only reason for the execution is that the
judgment becomes final and executory. But in the case of execution pending appeal, you must justify it
the party must convince the court to grant the execution. And remember according to the SC,
execution under Section 2 is not the general rule, that is the exception.
The requirement of good reason is important and must not be overlooked, because if the judgment is
executed and, on appeal, the same is reversed, although there are provisions for restitution, oftentimes
damages may arise which cannot be fully compensated. Accordingly, execution should be granted only
when these considerations are clearly outweighed by superior circumstances demanding urgency, and
the above provision requires a statement of those circumstances as a security for their existence. (City
of Bacolod vs. Enriquez, 101 Phil. 644)
It is even a misnomer execution pending appeal. For all you know, the losing party may or may not
appeal. It is actually called execution pending appeal because you are filing the motion within the period
to appeal.
Q: What will happen if there are no good reasons?
A: The writ of execution is void because it does not state why you are executing a judgment.
(AFWU vs. Estipona, L-17934, Dec. 28, 1961) And remember that execution pending appeal is the
exception rather than the rule. And there is a possibility that the judgment in your favor will be reversed
on appeal.
Q: Suppose we will execute the judgment pending appeal and the appeal will proceed then it will be
reversed, what will happen then?
A: If that happens, then there is Section 5 eh di, magsaulian tayo if it is reversed totally, partially,
or annulled on appeal or otherwise. There will be MUTUAL RESTITUTION. That is the remedy under
Section 5. But the trouble is ang hirap man ng saulian, eh. There could not be a 100% perfect restitution.
That is the same asking the question, how can you unscramble an unscrambled egg? This is one reason
why execution pending appeal is not favored.
Section 5. Effect of reversal of executed judgment. - Where the executed judgment is reversed totally
or partially, or annulled, on appeal or otherwise, the trial court, may, on motion, issue such orders and
justice may warrant under the circumstances (5a)
Q: Give examples of GOOD REASONS which would justify execution pending appeal. A: Following are
example of good reasons:
1.) When there is danger of the judgment becoming INEFFECTUAL. (Scottish Union vs. Macadaeg, 91
Phil. 891);
In this case of MACADAEG, the plaintiff sued a foreign corporation doing business in the Philippines. So it
has assets no? The plaintiff sued the foreign company and he won, there was award, but hindi pa final. In
the meantime, plaintiff learned the foreign company is going to stop completely its business in the
Philippines and they are going to send back all their assets abroad. Sabi ng na plaintiff: Aba delikado
ako. Suppose after the appeal, I still win and I will start running after the defendant na wala naman dito.
It has no more office, no operations, no assets; but in the meantime meron pa? So the plaintiff filed a
motion for execution pending appeal. If we will wait for the judgment to become final, by that time the
judgment will become ineffectual.
2.) OLD AGE; There was a case an old woman files a case against somebody to recover her land from the
defendant which the latter has deprived her of the property for years. The defendant enjoyed the
property and the fruits. After years of litigation she won, she was about 80. And then mag-aappeal pa
yong kalaban. The old woman filed a motion in court asking for immediate execution even if the
judgment is not yet final on the argument that I have been deprived for years of the possession and of
the property; and there is a probable appeal which may take another couple of years. By the time I win
the case on appeal, I may already be dead. I have not enjoyed the property and the fruits. The SC said,
all right that is a good reason.
3.) Where the appeal is for the purpose of DELAY;
Q: How about the argument that the intended appeal is dilatory? It is only intended to prolong the
supposed execution and therefore the losing party has a chance to win the appeal. Is that a good ground
for execution pending appeal ?
A: In the old case of PRESBITERO vs. RODAS (73 Phil. 300) and JAVELLANA vs. QUERUBIN (July 30, 1966)
the SC said that, that is a good reason when the appeal is interposed for delay.
However, in the case of AQUINO vs. SANTIAGO (161 SCRA 570) the SC said that it is not a ground because
it is as if the trial court is already acting like the CA. It is only the CA which has the power to claim that
the appeal is without merit. Thats another reasoning.
But in the case of HOME INSURANCE CO. vs. CA (184 SCRA 318), the SC ruled that, that would be a good
reason again specially that there are many factors to show the inequity of not executing the judgment
immediately (if coupled with other reason). Thats why in the case of
HOME INSURANCE CO. vs. COURT OF APPEALS 184 SCRA 318
HELD: A good and sufficient reason upon which to issue execution of the judgment pending appeal is
when the appeal is being taken for the purpose of delay. While it is true that it is not for the trial court to
say that the appeal may not prosper or that it is frivolous [so, the SC is aware of these pronouncements],
there are circumstances which may serve as cogent bases for arriving at such a conclusion. Dean I: An
example where the trial court maybe justified in saying that the appeal is dilatory is in default
judgements where there is no evidence for the defendant. And then the defendant appeals. Now what is
the chance of reversal when all the evidence is for the plaintiff? The possibility that the judgment will be
reversed is almost zero (0). Therefore the court can rule that the appeal is dilatory and then order the
execution of the judgment pending appeal upon motion of the plaintiff.
The SC continues: Another vital factor which led trial court to allow execution pending appeal was the
pendency of the case for more than 17 years so that the purchasing power of the peso has undeniably
declined. Petitioner should be given relief before it is too late.
PB COM. vs. COURT OF APPEALS 279 SCRA 364 [Sept. 23, 1997]
HELD: It is significant to stress that private respondent Falcon is a juridical entity and not a natural
person. Even assuming that it was indeed in financial distress and on the verge of facing civil or even
criminal suits, the immediate execution of a judgment in its favor pending appeal cannot be justified as
Falcon's situation may not be likened to a case of a natural person who may be ill or may be of advanced
age.
Even the danger of extinction of the corporation will not per se justify a discretionary execution unless
there are showings of other good reasons, such as for instance, impending insolvency of the adverse
party or the appeal being patently dilatory. Hence, it is not within competence of the trial court, in
resolving a motion for execution pending appeal, to rule that the appeal is patently dilatory and rely on
the same as its basis for finding good reason to grant the motion. Only an appellate court can appreciate
the dilatory intent of an appeal as an additional good reason in upholding an order for execution pending
appeal which may have been issued by the trial court for other good reasons, or in cases where the
motion for execution pending appeal is filed with the appellate court in accordance with Section 2,
paragraph (a), Rule 39 of the 1997 Rules of Court.
4.) When the successful party files a BOND;
Q: Here is a controversial question: How about an instance when the winning party offers to put up a
bond. He says; Alright, I am asking for an order pending appeal. I will put up a bond to answer for any
damages that the defendant may suffer in the event that he wins the appeal.
A: In the old case of HACIENDA NAVARRA vs. LABRADOR (65 Phil 635), the SC simply implied that there is
a good ground. HOWEVER, the SC denied that implication in later cases. Among which were the cases of
ROXAS vs. CA (157 SCRA 370) and PNB vs. PUNO, (170 SCRA 229) and PHOTOQUICK INC. vs. LAPENA, JR.
(195 SCRA 66).
PHILIPPINE NATIONAL BANK vs. PUNO 170 SCRA 229
HELD: The mere filing of a bond would not entitle the prevailing party to an execution pending appeal.
Whatever doubts may have been generated by early decisions involving this matter, starting with
Hacienda Navarra, Inc. vs. Labrador, et al., have been clarified in Roxas vs. Court of Appeals, et al.
To consider the mere posting of a bond a good reason would precisely make
immediate execution of a judgment pending appeal ROUTINARY, the rule rather than the exception.
Judgments would be executed immediately, as a matter of course, once rendered, if all that the
prevailing party needed to do was to post a bond to answer for the damages that might result
therefrom. This is a situation, to repeat, neither contemplated nor intended by law.
So, we might say that the posting of a bond would be an ADDITIONAL GOOD REASON but it is NOT BY
ITSELF a good reason. So, the case of HACIENDA NAVARRA VS. LABRADOR has been misinterpreted.
The second paragraph of Section 2 [a]:
After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the
appellate court.
Q: Where can you file your motion for execution pending appeal?
A: It DEPENDS:
1.) TRIAL COURT - while it has jurisdiction over the case and the court is still in possession of the records
of the case. Meaning: (1.) the judgment has not yet become final - it is still within the 15 day period, and
(2.) the court still is in possession of the records of the case.
2.) APPELLATE COURT after the trial court has already lost jurisdiction, the motion for execution
pending appeal may already be filed in the appellate court.
So, if the RTC has no more jurisdiction, then doon ka na mag-file ng motion sa CA. Q: When will the court
lose jurisdiction over the case ?
A: With regard to execution pending appeal, you can correlate this with RULE 41, SECTION 9 , to
wit:
Rule 41, Section 9. Perfection of appeal; effect thereof. - A partys appeal by notice of appeal is deemed
perfected as to him upon the filing of the notice of appeal in due time.
A partys appeal by record on appeal is deemed perfected as to his with respect to the subject matter
thereof upon approval of the record of appeal filed in due time.
In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the
appeals filed in due time and the expiration of the time to appeal of the other parties.
In appeals by record on appeal, the court loses jurisdiction only over the
subject matter thereof upon the approval of the records on appeal filed in due time and the expiration of
the time to appeal of the other parties.
In either case, prior to the transmittal of the original record of the record on appeal, the court may issue
orders for the protection and preservation of the rights of the parties which do not involve any matter
litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution
pending appeal in accordance with Section 2 of Rule 39, and allow withdrawal of the appeal. (9a)
The phrase order execution pending appeal in accordance with Section 2 of Rule 39 was not there in
the Old Rules. Now, that has been added and it jives with Section 2 paragraph (a). Now, for as long as the
motion is filed, before the court loses jurisdiction and provided that the records are still with the trial
court , even if the appeal is subsequently perfected, it can still act on the motion for execution pending
appeal.
Now, let us go back to Section 2, Rule 39 on execution of several, separate or partial judgments
meaning, there are several judgments arising from the same case:
Rule 39, Section 2 [b]:
b) Execution of several, separate or partial judgments. - A several, separate or partial judgment may be
executed under the same terms and conditions as execution of a judgment or final order pending
appeal. (2a)
Let us correlate this provision with Rule 36, Sections 4 and 5 AND Rule 37, section 8:
RULE 36, Sec. 4. Several judgments. - In an action against several defendants, the court may, when a
several judgment is proper, render judgment against one or more of them, leaving the action to
proceed against the others. (4)
RULE 36, Sec. 5. Separate judgments. - When more than one claim for relief is presented in an action,
the court, at any stage, upon a determination of the issues material to a particular claim and all
counterclaims arising out of the transaction or occurrence which is the subject matter of the claim,
may render a separate judgment disposing of such claim. The judgment shall terminate the action with
respect to the claim so disposed of and the action shall proceed as to the remaining claims. In case a
separate judgment is rendered, the court by order may stay its enforcement until the rendition of a
subsequent judgment or judgments and may prescribe such conditions as may be necessary to secure
the benefit thereof to the party in whose favor the judgment is rendered. (5a)
RULE 37, Sec. 8. Effect of order for partial new trial. - When less than all of the issues are ordered
retried, the court may either enter a judgment or final order as to the rest, or stay the enforcement of
such judgment or final order until after the new trial. (7a)
Q: Can there be two or more judgments arising out of one case? A: YES. (Rule 36, Sections 4 and 5)
Q: Can the first judgment be immediately executed while waiting for rendition of the second judgment?
A: Generally, the court will decide. If the court agrees, there has to be a good reason. There is one
interesting case on execution pending appeal the case of
RCPI vs. LANTIN
134 SCRA 395
FACTS: The case of Lantin was an action for damages. The court awarded the plaintiff said damages. So,
the plaintiff moved for discretionary execution.
ISSUE: Whether or not execution pending appeal is proper in a judgment for damages.
HELD: The execution pending appeal may be proper for enforcing the collection of ACTUAL DAMAGES,
but it is not proper to enforce the payment of moral or exemplary damages. So, this is where the SC
distinguished.
Why is it that execution pending appeal is proper for the collection of actual damages? In actual or
compensatory damages, the amount is certain. Normally, there are receipts. The amount is based on
evidence.
But the award for moral or exemplary damages is uncertain and indefinite. It is based on abstract factors
like sleepless nights, besmirched reputation. It is hard to quantify it based on evidence.
The SC said, in many cases the trial court awards a huge amount for exemplary damages but on appeal,
the CA refused to award or totally eliminate the award. So, if the award of moral or exemplary damages
is not certain or fixed, the execution pending appeal may not be proper to enforce its execution.
Sec. 3. Stay of discretionary execution. - Discretionary execution issued under the preceding section
may be stayed upon approval by the proper court of a sufficient supersedeas bond filed by the party
against whom it is directed, conditioned upon the performance of the judgment or order allowed to be
executed in case it shall be finally sustained in whole or in part. The bond thus given may be
proceeded against on motion with notice to the surety. (3a)
Q: Now, assuming that there is an execution pending appeal in favor of the plaintiff under Section 2 and I
am the defendant, is there a way for me to stop the execution pending appeal?
A: Your remedy is to apply Section 3. The defendant will now ask the court to fix a supersedeas bond to
stop the execution pending appeal. The bond will answer for any damages that the plaintiff may suffer if
the defendants appeal is not meritorious.
And once the supersedeas bond is filed, the court has to withdraw the execution pending appeal.
Supersedeas bond under Section 3 is conditioned upon the performance of the judgment or order
allowed to be executed in case it shall be finally sustained in whole or in part.
GENERAL RULE: When a defendant puts up a supersedeas bond, the court shall recall the execution
pending appeal because discretionary execution is the exception rather than the general rule.
EXCEPTION: Notwithstanding the filing of the supersedeas bond by the appellant, execution pending
appeal may still be granted by the court IF THERE ARE SPECIAL AND COMPELLING REASONS justifying the
same outweighing the security offered by the supersedeas bond. (De Leon vs. Soriano, 95 Phil. 806)
EXAMPLE OF EXCEPTION: Judgment for SUPPORT. The same may be executed pending appeal even
notwithstanding the filing of a supersedeas bond by the appellant. (De Leon vs. Soriano, 95 Phil. 806)
Support is something which should not be delayed. What is the use of the supersedeas bond when the
need of the plaintiff is today and not 5 or 6 weeks from now? [aber?]
Alright, let us go to the next important classification of execution. The other classification as to the
manner of enforcement could be by MOTION or by INDEPENDENT ACTION.
EXECUTION BY MOTION EXECUTION BY INDEPENDENT ACTION
Sec. 6. Execution by motion or by independent action. - A final and executory judgment or order may be
executed on motion within five (5) years from the date of its entry. After the lapse of such time, and
before it is barred by the statute of limitations, a judgment may be enforced by action. The revived
judgment may also be enforced by motion within five (5) years from the date of its entry and thereafter
by action before it is barred by the statute of limitations. (6a)
Q: How do you execute a judgment?
A: You file a motion for execution before the same court which rendered the judgment.
Q: How is the execution enforced?
A: There are two 2 modes under Section 6:
1.) Execution by motion within five (5) years from the date of its entry; and 2.) Execution by
independent action within five (5) to ten (10) years.
Execution BY MOTION means that the prevailing party shall ask the court to issue a writ of execution by
simply filing a motion in the same case.
EXAMPLE: I am the plaintiff and I have a judgment here against the defendant. I do not know of any
assets of the defendant because the defendant for the meantime is as poor as a rat. But after a certain
period of time he becomes a wealthy man. All I have to do is to file a motion and the court will order the
execution, provided the motion is filed within 5 years from the date of the entry of judgment. The date
of the entry of judgment and the date of finality are the same (Rule 36, Section 2).
Q: Suppose the defendant becomes rich after 5 years, can I still file a motion to execute?
A: No more, because execution by motion must be filed within 5 years only from the date of its entry. If
the judgment was not executed within the 5-year period, the judgment has become dormant.
Q: What is a dormant judgment?
A: A DORMANT judgment is one that was not executed within 5 years.
Q: So, how can that (dormant) judgment be awaken?
A: The procedure is to file another civil action. A civil action for revival of judgment. That is what you call
EXECUTION BY INDEPENDENT ACTION which must be filed before it is barred by the statute of
limitations. The second sentence states, after the lapse of such time (which is 5 years) and before it is
barred by the statute of limitations, a judgment may be enforced by action.
Q: When will it be barred by the statute of limitations ?
A: According to Article 1144 of the New Civil Code, the judgment may be enforced only within ten
(10) years.
Therefore, since the judgment will be enforced by motion for five (5) years, then after the fifth year, it
will be enforced by independent action. So, I will start the civil action for revival of judgment between or
after the 5th year but before the 10th year. So, that is what we have to remember.
Q: Do you mean to tell me that I have to file the case all over again, practically repeating what happened
5 years ago?
A: NO, because the judgment in the independent action is a judgment reviving the first judgment.
For example, more than 5 years ago I sued you to collect on a promissory note and you alleged payment,
and you lost and the court said that you are liable to me. On the seventh year when I revived that
judgment, my rights are no longer based or derived on the promissory note but on such judgment. But
you can still invoke other defenses such as lack of jurisdiction, fraud. But you cannot question the
correctness of the original judgment because that is already res adjudicata. You are entitled to put up
any defense that you have against me provided that you cannot question the correctness of the original
judgment. That is the rule.
Q: Discuss briefly the nature of the action for enforcement of a dormant judgment.
A: The action for enforcement of a dormant judgment is an ordinary civil action the object of which is
two-fold, namely, (a) to revive the dormant judgment, and (b) to execute the judgment reviving it, if it
grants the plaintiff any relief. Hence, the rights of the judgment-creditor depend upon the second
judgment. Being an ordinary civil action, it is subject to all defenses, objections and counterclaims which
the judgment-debtor may have except that no inquiry can be made as to the merits of the first judgment.
Therefore, defenses that do not go to the merits of the first judgment, such as lack of jurisdiction,
collusion, fraud, or prescription, may be set sup by the judgment-debtor. (Cia. Gral. De Tabacos vs.
Martinez, 17 Phil. 160; Salvante vs. Ubi Cruz, 88 Phil. 236) [Taken from Remedial Law Reviewer by
Nuevas]
Q: Give the exception to the rule on dormant judgment.
A: The only exception is the judgment for support which does not become dormant, nor does it
prescribe. You can execute it anytime even beyond the 5-year period and any unpaid installment may be
executed by motion. (Florendo vs. Organo, 90 Phil. 483) So, even if the judgment is more than 5 years
old, the defendant defaulted on the seventh year, you just file a motion to collect that judgment.
Q: Suppose the judgment was executed and the property of the defendant was levied on the 4th year,
and the next stage is the auction sale.
A: The SC said the auction sale must also be WITHIN 10 years. So, even if the property was levied, the
auction sale must be within 10 years. Not only the levy of the property must be done within 10 years but
also the including the auction sale, otherwise, any auction sale done beyond 10 years in null and void.
Now, look at the last sentence in Section 6: The revived judgment may also be enforced by motion
within five (5) years from the date of its entry and thereafter by action before it is barred by the statute
of limitations.
For example, I have here a judgment nine (9) years ago. I want to enforce it by action to revive judgment.
You mean to tell me that the revived judgment is good for another ten (10) years? Another 5 years for
motion to a right of action and then I can still revive it within 10 years?
Alright, in the original case of PNB vs. BONDOC (14 SCRA 770), the SC said that the period applies all over
again from the finality of the revived judgment. So, you have another ten (10) years. However, this
principle is abandoned in the later case of PNB vs. VELOSO (32 SCRA 266), the SC said that the original
period is only computed from the date of the original judgment.
And of course, because of those 2 conflicting cases, the court resolved those issues in the case of LUZON
SURETY CO. vs. IAC (151 SCRA 652) where the SC said, the later doctrine of VELOSO prevails. So, with that
ruling, the 10-year period applies only from the date of the original judgment, but you cannot say that
once it is revived, you have another 10 years.
But now, you look at the new law: The revived judgment may also be enforced by motion within five (5)
years from the date of its entry and thereafter by action before it is barred by the statute of limitations.
Ano yan? That is a revival of the BONDOC ruling! Binalik yung original ruling which is, the revived
judgment is good for another 10 years.
So, I repeat, the last sentence has resurrected the ruling in the case of PNB vs. BONDOC and superseded
again LUZON vs. IAC. You are entitled to another 10 years from the date of the revived judgment.
ILLUSTRATION:
Example: First judgment became final in 1990. You can enforce that until 2000 by motion (1990- 1995) or
by independent action (1995 2000). Suppose in 2000, you were able to secure a second judgment
reviving the first judgment, under the new rules, there is another ten years. The first judgment by
motion. The next 5 years is by independent action. So, to illustrate:
ARCENAS vs. COURT OF APPEALS 299 SCRA 733 (December 4, 1998)
HELD: The purpose of the action for revival of a judgment is not to modify the original judgment subject
of the action but is merely to give a creditor a new right of enforcement from the date of revival.
The rule seeks to protect judgment creditors from wily and unscrupulous debtors who, in order to
evade attachment or execution, cunningly conceal their assets and wait until the statute of limitation
sets in.
Sec. 7. Execution in case of death of party. - In case of the death of a party, execution may issue or be
enforced in the following manner:
(a) In case of the death of the judgment obligee, upon the application of his executor or
administrator, or successor in interest;
(b) In case of the death of the judgment obligor, against his executor or administrator or
successor in interest, if the judgment be for the recovery of real or personal property, or the
enforcement of a lien thereon;
(c) In case of the death of the judgment obligor, after execution is actually levied upon any of
his property, the same may be sold for the satisfaction of the judgment obligation, and the officer
making the sale shall account to the corresponding executor or administrator for any surplus in his
hands. (7a)
This is related to Rule 3, Section 20.
Q: What is the effect of a death of a party on the execution of a judgment?
A: The following:
1.) If it is the obligee (the creditor) will die after he wins the case, his executor or administrator, his legal
representative or his heirs and successors in interest can enforce the judgment. They will be the one to
collect. (paragraph [a])
2.) If it is the defendant (obligor) who dies and there is final judgment which is recovery of real or
personal property, the judgment is executed against the administrator or executor because this is an
action which survives. (paragraph [b]);
3.) Under par. (c), it is the death of the obligor in a money claim. This is related to Rule 3, Section 20.
However, the timing of the death is different. Let us connect these with Rule 3, Sec. 20:
Sec. 20. Action on contractual money claims. - When the action is for recovery of money arising from
contract, express or implied, and the defendant dies before entry of final judgment in the court in
which the action was pending at the time of such death, it shall not be dismissed but shall instead be
allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintiff
therein shall be enforced in the manner especially provided in these Rules for prosecuting claims
against the estate of a deceased person. (21a)
So, for EXAMPLE: A filed a case against B to collect an unpaid loan. What is the effect to the case if B
dies? It will depend on what stage of the case he dies. If he died before final judgment could be rendered
by the court (before entry of final judgment), there will be a substitution of party and the case will
continue until entry of final judgment.
Suppose, there is already entry of final judgment and he dies, it will depend whether there was already a
levy on execution. Meaning, there was already entry of final judgment but before the property is levied.
This should not apply in Rule 39 because Section 7 [c] states that after execution is levied.
But my question is no levy. The procedure there is found in the Special Proceedings. The judgment shall
be enforced in the manner provided for by the Rules on claims against the estate of the deceased under
Rule 86. And that is also mentioned in Rule 3, Section 20. It shall be enforced in the manner provided for
against the estate.
Q: Suppose the defendant dies when there is already a levy. What will happen?
A: The auction sale will proceed as scheduled in connection with Section 7 [c] because the law says the
same may be sold for the satisfaction of the judgment obligation. Meaning, the auction sale or the
execution sale shall proceed as scheduled. No more substitution here.
So that question, What is the effect of the death of a party on a pending civil case is a question with so
many angles anong klaseng kaso?; is it one which is personal in nature or not?; if it is not, is it one
which survives or one which does not?; if it does not survive, who died?; the plaintiff or the defendant?
if it is the defendant, did he die before entry of final judgment?; did he die after entry of final
judgment but before there could be levy or execution?; or did he die after levy or execution? This last
question is answered by Section 7 [c].
Sec. 8. Issuance, form and contents of a writ of execution. - The writ of execution shall:
(1) issue in the name of the Republic of the Philippines from the court which granted the
motion;
(2) state the name of the court, the case number and title, the dispositive part of the subject
judgment or order; and (3) require the sheriff or other proper officer to whom it is directed to enforce
the writ according to its terms, in the manner hereinafter provided:
(a) If the execution be against the property of the judgment obligor, to satisfy the judgment,
with interest, out of the real or personal property of such judgment obligor;
(b) If it be against real or personal property in the hands of personal representatives, heirs,
devisees, legatees, tenants, or trustees of the judgment obligor, to satisfy the judgment, with interest,
out of such property;
(c) If it be for the sale of real or personal property, to sell such property, describing it, and
apply the proceeds in conformity with the judgment, the material parts of which shall be recited in
the writ of execution.
(d) If it be for the delivery of the possession of real or personal property,
to deliver the possession of the same, describing it, to the party entitled thereto, and to satisfy any
costs, damages, rents, or profits covered by the judgment out of the personal property of the person
against whom it was rendered, and if sufficient personal property cannot be found, then out of the
real property; and
(e) In all cases, the writ of execution shall specifically state the amount of the interest, costs,
damages, rents, or profits due as of the date of the issuance of the writ, aside from the principal
obligation under the judgment. For this purpose, the motion for execution shall specify the amounts of
the foregoing reliefs sought by the movant. (8a)
WRIT OF EXECUTION is actually the document which is issued by the court addressed to the sheriff. The
writ is actually the instruction to the sheriff on what he should do. It would depend on what kind of
decision is it an action for sum of money or is it for recovery of real property? Mimeographed iyan,
addressed to the sheriff. These are standard forms in court.
Now, with respect to Section 8, the changes can be found in paragraph [e] which mandates now that the
writ of execution must state the exact amount to be collected. That is why according to the last sentence
of paragraph [e], for this purpose, the motion for execution shall specify the amounts of the foregoing
reliefs sought by the movant.
Normally, when lawyers file a motion to execute they will just quote the principal, but they do not state
the costs or interests. Now, under the new rule, when you file the motion for execution, you must also
state how much is the costs or interests.
EXECUTION OF MONEY JUDGMENT
How do you execute judgment for money? Contractual debts or damages. Example, the defendant is
ordered to pay defendant P1 million with interest, how does the sheriff enforce that? Section 9 provides
a detailed explanation on how judgment for money is enforced. Let us go over the first paragraph:
Sec. 9. Execution of judgments for money, how enforced. -
(a) Immediate payment on demand. - The officer shall enforce an execution of a judgment for money
by demanding from the judgment obligor the immediate payment of the full amount stated in the writ
of execution and all lawful fees. The judgment obligor shall pay in cash, certified bank check payable to
the judgment obligee, or any other form of payment acceptable to the latter, the amount of the
judgment debt under proper receipt directly to the judgment obligee or his authorized representative
if present at the time of payment. The lawful fees shall be handed under proper receipt to the
executing sheriff who shall turn over the said amount within the same day to the clerk of court of the
court that issued the writ.
STEPS: (under paragraph [a])
1.) The sheriff must demand payment from the obligor;
2.) The obligor can pay in cash, certified bank check payable to the judgment obligee (creditor) or any
other form of payment acceptable to the latter. Kung sabihin ng obligor: Yung kotse ko na lang. That
will be alright so long as it is also alright with the obligee;
3.) The payment shall go to the obligee;
4.) The lawful fees shall be paid to the executing sheriff who shall turn over the said amount within the
same day to the clerk of court of the court that issued the writ.
This assumes that the obligee is present with sheriff. Suppose the creditor is not around? Let us go to the
second paragraph:
Section 9 [a], 2nd par. If the judgment obligee or his authorized representative is not present to receive
payment, the judgment obligor shall deliver the aforesaid payment to the executing sheriff. The latter
shall turn over all the amounts coming into his possession within the same day to the clerk of court of the
court that issued the writ, or if the same is not practicable, deposit said amounts to a fiduciary account in
the nearest government depository bank of the Regional Trial Court of the locality.
If the plaintiff is not there, the payment is made to the sheriff and he is supposed to endorse it to the clerk
of court. The clerk of court will look for the obligee to remit the money.
In the second sentence, this usually happens if the execution is to be done outside of the locality. For
example, the decision in Davao will be enforced in Cotabato. So, the sheriff in Cotabato will be the one to
enforce and he will give the payment to the clerk of court there who in turn will transmit the money to
the clerk of court in Davao. This is because the decision to be executed is one in Davao.
Let us go to the third paragraph:
The clerk of said court shall thereafter arrange for the remittance of the deposit to the account of the
court that issued the writ whose clerk of court shall then deliver said payment to the judgment obligee in
satisfaction of the judgment. The excess, if any, shall be delivered to the judgment obligor while the
lawful fees shall be retained by the clerk of court for disposition as provided by law. In no case shall the
executing sheriff demand that any payment by check be made payable to him.
This assumes that the property of the defendant which was levied in Cotabato but judgment is one which
originated in Davao clerk to clerk.
The last sentence says In no case shall the executing sheriff demand that any payment by check be
made payable to him. It shall be payable to the obligee. I think what the SC would like to avoid here is
that which happened in the case of PAL a labor case where PAL paid check payable to the sheriff. The
sheriff ran away with the check. PAL was made to pay all over again.
(b) Satisfaction by levy. - If the judgment obligor cannot pay all or part of the obligation in cash,
certified bank check or other mode of payment acceptable to the judgment obligee, the officer shall
levy upon the properties of the judgment obligor of every kind and nature whatsoever which may be
disposed of for value and not otherwise exempt from execution giving the latter the option to
immediately choose which property or part thereof may be levied upon, sufficient to satisfy the
judgment. If the judgment obligor does not exercise the option, the officer shall first levy on the
personal properties, if any, and then on the real properties if the personal properties are sufficient to
answer for the judgment.
So, under paragraph [a], the first step is when the judgment debtor has enough money, bayaran niya in
cash or check.
Q: Suppose walang pera, or the cash is not sufficient. What will the sheriff do?
A: He shall levy upon the properties of the judgment obligor not otherwise exempt from execution. In
the vernacular term, sasabihing na-sheriff ka.
Q: Define levy.
A: Levy is the act whereby a sheriff sets apart or appropriates, for the purpose of satisfying the command
of the writ, a part or the whole of the judgment-debtors property. (Valenzuela vs. De Aguilar, L-18083-
84, May 31, 1963) Normally, this is done on personal property. Kung lupa naman, they will annotate on
the title. Parang mortgage ba.
Q: What is the importance of levy with respect to execution of a money judgment?
A: Levy is a pre-requisite to the auction sale. In order that an execution sale may be valid, there must be
a previous valid levy. A sale not preceded by a valid levy is void and the purchaser acquires no title.
(Valenzuela vs. De Aguilar, L-18083-84, May 31, 1963)
Q: What kind of property can be levied?
A: Any real, personal, tangible, intangible except those properties exempt from execution.
Q: Does the debtor has the right to tell the sheriff what property he should levy?
A: YES. The law gives the debtor or defendant the option to immediately choose which property or part
thereof may be levied upon sufficient to satisfy the judgment. Example: I am the debtor and I have many
properties. And the sheriff would like to levy on my house and lot, or yung Toyota Altis ko. Under the
law, I have the right to choose among them.
The phrase giving the latter the option to immediately choose which property or part thereof may be
levied upon, sufficient to satisfy the judgment. This did not appear under the old law. This is taken from
the case of PHILIPPINE MILLS vs. DAYRIT (192 SCRA 177), where the SC said the debtor is given the option
of which property shall be levied.
And the sequence of levying is to levy the personal properties first. Then real properties if personal
properties are not sufficient.
Under the second paragraph of [b], when the sheriff levies on the property of the judgment debtor and
the judgment debtor has more than sufficient property to cover the judgment debt, the sheriff cannot
levy all the properties. Or else, he will be made liable. For example, the debt is only P 30,000, tapos ang i-
levy mo kotse (Toyota Altis) at bahay, which worth millions? My golly! Thats too much! You sell only up
to the point that the judgment will be satisfied.
Q: But if it is real property or intangible personal property like shares of stock, debts, credits
(collectibles), can you levy on these?
A: YES. And under the last paragraph of [b] They may be levied upon in like manner and with like effect
as under a writ of attachment under Rule 57 on attachment.
GARNISHMENT HOW TO LEVY
Paragraph [c] of Section 9 is on how to levy intangibles. When you want to levy or you want to execute
on intangible property, the legal term there is garnishment.
(c) Garnishment of debts and credits. - The officer may levy on debts due the judgment obligor
and other credits, including bank deposits, financial interests, royalties, commissions and other
personal property not capable of manual delivery in the possession or control of third parties. Levy
shall be made by serving notice upon the person owing such debts or having in his possession or
control such credits to which the judgment obligor is entitled. The garnishment shall cover only such
amount as will satisfy the judgment and all lawful fees.
The garnishee shall make a written report to the court within five (5) days from service of the notice of
garnishment stating whether or not the judgment obligor has sufficient funds or credits to satisfy the
amount of the judgment. If not, the report shall state how much funds or credits the garnishee holds
for the judgment obligor. The garnished amount in cash, or certified bank check issued in the name of
the judgment obligee, shall be delivered directly to the judgment obligee within ten (10) working days
from service of notice on said garnishee requiring such delivery, except the lawful fees which shall be
paid directly to the court.
In the event there are two or more garnishees holding deposits or credits sufficient to satisfy the
judgment, the judgment obligor, if available, shall have the right to indicate the garnishee or
garnishees who shall be required to deliver the amount due; otherwise, the choice shall be made by
the judgment obligee.
The executing sheriff shall observe the same procedure under paragraph (a) with respect to delivery of
payment to the judgment obligee. (8a, 15a)
Q: So, what are these properties which may be the subject of garnishment?
A: Credits which include bank deposits, financial interests, royalties, commissions and other
personal property not capable of manual delivery intangibles bah! You send a notice upon the person
owing such debts or having in his possession or control such credits. And it shall cover only such amount
as will satisfy the judgment.
Example of garnishment: bank account. I will file a case against you, talo ka. I learned that you have a
deposit with Sanikoh Bank. Puwede kong habulin yan ba, because that is credit. In obligations and
contracts, the relationship of the depositor and the bank is that of a creditor and debtor. It is not a
contract of deposit because actually, the bank is borrowing money from you. Kaya nga, it pays you
interest eh.
So, under garnishment, the bank is being commanded not to pay you but instead pay the sheriff. Yaan!!
Yan ang concept ng garnishment. Garnishee refers to the debtor, like the bank. When the bank deposit is
garnished, the second paragraph tell us what the bank will do. And if there are 2 or more banks na ma-
garnish, under the next paragraph, the debtor obligor will determine. If he does not exercise his option,
then the judgment creditor will determine.
EXECUTION OF JUDGMENT OTHER THAN MONEY
Section 10 is the procedure for executing a judgment other than to collect money. Sometimes, money is
only incidental. There are court decisions could be something else like specific performance, or accion
publiciana. You are more interested in recovering your property. Another is Unlawful Detainer where
unpaid rentals may be paid but the plaintiff is more interested in the ejectment the unpaid rentals can
be collected in the same manner as Section 9.
Sec. 10. Execution of judgments of specific act. -
(a) Conveyance, delivery of deeds, or other specific acts; vesting title. - If a judgment directs a
party to execute a conveyance of land or personal property, or to deliver deeds or other documents, or
to perform any other specific act in connection therewith, and the party fails to comply within the time
specified, the court may direct the act to be done at the cost of the disobedient party by some other
person appointed by the court and the act when so done shall have like effect as if done by the party.
If real or personal property is situated within the Philippines, the court in lieu of directing a
conveyance thereof may by an order divest the title of any party and vest it in others, which shall have
the force and effect of a conveyance executed in due form of law. (10a)
xxxxx
EXAMPLES of the first sentence:
1.) An action for reconveyance of property where you are asking the defendant, a title owner, to convey
to you his property. The property will be held in trust or that the title be in your name instead of his;
2.) Pacto de retro. I sold to you my land and I am repurchasing it, pero ayaw mo. You refuse to execute a
deed of sale returning the property to me;
3.) Public Land Law. I am the owner of a property under homestead or free patent and sold it after the
prohibition period. Under the public land law, I have the right to repurchase it within 5 years. Ayaw mong
ibalik, so idemanda kita. Of course, if I win, you will be directed to return to me the property and execute
a deed of sale.
4.) An action for specific performance to compel you to return to me said property. And the court will
order: Alright, execute a deed of sale. You refuse. The court may order the clerk of court to sign the
deed of sale or the Register of Deeds will be ordered to register the same as if done by the obligor. The
obligors signature is not needed.
(b) Sale of real or personal property. - If the judgment be for the sale of real or personal
property, to sell such property, describing it, and apply the proceeds in conformity with the judgment.
(8 [c] a)
The best example for [b] is an action for termination of co-ownership where there are 50 co-owners of
one (1) hectare the property will be ordered sold and the proceeds will be distributed among the co-
owners.
(c) Delivery or restitution of real property. - The officer shall demand of the person against
whom the judgment for the delivery or restitution of real property is rendered and all persons claiming
rights under him to peaceably vacate the property within three (3) working days, and restore
possession thereof to the judgment obligee; otherwise, the officer shall oust all such persons
therefrom with the assistance, if necessary, or appropriate peace officers, and employing such means
as may be reasonably necessary to retake possession, and place the judgment obligee in possession of
such property. Any costs, damages, rents or profits awarded by the judgment shall be satisfied in the
same manner as a judgment for money. (13a)
Now, with respect to Section 10, particularly paragraph [c] delivery or restitution of real property.
this is applicable to actions for forcible entry, unlawful detainer, accion publiciana.
Q: So, what is the procedure?
A: The sheriff will give the defendant the chance to vacate the property, I am giving you the chance to
vacate within three (3) working days and restore possession thereof. And then ayaw mo pa rin, I will use
force to oust you with the assistance of the appropriate peace officers and place the judgment obligee in
possession of such property.
And if there are damages or unpaid rentals, I will also levy the property under Section 9. Because
sometimes, aside from ousting the defendant, meron pang money judgment like unpaid rentals. So, the
property of the defendant may be levied. That is the procedure.
In the 1995 case of
SAN MANUEL vs. TUPAS 249 SCRA 466
HELD: The immediate enforcement of a writ of ejectment execution is carried out by giving the
defendant a notice of such writ and making a demand that defendant comply therewith within a
reasonable period, normally from three (3) to five (5) days, and it is only after such period that the sheriff
enforces the writ by the bodily removal of the defendant and his personal belongings.
(d) Removal of improvements on property subject of execution. - When the property subject of
the execution contains improvements constructed or planted by the judgment obligor or his agent, the
officer shall not destroy, demolish or remove said improvements except upon special order of the
court, issued upon motion of the judgment obligee after due hearing and after the former has failed to
remove the same within a reasonable time fixed by the court. (14a)
Q: When you oust the defendant in regard of a possession case, is a writ of execution a sufficient basis
for the removal of improvements of the property?
A: NO. Under paragraph [d], the plaintiff or judgment obligee still have to get a special order from the
court by filing a petition to authorize the destruction or removal of the improvements of the property
after the defendant is given a reasonable time to remove his shanty or house voluntarily.
In other words, there must be a special order. The writ of execution only authorizes you to oust the
defendant physically, but not to destroy any property. Just like in squatters, you need a special order for
demolition.
(e) Delivery of personal property. - In judgments for the delivery of personal property, the
officer shall take possession of the same and forthwith deliver it to the party entitled thereto and
satisfy any judgment for money as therein provided. (8a)
Paragraph [e] is related to REPLEVIN action to recover personal property where the plaintiff is trying
to repossess a personal property from the defendant. For example, bili ka ng appliance tapos hindi mo
nabayaran, babawiin yan ng appliance center. Or, the finance company or the car dealer will resort to
replevin to recover the unit by filing an action for replevin against the buyer.
Take note that the procedure for enforcing a money judgment is different from enforcing a judgment for
ejectment, or recovery of possession. Enforcement of money judgment is in Section 9 you get the
money. Kung walang money, you levy on the property of the defendant. If it is ejectment or recovery of
possession of property, you follow Section 10, paragraph [c].
Now, here is an interesting case involving these two sections (Sections 9 & 10) the 1995 case of
ABINUJAR vs. COURT OF APPEALS 243 SCRA 531
FACTS: The case of Abinujar started when the plaintiff filed a case for unlawful detainer against the
Abinujar spouses for the latter to vacate their house in Manila. When the case was going on, the parties
executed a compromise agreement which became the basis of the judgment by the court, so a
compromise judgment.
The agreement stated that the Abinujar spouses shall pay the plaintiffs the amount specifically agreed
upon: P50,000 on January 31; P10,000 on Febrauary 28; P10,000 on March 31, etc. until September 30. It
further states that failure on the part of the Abinujar spouses to pay three (3) consecutive payments, the
plaintiffs shall be entitled to a writ of execution.
After three (3) months, the plaintiffs filed a motion for execution on the ground that the Abinujars failed
to pay the three installments. The trial court granted the motion and the notice to the defendant to
voluntarily vacate the premises was served on the Abinujars.
The Abinujars attacked the validity of the sheriffs notice to vacate by way of enforcing the compromise
judgment. They maintained that their obligation is monetary and therefore you should apply Section 9
you collect but do not eject us. The plaintiffs argued that what is applicable is Section 10 on ejectment
because this is an unlawful detainer case.
ISSUE: Which section shall be applied Section 9? or Section 10?
HELD: The contention of the Abinujars is meritorious meaning, you cannot eject the Abinujars.
When the parties entered into a compromise agreement, the original action for ejectment was set aside
and the action was changed to a monetary obligation.
A perusal of the compromise agreement signed by the parties and approved by the inferior court
merely provided that in case the Abinujars failed to pay three monthly installments, the plaintiffs would
be entitled to a writ of execution, without specifying what the subject of execution would be. Said
agreement did not state that Abinujars would be evicted from the premises subject of the suit in case of
any default in complying with their obligation thereunder. This was the result of the careless drafting
thereof for which only plaintiffs were to be blamed.
As Abinujars obligation under the compromise agreement as approved by the court was monetary in
nature, plaintiffs can avail only of the writ of execution provided in Section 9, and not that provided in
Section 10.
ORDINARY AND SPECIAL JUDGMENT
Sec. 11. Execution of special judgments. - When a judgment requires the performance of any act other
than those mentioned in the two preceding sections, a certified copy of the judgment shall be attached
to the writ of execution and shall be served by the officer upon the party against whom the same is
rendered, or upon any other person required thereby, or by law, to obey the same, and such party or
person may be punished for contempt if he disobeys such judgment. (9a)
There are two (2) types of judgment under the law: (1) SPECIAL and (2) ORDINARY.
ORDINARY JUDGMENT - if the judgment orders the defendant to pay money, like a collection case
(Section 9) or to deliver real or personal property (Section 10).
SPECIAL JUDGMENT is a judgment which requires the defendant to perform an act other than payment
of money or delivery of property. It refers to a specific act which a party or person must personally do
because his personal qualifications and circumstances have been taken into consideration.
EXAMPLE of a special judgment: Usurpation of government office. You are the city treasurer and
somebody else is appointed city treasurer and you refuse to vacate. So there will be a quo warranto
proceeding. Then the judgment will order you to vacate your position, such judgment is a special
judgment because you are not ordered to pay anything nor deliver property.
Q: What is the difference between the Ordinary and Special judgments?
A: A special judgment may be enforced by contempt if the defendant refuses to comply with the
judgment. But if it is an ordinary judgment and the defendant refuses to comply, it is not a ground for
contempt.
Under Section 9, if the judgment-debtor refuses to pay his debt, you cannot cite him in contempt
because under the Constitution, no person shall be imprisoned for debt. The correct procedure under
Section 9 is you look for properties of the defendant and then ipa-levy mo. You do not send the debtor to
jail.
Under Section 10 if the squatter refuses to vacate, you cannot cite him in contempt and send him to jail.
Kung ayaw, you get police for back up. That is the procedure.
But under Section 11, if defendant is ordered to vacate his office because he is no longer the city
treasurer, the plaintiff can have him arrested and brought to jail because that is a special judgment
which can be enforced by contempt.
Q: Give an specific rule on special judgment.
A: Section 9 of Rule 65 Special Civil Action for Certiorari, Prohibition and Mandamus, to wit:
Rule 65, Sec 9. Service and enforcement of order or judgment.- A certified copy of the judgment
rendered in accordance with the last preceding section shall be served upon the court, quasi-judicial
agency, tribunal, corporation, board, officer or person concerned in such manner as the court may direct,
and disobedience thereto shall be punished as contempt. An execution may issue for any damages or
costs awarded in accordance with section 1 of Rule 39. (9a)
Therefore, a judgement in a certiorari, prohibition or mandamus case, if not complied with, is punishable
by contempt.
Sec. 12. Effect of levy on execution as to third persons. - The levy on execution shall create a lien in
favor of the judgment obligee over the right, title and interest of the judgment obligor in such property
at the time of the levy, subject to liens and encumbrances then existing. (16a)
This is related to Property Registration Decree.
EXAMPLE: I own a piece of land which I mortgaged with the bank. The bank annotated the mortgage on
my title. My land is now subject to a lien or an encumbrance. I also owe money to A. He sued me. He
won and my land is levied.
Q: What happens to the mortgage lien of the bank? Will it be affected by the levy of A?
A: NO. Even if the property is sold at public auction and we will assume that it will go to A, that property
is still under mortgage. A has to respect the lien nauna yung sa bank eh! Wherever the property goes, it
is subject to the mortgage lien of the bank because the banks lien is superior.
Therefore, an execution is always subject to the liens and encumbrances of the property then existing.
PROPERTIES EXEMPT FROM EXECUTION
We already discussed the rule that to satisfy a money judgment, the sheriff can levy on the properties of
the judgment obligor. All properties are subject, except those exempt from execution. What are the
properties of a defendant-debtor which cannot be subject to a levy or execution?
Sec. 13. Property exempt from execution. - Except as otherwise expressly provided by law, the
following property, and no other, shall be exempt from execution:
(a) The judgment obligor's family home as provided by law, or the homestead in which he
resides, and land necessarily used in connection therewith;
You have a house where your family resides. You call it FAMILY HOME it is the house where the
members of the family reside, including the lot.
Q: For instance, you lost in a case where you are liable for P200T. You have no other property left except
that house where you live. Can the sheriff levy the house to answer such obligations?
A: NO. The judgment obligors family home and the land necessarily used in connection therewith is
exempt. That is a guarantee that no matter how many obligations you have, there is no way for you to be
thrown to the street to be a homeless person. Your house cannot be levied; but in the Family Code,
theres a limit, if your house is a mansion worth millions, that is not exempt. Please review your Family
Code on this matter.
(b) Ordinary tools and implements personally used by him in his trade, employment, or
livelihood;
This is self-explanatory. If you are a carpenter, you earn your living by being a carpenter. What are the
ordinary tools that you must have? Saw, hammer, etc. By public policy and by legal provision, the tools
and implements used by a carpenter in his trade, employment, or livelihood cannot be levied by the
sheriff.
Under the prior law, there was no word ordinary and personally. The old law says, tools and
implements used by him. In the new rules, the words ordinary and personally are added. What is
the reason behind this? This provision is in accordance with what the SC ruled in the 1990 case of
PENTAGON SECURITY vs. JIMENEZ 192 SCRA 492
FACTS: The Pentagon Security and Investigation Agency (PSIA) is a security agency owned by somebody
who is engaged in security services. Because of a money judgment against the agency in a labor case, the
sheriff levied all the firearms of the agency. PSIA claimed that the firearms are exempt from execution
under paragraph [b] since they are tools and implements used by the agency in its trade, employment or
livelihood because how can a security agency operate without firearms.
ISSUE: Is the argument of PSIA correct?
HELD: NO. The firearms owned by PSIA are not covered by the exemption.
The term tools and implements refers to instruments of husbandry or manual labor needed by an
artisan craftsman or laborer to obtain his living. Here, PSIA is a business enterprise. It does not use the
firearms personally, but they are used by its employees. Not being a natural person, petitioner cannot
claim that the firearms are necessary for its livelihood.
It would appear that the exemption contemplated by the provision involved is personal, available only
to a natural person, such as a dentists dental chair and electric fan. If properties used in business are
exempt from execution, there can hardly be an instance when a judgment claim can be enforced against
the business entity.
Meaning, if the exemption is extended to a juridical person like a corporation, then practically all the
properties needed by the business could be considered as tools and implements. For EXAMPLE, you will
sue a carrier like Bachelor Bus and you won. Then you will levy on the bus. Bachelor will claims
exemption because that is a tool or implement.
Or, you file a case against PAL. They lost. You levy on the airbus. PAL alleged exemption because it is a
tool or implement. My golly! Lahat ng properties, tools or implements!? Di pwede yan! That is not
what the law contemplates.
Now, what is interesting in the PENTAGON case is that the SC says that firearms can be levied, they can
be sold at public auction. SC: However, for security reasons, and to prevent the possibility that the
firearms to be sold at the execution sale may fall into the hands of lawless and subversive elements, the
sale at public auction should be with the prior clearance and under supervision of the PNP. Otherwise,
the persons who might bid are kidnappers, NPA, Abu Sayyaff, (Kuratong Baleleng, MILF, MNLF, Lost
Command, Kulto Pinish, Polgas, PAOCTF, Osama bin Laden et al, etc.) So, there must be a prior clearance
on the sale of the firearms during the auction sale.
(c) Three horses, or three cows, or three carabaos, or other beasts of burden, such as the
judgment obligor may select necessarily used by him in his ordinary occupation;
For example, you are a farmer. You plow your land by a carabao. You cannot levy the carabao. OR, if you
are a cochero, you have a horse for your caretela. You cannot levy the horse. [ang horse shit, pwede!
Pero yung horse mismo, di pwede!] And under the prior rules, only 2 horses, 2 cows or carabaos are
exempt. The new rules make it three (3).
(d) His necessary clothing and articles for ordinary personal use, excluding jewelry;
You cannot levy on the debtors wardrobe. These are articles for ordinary personal use. This article
excludes jewelry. Alahas, pwede i-levy. All other things for basic needs are exempt, like personal comb,
toothbrush, etc.
(e) Household furniture and utensils necessary for housekeeping, and used for that purpose by
the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding
one hundred thousand pesos;
Household furniture like dining table, dining chair, sala set, utensils necessary for housekeeping and used
for the purpose by the obligor and his family like plates, forks, spoons. How can you eat without those
utensils. BUT theres a limit that the value does not exceed P100,000. If the value exceeds, it can be
levied.
There was a sheriff who asked me (Dean I). According to him, he was enforcing a money judgment. The
sheriff went to the house of the debtor. He took the stereo, TV set, refrigerator. Defendant said, Hindi
pwede dahil hindi pa umabot ng P100,000. Sabi ko, you look at the law: You cannot levy those
furnitures if not exceeding P100,000. In my (Deans) view, covered yan. But utensils not necessarily for
living are not covered by the exemption. They are luxury, not necessary. These TV, sala set, refrigerator
can be levied because they are not necessary for living as contrasted to kutsara, plato, etc. (Dean
however refused to answer the sheriff whether the properties in question can be levied. Tanungin mo
ang abogado mo!)
(f) Provisions for individual or family use sufficient for four months;
For example, one sack of rice for daily consumption, canned goods provisions for consumption good for
4 months are exempt. If you have one bodega of rice, ibang storya yan.
(g) The professional libraries and equipment of judges, lawyers, physicians, pharmacists,
dentists, engineers, surveyors, clergymen, teachers, and other professional, not exceeding three
hundred thousand (P300,000.00) pesos in value;
Your books, books of judges and professionals and equipment maybe the computer, typewriter,
dentists chair, equipment of engineers are exempt provided the value does not exceed P300,000.
(h) One fishing boat and accessories not exceeding the total value of one hundred thousand
(P100,000.00) pesos owned by a fisherman and by the lawful use of which he earns his livelihood;
Example: Fishing boat of a fisherman, the accessories net, provided these do not exceed
P100,000.
(i) So much of the salaries, wages, or earnings of the judgment obligor for his personal services
within the four months preceding the levy as are necessary for the support of his family;
The salary of a person within 4 months is exempt. For example, you have backwages of 6 months. Only 2
months salary can be levied. Exempt ang 4 months.
Technically, wages and salaries are exempt as long as they are necessary for support of living. If you earn
a minimum wage, everything may be exempted. But if you earn P50,000 a month and you support only
two people, the court may levy on the excess.
(j) Lettered gravestones;
Lapida sa sementeryo, hindi pwede i-levy. Why will you levy on lettered gravestones? My golly!
(k) Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life
insurance;
The proceeds of life insurance. The amount received by the beneficiaries cannot be levied, not a single
centavo.
(l) The right to receive legal support, or money or property obtained as such support, or any
pension or gratuity from the Government;
The right to receive legal support. The right ba! For instance, ako na lang ang mag receive ng support mo.
Hindi pwede yan. Also the money given monthly to you if you are receiving support cannot be levied.
Any pension or gratuity from the government GSIS pension, for example.
(m) Properties specially exempted by law.
This is very broad any other property exempt by special law.
Q: Give an example where a property is exempt from execution under the special law? A: The following:
1.) Property obtained pursuant to a free patent application, HOMESTEAD. That is not subject to any claim
within 5 years. You cannot even sell that within 5 years, how much more kung embargohin sa iyo? That is
under CA 141 Public Land Law;
2.) Under Social Legislation, SSS benefits are also exempt from execution, just like GSIS benefits;
3.) Under CARP law, the property acquired by a tenant under that law cannot be levied also.
Section 13, last paragraph:
But no article or species of property mentioned in this section shall be exempt from execution issued upon
a judgment recovered for its price or upon a judgment of foreclosure of a mortgage thereon. (12a)
The last paragraph of Section 13 says that if for example, you ordered books and you failed to pay, you
cannot claim the exemption because the obligation arose from the same item. For example:
BAR PROBLEM: A lawyer went to Alemars professional books supply. He bought books worth half a
million. That was utang P500,000. The store decided to sue the lawyer for such amount not paid. The
bookstore got a judgment. There was a levy on the lawyers property. The sheriff levied on the same
books which became the source of the case. The lawyer claimed exemption under Section 13 up to
P300,000 because it forms part of his professional library. Is the lawyer correct??
A: the lawyer is WRONG because of the last paragraph of Section 13 that no article or species of
properties mentioned in this section shall be exempt from execution issued upon a judgment recovered
for the price or upon a judgment of foreclosure of a mortgage thereon.
What the law says, is the properties mentioned here (in Section 13) are exempt, EXCEPT when that debt
arose out of that property. For example, here, why are you indebted to Alemars? Because of unpaid
books. So the very books which gave rise to an obligation are not exempt from execution.
But if another creditor will file a case against the lawyer, and that other creditor will win, that creditor
cannot levy on the books because they are exempt. But the creditor from whom the books were bought
can levy on the same books which gave rise to an obligation.
The same thing with FAMILY HOME. For example, you will build a family home and then, hindi mo
binayaran ang materials, labor and there was judgment against you. The creditor and the owner can levy
on the house. He cannot claim exemption because the debt arose out of that same family home.
Another example: You borrowed money from the bank. You mortgaged your house. Later on, you cannot
pay the loan. The bank foreclosed the mortgage. You cannot argue that your house cannot be levied.
Kaya nga may utang ka because of your house. Since you mortgaged it, that is not covered by the
exemption.
Q: What is the REASON behind this exemption?
A: The reason for this exemption is PUBLIC POLICY. And common sense no? the debtor should pay but
this should not deprive him of a means to earn his living. You can levy on his property but not to the
extent of depriving him of his provisions for support, means of livelihood by throwing him on to the
street, homeless, penniless, despondent, dejected, mournful, melancholy, forlorn
LIFETIME OF WRIT OF EXECUTION FIVE (5) YEARS
Sec. 14. Return of writ of execution. - The writ of execution shall be returnable to the court issuing it
immediately after the judgment has been satisfied in part or in full. If the judgment cannot be satisfied
in full within thirty (30) days after his receipt of the writ, the officer shall report to the court and state
the reason therefor. Such writ shall continue in effect during the period within which the judgment
may be enforced by motion. The officer shall make a report to the court every thirty (30) days on the
proceedings taken thereon until the judgment is satisfied in full, or its effectivity expires. The returns
or periodic reports shall set forth the whole of the proceedings taken, and shall be filed with the court
and copies thereof promptly furnished the parties. (11a)
Under the OLD RULE, the lifetime of a writ of execution is only 60 days. After that, expired na yung writ.
The sheriff has to use the writ to levy on the property of the defendant within 60 days. If the defendant
has no property at present, and the writ has already expired, and assuming that there will be some
properties found in the future, the procedure under the old rules is, the plaintiff has to file a motion for
an ALIAS WRIT of execution, because once it is issued, it is again good for another 60 days.
Under the PRESENT RULE, the 60-day period is already obsolete. The effectivity now of a writ of
execution is, for as long as the judgment may be enforced by motion. And under Section 6, a judgment
may be enforced by motion within five (5) years. So in effect, the writ of execution is valid for FIVE (5)
years. The lifetime now has been extended from 60 days to 5 years.
Of course, as much as possible, the writ must be enforced within 30 days and after that, the sheriff will
tell the court about what happened after 30 days.
So, the sheriff says based on the RETURN, Wala pang property ang defendant. Now, he just keeps on
holding the writ. And maybe after one or two years, meron nang property ang defendant, he can now
enforce the writ. But definitely, there is no need for the defendant to go back to the court to ask for
another alias writ of execution because the writ can still be enforced for as long as the judgment may
be enforced by motion.
Although every 30 days, the sheriff has to make a periodic report with the court. I do not know if the
sheriffs here follow this procedure. But definitely, a writ is good for 5 years and in every 30 days, the
sheriff has to make a report.
NOTICE OF SALE
Sec. 15. Notice of sale of property on execution. - Before the sale of property on execution, notice
thereof must be given as follows:
(a) In case of perishable property, by posting written notice of the time and place of the sale in
three (3) public places, preferably in conspicuous areas of the municipal or city hall, post
office and public market in the municipality or city where the sale is to take place, for such
time as may be reasonable, considering the character and condition of the property;
(b) In case of other personal property, by posting a similar notice in the three (3) public places
above-mentioned for not less that five (5) days;
(c) In case of real property, by posting for twenty (20) days in the three (3) public places
above-mentioned a similar notice particularly describing the property and stating where the
property is to be sold, and if the assessed value of the property exceeds fifty thousand
(P50,000.00) pesos, by publishing a copy of the notice once a week for two (2) consecutive
weeks in one newspaper selected by raffle, whether in English, Filipino, or any major
regionallanguage published, edited and circulated or, in the absence thereof, having general
circulation in the province or city;
(d) In all case, written notice of the sale shall be given to the judgment obligor, at least three
(3) days before the sale, except as provided in paragraph (a) hereof where notice shall be
given at any time before the sale, in the same manner as personal service of pleadings and
other papers as provided by section 6 of Rule 13.
The notice shall specify the place, date and exact time of the sale which should not be earlier than nine
o'clock in the morning and not later than two o'clock in the afternoon. The place of the sale may be
agreed upon by the parties. In the absence of such agreement, the sale of real property or personal
property not capable of manual delivery shall be held in the office of the clerk of court of the Regional
Trial Court or the Municipal Trial Court which issued the writ or which was designated by the appellate
court. In the case of personal property capable of manual delivery, the sale shall be held in the place
where the property is located. (18a)
Auction sale follows levy. There must be notices because auction sale is open to the public. Notices must
be posted in 3 public places preferably in the municipal hall, post office and public market. In paragraph
[c], if the property to be sold is REAL property, the notices must describe the property, its location,
assessed value if exceeding P50,000. Aside from notices, the law requires PUBLICATION in a newspaper
so that many people can read it.
You try to go there in the Hall of Justice, may bulletin board diyan sa labas. Notices are posted there. If
you are interested in buying something, para mura, tingnan mo diyan.
The law is very detailed now. The notice must specify the date of the sale, time, place etc. And the SC
ruled that these requirements are to be strictly complied with.
For example: You do not comply with the posting in 3 conspicuous places. Dalawa lang sa iyo, that is
VOID. The SC said the requirements of the law for the holding of the public auction should be strictly
followed. Why? Because in a public auction, you are depriving somebody of his property the judgment
debtor. So, all the requirements of the law intended to deprive the owner of his ownership over his
property should be followed.
Even lawyers sometimes do not pay much attention to this Rule 39. It is perhaps because of the length of
the rule or the length of the provisions. Lawyers usually have a general idea, not really the details.
Oftentimes, they rely on the sheriff eh. They presume that the sheriff knows more about the details
because the latter is responsible for enforcing it. Actually, the sheriff knows less than the lawyers
because many of them are not lawyers naman eh.
Illustration based on Deans experience:
There is a property located in Panacan which is owned by Corporation X. Corporation X sold the property
to Corporation Y. (xx end of tape xx) Dean does not know who was at fault. Definitely, the custodian,
instead of registering the transaction in the Register of Deeds so that a title may be issued in the name of
the buyer, tinago! Nalimutan ang pag-register ng Deed of Sale. Yun pala, the seller, Corporation X, has a
creditor also in Davao. The creditor sued Corporation X for a sum of money. Corporation X lost the case
and the creditor looked for property to levy. He found that piece of land in Panacan. Corporation X said,
naibenta na iyan.
The buyer, Corporation Y did not know there was an auction sale of that property. The buyer entered
into a deal with a corporation in Japan. One of the requirements of the Japanese buyer is: please list
down all your assets, all your properties. Of course, Corporation Y included that land in Panacan in the
list. Saan man ang titulo? Walaaa. Nalimutan i-register.
Who should bear the loss?? The BUYER CORPORATION because he did not register the sale. He was given
the option to pay the loan plus P200,000 damages and interest. But if Rule 39 is to be followed strictly,
Dean says the sheriff cannot make it. Meron talagang malimutan because sheriffs usually are not
lawyers. Rule 39 is so detailed that you cannot easily follow the requirements. Isa-isahin mo iyan, pag
may nakita kang mali, you file a motion to annul the execution.
I (Dean) said: I will recommend to the plaintiff company na bayaran ka rin pero hindi naman P200,000.
Masyadong malaki yan. Nakabayad na ang buyer sa owner tapos babayaran pa rin ang utang sa creditor?
I talked to the corporation and made a compromise. We settled for P80,000. Kung ayaw niya ituloy ang
kaso. Hindi nga na-register and Deed of Sale pero mali-mali naman ang levy. What if ma-annul ang levy,
the plaintiff will get nothing. Chances are, hahabulin niya ang seller ng property. So, this is an example of
a dead case being resurrected to life because of the principle: nagkamali ang sheriff sa execution. Dean
also stressed that if the trial for annulment of the execution proceeds, the court might dismiss it because
the sheriffs mistakes ay maliit lang. Its not really substantial. But Dean is proud that he had succeeded
to scare the plaintiff! [ehem!]
TERCERIA (THIRD-PARTY CLAIM)
SECTION 16. Proceedings where property claimed by third person. If the property levied on is
claimed by any person other than the judgment obligor or his agent, and such person makes an
affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title,
and serves the same upon the officer making the levy and a copy thereof upon the judgment obligee,
the officer shall not be bound to keep the property, unless such judgment obligee, on demand of the
officer, files a bond approved by the court to indemnify the third-party claimant in a sum not less than
the value of the property levied on. In case of disagreement as to such value, the same shall be
determined by the court issuing the writ of execution. No claim for damages for the taking or keeping
of the property may be enforced against the bond unless the action therefor is filed within one
hundred twenty days from the date of the filing of the bond.
The officer shall not be liable for damages for the taking or keeping of the property, to any third-party
claimant if such bond is filed. Nothing herein contained shall prevent such claimant or any third person
from vindicating his claim to the property in a separate action, or prevent the judgment obligee from
claiming damages in the same or a separate action against a third-party claimant who filed a frivolous
or plainly spurious claim.
When the writ of execution is issued in favor of the Republic of the Philippines, or any officer duly
representing it, the filing of such bond shall not be required, and in case the sheriff or levying officer is
sued for damages as a result of the levy, he shall be represented by the Solicitor General and if held
liable therefore, the actual damages adjudged by the court shall be paid by the National Treasurer out
of such funds as may be appropriated for the purpose. (17a)
Section 16 is a third-party claim procedure in execution. In Spanish, it is called the remedy of
TERCERIA.
ILLUSTRATION: Lolo decided to go on a prolong vacation and he entrusted to Karen (ang paborito ni Lolo)
all his personal property like appliances TV, refrigerator, car, etc. Karen used the property owned by
Lolo while he was not around. Unknown to Lolo, Karen has a pending civil case filed by Gina. Gina
obtained a judgment against Karen. There was levy on execution. The sheriff went to the premises of
Karen, he found all these properties and he enforced the levy.
Lolo came home and went to get the property from Karen. Karen said, they were all levied by the sheriff.
Lolo is a person who is not the defendant but his properties were erroneously levied because the sheriff
thought they belong to Karen who was in possession of them.
Q: What is the remedy of Lolo who is not a defendant?
A: The remedy is to apply Section 16, Rule 39 You file with the sheriff, copy furnish Gina, what is
known as the third-party claim or TERCERIA. Terceria is an affidavit asserting that he is the owner of the
property levied. So with that the sheriff is now placed on guard because the sheriff may be held liable if
he continues to sell the property of the defendant. So, he is not bound to the proceedings regarding the
sale unless the judgment obligee, on demand of the sheriff, files a bond approved by the court to
indemnify a third party claimant in the sum not less than the value of the property levied on.
Suppose sabi ni Gina: Huwag kang maniwala diyan. Kalokohan iyan. Drama lang yan ni Karen at Lolo.
Proceed with the auction sale! Gina has to file a bond if he insists that the auction sale must proceed.
Gina must put up a bond approved by the court to indemnify the third-party claimant, a sum not less
than the value of the property. If the property is worth half a million, the bond must also be half a
million. Then auction sale may proceed because theres already a bond to answer for the damages. The
sale may go on despite the third party claim.
THIRD-PARTY CLAIM vs. THIRD PARTY COMPLAINT
Now, do not confuse a third-party claim under Rule 39 with a third-party complaint under Rule 6. Q:
What is a third-party complaint under Rule 6?
A: A third-party complaint under Rule 6 is a PLEADING filed by a defendant against the third
person not a party to the action for contribution, indemnity, subrogation, or any other relief in respect of
the plaintiffs complaint.
Q: What is a third-party claim under Rule 39?
A: A third-party claim (terceria) under RULE 39 is an AFFIDAVIT made by a third person who claims to be
entitled to the property in the custody of a sheriff by virtue of a writ of execution.
The one who files a third party claim is technically called third-party CLAIMANT. The one who files a third
party complaint is called third-party PLAINTIFF. I notice that even in SC decisions, the SC commits that
lapse: The defendant filed a third party complaint or sometimes third party claimant. But actually,
the correct term is third-party plaintiff.
Q: Now, under the law, where will you file your third-party claim?
A: You file it with the sheriff although legally, it is considered as it is filed in the court because the sheriff
is only an agent of the court. The sheriff does not have the power to rule on the legal issues. Only the
judge can. And it is the court which decides on the validity of a third party claim.
Q: If I am the third person and I want to vindicate my claim to that property, is a third party claim
procedure the only remedy I have under the law? Even if theres a third party claim, auction sale may
proceed as long as theres a bond. But I want the auction sale not to proceed and I want the property to
be returned in my favor, do I have any other remedy?
A: YES. Second paragraph: Nothing herein contained shall prevent such claimant or any third person
from vindicating his claim to the property in a SEPARATE ACTION. So, the remedy of third-party claim is
NOT exclusive. There is nothing in Section 16 which says that a third person is deprived of a right to file a
separate action.
As the lawyer of Lolo, I have another option: instead of filing a third party claim, I would file a case in
court the separate case would name Gina as the defendant. The cause of action is that the sheriff
mistakenly or erroneously levied the properties not owned by Karen because I am the real owner. Since
there was a mistaken levy, I am also asking the court to declare the levy as null and void, the auction sale
should not proceed.
The court might rule in my favor, so a separate action is allowed. Thus, a third-party claim is not the only
remedy available under the law for the third party claimant.
The second part also contains a new provision, or prevent the judgment obligee from claiming
damages in the same or a separate action against a third party claimant who files a frivolous or plainly
spurious claim.
Remember that it is possible for a third-party claimant to be a dummy when it is a frivolous claim,
without basis or spurious, para tulungan lang niya ang defendant. There are people like that. Now, under
the new law, the prevailing party has the right to claim damages against the third-party claimant for filing
frivolous claims. He can claim the damages in the same action or in a separate action.
Now, many people do not really understand what is a third-party claim, even some lawyers:
Q: Suppose I am the lawyer of Lolo, bakit pa ako mag-file ng another case? Can I not just complain to the
court which rendered the decision? Can I not just file a motion asking the judge to order the release of
the property? Is a separate action not a violation of the rule against multiplicity of suits?
A: NO! You cannot bring out the issue to determine the ownership of the property. INTERVENTION here
is not proper. [Is this not a ground for intervention? GROUNDS FOR INTERVENTION:
(1) the intervenor has legal interest in the subject matter;
(2) the intervenor has an interest in the success of either parties;
(3) the intervenor has an interest against both parties; and
(4) The intervenor is adversely affected by a distribution of a property in the custody of a court or an
officer thereof.]
The SC said YOU CANNOT INTERVENE because under Rule 19, an intervention can only be done at any
time before judgment. But here in Rule 39, we are now on the stage of execution meron ng judgment!
Tapos na ang kaso. [Gago!!] Intervention comes to late. The judge has already decided the case. Now,
bakit bigyan mo naman siya ng bagong trabaho? Thats another issue different from a case already tried.
So, a separate action is the proper remedy.
On the other hand, such doctrine should be reconciled with what the SC said in the case of
SY vs. DISCAYA 181 SCRA 378
HELD: If your property was erroneously levied under Rule 39, you can seek relief from the very same
court which rendered the judgment by simply filing a motion to question the actuation of the sheriff,
because execution is part of the process in that case and the sheriff is an officer of the court and the
court has the complete control over the actuation of the sheriff. Therefore, why require the 3rd-party to
file another action when he can seek relief in the same case? Meaning, the third party can seek relief in
the same case but only to determine whether the sheriff acted rightly or wrongly, BUT not for the
purpose of determining the issue of ownership. Questions of ownership cannot be decided here. There
must be a separate action for the issue of ownership.
A third person whose property was seized by a sheriff to answer for the obligation of the judgment
debtor may invoke the supervisory power of the court which authorized such execution. Upon due
application by the third person and after summary hearing, the court may command that the property
be released from the mistaken levy and restored to the rightful owner or possessor. What said court can
do in these instances, however, is limited to a determination of whether the sheriff has acted rightly or
wrongly in the performance of his duties in the execution of judgment, more specifically, if he has indeed
taken hold of property not belonging to the judgment debtor. The court does not and cannot pass upon
the question of title to the property, with any character of finality. It can treat of the matter only insofar
as may be necessary to decide if the sheriff has acted correctly or not.
So, the court that renders the judgment cannot decide on the issue of ownership to a third person. So
your remedy is to file another case. But in the case of DISCAYA, the court which renders the judgment
can determine whether the sheriff has acted wrongly or correctly. And if it is wrong it can order the
property erroneously levied to be released without need of filing a separate action.
Q: So how do you reconcile the two doctrines?
A: If it is obvious that the sheriff committed a mistake 100% mistake, i.e. he levied property belonging
to a third person who is not a defendant to require a third person to go to court and file another case
will be tedious. Why can he not seek relief from the same court? Anyway if it is very obvious that the
sheriff acted wrongly, that is only incidental.
But when the issue is whether the property is owned by the defendant or the third person, and the issue
is controversial who is the rightful owner that cannot be decided summarily by the court which
rendered decision. It should be threshed out in an independent separate civil action. So that will be the
consideration.
The SC summarized all these remedies in the 1995 case of:
EVANGELISTA vs. PENSERGA 242 SCRA 702
HELD: The remedies of a third person whose property was seized by the sheriff to answer for the
obligation of a judgment obligor are the following:
1. Invoke the supervisory power of the court which authorized such execution (Sy vs. Discaya);
2. Terceria - third party claim (Rule 39, Section 16); and
3. Any proper action to vindicate his claim to the property, meaning a separate civil action.
(second paragraph, Section 16, Rule 39)
So these are the three remedies of a third person whose property was seized by a sheriff to answer for
the obligation of another person.
Sec. 17. Penalty for selling without notice, or removing or defacing notice. - An officer selling without
the notice prescribed by section 15 of this Rule shall be liable to pay punitive damages in the amount
of five thousand (P5,000.00) pesos to any person injured thereby, in addition to his actual damages,
both to be recovered by motion in the same action; and a person willfully removing or defacing the
notice posted, if done before the sale, or before the satisfaction of the judgment if it be satisfied
before the sale, shall be liable to pay five thousand (P5,000.00) pesos to any person injured by reason
thereof, in addition to his actual damages, to be recovered by motion in the same action. (19a)
Notices in the auction sale should be posted in three public places. For example, you go to the hall of
justice. You can see there a bulletin board, maraming nakalagay, half man niyan mga notice of public
aution ba. Now, do not go there and kunin ang mga papel doon. Baka multahan ka. You are not supposed
to remove or deface them.
Sec. 18. No sale if judgment and costs paid. - At any time before the sale of property on execution, the
judgment obligor may prevent the sale by paying the amount required by the execution and the costs
that have been incurred therein. (20a)
Q: Can the debtor stop the auction sale? Is there a way for the debtor to prevent the sale of his
property?
A: YES, if the obligor pay the amount required by the execution and the costs bayaran mo lahat ang
utang mo, di wala na. Thats what the law says. For example, the bank is foreclosing your mortgage and
sell the property at public auction. To stop the bank from proceeding with the sale, you go to the bank
and pay all your obligations. So, wala ng auction sale. But you have to pay all. Kalahati lang ang bayaran
ko. Ah, hindi puydi yan.
Sec. 19. How property sold on execution; who may direct manner and order of sale. All sales of
property under execution must be made at public auction, to the highest bidder, to start at the exact
time fixed in the notice. After sufficient property has been sold to satisfy the execution, no more shall
be sold and any excess property or proceeds of the sale shall be promptly delivered to the judgment
obligor or his authorized representative, unless otherwise directed by the judgment or order of the
court. When the sale is of real property, consisting of several known lots, they must be sold separately;
or, when a portion of such real property is claimed by a third person, he may require it to be sold
separately. When the sale is of personal property capable of manual delivery, it must be sold within
view of those attending the same and in such parcels as are likely to bring the highest price. The
judgment obligor, if present at the sale, may direct the order in which property, real or personal, shall
be sold, when such property consists of several known lots or parcels which can be sold to advantage
separately. Neither the officer conducting the execution sale, nor his deputies, can become a
purchaser, nor be interested directly or indirectly in any purchase at such sale. (21a)
Execution sale shall be done at public auction. The public is invited to bid kaya may public notice. There
are even publication for real property TO THE HIGHEST BIDDER. How does it happen? Normally, ang
unang magbi-bid diyan is iyong creditor. And normally, his bid will be equal to the judgment in his favor.
For example, the judgment against B is P1 million which includes principal and interest. Ang bid ko P1
million din. Okay lang, bahala ka kung sinong mas mataas diyan. That is how it normally happens.
Q: Now, suppose there are many properties levied. What is the process?
A: You sell them one by one. Hindi pwede sabay-sabay. [Maysa-maysa laeng balong!] After sufficient
property has been sold and that is enough to satisfy the debt, then do not sell anymore. Do not sell more
than what is necessary to satisfy the judgment.
When the sale is of real property, consisting of several known lots, they must be sold separately.
Years ago, I witnessed an auction sale of subdivision here. Obviously, the owner of the subdivision could
not pay his account. So there was a public auction. Of course, the subdivision consists of more than 100
lots iba-iba ang location, may mapa eh. Now, you cannot say, Alright, 150 lots. Pila man? Hindi puydi
iyan. Isa-isa dapat Lot #1, lot #2, lot #3 kaya pa ba iyan? I may be interested to buy only one lot. So,
lot #1, highest bidder, lot #2until the proceeds are enough to satisfy the account. So hindi pwedeng
one time, garapalan iyan, kapal ng sheriff niyan. Mga 170 lots ah hindi pwede iyanisa- isa dapat.
That is how tedious it is.
The law says, the debtor, if he is present, he can intervene. He says, Alright, unahin mo muna ito
because he may know of somebody who is willing to buy his property. So he can tell the sheriff, If you
want to sell unahin mo muna ito because merong malaking bayad yan eh in order for his other
properties to be saved from the execution.
Now, the last paragraph, the last sentence says, neither the officer conducting the execution sale, nor
his deputies, can become a purchaser, nor be interested directly or indirectly in any purchase at such
sale. So the sheriff and his deputy cannot participate in the auction, these are prohibited interest.
I think there is also a prohibition in the Civil Code on this on prohibited sales. The judge cannot be
interested in the sale of a property which is the subject matter of the litigation. The lawyer here cannot
purchase a property involving a case which he handled, to prevent conflict of interest.
Sec. 20. Refusal of purchaser to pay. If a purchaser refuses to pay the amount bid by him for property
struck off to him at a sale under execution, the officer may again sell the property to the highest
bidder and shall not be responsible for any loss occasioned thereby; but the court may order the
refusing purchaser to pay into the court the amount of such loss, with costs, and may punish him for
contempt if he disobeys the order. The amount of such payment shall be for the benefit of the person
entitled to the proceeds of the execution, unless the execution has been fully satisfied, in which event
such proceeds shall be for the benefit of the judgment obligor. The officer may thereafter reject any
subsequent bid of such purchaser who refuses to pay. (22a)
Auction sale: We are now going to sell this piece of property. Alright, highest bidderP10,000, next
P11,000, P12,000, P13,000. Sabi noong isa, Alright, P40,000! Sheriff: Any other bid?wala na? Ok
wala na! then, its sold to you. Saan ang pera mo? Bidder: Wala akong pera, biro lang iyon.
My golly! Pwede kang i-contempt niyan ba! [nagpapatawa, hindi naman kalbo!] You can be declared in
contempt of court. Hindi ito biruan. This is a proceeding. So we will repeat the procedure kasi wala man.
Kalokohan pala ito. Bwiset!
Q: May he bid again?
A: No more. The officer may thereafter reject any subsequent bid of such purchaser who refused to pay.
So do not fool around there when you make a bid. You must be serious and you must be ready to pay for
you bid.
Sec. 21. Judgment obligee as purchaser. When the purchaser is the judgment obligee, and no third-
party claim has been filed, he need not pay the amount of the bid if it does not exceed the amount of
his judgment. If it does, he shall pay only the excess. (23a)
Q: Can the judgment obligee the creditor-plaintiff participate in the auction sale?
A: YES, under Section 21. The sale is open to the public. As a matter of fact, in normal auction sale, the
first bidder is the plaintiff himself.
A: Suppose, he is the highest bidder. So the property is declared sold to him. Is he obliged to pay his bid?
A: GENERAL RULE: NO. Why? You simply apply the law on compensation I owe you money on the
purchase price for your property but you also owe me money based on the judgment. So quits na tayo.
Wala ng bayaran! Iyang property na ang pinaka-bayad mo.
EXCEPTION: Two (2) instances when obligee may be required to pay for his bid:
1.) When his bid is higher than the judgment. So he has to pay the cash for the excess or EXAMPLE: The
judgment in my favor is P1 million, my bid is P1.2 million and Im the
highest bidder. So I have to pay you the balance, the P200,000 because that is more than
the judgment in my favor.
2.) when the property which is to be sold is a subject of a third party claim because it is really
controversial whether the property is really owned by the judgment debtor.
So, if there is a 3rd party claim, he has to pay because it is controversial - as to who really is the owner of
the property. Of course, iyong pera naka-deposit iyan. Your money will be returned to you if it turns out
the claim is frivolous. If the third party claim turns out to be valid, it will be given to the real owner
because the property that you bought turned out to be owned by somebody who is not your debtor.
Sec. 22. Adjournment of sale. By written consent of the judgment obligor and obligee, or their duly
authorized representatives, the officer may adjourn the sale to any date and time agreed upon by
them. Without such agreement, he may adjourn the sale from day to day if it becomes necessary to do
so for lack of time to complete the sale on the day fixed in the notice or the day to which it was
adjourned. (24a)
Suppose the auction sale was scheduled today. Hindi natapos because there are many properties to be
sold like 200 lots. Then we can continue tomorrow.
Suppose we will continue next week. Then both parties must agree by written consent of the judgment
obligor and obligee if we will postpone it to another date na mas malayo.
Q: Do you know why these things are very important?
A: Because you already advertised that it will be held on this day. So any change on the date has to be
strictly complied with. Thats the reason behind these.
Q: Now, what properties can be sold at public auction?
A: Its either personal property or real property. We are sure about that.
TWO TYPES OF PERSONAL PROPERTY:
1.) one capable of manual delivery; and
2.) one not capable of manual delivery iyong mga intangibles ba!
Q: What is the procedure for the sale of personal property capable of manual delivery and one not
capable of manual delivery?
A: You have Section 23 and Section 24.
Q: When it comes to real property, what is the procedure? A: The procedure is Section 25.
So lets go over there, conveyance to purchaser of personal property capable of manual delivery. Like a
car and appliance or any other tangible object.
Sec. 23. Conveyance to purchaser of personal property capable of manual delivery. When the
purchaser of any personal property, capable of manual delivery, pays the purchase price, the officer
making the sale must deliver the property to the purchaser and, if desired, execute and deliver to him
a certificate of sale. The sale conveys to the purchaser all the rights which the judgment obligor had in
such property as of the date of the levy on execution or preliminary attachment. (25a)
Sec. 24. Conveyance to purchaser of personal property not capable of manual delivery. When the
purchaser of any personal property, not capable of manual delivery, pays the purchase price, the
officer making the sale must execute and deliver to the purchaser a certificate of sale. Such certificate
conveys to the purchaser all the rights which the judgment obligor had in such property as of the date
of the levy on execution or preliminary attachment. (26a)
Q: What is the procedure for the sale of property capable of manual delivery?
A: When the property is CAPABLE OF MANUAL DELIVERY, and you are the highest bidder, I will deliver
the car to you, and execute and deliver to you a certificate of sale. The certificate of sale should be
signed by the sheriff to prove that you are the highest bidder. And with that certificate of sale, you can
register that with the LTO. Automatically, the LTO will transfer the ownership and the registration of the
car in your name.
Q: What is the procedure for the sale of property NOT CAPABLE OF MANUAL DELIVERY? Mga intangible
assets?
A: There is nothing to physically give you. But according to Section 24, the officer making the same
must execute and deliver to the purchaser a certificate and that is actually tantamount to delivery
already.
Q: When you buy a personal property at an auction sale and the sheriff executes a certificate of sale in
your favor, do you become the owner of the property?
A: Both sections say, the sale conveys to the purchaser all the rights which the judgment obligor have in
such property as of the date of the levy on execution. At the sale, you acquire all the rights which the
obligor had in such property. You become the owner because you acquire the judgment obligors right of
ownership over such property.
BUT suppose the obligor holding the property is not the owner of the property although he has some
right over the property and his rights where sold, then you only acquire whatever rights he has over the
property. You do not acquire ownership. A spring cannot rise higher than its source.
EXAMPLE: You are the defendant but you enjoy rights over the property as usufructuary you are the
beneficial owner of the property but not the naked owner. And your rights as usufructuary were levied. I
am the purchaser. Can I acquire naked ownership? Of course NOT. I only acquire beneficial ownership. I
only acquire whatever right the debtor has over the property.
The SC made a commentary on that issue on the nature of the sheriffs sale and one of which is the case
of
LEYSON vs. TAADA
109 SCRA 66 [1981]
HELD: At a sheriffs sale they do not sell the land advertised to sell, although that is a common
acceptation, but they simply sell what interest in that land the judgment debtor has; and if you buy his
interest, and it afterwards develops that he has none, you are still liable on your bid, because you have
offered so much for his interest in open market, and it is for you to determine before you bid what is his
interest in the property.
So, it is for you to determine what his interest is before you bid. That is why you look at the sheriffs
notice of sale, meron mang warning ba: Notice to prospective bidders. You are advised to find out
whatever interest the debtor has.
For EXAMPLE: You buy the land and it turns out na hindi pala may-ari iyong taong iyon, iba ang rights
niya. Then you are to uphold his rights, Ah, I will hold the sheriff liable! No you cannot. There is no
warranty here on ownership.
So, do not confuse this with private sale of propertywarranty against evictionwala iyan sa sheriffs
sale. The sheriff does not warrant the ownership of the property. The law only warrants the guarantee
that you will acquire whatever interest he has. And if his interest is less than what you expect, pasensha
ka. This is a case of CAVEAT EMPTOR let the buyer beware. That is the thing you have to remember
about action sale.
Sec. 25. Conveyance of real property; certificate thereof given to purchaser and filed with registry of
deeds. Upon a sale of real property, the officer must give to the purchaser a certificate of sale
containing:
(a) A particular description of the real property sold;
(b) The price paid for each distinct lot or parcel;
(c) The whole price paid by him;
(d) A statement that the right of redemption expires one (1) year from the date of the
registration of the certificate of sale.
Such certificate must be registered in the registry of deeds of the place where the property is situated.
(27a)
If the property sold at public auction is a piece of land (real property), the sheriff will execute in your
favor what is known as the sheriffs CERTIFICATE OF SALE. Anong nakalagay diyan? It is practically what a
normal deed of sale provides the description of the land, the property sold, the whole price paid, the
lot if there are different parcels, how much per parcel.
The important paragraph is [d]: A statement that the right of redemption expires one (1) year from the
date of the registration of the certificate of sale.
Q: What is the main difference between a sale of personal property under Section 23 and sale of real
property under Section 25?
A: When the property sold at public auction is real property, the debtor has one (1) year to redeem the
property. Thats what you call the RIGHT OF REDEMPTION from the purchaser. But if the property sold at
public auction is personal property, like cars or appliances, there is no right of redemption.
There is no right of redemption in personal property. That is only recognized in real property. So if your
(personal) property is sold at public auction, and then there is a highest bidder, you cannot say, Anyway,
pwede ko namang bawiin iyon. NO, wala iyang bawi, kanya na yan. But if the property sold at public
auction is real property, that is not kissing your land goodbye. You have one year to redeem it. That is
your last chance.
Q: Summary: If you are the highest bidder, when do you acquire ownership of the property sold in a
auction sale?
A: It DEPENDS whether the property sold is personal or real:
a.) If it is PERSONAL PROPERTY, the title is transferred after payment of the purchase price and delivery
upon the purchaser. Delivery is either physical or symbolic; (Sections 23 & 24)
b.) If it is REAL PROPERTY, the title is transferred, not after the auction sale, but after expiration
of the right to redeem. (Section 25)
There is no right of redemption under personal property. It can only be exercised in real property.
Now, take note that the period to redeem is ONE YEAR FROM THE DATE OF THE REGISTRATION of the
certificate of sale in the office of the registrar of deeds. It is NOT from the date of the auction sale.
Under the old law, malabo eh: from the date of sale. Anong sale? Date of the auction sale or date of
the issuance of certificate of sale? According to the SC, the date of the registration. That is the start of
the counting. Kaya nga if there is a sale in your favor, pag i-delay mo ang registration, ikaw ang kawawa
because the longer you delay it, the redemption period is being stretched. Instead of cutting after one
year, period of redemption has not been cut off kaya there must be a registration.
Under the present rule, the right of redemption expires after one (1) year from the date of the
registration of the certificate of sale. Under the old law, it expires after twelve (12) months.
Q: Is the one year under the present rule and the 12 months under the old rules the same?
A: NO, and we know that 12 months is 360 days. One month is 30 days times 12 is 360 days. But one year
is 365 days. So they are not the same.
Thats why before, the redemption period for extrajudicial foreclosure of mortgage is one year. And the
redemption in execution under Rule 39 is 12 months. So there is a difference. But NOW, pareho na.
Thats why the old case of STATE INVESTMENT HOUSE when the SC made the distinction between the
one year period for mortgage and the 12 months period under Rule 39 is already MEANINGLESS because
the one year period. NOW is uniform.
Q: Can you attack the validity of an auction sale?
A: GENERAL RULE: NO, you cannot attack the auction sale on the presumption that every fair sale is final.
There is a presumption of regular performance of duty by the sheriff.
EXCEPTION: When an execution may be set aside:
1.) When it is shown from the nature of the irregularity or from intrinsic facts injury resulted therefrom.
(Navarro vs. Navarro, 76 Phil. 122) Meaning, there were serious irregularities committed by the officer in
conducting the sale like no publication, no notice, no prior levy, etc.;
2.) When the price obtained at the execution sale is shockingly inadequate and it is shown that a better
price can be obtained at a resale. (Barrozo vs. Macadaeg, 83 Phil. 378) Meaning, the highest bid is
shockingly inadequate.
EXAMPLE: I owed you for P100,000 P100,000 ang judgment! And what is levied is a brand new
Mercedes Benz. So sobra na yon na pambayad sa utang. But the highest bid is P30,000. Just imagine the
highest bid is 30,000, tapos meron pang deficiency judgment for P70,000 of course, there is something
wrong here. So, that is an exception, no! That is, when the price obtained at the execution sale is
SHOCKINGLY INADEQUATE to the senses and it is shown that a better price can be obtained.
Shocking to the senses means hindi naman yung the difference is very slight.
EXCEPTION TO THE EXCEPTION: The rule that you can question the validity of the auction sale if the price
obtained is shockingly inadequate applies ONLY when the property sold is PERSONAL property. The
exception does not apply when the property sold is real property because if the property sold is a
personal property, there is no right of redemption. But if the property sold is real property, you cannot
complain because, anyway, you have one year to pay and the redemption price is lower. So, you are not
really prejudiced. So why are you complaining? Thats what the SC said in the case of
 RAMOS vs. PABLO 146 SCRA 5 [1986]
HELD: A reading of plaintiffs' (petitioners') complaint shows that inadequacy of price was raised as one
of the issues. Assuming that the price was shockingly low, the same cannot vitiate the auction sale for
redemption would be comparatively easier.
That is because the property sold in RAMOS is real property. Pero kung personal property, I think it is
really unfair. You lose the property forever with a very small amount.
Sec. 26. Certificate of sale where property claimed by third person. When a property sold by virtue of a
writ of execution has been claimed by a third person, the certificate of sale to be issued by the sheriff
pursuant to sections 23, 24 and 25 of this Rule shall make express mention of the existence of such
third-party claim. (28a)
If the property sold at public auction is a subject of a third party claim under Section 16, the certificate of
sale to the property is issued subject to the outcome of the third party claim by a stranger.
Sec. 27. Who may redeem real property so sold. Real property sold as provided in the last preceding
section, or any part thereof sold separately, may be redeemed in the manner hereinafter provided, by
the following persons:
(a) The judgment obligor, or his successor in interest in the whole or any part of the property;
(b) A creditor having a lien by virtue of an attachment, judgment or mortgage on the property
sold, or on some part thereof, subsequent to the lien under which the property was sold. Such
redeeming creditor is termed a redemptioner. (29a)
That is an important section.
Q: Who are entitled to redeem real property? A: There are two (2):
1.) The judgment obligor or his successor-in-interest; and
2.) A creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold,
subsequent to the lien under which the property was sold. He is know as the REDEMPTIONER.
JUDGMENT OBLIGOR OR HIS SUCCESSORS-IN-INTEREST
Judgment obligor is clear the defendant who lost the case the defendant whose property was levied.
Or, his successor-in-interest. For EXAMPLE: During the one year period to redeem, the judgment debtor
died. So it could be his heirs, his children, his spouse who could exercise the right to redeem because
they step into his shoes. Also, successor-in-interest would also refer to a person to whom the obligor
assigned or transferred his right to redeem.
Q: Can the defendant sell, aside from transferring, his right to another person?
A: YES, because the right to redeem is property by itself. My right to redeem is also property such as an
interest to the real property which can be the subject matter of a sale.
EXAMPLE: Alright, may property ako worth P5 million. Na-sheriff for P2 million. Wala na, hindi ko na
kaya. Ibenta ko sa iyo for P3 million. Give me P1 million cash at ikaw na ang mag redeem sa purchaser.
Ginansiya ka pa rin di ba? P5 million gud iyon. So I can sell, and once I sell the right to redeem to you, you
are classified as successor-in-interest for the judgment obligor.
REDEMPTIONER
Q: Define redemptioner.
A: A redemptioner is a creditor having a lien by virtue of an attachment, judgment or mortgage on the
property sold, or on some part thereof, subsequent to the lien under which the property was sold.
ILLUSTRATION: Suppose there is a title owned by X and he has four (4) creditors. Lets say the property is
worth P10 million and he owes A for P2 million. So A levied the property. Now theres another judgment
in favor of B and there is no other property, ito na lang. So ang ginawa ni B, tinatakan niya another P2
million.
Under the Law on Land Titles and Deeds, B has inferior rights. In other words, the right of A is superior to
the right of B. A has no obligation to respect the right of B but B is obliged to respect the right of A. And
Assuming that there is a third creditor C for another P2 million. Thus, subsequent holder din si C. If D
is also a creditor, apat na sila.
Of course, the right of A is superior. He levies the property, may one year to redeem. Sabi ni X, Wala na
akong property, so ano pang pakialam ko kay B? Suppose X will not redeem, so A becomes the owner
after one year. What happens to B, C and D? Bura lahat kayo because you are underneath. A has no
obligation to respect your liens.
In other words, A acquires the entire property for only P2M because hindi na interesado si X. Shempre si
B interesado. So B will pay A within the redemption period para matanggal si A. Yung utang ni X na P2M
binayaran niya kay A. So P4 million na ang hawak ni B. And B will now be the number one. B will now
acquire the property. Pero sabi ni C, Hindi pwede iyan, lugi ako! Kasi pagna- acquire na ni B ang
property, patay na naman si C and D. Sabi ni C, Bababuyin, ah este Babayaran kita (B)! O ayan ang P4
million. Saksak mo sa baga mo! D can do the same thing to C.
Iyan ang tinatawag na redemptioners people who have lien subsequent because that is your only way
to protect your lien over the property. Anyway, even if D will pay everybody, hindi pa rin lugi because the
property is worth P10 million. But he spent P8 million because he had to buy or redeem it from people
who are ahead of him. That is the illustration of redemptioners, they have a personality or a right to
redeem the property from whoever is ahead of him in order to protect his lien over the property because
if he will not redeem, the quickest one will acquire the property free from any lien or encumbrance. Eh,
kung wala na yung property? Patay na ako. What property will I get to satisfy the account wala na akong
property, isa nalang. That is the rule on redemption. That is what Section 27 is all about.
Take note that redemptioners cannot redeem if the judgment debtor redeems.
(For Review Class) Now, let us discuss the case of PALICTE vs. REMOLITE, infa. This case is instructive on
the issue of right of redemption under Rule 39 in relation to special proceedings the estate of deceased
person. This is what happened:

PALICTE vs. REMOLETE 154 SCRA 132 [1987]
FACTS: A man lost a case and his properties were levied. So lets say his properties were levied for P1
million. But during the 1-year period of redemption, he died. And he is survived by 5 children. And there
is an administrator appointed by the court to administer the properties of the deceased. During the one
period to redeem, one of five children, siguro mayaman, redeemed the properties of their father.
Take note that only one of the heirs redeemed the entire property from the judgment creditor- obligee.
And one of the issues raised is whether one heir alone has the personality to redeem from the creditor
the property of the estate when there is an administrator. Remember, ha the legal representative
under the law, is the administrator.
ISSUE #1: So, who has the right to redeem? The heir or the administrator?
HELD: The HEIR has the right to redeem. At the moment of the decedents death, the heirs start to own
the property, subject to the decedents liabilities. In fact, they may dispose of the same even while the
property is under administration. If the heirs may dispose of their shares in the decedents property even
while it is under administration with more reason should the heirs be allowed to redeem redeemable
properties despite the presence of an administrator.
ISSUE #2: Must the one redeeming prove that the other co-heirs, the administrator and the court
expressly agreed to the redemption? Is it necessary for him to get their consent?
HELD: There is NO NEED for such prior approval. While it may have been desirable, it is not
indispensable. There is likewise nothing in the records to indicate that the redemption was not beneficial
to the estate. Anyway, the estate was benefited. The property was returned to the estate rather than
acquired by the creditors.
ISSUE #3: How can one specific heir redeem alone when his interest in the estate is not fixed and
determinate pending the order of distribution by the court? He is just a 1/5 owner and then he is
redeeming everything, how can that be done?
HELD: It may be true that the interest of a specific heir is not yet fixed and determinate pending the
order of distribution BUT, nonetheless, the heirs interest in the preservation of the estate and the
recovery of its properties is greater than anybody elses, definitely more than the administrators who
merely holds it for the creditors, the heirs, and the legatees.
ISSUE #4: Can we not consider the administrator as the judgment-debtor himself and the only one
successor-in-interest?
HELD: NO. The estate of the deceased is the judgment-debtor and the heirs who will eventually acquire
that estate should not be prohibited from doing their share in its preservation.
ISSUE #5: So, sabi ng redeeming heir, Okey, so now let the property be registered in my name because
pera ko man ang ginamit. I spent my money in paying the property including the shares of my brothers
and sisters who have no money. Is the redeeming heir correct?
HELD: NO. The motion to transfer the titles of the properties to the name of the
redeeming heir cannot prosper at this time. Otherwise, to allow such transfer of title would amount to a
distribution of the estate. That is tantamount to premature distribution of the estate. You cannot
distribute the estate in favor of one heir immediately.
So, what is the solution? The other heirs are, therefore, given a six-month period to join as co-
redemptioners in the redemption made by the petitioner before the motion to transfer titles to the
latters name may be granted.
So meaning, if the other heirs are given 6 months, hindi nyo mabayaran, pwede na yan, kasi pera man
niya ang ginamit.
Sec. 28. Time and manner of, and amounts payable on, successive redemptions; notice to be given and
filed. The judgment obligor, or redemptioner, may redeem the property from the purchaser, at any
time within one (1) year from the date of the registration of the certificate of sale, by paying the
purchaser the amount of his purchase, with one per centum per month interest thereon in addition,
up to the time of redemption, together with the amount of any assessments or taxes which the
purchaser may have paid thereon after purchase, and interest on such last named amount at the same
rate; and if the purchaser be also a creditor having a prior lien to that of the redemptioner, other than
the judgment under which such purchase was made, the amount of such other lien, with interest.
Property so redeemed may again be redeemed within sixty (60) days after the last redemption upon
payment of the sum paid on the last redemption, with two per centum thereon in addition, and the
amount of any assessments or taxes which the last redemptioner may have paid thereon after
redemption by him, with interest on such last-named amount, and in addition, the amount of any liens
held by said last redemptioner prior to his own, with interest. The property may be again, and as often as
a redemptioner is so disposed, redeemed from any previous redemptioner within sixty (60) days after
the last redemption, on paying the sum paid on the last previous redemption, with two per centum
thereon in addition, and the amounts of any assessments or taxes which the last previous redemptioner
paid after the redemption thereon, with interest thereon, and the amount of any liens held by the last
redemptioner prior to his own, with interest.
Written notice of any redemption must be given to the officer who made the sale and a duplicate filed
with the registry of deeds of the place, and if any assessments or taxes are paid by the redemptioner or if
he has or acquires any lien other than that upon which the redemption was made, notice thereof must in
like manner be given to the officer and filed with the registry of deeds; if such notice be not filed, the
property may be redeemed without paying such assessments, taxes, or liens. (30a)
ILLUSTRATION: Brown Sugar is a judgment obligor. She has four creditors (A, B, C, and D) and all of them
obtained judgment against her and all of them levied on the same property. Brown Sugar is given one
year from the registration of the sale to redeem it from A. Now, suppose SUGAR cannot redeem, B will
be the one to redeem because the first redemptioner and the judgment obligor have one year to redeem
from the date of registration. That is what Section 28 says the judgment obligor, or redemptioner.
Now, C is given 60 days to redeem. After that, wala ng right. Suppose C was able to redeem, D has
another 60 days to redeem from C.
Q: So what is the period of redemption?
A: There are two periods of redemption: The judgment obligor and first redemptioner are given ONE
YEAR from the date of registration of the certificate of sale to redeem and after that all subsequent
redemptioners are given 60 days.
So the second redemptioner can redeem it within 60 days. So, within 60 days, the 3rd redemptioner can
redeem it. Pasa yan, in order that the redemptioner can protect their lien over the property. So, the
redemption period is ONE YEAR and 60 DAYS respectively.
Q: Now, suppose Brown Sugar or B would like to redeem the property from A. How much will the
property be redeemed?
A: Under Section 28, the purchase or the bid price for the property PLUS one percent per month interest,
and reimbursement for taxes of the property with interest also. But definitely, the redemption price =
the bid price + 1% interest month. So, if you will redeem after one year, the bid price and 12% of the bid
price.
ILLUSTRATION: So kung P1 million ang bid price plus + P120,000 (1%/month) = P1.12 million Now there
are two interesting cases here which I want you to remember. The conflicting ruling in
PNB vs. CA (140 SCRA 360) and the case of SY vs. CA (172 SCRA 125). The two cases involved a
foreclosure of mortgage not execution but the Rules of Court applies. Under the extra-judicial
foreclosure of mortgage Act 3135, the provision of the Rules of Court are also applicable to redemption
in a foreclosure sale. So the provision in Section 28 also applies to the redemption during an extrajudicial
foreclosure of property.
PNB vs. COURT OFAPPEALS 140 SCRA 360 [1985]
FACTS: Suppose I will borrow money from the bank and stipulate an interest at 24% per annum. During
the auction sale, it was sold to the bank. Within one year, you approach me, gusto mo na i-redeem.
Magkano ang bid priceP2M plus interest of 2% per month for the next seven or eight months. Sabihin
ng debtor, No, 1% lang. Di ba nakalagay sa law 1% lang. Pero ang usapan natin is 3% monthly.
ISSUE: So which prevails - the 1% per month under the Rules of Court or the 2% per month as stipulated
in the promissory note?
HELD: The 1% of the Rules of Court prevails. Why? The rights of the debtor or creditor, the bank for
example, under the promissory note, or even under the mortgage law, is only good up to the auction
sale. From the moment the auction sale is finished and there was already a bid, we are now talking of the
one year period to redeem. So the rate in the promissory note is no longer applicable.
The case of PNB was somehow modified by the SC in the subsequent case of Sy vs. CA (172 SCRA
125) where the facts are identical.
SY vs. COURT OF APPEALS 172 SCRA 125 [1989]
FACTS: They borrowed money from the bank at 2% a month and they failed to pay the loan. Thus, there
was a foreclosure of mortgage then there was an execution of sale.
ISSUE: Within the one year period of redemption, pila man ang interest? The debtor will say 1% but
according to the bank, it is 2% as stipulated. Which will prevail?
HELD: The 3% a month stipulated under the mortgage contract prevails. Why? Because of a special law
Section 78 of the General Banking Act R.A. 337. Between Section 28 of Rule 39 and Section 78 of the
General Banking Act, the latter prevails because it is a special law. It applies to banks.
The General Banking Act partakes of the nature of an amendment to the mortgage law in so far as the
redemption price is concerned. When the mortgagee or the creditor is a bank or banking credit
institution, Section 6 of the mortgage law in relation to Section 28 of Rule 39 of the Rules of Court is
inconsistent with Section 78 of the General Banking Act. So the bank rate prevails.
Paano nangyari ito? I have only one single explanation. Hindi nakita ng mga abogado ng PNB ang
provision na iyon. They did not research very well. They failed to cite the provision of the General
Banking Act which authorizes the bank to continue charging the higher rate even during the redemption
period. Ginamit ng SC ang general rule eh. So mas magaling ang lawyer nung bank in the second case
because they were able to detect an exception under the general rule.
You know, if you are a lawyer of a bank, you must know all the laws regarding banks. Just the same, if
you are a labor lawyer, you master all the labor laws. But if you are a bar candidate, you master all laws!
Yaaaann!
Sec. 29. Effect of redemption by judgment obligor, and a certificate to be delivered and recorded
thereupon; to whom payments on redemption made. If the judgment obligor redeems, he must make
the same payments as are required to effect a redemption by a redemptioner, whereupon, no further
redemption shall be allowed and he is restored to his estate. The person to whom the redemption
payment is made must execute and deliver to him a certificate of redemption acknowledged before a
notary public or other officer authorized to take acknowledgments of conveyances of real property.
Such certificate must be filed and recorded in the registry of deeds of the place in which the property is
situated, and the registrar of deeds must note the record thereof on the margin of the record of the
certificate of sale. The payments mentioned in this and the last preceding sections may be made to the
purchaser or redemptioner, or for him to the officer who made the sale. (31a)
Q: Suppose Tikla redeems the property from Joshua. If the sheriff will execute in favor of Tikla a
certificate of redemption, to whom should Tikla pay?
A: The law says she can pay directly to the purchaser, the redemptioner or the person who made the
sale.
Sec. 30. Proof required of redemptioner. A redemptioner must produce to the officer, or person from
whom he seeks to redeem, and serve with his notice to the officer a copy of the judgment or final
order under which he claims the right to redeem, certified by the clerk of the court wherein the
judgment or final order is entered; or, if he redeems upon a mortgage or other lien, a memorandum of
the record thereof, certified by the registrar of deeds; or an original or certified copy of any
assignment necessary to establish his claim; and an affidavit executed by him or his agent, showing the
amount then actually due on the lien. (32a)
When the ORIGINAL OWNER wants to redeem the property from B, there is NO NEED for him to prove
his right as a judgment debtor. The judgment debtor has the automatic right to redeem.
But when it is B, C or D (REDEMPTIONERS) who wants to redeem, they MUST PROVE to the sheriff that
they are qualified to redeem. They must prove their status because not every person in the world has
the right to redeem. The right to redeem is only given to the debtor, the successor-in-interest or the
redemptioner. Thus, you must prove your personality to effect redemption.
Sec. 31. Manner of using premises pending redemption; waste restrained. Until the expiration of the
time allowed for redemption, the court may, as in other proper cases, restrain the commission of
waste on the property by injunction, on the application of the purchaser or the judgment obligee, with
or without notice; but it is not waste for a person in possession of the property at the time of the sale,
or entitled to possession afterwards, during the period allowed for redemption, to continue to use it in
the same manner in which it was previously used; or to use it in the ordinary course of husbandry; or
to make the necessary repairs to buildings thereon while he occupies the property. (33a)
PROBLEM: Suppose X is the debtor, A is the purchaser because the highest bidder could be any person.
During the 1-year period to redeem, who is in possessor of the property? The purchaser or the debtor?
A: The DEBTOR. During the one-year period, iyo pa rin yan. The buyer or the purchaser cannot take over
during the institution. He has to wait for the one-year period to expire before he can take over.
Therefore, X continues to occupy the property. He continues to use it the same manner it was previously
used. Use it in the ordinary course of husbandry, to make the necessary repairs to buildings thereon
while he occupies the property.
Q: Suppose 8 months has passed. Sabi ni X, Mukhang wala na akong pag-asa. Hindi ko na ito
mababayaran. Sige, wasakin ko na lang ang property. Sirain ko na lang. I will make a waste of the land. I
will cut all the coconut trees. I will destroy all the improvements. Para pag-take-over mo, wala na.
Bwahahaha! What is the remedy of A?
A: He can ask the court to issue a writ of injunction according to Section 31 an injunction to restrain the
commission of waste on the property. So, you can also stop him by injunction.
Sec. 32. Rents, earnings and income of property pending redemption. The purchaser or a redemptioner
shall not be entitled to receive the rents, earnings and income of the property sold on execution, or
the value of the use and occupation thereof when such property is in the possession of a tenant. All
rents, earnings and income derived from the property pending redemption shall belong to the
judgment obligor until the expiration of his period of redemption. (34a)
Section 32 is the continuation of Section 31.
Q: My property was sold on execution in your favor. But my property earns income. May mga tenants
diyan na nagbabayad ng renta. During the one-year period, who will get the rentals? The purchaser or
the debtor?
A: The DEBTOR. He continues to receive all the earnings. For defensive purposes, he is still the owner.
Do not say that, Ako ang highest bidder, akin ang income! (Gunggong!) You wait for the one-year
redemption period to expire to get the income.
Under the OLD rules, the 1964 Rules, during the one-year period to redeem, the debtor/defendant
continues to get the income of the property but when the creditor may opt: Your Honor, akin ang
income ha? Thats allowed by the old law. But everything is deductible also form the redemption price.
NGAYON wala na yan. 100% the debtor is the one enjoying the income over the property. That is a major
amendment introduced by the 1997 Rules.
Q: Now, what happens if after the lapse of one year there is no redemption? What is the next step? A:
That is Section 33:
Sec. 33. Deed and possession to be given at expiration of redemption period; by whom executed or
given. If no redemption be made within one (1) year from the date of the registration of the certificate
of sale, the purchaser is entitled to a conveyance and possession of the property; or, if so redeemed
whenever sixty (60) days have elapsed and no other redemption has been made, and notice thereof
given, and the time for redemption has expired, the last redemptioner is entitled to the conveyance
and possession; but in all cases the judgment obligor shall have the entire period of one (1) year from
the date of the registration of the sale to redeem the property. The deed shall be executed by the
officer making the sale or by his successor in office, and in the latter case shall have the same validity
as though the officer making the sale had continued in office and executed it.
Upon the expiration of the right of redemption, the purchaser or redemptioner shall be substituted to
and acquire all the rights, title, interest and claim of the judgment obligor to the property as of the
time of the levy. The possession of the property shall be given to the purchaser or last redemptioner
by the same officer unless a third party is actually holding the property adversely to the judgment
obligor. (35a)
If the period to redeem expires, no more right of redemption. What will happen? The sheriff now will
now execute in favor of the highest bidder or purchaser what is known as the final deed of sale or DEED
OF CONVEYANCE. Remember that there are two documents here which the sheriff executes in case of
real property.
Q: What are they (two documents which the sheriff executes in case of real property)?
A: The following:
1.) CERTIFICATE OF SALE. After the auction sale, he will execute in your favor the certificate of sale under
Section 25, by the time you register that, you start counting the one year.
2.) DEED OF CONVEYANCE. If after one year there is no redemption, a deed of conveyance is executed.
(Section 33)
Q: Which of the two documents transfers the ownership to the purchaser?
A: Only the DEED OF CONVEYANCE transfers title to the property.
The certificate of sale one year ago does not transfer the ownership of the land to the purchaser. It is
only a memorial that you are the highest bidder, that you paid so much and that you are the purchaser
but there is no transfer of ownership. Only the final deed of sale in Section 33 conveys title to property.
So do not confuse the sheriffs certificate of sale under Section 25 with the final deed of sale under
Section 33. Although in an extra-judicial foreclosure, there is no need of deed of sale. Only affidavit of
consolidation is needed under the mortgage law.
Q: How can the sheriff give it to you? Suppose the debtor refuse to vacate, is there a need to file another
action of unlawful detainer or forcible entry?
A: There is no more need of filing another action to eject the former owner. The procedure is, the
purchaser can ask the court to issue a WRIT OF POSSESSION under the Property Registration Decree to
take over the property.
Now, another interesting case about this stage in relation to property exempted from execution, is the
case of
 GOMEZ vs. GEALONE
203 SCRA 474 [1991]
FACTS: The property of the defendant was levied and sold in a public auction to the highest bidder. One
year after, there was no redemption. Then after the period has expired, here comes the defendant
questioning the auction sale because the property was exempt from execution and the property really
turned out to be exempt from execution.
ISSUE: Is there a deadline for a judgment debtor to claim exemption from execution of his property? Can
the debtor still raise the issue that the property is exempt from execution after the expiration of the
redemption period.
HELD: The rules do not expressly mention up to what point although the rules of court does not
prescribe the period within which to claim the exemption, the rule is, nevertheless, well-settled that the
right of exemption must be claimed by the debtor himself at the time of the levy or within a reasonable
time thereafter. What is reasonable time?
REASONABLE TIME, for purposes of the law on exemption, does not mean a time after the expiration
of the one-year period for judgment debtors to redeem the property sold on execution, otherwise it
would render nugatory final bills of sale on execution and defeat the very purpose of execution - to put
an end to litigation.
We now rule that claims for exemption from execution of properties under Section 13 must be
presented before its sale on execution by the sheriff.
Meaning, you raise the issue of exemption at the time of the levy but not later that the auction sale.
There is a deadline because if you claim exemption after that, masyadong ng atrasadotoo late na ba.
Thus, the claim for exemption must be raised. Thats the ruling in the case of GOMEZ vs. GEALONE.
Sec. 34. Recovery of price if sale not effective; revival of judgment. If the purchaser of real property
sold on execution, or his successor in interest, fails to recover the possession thereof, or is evicted
therefrom, in consequence of irregularities in the proceedings concerning the sale, or because the
judgment has been reversed or set aside, or because the property sold was exempt from execution, or
because a third person has vindicated his claim to the property, he may on motion in the same action
or in a separate action recover from the judgment obligee the price paid, with interest, or so much
thereof as has not been delivered to the judgment obligor; or he may, on motion, have the original
judgment revived in his name for the whole price with interest, or so much thereof as has been
delivered to the judgment obligor. The judgment so revived shall have the same force and effect as an
original judgment would have as of the date of the revival and no more. (36a)
Q: Suppose A is the highest bidder. There is a third-party claim which turned out to be valid. So the
property is removed from A. So, paano naman si A? Nakabayad gud siya diyan. Paano niya babawiin ang
kuwarta niya?
A: As options under Section 34:
1.) Recover the money from obligee (A here is not the judgment obligee); or
2.) Have the judgment revived in your name and you look for other properties of the obligor to execute
because:
a.) He lost possession of the property;
b.) He was evicted;
c.) There was irregularity of the proceedings;
d.) The judgment has been reversed or set aside on appeal;
e.) The property sold was exempt from execution; or,
f.) A third person has validity of his claim of the property.
Thats one way of property being removed from the purchaser. Your remedy is to recover the money
from the obligee ASSUMING that the obligee is different from the purchase. Or have the judgment
revived in your name hahabol ka na lang sa ibang properties ng debtor. Thats the procedure alright.
Sec. 35. Right to contribution or reimbursement. When property liable to an execution against several
persons is sold thereon, and more than a due proportion of the judgment is satisfied out of the
proceeds of the sale of the property of one of them, or one of them pays, without a sale, more than his
proportion, he may compel a contribution from the others; and when a judgment is upon an obligation
of one of them, as security for another, and the surety pays the amount, or any part thereof, either by
sale of his property or before sale, he may compel repayment from the principal. (37a)
Q: The judgment is against A, B, and C, solidary debtors. A paid everything. What is the right of A?
A: A has the right to seek reimbursement from B and C.
Or if the surety was made to pay the loan, he can claim reimbursement from the principal debtor. Thats
under the Law on Obligations and Contractsright to reimbursement.
REMEDIES IN AID OF EXECUTION
Another important portion of the rule to remember are the so-called provisions of the rules in aid of
execution remedies in aid of execution because execution is a difficult process. The purpose of the
remedies in aid of execution is to help the obligee realize the fruits of the judgment.
It is sometimes very hard to grasp out properties of the obligor especially if he knows how to hide them
by conveying remedies to assist him in locating the properties of the defendant and these remedies in
aid of execution are found in Section 36 to Section 43. And the most famous are those found in Sections
36 and 37:
Sec. 36. Examination of judgment obligor when judgment unsatisfied. When the return of a writ of
execution issued against property of a judgment obligor, or any one of several obligors in the same
judgment, shows that the judgment remains unsatisfied, in whole or in part, the judgment obligee, at
any time after such return is made, shall be entitled to an order from the court which rendered the
said judgment, requiring such judgment obligor to appear and be examined concerning his property
and income before such court or before a commissioner appointed by it, at a specified time and place;
and proceedings may thereupon be had for the application of the property and income of the
judgment obligor towards the satisfaction of the judgment. But no judgment obligor shall be so
required to appear before a court or commissioner outside the province or city in which such obligor
resides or is found. (38a)
Sec. 37. Examination of obligor of judgment obligor. When the return of a writ of execution against the
property of a judgment obligor shows that the judgment remains unsatisfied, in whole or in part, and
upon proof to the satisfaction of the court which issued the writ, that a person, corporation, or other
juridical entity has property of such judgment obligor or is indebted to him, the court may, by an
order, require such person, corporation, or other juridical entity, or any officer or member thereof, to
appear before the court or a commissioner appointed by it, at a time and place within the province or
city where such debtor resides or is found, and be examined concerning the same. The service of the
order shall bind all credits due the judgment obligor and all money and property of the judgment
obligor in the possession or in the control of such person, corporation, or juridical entity from the time
of service; and the court may also require notice of such proceedings to be given to any party to the
action in such manner as it may deem proper. (39a)
So under Section 36, you can ask the court to render judgment to allow you to subpoena the obligor and
take the witness stand subject to questioning so that you can discover where his properties are. So in
effect, Section 36 is related to modes of discovery. This is actually a mode of discovery. This is a type of
deposition taking. It is related to the subject of deposition taking where the discovery of the witness
stand to effect execution.
EXAMPLE: The sheriff did not find any property of the obligor. So the obligee can file a motion under
Section 36 for examination of the obligor under oath hoping that in the course of asking questions, he
might make some admissions. And the procedure is the same as in deposition but this is only done right
inside the courtroom.
On the other hand under Section 37, you can also examine people whom you believe owe the obligor
such as his debtors, or those holding his property, so that you can discover all his collectibles and ask
that the same be garnished. So this time, it is the obligor of the judgment obligor who will be
examined.
EXAMPLE: Kenneth, Thadd, and Francis owe the judgment obligor a sum of money. The obligee can file a
motion under Section 37 to subpoena Kenneth, Thadd and Francis to find out if it is true that they are
indebted to the judgment obligor. In this case, the obligee can as the court to garnish the money.
So, those are the objects of Sections 36 and 37. Of course there are others, just go over them.
Sec. 38. Enforcement of attendance and conduct of examination. A party or other person may be
compelled, by an order or subpoena, to attend before the court or commissioner to testify as provided
in the two preceding sections, and upon failure to obey such order or subpoena or to be sworn, or to
answer as a witness or to subscribe his deposition, may be punished for contempt as in other cases.
Examinations shall not be unduly prolonged, but the proceedings may be adjourned from time to time,
until they are completed. If the examination is before a commissioner, he must take it in writing and
certify it to the court. All examinations and answers before a court or commissioner must be under
oath, and when a corporation or other juridical entity answers, it must be on the oath of an authorized
officer or agent thereof. (40a)
Section 38 is the continuation of Section 37. If the judgment obligor, or Kenneth, Thad and Francis refuse
to comply with the subpoena, they can be punished for contempt.
Sec. 39. Obligor may pay execution against obligee. After a writ of execution against property has been
issued, a person indebted to the judgment obligor may pay to the sheriff holding the writ of execution
the amount of his debt or so much thereof as may be necessary to satisfy the judgment, in the manner
prescribed in section 9 of this Rule, and the sheriff's receipt shall be a sufficient discharge for the
amount so paid or directed to be credited by the judgment obligee on the execution. (41a)
Here, there is a change of the party creditor. The best example is garnishment from a bank. B is the
debtor of the judgment obligor. If B, instead of paying the judgment obligor, will pay the judgment
creditor, B is no longer indebted to the judgment obligor.
Sec. 40. Order for application of property and income to satisfaction of judgment. The court may order
any property of the judgment obligor, or money due him, not exempt from execution, in the hands of
either himself or another person, or of a corporation or other juridical entity, to be applied to the
satisfaction of the judgment, subject to any prior rights over such property.
If, upon investigation of his current income and expenses, it appears that the earnings of the judgment
obligor for his personal services are more than necessary for the support of his family, the court may
order that he pay the judgment in fixed monthly installments, and upon his failure to pay any such
installment when due without good excuse, may punish him for indirect contempt. (42a)
If upon investigation of his current income and expenses, it appears that the earnings of the judgment
obligor for his personal services are more than necessary for the support of his family, the court may
order that he pay the judgment obligee in fixed monthly installments, and upon his failure to pay any
such installment when due without good excuse, may punish him for indirect contempt.
Q: Can the salary of an employee be garnished?
A: Yes IF there is excess for support of his family. (Section 40) Section 40 related to Section 13, paragraph
[i] properties exempt from execution:
(i) So much of the salaries, wages, or earnings of the judgment obligor for his personal services
within the four months preceding the levy as are necessary for the support of his family;
Normally, you cannot levy on the earnings of a person which he needs for support of his family. But
actually, it is not the entire earnings because if youre earning a lot, it is more than sufficient for your
family. So the excess of your income can be garnished under Section 40.
Sec. 41. Appointment of receiver. The court may appoint a receiver of the property of the judgment
obligor; and it may also forbid a transfer or other disposition of, or any interference with, the property
of the judgment obligor not exempt from execution. (43a)
The court may appoint a receiver who is an officer of the court who will manage the property of the
litigants pending litigation. This remedy is found under Rule 59 on Receivership. The purpose of
receivership is to preserve the property by placing it in the hands of the court to remove it from the
control of a party because a party may dispose of the property.
Sec. 42. Sale of ascertainable interest of judgment obligor in real estate. If it appears that the
judgment obligor has an interest in real estate in the place in which proceedings are had, as mortgagor
or mortgagee or otherwise, and his interest therein can be ascertained without controversy, the
receiver may be ordered to sell and convey such real estate or the interest of the obligor therein; and
such sale shall be conducted in all respects in the same manner as is provided for the sale of real estate
upon execution, and the proceedings thereon shall be approved by the court before the execution of
the deed. (44a)
EXAMPLE: The obligor turns out to have an interest in real property as a mortgagee, or he has a right to
redeem, or right to foreclose, or right to repurchase. The obligee can levy on these rights because these
rights are property rights by themselves. This time, it is not the property which is sold but your interest.
Sec. 43. Proceedings when indebtedness denied or another person claims the property. If it appears
that a person or corporation, alleged to have property of the judgment obligor or to be indebted to
him, claims an interest in the property adverse to him or denies the debt, the court may authorize, by
an order made to that effect, the judgment obligee to institute an action against such person or
corporation for the recovery of such interest or debt, forbid a transfer or other disposition of such
interest or debt within one hundred twenty (120) days from notice of the order, and may punish
disobedience of such order as for contempt. Such order may be modified or vacated at any time by the
court which issued it, or by the court in which the action is brought, upon such terms as may be just.
(45a)
EXAMPLE: The obligee cannot find any property of the obligor. But there is a rumor that Pong owes the
obligor a sum of money. Upon examination, Pong denies indebtedness. But the obligee believes that he
has evidence that Pong owes the obligor money. In this case, the obligee can ask the court that he be
allowed to file a collection case against Pong on behalf of the obligor.
Q: Can the obligee considered as a real party in interest in this case?
A: YES. The obligee is now considered as a representative party. Section 43 is an example of the
phrase, or a party authorized by law or these Rules under Rule 3, Section 3:
Sec. 3. Representatives as parties. x x x x x A representative may be a trustee of an express trust, a
guardian, an executor or administrator, or a party authorized by law or these Rules. x x x x x x
SATISFACTION OF JUDGMENT
Sec. 44. Entry of satisfaction of judgment by clerk of court. Satisfaction of a judgment shall be entered
by the clerk of court in the court docket, and in the execution book, upon the return of a writ of
execution showing the full satisfaction of the judgment, or upon the filing of an admission to the
satisfaction of the judgment executed and acknowledged in the same manner as a conveyance of real
property by the judgment obligee or by his counsel unless a revocation of his authority is filed, or upon
the endorsement of such admission by the judgment obligee or his counsel on the face of the record of
the judgment. (46a)
Sec. 45. Entry of satisfaction with or without admission. Whenever a judgment is satisfied in fact, or
otherwise than upon an execution, on demand of the judgment obligor, the judgment obligee or his
counsel must execute and acknowledge, or indorse, an admission of the satisfaction as provided in the
last preceding section, and after notice and upon motion the court may order either the judgment
obligee or his counsel to do so, or may order the entry of satisfaction to be made without such
admission. (47a)
Q: What does satisfaction of judgement mean?
A: SATISFACTION OF JUDGMENT is the compliance with or fulfillment of the mandate thereof (31 Am.
Jur. 354).
Execution is not the same as satisfaction. Execution is the method of enforcement of a judgment.
Satisfaction refers to compliance with or fulfillment of the mandate of judgment. Normally, execution
precedes satisfaction. But you can satisfy a judgment without execution by simply paying voluntarily. And
when the judgment is satisfied, it has to be recorded the manner of which is found in Sections 44 and 45
either the sheriff himself will record fully satisfied, or, the creditor will file an admission that the
judgment is fully satisfied, or, the debtor on motion will ask that it be recorded that he has already paid.
Q: Who may compel satisfaction of judgment?
A: Satisfaction of judgment may be compelled by the judgment-creditor by means of execution, or by
the judgment-debtor by means of voluntary payment. (Salvante vs. Ubi Cruz, 88 Phil. 236)
Now, here is an interesting question which has not yet been asked in the Bar. They were expecting it as
early as 2 years ago.
Q: Can a plaintiff appeal from the judgment and at the same time move for execution of the same? Can
you do both without being self-contradictory? Can you demand satisfaction of judgment and at the same
time appeal said judgment?
A: PRIOR CASES say, you cannot do it because it is inconsistent. When you comply with the satisfaction of
judgment, you are already accepting the correctness of judgment. But when you are appealing it, you do
not accept the same. That was the old ruling which was MODIFIED in the case of
VITAL-GOSON vs. COURT OF APPEALS 212 SCRA 235 [1992] (en banc)
ISSUE: Whether or not a judgment creditor is estopped from appealing or seeking modification of a
judgment which has been executed at his instance.
HELD: It depends upon the nature of the judgment as being indivisible or not. This is the doctrine laid
down by this Court in a case decided as early as 1925, Verches v. Rios, where the judgment is
INDIVISIBLE, acceptance of full satisfaction of the judgment annihilates the right to further prosecute the
appeal; and that even partial execution by compulsory legal process at the instance of the prevailing
party, places said party in estoppel to ask that the judgment be amended. Indivisible means either you
accept it as correct or you appeal. But you can not have your cake and eat it too.
Where the judgment is DIVISIBLE, estoppel should not operate against the judgment creditor who
causes implementation of a part of the decision by writ of execution. This is the clear import of Verches
.and the precedents therein invoked. The principle is fully consistent not only with the opinion that
acceptance of payment of only the uncontroverted part of the claim should not preclude the plaintiff
from prosecuting his appeal, to determine whether he should not have been allowed more, but also with
logic and common sense. In other words, if a judgment is divisible, there is no prohibition.
EXAMPLE of DIVISIBLE JUDGMENT: A judgment adjudicating 2 or more causes of action I am satisfied
with one cause but I am not with the other. So, my appeal is only on the 2nd cause of action where the
award should be higher. I am not appealing in the first cause of action and the defendant did not also
appeal. So I can move to execute that portion of judgment, as far as the first cause of action is concerned
and continue with my appeal on the second. This is a divisible judgment. This is allowed.
PROBLEM: Plaintiff sues for P1 million damages. The court gave an award of P500,000 only (one- half the
damages sued for). Defendant did not appeal because he is satisfied with the judgement. Meaning, he
accepts the liability of up to P500,000, Judgment is good. Plaintiff, however, is not satisfied, It should
be P1 million, so I will appeal. He believes that even if he loses the appeal, he is insured as to the
P500,000.
Q: Can plaintiff move for the satisfaction of P500,000 and let the other half continue on appeal?
A: YES, I think so. Anyway, there is no quarrel with respect to the first half. To my mind, this is a DIVISIBLE
judgment since defendant accepts it and even if plaintiff loses appeal, the former is still liable up to
P500,000. So the plaintiff might as well claim it now for it is final insofar as the defendant is concerned
while plaintiffs appeal is with respect to the balance. This is a possibility under the ruling in VITAL-
GOSON.
Sec. 46. When principal bound by judgment against surety. When a judgment is rendered against a
party who stands as surety for another, the latter is also bound from the time that he has notice of the
action or proceeding, and an opportunity at the surety's request to join in the defense. (48a)
When there is a judgment against the surety, the principal debtor is also bound by the judgment from
the time he has notice of the action or proceeding and an opportunity at the suretys request to join in
the defense. The surety is only liable legally but the real party liable is the debtor.
RES ADJUDICATA
And finally, the most important section in Rule 39 is Section 47 effect of judgment or final order. This is
what we call the principle of res adjudicata.
Sec. 47. Effect of judgments or final orders. The effect of a judgment or final order rendered by a court
of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows:
(a) In case of a judgment or final order against a specific thing, or in respect to the probate of a
will, or the administration of the estate of a deceased person, or in respect to the personal,
political, or legal condition or status of a particular person or his relationship to another,
the judgment or final order is conclusive upon the title to the thing, the will or
administration, or the condition, status or relationship of the person; however, the probate
of a will or granting of letters of administration shall only be prima facie evidence of the
death of the testator or intestate;
(b) In other cases, the judgment or final order is, with respect to the matter directly adjudged
or as to any other matter that could have been raised in relation thereto, conclusive
between the parties and their successors in interest by title subsequent to the
commencement of the action or special proceeding, litigating for the same thing and under
the same title and in the same capacity; and
(c) In any other litigation between the same parties or their successors in interest, that only is
deemed to have been adjudged in a former judgment or final order which appears upon its
face to have been so adjudged, or which was actually and necessarily included therein or
necessary thereto. (49a)
We know what this is all about when the matter is already decided or finish already, you cannot re-
open that easily. The direct provision of law which enunciates that principle is Section 47, which is
composed of 3 portions: paragraphs [a], [b] and [c].
Now, paragraph [a] is the principle of res adjudicata as applied in judgment in rem (binding on the whole
world) or at least quasi in rem. Paragraphs [b] and [c] are the application of the same doctrine with
respect to judgment in personam (binding only on the parties).
RES ADJUDICATA and RES JUDICATA are the same. In the Philippines, that is influenced by Roman Law
and Spanish Law (Pua vs. Lapitan, 57 O.G. 4914) But the principle is known worldwide, although maybe
known by another name. In Anglo-American law, it is known as the doctrine of Estoppel By Judgment
(Fajardo vs. Bayona, 98 Phil. 659). But it is the same. The concept is similar. That is why in the 1994 case
of
SALUD vs. COURT OF APPEALS 236 SCRA 384 [1994]
HELD: The rules of res judicata are of common law origin and they initially evolved from court decisions.
It is now considered a principle of universal jurisprudence forming a part of the legal system of all
civilized nations.
Q: What is the FOUNDATION PRINCIPLE upon which the doctrine of res judicata rests?
A: It rests from the principle that parties ought not to be permitted to litigate the same issue more than
once; that when a right or fact has been judicially tried and determined by a court of competent
jurisdiction, or where an opportunity for such trial had been given, the judgment of the court shall be
conclusive upon the parties and those in privity with them. Otherwise, without this doctrine, litigation
would become interminable, rights of parties would be involved in endless confusion, courts would be
stripped of their most efficient powers, and the most important function of government, that of
ascertaining and enforcing rights, would go unfulfilled. (Zambales Academy vs. Villanueva, L-19884, May
8, 1969; People vs. Macadaeg, 91 Phil. 410; Oberiano vs. Sobremesana, L-4622, May 30, 1952;
Pealosa vs. Tuazon, 22 Phil. 303)
I think we agree with that. Imagine, if two persons litigated for years over the ownership of a parcel of
land. Then after years of litigation, all the way to the SC, defendant won. Final. After one generation,
both plaintiff and defendant are dead but their children would continue. Here comes the children of the
plaintiff raising the same issue of ownership. So, there is no end if there is no res judicata.
REQUISITES OF RES ADJUDICATA
What are the requisites of res adjudicata? How do we know, since there are 2 cases here? Does it mean
that simply because there is a case between us, there will be no more case between us in the future?
NO.
Q: So what are the requisites of res adjudicata?
A: There is res judicata if the following REQUISITES are present:
1.) The judgment or order invoked as res adjudicata must be final;
2.) The court rendering the same must have jurisdiction over the subject matter and of the parties;
3.) The judgment or order must be upon the merits; and
4.) There must be, between the two cases, identity of parties, identity of subject matter, and identity of
cause of action.
So the elements are similar with litis pendentia. Actually, they are based on the same rule splitting of
the cause of action. The only difference is, in litis pendentia, the first action is still pending. In res
adjudicata, the first action has already been decided and the decision has already become final.
First Requisite: JUDGMENT OF ORDER INVOKED MUST BE FINAL
When it says final, the previous judgment has been final and executory (Hubahib vs. Insular Drug,
64 Phil. 119) Meaning, it can no longer be changed. This is because there is such a thing as final and
appealable. A final and executory judgment is already beyond the power of the court to alter while a
final and appealable judgment is still subject to modification by the appellate court. (Macapinlac vs. CA,
86 Phil. 359)
So where there is a judgment now that you received, and before it becomes executory, you filed another
case, it is not res judicata. It is litis pendentia because the first case is still pending.
EXAMPLE: Jessa files a case against Charles. Charles lost and then appealed. While his appeal is pending,
Jessa filed the same case against Charles. Charles filed a motion to dismiss the second case. The ground
for the motion to dismiss should be Litis Pendentia because while there is already a decision, the same is
not yet final and executory. It is still on appeal. In such case, it is improper to invoke the principle of res
adjudicata because the first element is missing.
Q: Now, when did the first judgment become final? Is it before the second case is filed? Or is it after the
second case filed?
A: Either one. It could have been final before the filing of the second action or after, provided when the
defendant invoked it, the first judgment is already final. (Galiancia vs. CA, 173 SCRA 42)
Second Requisite: THE COURT RENDERING THE SAME MUST HAVE JURISDICTION OVER THE SUBJECT
MATTER AND OF THE PARTIES
Meaning, the first judgment is valid because if the court never acquired jurisdiction over the subject
matter and the parties and rendered judgment, the judgment is void and cannot be invoked as res
judicata. (Banco Espaol-Filipino vs. Palanca, 37 Phil. 921)
Q: May a voidable judgment be invoked as res adjudicata?
A: YES because such kind of judgment is binding upon the parties until annulled. (Reyes vs. Barretto-
Datu, 94 Phil. 446)
Now, the classic example of the second element is the case which I mentioned to you when we were in
Rule 17 the case of
REPUBLIC PLANTERS BANK (RBP) vs. MOLINA 166 SCRA 39 [1988]
FACTS: The RPB filed a case against the defendant for a sum of money. Defendant cannot be summoned
because his whereabouts is now unknown. Several attempts made by the plaintiff to look for him failed.
After a while the court dismissed the complaint for RBPs failure to prosecute. And the order of dismissal
was silent. So, following Section 3 of Rule 17, the dismissal is with prejudice it shall have the effect of
an adjudication upon the merits, unless the order provides otherwise.
Then later on, the plaintiff (RPB) discovered the whereabouts of the defendant. The RPB
re-filed the compliant. Defendant moved to dismiss because when the first complaint was dismissed and
the order of dismissal was silent then the dismissal has the effect of an adjudication on the merits.
HELD: Since We are talking of res adjudicata, let us correlate it with the elements of res adjudicata under
Rule 39.
One of the elements of res adjudicata is: When the case is terminated, the court has jurisdiction over the
case both as to the person and the subject matter;
In the case of RPB, the court never acquired jurisdiction over the person of the defendant because he
was never served with summons. Therefore, such dismissal did not have the effect of res adjudicata. The
second element of res judicata is missing.
Third Requisite: THE JUDGMENT OR ORDER MUST BE UPON THE MERITS
What do we mean by this? A judgment on the merits for the purpose of res judicata is one finally settling
the issues raised in the pleadings (Manila Electric Co. vs. Artiaga, 50 Phil. 144). Normally, it is after trial
when there is presentation of evidence.
Therefore, when a complaint is dismissed for lack of jurisdiction or improper venue, even if said dismissal
becomes final, the plaintiff can re-file the case because the dismissal upon improper venue or lack of
jurisdiction is not upon the merits. It never dealt with the correctness or validity of the cause of action.
There should be trial, generally.
So, GENERALLY, a dismissal without a trial is not an adjudication upon the merits EXCEPT in Rule 17,
Section 3 where the case was dismissed for failure of the plaintiff to appear during the presentation of
his evidence in chief, or to prosecute his action for an unreasonable, period of time, or failed to comply
with the rules or order of the court. There is no trial there but according to Rule 17, Section 3, the
dismissal shall have the effect of an adjudication upon the merits. This is the exception even if there was
no trial in the first case.
Fourth Requisite: THERE MUST BE, BETWEEN THE TWO CASES, IDENTITY OF PARTIES, IDENTITY OF
SUBJECT MATTER, AND IDENTITY OF CAUSE OF ACTION
I. IDENTITY OF PARTIES
Q: When there is identity of parties for the purpose of res judicata?
A: There is identity of parties for the purpose of res judicata:
1.) When the parties in the second action are the same as the parties in the first action; or
2.) When the parties in the second action are successors-in-interest of the parties in the first action, such
as heirs or purchasers who acquired title after the commencement of the first action.
EXAMPLE: The example I gave you, the quarrel between parents, then the children did the same. That is
the same parties. The children are the successors-in-interest of the original parties, although literally
they are not the same parties.
One good illustration of res adjudicata on identity of parties as applied in a labor case was the case of
DELFIN vs. INCIONG
192 SCRA 151 [1990]
NOTE: The doctrine of res adjudicata applies not only to the decisions of regular courts but can be
invoked even in administrative cases. It also applies to decisions of administrative bodies.
FACTS: In the case of DELFIN, a union filed a case of unfair labor practice (ULP) against the employer.
Then later on, the case was dismissed by the NLRC. When the case was dismissed, the employees filed
another case based on the same ULP. The employer invoked res adjudicata and the complainants said,
No, it is not the same parties. In the first case, it was the union. Now it is us (employees).
HELD: NO! When the union filed the first case, it was filing in behalf of the employees. This is what you
call representative party. In effect, it is the same party.
While it is true that the complainants in the first charge was the union, in reality it had no material
interest in the outcome of the case. The real party who stands to be benefited or defeated by a case
brought in the name of the union are the union members themselves. Since the judgment therein had
become final and executory, the subsequent filing of another ULP charge against the employer for the
same violations committed during its existence, is barred by res judicata.
The bringing of the same action in the name of the individual members of the union
will not take out the case from the ambit of the principle of res judicata. So, it is still the same parties.
II. IDENTITY OF SUBJECT MATTER
Q: When is there identity of subject matter?
A: There is identity of subject matter if in the second case, the same thing is involved or included in the
first case. (Agregado vs. Muoz, 26 Phil. 546)
EXAMPLE: A judgment in an action for the recovery of a large tract of land shall be a bar for a subsequent
action for the recovery of a smaller parcel included in the large tract. (Rubiso vs. Rivera, 41 Phil. 39)
EXAMPLE: A judgment in an action for accounting of a certain funds would be a bar for a subsequent
action for the partition of the same funds. (Chua Tan vs. Del Rosario, 57 Phil. 411)
EXAMPLE: A case for recovery of property was dismissed. The losing party file a second case for recovery
of the value of the property. In this case, there is res adjudicata. So, you can not deviate no? Kahit
konting retoke lang, it is the same.
III. IDENTITY OF CAUSES OF ACTION
Q: When is there identity of causes of action for the purpose of res judicata?
A: There is identity of causes of action for the purpose of res judicata when the two actions are based on
the same delict or wrong committed by the defendant, even if the remedies be different (Qiogue vs.
Bautista, L-13159, Feb. 2, 1962). You cannot change the remedy in order to escape from the principle of
res adjudicata.
Sometimes, it is one of the hardest same cause of action because sometimes there are 2 causes of
action which are interrelated, even between the same parties. Now, if there are 2 interrelated causes of
action, there is no res adjudicata. Interrelated only, because the law says similar causes of action. That is
hard to determine.
That is why the SC had to give some tests to determine whether the causes of action are the same or
not. Among these tests given by the Court:
TESTS TO DETERMINE WHETHER OR NOT THE CAUSES OF ACTION ARE THE SAME:
1) SAME EVIDENCE Test as laid down in the case of
AQUILA ESTATE vs. BACOLOD-MURCIA MILLING CO.
144 SCRA 482
HELD: Res adjudicata can not be applied even though in the 2 cases there is identity of parties, subject
matter, and relief prayed for, the evidence adduced to sustain the cause of action in the first case is not
sufficient to sustain the second case. So, the evidence was sufficient to prove the first case while the
same evidence is not sufficient to prove the second case. Therefore, it must be different cause of action
for how come the same evidence will not suffice anymore. So, it must be a different one.
2. INCONSISTENCY Test given in the case of
VALENCIA vs. RTC 184 SCRA 80
HELD: One test of the identity of cause of action is whether or not the judgment sought in the
subsequent case will be inconsistent with the prior judgment. Meaning, you are asking for a decision
which is in conflict with the original decision.
Q: Suppose there is an inconsistency, is this a sign of res adjudicata or no res judicata?
A: Well, I think if there is an inconsistency, that is a sign of res adjudicata because you are trying to
change what has already been rendered. To my mind, that is how it should be interpreted because if the
judgment I am seeking is inconsistent with what has been decided, then I think that is violating the rule
of res adjudicata I am re-opening something which was already decided.
3.) And the test in the 1995 case of
 GUEVARRA vs. BENITO 247 SCRA 570
HELD: The causes of action can not be the same if the cause of action in one case only arose after the
judgment in the other. The principle of res judicata extends only to the facts and conditions as they
existed at the time the judgment was rendered.
Those are the important principles to remember (read the cases in short).
RARE INSTANCES WHERE SC REFUSES TO ALLOW RES JUDICATA DESPITE ITS EXISTENCE
Another point, res adjudicata is a rule of law, rule of convenience, of practicality and when the evidence
are present, the courts shall not allow second litigation. We know that but I have to admit that there are
some rare cases where despite the elements of res adjudicata, the courts refused to allow it.
This what we call EQUITY CASES. But this is very rare. When there is a higher principle to be observed
rather than the rule of res adjudicata there are higher values of society which would be subverted if we
will stick to res adjudicata. A good example is the case of
SUAREZ vs. COURT OF APPEALS 193 SCRA 183 [1991]
FACTS: This involves a custody case. A certain Rosemarie Manese file a petition for habeas corpus for the
recovery of her minor child from her former live-in partner or common-law husband, Renato Suarez.
Later, Manese filed a motion to dismiss the habeas corpus case for she intended to pursue another
remedy custody of minor under Rule 99 of the Rules of Court in Special Proceedings.
Actually, as observed by the SC, her move was wrong because you can obtain custody of your child
through habeas corpus. She though she had the wrong remedy, so she changed it. Actually she was
correct. The trouble is, she withdrew it. In the trial for the dismissal of the habeas corpus, it was with
prejudice so actually, it is on the merits no?
Thereafter, she filed the custody case against Suarez. The latter moved to dismiss on the ground of res
adjudicata. All the evidence are admitted there. There was a decision on the merits.
HELD: The principle of res judicata should be disregarded if its application would involve the sacrifice of
justice to technicality. In other words, this is what we call EQUITY.
The application of the res adjudicata should be taken on a case to case basis; you cannot say you apply
res adjudicata through and through. It must be taken under the particular facts obtained. Meaning, there
are certain facts in that case which will warrant a deviation from the usual rule, to do otherwise would
amount to denial of justice and/or bar to a vindication of a legitimate grievance.
It is worth stating here that the controversy in the instant case is not just an ordinary suit between
parties over a trivial matter but a litigation initiated by the natural mother over the welfare and custody
of her child, in which the State has a paramount interest. This is not a simple collection case.
The fundamental policy of the State as embodied in the Constitution in promoting and protecting the
welfare of children shall not be disregarded by the courts by mere technicality in resolving disputes
which involve the family and the youth.
So there is a collision here between the family view found in the Constitution and the technical principle
of res adjudicata. If we sustain the principle of res adjudicata then the mother can no longer recover her
child. But if we disregard res judicata, the mother will be given a chance to get back her child, which is
higher in value than res judicata.
This principle observed in SUAREZ was actually repeated in the 1994 case of
SALUD vs. COURT OF APPEALS 233 SCRA 284 [1994]
HELD: There should not be a mechanical and uncaring reliance on res judicata where more important
societal values deserve protection. The doctrine of res adjudicata is a rule of justice which cannot be
rigidly applied when it results to injustice.
This is another pronouncement which leans on the equitable side of the situation rather than on the
observance of the technical rules of res adjudicata. You can disagree with the decision but the same can
not be wrong. This is what you call infallible. Infallible means no room for error. That is why Justice
Jackson said commenting on the US SC: We are not final because we are infallible. But we are infallible
because we are final.
BAR BY A FORMER JUDGMENT vs. CONCLUSIVENESS OF JUDGMENT
If you have read the questionnaire in Remedial Law last September (1997), one of the questions asked by
the examiner is: Distinguish the concept of BAR BY A FORMER JUDGMENT and the concept of
CONCLUSIVENESS OF JUDGMENT.
The two concepts are found in Section 47. The concept of bar by a former judgment is in paragraph [b]
and conclusiveness of judgment is in paragraph [c]. These are two parts of the res adjudicata rule.
The two concepts were discussed by the SC in the case of SALUD: The concept of Bar By A Former
Judgment is known in traditional terminology as merger or bar; and in modern terminology, it is called
CLAIM PRECLUSION; while Conclusiveness Of Judgment is traditionally known as collateral estoppel and
in modern terminology it is called ISSUE PRECLUSION.
Q: Distinguish BAR BY A FORMER JUDGMENT and CONCLUSIVENESS OF JUDGMENT.
A: The following are the distinctions:
1.) As to Effect: If you analyze paragraph [b], there are two judgments in BAR BY A FORMER
JUDGMENT, the first judgment constitute an absolute bar to all matters directly adjudged as well as
matters that might have been adjudged; whereas
In CONCLUSIVENESS OF JUDGMENT, the first judgment is conclusive only on matters actually
litigated and adjudged in the first action under paragraph [c].
2.) As to the Requisites: In BAR BY A FORMER JUDGMENT, there must be identity of parties, subject
matter, and cause of action; but
In CONCLUSIVENESS OF JUDGMENT, even if there is identity of parties or subject matter, it is not
necessary that there is identity of causes of action.
Of course, for purposes of the bar exams, that kind of answer will suffice but mas maganda if there is
illustration: Kung bar by prior judgment the first judgment is res adjudicata to the second or matters
that have been adjudged and matters that could have been adjudged in relation thereto.
EXAMPLE of Bar by a Former Judgment: Compulsory counterclaim. I filed a case against you for recovery
of land. Meron ka pa lang claim sa akin for reimbursement for necessary expenses. It must be set-up in
the main action otherwise it is barred forever. But you did not set it up and then afterwards, you file a
case against me for reimbursement for necessary expenses, I will move to dismiss. Your claim is already
barred because you should have raised it as a compulsory counterclaim in the first action. The barring of
the counterclaim is considered as the application of res adjudicata by applying the concept of bar by a
former judgment.
HELD: There is NO res adjudicata. In the first place, one of the elements of res adjudicata is identity of
parties. Of course, both of them are also parties of the first case but they were not adverse to each
other. They were co-defendants in the first case.
Res adjudicata is only applicable between adverse parties in the former suit and not between parties. Co-
parties for the judgment therein ordinarily settle claims as to their relative rights and liabilities as co-
plaintiffs or co-defendants per se.
But the second reason is, the cause of action is completely different and therefore the judgment in the
first case is conclusive only insofar as the right of B1 is concerned. It cannot be conclusive as to the rights
of B2 and X because it is a separate cause of action.
Another was the 1993 case of

EXAMPLE of Conclusiveness of Judgment: The debtor borrows from the creditor P3 million payable in 3
installments without any acceleration clause. When the first installment fell due the creditor sue the
debtor and the debtor raised the defense of forgery, That the promissory note is forged and as an
alternative defense assuming that the promissory note is valid, the first installment was already
extinguished by payment. After trial, the court decided against the defendant. Tapos na. Now, the
second installment fell due. It is another cause of action. Now, here comes the plaintiff filing the case to
collect the second installment.
Q: Can the debtor raise again, in the second case, the defense of FORGERY of the promissory note?
A: NO. Tapos na yan. We have already decided that the promissory note was genuine and that there was
no forgery. This is the same promissory note that we are talking about. So, in other words, the issue of
forgery is already adjudged in the first case and therefore res adjudicata in the second installment.
Q: Can the debtor raise the defense of PAYMENT, that the second installment is already paid or is it also
barred?
A: YES, because in the first case what was resolved was whether the first installment is paid. The
judgment is already conclusive on matters directly adjudged but not to matters which have not been
adjudged. The issue on whether the second or third installment have already been paid was never
adjudged in the first case. That is the application. Take note that there is no identity of cause of action.
Another example of Conclusiveness of Judgment was the ruling in the case
VDA FISH BROKER vs. NLRC 228 SCRA 681 [1993]
FACTS: A complaint filed by an employee for non-payment of service incentive leave, COLA, 13th month
pay, holiday pay, is dismissed based on the finding that no employer-employee relationship existed
between the complainant and the respondent. The ruling became final.
Subsequently, the same complainants filed another case against the same respondent for reinstatement
due to illegal dismissal. (How can you file for reinstatement na wala man kayong ER-EE relationship in the
first case???)
ISSUE: Is the finding of no ER-EE relationship in the first case res adjudicata to the second case for illegal
termination?
HELD: YES. The issue of employer-employee relationship is crucial in the determination of the rights of
the parties in both cases. Res adjudicata applies even when the cause of action is not similar under the
concept of conclusiveness of judgment. The ruling in the first case that there is no Employer-Employee
relationship between the parties is conclusive in subsequent cases although the cause of action is not the
same.
If were we to ignore the principle of res judicata, an absurd situation would arise where the same
administrative agency would have diametrically opposed conclusions based on apparently similar
circumstances. This is what will happen - for the second case, there is ER-EE relationship. It is the same
agency which said there is none in the first case. Conflict!

CARANDANG vs. VENTURANZA 133 SCRA 344 [1984]

FACTS: This involves a conflict between two brothers, B1 and B2. There is already bad blood between
them because according to B1, B2 appropriated all the properties of their parents. So there was this
threat from B1 to sue B2 to recover his share.
So B2 consulted his friend X. X suggested that B2 enters into a simulated sale with X. B2 sold his property
to X. As expected, B1 filed a case against both of them to annul or rescind the action. Unfortunately, B1
has never proved that the sale was simulated. The case was dismissed.
Then later B1 died. After that, B2 said to X, Isauli mo na sa akin ang mga properties ko. X said, What
are you talking about? I already bought it from you, akin na ito! B2 filed a case against X. The defense of
X is res adjudicata.
OTHER PRINCIPLES IN LAW WHICH MAY BE CONFUSED WITH RES JUDICATA: A.) LAW OF THE CASE
B.) STARE DECISIS
Another question that can be asked here is, how to explain and distinguish 3 concepts which appear to
be similar. These 3 concepts are all anchored on the same thing: there is a final judgement. The concept
of res adjudicata, law of the case and stare decisis. That was also asked in the bar.
We already know RES ADJUDICATA finality of judgment, or the issues decided in a case, once the
decision has become final and executory and cannot be litigated again by the same parties in a
subsequent action involving the same subject matter. (Pealosa vs. Tuazon, supra.)
Q: What about the LAW OF THE CASE?
A: LAW OF THE CASE means that legal conclusions announced on a first appeal, whether on the general
law of the law as applied to the concrete facts, not only prescribe the duty and limit the power of the
trial court to strict obedience and conformity thereto, but they become and remain the law of the case in
all after steps, whether in the lower court of in the appellate court on a subsequent appeal. (Zarate vs.
Dir. of Lands, 39 Phil. 747)
EXAMPLE of law of the case: There is a case between us and then an issue is raised before the CA and
there is a ruling, right or wrong. That ruling will subsequently bind the parties in the same litigation. Once
the case comes back, the future now of the case will be governed by that ruling. Right or wrong, that
principle will now be the controlling principle affecting the parties. The principle will continue until the
case is terminated.
TABACO vs. COURT OF APPEALS 239 SCRA 485 [1994]
ISSUE: Can a case be re-opened if the law of the case has been changed?
HELD: NO, because when the case was decided, it was the governing law at the time, even if it turns out
to be wrong.
Under the law of the case concept, whatever is once irrevocably established as the controlling legal
principle or decision continues to be the law of the case between the same parties in the same case,
whether correct or not, so long as the facts on which such decision was predicated continue to be the
facts of the case before the court. Such stability and conclusiveness given to final judgments of courts of
competent jurisdiction are said to be grounded on reasons of public policy, judicial orderliness and
economy as well as protection of the time and interests of the litigants.
A good EXAMPLE: File ako ng kaso collection of an unpaid loan based on the provision of the Civil Code
but the debtor said, There is no cause of action because the provision of the civil code is
unconstitutional. After trial the court said, Yes, article so-so of the Civil Code is unconstitutional. The
debtor is not obliged to pay. Tapos na. Final na ang decision because there was no appeal. What will
happen? We are bound. As far as this case is concerned, the Civil Code is unconstitutional. That is the law
of the case.
KILOSBAYAN vs. MORATO
246 SCRA 540 [1995]
HELD: The doctrine of the law of the case applies whenever the case before the court came for the
second time after a ruling of the appellate court (???).
Q: What you mean by STARE DECISIS?
A: Stare Decisis means that the decision of a court should stand as precedents for future guidance
(Ballentines Law Dict., 2nd Ed., 1228) Example is the decisions of the SC which stands as precedents for
future cases. The purpose of this is to attain stability and judicial order. That is why we are citing
precedents.
ROSALES vs. COURT OF FIRST INSTANCE
154 SCRA 153 [1987]
HELD: Precedents are helpful in deciding cases when they are substantially identical with previous
litigations. Argumentum a simili valet in lege. Earlier decisions are guideposts that can lead us in the right
direction as we tread the 'highways and byways of the law in the search for truth and justice. These
pronouncements represent the wisdom of the past. They are the voice of vanished judges talking to the
future. Except where there is a need to reverse them because of an emergent viewpoint or an
altered situation, they urge us strongly that, indeed, the trodden path is best.
Trodden Path example is when you go on hiking like in Mt. Apo. If there is already a path or trail, you
will not have a hard time looking for your way up to the peak of Mt. Apo. There is already a way which
will guide you to reach your destination.
But the doctrine of stare decisis admittedly does not mean that courts should be slave forever to
precedents. A doctrine long standing has also been reversed. The SC explained also why once in a while it
abandons the doctrine of stare decisis:
PEOPLE vs. MUOZ 170 SCRA 107 [1989]
HELD: If we have seen fit to take a second look at the doctrine on which we were all agreed before, it is
not because of a change in the composition of this body. It is virtually the same Court that is changing its
mind after reflecting on the question again in the light of new perspectives. The decisions of this Court
are not petrified rules grown rigid once pronounced but vital, growing things subject to change as all life
is. While we are told that the trodden path is best, this should not prevent us from opening a fresh trial
or exploring the other side or testing a new idea in a spirit of continuing inquiry.
Q: Distinguish Res Adjudicata and Stare Decisis.
A: RES ADJUDICATA operates between two actions involving the same parties and the same cause(of
action); while STARE DECISIS refers to cases with different parties.
STARE DECISIS refers only to decisions of the SC (decisions of the CA are not a basis of stare decisis);
while the doctrine of RES ADJUDICATA refers to all courts: SC, CA, RTC and MTC.
Q: Distinguish Law Of The Case and Stare Decisis.
A: LAW OF THE CASE refers only to one case which may or may not be invoked in subsequent cases,
while STARE DECISIS may refer to various cases which are usually invoked in subsequent cases.
Sec. 48. Effect of foreign judgments or final orders. - The effect of a judgment or final order of a
tribunal or a foreign country, having jurisdiction to render the judgment or final order is as follows:
(a) In case of a judgment or final order upon a specific thing, the judgment or final order is
conclusive upon the title to the thing; and
(b) In case of a judgment or final order against a person, the judgment or final order is
presumptive evidence of a right as between the parties and their successors in interest by a
subsequent title.
In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want
of notice to the party, collusion, fraud, or clear mistake of law or fact. (50a)
Sec. 48 is actually a law on conflict of laws - effect of foreign judgment. If a judgment is rendered in
U.S. and is being invoked in the Philippines, should we honor it? Yes. So, is it conclusive? Yes. The
law says, in case of judgment upon a specific thing, the judgment or final order is conclusive effectively.
PROBLEM: Mortverine and Mistiqla were both in the U.S. and they quarreled about the ownership of a
ring. They went to an American court. After trial, the court ruled that Mortverine is the legitimate owner
of the ring. The judgment became final. Subsequently both of them came to the Philippines and Mistiqla
filed a case against Mortverine to recover the same ring. Sabi ni Mortverine, Res adjudicata na ito eh,
tapos na yan. Here is the decision in America. Therefore it is settled.
Q: Is A correct?
A: YES. Under paragraph [a]. In case of a foreign judgment upon a SPECIFIC THING, the judgment is
conclusive upon the parties. Hindi puwedeng buksan. Thats already litigated abroad, merong nang
decision. We will respect it.
Suppose the judgment is against a person. The law says it is presumptive evidence of a right as between
the parties.
EXAMPLE: A and B were both Americans. They were married in the U.S. and obtained a divorce in the
states. They came to the Philippines. The issue is whether the marriage was validly terminated.
According to one party, Yes, meron man tayong divorce ba. Is the decree of divorce abroad involving
these American couple allowed in the Philippines considering we have no divorce here? That is their law.
It is presumptive evidence of a right of the parties.
EXAMPLE: H and W are Philippine citizens. They went abroad and somehow able to get a divorce in an
American court which became final. They came back here. Will the Philippine court honor the divorce?
Here, the judgment may be repelled by want of jurisdiction of the American court, etc. The judgment is
presumed to be valid unless you can attack by showing lack of jurisdiction.
What is the principle in private international law? A judgment of divorce rendered by an American court
between 2 Filipinos is null and void. Why? The American court never acquired jurisdiction over the status
of the parties (because they are not U.S. citizens). But judgment in personam is honored here except
when there is want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or
fact.
Q: How do you enforce a foreign judgment?
A: The usual procedure, you file a case against the same defendant here and the cause of action is
enforcement of a foreign judgment. And then the Philippine court will render a judgment enforcing it
and then you can execute.
The SC commented on the enforcement of a foreign judgment in the Philippines in the case of
PHILSEC vs. COURT OF APPEALS June 19, 1997
HELD: While this court has given the effect of res judicata to foreign judgments in several cases, it was
after the parties opposed to the judgment had been given ample opportunity to repel them on grounds
allowed under the law. It is not necessary for this purpose to initiate a separate action or proceeding for
enforcement of the foreign judgment. What is essential is that there is opportunity to challenge the
foreign judgment, in order for the court to properly determine its efficacy. This is because in this
jurisdiction, with respect to actions in personam, as distinguished from actions in rem, a foreign
judgment merely constitutes prima facie evidence of the justness of the claim of a party and, as such, is
subject to proof to the contrary.
With that, we are now through with Rule 39. (Wheew!)
-oOo-
APPEALS
Rule 40
APPEAL FROM MUNICIPAL TRIAL COURTS TO THE REGIONAL TRIAL COURTS
APPEAL. The law on appeal starts from Rule 40 to Rule 56. Usually the appeal is from the trial court to
the next higher court. Under the judiciary law, appeals from the MTC should be to the RTC which is
governed by Rule 40. And when the case is tried by the RTC and you want to appeal, normally, the appeal
should be to the CA under Rule 41.
We will stick to the basic rule on appeal found in the judiciary law, Section 39, BP 129:
Sec 39. Appeals. - The period for appeal from final orders, resolutions, awards, judgments or decisions of
any court in all cases shall be fifteen (15) days counted from the notice of the final order, resolution,
award, judgment, or decision appealed from: Provided, however, That in habeas corpus cases, the period
for appeal shall be forty-eight (48) hours from the notice of the judgment appealed from.
No record on appeal shall be required to take an appeal. In lieu thereof, the entire original record shall
be transmitted with all the pages prominently numbered consecutively, together with an index of the
contents thereof.
This section shall not apply in appeals in special proceedings and in other cases wherein multiple appeals
are allowed under applicable provisions of the Rules of Court.
There are three (3) instances under Section 39:
So this is the general outline of the law on appeals under Section 39, BP 129.
[EDITORS NOTE: The 48-hour period to appeal in habeas corpus cases under Section 39 of BP 129 is now
incorporated in Rule 41, Section 3 as amended, which took effect last July 15, 2000 (A.M. No. 01- 1-03-
SC)]
Rule 40 refers to appeal from the MTC to the RTC. The appellate jurisdiction of the RTC is found in
Section 22, BP 129. That is why Rule 40 is revolving around that provision:
BP 129, Sec. 22. Appellate jurisdiction. - Regional Trial Courts shall exercise appellate jurisdiction over all
cases decided by MetTCs, MTCs and MCTCs in their respective territorial jurisdictions. Such cases shall be
decided on the basis of the entire record of the proceedings had in the court of origin and such
memoranda and/or briefs as may be submitted by the parties or required by the RTCs. The decision of the
RTCs in such cases shall be appealable by petition for review to the CA which may give it due course only
when the petition show prima facie that the lower court has committed an error of fact or law that will
warrant a reversal or modification of the decision or judgment sought to be reviewed.
Let us now go to Section 1 of Rule 40:
Section 1. Where to appeal. An appeal from a judgment or final order of a Municipal Trial Court may
be taken to the Regional Trial Court exercising jurisdiction over the area to which the former pertains.
The title of the case shall remain as it was in the court of origin, but the party appealing the case shall
be further referred to as the appellant and the adverse party as the appellee. (n)
So from the MTC, the appeal is to the RTC exercising jurisdiction over the area to which the former
pertains. That is why under the judiciary law, every RTC has a designated territorial area. So, if you want
to appeal from the decision of the MTC of Davao City, you appeal to the RTC of Davao. You do not make
your appeal to the RTC of Tagum because it does not exercise jurisdiction over Davao City.
And take note under Section 1, it is now required that when you appeal from the MTC to the RTC, you
should indicate in the caption of the case who is the APPELLANT and the APPELLEE. This is also the
procedure when you are appealing to the SC.
The appellant is the party appealing the case while the appellee is the adverse party. So for example, the
original title of the case in the MTC is: JOBOY, plaintiff vs. BROSIA, defendant. If Joboy will appeal the
case, the title of the case now in the RTC will be: JOBOY, plaintiff-appellant vs. BROSIA, defendant-
appellee. Or, if Brosia will be the one appealing the case, the title now will be: JOBOY, plaintiff-appellee
vs. BROSIA, defendant-appellant.
The period to appeal is in Section 2:
Sec. 2. When to appeal. An appeal may be taken within fifteen (15) days after notice to the appellant
of the judgment or final order appealed from. Where a record on appeal is required, the appellant
shall file a notice of appeal and a record on appeal within thirty (30) days after notice of the judgment
or final order.
The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No
motion for extension of time to file a motion for new trial or reconsideration shall be allowed. (n)
In relation to certain jurisprudence, the 15-day period cannot be extended. (Lacsamana vs. IAC, 143 SCRA
643) It cannot be extended but it can be interrupted by a timely motion for new trial or reconsideration.
And no motion for extension of time to file a motion for new trial or reconsideration shall be allowed.
(Section 2)
Q: How about the 30-day period? Is the 30-day period extendible?
A. YES. It is extendible for record on appeal, on the condition that the Motion to Extend must be
filed within the original 30 days and provided further that the movant has no right to expect that his
motion will be granted.
So the 15-day period can never be extended but the 30-day period is extendible based on jurisprudence.
This is because a notice of appeal is normally a one-paragraph document. You can do that in just 5
minutes. But a record on appeal is makapal. That is why it is 30 days. Sometimes kulangin pa yung 30-day
period. So you can extend it provided you file the motion for extension during the original 30-day period.
Sec. 3. How to appeal. The appeal is taken by filing a notice of appeal with the court that rendered the
judgment or final order appealed from. The notice of appeal shall indicate the parties to the appeal,
the judgment or final order or part thereof appealed from, and state the material dates showing the
timeliness of the appeal.
A record on appeal shall be required only in special proceedings and in other cases of multiple or
separate appeals.
The form and contents of the record on appeal shall be as provided in section 6, Rule 41.
Copies of the notice of appeal, and the record on appeal where required, shall be served on the
adverse party. (n)
Q: How do you appeal?
A: Under Section 3, you file a Notice of Appeal to the court that rendered judgment, so MTC. And it shall
indicate the parties to the appeal, the judgment or final order or part thereof appealed from, and state
the material dates showing the timeliness of the appeal. For example:
Notice of Appeal
Defendant hereby serves notice that he is appealing to the RTC from the judgment rendered by the MTC
dated March 5, 1998 copy of which was received by him on March 15, 1998.
So it is very simple to make. And you must indicate exactly not only the date of the decision but also the
date when you received it because the running of the period to appeal does not run from the date of the
decision but from the time you received it. That is why the rule says, you must state the material dates
showing the timeliness of the appeal. (Record on appeal is discussed in Rule 41, Section 6.)
Of course, the adverse party should be furnished with a copy of the notice of appeal.
Sec. 4. Perfection of appeal; effect thereof. The perfection of the appeal and the effect thereof shall be
governed by the provisions of section 9, Rule 41.
Q: When is the appeal deemed perfected?
A: See discussion under Section 9, Rule 41. From the moment the appeal is deemed perfected, the MTC
loses jurisdiction over the case. And by fiction of law, jurisdiction is automatically transferred to the RTC.
Sec. 5. Appellate court docket and other lawful fees. Within the period for taking an appeal, the
appellant shall pay to the clerk of the court which rendered the judgment or final order appealed from
the full amount of the appellate court docket and other lawful fees. Proof of payment thereof shall be
transmitted to the appellate court together with the original record or the record on appeal, as the
case may be. (n)
Within the period to appeal (normally within 15 days), the appellant must pay the docket fee. So that
when the records are transmitted, bayad na. Even before this rule came out, the payment of appellate
docket fee is really required. The rule is the same.
Q: Suppose I will file my Notice of Appeal within 15 days but I will not pay the docket fee, should my
appeal be dismissed? Is it an additional requirement for appeal?
A: In the case of
SANTOS vs. COURT OF APPEALS 253 SCRA 632 [1996]
ISSUE: Will the failure to pay appellate fee automatically cause the dismissal of the appeal in the MTC to
the RTC ?
HELD: The payment of appellate fee is found in Section 8 of Rule 141. But the SC observed that the only
requirement is Notice of Appeal. There is no mention of appellate fee. The payment of appellate fee is
not a requisite to the perfection of an appeal although Rule 141 does not specify when said payment
shall be made. It does not automatically result in the dismissal of the appeal unless it affects the
jurisdiction. The dismissal being discretionary on the part of the appellate court, such dismissal should be
exercised wisely.
This ruling is still applicable. Although Section 5 prescribes that within the period to take appeal you
must pay the docket fee. If you do not pay it, it may not cause ipso facto the dismissal of your appeal. But
the clerk of court may refuse to transmit the record to the RTC until you pay. So docket fee is not a
requirement to perfect an appeal although it is an obligation also.
Sec. 6. Duty of the clerk of court. Within fifteen (15) days from the perfection of the appeal, the clerk
of court or the branch clerk of court of the lower court shall transmit the original record or the record
on appeal, together with the transcripts and exhibits, which he shall certify as complete, to the proper
Regional Trial Court. A copy of his letter of transmittal of the records to the appellate court shall be
furnished the parties. (n)
What is the requirement to perfect an appeal? It is notice of appeal only or record on appeal also for
special proceedings.
Section 5 of this rule now states that when the party takes an appeal, it is the obligation of the appellant
to pay the appellate docket fee which is imposed by Rule 141 so that the clerk of the MTC will elevate
the appeal to the MTC.
Sec. 7. Procedure in the Regional Trial Court. (a) upon receipt of the complete record or the
record on appeal, the clerk of court of the Regional Trial Court shall notify the parties of such fact.
(b) Within fifteen (15) days from such notice, it shall be the duty of the appellant to submit a
memorandum which shall briefly discuss the errors imputed to the lower court, a copy of
which shall be furnished by him to the adverse party. Within fifteen (15) days from receipt
of the appellants memorandum, the appellee may file his memorandum. Failure of the
appellant to file a memorandum shall be a ground for dismissal of the appeal.
(c) Upon the filing of the memorandum of the appellee, or the expiration of the period to do
so, the case shall be considered submitted for decision. The Regional Trial Court shall decide
the case on the basis of the entire record of the proceedings had in the court of origin and
such memoranda as are filed. (n)
What happens if the case reaches the RTC? Section 7 answers it. The clerk court shall notify the parties.
What is important here is paragraph [b], a radical provision:
(b) Within fifteen (15) days from such notice, it shall be the duty of the appellant to submit a
memorandum which shall briefly discuss the errors imputed to the lower court, a copy of which shall be
furnished by him to the adverse party. Within fifteen (15) days from receipt of the appellants
memorandum, the appellee may file his memorandum. Failure of the appellant to file a memorandum
shall be a ground for dismissal of the appeal.
The procedure under the OLD RULES is found on Section 22 of the Interim Rules. When the case is
appealed to the RTC, the case will be decided by the RTC based on the record on appeal together with a
memorandum as the court may require the parties. In other words, the court may or may not require the
parties to file a memorandum.
NOW, the present rule says, within 15 days from notice, it is your obligation to file a memorandum. If the
appellant fails to file a memorandum in the RTC, his appeal will be dismissed. The filing of an appeal
memorandum in the RTC is mandatory because you must point out to the RTC kung saan nagkamali. You
help the RTC judge look for the error.
Q: Suppose the appellant has filed his memorandum and it is the appellee who failed to file his
memorandum. What is the effect of such failure?
A: Under paragraph [c], the case shall be submitted for decision without appellees memorandum. And it
does not necessarily mean that the appellee will lose the case by not filing his memorandum because for
all you know the decision of the lower court is very clear, whether he files a memorandum or not, he will
still wins.
Another radical change is Section 8:
Sec. 8. Appeal from orders dismissing case without trial; lack of jurisdiction. If an appeal is taken from
an order of the lower court dismissing the case without a trial on the merits, the Regional Trial Court
may affirm or reverse it, as the case may be. In case of affirmance and the ground of dismissal is lack of
jurisdiction over the subject matter, the Regional Trial Court, if it has jurisdiction thereover, shall try
the case on the merits as if the case was originally filed with it. In case of reversal, the case shall be
remanded for further proceedings.
If the case was tried on the merits by the lower court without jurisdiction over the subject matter, the
Regional Trial Court on appeal shall not dismiss the case if it has original jurisdiction thereof, but shall
decide the case in accordance with the preceding section, without prejudice to the admission of
amended pleadings and additional evidence in the interest of justice. (n)
The case was dismissed by the MTC without trial on the merits.
PROBLEM: Tomas filed a case against Ka Noli to collect a loan of P50,000 before the MTC. But upon
motion to dismiss alleging that MTC has no jurisdiction, the court dismissed the complaint without trial.
That is disposing of the case without trial. Now, RTC said, MTC has jurisdiction.
Q: In that case, what will the RTC do?
A: The RTC will order the MTC to conduct trial.
PROBLEM: Suppose the complaint filed by Tomas against Ka Noli is for P500,000 before the MTC. It is
clear that the MTC has no jurisdiction. Ka Noli moved to dismiss the case and it was dismissed. But
Tomas appealed to the RTC believing that the dismissal was wrong. Of course the order of the MTC is
correct. It should have been filed with the RTC.
Q: What will happen now to the case?
A: The RTC will not dismiss the case but instead assumes jurisdiction. The RTC which has jurisdiction,
shall try the case on the merits as if the case was originally filed in the RTC.
The second paragraph has slight modification:
PROBLEM: Tomas files a case against Ka Noli for P500,000 before the MTC. Ka Noli file a motion to
dismiss on the ground of lack of jurisdiction. But the motion to dismiss of Ka Noli was denied and the
court tried the case. So, the trial is void. The judgment rendered is also void. So Ka Noli appealed.
Q: What will happen on appeal from the decision of the MTC which tried a case even though it has no
jurisdiction over it?
A: Since the decision (on the merits) was appealed to the RTC, the RTC will assumes jurisdiction over the
case. The RTC will convert the appellate jurisdiction into an original jurisdiction instead of dismissing an
appeal. It will treat it as if it has been filed for the first time in the RTC and not as an appealed case. The
purpose here is to avoid double payment of docket fees.
Sec. 9. Applicability of Rule 41. The other provisions of Rule 41 shall apply to appeals provided for
herein insofar as they are not inconsistent with or may serve to supplement the provisions of this Rule.
(n)
Rule 41 provisions may also be used in appeals from MTC to RTC. It is more comprehensive. It refers to
appeal from RTC to CA on cases decided by the RTC pursuant to its original jurisdiction. This is also
applicable to Rule 40 insofar as they are not inconsistent.
-oOo-
Rule 41
APPEAL FROM THE REGIONAL TRIAL COURTS
Majority of the important rules are found here in Rule 41.
Section 1. Subject of appeal. An appeal may be taken from a judgment or final order that completely
disposes of the case, or of a particular matter therein when declared by these Rules to be appealable.
No appeal may be taken from:
(a) An order denying a motion for new trial or reconsideration;
(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 execution;
(g) A judgment or final order for or against one or more of several parties or in separate claims,
counterclaims, cross-claims and third-party complaints, while the main case is pending,
unless the court allows an appeal therefrom; and
(h) An order dismissing an action without prejudice.
In all the above instances where the judgment or final order is not appealable, the
aggrieved party may file an appropriate special civil action under Rule 65. (n)
Q: What orders or judgment are subject to appeal ?
A: Only FINAL judgments or orders can be appealed as distinguished from interlocutory judgments or
orders (paragraph [c])which are not appealable.
FINAL JUDGMENT OR ORDERSthe term final has two (2) possible meanings in Civil Procedure:
[1] The judgment is final in the sense that it is already executory and that happens if there is no appeal.
And that is for purposes of applying Rule 39 on execution.
[2] The judgment is final in the sense that it is not merely interlocutory and this is for the purpose of
applying the law on appeal under Rule 41. In other words, a final order or judgment (for purposes of
appeal) is one which is not merely interlocutory in the sense that it completely disposes of the case or a
particular matter therein where there is nothing more for the court to do after its rendition. (Bairan vs.
Tan Sui Lay, L-19460, Dec. 28, 1966)
Q: What is the definition of a final judgment or for purpose of appeal?
A: A judgment or order is final if it disposes of the pending action so that nothing more can be done in
the trial court with respect to its merits. (Salazar vs. De Torres, 58 O.G. 1713, Feb. 26, 1962; Bairan vs.
Tan Sui Lay, L-19460, Dec. 28, 1966)
Q: On the other hand, what is an interlocutory judgment or order?
A: An interlocutory order is something which does not completely dispose of the action and there is still
something for the court to do after its rendition. (Olsen & Co. vs. Olsen, 48 Phil. 238; Restauro vs.
Fabrica, 80 Phil. 762) Actually, the law does not prohibit a party from appealing an interlocutory
judgment or order, only you cannot appeal immediately. (Abesamis vs. Garcia, 98 Phil. 762)
Q: What is the test for determining whether a judgment or order is final or interlocutory?
A: The test for the determination of whether a judgment or order is final or interlocutory is this: Does it
leave something to be done in the trial court with respect to the merits of the case? If it does, it is
interlocutory, hence, you cannot appeal yet; if it does not, it is final and therefore you can appeal. (Reyes
vs. De Leon, L-3720, June 24, 1952)
So you must know the meanings of the word final in civil procedure to avoid confusion. A good example
is Section 20 of Rule 3 where the word final was first mentioned:
Rule 3, Sec. 20. Action on contractual money claims. - When the action is for recovery of money arising
from contract, express or implied, and the defendant dies before entry of final judgment in the court in
which the action was pending at the time of such death, it shall not be dismissed but shall instead be
allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintiff therein
shall be enforced in the manner especially provided in these Rules for prosecuting claims against the
estate of a deceased person. (21a)
The word final here in Section 20 refers to the second meaning that the judgment is final in the sense
that it is not merely interlocutory
BAR QUESTION: Plaintiff vs. Defendant. Defendant file a motion to dismiss under Rule 16. The court
granted the motion and consequently ordered the dismissal of the complaint of the plaintiff. Can the
plaintiff appeal from the order dismissing his complaint?
A: We will apply the test: Is there anything more for the court to do after issuing the order of dismissal?
Wala na! [Awanen!] Ano pa ba ang gagawin eh na-dismiss na nga eh! Therefore, the order of dismissal is
a final order it has completely disposed of the case hence, the plaintiff can appeal.
PROBLEM: Lets modify the problem: Plaintiff vs. Defendant. Defendant file a motion to dismiss under
Rule 16. The court denied the motion to dismiss. Can the defendant appeal from the order of the court
denying his motion to dismiss?
A: Again, we will apply the test: Is there anything more for the court to do after denying the motion to
dismiss of the defendant? Yes because after the court denies such motion, the defendant will now file his
answer, then there will be pre-trial, trial, judgment. Meaning, after denying the motion to dismiss, may
trabaho pa ako. Therefore, the order denying the motion to dismiss is interlocutory, hence the defendant
cannot appeal.
Q: So how do you appeal from an interlocutory order?
A: The procedure if there is an order which is against you but it is not appealable, you have to wait. The
case is to be tried and then you have to wait for the final judgment to be rendered and if you are
dissatisfied with the judgment, that is the time you appeal from the said judgment together with the
interlocutory orders issued in the course of the proceeding. (Mapua vs. Suburban Theaters, Inc., 81 Phil.
311) So there should only be one appeal form that case. Thats why, as a general rule, the law on Civil
Procedure prohibits more that one appeal in one civil action.
The reasons why interlocutory orders are not appealable are to avoid multiple appeals in one civil case
since the order is interlocutory and the court still continues to try the case in the course of the
proceeding, the court will realize its error and the court may change its order so it will be given an
opportunity to corrects its own mistake. (Manila Elec. Co. vs. Artiaga, 50 Phil. 147)
Take note of the new rule saying that a judgment or order is final if it disposes of the case or of a
PARTICULAR MATTER. So, it is not necessarily the whole case.
In the case of DAY vs. RTC (191 SCRA 640), a case filed by A against B, X filed a motion to intervene and it
was denied. Can X appeal the denial? Now, it would seem that the order is interlocutory because the
court, after denying the motion to intervene, still has something to do since the case between A and B
will continue. But according to the SC, YES, X can appeal because the order denying the motion to
intervene is final.
But is it not true that the court has something to do after denying such motion? Yes but what the SC is
trying saying is that, as far as Xs right is concerned, the court has nothing to do anymore. Marami pa
akong trabaho dito (case between A and B), pero kay X wala na. That is why the order denying the
motion to intervene is a final order and is appealable. Kaya nga the test that there is nothing more for
the court to do is very confusing. In other words, you divide the case into parts.
DAY vs. RTC OF ZAMBOANGA CITY 191 SCRA 640
HELD: An order which decides an issue or issues in a complaint is final and appealable, although the
other issue or issues have not been resolved, if the latter issues are distinct and separate from the
others.
REPUBLIC vs. TACLOBAN CITY ICE PLANT 258 SCRA 145 [1996]
HELD: A court order is final in character if it puts an end to the particular matter resolved or settles
definitely the matter therein disposed of, such that no further questions can come before the court
except the execution of the order. Such an order or judgment may validly refer to the entire controversy
or to some definite and separate branch thereof.
So the opening paragraph of Section 1 is in accordance with the DAY and TACLOBAN cases. In other
words, either the whole case is disposed of or a particular matter therein has been disposed of.
Q: If I cannot appeal because Section 1 of Rule 41 prohibits an appeal, is there a way of hastening the
issue before the appellate court in order to avoid the waste of time and effort and money of entering
into a trial which is null and void because of lack of jurisdiction?
A: The answer is the last paragraph of Section 1:
In all the above instances where the judgment or final order is not appealable, the aggrieved party may
file an appropriate special civil action under Rule 65. (n)
So if appeal is not available, the correct remedy is an appropriate special civil action under Rule 65. There
are three civil actions there: Certiorari, Prohibition, Mandamus.
The present Rule 41 tells us exactly what orders cannot be appealed:
(a) An order denying a motion for new trial or reconsideration;
So when a motion for new trial or reconsideration is denied, there is no appeal from that order. Your
remedy is you appeal from the judgment, not from the order denying your motion for new trial or
reconsideration. That is found on Rule 37, Section 9:
Section 9. Remedy against order denying a motion for new trial or reconsideration.- An order denying a
motion for new trial or reconsideration is not appealable, the remedy being an appeal from the judgment
or final order.
So the correct remedy is in Rule 37 you appeal from the judgment, not from the order denying the
motion for new trial or reconsideration.
(b) An order denying a petition for relief or any similar motion seeking relief from judgment;
Paragraph [b] has changed some decided cases in the past. Before, an order granting a petition for relief
is interlocutory but an order denying a petition for relief is final. NOW, wala na yan! Whether it is an
order granting or denying a petition for relief, you cannot appeal.
So what is remedy for such order? Go with special civil action under Rule 65 as provided in the last
paragraph of Section 1.
Give an example of an order denying a motion other than a petition for relief: motion for new trial. So it
is not appealable.
Suppose I am declared in default, can I appeal from a DEFAULT JUDGMENT ? The 1964 rules says, yes.
You notice that such provision is lost. There is no more direct provision on that. But still, it is appealable.
The provision in the old rules is not necessary. There is nothing in paragraphs [a] to [h] prohibiting an
appeal from a default judgment. So it falls under the general rule.
Q: How about the order to LIFT the order of default? Suppose you file a motion to set aside the judgment
of default and motion is denied, can you appeal?
A: NO, because the law says, an order denying any similar motion seeking relief from judgment
cannot be appealed. As a matter of fact, the 1995 case of MANILA ELECTRIC COMPANY vs. CAMPANA
FOOD PRODUCTS (246 SCRA 77), there is no such remedy as a motion to set aside an order of default but
there is no provision in the rules to set aside a judgment of default. The correct remedy is to appeal from
the judgment of default not to set aside. And that is clear. The default judgment is appealable.
(d) An order disallowing or dismissing an appeal;
So, if an appeal is dismissed, you cannot appeal from the order dismissing it. What is the remedy? The
1964 rules provides for the remedy of mandamus. That is a direct provision because if the appeal is on
time , the duty of the court to grant due course to the appeal is ministerial. There is no more such
provision in the present rules because it is already provided in the last paragraph.
Another possible remedy where an appeal is allowed aside from the mandamus is if I lost my right to
appeal because of fraud, mistake accident and inexcusable negligence, the other possible remedy is a
petition for relief from judgment denying my appeal and that is found in Rule 38, Section 2:
Rule 38, Sec. 2. Petition for relief from denial of appeal. When a judgment or final order is rendered by
any court in a case, and a party thereto, by fraud, accident, mistake, or excusable negligence, has been
prevented from taking an appeal, he may file a petition in such court and in the same case praying that
the appeal be given due course. (1a)
So, aside from the remedy under Rule 65, the other possible remedy is a petition for relief from the
order denying the appeal.
(e) An order denying a motion to set aside a judgment by consent, confession or compromise on
the ground of fraud, mistake or duress, or any other ground vitiating consent;
PROBLEM: So there is a judgement by consent (cognovit judgment) and the motion to set aside such
judgment is denied. The order of denial is not appealable. So again, there is judgement by confession or
compromise and then you file a motion to set aside the judgement of compromise on the ground of
fraud, mistake or duress or any other ground. Motion denied!
Q: Can you appeal?
A: NO. (paragraph [e])
Q: So what is my remedy?
A: You file a separate case for annulment for such judgment (Rule 47). In the case of
DOMINGO vs. COURT OF APPEALS 255 SCRA 189 [1996]
HELD: The correct remedy is for the party to file an action for annulment of judgment before the Court of
Appeals pursuant to Section 9, par. 2, of the Judiciary Law.
A compromise may however be disturbed and set aside for vices of consent or forgery. Hence, where an
aggrieved party alleges mistake, fraud, violence, intimidation, undue influence, or falsity in the execution
of the compromise embodied in a judgment, an action to annul it should be brought before the Court of
Appeals, in accordance with Section 9(2) of Batas Pambansa Bilang 129, which gives that court (CA)
exclusive original jurisdiction over actions for annulment of judgments of regional trial courts.
(f) An order of execution;
So you cannot appeal from an order of execution because if we will allow the losing party to appeal from
an order of execution, then there will be no end to litigation. Kaya nga execution, eh it means tapos na
ang kaso. That case is finished, decided, final.
But suppose the order of execution contains portions which are not found in the judgment, meaning, the
order of execution is changing the judgment which should not be done, then obviously, the correct
remedy is certiorari under Rule 65 because of grave abuse of discretion.
(g) A judgment or final order for or against one or more of several parties or in separate claims,
counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court
allows an appeal therefrom;
The best example of a judgment of final order where there are separate claims is found in Rule 36. There
could be more than one judgment in one civil case and there can be more than one decision judgment
on the main action, on the counterclaim, etc. (c.f. Sections 4 and 5, Rule 36)
Q: Everytime a judgment is issued, can you appeal already form the first judgment when there will be a
second judgment in that civil action? Can you appeal from all these separate judgment?
A: No, unless the court allows an appeal therefrom. Generally, you have to wait for all the judgments to
be rendered before you can appeal because, normally, there can be no appeal from every judgment
rendered. A good example of this is in the case of
PROVINCE OF PANGASINAN vs. COURT OF APPEALS 220 SCRA 726
FACTS: This was a partial summary judgment under Rule 35. Is it appealable? One party claims that a
partial summary judgment is appealable because of Rule 36, where the court allows an appeal
therefrom. But according to the Supreme Court:
HELD: A partial summary judgment is not covered by Rule 36. It is governed by Rule 35 and there is no
appeal because it is merely interlocutory.
Rule 35, Sec. 4. Case not fully adjudicated on motion. If on motion under this Rule, judgment is not
rendered upon the whole case or for all the reliefs sought and a trial is necessary, the court at the
hearing of the motion, by examining the pleadings and the evidence before it and by interrogating
counsel shall ascertain what material facts exist without substantial controversy and what are actually
and in good faith controverted. It shall thereupon make an order specifying the facts that appear without
substantial controversy, including the extent to which the amount of damages or other relief is not in
controversy, and directing such further proceedings in the action as are just. The facts so specified shall
be deemed established, and the trial shall be conducted on the controverted facts accordingly.
Q: When can there be a partial summary judgment?
A: When some portions of a claim are substantially controverted and the rest are not substantially
controverted. So the court is authorized to render a partial summary judgment on the claim where there
is no genuine issue we continue trying the case with respect to the claim where there is a genuine issue.
So there will be two judgments. A summary judgment for one claim and an ordinary judgment for the
other claim. So nauna yung partial summary judgment.
Q: Can you appeal from there immediately?
A: NO, you have to wait for the other judgment to come out. You cannot appeal from that partial
summary judgment while the main case is pending, unless the court allows appeal therefrom.
(h) An order dismissing an action without prejudice.
If an action is dismissed without prejudice, it cannot be appealed because, as it is without prejudice, you
can re-file the case. But supposed the dismissal without prejudice is arbitrary, and I dont want to re-file
because it is too costly and I really want to question the court dismissing my case without prejudice, I
want to challenge the order. Now, because appeal is not appealable, your remedy is Rule 65 on
certiorari.
Q: Give examples of dismissal of cases without prejudice. A: Rule 16, Section 5 (c.f. Rule 16, Section 1 [f],
[h], [i]):
Rule 16, Sec. 5. Effect of dismissal. Subject to the right of appeal, an order granting a motion to dismiss
based on paragraphs (f), (h) and (i) of section 1 hereof shall bar the refiling of the same action or claim.
Rule 16, Section 1. Grounds. Within the time for but before filing the answer to the complaint or pleading
asserting a claim, a motion to dismiss may be made on any of the following grounds:
(f) That the cause of action is barred by a prior judgment or by the statute of limitations;
(h) That the claim or demand set forth in the plaintiff's pleading has been paid, waived,
abandoned, or otherwise extinguished;
(i) That the claim on which the action is founded is unenforceable under the provisions of the
statute of frauds;
Another new provision is Section 2. But, actually, the principles are not new. How do you appeal from
the RTC to the CA? (or to a higher court) Take note that Section 2 tells us that there are 3 possible ways:
1) Ordinary Appeal (in cases decided by the RTC pursuant to its original jurisdiction)
2) Petition For Review (in cases decided by the RTC pursuant to its appellate jurisdiction)
3) Appeal By Certiorari (appeal from RTC direct to the SC on pure questions of law)
Sec. 2. Modes of appeal.
(a) Ordinary appeal.- The appeal to the Court of Appeals in cases decided by the Regional Trial
Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court
which rendered the judgment or final order appealed from and serving a copy thereof upon the
adverse party. No record on appeal shall be required except in special proceedings and other cases of
multiple or separate appeals where the law or these Rules so require. In such cases, the record on
appeal shall be filed and served in like manner.
Ordinary Appeal is the mode of appeal from RTC to CA in cases decided by the RTC pursuant to its
original jurisdiction.
Just like in Rule 40, you file a notice of appeal with the RTC furnishing the adverse/losing party. No
record on appeal shall be required except in special proceedings and other cases of multiple or separate
appeals where the law or these Rules so require.
(b) Petition for review.- The appeal to the Court of Appeals in cases decided by the Regional
Trial Court in the exercise of its appellate jurisdiction shall be by petition for review in accordance with
Rule 42.
Actually, this was already touched in Judiciary Law. How do you appeal to the CA from the RTC in cases
decided by the RTC pursuant to its appellate jurisdiction? not by ordinary appeal but by petition for
review.
ORDINARY APPEAL (par. A) PETITION FOR REVIEW (par. B)
The case was decided by the RTC pursuant to its original jurisdiction. The case was originally filed in the
RTC. The case was decided by the RTC pursuant to its appellate jurisdiction (governed by Rule 42)
EXAMPLE: You filed an action for recovery of money amounting to P1 million. Obviously the jurisdiction
is in the RTC. Now, natalo ka and you want to go to the CA. What is your mode of appeal? Ordinary
Appeal because the case was decided by the RTC pursuant to its original jurisdiction.
EXAMPLE: In paragraph B, the case is recovery of sum of money amounting to P50,000. Saan i-file yan?
MTC man yan ba. Now, you lose, where will you appeal and what is the mode of appeal? RTC by Ordinary
appeal. Suppose, talo ka pa rin sa RTC and you want to go to CA. This time, the mode of appeal is not by
ordinary appeal but by petition for review because the case now being appealed has been decided by the
RTC pursuant to its appellate jurisdiction.
(c) Appeal by certiorari.- In all cases where only questions of law are raised or involved, the
appeal shall be to the Supreme Court by petition for review on certiorari in accordance with Rule 45.
This goes back to the jurisdiction of the SC. The SC has exclusive, appellate jurisdiction in certain cases
constitutionality of a law, treaty is in issue, jurisdiction of the court is in issue, and when only questions
of law are being raised.
So the case is in the RTC and you lost. You would like to appeal on pure question of law. Now, do not go
to the CA for it has no jurisdiction. You by-pass CA and go directly to the SC on appeal by certiorari in
accordance with Rule 45.
What is the period to appeal? Section 3:
Sec. 3. Period of ordinary appeal. The appeal shall be taken within fifteen
(15) days from notice of the judgment or final order appealed from. Where a record on appeal is
required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from
notice of the judgment or final order. However, an appeal in habeas corpus cases shall be taken within
forty- eight (48) hours from notice of the judgment or final order appealed from.
The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No
motion for extension of time to file a motion for new trial or reconsideration shall be allowed.
The period to appeal is 15 days. And when a record on appeal is required, the period to appeal is
doubled 30 days.
Section 3 is already amended. It now specifically provides the period to appeal in cases of habeas corpus,
which is 48 hours. This is because the SC made an error in one of the latest cases involving Rufus
Rodriguez as Immigration Commissioner, where the SC ruled that the period to appeal in habeas corpus
cases is 15 days since the 48-hour period disappeared in the 1997 Rules. So many got confused now.
So when I had a talk with Justice Panganiban last year during the celebration of the 100 years of SC here
in Davao, I opened this issue to him. Sabi ko, Mali man yung ruling nyo ba. Under the judiciary law, it is
48-hours! Two months after the conversation, Section 3 was amended. [ehem!]
Alright, the period to appeal shall be interrupted by timely motion for new trial or motion for new
consideration provided that the motion for new trial is not a pro forma motion (Rule 37, Section 2).
LABITAD vs. COURT OF APPEALS 246 SCRA 434 [1995]
FACTS: You receive a judgment on January 31. You filed a motion for reconsideration on February 10. So,
interrupted and then on February 20, you receive the order denying the motion for reconsideration.
When is the last day to appeal?
HELD: The last day is February 26. The filing of a motion for new trial or reconsideration is not counted in
the 15-day period. Upon the filing in February 10, it is already interrupted. So, you did not consume 10
days. You consumed only 9 days.
The period to appeal is suspended if a motion for reconsideration or one for a new trial is filed, which, if
denied, continues to run upon receipt of the order denying the same as if no interruption has occurred.
The time during which a motion for reconsideration or one for new trial has been pending shall be
counted from the date the motion is duly filed to the date when the movant is duly notified of the denial
thereof.
The period during which the motion is pending with the trial court includes the day the same is filed
because the motion shall have been already placed under the court's consideration during the remaining
hours of the day. The very date the motion for reconsideration has been filed should be excluded from
the appeal period.
So how do you reconcile this pronouncement with the rule that the first day is excluded and the last day
is included? The answer is found in Rule 22, Section 2:
Rule 22, Sec. 2. Effect of interruption.- Should an act be done which effectively interrupts the running of
the period, the allowable period after such interruption shall start to run on the day after notice of the
cessation of the cause thereof.
The day of the act that caused the interruption shall be excluded in the computation of the period. (n)
RUBIO vs. MTCC BRANCH 4 OF CAGAYAN DE ORO CITY 252 SCRA 172
FACTS: The period to file a motion for new trial or reconsideration is within the period to appeal which is
15 days, kaya walang extension. Now this is what happened. The court issued an interlocutory order.
After two months, one of the parties filed a motion for reconsideration and, of course, the other party
said, no more, you should file the motion within 15 days. You cannot file beyond the 15-day period. Is
that correct?
HELD: NO. That is wrong because an interlocutory order cannot be appealed hence, the 15-day period
does not apply. You can file your motion for reconsideration anytime for as long as the court still has
jurisdiction over the case.
The 15-day period only applies when the order is final. But when the order is interlocutory, you can file it
anytime because there is no definite period for the court to change it. For as long as the court has
jurisdiction over the case, it has the power to change that wrong order.
The period subject to interruption by a motion for reconsideration is the period to appeal. An
interlocutory order is not appealable if there is accordingly no period to suspend or interrupt.
Sec. 4. Appellate court docket and other lawful fees. Within the period for taking an appeal, the
appellant shall pay to the clerk of the court which rendered the judgment or final order appealed from,
the full amount of the appellate court docket and other lawful fees. Proof of payment of said fees shall
be transmitted to the appellate court together with the original record or the record on appeal. (n)
Under the law, within the period for taking an appeal, the appellant shall only pay to the clerk of court of
the RTC which rendered the judgment or final order the full amount of the appellate court docket fee
and all other lawful fees and the proof of payment shall be transmitted to the CA together with the
original record on appeal.
Q: How does this amend the Old law ?
A: Under the OLD Law, when you appeal from the RTC to the CA , you just file a notice of appeal. You do
not pay anything, you do not pay the appellate docket fee. So the records will be transmitted upon order
of the clerk of court.
Pagdating sa CA, later on, the clerk of court there will communicate to the appellant na the records are
there already, magbayad ka ng docket fee within so many days. So, mamaya mo na bayaran, hintayin mo
munang mapunta doon at hintayin mo ang notisya.
NOW, you do not wait. Pag - file mo ng notice of appeal, you PAY IMMEDIATELY. When you appeal,
bayaran mo na ang CA docket fee sa RTC clerk and then pag-transmit, sabay na! That is the change.
If we will notice, the counterpart is Section 5 Rule 40 yung appeal from the MTC to the RTC:
RULE 40, Section 5. Appellate court and other lawful fees. - Within the period for taking an appeal, the
appellant shall pay to the clerk of the court which rendered the judgment or final order appealed from
the full amount of the appellate court docket and other lawful fees. Proof of payment thereof shall be
transmitted to the appellate court together with the original record or the record on appeal, as the
case may be. (n)
Q: Suppose the person appealing from the MTC to the RTC failed to pay the appeal fee under Rule 40,
can the appeal be dismissed ?
A: No, because it is not one of the requisites. That was the ruling in SANTOS vs. CA. That can be collected
from you later but that is not a requisite. The appeal cannot be dismissed.
We will ask the same question under Section 4 Rule 41. BUT this time, you are appealing from the RTC to
the CA and this contains an identical provision that when you are appealing from the RTC to the CA, you
already pay there with the clerk of court of the RTC the docket fee. Bayaran mo na, siya na ang bahalang
mag-forward. Heres the problem:
Q: You failed to pay the docket fee within 15 days. So, when the case was transmitted to the CA, hindi
kasali yung fee no. Now, can your appeal be dismissed on the ground of failure to pay the docket fee or
not in accordance with the ruling in SANTOS (by analogy, although in this case, the appeal is from the
MTC to the RTC. Pero the same, hindi ka rin magbayad ng docket fee.) Is the ruling in SANTOS also
applicable to Rule 41 ?
A: NO, the ruling in SANTOS is not applicable. Your appeal will be dismissed.
Q: What provision of the Rules authorizes such dismissal? Is there any direct provision of the Rules of
Court which authorizes the dismissal of the appeal by non-payment of the appeal docket fee?
A: YES. Rule 50 Section 1 [c];
RULE 50, Section 1 An appeal may be dismissed by the Court of Appeals, on its own motion or on that
of the appellee. on the following grounds:
xxxx
(c) Failure of the appellant to pay the docket and other lawful fees as provided in Section 4 of Rule 41 ;
xxxx
I believe that it is dismissible because of that. So, to my mind, the SANTOS vs. CA ruling which governs
Rule 40 and which for me is valid, is NOT APPLICABLE to Rule 41 because there is a direct provision in
Rule 50 that an appeal can be dismissed for non-payment of appeal docket fee. That is the difference
between these two situations.
NOTICE OF APPEAL
Now, let us go back to Section 5 of Rule 41;
Sec. 5. Notice of appeal. The notice of appeal shall indicate the parties to the appeal, specify the
judgment or final order or part thereof appealed from, specify the court to which the appeal is being
taken, and state the material dates showing the timeliness of the appeal. (4a)
Ano ba ang nakalagay sa notice of appeal? Its very clear there that you indicate the parties to the
appeal, specify the judgment and state the material date showing the timeliness of the appeal.
Do you know how to do it? Its very simple. The defendant merely says; Defendant hereby serves notice
that he is appealing to the CA on questions of fact or on questions of fact and law the judgment of the
Honorable Court (RTC) dated December 20, 1997, copy of which was received by me on January 5,
1998. So it is simple that only 15 days is required to file the notice. When the law says the period to file
an appeal is non-extendible, that is fair. I do not need 15 days to prepare the notice of appeal. You can
do it only in two minutes. [sobra pa sa quicky!!]
So you must state the date when you received because the computation of the 15-day period is from the
receipt of the judgment and NOT from the date of the judgment. This is the so-called the MATERAL DATA
RULE material dates showing timeliness of appeal. The date received and the date of decision are not
the same. Both dates must be included in the notice of appeal.
Now, kung sabihin mo na I am appealing from the judgment of the court dated December 20, 1997, and
hindi mo sinabi kung kailan mo natanggap, the presumption is you also received the copy of the
judgment on December 20, 1997. And then you are appealing today, it will be dismissed because you did
not state the material dates.
And of course, there is one SC decision which said that you do not only specify the final judgment or
order, but you also specify as much as possible the interlocutory orders from where you are appealing
because interlocutory orders can only be appealed at this time. So, isabay mo na rin, i-one time ba!
In the case of
HEIRS OF MAXIMO RIGOSO vs. COURT OF APPEALS 211 SCRA 348
FACTS: Plaintiff filed an action against defendant for partition of property. While the action was pending,
defendant died. Partition is an action which survives. Defendants lawyer failed to inform the court about
plaintiffs death (it is the lawyers duty which he did not do). So with that, there was no proper
substitution. Later, judgment was rendered against the deceased defendant. But after the decision came
out, the lawyer of the defendant filed a notice of appeal in accordance with Rule 41.
ISSUE #1: Was the appeal properly made?
HELD: NO. Upon the death of the defendant, the lawyers authority to represent him
already expired. There was an automatic expiration of the lawyer-client relationship. The notice of
appeal which the lawyer filed in behalf of the deceased was an unauthorized pleading, therefore not
valid.
ISSUE #2: Is the judgment binding to the defendants heirs (remember, they were not substituted)?
HELD: YES. The validity of the judgment was not affected by the defendants demise for the action
survived (partition, eh). The decision is binding and enforceable against the successor-in-interest of the
deceased litigant by title subsequent to the commencement of the action pursuant to Section 47 [b] of
Rule 39Rule on Res Judicata.
Now, in our outline in appeal, the general rule is when you appeal, you only file a notice of appeal and
you pay the docket. The important requirement there is notice of appeal but, we said in some cases,
aside from notice of appeal, there is a second requirement which is the RECORD ON APPEAL.
This time, the period to appeal is not only 15 but 30 days and a record on appeal is only required in
special proceedings or in civil cases where multiple appeals are allowed. Never mind special proceedings,
saka na yun. It sounds strange because what weve studied so far, multiple appeals are not allowed in
civil cases, there should only be one appeal. Kaya nga interlocutory orders are not appealable, precisely
to avoid order on appeal in a civil case. We will explain this later.
RECORD ON APPEAL
Sec. 6. Record on appeal; form and contents thereof. The full names of all the parties to the
proceedings shall be stated in the caption of the record on appeal and it shall include the judgment or
final order from which the appeal is taken and, in chronological order, copies of only such pleadings,
petitions, motions and all interlocutory orders as are related to the appealed judgment or final order
for the proper understanding of the issue involved, together with such data as will show that the
appeal was perfected on time. If an issue of fact is to be raised on appeal, the record on appeal shall
include by reference all the evidence, testimonial and documentary, taken upon the issue involved.
The reference shall specify the documentary evidence by the exhibit numbers or letters by which it
was identified when admitted or offered at the hearing, and the testimonial evidence by the names of
the corresponding witnesses. If the whole testimonial and documentary evidence in the case is to be
included, a statement to that effect will be sufficient without mentioning the names of the witnesses
or the numbers or letters of exhibits. Every record on appeal exceeding twenty (20) pages must
contain a subject index. (6a)
A record on appeal is simply a reproduction of all the pleadings filed by the parties, all the motions filed
by the parties, all the orders issued by the court and the final judgment rendered by the court arranged
in chronological order.
For EXAMPLE: Juan de la Cruz versus Pedro Santos. Record on appeal. Normally, it starts with this
phrase
Be it remembered the following proceedings took place in the court below:
Par. 1. On January 5, 1998, plaintiff filed a complaint against defendant as follows: -- (so
kopyahin mo yung complaint. Practically it is mechanical work, eh.)
Par. 2. On January 25, 1998, defendant filed an answer (kopyahin mo ang answer)
Par. 3. On March 5, 1998, the court rendered judgment (kopyahin mo na naman.)
How long? Gaano kakapal yan? Depende. For example, the case lasted for more than two years. So
practically, the record on appeal may amount to hundreds of pages. That is why the period to appeal is
increased from 15 to 30 if the law requires a record on appeal because of the possibility that you may
not be able to complete everything within 15 days. Sometimes the 30-day period can be extended.
Q: Do you have to include there every motion, every order of the case?
A: No, the law says you reproduce in chronological order copies of only such pleadings, motions,
petitions, and all interlocutory orders as are related to the appealed judgment or final order for the
proper understanding of the issues involved. This is to allow the appellate court to review the order
appealed from.
But there are some motions na hindi na kailangan. For example, the case will be set for trial next week.
Sabi ng defendant, Motion to postpone, I am not ready because I am suffering from diarrhea. So the
trial was postponed. Kailangan pa bang ilagay ang motion na yan? That is not necessary to understand
the issue. Piliin mo lang ang importante.
Now, bakit kailangan yang record on appeal? Bakit sa ordinary appeal, hindi man kailangan? Because in
Ordinary Civil Actions, when the appeal is perfected, the clerk of court of the RTC transmits the entire
record to the CA. So andoon na lahat yan. But in special proceedings or in civil cases where multiple
appeals are allowed, when an order or judgment is rendered, the case continues pa. So, the records are
not yet elevated. So, how can the CA understand what happened without the records? That is called the
record on appeal.
Q: Give an example of a civil action where multiple appeals are allowed.
A: Section 4 of Rule 36, where several judgments will be rendered in one case:
RULE 36, Sec. 4. Several judgments. - In an action against several defendants, the court may, when
several judgment is proper, render judgment against one or more of them, leaving the action to
proceed against the others. (4)
And to be more specific, that rule was applied by the SC in the case of
MUNICIPALITY OF BIAN vs. GARCIA 180 SCRA 576
FACTS: Municipality of Binan filed expropriation cases against several landowners because it would like
to expropriate their land for public use. All of them were named as co- defendants in one complaint.
Landowner A filed a motion for separate trial (Rule 31). The court granted it. The court rendered a
decision expropriating the land of A. Nauna siya. As for the other landowners, the case continued.
ISSUE #1: Can A appeal already from the decision rendered against him or must he wait for the decision
to be rendered against the other landowners?
HELD: YES, A can now appeal because the order was already final against A. There is
something more for the court to do but only with respect to the other defendants. But as far as A is
concerned, there is nothing more for the court to do.
So when the judgment is already rendered against the other landowners, they can now also appeal. So
there could be two or more final judgments and two or more appeals.
ISSUE #2: Suppose the case was tried against all of them (sabay ba) and there was one decision against
themso sabay-sabay sila mag-appeal. Is record on appeal required?
HELD: NO, only notice of appeal because there is only one decision.
Q: Why is it that in ordinary civil cases, normally a record on appeal is not required?
A: Ordinarily, when the case is over and you say that you are appealing, the entire record of the case will
be elevated to the CA. But in the case of BIAN, there is judgment against landowner A and he wants to
appeal, the record cannot be brought to the CA because the case will still be tried with respect to
landowners B, C and D. So for the CA to know what happened, a record on appeal is needed.
 ROMAN CATHOLIC ARCHBISHOP OF MANILA vs. COURT OF APPEALS 258 SCRA 186 [1996]
HELD: Multiple appeals are allowed in: 1.) Special proceedings;
2.) Actions for recovery of property with accounting; 3.) Actions for partition of property with
accounting;
4.) Special civil actions of eminent domain (expropriation); 5.) Special civil actions for foreclosure of
mortgage.
The rationale behind allowing more than one appeal in the same case is to enable the rest of the case to
proceed in the event that a separate and distinct case is resolved by the court and held to be final.
The enumeration cited in ROMAN CATHOLIC CASE is taken from the ruling of the SC in the cases of
MIRANDA vs. CA (71 SCRA 295) and DE GUZMAN vs. CA (74 SCRA 222). In these cases, when you file only
a notice of appeal without the record on appeal, it will not suffice. So it will be dismissed.
Q: What if the party filed a record on appeal without a notice of appeal? Should the appeal be
dismissed?
A: NO, the appeal will not be dismissed because the filing of the record on appeal is harder to comply
with than the filing of a notice of appeal. The filing of the record on appeal is more expressive of the
desire of the party to appeal. (Peralta vs. Solon, 77 Phil. 610)
(The following discussions under Section 6 was taken from the 4th year review transcription) Now, let us
try to tie this up with what may be appealed and what may not be appealed, lets go back to section 1 [g]
of Rule 41:
Section 1. Subject of appeal. - An appeal may be taken from a judgment or final order that completely
disposes of the case, or of a particular matter therein when declared by these Rules to be appealable.
No appeal may be taken from:
xxxxx
(g) A judgment or final order for or against one or more of several parties or in separate claims,
counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court
allows an appeal therefrom.
xxxxx
Take note that as a GENERAL RULE: a judgment for or against one or more of several parties or in
separate claims, counterclaims, cross-claims, etc., while the main case is pending, cannot be appealed
because that will result to multiple appeals, unless the court allows an appeal therefrom, in which case,
multiple appeals would now be possible.
Q: Cite examples of civil actions where, by direct provision of the Rules, the law mentions that the
judgment is already final and appealable despite the fact that the case still goes on with respect to the
other issues.
A: The case of MUNICIPALITY OF BIAN vs. GARCIA which is now expressly provided for in Rule 67,
Section 4, (on Expropriation):
Sec. 2. Entry of plaintiff upon depositing value with authorized government depositary Upon the filing
of the complaint or at any time thereafter and after due notice to the defendant, the plaintiff shall have
the right to take or enter upon the possession of the real property involved if he deposits with the
authorized government depositary an amount equivalent to the assessed value of the property for
purposes of taxation to be held by such bank subject to the orders of the court. Such deposit shall be in
money, unless in lieu thereof the court authorizes the deposit of a certificate of deposit of a government
bank of the Republic of the Philippines payable on demand to the authorized government depositary. x x
xxxx
Did you notice that an Order of Expropriation MAY BE APPEALED? When there is an order of
expropriation - the court says, Alright, the property is declared expropriated. Tapos na ba ang case?
NOT YET because there is still a Part 2 which the determination of just compensation. So, technically, it
does not yet really dispose of the case BUT by express provision of the law, the order is already
appealable. That is an instance where multiple appeals may arise in one civil case.
Another example is Rule 69 on Partition:
RULE 69, Sec. 2. Order for partition, and partition by agreement thereunder.
- If after the trial the court finds that the plaintiff has the right thereto, it shall order the partition of the
real estate among all parties in interest. Thereupon the parties may, if they are able to agree, make the
partition among themselves by proper instruments of conveyance, and the court shall confirm the
partition so agreed upon by all the parties, and such partition, together with the order of the court
confirming the same, shall be recorded in the registry of deeds of the place in which the property is
situated. (2a)
A final order decreeing partition and accounting may be appealed by any party aggrieved thereby. (n)
A final order decreeing partition is appealable. But the case will go on because if the first order is that
there is a co-ownership, then there should be a partition. Ang sunod is how to partition. As a matter of
fact, the court may even hire commissioners as to how to partition but in the meantime, the order to
partition is already appealable although it did not completely disposed of the civil action.
Sec. 7. Approval of record on appeal. Upon the filing of the record on appeal for approval and if no
objection is filed by the appellee within five (5) days from receipt of a copy thereof, the trial court may
approve it as presented or upon its own motion or at the instance of the appellee, may direct its
amendment by the inclusion of any omitted matters which are deemed essential to the determination
of the issue of law or fact involved in the appeal. If the trial court orders the amendment of the record,
the appellant, within the time limited in the order, or such extension thereof as may be granted, or if
no time is fixed by the order within ten (10) days from receipt thereof, shall redraft the record by
including therein, in their proper chronological sequence, such additional matters as the court may
have directed him to incorporate, and shall thereupon submit the redrafted record for approval, upon
notice to the appellee, in like manner as the original draft. (7a)
What you have to remember here is that in appeals, where a record on appeal is required, the law
requires an approval. The record on appeal has to be approved by the court. In ordinary cases where you
only file a notice of appeal, approval is not required. A record on appeal has to be approved because the
other party is given the right to object your record on appeal.
The possible grounds for objections are necessary pleadings were not produced like kulang- kulang ang
record on appeal [kulang-kulang din siguro yung nag-file]; or, you did not reproduce the pleading
properly; to pester the other party and just to block the approval, like i-reklamo kahit wrong spelling
lang. [peste talaga!]
Sec. 8. Joint record on appeal. Where both parties are appellants, they may file a joint record on
appeal within the time fixed by section 3 of this Rule, or that fixed by the court. (8a)
Q: Is it possible that both sides will appeal? A: Yes, when both are not satisfied.
Suppose both plaintiff and defendant will want to appeal and a record on appeal is required, it would be
tedious. Para walang gulo at para makatipid, the plaintiff and the defendant will file a joint record on
appeal, tapos hati tayo sa gastos.
WHEN APPEAL IS DEEMED PERFECTED
Let us now go to Section 9 of Rule 41 which is one of the most important provisions when is appeal
deemed perfected. Now, if you are asked this question: HOW DO YOU PERFECT AN APPEAL? This
question is not the same as WHEN IS THE APPEAL DEEMED PERFECTED?
Q: How do you perfect an appeal? A: By:
1.) Filing a NOTICE OF APPEAL, generally within 15 days; or by
2.) Filing A NOTICE OF APPEAL and RECORD ON APPEAL WITHIN 30 DAYS.
Those are the steps taken to perfect the BUT the appeal is NOT YET PERFECTED. It is perfected according
to Section 9, and it is important to determine the exact date when the appeal is considered as perfected
because of the doctrine that from the moment the appeal is perfected, the RTC automatically loses
jurisdiction of the case. And by fiction of law, the jurisdiction is automatically transferred to the CA,
although the records as still with the RTC. Therefore it is important to determine the exact date.
For example, in notice of appeal, is it perfected on the very day that the appellant will file a notice of
appeal that if he files it, after two days perfected na?
All of these are answered by Section 9 and I noticed that Section 9 has improved on the language of the
Interim Rules. Under the Interim Rules, they are actually the same, the question when is the appeal
deemed perfected is also answered by the Interim Rules but the language of the law there is more
convoluted. Now, it is more clearer:
Sec. 9. Perfection of appeal; effect thereof. A partys appeal by notice of appeal is deemed perfected as
to him upon the filing of the notice of appeal in due time.
A partys appeal by record on appeal is deemed perfected as to him with respect to the subject matter
thereof upon the approval of the record on appeal filed in due time.
In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the
appeals filed in due time and the expiration of the time to appeal of the other parties.
In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof upon
the approval of the records on appeal filed in due time and the expiration of the time to appeal of the
other parties.
In either case, prior to the transmittal of the original record or the record on appeal, the court may
issue orders for the protection and preservation of the rights of the parties which do not involve any
matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with section 2 of Rule 39, and allow withdrawal of the appeal.
(9a)
WHEN ONLY NOTICE OF APPEAL IS REQUIRED
Q: When only a notice of appeal is required, when is an appeal deemed perfected?
A: First and third paragraph: A partys appeal by record on appeal is deemed perfected as to him with
respect to the subject matter thereof upon the approval of the record on appeal filed in due time. x x x In
appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals
filed in due time and the expiration of the time to appeal of the other parties.
This was taken in the case of DELGADO vs IAC (147 SCRA 258). Lets compose a problem based on that
case:
PROBLEM: I received a copy of the decision on March 31 so I have 15 days to appeal i.e. up to April
15. My opponent received the decision on April 10. So ang opponent ko naman ang bilang niya is from
April 10 to April 25. Iba ang 15 days niya, iba din sa akin.
Q: Since I received the decision on March 31, I filed my notice of appeal on April 5, is the appeal
perfected?
A: Yes, as far as I am concerned.
Q: How about the other side?
A: Not yet, because as of April 5, he has not yet received a copy of the decision. He will start computing
from April 10. So as of now, it is already perfected only by 50%.
Q: Suppose by April 25 which is the last day of 15-day period of my opponent, he did not file anything.
Nag-expire na. What will happen now?
A: Then as of April 25, the appeal is now fully perfected (100%) because as far as I am concerned, I have
already filed a notice of appeal. As far as he is concerned, his 15-day period to appeal has lapsed.
Therefore, the case is now ripe for elevation. This is what the third paragraph means, In appeals by
notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due
time and the expiration of the time to appeal of the other parties. You have to look at it from the
viewpoint of both parties.
That is the time for the clerk of court to elevate the records. It is from that moment that the court has
lost 100% jurisdiction over the case from the viewpoint of both parties.
Up to now, despite this provision, Im still receiving these kind of orders from the courts. Nakalagay
doon: A notice of appeal having been filed by the defendant on this date, the appeal is now deemed
perfected and let the record now be elevated to the CA. My Golly! This is WROOOONG! The appeal is
perfected only as far as the defendant is concerned why decree it as perfected? Tiningnan mo lang yung
isang side eh. Paano kung yung plaintiff mag-file pa ng motion for execution pending appeal?
So, do not elevate the record until the 15-day period has expired on BOTH SIDES. This is the correct
interpretation of the Rules. We will now go to some interesting cases:
UNIVERSAL FAR EAST CORP. vs. COURT OF APPEALS 131 SCRA 642
FACTS: On March 31, both Epi and Hilde received a copy of the decision. Epi won, Hilde lost. From the
viewpoint of both, April 15 is the last day to appeal. On April 5, Hilde filed a notice of appeal. So the
appeal is perfected from the viewpoint of Hilde. On April 13, Epi file a motion to execute pending appeal.
Was the motion filed on time? Yes, because Epi can file the motion between March 31 and April 15. On
April 25, the court granted Epis motion.
This is now the argument of Hilde: [My Golly!] The order of execution by Epi is void because the court
has already lost jurisdiction over the case as of April 25 because From the viewpoint of both parties, the
last day is April 15, after April 15 the period within which Epi can file a motion to execute has expired.
From the viewpoint of Hilde, he already filed a notice of appeal on April 5. So, from the viewpoint of
both, the court already lost jurisdiction.
According to Epi: But I filed my motion on April 13, the court has not yet lost jurisdiction. Ah Yes, sabi
naman ni Hilde, but the court acted on your motion on April 25, which is after April 15.
HELD: Epi is correct. The important point is the date of filing. Thus, even if the court acts beyond the 15-
day period, the order is still valid. The important thing is the motion to execute pending appeal was filed
within the 15-day period.
It may be argued that the trial court should dispose of the motion for execution within the reglementary
fifteen-day period. Such a rule would be difficult, if not impossible, to follow. It would not be pragmatic
and expedient and could cause injustice.
The motion for execution has to be set for hearing. The judgment debtor has to be heard. The good
reasons for execution pending appeal have to be scrutinized. These things cannot be done within the
short period of fifteen days, or in this case, two days. The trial court may be confronted with other
matters more pressing that would demand its immediate attention.
So in this case, the court has not yet lost jurisdiction the act on the motion for execution pending appeal
even if it is beyond 15 days, provided the motion was filed within 15 days.
WHEN RECORD OF APPEAL IS REQUIRED
Q: How about an appeal where a record of appeal is required? When is the appeal deemed perfected?
A: Second paragraph of Section 9: A partys appeal by record on appeal is deemed perfected as to him
with respect to the subject matter thereof upon the approval of the record on appeal filed in due time.
So it is not upon the filing of the record of appeal, but upon the APPROVAL. Because as we said, under
Section 7, a record on appeal has to be approved while a notice of appeal need not be approved.
As to the fourth paragraph: In appeals by record on appeal, the court loses jurisdiction only over the
subject matter thereof upon the approval of the records on appeal filed in due time and the expiration of
the time to appeal of the other parties. The principle is the same. But definitely an appeal is not
perfected upon the filing of the record on appeal but upon the approval.
The last point to remember in Section 9. GENERAL RULE: once an appeal is deemed perfected from the
viewpoint of both sides, the trial court loses jurisdiction over the case. The jurisdiction is automatically
transferred to the Court of Appeals.
Q: Are there EXCEPTIONS to the rule? Are there things that the trial court can do even if it has no more
jurisdiction? What things or actions can the trial court do?
A: Last paragraph of Section 9: In either case, prior to the transmittal of the original record or the record
on appeal, the court may issue orders for the protection and preservation of the rights of the parties
which do not involve any matter litigated by the appeal, approve compromises, permit appeals of
indigent litigants, order execution pending appeal in accordance with section 2 of Rule 39, and allow
withdrawal of the appeal.
Lets us outline the last paragraph: Once an appeal is deemed perfected under Section 9, the RTC loses
jurisdiction over the case and can no longer act in that case.
Q: What things or what actions can the RTC do even if it has technically lost jurisdiction over the case?
Sometimes they call this as the residual jurisdiction, a.k.a. dukot jurisdiction.
A: For as long as the original record or the record on appeal is not yet transmitted (because it takes some
time for the records to be transmitted) the trial court, despite the fact that it has already lost jurisdiction,
can do the following acts:
1.) to issue orders for the protection and preservation of the rights of the parties which do not involve in
any matter litigated in the appeal;
2.) to approve compromises between the parties; 3.) to permit appeals to indigent litigants;
4.) to order executions pending appeal in accordance with Section 2 of Rule 39; and
5.) to allow the withdrawal of the appeal.
6.) The court can order the dismissal of an appeal under Section 13, Rule 41.
Q: Can the parties settle the case amicably despite the fact that there is already an appeal?
A: Yes, compromise is welcome anytime.
Q: Now who will approve the compromise?
A: Technically, the court has no jurisdiction. But for as long as the records are still there, the trial court
can approve the compromise. Now, suppose the records are already transmitted to the CA? Then you
better submit your compromise agreement before the CA.
Sections 10, 11, and 12 are purely administrative provisions.
Sec. 10. Duty of clerk of court of the lower court upon perfection of appeal. Within thirty (30) days
after perfection of all the appeals in accordance with the preceding section, it shall be the duty of the
clerk of court of the lower court:
(a) To verify the correctness of the original record or the record on appeal, as the case may be,
and to make a certification of its correctness;
(b) To verify the completeness of the records that will be transmitted to the appellate court;
(c) If found to be incomplete, to take such measures as may be required to complete the
records, availing of the authority that he or the court may exercise for this purpose; and
(d) To transmit the records to the appellate court.
If the efforts to complete the records fail, he shall indicate in his letter of transmittal the
exhibits or transcripts not included in the records being transmitted to the appellate court,
the reasons for their non-transmittal, and the steps taken or that could be taken to have
them available.
The clerk of court shall furnish the parties with copies of his letter of transmittal of the records to the
appellate court. (10a)
Sec. 11. Transcript. Upon the perfection of the appeal, the clerk shall immediately direct the
stenographers concerned to attach to the record of the case five (5) copies of the transcripts of the
testimonial evidence referred to in the record on appeal. The stenographers concerned shall transcribe
such testimonial evidence and shall prepare and affix to their transcripts an index containing the
names of the witnesses and the pages wherein their testimonies are found, and a list of the exhibits
and the pages wherein each of them appears to have been offered and admitted or rejected by the
trial court. The transcripts shall be transmitted to the clerk of the trial court who shall thereupon
arrange the same in the order in which the witnesses testified at the trial, and shall cause the pages to
be numbered consecutively. (12a)
Sec. 12. Transmittal. The clerk of the trial court shall transmit to the appellate court the original record
or the approved record on appeal within thirty (30) days from the perfection of the appeal, together
with the proof of payment of the appellate court docket and other lawful fees, a certified true copy of
the minutes of the proceedings, the order of approval, the certificate of correctness, the original
documentary evidence referred to therein, and the original and three (3) copies of the transcripts.
Copies of the transcripts and certified true copies of the documentary evidence shall remain in the
lower court for the examination of the parties. (11a)
Sec. 13. Dismissal of appeal. Prior to the transmittal of the original record or the record on appeal to
the appellate court, the trial court may motu proprio or on motion dismiss the appeal for having been
taken out of time. (14a)
Q: May the RTC dismiss the appeal?
A: Yes, for as long as the record of the case or the record of appeal has not yet been transmitted to the
appellate court, the court may motu propio, even without any motion, or on motion of the appellee, the
trial court is empowered to dismiss the appeal on the ground of having been taken out of time.
Q: Can the trial court dismiss the appeal on the ground that the appeal is dilatory?
A: NO. The trial court has no power to say that the appeal is dilatory. Such question can only be
passed upon by the appellate court. Otherwise, trial courts can easily forestall review or reversal of their
decisions no matter how erroneous such decisions may be. (Dasalla vs. Caluag, L-18765. July 31, 1963;
GSIS vs. Cloribel, L-22236, June 22, 1965; Republic vs. Rodriguez, L-26056, May 29, 1969) The only ground
for the trial court to dismiss appeal is for having been taken out of time. Thats all.
Dont confuse that with Rule 39.
Q: Can the prevailing party file a motion for execution pending appeal, on the ground that the appeal is
dilatory? Any appeal which is frivolous is intended as dilatory.
A: Well, its not the appeal that is being questioned but whether there is a ground for execution pending
appeal. Ang jurisprudence niyan magulo eh: NO, the trial court cannot do that. Only the CA can
determine whether the appeal is dilatory. But there are cases where the SC said YES because that can be
a good reason.
Pero dito (Rule 41), iba ang tanong. The court is not being asked to grant an execution pending appeal
but being asked to dismiss an appeal. Ah, ito talaga hindi pwede. NEVER, because of Section 13, Rule 41
there is only one ground, filed out of time. Yaaan!
-oOo-
Rule 42
PETITION FOR REVIEW
FROM THE REGIONAL TRIAL COURTS TO THE COURT OF APPEALS
Q: What are the modes of appeal from RTC to the CA?
A: Its either ORDINARY APPEAL (Rule 41) or PETITION FOR REVIEW (Rule 42).
Rule 41 refers to an ordinary appeal from the RTC to the CA yung notice of appeal. Here, the RTC
rendered a decision pursuant to its ORIGINAL JURISDICTION.
Eto namang Rule 42 (Petition for review) is the mode of appeal from the RTC to the CA in cases decided
by the RTC pursuant to its APPELLATE JURISDICTION. So, the case here actually originated in the MTC,
then it was appealed to the RTC under Rule 40. And now, from the RTC, you want to go to the CA. Hence,
the mode of appeal is not (Rule 41) Notice of Appeal but RULE 42 Petition for Review.
For the first time, there is now a rule governing petitions for review from the RTC to the CA. Prior to July
1, 1997, there was none. Although there were guidelines then in jurisprudence, decided cases and SC
circulars.
Section 1. How appeal taken; time for filing. A party desiring to appeal from a decision of the Regional
Trial Court rendered in the exercise of its appellate jurisdiction may file a verified petition for review
with the Court of Appeals, paying at the same time to the clerk of said court the corresponding docket
and other lawful fees, depositing the amount of P500.00 for costs, and furnishing the Regional Trial
Court and the adverse party with a copy of the petition. The petition shall be filed and served within
fifteen
(15) days from notice of the decision sought to be reviewed or of the denial of petitioners motion for
new trial or reconsideration filed in due time after judgment. Upon proper motion and the payment of
the full amount of the docket and other lawful fees and the deposit for costs before the expiration of
the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only
within which to file the petition for review. No further extension shall be granted except for the most
compelling reason and in no case to exceed fifteen (15) days. (n)
Under Section 1, a petition for review under Rule 42 must be VERIFIED.
Q: Where will you file your petition for review?
A: You file it directly with the CA. Do not file it with the trial court.
In Rule 41, where the appeal is deemed perfected by simply filing a notice of appeal, you file your notice
of appeal with the RTC. Do not file it with the CA. But in Rule 42, where the appeal is by petition for
review, you file your petition directly with the CA. Do not file it with the RTC.
Not only that. Of course, you have to pay the docket and lawful fees plus P500 for costs. And you must
furnish the RTC and the adverse party with a copy of the petition. That is a new requirement.
Q: What is the period to file a petition for review ?
A: The period to file a petition for review is 15 days from receipt of the RTC judgment or from the order
denying the motion for reconsideration.
Q: What is the difference in period to file between Rule 41 and Rule 42 ?
A: In Rule 41, if your motion for reconsideration is denied, you can still appeal within the remaining
balance of the 15-day period. In Rule 42, the 15-day period starts all over again because the law says or
of the denial. So, another fresh 15 days. This because it is more difficult to prepare a petition for review.
This is more time-consuming than a simple notice of appeal. Well go to examples:
PROBLEM: Lets go back to RULE 41: You receive a copy of the RTC decision on March 31. You file your
motion for reconsideration on April 10 the 10th day. After two weeks, you received order of the court
denying the MFR.
Q: How many more days are left for you to file a notice of appeal?
A: Six (6) days. Ang binilang mo, 1-9 days lang. The 10th day is interrupted na. Thats true.
PROBLEM: We will go to the same problem (applying Rule 42): The case was decided by the MTC,
appealed to the RTC. And then in the RTC, you lost again. You receive a copy of the decision on March
31. On April 10, you file a motion for reconsideration. And then on April 20, you receive the order
denying the MFR.
Q: How many days more are left for you to file your petition for review?
A: Kung sabihin mo 6 days from April 20 or April 26, thats FALSE! The answer is 15 days all over
again. Look at the law: The petition shall be filed and served within fifteen (15) days from notice of the
decision sought to be reviewed or of the denial of petitioners motion for new trial or reconsideration.
Meaning, you count another 15 days from the denial. Umpisa na naman!
So the filing a motion for new trial or reconsideration in Rule 42 does not only interrupt the running of
the period but it commences to run all over again. Unlike in Rule 41, in ordinary appeal, where the filing
of the motion for reconsideration or new trial merely interrupts the running of the period to appeal. And
it commences to run again from the time you are notified that your motion is denied. See the difference?
Actually, if you are not serious in your study of appeal, you will not see these distinctions. You will just
assume that the principles under Rule 41 and Rule 42 are the same.
Q: Under Section 1, is the 15-day period to file petition for review extendible?
A: Under Rule 41, the 15-day period to file notice of appeal is not extendible no exceptions. But in Rule
42, the 15-day period to file petition for review is EXTENDIBLE according to the last sentence of Section
1, provided you pay your docket and other lawful fees, the CA will grant additional 15 days within which
to file a petition for review.
Q: Where will you file your motion for extension of time to file petition for review?
A: You file your motion for extension to the CA. The CA itself will grant the extension.
Q: How many more days can the CA grant?
A: The CA may grant another 15 days and no further extension can be granted except for the most
compelling reasons. So, original extension is 15 days, and a possible extension of 15 days = total 30 days.
These are technical points. And how many appealed cases have been dismissed simply because these
finer provisions were not been observed by lawyers? I would say 60% of all appeals are dismissed. Even
in Davao, majority of petitions are dismissed because nakulangan ng piso sa docket fee, karami. I
presume throughout the country, the pattern is the same because the rules on appeal are very technical
and very strict. Thats why there are lawyers in Manila, even in Davao, who do not want to handle
appealed cases. They only handle cases in the trial court. Pag-akyat na, nasa CA na, petition for certiorari,
pasa na sa iba.
But there are also who have mastered the rules on appeal. For the purpose of specialization, trial phase
and appeal phase. For purposes of the bar, you have to know all the fields in laws. Once you pass the bar,
diyan na kayo mag-isip kung ano ang pipiliin ninyocivil, criminal, labor, etc. But for purposes of the bar,
you cannot say dito lang ako mag-aral sa Labor, wag na sa Civil Law. Pwede ba yan? You cannot do that.
Kaya nga sabi nila, the people who know more about the law are those who have just taken the bar.
Sec. 2. Form and contents. The petition shall be filed in seven (7) legible copies, with the original copy
intended for the court being indicated as such by the petitioner, and shall (a) state the full names of
the parties to the case, without impleading the lower courts or judges thereof either as petitioners or
respondents; (b) indicate the specific material dates showing that it was filed on time; (c) set forth
concisely a statement of the matters involved, the issues raised, the specification of errors of fact or
law, or both, allegedly committed by the Regional Trial Court, and the reasons or arguments relied
upon for the allowance of the appeal; (d) be accompanied by clearly legible duplicate originals or true
copies of the judgments or final orders of both lower courts, certified correct by the clerk of court of
the Regional Trial Court, the requisite number of plain copies thereof and of the pleadings and other
material portions of the record as would support the allegations of the petition.
The petitioner shall also submit together with the petition a certification under oath that he has not
theretofore commenced any other action involving the same issues in the Supreme Court, the Court of
Appeals or different divisions thereof, or any other tribunal or agency; if there is such other action or
proceeding, he must state the status of the same; and if he should thereafter learn that a similar action
or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different
divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid
courts and other tribunal or agency thereof within five (5) days therefrom. (n)
Take note of Section 2. Do not implead the lower court or the judge because nasanay na tayo na pati
yung judge naging defendant or respondent na. We only do that in Certiorari under Rule 65 in Special
Civil Actions, but not on appeal. This is the influence of Justice Feria because he has penned many cases
which has included the judge as defendant or respondent. So, he said that in the case of MWSS vs. CA
[Aug. 25, 1986], hence we can see his influence, siningit talaga niya iyan sa kaso na yon.
Now, as to the form [last paragraph], there has to be a Certification of Non-Forum Shopping, failure to
comply with such would mean the dismissal of the case.
ORTIZ vs. COURT OF APPEALS 299 SCRA 708 [1998]
FACTS: The certification was not signed by the Ortizes but by their lawyer who has personal knowledge
of the fact and contended that it should be accepted as substantial compliance with the rules.
HELD: The certification was not proper. Strict observance of the rule is required. In this case, no
explanation was given.
Regrettably, We find that substantial compliance will not suffice in a matter involving strict compliance.
The attestation contained in the certification on non-forum shopping requires personal knowledge by
the party who executed the same. To merit the Courts consideration, Ortizes here must show
reasonable cause for failure to personally sign the certification. The Ortizes must convince the court that
the outright dismissal of the petition would defeat the administration of justice. However, the Ortizes did
not give any explanation to warrant their exemption from the strict application of the rule. Utter
disregard of the rules cannot justly be rationalized by harking on the policy of liberal construction.
Q: Under paragraph [c], what issues can you raise in the petition for review? A: Errors of fact, errors of
law, or both mixed errors of fact or law.
Somebody asked this QUESTION: hindi ba kapag error of law dapat sa SC yan? Hindi na dadaan sa CA?
How do you reconcile this with the Constitution? Actually, when the law says decisions of the RTC
appealable directly to the SC, it was decided pursuant to its original jurisdiction. But if it is decided
pursuant to its appellate jurisdiction, the appeal should be to the CA even on pure questions of law
without prejudice of going to the SC later on.
Sec. 3. Effect of failure to comply with requirements. The failure of the petitioner to comply with any
of the foregoing requirements regarding the payment of the docket and other lawful fees, the deposit
for costs, proof of service of the petition, and the contents of and the documents which should
accompany the petition shall be sufficient ground for the dismissal thereof.
Section 3. If you fail to comply with the requirements, tapos ang petition mo, dismiss!
Sec. 4. Action on the petition. The Court of Appeals may require the respondent to file a comment on
the petition, not a motion to dismiss, within ten (10) days from notice, or dismiss the petition if it finds
the same to be patently without merit, prosecuted manifestly for delay, or that the questions raised
therein are too unsubstantial to require consideration. (n)
Sec. 5. Contents of comment. The comment of the respondent shall be filed in seven (7) legible copies,
accompanied by certified true copies of such material portions of the record referred to therein
together with other supporting papers and shall (a) state whether or not he accepts the statement of
matters involved in the petition; (b) point out such insufficiencies or inaccuracies as he believes exist in
petitioners statement of matters involved but without repetition; and (c) state the reasons why the
petition should not be given due course. A copy thereof shall be served on the petitioner. (n)
Sec. 6. Due course. If upon the filing of the comment or such other pleadings as the court may allow or
require, or after the expiration of the period for the filing thereof without such comment or pleading
having been submitted, the Court of Appeals finds prima facie that the lower court has committed an
error of fact or law that will warrant a reversal or modification of the appealed decision, it may
accordingly give due course to the petition. (n)
Q: When you file a petition for review from the RTC to the CA, is the CA obliged to entertain the petition?
A: No, this is discretionary under Section 6. The CA may or may not give due course to the petition unlike
in ordinary appeal. Yan ang kaibahan ng ordinary appeal and petition for review.
In ordinary appeal under Rule 41, when you file notice of appeal and you pay your docket fee, your
appeal is automatically entertained. At least it will be heard by the CA. But in Rule 42, it is not the same.
When you go there, whether your petition for review will be given due course or not even if you have
paid the docket fee. Normally, the CA will required you to comment and then chances are after another
month and after reading your petition and your comment, the CA will refuse to give due course to your
petition, Your petition is hereby dismissed! So, you must convince the CA na may merit baah!
Q: What happens when the petition for review is given due course? A: The parties will be required to
submit their respective memoranda.
Take note that the RTC is also given the power to issue orders for the protection of the parties the
same as in Section 8, paragraph [b].
Sec. 7. Elevation of record. Whenever the Court of Appeals deems it necessary, it may order the clerk
of court of the Regional Trial Court to elevate the original record of the case including the oral and
documentary evidence within fifteen (15) days from notice. (n)
Q: Now, when is an appeal by petition for review deemed perfected? A: Section 8 [a]. Similar to Rule 41.
The same principle:
Sec. 8. Perfection of appeal; effect thereof. (a) Upon the timely filing of a petition for review and the
payment of the corresponding docket and other lawful fees, the appeal is deemed perfected as to the
petitioner.
The Regional Trial Court loses jurisdiction over the case upon the perfection of the appeals filed in due
time and the expiration of the time to appeal of the other parties.
However, before the Court of Appeals gives due course to the petition, the Regional Trial Court may
issue orders for the protection and preservation of the rights of the parties which do not involve any
matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with section 2 of Rule 39, and allow withdrawal of the appeal.
(9a, R41)
(b) Except in civil cases decided under the Rule on Summary Procedure, the appeal shall stay
the judgment or final order unless the Court of Appeals, the law, or these Rules shall provide
otherwise. (n)
Q: Does the RTC have the power to act despite the fact that the petition for review is already before the
CA? Suppose I lost in the MTC, and I also lost on appeal in the RTC. I file a petition for review. What
happens to the decision? Can the decision be enforced?
A: NO, it cannot be enforced yet because it is not yet final. We still have to wait for the appeal to be
dismissed or to be entertained and denied later. Under paragraph [b], the appeal shall stay the judgment
or final order UNLESS the CA, the law or these rules should provide otherwise.
Also, based on the opening clause of paragraph [b], except in civil cases provided in the Rules on
Summary Procedure, any part thereafter appealed to the CA will not stop the implementation of the RTC
decision.
Under Section 21 of the Summary Rules, when a case is started in the MTC under the Summary
Procedure, and appealed to the RTC and decided by the RTC, the decision becomes immediately
executory. Even if we file a petition for review, it is executory. The only way to stop the RTC from
enforcing that judgment is to get a TRO or a writ of preliminary injunction from the CA. That is the rule.
I have a similar case now on that issue. The case originated from the MTC for ejectment. The defendant
lost, akyat ngayon sa RTC, affirmed. And then akyat na naman ang defendant sa CA on petition for review
(although right now, it has not yet been given due course) with a prayer for TRO. But the CA said that
there is no compelling reason to issue one. In the meantime, I filed a motion for execution. The
defendant opposed on the ground that a judgment cannot be executed daw because of a pending
petition for review. But this is under the Summary Rules ejectment. This is an exception, so that will
not apply.
Sec. 9. Submission for decision. If the petition is given due course, the Court of Appeals may set the
case for oral argument or require the parties to submit memoranda within a period of fifteen (15) days
from notice. The case shall be deemed submitted for decision upon the filing of the last pleading or
memorandum required by these Rules or by the court itself. (n)
-oOo-
Rule 43
APPEALS FROM THE COURT OF TAX APPEALS AND QUASI-JUDICIAL AGENCIES TO THE COURT OF
APPEALS
Let us now go to Rule 43 which governs Appeals from the Court of Tax Appeals and Quasi-Judicial
Agencies to the Court of Appeals. Take note that under Section 9 of BP 129, the CA has the exclusive
appellate jurisdiction to review decisions of all RTC and Quasi-Judicial Bodies, and Rule 43 is the
governing rule on appeals from quasi-judicial bodies.
So, before this, appeal to the CA of Tax cases is supposed to be to the SC. Now it is reverted to the CA,
and also quasi-judicial agencies. What was the prior law? It is Revised Administrative Circular No. 1-95,
which was promulgated on January 1, 1995. Now it is Rule 43 the circular was actually quoted here
verbatim. So, you can no longer go to the SC, even on pure questions of law, ha! Decisions of quasi-
judicial agencies must pass first to the CA even on pure questions of law.
Now what are these quasi-judicial bodies? They are enumerated in Section 1:
Section 1. Scope. This Rule shall apply to appeals from judgments or final orders of the Court of Tax
Appeals and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial
agency in the exercise of its quasi-judicial functions. Among these agencies are the Civil Service
Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of
the President, Land Registration Authority, Social Security Commission, Civil Aeronautics Board,
Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration,
Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform
under Republic Act No. 6657, Government Service Insurance System, Employees Compensation
Commission, Agricultural Inventions Board, Insurance Commission, Philippine Atomic Energy
Commission, Board of Investments, Construction Industry Arbitration Commission, and voluntary
arbitrators authorized by law. (n)
So, very specific! The latest addition there are decisions of voluntary arbitrators. Prior to that, it can be
brought by certiorari to the SC, but because of a decided case it is now be brought to the CA.
One case under Rule 43 which I want to discuss with you is the case of
LEPANTO CERAMICS vs. COURT OF APPEALS 237 SCRA 519 [1994]
FACTS: This involves appeals from the Board of Investments (BOI). Now, as provided in the original
Omnibus Investment Code of 1981 during the Marcos era, decisions of the BOI are appealable directly to
the SC. But years later it was nullified by the Judiciary Law because all decisions of all quasi-judicial
bodies are appealed to the CA.
Four years later the Constitution took effect. In July 1987 during the term of Cory Aquino, she
promulgated E.O. No. 226, the so-called Omnibus Investment Code of 1987 where provisions from the
old code were merely lifted. And among those included is the provision on appeals from the BOI where
you go directly to the SC.
The position of Lepanto is, the new law (E.O. No. 226) has modified BP 129 because the old law was
modified by BP 129. And since this is a new law, binalik na naman ang appeal sa SC. So na modify ang BP
129.
HELD: NO. Lepanto is wrong because when Cory Aquino issued E.O. No. 226, the New Constitution has
taken effect. And under the 1987 Constitution, you cannot increase the appellate jurisdiction of the SC
without its consent and concurrence. In effect, the new law
(E.O. No. 226) increased the work of the SC without its knowledge and consent therefore the
SC did not agree. The SC rejected the provision that decisions of the BOI are appealable directly to the
SC.
In the case of FABIAN vs. DESIERTO [December 16, 1998], a provision under RA 6670, which provides that
decisions of the Office of the Ombudsman in administrative disciplinary cases, was declared
unconstitutional because the appellate jurisdiction of the SC was increased without its advice and
consent.
Another case is MATEO vs. CA (247 SCRA 284 [1995]). This is before Revised Administrative Code No. 1-
95. As I have told you before, rulings of different constitutional commissions, CSC, COA, COMELEC should
be direct to the SC. That is why the case of MANCITA vs. BARCINAS (216 SCRA 772) is deemed abandoned
because the new procedure is that decisions of the CSC are now appealable to the CA.
Sec. 2. Cases not covered. This Rule shall not apply to judgments or final orders issued under the Labor
Code of the Philippines. (n)
Section 2 refers to decisions of NLRC and the Secretary of Labor. Their decisions can be brought directly
to the SC by way of petition for Certiorari under Rule 65, not by appeal (Rule 43).
Sec. 3. Where to appeal. An appeal under this Rule may be taken to the Court of Appeals within the
period and in the manner herein provided, whether the appeal involves questions of fact, of law, or
mixed questions of fact and law. (n)
Sec. 4. Period of appeal. The appeal shall be taken within fifteen (15) days from notice of the award,
judgment, final order or resolution, or from the date of its last publication, if publication is required by
law for its effectivity, or of the denial of petitioners motion for new trial or reconsideration duly filed
in accordance with the governing law of the court or agency a quo. Only one (1) motion for
reconsideration shall be allowed. Upon proper motion and the payment of the full amount of the
docket fee before the expiration of the reglementary period, the Court of Appeals may grant an
additional period of fifteen (15) days only within which to file the petition for review. No further
extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15)
days. (n)
Sec. 5. How appeal taken. Appeal shall be taken by filing a verified petition for review in seven (7)
legible copies with the Court of Appeals, with proof of service of a copy thereof on the adverse party
and on the court or agency a quo. The original copy of the petition intended for the Court of Appeals
shall be indicated as such by the petitioner.
Upon the filing of the petition, the petitioner shall pay to the clerk of court of the Court of Appeals the
docketing and other lawful fees and deposit the sum of P500.00 for costs. Exemption from payment of
docketing and other lawful fees and the deposit for costs may be granted by the Court of Appeals upon
a verified motion setting forth valid grounds therefor. If the Court of Appeals denies the motion, the
petitioner shall pay the docketing and other lawful fees and deposit for costs within fifteen (15) days
from notice of the denial. (n)
Sec. 6. Contents of the petition. The petition for review shall
(a) state the full names of the parties to the case, without impleading the court or agencies either as
petitioners or respondents;
(b) contain a concise statement of the facts and issues involved and the grounds relied upon for the
review;
(c) be accompanied by a clearly legible duplicate original or a certified true copy of the award,
judgment, final order or resolution appealed from, together with certified true copies of such material
portions of the record referred to therein and other supporting papers; and
(d) contain a sworn certification against forum shopping as provided in the last paragraph of section 2,
Rule 42. The petition shall state the specific material dates showing that it was filed within the period
fixed herein. (2a)
Sec. 7. Effect of failure to comply with requirements. The failure of the petitioner to comply with any
of the foregoing requirements regarding the payment of the docket and other lawful fees, the deposit
for costs, proof of service of the petition, and the contents of and the documents which should
accompany the petition shall be sufficient ground for the dismissal thereof. (n)
Sec. 8. Action on the petition. The Court of Appeals may require the respondent to file a comment on
the petition, not a motion to dismiss, within ten (10) days from notice, or dismiss the petition if it finds
the same to be patently without merit, prosecuted manifestly for delay, or that the questions raised
therein are too unsubstantial to require consideration. (6a)
Sec. 9. Contents of comment. The comment shall be filed within ten (10) days from notice in seven (7)
legible copies and accompanied by clearly legible certified true copies of such material portions of the
record referred to therein together with other supporting papers. The comment shall (a) point out
insufficiencies or inaccuracies in petitioners statement of facts and issues; and (b) state the reasons
why the petition should be denied or dismissed. A copy thereof shall be served on the petitioner, and
proof of such service shall be filed with the Court of Appeals. (9a)
Sec. 10. Due course. If upon the filing of the comment or such other pleadings or documents as may be
required or allowed by the Court of Appeals or upon the expiration of the period for the filing thereof,
and on the basis of the petition or the records the Court of Appeals finds prima facie that the court or
agency concerned has committed errors of fact or law that would warrant reversal or modification of
the award, judgment, final order or resolution sought to be reviewed, it may give due course to the
petition; otherwise, it shall dismiss the same. The findings of fact of the court or agency concerned,
when supported by substantial evidence, shall be binding on the Court of Appeals. (n)
Sec. 11. Transmittal of record. Within fifteen (15) days from notice that the petition has been given
due course, the Court of Appeals may require the court or agency concerned to transmit the original or
a legible certified true copy of the entire record of the proceeding under review. The record to be
transmitted may be abridged by agreement of all parties to the proceeding. The Court of Appeals may
require or permit subsequent correction of or addition to the record. (8a)
Sec. 12. Effect of appeal. The appeal shall not stay the award, judgment, final order or resolution
sought to be reviewed unless the Court of Appeals shall direct otherwise upon such terms as it may
deem just. (10a)
Sec. 13. Submission for decision. If the petition is given due course, the Court of Appeals may set the
case for oral argument or require the parties to submit memoranda within a period of fifteen (15) days
from notice. The case shall be deemed submitted for decision upon the filing of the last pleading or
memorandum required by these Rules or by the Court of Appeals. (n)
-oOo-
PROCEDURE IN THE COURT OF APPEALS
Rule 44
ORDINARY APPEALED CASES
We will now go to Rule 44 which is Procedure in the Court of Appeals in Ordinary Appealed Cases. This is
just the continuation of Rule 41. When a case is appealed to the CA under Rule 41, this is ordinary appeal
(decisions of RTC pursuant to its original jurisdiction), so what will happen here?
Take note that the procedure in the CA is not only found in the Rules of Court. The Internal Rules of the
CA is found in its so called Revised Internal Rules of the Court of Appeals (RIRCA).
So it is best that you go over it. For purposes of the BAR, hindi na kailangan yan! There are some
provisions kasi na wala sa Rules of Court. I have a copy of that eh, leather-bound! It just so happen that
we have an alumna who is the head of the Records Division of the CA.
Anyway, take note that under the present rules when the RTC clerk transmits the records to the CA,
nandoon na ang docket fee. Now, once original record is there, next is you will receive a notice from the
clerk of court that all the records are there, all the documentary evidence. And you are now given 45
days to file an appellants brief under Section 7 which has to be answered by the appellee under Section
8. And the appellant is given the option to file an appellants reply brief under Section 9. As to the
contents of the appellants brief and appellees brief, you have Sections 13 and 14.
Section 1. Title of cases. In all cases appealed to the Court of Appeals under Rule 41, the title of the
case shall remain as it was in the court of origin, but the party appealing the case shall be further
referred to as the appellant and the adverse party as the appellee. (1a, R46)
Sec. 2. Counsel and guardians. The counsel and guardians ad litem of the parties in the court of origin
shall be respectively considered as their counsel and guardians ad litem in the Court of Appeals. When
others appear or are appointed, notice thereof shall be served immediately on the adverse party and
filed with the court. (2a, R46)
Sec. 3. Order of transmittal of record. If the original record or the record on appeal is not transmitted
to the Court of Appeals within thirty (30) days after the perfection of the appeal, either party may file
a motion with the trial court, with notice to the other, for the transmittal of such record or record on
appeal. (3a, R46)
Sec. 4. Docketing of case. Upon receiving the original record or the record on appeal and the
accompanying documents and exhibits transmitted by the lower court, as well as the proof of payment
of the docket and other lawful fees, the clerk of court of the Court of Appeals shall docket the case and
notify the parties thereof.
Within ten (10) days from receipt of said notice, the appellant, in appeals by record on appeal, shall file
with the clerk of court seven (7) clearly legible copies of the approved record on appeal, together with
the proof of service of two (2) copies thereof upon the appellee.
Any unauthorized alteration, omission or addition in the approved record on appeal shall be a ground
for dismissal of the appeal. (n)
Sec. 5. Completion of record. Where the record of the docketed case is incomplete, the clerk of court
of the Court of Appeals shall so inform said court and recommend to it measures necessary to
complete the record. It shall be the duty of said court to take appropriate action towards the
completion of the record within the shortest possible time. (n)
Sec. 6. Dispensing with complete record. Where the completion of the record could not be
accomplished within a sufficient period allotted for said purpose due to insuperable or extremely
difficult causes, the court, on its own motion or on motion of any of the parties, may declare that the
record and its accompanying transcripts and exhibits so far available are sufficient to decide the issues
raised in the appeal, and shall issue an order explaining the reasons for such declaration. (n)
Sec. 7. Appellants brief. It shall be the duty of the appellant to file with the court, within forty-five (45)
days from receipt of the notice of the clerk that all the evidence, oral and documentary, are attached
to the record, seven (7) copies of his legibly typewritten, mimeographed or printed brief, with proof of
service of two (2) copies thereof upon the appellee. (10a, R46)
Sec. 8. Appellees brief. Within forty-five (45) days from receipt of the appellants brief, the appellee
shall file with the court seven (7) copies of his legibly typewritten, mimeographed or printed brief,
with proof of service of two (2) copies thereof upon the appellant. (11a, R46)
Sec. 9. Appellants reply brief. Within twenty (20) days from receipt of the appellees brief, the
appellant may file a reply brief answering points in the appellees brief not covered in his main brief.
(12, R46)
Sec. 10. Time for filing memoranda in special cases. In certiorari, prohibition, mandamus, quo
warranto and habeas corpus cases, the parties shall file, in lieu of briefs, their respective memoranda
within a non-extendible period of thirty (30) days from receipt of the notice issued by the clerk that all
the evidence, oral and documentary, is already attached to the record. (13a, R46)
The failure of the appellant to file his memorandum within the period therefor may be a ground for
dismissal of the appeal. (n)
Sec. 11. Several appellants or appellees or several counsel for each party. Where there are several
appellants or appellees, each counsel representing one or more but not all of them shall be served
with only one copy of the briefs. When several counsel represent one appellant or appellee, copies of
the brief may be served upon any of them. (14a, R46)
Sec. 12. Extension of time for filing briefs. Extension of time for the filing of briefs will not be allowed,
except for good and sufficient cause, and only if the motion for extension is filed before the expiration
of the time sought to be extended. (15, R46)
Sec. 13. Contents of appellants brief. The appellants brief shall contain, in the order herein indicated,
the following:
(a) A subject index of the matter in the brief with a digest of the arguments and page
references, and a table of cases alphabetically arranged, textbooks and statutes cited with
references to the pages where they are cited;
(b) An assignment of errors intended to be urged, which errors shall be separately, distinctly
and concisely stated without repetition and numbered consecutively;
(c) Under the heading "Statement of the Case," a clear and concise statement of the nature of
the action, a summary of the proceedings, the appealed rulings and orders of the court, the
nature of the judgment and any other matters necessary to an understanding of the nature
of the controversy, with page references to the record;
(d) Under the heading "Statement of Facts," a clear and concise statement in a narrative form
of the facts admitted by both parties and of those in controversy, together with the
substance of the proof relating thereto in sufficient detail to make it clearly intelligible, with
page references to the record;
(e) A clear and concise statement of the issues of fact or law to be submitted to the court for its
judgment;
(f) Under the heading "Argument," the appellants arguments on each assignment of error
with page references to the record. The authorities relied upon shall be cited by the page of
the report at which the case begins and the page of the report on which the citation is
found;
(g) Under the heading "Relief," a specification of the order or judgment which the appellant
seeks; and
(h) In cases not brought up by record on appeal, the appellants brief shall contain, as an
appendix, a copy of the judgment or final order appealed from. (16a, R46)
Sec. 14. Contents of appellees brief. The appellees brief shall contain, in the order herein indicated,
the following:
(a) A subject index of the matter in the brief with a digest of the arguments and page
references, and a table of cases alphabetically arranged, textbooks and statutes cited with references
to the pages where they are cited;
(b) Under the heading "Statement of Facts," the appellee shall state that he accepts the
statement of facts in the appellants brief, or under the heading "Counter-Statement of Facts," he shall
point out such insufficiencies or inaccuracies as he believes exist in the appellants statement of facts
with references to the pages of the record in support thereof, but without repetition of matters in
the appellants statement of facts; and
(c) Under the heading "Argument," the appellee shall set forth his arguments in the case on
each assignment of error with page references to the record. The authorities relied on shall be cited by
the page of the report at which the case begins and the page of the report on which the citation is
found. (17a, R46)
This is like a thesis or writing a book Appellants and appellees brief. Q: What is a brief? What is its
purpose?
A: The word BRIEF is derived from the Latin word BREVIS [AND BRUTTHEAD] and the French word
BREFIE, and literally means a short or condensed statement. Its purpose is to present to the court in
concise form the points and questions in controversy, and by fair argument on the facts and law of the
case, to assist the court to arrive at a just and fair conclusion. It should be prepared as to minimize the
labor of the court in the examination of the record upon which the appeal is heard. (Estiva vs. Cawit, 59
Phil. 67; Casilan vs. Chavez, L-17334, Feb. 28, 1962)
So you summarize the case, facts, issues, arguments, discussions, citations of laws. So its like a debate
no?
Alright. The best brief writers I noticed are those in the Solicitor Generals office. Just imagine, the
Solicitor General defends all the cases of the government. When a criminal case is appealed by the
accused to the CA or CA, automatically the Solicitor General takes over. In the lower court, it is the fiscals
no?
So, the Solicitor General defends the case he had never tried. So they just based it on records. They
condensed decisions kahit na gaano ang kapal, reducing it to 15 pages or less. Its really an ability to do it.
The shorter the better. People there in the Solicitor Generals office are really good writers and
researchers because that is the law office of the Republic of the Philippines. Lahat dyan magagaling, isa
lang ang hindi marunong. SINO? Ang Solicitor General ninyo! He is only a political appointee. (F. Chavez?
Or Galvez?)
Q: Is the 45-day period to file brief extendible?
A: YES, that is section 12. The worst violator here is the Solicitor General extension 30 days, 2nd
extension 30 days! Ganyan sila! Sometimes it takes them 18 months to prepare a brief. Sabagay, marami
din kasi silang trabaho no?
Q: When do you file the motion for extension of time to file brief?
A: The motion for extension of time is filed BEFORE the expiration of the time sought to be extended.
(Section 12) BUT sometimes the SC can be liberal about extension. One case is
MOSKOWSKY vs. COURT OF APPEALS 230 SCRA 657
FACTS: The CA here granted the appellant a period of 90 days counted from August 3, 1991. So after the
45 days plus 90 days pa from August 3, 1991. Said 90-day period ended on November 1, 1991. On
November 4, 1991, or 3 days after the extended period, instead of filing a brief, appellant filed another
motion for a 20-day extension.
ISSUE #1: Was the motion for extension filed on time based on Section 12?
HELD: YES. Said ninety-day period would end on November 1, 1991. November 1 is a regular holiday.
Then President Aquino declared November 2, 1991 as a special holiday. The next day, November 3, 1991
turned out to be a Sunday. The next business day was, therefore, November 4, 1991 - a Monday.
The abovementioned motion was, therefore, filed on time, i.e., the motion for the extension sought was
filed before the expiration of the time sought to be extended.
ISSUE #2: When do you compute the 20-day extension being asked for? Is it on November 1, the
expiration of the period? Or on November 4, the day of the filing of the motion?
HELD: The appellant specifically manifested that they will need another extension from today
(November 4) within which to file appellants brief, and today is November 4. So, the period
commences to run on November 4. So very liberal no?
Take note of Section 15 what questions may an appellant raise on appeal:
Sec. 15. Questions that may be raised on appeal. Whether or not the appellant has filed a motion for
new trial in the court below, he may include in his assignment of errors any question of law or fact that
has been raised in the court below and which is within the issues framed by the parties. (18, R46)
So the appellant cannot raise before the CA on appeal any question of law or fact that has not been
raised in the lower court and not within the issues framed by the parties. He cannot, for the first time on
appeal, say something which was not raised in the trial court. Another thing is, he cannot change his
theory on appeal, either theory on the cause of action or theory on the defense.
Now, sometimes it is easy to detect whether there is change of theory. The only possible exception
maybe is when you raise for the first time on appeal something which you never raised as in lack of
jurisdiction unless estoppel will set in as in the case of TIJAM vs. SIBONGHANOY. Illustrating this point is
the case of
RIVERA vs. COURT OF APPEALS 176 SCRA 169 [1989]
FACTS: The spouses Martinez sold their house and lot to Rivera. Later, they filed a complaint against
Rivera declaring the sale as null and void on the ground that the sale is a mortgage. The court dismissed
the complaint. So the ruling of the trial court was that the sale was valid. But on the CA, Martinez
spouses prayed that they maybe allowed to redeem the property.
The CA reversed the trial court and allowed Martinez spouses to redeem the property. Now, Rivera
appealed to the CA, contending that Martinez change the theory of their case because in the original
complaint the latter prayed for the annulment of the sale, and in the CA they prayed that they be
allowed to redeem the property.
ISSUE: Was there a change of theory of the Martinez spouses?
HELD: There was NO CHANGE of theory. There was no surprise against Rivera or to the CA. The real
purpose of the Martinez spouses in asking for the nullity of the contract is to enable them to recover the
property from Rivera.
Prescinding from those allegations and from the prayer all clearly set out in the complaint, it is fair to
conclude that the real purpose in asking for the nullity of the contract of sale is to enable the Martinez
spouses to recover or redeem the property they deeded in favor of Rivera. It would be absurd to pray for
the nullity of an agreement and stop there. There would be a vacuum and the law, like nature, abhors a
vacuum.
In the CA, they persisted in their claim to entitlement of the right to recover, redeem, or repurchase.
This agreement can not be construed as change of theory; it is persistence, plain and simple. It does not
leave any interstice in the entire theory of the case. Consistency in the position of the private
respondents runs throughout the presentation of their claim.
So akala mo may change of theory, yun pala wala! Why are they annulling? To recover their property. In
other words there was no change of theory.
Q: Is the appellee required to make assignment of errors?
A: The APPELLEE is not required to make assignment of errors, except when his purpose is to seek
affirmation of the judgment on other grounds or reasons not stated in the decision. (Saenz vs. Mitchell,
60 Phil. 69; Gorospe vs. Peaflorida, 101 Phil. 886; Dy vs. Kuison, L-16654, Nov. 30, 1961)
Q: If the appellee seeks modification of the judgment, is it enough for him to make assignment of errors?
A: In such a case, the appellee must appeal; an assignment of error is not enough. (Oquiena vs. Canda,
87 Phiil. 120; Gorospe vs. Peaflorida, supra; Dy vs. Kuison, supra)
GENERAL RULE: If you are the winning party, you may appeal the decision if you think you are entitled for
more. So, you must appeal. You cannot just state of errors in the appellees brief.
EXCEPTION: You may state assignment of errors to support the decision to support, not to
change, the decision. If you want to change the decision, you appeal (general rule).
-oOo-
Rule 46
ORIGINAL CASES
Q: What is the difference between Rule 46 and Rule 44?
A: Rule 44 deals with appealed cases. Rule 46 deals with original cases. Remember that the CA is both an
original and appellate court.
Q: What are these original cases which can be filed in the CA?
A: Under Section 9 of BP 129, Certiorari, prohibition, mandamus, quo warranto, annulment of judgment
of the RTC.
The Annulment of Judgment of the RTC, which belongs to the exclusive original jurisdiction of the CA, is
governed by Rule 47.
Now, all the rest of the sections here are almost the same: how many copies, docket fees, certification of
non-forum shopping, etc
Section 1. Title of cases. In all cases originally filed in the Court of Appeals, the party instituting the
action shall be called the petitioner and the opposing party the respondent. (1a)
Rule 44 on appeal to the CA, the caption of the case is the same as the caption in the RTC (e.g. in the RTC,
RED HOT vs. LIMP BIZKIT). You just add the word appellant and appellee. BUT in Rule 44 in original
cases, the parties are now called petitioner and respondent.
Sec. 2. To what actions applicable. This Rule shall apply to original actions for certiorari, prohibition,
mandamus and quo warranto.
Except as otherwise provided, the actions for annulment of judgment shall be governed by Rule 47, for
certiorari, prohibition and mandamus by Rule 65, and for quo warranto by Rule 66. (n)
Therefore, the provisions of Rules 65, 66 and 47 which apply to this original action should be read with
Rule 46.
Just read Section 3. Take note of the second paragraph which was inserted in 1998 by SC Circular 39-98).
Sec. 3. Contents and filing of petition; effect of non-compliance with requirements. The petition shall
contain the full names and actual addresses of all the petitioners and respondents, a concise
statement of the matters involved, the factual background of the case, and the grounds relied upon for
the relief prayed for.
In actions filed under Rule 65, the petition shall further indicate the material dates showing when
notice of the judgment or final order or resolution subject thereof was received, when a motion for
new trial or reconsideration, if any, was filed and when notice of the denial thereof was received. (Cir.
No. 39-98)
It shall be filed in seven (7) clearly legible copies together with proof of service thereof on the
respondent with the original copy intended for the court indicated as such by the petitioner, and shall
be accompanied by a clearly legible duplicate original or certified true copy of the judgment, order,
resolution, or ruling subject thereof, such material portions of the record as are referred to therein,
and other documents relevant or pertinent thereto. The certification shall be accomplished by the
proper clerk of court or by his duly authorized representative, or by the proper officer of the court,
tribunal, agency or office involved or by his duly authorized representative. The other requisite
number of copies of the petition shall be accompanied by clearly legible plain copies of all documents
attached to the original.
The petitioner shall also submit together with the petition a sworn certification that he has not
theretofore commenced any other action involving the same issues in the Supreme Court, the Court of
Appeals or different divisions thereof, or any other tribunal or agency; if there is such other action or
proceeding, he must state the status of the same; and if he should thereafter learn that a similar action
or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different
divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid
courts and other tribunal or agency thereof within five (5) days therefrom.
The petitioner shall pay the corresponding docket and other lawful fees to the clerk of court and
deposit the amount of P500.00 for costs at the time of the filing of the petition.
The failure of the petitioner to comply with any of the foregoing requirements shall be sufficient
ground for the dismissal of the petition. (n)
Sec. 4. Jurisdiction over person of respondent, how acquired. The court shall acquire jurisdiction over
the person of the respondent by the service on him of its order or resolution indicating its initial action
on the petition or by his voluntary submission to such jurisdiction. (n)
When you file an original action before the CA like certiorari, normally under Section 3 you already
furnish the adverse party with a copy of your petition. Then the CA will now issue a resolution, like for
example, Defendant/Respondent, you are given so many days to comment.
That is how the CA acquires jurisdiction over your person by serving you a copy of the order indicating
its initial action. So there is no more summons because you were already furnished a copy earlier.
Sec. 5. Action by the court. The court may dismiss the petition outright with specific reasons for such
dismissal or require the respondent to file a comment on the same within ten (10) days from notice.
Only pleadings required by the court shall be allowed. All other pleadings and papers may be filed only
with leave of court. (n)
Sec. 6. Determination of factual issues. Whenever necessary to resolve factual issues, the court itself
may conduct hearings thereon or delegate the reception of the evidence on such issues to any of its
members or to an appropriate court, agency or office. (n)
Sec. 7. Effect of failure to file comment. When no comment is filed by any of the respondents, the case
may be decided on the basis of the record, without prejudice to any disciplinary action which the court
may take against the disobedient party. (n)
-oOo-
Rule 47
ANNULMENT OF JUDGMENTS OR
FINAL ORDERS AND RESOLUTIONS
Rule 47 is an entirely new rule which governs the remedy of annulment of judgments or final orders or
resolutions. We already met this remedy in judiciary law. The CA has original exclusive jurisdiction to
annul final judgments and resolutions of the RTC. (Section 9, BP 129) So it is an entirely original action for
annulment of judgment of the RTC.
Now, that should not be confused with certiorari, prohibition and mandamus which fall under the
original concurrent jurisdiction of the CA. Rule 47 or annulment of judgment of the RTC falls within the
exclusive original jurisdiction of the CA.
Take note that in an appeal, the judgment appealed from is valid. But in annulment under Rule 47, the
judgment is being asked to be declared void.
Under the prior law there was no direct rule governing that remedy. The only guideline for annulment of
judgments of the RTC are decided cases. Now for the first time the 1997 Rules have a definite rule on
how to enforce this remedy.
So lets read Section 1 because this is a remedy which has been existing without definite guidelines on
how to do it.
Section 1. Coverage. This Rule shall govern the annulment by the Court of Appeals of judgments or
final orders and resolutions in civil actions of Regional Trial Courts for which the ordinary remedies of
new trial, appeal, petition for relief or other appropriate remedies are no longer available through no
fault of the petitioner. (n)
Well of course the remedy of new trial under Rule 37 must be availed of before the judgment or order
becomes final and executory. Also, the remedy of appeal must also be availed before the judgment or
order becomes final and executory.
In petition for relief under Rule 38, although the judgment or order is already final and executory, it must
be done still within 60 days and 6 months.
Q: Suppose all the abovementioned remedies have lapsed, is there a remedy left? A: Section I says YES.
There is annulment of judgment but only on limited grounds.
Now what are the grounds for annulment of judgment? Section 2:
Sec. 2. Grounds for annulment. The annulment may be based only on the grounds of extrinsic fraud
and lack of jurisdiction.
Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a
motion for new trial or petition for relief. (n)
Q: What are the grounds for annulment of judgment under Section 2?
A: The grounds recognized by law for annulment of judgment are the only two (2):
1.) The judgment was secured through extrinsic fraud; or
Extrinsic fraud should not be a valid ground if availed of, or could have been availed of, in a motion for
new trial or petition for relief.
2.) The judgment is void for lack of jurisdiction.
First Ground: EXTRINSIC FRAUD
Q: How do we describe the remedy of annulment of judgment?
A: Annulment of judgment is described briefly as a remedy against a judgment which is already final and
executory when the remedy of appeal and new trial is already lost.
Petition for relief under Rule 38 is a remedy against a final and executory judgment kaya lang merong
deadline 6 months and 60 days. So after these periods lapse, wala na.
Sa petition for relief, apat yon eh: Fraud, accident, mistake and excusable negligence. In annulment of
judgment, wala na yung accident, mistake and excusable negligence. But yung EXTRINSIC FRAUD natira
pa. That is the only one which can be left behind under Rule 47.
Q: Now what is meant by extrinsic fraud ?
A: We already discussed this. Fraud, to be a ground for nullity of a judgment, must be extrinsic that
fraud done by the adverse party which prevented a party from having a trial or from presenting his case
fully.
Therefore, intrinsic fraud is not a ground for new trial. It is not a ground for petition for relief. And it is
not a ground for annulment.
INTRINSIC FRAUD is that fraud which was an issue in the litigation such as perjury, false testimony,
concealment of evidentiary facts, but did not prevent you from presenting your case. That is not a
ground for annulment of judgment. So take note of that principle.
COSMIC LUMBER CORP. vs. COURT OF APPEALS 256 SCRA 168 [1996]
FACTS: Cosmic Lumber owns a piece of land occupied by some squatters. Now, Cosmic Lumber executed
a board resolution for a special power of attorney authorizing an attorney-in-fact to initiate, institute and
file in any court action for the ejectment of the squatters from its property. Then the agent by virtue of
the power of attorney, filed a case to recover a portion of this property from its occupants before the
RTC.
While the case was going on, the agent (the attorney-in- fact) entered into a compromise
agreement with the squatters. In the compromise agreement, the attorney-in-fact sold the property or
land to the squatter for only P26,000. And the compromise agreement was approved by the court and it
became final and executory.
Now it was several years later that the Cosmic Lumber heard about it. The Cosmic Lumber filed an action
to annul the judgment before the CA on the ground of extrinsic fraud.
The CA: The case will be dismissed because that is not one of the grounds for annulment of judgment
because the alleged nullity of the compromise judgment, because petitioners attorney-in-fact was not
authorized to sell the property. That does not amount to extrinsic fraud. That was fraud by your own
representative, it is not fraud by the other party. The one who exercised fraud was your own attorney-in-
fact, not the squatter. So kaya nga that is not a ground. The CA dismissed the action. So Cosmic Lumber
went to the SC.
HELD: The petition to annul the decision of the trial court in civil case before the CA was proper.
Emanating as it did from a void compromise agreement, the trial court had no jurisdiction to render a
judgment based thereon. So there is another ground lack of jurisdiction.
The highly reprehensible conduct of attorney-in-fact in the civil case constituted an extrinsic or
collateral fraud by reason of which the judgment rendered thereon should have been struck down. Not
all the legal semantics in the world can becloud the unassailable fact that petitioner was deceived and
betrayed by its attorney-in-fact. The latter deliberately concealed from petitioner, her principal, that a
compromise agreement had been forged with the end result that a portion of petitioners property was
sold literally for a song, for P26,000. Thus completely kept unaware of its agents artifice, petitioner was
not accorded even a fighting chance to repudiate the settlement so much so that the judgment based
thereon became final and executory.
For sure, the CA restricted the concept of fraudulent acts within too narrow limits. Fraud may assume
different shapes and be committed in as many different ways and here lies the danger of attempting to
define fraud. For man in his ingenuity and fertile imagination will always contrive new schemes to fool
the unwary.
So fraud by your attorney-in-fact is also considered as a ground for annulment.
Second Ground: JUDGMENT IS VOID
If we follow jurisprudence, there is a third ground which is implied: LACK OF DUE PROCESS. When there
is lack of due process there is also lack of jurisdiction.
Q: How do you attack a judgment which is void? A: It depends:
a.) when the judgment is null and void on its very face, the judgment may be attacked: 1.) DIRECTLY; or
2.) COLLATERALLY;
b.) when the nullity is not apparent on the face of the judgment, the judgment can be attacked only be
DIRECTLY attacked.
Q: What is a COLLATERAL ATTACK?
A: Meaning, there is no need for me to file a case but I can invoke its nullity anytime because a judgment
which is void on its very face can be attacked at anytime, in any manner anywhere.
EXAMPLE of Collateral attack: You are moving to execute a judgment. I will oppose the execution on the
ground that the judgment is void. That is collateral attack. Im just saying that the judgment cannot be
enforced because it is null and void. But I never filed a direct action to declare its nullity. That can be
done if the judgment is void on its very face.
Q: What is a DIRECT ATTACK?
A: By direct attack means you must file an action to declare its nullity. So there must be a case for its
annulment.
Again, when the judgment is null and void on its face, (1) you may file a direct action to annul it under
Rule 47. Or, (2) it can also be attacked collaterally, a direct attack is not necessary. A collateral attack will
suffice.
EXAMPLE: RTC decided a forcible entry. By simply reading the decision, obviously the RTC has no
jurisdiction. Therefore, I can attack it directly by filing a case for its annulment under Rule 47. OR, I will
not file a case under Rule 47 but I will attack it collaterally. Meaning, bayaan ko lang. I will raise that issue
during execution. If you move for execution, I can oppose, You cannot execute because the RTC has no
jurisdiction over the case. Therefore the judgment is void. So it is not necessary to file a case to declare
the decision as null and void. That is collateral attack.
But if the judgment is not void on its face but the nullity is intrinsic or nakatago not obvious ba the
rule is, you must file a direct action for its annulment which must be done before the action is barred by
laches or estoppel. So it is necessary to file a case for annulment of judgment under Rule 47.
Well of course, certiorari under Rule 65 is also a ground for attacking a judgement but the trouble is you
are limited to 3 grounds: Lack of jurisdiction, excess of jurisdiction and grave abuse of discretion. Walang
extrinsic fraud. That is governed by Rule 65 and not by Rule 47.
And under Rule 65, you can avail of certiorari only within 60 days. But if you want annulment, it could be
longer under Rule 47. That is under section 3. That could be a big difference.
Moreover, what do you attack in certiorari? Normally, interlocutory orders eh. But a final judgment can
be attacked by annulment under Rule 47.
Now, those remedies were summarized in the case of
BAYOG vs. NATINO 258 SCRA 378 [1996]
HELD: It is a settled rule that a final and executory judgment may be set aside in three (3) ways. To wit:
1. By petition for relief from judgment under Rule 38;
2. When the judgment is void for want of jurisdiction, by direct attack, by certiorari, annulment
of judgment or by collateral attack; and
3. When the judgment was obtained by fraud and Rule 38 cannot be applied anymore.
So those are the summary of the remedies.
ISLAMIC DAVAO COUNSEL vs. COURT OF APPEALS 178 SCRA 178
ISSUE #1: Can a person, who is not a party to the judgment, file an action for annulment of judgment?
HELD: A person who is not a part of the judgment may sue for its annulment PROVIDED that he can
prove [1] that the judgment was obtained through fraud and collusion and [2] that he would be
adversely affected thereby.
ISSUE #2: Suppose the judgment had already been fully executed and implemented, can you still file a
case for annulment of judgment?
HELD: YES. We will also annul the execution. If there is no execution yet, the proper remedy normally is
you file an action for annulment and ask for the issuance of a writ of preliminary injunction so that it will
not be enforced. Pero kung na-enforced na pwede pa man din ba.
SUMMARY: Possible remedies of defendant declared in DEFAULT:
1.) Rule 9, Section 3 [b] Motion to lift Order of Default, there is still no judgment; ground: FAME;
2.) Rule 37 Motion for new trial, judgment not yet final; Ground: FAME;
3.) Rule 38 Petition for relief within 60 days and 6 months, judgment is already final; ground: FAME;
4.) Rule 41 Appeal within 15 days; ground: Default judgment is contrary to law or evidence;
5.) Rule 47 Annulment of judgment; Ground: Extrinsic Fraud;
6.) Rule 65 Certiorari; ground: Lack or excess of jurisdiction or grave abuse of discretion
Q: What is the period to file an action for annulment on the ground of extrinsic fraud?
A: Section 3:
Sec. 3. Period for filing action. If based on extrinsic fraud, the action must be filed within four (4) years
from its discovery; and if based on lack of jurisdiction, before it is barred by laches or estoppel. (n)
This is based on decided cases. If your ground is extrinsic fraud, the action is filed within four (4) years
from its discovery. Now, if it is based on lack of jurisdiction, before it is barred by laches or estoppel. That
is very elastic laches or estoppel.
Although if you look at the strict law based on Article 1144 of the New Civil Code, the prescriptive period
really is 10 years for any action on judgment. That is the strict law but it could be barred earlier by laches
or estoppel.
Now as to the contents of the petition, we have Section 4:
Sec. 4. Filing and contents of petition. The action shall be commenced by filing a verified petition
alleging therein with particularity the facts and the law relied upon for annulment, as well as those
supporting the petitioners good and substantial cause of action or defense, as the case may be.
The petition shall be filed in seven (7) clearly legible copies, together with sufficient copies
corresponding to the number of respondents. A certified true copy of the judgment or final order or
resolution shall be attached to the original copy of the petition intended for the court and indicated as
such by the petitioner.
The petitioner shall also submit together with the petition affidavits of witnesses or documents
supporting the cause of action or defense and a sworn certification that he has not theretofore
commenced any other action involving the same issues in the Supreme Court, the Court of Appeals or
different divisions thereof, or any other tribunal or agency; if there is such other action or proceeding,
he must state the status of the same, and if he should thereafter learn that a similar action or
proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different
divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid
courts and other tribunal or agency thereof within five (5) days therefrom.(n)
Take note that yung mga affidavits of your witnesses or documents supporting your cause of action must
be attached already. You correlate this with Rule 37, Section 2 on new trial and Rule 38, Section 3 on
petition for relief.
What does Rule 37, Section 2 and Rule 38, Section 3 say about motion for new trial or petition for relief?
There is also an AFFIDAVIT OF MERITS showing the nature of the fraud, accident and the meritorious
cause of action or defense. So more or less that principle also applies in Rule 47.
Sec. 5. Action by the court. Should the court find no substantial merit in the petition, the same may be
dismissed outright with specific reasons for such dismissal.
Should prima facie merit be found in the petition, the same shall be given due course and summons
shall be served on the respondent. (n)
Under Section 5, the court may dismiss outright the petition if there is no merit or no substantial merit. If
there is, then the same shall be given due course and summons shall be served on the respondent.
Take note there will be SUMMONS here. Unlike in Rule 46, walang summons yon. But here, there will be
summons by the CA. That is the difference between Rule 47 and Rule 46.
Sec. 6. Procedure. The procedure in ordinary civil cases shall be observed. Should a trial be necessary,
the reception of the evidence may be referred to a member of the court or a judge of a Regional Trial
Court. (n)
Q: What happens if the judgment is annulled? Can the plaintiff re-file the case? A: YES, because it is as if
there was no judgment. Section 7:
Sec. 7. Effect of judgment. A judgment of annulment shall set aside the questioned judgment or final
order or resolution and render the same null and void, without prejudice to the original action being
refiled in the proper court. However, where the judgment or final order or resolution is set aside on
the ground of extrinsic fraud, the court may on motion order the trial court to try the case as if a
timely motion for new trial had been granted therein. (n)
So if the judgment is set aside on the ground of extrinsic fraud, the action can be re-filed. The court may,
on motion, order the trial court to try the case as if a timely motions for the trial had been granted
therein. That is similar to Rule 38, Section 6. Remember when the court grants a petition for relief, the
case will be tried all over again as if a timely motion for new trial has been filed.
Q: What happens if by the time you re-file the case the prescriptive period has already lapsed?
A: As a general rule, while the action for annulment is pending, the prescriptive period for filing is
interrupted. That is Section 8:
Sec. 8. Suspension of prescriptive period. The prescriptive period for the refiling of the aforesaid
original action shall be deemed suspended from the filing of such original action until the finality of the
judgment of annulment. However, the prescriptive period shall not be suspended where the extrinsic
fraud is attributable to the plaintiff in the original action. (n)
Q: What happens if a judgment is annulled and it was earlier executed? A: Section 9:
Sec. 9. Relief available. The judgment of annulment may include the award of damages, attorneys fees
and other relief.
If the questioned judgment or final order or resolution had already been executed, the court may issue
such orders of restitution or other relief as justice and equity may warrant under the circumstances.
(n)
Under Section 9, the court may issue order of restitution or other reliefs as justice and equity may
warrant. That is similar to Rule 39, Section 5 in case of execution pending appeal and the appealed
judgment is reversed, the court will now order mutual restitution pursuant to Rule 39, Section 5.
Sec. 10. Annulment of judgments or final orders of Municipal Trial Courts. An action to annul a
judgment or final order of a Municipal Trial Court shall be filed in the Regional Trial Court having
jurisdiction over the former. It shall be treated as an ordinary civil action and sections 2, 3, 4, 7, 8 and 9
of this Rule shall be applicable thereto. (n)
I have always maintained this view. As I said, if we will look at the judiciary law, it only mentions
annulment of judgments of Regional Trial Courts which should be filed in the CA (exclusive original).
And the QUESTION is asked: Meron bang action for annulment of judgments of MTC? Yaann! Answer:
YES. Kung merong annulment of judgment of the RTC, by implication, meron din ang
MTC. You cannot file it in the CA. You file it in the RTC.
Annulment of judgment of the MTC will fall under the rule on jurisdiction of the RTC any action which
does not belong to the jurisdiction of any other courts (Section 19 [6], BP 129) or, an action the subject
matter of which is incapable of pecuniary estimation (Section 19 [1], BP 129) That would be the
authority.
Now its very clear, meron talaga. It is now stated categorically there is an action for annulment of
judgment also of the MTC. It must be filed in the RTC having jurisdiction over the MTC. The grounds are
identical as those found in the previous section. So this is an entirely new section.
-oOo-
Rule 48
PRELIMINARY CONFERENCE
Preliminary Conference is like a pre-trial in the CA. Iba lang ang tawag but it is really a pre-trial because
there are cases which fall under the original jurisdiction of the CA, like annulment of judgment of the
RTC. Its purpose is the same as in Rule 18 on pre-trial.
Section 1. Preliminary conference. At any time during the pendency of a case, the court may call the
parties and their counsel to a preliminary conference:
(a) To consider the possibility of an amicable settlement, except when the case is not allowed
by law to be compromised;
(b) To define, simplify and clarify the issues for determination;
(c) To formulate stipulations of facts and admissions of documentary exhibits, limit the number
of witnesses to be presented in cases falling within the original jurisdiction of the court, or
those within its appellate jurisdiction where a motion for new trial is granted on the ground
of newly discovered evidence; and
(d) To take up such other matters which may aid the court in the prompt disposition of the
case. (n)
Sec. 2. Record of the conference. The proceedings at such conference shall be recorded and, upon the
conclusion thereof, a resolution shall be issued embodying all the actions taken therein, the
stipulations and admissions made, and the issues defined. (n)
Sec. 3. Binding effect of the results of the conference. Subject to such modifications which may be
made to prevent manifest injustice, the resolution in the preceding section shall control the
subsequent proceedings in the case unless, within five (5) days from notice thereof, any party shall
satisfactorily show valid cause why the same should not be followed. (n)
-oOo-
Rule 49
ORAL ARGUMENTS
The CA may or may not require oral argument. Just read that.
Section 1. When allowed. At its own instance or upon motion of a party, the court may hear the
parties in oral argument on the merits of a case, or on any material incident in connection therewith.
(n)
The oral argument shall be limited to such matters as the court may specify in its order or resolution.
(1a, R48)
Sec. 2. Conduct of oral argument. Unless authorized by the court, only one counsel may argue for a
party. The duration allowed for each party, the sequence of the argumentation, and all other related
matters shall be as directed by the court. (n)
Sec. 3. No hearing or oral argument for motions. Motions shall not be set for hearing and, unless the
court otherwise directs, no hearing or oral argument shall be allowed in support thereof. The adverse
party may file objections to the motion within five (5) days from service, upon the expiration of which
such motion shall be deemed submitted for resolution. (2a, R49)
How are cases decided in the CA? Normally, you file your petition; submit argument in writing; then you
wait for the decision. But sometimes, the CA is provoked by legal issues. So the CA would decide to listen
to oral arguments of the parties, especially when the case is controversial.
Under Section 3, one difference between motions filed in the RTC and in the CA is that:
a.) in the RTC, there must be notice of hearing (Rule 15) attached to the motion, otherwise it will be
denied;
b.) in the CA, there is no need for notice of hearing to be attached to the motion.
-oOo-
Rule 50
DISMISSAL OF APPEAL
Grounds for dismissal of appeal in the CA. Take note that under Section 1, an appeal may be dismissed by
the CA on its own (motu propio) or upon motion of the appellee. And there are nine (9) grounds for
dismissal of appeal under Section 1:
Section 1. Grounds for dismissal of appeal. An appeal may be dismissed by the Court of Appeals, on its
own motion or on that of the appellee, on the following grounds:
(a) Failure of the record on appeal to show on its face that the appeal was taken within the
period fixed by these Rules;
(b) Failure to file the notice of appeal or the record on appeal within the period prescribed by
these Rules;
(c) Failure of the appellant to pay the docket and other lawful fees as provided in section 5 of
Rule 40 and section 4 of Rule 41;
(d) Unauthorized alterations, omissions or additions in the approved record on appeal as
provided in section 4 of Rule 44;
(e) Failure of the appellant to serve and file the required number of copies of his brief or
memorandum within the time provided by these Rules;
(f) Absence of specific assignment of errors in the appellants brief, or of page references to
the record as required in section 13, paragraphs (a), (c),
(d) and (f) of Rule 44;
(g) Failure of the appellant to take the necessary steps for the correction or completion of the
record within the time limited by the court in its order;
(h) Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply
with orders, circulars, or directives of the court without justifiable cause; and
(i) The fact that the order or judgment appealed from is not appealable. (1a; En Banc
Resolution, Feb. 17, 1998)
First Ground: (a) FAILURE OF THE RECORD ON APPEAL TO SHOW ON ITS FACE THAT THE APPEAL WAS
TAKEN WITHIN THE PERIOD FIXED BY THESE RULES;
So this only applies in cases where a record on appeal is required. Failure to show on its face that the
appeal was perfected on time meaning, the appeal might have been perfected on time but by reading
the record on appeals, you will not see it.
Normally, that happens when the party did not state the exact date when he received the decision. He
may just state the date of the decision without stating the date of receipt. With that, the court will
presume that you received it on the date of the decision. It might be beyond the period to appeal. So on
its face, there is no showing whether the appeal was within the 30 day period or not.
The first ground is called the MATERIAL DATA RULE that the record on appeal must show on its face
that the appeal was taken on time.
In the 1973 case of BERKENKOTTER VS. CA, this ground was supposed to be abolished already where the
SC said that from now on, We will no longer follow the material data rule. Meaning this is abandoned.
So, I wonder bakit binalik ito sa 1997 Rules because since 1973, the SC has already refused to apply this
ground. So when they drafted the Rules, dapat tinanggal na yon. Bakit nandito na naman? They might
have forgotten that it has been abandoned by jurisprudence, unless the intention is to return it.
Second Ground: (b) FAILURE TO FILE THE NOTICE OF APPEAL OR THE RECORD ON APPEAL WITHIN THE
PERIOD PRESCRIBED BY THESE RULES;
Take note that under paragraph [a], the appeal was filed on time but the record on appeal does not
show that it was filed on time.
But here in paragraph [b], the appeal is really out of time. Take note that you can raise this ground in the
trial court. The trial court is also authorized to dismiss an appeal on this ground (Rule 41, Section 13). But
assuming that you failed to raise it in the trial court, you can raise it in the CA.
Q: Are you under estoppel for not raising it earlier in the RTC? Meaning, why did you not bring it out
earlier, bakit hinintay pa sa CA?
A: There is no estoppel here because actually this is a jurisdictional challenge. When the notice of appeal
is filed out of time or beyond 15 days, actually the judgment of the RTC has already become final and
executory. So you are now challenging the jurisdiction of the CA. Meaning, you are trying to say that the
CA has no jurisdiction to review on appeal a judgment of the RTC which has already been final and
executory.
Q: Does the CA have the power to review and reverse an RTC judgment which is already final and
executory?
A: No more. The judgment which is already final cannot be changed by the CA. Meaning, the CA has no
jurisdiction to entertain the appeal in that case. So in effect, it is a jurisdictional challenge which can be
raised even in the CA even if not raised earlier in the RTC.
Third Ground: (c) FAILURE OF THE APPELLANT TO PAY THE DOCKET AND OTHER LAWFUL FEES AS
PROVIDED IN SECTION 5 OF RULE 40 AND SECTION 4 OF RULE 41;
Section 5 of Rule 40 is about filing of docket fees if you appeal from the MTC to the RTC. Section 4 of
Rule 41 refers to filing of docket fees when the appeal is from RTC to CA.
Q: When do you pay the docket fee ?
A: Within the 15-day period, you already pay it in the RTC clerk of court. Unlike before you pay it with the
CA later. That is why as I said, failure to pay the docket fee in the RTC is a ground for dismissal of the
appeal because of this.
Q: But how about failure to pay the appeal fee in the MTC prior to transmittal to the RTC? Is it a ground
for dismissal by the CA?
A: To my mind NO because why will the CA dismiss it when the appeal is in the RTC? Bakit ang CA mag-
dismiss, wala man ang kaso sa kanila? The CA has nothing to do with the appeal. It is supposed to be in
the RTC, bakit ang CA ang mag-dismiss? In other words, there is something wrong with this amendment.
(referring to Section 5 of Rule 40)
But if the appeal is from the RTC to the CA, you must you must pay the docket fees because it is a specific
ground for dismissal for the dismissal under Rule 50.
Fourth Ground: (d) UNAUTHORIZED ALTERATIONS, OMISSIONS OR ADDITIONS IN THE APPROVED
RECORD ON APPEAL AS PROVIDED IN SECTION 4 OF RULE 44;
Thats only when there is a record on appeal. When the record on appeal is approved, you have to
reproduce it and you are not allowed to make any alteration, revision or addition.
Fifth Ground: (e) FAILURE OF THE APPELLANT TO SERVE AND FILE THE REQUIRED NUMBER OF COPIES OF
HIS BRIEF OR MEMORANDUM WITHIN THE TIME PROVIDED BY THESE RULES;
Failure of the appellant to serve and file the required number of copies of his brief. So, failure to file the
appellants brief is a ground for dismissal of the appeal.
Q: Now, suppose it is the appellee who did not file any brief, what will happen ?
A: You do not dismiss the appeal but the case will be submitted for decision without appellees brief. The
CA will make a resolution that the case was submitted without the appellees brief.
Q: Does it mean to say that talo na yung appellee?
A: NO. There are many cases Ive seen where the appellee did not file any brief Talo man gihapon ang
appellant because anyway the appellants brief has no merit. But normally in cases na delikado, you
better file an appellees brief. You owe that to your client. Just imagine, lahat ng arguments dun hindi
sagutin. Thats very dangerous!
Sixth Ground: (f) ABSENCE OF SPECIFIC ASSIGNMENT OF ERRORS IN THE APPELLANTS BRIEF, OR OF PAGE
REFERENCES TO THE RECORD AS REQUIRED IN SECTION 13, PARAGRAPHS (A), (C), (D) AND (F) OF RULE
44;
Well, you may file an appellants brief, eh wala namang page references, wala namang assignment of
errors. My God! What kind of brief is that! (YC Bikini Briefs?) Very sloppy! You file a brief without telling
the CA kung anong mali and then you expect the CA to look for the errors. My golly! Do not expect the
CA to do that. Meron dapat citations e.g. See Exhibit A, See transcript Merong reference ba! like
kung anong page yan.
Now if you file a brief without footnotes, without citing the law, without citing the transcript, without
citing the exhibit, that would be dismissed. Thats what happened in the 1995 case of
DEL ROSARIO vs. COURT OF APPEALS
241 SCRA 553 [1995]
FACTS: The CA dismissed the case simply because the appellants brief was sloppily written no
reference to exhibit, no reference to page, no reference to anything. It was dismissed! The appellant
went to the SC pleading liberality.
HELD: Petitioners plea for liberality in applying these rules in preparing Appellants Brief does not
deserve any sympathy. Long ingrained in our jurisprudence is the rule that the right to appeal is a
statutory right and a party who seeks to avail of the right must faithfully comply with the rules.
Deviations from the rules cannot be tolerated. The rationale for this strict attitude is not difficult to
appreciate. These rules are designed to facilitate the orderly disposition of appealed cases. In an age
where courts are bedeviled by clogged dockets, these rules need to be followed by appellants with
greater fidelity. Their observance cannot be left to the whims and caprices of appellants.
Seventh Ground: (g) FAILURE OF THE APPELLANT TO TAKE THE NECESSARY STEPS FOR THE CORRECTION
OR COMPLETION OF THE RECORD WITHIN THE TIME LIMITED BY THE COURT IN ITS ORDER;
Sometimes yung record mo kulang-kulang ba. And the party may be directed to work for the completion.
If you fail to complete the record, your appeal will be dismissed.
Please connect this with two previous provisions talking about completion of the record in an appealed
case. Im referring to Rule 41, Section 10 and Rule 44, Sections 5 to 6 because these provisions talk also
of completion of record. (please refer to your codals)
Rule 41, Sec. 10. Duty of clerk of court of the lower court upon perfection of appeal. Within thirty (30)
days after perfection of all the appeals in accordance with the preceding section, it shall be the duty of
the clerk of court of the lower court:
(a) To verify the correctness of the original record or the record on appeal, as the case may be,
and to make a certification of its correctness;
(b) To verify the completeness of the records that will be transmitted to the appellate court;
(c) If found to be incomplete, to take such measures as may be required to complete the records,
availing of the authority that he or the court may exercise for this purpose; and
(d) To transmit the records to the appellate court.
If the efforts to complete the records fail, he shall indicate in his letter of transmittal the exhibits or
transcripts not included in the records being transmitted to the appellate court, the reasons for their non-
transmittal, and the steps taken or that could be taken to have them available.
The clerk of court shall furnish the parties with copies of his letter of transmittal of the records to the
appellate court.
Rule 44, Sec. 5. Completion of record. Where the record of the docketed case is incomplete, the clerk of
court of the Court of Appeals shall so inform said court and recommend to it measures necessary to
complete the record. It shall be the duty of said court to take appropriate action towards the completion
of the record within the shortest possible time.
Rule 44, Sec. 6. Dispensing with complete record. Where the completion of the record could not be
accomplished within a sufficient period allotted for said purpose due to insuperable or extremely difficult
causes, the court, on its own motion or on motion of any of the parties, may declare that the record and
its accompanying transcripts and exhibits so far available are sufficient to decide the issues raised in the
appeal, and shall issue an order explaining the reasons for such declaration.
Eight Ground: (h) FAILURE OF THE APPELLANT TO APPEAR AT THE PRELIMINARY CONFERENCE UNDER
RULE 48 OR TO COMPLY WITH ORDERS, CIRCULARS, OR DIRECTIVES OF
THE COURT WITHOUT JUSTIFIABLE CAUSE; AND
Thats a new ground failure to appear on the preliminary conference; failure to comply with orders,
circulars, directives of the court without justifiable cause. That is very broad. Thats a new one not found
in the old law.
Ninth Ground: (i) THE FACT THAT THE ORDER OR JUDGMENT APPEALED FROM IS NOT APPEALABLE.
The fact that the judgment or order appealed from is not appealable. Interlocutory! Q: What are the
judgments or orders which are not appealable?
A: Your reference is Rule 41, Section 1:
Rule 40, Section 1. Subject of appeal.
xxxxxx
NO APPEAL may be taken from:
(a) An order denying a motion for new trial or 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 execution;
(g) A judgment or final order for or against one or more of several parties or in separate claims,
counterclaims, cross-claims and third-party complaints, while the main case is pending, unless
the court allows an appeal therefrom; and
(h) An order dismissing an action without prejudice.
xxxxxx
So, if you appeal on any one of them, the other party can file a motion to dismiss on the ground that it is
not appealable.
Now, there is one ground for dismissal under the old rule na nawala naman. Yun bang failure to
prosecute the appeal, when the records are not elevated to the CA the appeal can be dismissed.
Meaning, you have to follow up the clerk of court. Nawala yun eh. That ground seems to have been
abandoned. I think the attitude there is let us not punish the appellant for the fault of the clerk of court.
Q: Is a default judgment appealable?
A: YES. It is appealable because it is a final judgment and not merely interlocutory. Although under the
64 Rules, there is a direct provision that a default judgment is appealable. Now, that provision has
disappeared. But even if it is not mentioned now, default judgment is now covered by Rule 41 on final
judgments.
Sec. 2. Dismissal of improper appeal to the Court of Appeals. An appeal under Rule 41 taken from the
Regional Trial Court to the Court of Appeals raising only questions of law shall be dismissed, issues purely
of law not being reviewable by said court. Similarly, an appeal by notice of appeal instead of by petition
for review from the appellate judgment of a Regional Trial Court shall be dismissed. (n)
An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court
but shall be dismissed outright. (3a)
Meaning, you must appeal to the right court and you must use the proper mode of appeal. This
incorporates in the Rules the resolutions of the SC in the 1990 En Banc Resolution in MORILLO vs.
CONSUL (not found in the SCRA) and also incorporates the provisions of Circular 2-90 dated March 9.
1990.
Prior to this under the 1964 Rules, the rule is if there is wrong appeal like pure questions of law to the
CA, the CA should not dismiss the appeal but elevate it to the SC. That rule has long been abandoned. It
was abandoned in the case of MORILLO and in Circular 2-90. Now, it is here. Kung question of law you
better appeal to the SC. If you appeal to the CA, the CA will dismiss it.
MORILLO vs. CONSUL
HELD: There is no longer any justification for allowing transfers of erroneous appeals from one court to
the other, much less for tolerating continued ignorance of the law on appeals.
Take note that this refers to appeal under Rule 41 from RTC. This does not apply when the appeal to the
CA is from a quasi-judicial body. Appeal from a quasi-judicial body on a pure question of law should be to
the CA, never to the SC. You compare this with Rule 42, Section 2:
Rule 42, Section 2. Form and contents.- The petition shall be filed in seven
(7) legible copies, with the original copy intended for the court being indicated as such by the petitioner,
and shall:
xxx
(c) set forth concisely a statement of the matters involved, the issues
raised, the specification of errors of fact or law, or both, allegedly
committed by the RTC and the reasons or arguments relied upon for the allowance of the appeal.
xxx
Errors of fact or law, or both. This refers to Petition for Review from the RTC to the CA. Q: What
happens if an appeal is already taken to the CA?
A: It shall be dismissed outright. Under the 64 Rules, the CA will pass it on to the SC. But the liberal
policy has now been changed.
Aaron [Cruz] asked a question (during the 1998 Review Class)
Deans ANSWER: Yes, there is a decided case. In the meantime, you also lost the right to correct the
error. Lumampas na eh!. Kaya it would be dismissed. Hindi naman sinasabi na the appellant will be
directed to appeal properly. In other words, it will be dismissed. Meaning, that is the end. That is the
penalty for erroneous appeal. Kaya nga according to MORILLO which became the basis of this, there is no
longer any justification for allowing transfers of erroneous appeals from one court to the other, much
less for tolerating continued ignorance of the law on appeals. Kaya nga before, very lenient pag mali
under the 1964 Rules. But now in Section 2 of Rule 50, wala na i-dismiss na.
WITHDRAWAL OF APPEAL
Sec. 3. Withdrawal of appeal. An appeal may be withdrawn as of right at any time before the filing of
the appellees brief. Thereafter, the withdrawal may be allowed in the discretion of the court. (4a)
Q: Now, can you withdraw the appeal in the RTC level?
A: YES, prior to the transmittal of the original record or the record on appeal, the court may allow
withdrawal of the appeal. (Section 9, Rule 41)
Q: Where will you file the motion to withdraw?
A: In the RTC if the records are still in the RTC. If the records of appeal is already in the CA, you
file the motion to the CA at anytime before the filing of the appellees brief you can withdraw it as a
matter of right. When there is already an appellees brief, it can be allowed in the discretion of the Court
(Section 3). That is similar to the Rule in Rule 17, Section 1:
Rule 17, Section 1. Dismissal upon notice by plaintiff. A complaint may be dismissed by the plaintiff by
filing a notice of dismissal at any time before service of the answer or of a motion for summary
judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless
otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as an
adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an
action based on or including the same claim. (1a)
Q: Can you withdraw a complaint if you file a complaint in the lower court?
A: YES, as a matter of right for as long as there is still no answer filed. But when the defendant has filed
an answer, dismissal of the complaint is already discretionary upon the court. So it is the same!
-oOo-
Rule 51
JUDGMENT
You already know that the Court of Appeals operates by division. There are more than 50 justices there.
Every division is composed of 3. The 3 must be unanimous. In case there is no unanimity, there should be
a special division of 5 to hear the case all over again and the majority rules. Although from what I
gathered sa CA, this is a farce . Actually, they do not discuss it, they will just give it to the ponente. Tapos
sabihin mo concur. Bihira lang talaga ang naga-participate unless siguro malakas ka sa isang justice and
then mag-dissent para magkaroon ng division of 5. That is not really the intention of the of the law.
Lets go back to what we were saying before under Rule 36. Every decision or resolution of a court shall
clearly and distinctly state the facts and the law on which it is based. If a decision does not state its basis,
it is a SIN PERJUICIO judgment. That is not a valid judgment. The requirement applies to all courts
whether MTC, RTC, or CA. This is emphasized again in Section 5:
Sec. 5. Form of decision. - Every decision or final resolution of the court in appealed cases shall clearly
and distinctly state the findings of fact and the conclusions of law on which it is based, which may be
contained in the decision or final resolution itself, or adopted from those set forth in the decision,
order, or resolution appealed from. (Sec. 40, BP Blg. 129) (n)
The CA must state its findings and conclusions or according to Section 5 it may simply adopt the findings
and conclusions set forth in the decision or order appealed from. If the CA is going to affirm the
judgment of the RTC, it may simply copy or adopt the findings and conclusions of the RTC. It is called a
MEMORANDUM DECISION.
If you will look at Section 5, it states that the provision is taken from Section 40, BP 129. It is taken from
the Judiciary Law.
Is this provision not an invitation to laziness on the part of the CA justices? If the CA will affirm the
judgment of the RTC, the work is easier because it may simply adopt on its own the findings of the RTC. If
the CA would reverse the decision, the job would be more difficult, because it would write an entirely
new decision to rebut or dispute the findings of the RTC. This is why when this provision came out in the
Judiciary Law, there was a sort of fear that this might be the cause of laziness.
The SC, well aware of that danger, clarifies in one case that memorandum decisions are not allowed in all
cases. The CA is only allowed to render a memorandum decision in simple cases especially when the
appeal is dilatory and there is nothing wrong in the appealed decision. But if the case is complicated or
complex, even if CA would affirm the decision, it cannot simply copy the work of the RTC. It should write
its own decision. The limitation or guidelines was issued by the SC precisely to avoid the danger of
laziness on the part of CA justices. The SC said in the case of
FRANCISCO vs. PERMSKUL 173 SCRA 324
HELD: The Court finds it necessary to emphasize that the memorandum decision should be sparingly
used lest it become an addictive excuse for judicial sloth. It is an additional condition for its validity that
this kind of decision may be resorted to only in cases where the facts are in the main accepted by both
parties or easily determinable by the judge and there are no doctrinal complications involved that
will require an extended discussion of the laws involved. The memorandum decision may be employed
in simple litigations only, such as ordinary collection cases, where the appeal is obviously groundless and
deserves no more than the time needed to dismiss it.
Q: When is a case deemed submitted for judgment? A: Section 1 of Rule 51:
Sec. 1. When case deemed submitted for judgment. - A case shall be deemed submitted for judgment:
A. In Ordinary appeals. -
1) Where no hearing on the merits of the main case is held, upon the filing of the
last pleading, brief, or memorandum required by the Rules or by the court itself,
or the expiration of the period for its filing.
2) Where such a hearing is held, upon its termination or upon the filing of the last
pleading or memorandum as may be required or permitted to be filed by the
court, or the expiration of the period for its filing.
B. In original actions and petitions for review. -
1) Where no comment is filed, upon the expiration of the period to comment.
2) Where no hearing is held, upon the filing of the last pleading required or
permitted to be filed by the court, or the expiration of the period for its filing.
3) Where a hearing on the merits of the main case is held, upon its termination or
upon the filing of the last pleading or memorandum as may be required or
permitted to be filed by the court, or the expiration of the period for its filing. (n)
Sec. 2. By whom rendered. - The judgment shall be rendered by the members of the court who
participated in the deliberation on the merits of the case before its assignment to a member for the
writing of the decision. (n)
Sec. 3. Quorum and voting in the court. - The participation of all three Justices of a division shall be
necessary at the deliberation and the unanimous vote of the three Justices shall be required for the
pronouncement of a judgment or final resolution. If the three Justices do not reach a unanimous vote,
the clerk shall enter the votes of the dissenting Justices in the record. Thereafter, the Chairman of the
division shall refer the case, together with the minutes of the deliberation, to the Presiding Justice who
shall designate two Justices chosen by raffle from among all the other members of the court to sit
temporarily with them, forming a special division of five Justices. The participation of all the five
members of the special division shall be necessary for the deliberation required in section
2 of this Rule and the concurrence of a majority of such division shall be required for the
pronouncement of a judgment or final resolution. (2a)
Sec. 4. Disposition of a case. - The Court of Appeals, in the exercise of its appellate jurisdiction, may
affirm, reverse, or modify the judgment or final order appealed from, and may direct a new trial or
further proceedings to be had. (3a)
Sec. 5. Form of decision. - Every decision or final resolution of the court in appealed cases shall clearly
and distinctly state the findings of fact and the conclusions of law on which it is based, which may be
contained in the decision or final resolution itself, or adopted from those set forth in the decision,
order, or resolution appealed from. (Sec. 40, BP Blg. 129) (n)
Sec. 6. Harmless error. - No error in either the admission or the exclusion of evidence and no error or
defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is
ground for granting a new trial or for setting aside, modifying, or otherwise disturbing a judgment or
order, unless refusal to take such action appears to the court inconsistent with substantial justice. The
court at every stage of the proceeding must disregard any error or defect which does not affect the
substantial rights of the parties. (5a)
Sec. 7. Judgment where there are several parties. - In all action or proceedings, an appealed judgment
may be affirmed as to some of the appellants, and reversed as to others, and the case shall thereafter
be proceeded with, so far as necessary, as if separate actions had been begun and prosecuted; and
execution of the judgment of affirmance may be had accordingly, and costs may be adjudged in such
cases, as the court shall deem proper. (6)
Lets go to Section 7.
Q: When there are 2 or more plaintiffs or 2 or more defendants in the cases appealed, is it possible that
the CA will render decision for one plaintiff but against the other plaintiffs, or in favor of one defendant
and against the other?
A: YES. It is possible that one plaintiff will win, other plaintiffs will lose especially when the facts are not
identical. This is also true in cases of 2 or more defendants when each one interposes separate defenses.
The defense of one may be true, others may be false. It is possible that one defendant will win and other
defendants will lose.
Q: Suppose there are 2 defendants in a case. All of them lost. Defendant A appealed. Defendant B did not
appeal. On appeal, defendant A won. Will the appeal of A benefit B who did not appeal?
A: As a GENERAL RULE: No, the appeal would only benefit the appealing defendant. The judgment
becomes final to those who did not appeal even if it is wrong.
EXCEPTION : When the LIABILITY of the 2 parties are so INTERTWINED that it would be absurd that one
of them will win and the other will lose. Thus, the appeal by the appealing party benefits his co-party
who did not appeal. This principle was laid down in some cases. Among them is the case of
UNIVERSAL MOTORS CORP. vs. COURT OF APPEALS 205 SCRA 428 [1992]
HELD: It is erroneous to rule that the decision of the trial court could be reversed as to the appealing
private respondent and continue in force against the other private respondents. The latter could not
remain bound after the former had been released; although the other private respondents had not
joined in the appeal, the decision rendered by the respondent court inured to their benefit. When the
obligation of the other solidary debtors is so dependent on that of their co-solidary debtor, the release of
the one who appealed, provided it be not on grounds personal to such appealing private respondent,
operates as well as to the others who did not appeal. It is for this reason, that a decision or judgment in
favor of the private respondent who appealed can be invoked as res judicata by the other private
respondents. So, their liabilities are so intertwined.
EXAMPLE : Mayakin Skywalker and Darth Mort borrowed money from Qui Gon Jet. They bound
themselves jointly and severally to pay the loan. There is only one promissory note, one loan and both
Mayakin and Darth Mort signed. Their common defense is payment. But the trial court ruled in favor of
the plaintiff (Qui Gon Jet) and ordered Mayakin and Darth Mort to pay. Mayakin appealed but Darth
Mort did not. On appeal, CA decided in favor of Mayakin saying, Wala nang utang si Mayakin ba dahil
bayad na! How about Darth Mort? Darth Mort is also released.
This principle is reiterated in the case of
CAYABA vs. COURT OF APPEALS 219 SCRA 571 [1993]
HELD: A reversal of a judgment on appeal is binding on the parties to the suit but does not inure to the
benefit of parties who did not join in the appeal (as a general rule). The recognized exception is when
their rights and liabilities and those of the parties appealing are so interwoven and dependent so as to be
inseparable, in which case a reversal as to one operates as a reversal to all.
The rule is so similar in Criminal Procedure. When the appeal of one accused benefits his co- accused
who did not appeal especially when the defense of such appealing accused is applicable to him.
Sec. 8. Questions that may be decided. - No error which does not affect the jurisdiction over the
subject matter or the validity of the judgment appealed from or the proceedings therein will be
considered unless stated in the assignment of errors, or closely related to or dependent on an assigned
error and properly argued in the brief, save as the court may pass upon plain errors and clerical errors.
(7a)
Q: Can the CA decide an issue which was not raised by the parties? Can the CA correct the error which
was never assigned by the other party?
A: GENERAL RULE : Only errors which are stated in the appellants brief should be considered. If the error
is not assigned, that cannot be corrected. This is just an extension of the rule that objections and
defenses not pleaded are deemed waived.
EXCEPTION : The following matters can be corrected or the court can take cognizance even if the parties
did not raise them:
1.) Jurisdiction over the subject matter of the case; 2.) Plain errors;
3.) Clerical Errors.
4.) Errors which are not assigned but closely related to or dependent on an assigned error.
The fourth exception is taken from decided cases. According to the SC, even if you will not mention a
mistake committed by the trial court if such mistake is related to the mistake mentioned, it can be
corrected. In the case of
ABEJARON vs. COURT OF APPEALS 208 SCRA 899 [1992]
HELD: An unassigned error closely related to the error properly assigned, or upon which the
determination of the question raised by the error properly assigned is dependent, will be considered by
the appellate court notwithstanding the failure to assign it as error.
While an assignment of error which is required by law or rule of court has been held essential to
appellate review, and only those assigned will be considered, there are a number of cases which appear
to accord to the appellate court a broad discretionary power to waive this lack of proper assignment of
errors and consider errors not assigned.
The same principle was reiterated in the 1995 case of
CASA FILIPINO ROYALTY CORP. vs. OFFICE OF THE PRESIDENT 241 SCRA 165
HELD: While the rule is that no error which does not affect jurisdiction will be considered unless stated
in the assignment or errors, the trend in modern-day procedure is to accord the courts broad
discretionary power such that the appellate court may consider matters bearing on the issues submitted
for resolution which the parties failed to raise or which the lower court ignored.
Let us look at the second exception plain errors.
What is a plain error ? Because a plain error can be corrected by the appellate court even if not asked by
the parties, plain man? If you will ask me, any plain error is yung talagang obvious mistake one which is
apparent to the eye.
Now, suppose the trial court made an error in applying a law or in interpreting a law. But it was not
attacked by the losing party and it was not corrected on appeal. Is it a plain error? It would seem no and
yet that is what happened in the 1993 case of SANTOS vs. CA (221 SCRA 42).
But before we discuss the case of Santos, we have to know the basics. There are two principles here to
remember.
The appellant is the one who appeals and it is he who will file the appellants brief and then he will make
the assignment of errors. The appellee will refute the appellants assignment of errors which were
committed by the trial court.
Q: Can the appellee impute errors or make assignment of errors?
A: The general rule is NO. If you are an appellee, you are not appealing and thus you are accepting the
decision. So if you think the decision is in your favor pero mali pa rin, you must also appeal.
So an appellee is not allowed to assign errors committed by the trial court except if the purpose of the
assignment of errors is to sustain the decision on another ground. Because sometimes you agree with
the decision but you do not agree with the reason. The decision is correct but this should be the reason.
Because actually, you are defending the decision on another ground.
Meaning the court made a mistake in arriving at the decision but the decision is correct. Yan, puwede
yan. But if you want the decision to be changed, then you must also appeal.
Now, let us go to the case of SANTOS which involves the law on lease, particularly the interpretation and
the application of Article 1678 Civil Code. Under the law on lease, suppose I will rent to you my land and
you built a building there and there is no agreement as to who will own the building after the
termination of the lease. Suppose there is no stipulation, who will own the building?
According to the Civil Code, the owner of the land has the option to acquire the building by paying one
half of its value. Pero, if I do not want to appropriate the building, then you have the right to remove the
building provided you will not damage the land. So the option to pay you belongs to the owner of the
land. The lessee cannot compel the owner of the land to pay.
Let us go now to the case of Santos. This is a very queer case.
SANTOS vs. COURT OF APPEALS
221 SCRA 42
FACTS: Artemio Santos et al are lessees of a piece of land. They have not paid the rentals for 28 years.
The lessor filed a case of unlawful detainer against all of them before the Metropolitan Trial Court of
Pasig. The trial court rendered judgment against Santos et al. So they were ordered ejected.
Now, these people were not satisfied. They still appealed to the RTC. The RTC affirmed the judgment
that they should be ejected but modified it by ordering the lessor to reimburse the lessees for the latters
improvements on the leased property. So, affirmed, but bayaran mo iyong mga bahay ng mga tao. (DEAN
I: To my mind, that portion of the decision is wrong. You cannot order the lessor to reimburse.)
But despite that, Santos et al were not satisfied. They still appealed to the CA. The lessor did not appeal
so obviously, the lessor is willing to pay. Although he has no obligation to pay the improvements, pero
sige na lang para matapos na! He did not appeal.
Now, the CA affirmed again the ejectment. So tatlo na. There were three courts where the occupants
lost. But the CA deleted the portion of the RTC decision ordering reimbursement of the improvements. It
was really wrong. Walang reimbursement diyan.
So this time, Santos et al appealed to the SC. And they say that the portion of the
decision deleting our right to reimbursements is wrong because the owner of the land is not questioning
it, he is not appealing so why should the CA delete it? So, meaning payag iyong owner. Therefore that
portion of the decision of the CA where we are no longer entitled to reimbursement is erroneous. The CA
has no power to delete that portion of the RTC decision because there was no appeal from the
landowner.
ISSUE: Is the decision of the CA correct?
HELD: YES. The CA is correct. It is true that the rule is well-settled that a party cannot impugn the
correctness of a Judgment not appealed from by him, and while he may make counter-assignment of
errors, he can do so only to sustain the judgment on other grounds but not to seek modification or
reversal thereof for in such a case he must appeal. A party who does not appeal from the decision may
not obtain any affirmative relief from the appellate court other than what he has obtained from the
lower court, if any, whose decision is brought up on appeal. However, the Rules of Court and
jurisprudence authorize a tribunal to consider errors, although unassigned, if they involve (1) errors
affecting the lower court's Jurisdiction over the subject matter, (2) plain errors not specified, and (3)
clerical errors.
Under Article 1678, it is the lessor who has the option to pay for one-half of the value of the
improvements which the lessee has made in good faith. The lessee cannot compel the lessor to
appropriate and reimburse. Therefore, the decision of the RTC ordering the lessor is actually erroneous.
Hence, the award of reimbursement for improvements by the trial court in favor of
petitioners amounts to a plain error which may be rectified on appeal although not specified in the
appellees brief.
But the trouble is, the landowner did not appeal. If we follow the ruling, then lahat ng mali ng trial court
ay plain error na. That is what the SC said. Bakit man naging plain error ito when actually it will not
qualify as plain error ? If we will follow that line of reasoning, every mistake committed by a trial court
can be corrected being a plain error.
To my mind, merong equity ito, eh. Analyze the case. You are occupants for 28 years and you did not
pay. Ayaw mo lumayas, bayaran ka pa? There is something wrong there already. I think that is the factor
eh.
So the SC said that it is too unfair for the landowner still to be required to pay. Imagine they stayed there
for 28 years, hindi pa nagbayad. I think those are the factors. So in other words, equity bah! So the Court
has to look for a reason to justify. Ang nakita is plain error when you do not know how to apply the law,
then it is plain error. But actually, that should be an assigned error. It is a very interesting case.
Sec. 9. Promulgation and notice of judgment. - After the judgment of final resolution and dissenting or
separate opinions, if any, are signed by the Justices taking part, they shall be delivered for filing to the
clerk who shall indicate thereon the date of promulgation and cause true copies thereof to be served
upon the parties or their counsel. (n)
Sec. 10. Entry of judgments and final resolutions. - If no appeal or motion for new trial or
reconsideration is filed within the time provided in these Rules, the judgment or final resolution shall
forthwith be entered by the clerk in the book of entries of judgments. The date when the judgment or
final resolution becomes executory shall be deemed as the date of its entry. The record shall contain
the dispositive part of the judgment or final resolution and shall be signed by the clerk, with a
certificate that such judgment or final resolution has become final and executory. (2a, R36)
Sec. 11. Execution of judgment. - Except where the judgment or final order or resolution, or a portion
thereof, is ordered to be immediately executory, the motion for its execution may only be filed in the
proper court after its entry.
In original actions in the Court of Appeals, its writ of execution shall be accompanied by a certified true
copy of the entry of judgment or final resolution and addressed to any appropriate officer for its
enforcement.
In appealed cases, where the motion for execution pending appeal is filed in the Court of Appeals at a
time that it is in possession of the original record or the record on appeal, the resolution granting such
motion shall be transmitted to the lower court from which the case originated, together with a
certified true copy of the judgment or final order to be executed, with a directive for such court of
origin to issue the proper writ for its enforcement. (n)
Q: Now, how do you execute a judgment of the CA?
A: Under Section 11, it depends if it is an original action or an appealed case.
For an appealed case, in case of execution pending appeal, take note that if the records of the case are
already elevated to the CA, motion for execution pending appeal should already be filed there. And if the
CA grants the motion to execute pending appeal, it will follow the third paragraph there. It will issue the
order and direct the RTC to enforce the judgment.
Now, you should correlate this with Rule 39 Sections 1 and 2:
Rule 39, Section 1. Execution upon judgments or final orders. - Execution shall issue as a matter of right,
on motion , upon a judgment or order that disposed of the action or proceeding upon the expiration of
the period-to appeal therefrom if no appeal has been duly perfected.
If the appeal has been duly perfected and finally resolved, the execution may forthwith be applied for in
the court or origin, on motion of the judgment obligee, submitting therewith certified true copies of the
judgment or judgments or final order or orders sought to be enforced and of the entry thereof, with
notice to the adverse party.
The appellate court may, on motion in the same case, when the interest of justice so requires, direct the
court of origin to issue the writ of execution.
Section 2. Discretionary execution.
A. Execution of a judgment or final order pending appeal.- On motion of the prevailing party
with notice to the adverse party filed in the trial court while it has jurisdiction over the case and is in
possession of either the original record or the record on appeal, as the case may be, at the time of the
filing of such motion, said court may, in its discretion, order execution of a judgment or final order even
before the expiration of the period to appeal.
After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the
appellate court.
Discretionary execution may only issue upon good reasons to be stated in a special order after due
hearing.
B. Execution of several, separate or partial judgments.- A several, separate or partial judgment
may be executed under the same terms and conditions as execution of a judgment or final order pending
appeal.
-oOo-
Rule 52
MOTION FOR RECONSIDERATION
Sec. 1. Period for filing. - A party may file a motion for reconsideration of a judgment or final
resolution within fifteen (15) days from notice thereof, with proof of service on the adverse party. (n)
Q: Can a party file a motion for reconsideration of a CA decision?
A: YES. That is very obvious. (Section 1)
Sec. 2. Second motion for reconsideration. - No second motion for reconsideration of a judgment of
final resolution by the same party shall be entertained. (n)
Q: Can you file more than one motion for reconsideration?
A: NO. No second motion for reconsideration of a judgment or final resolution by the same party shall be
entertained. (Section 2) There is no such thing as second motion for reconsideration.
Section 2 of Rule 52 is also in accord with Section 11 of the Judiciary law. Section 11 of the Judiciary law
governs how may times you can file a motion for reconsideration in the CA.
BP 129, Section 11. Quorum -
xxxx A motion for reconsideration of its decision or final resolution shall be resolved by the Court within
ninety (90) days from the time it is submitted for resolution and no second motion for reconsideration
from the same party shall be entertained.
Under par. (3), the CA has 90 days from the time it is submitted for the resolution to rule on a motion for
reconsideration.
Sec. 3. Resolution of motion. - In the Court of Appeals, a motion for reconsideration shall be resolved
within ninety (90) days from the date when the court declares it submitted for resolution. (n)
The CA is given only 90 days to resolve a motion for reconsideration.
Sec. 4. Stay of execution. - The pendency of a motion for reconsideration filed on time and by the
proper party shall stay the execution of the judgment or final resolution sought to be reconsidered
unless the court, for good reasons, shall otherwise direct. (n)
Q: What happens when a judgment of the CA is the object of a motion for reconsideration? What
happens to the execution?
A: Stayed it is not yet final unless the court for good reasons shall otherwise direct like when there is a
good ground to execute pending appeal.
-oOo-
Rule 53
NEW TRIAL
Q: What is the ground for new trial in CA?
A: The ground for new trial is newly discovered evidence. (Section 1)
Sec. 1. Period for filing; ground. - At any time after the appeal from the lower court has been perfected
and before the Court of Appeals loses jurisdiction over the case, a party may file a motion for a new
trial on the ground of newly discovered evidence which could not have been discovered prior to the
trial in the court below by the exercise of due diligence and which is of such a character as would
probably change the result. The motion shall be accompanied by affidavits showing the facts
constituting the grounds therefor and the newly discovered evidence. (1a)
The ground is newly discovered evidence similar to the second ground for new trial in the RTC (FAME).
Fraud, accident, mistake hindi kasali. Only newly discovered evidence is the ground under Rule 53.
Q: Suppose the case is before the SC, can a party file a motion for new trial on the ground of newly
discovered evidence before the SC under Rule 53 in a civil case?
A: NO. The SC said in the case of
NAVARRA vs. COURT OF APPEALS 204 SCRA 850
HELD: The Rules of Court allows only two (2) occasions where a party may file a motion for new trial on
the ground of newly discovered evidence. That motion may be filed only with the trial court under Rule
37 or with the CA under Rule 53 BUT NEVER with the SC.
Time and again, We have stressed that the SC is not a trier of facts. It is not a function of the SC to
analyze or weigh all over again the evidence already considered in the proceedings below. Its jurisdiction
is limited to reviewing only errors of law that may have been committed by the lower courts.
If there would be a motion for new trial with the SC and it would be granted, you are converting the SC
into a trial court.
Sec. 2. Hearing and order. - The Court of Appeals shall consider the new evidence together with that
adduced at the trial below, and may grant or refuse a new trial, or may make such order, with notice
to both parties, as to the taking of further testimony, either orally in court, or by depositions, or
render such other judgment as ought to be rendered upon such terms as it may deem just. (2a)
Sec. 3. Resolution of motion. - In the Court of Appeals, a motion for new trial shall be resolved within
ninety (90) days from the date when the court declares it submitted for resolution. (n)
Sec. 4. Procedure in new trial. - Unless the court otherwise directs, the procedure in the new trial shall
be the same as that granted by a Regional Trial Court. (3a)
Q: If the motion for new trial is granted, can the CA conduct the new trial itself acting as a trial court?
A: YES, under section 4 and under the Judiciary Law particularly section 9, the CA can receive evidence
and act as a trial court. That is why it is a powerful court.
BP 129, Section 9, last paragraph:
The Court of Appeals shall have the power to try cases and conduct hearings, receive evidence and
perform any and all acts necessary to resolve factual issues raised in cases falling within its original and
appellate jurisdiction, including the power to grant and conduct new trials or further proceedings.
-oOo-
Rule 54
INTERNAL BUSINESS
Section 1. Distribution of cases among divisions. - All the cases of the Court of Appeals shall be allotted
among the different divisions thereof for hearing and decision. The Court of Appeals, sitting en banc,
shall make proper orders or rules to govern the allotment of cases among the different divisions, the
constitution of such divisions, the regular rotation of Justices among then the filing of vacancies
occurring therein, and other matters relating to the business of the court; and such rules shall continue
in force until repealed or altered by it or by the Supreme Court.
Section 2. Quorum of the court. A majority of the actual members of the court shall constitute a
quorum for its sessions en banc. Three members shall constitute a quorum for the sessions of a
division. The affirmative votes of the majority of the members present shall be necessary to pass a
resolution of the court en banc. The affirmative votes of three members of a division shall be
necessary for the pronouncement of a judgment or final resolution, which shall be reached in
consultation before the writing of the opinion by any member of the division.
(just read)
-oOo-
1997 Rules on Civil Procedure
2001 Edition
Rule 55 Publication of Judgments And Final Resolutions
Rule 55 PUBLICATION OF JUDGMENTS AND FINAL RESOLUTIONS
The decisions of the CA must be published. Kung wala sa Philippine Reports, nasa Court of Appeals
Reports. They call that CARA (Court of Appeals Reports Annotated).
Section 1. Publication. - The judgments and final resolutions of the court shall be published in the
Official Gazette and in the Reports officially authorized by the court in the language in which they have
been originally written, together with the syllabi therefore prepared by the reporter in consultation
with the writers thereof. Memoranda of all other judgments and final resolutions not so published
shall be made by the reporter and published in the Official Gazette and the authorized reports.
Section 2. Preparation of opinions for publication. - The reporter shall prepare and publish with each
reported judgment and final resolution a concise synopsis of the facts necessary for a clear
understanding of the case, the names of counsel, the material and controverted points involved, the
authorities cited therein, and a syllabus which shall be confined to points of law.
Section 3. General make-up of volumes. - The published decisions and final resolutions of the Supreme
Court shall be called "Philippine Reports," while those of the Court of Appeals shall known as the
"Court of Appeals Reports." Each volume thereof shall contain a table of the cases reported and the
cases cited in the opinions, with a complete alphabetical index of the subject matters of the volume. It
shall consist of not less than seven hundred pages printed upon good paper, well bound and hear disciplinary proceedings against members of the judiciary, disbarment or removal of judges. SC man
numbered consecutively in the order of the volumes published. yan ba! And they are governed specially for disbarment by Rule 139-B of the Rules of Court.

-oOo-
SEC. 2. Rules applicable. The procedure in original cases for certiorari, prohibition, mandamus, quo
Powers and Functions of the Supreme Court: warranto and habeas corpus shall be in accordance with the applicable provisions of the Constitution,
1.) Adjudication laws, and Rules 46,48, 49, 51, 52 and this Rule, subject to the following provisions:
2.) Discipline a.) All references in said Rules to the Court of Appeals shall be understood to also apply to the
3.) Rule-Making Supreme Court;
b.) The portions of said Rules dealing strictly with and specifically intended for appealed cases in the
Court of Appeals shall not be applicable; and
c.) Eighteen (18) clearly legible copies of the petition shall be filed,
together with proof of service on all adverse parties.
The proceedings for disciplinary action against members of the judiciary shall be governed by the laws
and Rules prescribed therefor, and those against attorneys by Rule 139-B, as amended. (n)

a.) All references in said Rules to the Court of Appeals shall be understood to also apply to the Supreme
Court

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

b.) The portions of said Rules dealing strictly with and specifically intended for appealed cases in the
Court of Appeals shall not be applicable; and

-oOo-
This is more of legal and judicial ethics.
Rule 56
Q: When you file a petition before the SC for certiorari, prohibition or mandamus, how many copies?
PROCEDURE IN THE SUPREME COURT A: First filing 18 copies minimum. Why? Because you do not know whether it will be considered as an
en banc case or a division case. The SC operates in 2 ways. It decides cases either en banc or by division.
This is an entirely new provision. In the SC, there are 2 types of cases ORIGINAL and APPEALED. The SC 18 copies is required because 15 na ang justices, only three (3) for the clerk.
has both the original and appellate jurisdiction.

What are the original cases cognizable by the SC?
A.) ORIGINAL CASES
SECTION 1. Original cases cognizable. Only petitions for certiorari, prohibition, mandamus, quo
warranto, habeas corpus, disciplinary proceedings against members of the judiciary and attorneys, and
cases affecting ambassadors, other public ministers and consuls may be filed originally in the Supreme
Court. (n)
You know them no? Certiorari, prohibition, mandamus, quo warranto, habeas corpus, cases affecting
ambassadors other public ministers and consuls nasa Constitution din yan. This is only a repetition of
Article VIII, Section 5 (1) of the Constitution. Aside from that, the Rules of Court give the SC authority to
Q: How about subsequent pleadings? How many copies?
A: Depende. Kung en banc, all subsequent pleadings, still 18 copies. Kapag division case, 9 na lang. Now,
there are three divisions in the SC the first, second and third divisions. And every division is composed
of five (5) members.
The SC meets en banc twice a week Tuesday and Thursday unless they have changed it. It is called an
en banc session. Cases are raffled for assignment by division. Monday and Wednesday, hiwa-hiwalay sila
the 5 justices who belong to the same division meet together and discuss cases which are raffled to
that division. Friday is a NO SESSION but a working day. That is when they study, prepare their decisions
and resolutions. That is why we can also predict when will the result of the Bar be released because that
is an en banc session. Only the SC en banc can order the release of the results of the Bar Exam. They
have to pass a resolution.
B. APPEALED CASES
SEC. 3. Mode of appeal. An appeal to the Supreme Court may be taken only by a petition for review
on certiorari, except in criminal cases where the penalty imposed is death, reclusion perpetua or life
imprisonment. (n)
There is only one way of appeal to the SC. The only mode of appeal recognized is Petition for Review by
Certiorari under Rule 45, except in criminal cases when the penalty imposed by the RTC is death penalty,
reclusion perpatua or life imprisonment where only ordinary appeal (under Rule 41) is required. Outside
of that, the only mode of appeal to the SC is Petition for Review by Certiorari.
Please connect this with Rule 45, Section 9:
Rule 45, Sec. 9. Rule applicable to both civil and criminal cases.- The mode of appeal prescribed in this
rule shall be applicable to both civil and criminal cases except in criminal cases where the penalty
imposed is death, reclusion; perpetua or life imprisonment.
Rule 56, Sec. 4. Procedure.- The appeal shall be governed by and disposed of in accordance with the
applicable provisions of the Constitution, laws, Rules 45, 48, sections l,2, and 5 to 11 of Rule 51, 52 and
this rule.
Q: What are the grounds for dismissal of an appeal before the SC?
A: Section 5:
Section 5. Grounds for dismissal of appeal.- The appeal may be dismissed
motu propio or on motion of the respondent on the following grounds:
a. Failure to take the appeal within the reglementary period;
b. Lack of merit in the petition;
c. Failure to pay the requisite docket fee and other lawful fees or to make a deposit for costs;
d. Failure to comply with the requirements regarding [proof of service and contents of and the
documents which should accompany the petition;
e. Failure to comply with any circular, directive or order of the Supreme Court without
justifiable cause;
f. Error in the choice of mode of appeal; and
g. The fact that the case is not appealable to the Supreme Court.
Connect Rule 56, Section 5 with Rule 45, Section 5. The grounds are identical, to wit:
Rule 45, Sec. 5. Dismissal or denial of petition. The failure of the petitioner to comply with any of the
foregoing requirement regarding the payment of the docket and other lawful fees, deposit for costs,
proof of service of the petition, and the contents of and the documents which should accompany the
petition shall be sufficient ground for the dismissal thereof.
The Supreme Court may on its own initiative deny the petition on the ground that the appeal is without
merit, or is prosecuted manifestly for delay or that the questions raised therein are too unsubstantial to
require consideration.
Sec. 6. Disposition of improper appeal Except as provided in section 3, Rule 122 regarding appeals in
criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment, an appeal
taken to the Supreme Court by notice of appeal; shall be dismissed.
An appeal by certiorari taken to the Supreme court from the Regional Trial Court submitting issues of
fact may be referred to the Court of Appeals for decision or appropriate action. The determination of
the Supreme Court on whether or not the issues of fact are involved shall be final.
This is already discussed in Rule 50, Section 2. A wrong appeal is a ground for a dismissal of such appeal.
Q: If the appeal is on pure question of law (it should be before the SC) and by mistake the party appealed
to the CA, what will happen?
A: The appeal will be dismissed under Rule 50. The CA will not endorse the case to the SC.
Q: Suppose you will appeal by certiorari to the SC under Rule 45. Tapos, halo pala hindi naman pala
question of law lahat may kasamang question of fact. What will happen now in the appeal?
A: Under Rule 56, Section 6, the SC may or may not dismiss the appeal. It may refer the matter to the CA
baliktad noh? So it is not the same as Rule 50, Section 2.
Section 7. Procedure if opinion is divided. Where the court en banc is equally divided in opinion, or the
necessary majority cannot be had, the case shall again be deliberated on, and if after such deliberation
no decision is reached, the original action commenced in the court shall be dismissed; in appealed
cases, the judgment or order appealed from shall stand affirmed; and on all incidental matters, the
petition or motion shall be denied.
What happens if the justices of the SC are equally divided?
For instance, there were 4 in attendance in a division dahil absent ang isa the result is 2:2. So, we will
deliberate again, but still 2:2. If that is so, the decision appealed from is considered affirmed. In other
words, the ruling in the lower court is considered correct.
The counterpart of this rule in Criminal Procedure is Rule 125, Section 3. If after deliberation, the justices
are even, they will deliberate again but still even. The decision must be acquittal. Since you cannot break
the tie, it must be in favor of the accused.
EN BANC CASES
Now, before we leave this topic, of course we know very well that when you appeal to the SC, there are
two possibilities either it will be heard by a division (there are 3 divisions there) or your case might be
decided by the entire SC en banc.
Q: What cases are heard by the SC en banc?
A: There was a circular in 1993 issued by the SC enumerating en banc cases:
1.) Cases in which the constitutionality or validity of any treaty, international or executive agreement,
law, executive order, presidential decree, proclamation, order, instruction, ordinance or regulations in
question. For example, the recent Oil Deregulation Law;
2.) Criminal cases in which the appealed decision imposes death penalty; Criminal cases where a change 9.) All other cases as the court en banc, by the majority of its actual members, may deem of sufficient
of venue is required to avoid miscarriage of justice where SC has to make an order to change the venue; importance to merit its attention.

Pag reclusion perpetua, hindi man yan en banc ba! Only for death penalty.
These cases are those involving the welfare of the nation like Lotto case, EVAT, Manila Hotel case. This is
3.) Cases raising novel questions of law; also the ground invoked by Imelda Marcos where she tries to convince the court en banc to hear her
There is a point of law where there is no decided case yet. Meaning, such legal issue is raised for the first motion for reconsideration.
time.
-oOo-
4.) Cases affecting ambassadors, other public ministers or consuls;

5.) Cases involving decisions, resolutions, orders of the COMELEC, COA, or the Office of the EFFECT OF DEATH OF PARTY IN A CIVIL ACTION
OMBUDSMAN, SANDIGANBAYAN in administrative disciplinary cases;

6.) Cases in which the penalty involved is a dismissal of the judge, officer or employee of the judiciary,
disbarment of a lawyer or even suspension of any of them for a period of more than one (1) year of fine
exceeding P10,000.
Tignan mo sa SCRA. Pag ang penalty is removal of a judge or disbarment, en banc yan. And sometimes,
you cannot even identify who is the ponente. Ang tawag diyan per curiae. The ponente is not identified.

7.) Cases where a doctrine or principle of law laid down by the Court en banc or division may be modified
or reversed;
A decision by a division can only be reversed by the SC en banc. The same is true in a decision previously
decided en banc. Only SC en banc can change its mind and reverse its previous ruling.

8.) Cases assigned in a division which in the opinion of at least three (3) members thereof, merit the
attention of the Court en banc and are acceptable to the majority of the actual members of the court en
banc;

Meaning, it is a division case but at least three members of the division are of the view that it should be
elevated to the SC en banc. And the majority of the entire court also agree.

Example: A case is assigned to a division. After deliberating, majority of the 5 hold that the case is so
important that referral to the entire membership is proper. Then when it is referred en banc, majority
accepts it, then it is to be decided en banc.
Specific Example: The case of PEOPLE vs. LUCAS in Criminal Law. ISSUE: Is the penalty of reclusion
perpetua divisible or indivisible? The original ruling there by a division is that it is a divisible penalty. But
upon motion for reconsideration by the Solicitor General, the first division realized that maraming
implications ito. So at least 3 or 4 voted na itapon natin to the SC en banc and then the entire voted.
BAR QUESTION : A lost in an appealed decision. He filed a motion for reconsideration. He is insisting that
his motion be resolved by the entire membership of the SC. Can he insist that his motion for
reconsideration be heard by the entire membership of the SC en banc when he lost in a division?
A: NO, because the SC en banc is not a separate court from one of its divisions. You cannot say that a
decision by a division can be appealed to the SC en banc because it is the same court. The best that can
happen to you is you convince the members of the same division to refer the matter to the entire court
en banc and try to convince the majority of the court en banc to accept it. That is the correct move.
LAKAS ATENISTA
Date : Jan. 9,1998
Transcribed by: Melody Penelope Y. Batu Retyped by : Paul Ryan Ongkingco
I would like to supplement what you have studied earlier, especially on the Law on Jurisdiction. You have
already been finished with the subject but I would like to supplement what you already know. I have
received yesterday a copy of Republic Act 8369 which was approved on October 31, 1997. It is supposed
to take effect 15 days after the completion of its publication in the Official Gazette or in two national
newspapers of general circulation. Presumably it has already been published but we still cannot
determine the exact date of its effectivity.
Republic Act 8369 is called the Family Code Act of 1997. It is an act establishing the Family Court
granting them exclusive original jurisdiction over child and family cases amending BP 129. Under this law,
it says there that there shall be established a Family Court in every province and city in the country. In
what way was the Judiciary Law amended particularly the Law on Jurisdiction of the trial court? If you
still recall the RTC shall have exclusive original jurisdiction over the cases affecting marital relations and it
shall have original jurisdiction over cases which used to be within the jurisdiction of the Old Juvenile
Family Relations Court. Now, those two provisions of Section 19 has already been modified because
according to Section 5 of the Family Code Act of 1997:

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

So the jurisdiction has already been transferred to the newly created Family Courts. Question: How are
the decisions in the Family Courts appealed? In the same manner of procedure in appealing from the RTC
and the Court of Appeals.

How about in the present? I dont think it is already operational. According to the law, pending the
establishment of the Family Courts, in the meantime the Supreme Court shall designate for among the
branches of the RTCs at least one Family Court in each of the following cities one of them is in Davao.
One branch of the RTC will be acting as a Family Court.

Of course, it did not totally repeal the Judiciary Law because it says here that in areas where there is no
Family Court, the cases referred to in Section 5 of this Act shall

be adjudicated by the Regional Trial Court. Meaning, if there is no Family Court in that area, then you
will still follow the Judiciary Law, the RTC.

So I am just supplementing what you already know. In other words, you have to modify what we learned
in the light of new legislation.